James Frederick Staples

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The Honourable
James Frederick Staples
Deputy President of the Australian Conciliation and Arbitration Commission
In office
24 February 1975 – 1 March 1989
Nominated byClyde Cameron
Appointed bySir John Kerr
Personal details
Born
James Frederick Staples

(1929-06-02)2 June 1929
Sydney, New South Wales, Australia
Died27 April 2016(2016-04-27) (aged 86)
Gloucester, New South Wales, Australia
Resting placeReedy Creek Cemetery
32°28′40″S 151°20′04″E / 32.47778°S 151.33444°E / -32.47778; 151.33444
Political partyCommunist Party (1947–1956)
Australian Labor Party
Other political
affiliations		NSW Council for Civil Liberties
Spouse
Margot Staples (née Ungley)
​
​
(m. 1966)​
Alma materUniversity of Sydney
OccupationBarrister, jurist

James Frederick Staples (2 June 1929 – 27 April 2016), better known as Jim Staples, or as Justice Staples in legal contexts, was an Australian judicial officer. He served as a deputy president of the Australian Conciliation and Arbitration Commission from 1975 until its dissolution in 1989.

Early life[edit]

Staples was born in Sydney, New South Wales (NSW) on 2 June 1929, on the brink of the Great Depression.[1] His father, a former First World War serviceman, died in 1933,[2] forcing his mother to take up factory work to earn a living, and causing Staples to spend part of his childhood living with extended family away from his mother and two younger brothers.[1]

Education[edit]

Staples completed his secondary education at Canterbury Boys' High School.[2] An enthusiastic student, he achieved statewide first place in Latin in the Leaving Certificate.[1] This earned him a place at the University of Sydney, from which he graduated with a Bachelor of Arts in 1950 and a Bachelor of Laws in 1953.[2][3][4]

Communist Party involvement[edit]

During his time at Sydney University, the young and idealistic Staples became a member of the Australian Communist Party.[1] In 1951, he witnessed the High Court of Australia overturn the Menzies government’s attempted ban of the party in Australian Communist Party v Commonwealth, an action which instilled in him the power of the judiciary to uphold civil liberties.[2]

However, Staples’ involvement with the party did not last. A regular reader of the international edition of the New York Times, Staples was the one of the first Australian communists to read the text of Nikita Khrushchev’s revelationary secret speech denouncing Stalin when the Times published a leaked copy of it in June 1956.[5] When the Australian Communist Party leadership refused to accept the veracity of the speech, Staples arranged to have 500 copies of it reprinted on a Gestetner owned by the NSW Deckhand’s Union, complete with a cover designed by local artist Rod Shaw.[6][7] For this action, Staples was soon after expelled from the party.[6]

Career[edit]

Early career[edit]

An early business partner of Staples was Gordon Barton, whom, despite their differing political affiliations, he became friends with while studying together at Sydney University.[7] Unable to secure legal work at the time, they bought a truck together and started a transportation business.[1] While Barton later grew this business into the multinational Interstate Parcel Express Company (IPEC), Staples left it early on to pursue his legal career.[8]

Barrister[edit]

Staples was admitted to the New South Wales Bar on 29 July 1960,[9] and established his own law practice. Later in the 1960s he became a founding member NSW Council for Civil Liberties (CCL), which included prominent members of the NSW legal profession such as Maurice Byers and Neville Wran.[10] Staples took on numerous briefs assigned to him by the CCL, many of them pro bono, advocating for freedoms in areas of human rights.[2]

Staples also served for a time in the Commonwealth Attorney-General's Department. However, this career path was brought to an end when he was dismissed in 1968[11] on the advice of the Australian Security Intelligence Organisation, after they brought to light his prior membership of the Communist Party. At the time this was considered a potential security risk in light of the ongoing Cold War, a view later dismissed by contemporaries such as Jeffrey Miles.[1]

Notable cases[edit]

Following the shooting by police of George Tartar in 1966, Staples assisted in gaining recommendations for improved governance of police firearms use from the coroner's jury investigating the event.[12]

In 1971, Staples defended the two doctors who were accused in R v Wald, a District Court case which effectively legalised abortion in NSW.[13] In constructing his argument for the case, Staples recalled the legal history of abortion back to the 16th century to argue for the lawfulness of the procedure.[14]

While the Nagle Royal Commission into the state of the NSW prison system was being held from 1976 to 1978, Staples was chairing the prison reform committee of the CCL, in which role he amassed a collection of statutory declarations from prisoners detailing warden brutality.[1] The royal commission subsequently made 252 recommendations.[15]

Conciliation and Arbitration Commission[edit]

After having served as counsel to the national wage case during the Whitlam government,[11] Staples became a federal judge when he was appointed to the Australian Conciliation and Arbitration Commission upon the nomination of the Minister for Labor and Immigration, Clyde Cameron, with effect from 24 February 1975.[16] Here he joined fellow CCL member Michael Kirby, who had been appointed the previous December.[17][10]

BHP and Seamen's case[edit]

Within a year of his appointment Staples had already stirred controversy. In a dispute between Broken Hill Proprietary Company (BHP) and the Seamen's Union of Australia, he used an emotive turn of phrase to describe the disregarding of his prior recommendations by BHP:

'Let them [the recommendations], then, twist slowly, slowly in the wind, dead and despised, as a warning to the Commission of the limits of the persuasion of a public authority upon those who zealously uphold the privileges of property and who exercise the prerogatives of the master over those of our citizens whose lot falls to be their employees.'[18]

Despite the subsequent successful resolution of the case by Staples, employer organisations accused him of impartiality. The president of the commission, John Moore, reassigned Staples from the maritime panel of industries to an alternate panel,[18] while also privately making representations to Cameron's ministerial successor, Jim McClelland, to appoint Staples elsewhere in order to 'maintain the harmony of the industrial club'.[19] However, McClelland took no action on this before the Whitlam government was ended by a constitutional crisis in November 1975.

Overseas study tour[edit]

Under the subsequent Fraser government, Staples was dispatched on an overseas study tour during 1977 and 1978, ostensibly to investigate matters of human rights and civil liberties, but with the conspicuous side-effect that he was for nearly two years temporarily removed from his substantive duties at the commission.[20] Staples produced several reports during this period, including an investigation of Canadian human rights law.[21]

Return to Australia and withdrawal of assignments[edit]

Staples returned to Australia and his duties on the commission in 1979.[20] One of his first acts upon returning was to award an unexpectedly large wage increase to Storemen and Packers Union,[22] which was subsequently overturned on appeal by the full bench of the commission amid union strikes in protest in February 1980.[23] The next month, following critical comments made by Staples from the bench concerning the unwillingness of Telecom Australia (then a commission of the Commonwealth) to negotiate with a union,[24] the Fraser government arranged for Staples to be offered an appointment to the Australian Law Reform Commission in an apparent attempt to remove him from the arena of industrial relations.[25] Staples declined the offer.[26]

Instead, Staples made a defiant speech at a conference in Adelaide in which he defended his original ruling in the Storemen and Packers Union case and criticised its overturning by the full bench.[27] This criticism concerned his fellow deputy presidents on the commission, who wrote to Moore expressing this view. Following receipt of this letter, and new appointments to the commission, Moore withdrew all of Staples' panel assignments in May 1980, leaving him to sit on the full bench as invited on a case by case basis only.[20]

Days later, Mary Gaudron, a fellow deputy president and future High Court justice, resigned her position, expressing her disappointment to Moore that the letter which she had signed had been used in a way which she had not intended.[20] At the same time, the move was criticised by eleven members of the NSW Bar in an open letter to The Sydney Morning Herald as 'an attack on judicial integrity and independence'.[28] However, when Staples sought the support of the NSW Bar Association to challenge Moore's decision, an extraordinary general meeting of the association resolved not to take any action.[18] Over the course of the next five years, the number of days in which Staples was invited to sit on the full bench of the commission declined. Eventually, they ceased altogether once Barry Maddern, who instituted a policy of ignoring Staples altogether, replaced Moore as the president of the commission in 1985.[20]

Dissolution of the commission[edit]

Shortly after its election in 1983, the Hawke government commissioned Keith Hancock to review the full scope of the industrial relations system. The Hancock Report, handed down in 1985, included among its recommendations replacing the Conciliation and Arbitration Commission with a new Australian Industrial Relations Commission (AIRC).[20] This was duly implemented through the Industrial Relations Act 1988 (Cth) and Industrial Relations (Consequential Provisions) Act 1988 (Cth). In January 1989, the new Minister for Industrial Relations Peter Morris appointed Maddern to be president of the new AIRC, and each of the outgoing deputy presidents of the Conciliation and Arbitration Commission as deputy presidents of the AIRC, with the sole exception of Staples.[18] Thus, when the new AIRC replaced the former commission on 1 March 1989, Staples effectively ceased to be a federal judge through the abolition of his office, and by the transitional and savings provisions of the enabling legislation he was legally deemed to be of pensionable age, despite not yet being sixty as ordinarily required.[29]

Controversy[edit]

Leading up to 1 March 1989, the Hawke government was accused in the press and in legal circles of subverting judicial independence by annulling Staples' security of tenure.[18] On the day of the transition, Prime Minister Bob Hawke was forced to defend the decision not to reappoint Staples in parliamentary question time. He described his government's action as remedying the 'unsatisfactory' and 'increasingly intolerable' situation of Staples having no work to do, for which he held the successive presidents of the commission responsible. Furthermore, he disputed that the commission represented a judicial body.[30] For his part, Staples gave a vigorous rebuttal and a broader defence of his actions on the commission at a National Press Club address a few weeks later on 23 March.[11][31]

A joint select committee of parliament was instigated to investigate the tenure of appointments to Commonwealth tribunals. It first met in April 1989, and reported in November 1989, having dedicated a chapter of its report to the Staples matter. It found that Staples had been 'at all times prepared to carry out the duties of his office but was prevented from doing so by decisions of the President of the day', and expressed surprise that a resolution to the issue had not been arrived at between Staples and the president during the prior decade.[32]

Aftermath[edit]

Although a High Court challenge had been mooted in the press,[33] Staples ultimately chose not to challenge his loss of office in court, and the controversy subsided.[2] The events have since been studied as an example of the limits of judicial independence, especially by Michael Kirby, Staples' former colleague on the commission and later High Court justice.[1] The events continued to be cited as an example of Australian government intervention in the adjudication of industrial relations even after Staples' death.[34]

Retirement[edit]

In his retirement, Staples became a director of Civil Liberties Australia, building upon his longstanding membership of the NSW Council for Civil Liberties.[35]

Personal life[edit]

In 1966, Staples married Margot Staples (née Ungley),[36] a potter who served as president the Potter's Society of Australia.[37] They lived together in Longueville on the North Shore of Sydney.[38]

Staples also lived in Bywong, a rural community not far from Canberra, and Gloucester, in the hinterland of the Mid North Coast of NSW, where he died on 27 April 2016.[35] He is buried at Reedy Creek Cemetery in the Hunter Valley.[39]

References[edit]

  1. ^ a b c d e f g h Steketee, Mike (4 May 2016). "Fearless advocate in defence of battlers". Sydney Morning Herald.
  2. ^ a b c d e f Kirby, Michael (2016). "Obituary: The Hon James Frederick Staples" (PDF). Australian Law Journal. 90 (9): 679–680.
  3. ^ "University of Sydney Graduates 1950". University of Sydney Archives. Alumni Sidneienses. University of Sydney.
  4. ^ "University of Sydney Graduates 1953". University of Sydney Archives. Alumni Sidneienses. University of Sydney.
  5. ^ Walshe, Bob (Winter 2003). "1956, that 'Secret Speech', and Reverberations in Sydney". The Hummer. Vol. 3, no. 10.
  6. ^ a b Bryant, Elaine (Winter 2003). "Remembering and Reflecting: 1956". The Hummer. Vol. 3, no. 10.
  7. ^ a b McLaren, John (2003). "The End of an Affair: Intellectuals and the Communist Party 1956 - 1959" (PDF). Journal of Australian Studies. 27 (78): 71–82. doi:10.1080/14443050309387872. ISSN 1444-3058.
  8. ^ Lawson, Valerie (11 April 2005). "A style all of his own". Sydney Morning Herald. Archived from the original on 11 April 2005.
  9. ^ New South Wales Bar Association (1963). Downing, Robert Reginald (ed.). New South Wales Law Almanac for 1963 (PDF). NSW Attorney General's Department. Sydney: NSW Government Printer. p. 84.
  10. ^ a b Kirby, Michael (3 May 1996). Early Days and Days Ahead (PDF) (Speech). New South Wales Council for Civil Liberties Reception.
  11. ^ a b c Staples, James Frederick (23 March 1989). James Staples address at the National Press Club on 23 March 1989 (Speech) – via Trove.
  12. ^ Harding, Richard (1970). Police killings in Australia. Ringwood, Victoria: Penguin Books. ISBN 9780140700282.
  13. ^ Mylchreest, Ian (1995). "Sound Law and Undoubtedly Good Policy". Roe v. Wade in Comparative Perspective. Journal of Policy History. 7 (1): 64. doi:10.1017/S0898030600004140.
  14. ^ Henry, Catherine (October 1995). "Abortion retried" (PDF). Alternative Law Journal. 20 (5): 239–241. ISSN 1037-969X – via Australasian Legal Information Institute.
  15. ^ Nagle, John (31 March 1978). Report of the Royal Commission into New South Wales Prisons (Report). Sydney: NSW Government Printer.
  16. ^ "Appointment of a Deputy President of the Australian Conciliation and Arbitration Commission". Department of Labor and Immigration. Australian Government Gazette. General. No. G9. 4 March 1975. p. 19 – via Trove.
  17. ^ "Appointment of a Deputy President of the Australian Conciliation and Arbitration Commission". Department of Labor and Immigration. Australian Government Gazette. General. No. 99E. 9 December 1974. p. 1 – via Trove.
  18. ^ a b c d e Kirby, Michael (September 1989). "The Removal of Justice Staples and the Silent Forces of Industrial Relations" (PDF). Journal of Industrial Relations. 31 (3). doi:10.1177/002218568903100303.
  19. ^ McClelland, Jim (24 February 1989). "Labor's blackest hour". The Sydney Morning Herald. p. 11.
  20. ^ a b c d e f Kirby, Michael (March 1990). "The removal of Justice Staples: contrived nonsense or matter of principle?" (PDF). Australian Bar Review. 6 (1). ISSN 0814-8589.
  21. ^ Staples, James Frederick (1977). The Canadian concept of human rights : a handbook for Australian legislators (Report). A fourth report to the Attorney General of Australia, Senator the Hon. Peter Durack, MP. Ottawa, Canada.
  22. ^ "The wool dispute". The Canberra Times. 11 March 1980. p. 2 – via Trove.
  23. ^ "Full Bench reduces pay rise for woolmen". The Canberra Times. 14 February 1980. p. 1 – via Trove.
  24. ^ "Judge attacks Telecom again". The Canberra Times. 6 March 1980. p. 3 – via Trove.
  25. ^ "Senator confirms job offer to Staples". The Canberra Times. 20 March 1980. p. 12 – via Trove.
  26. ^ "Staples stays on". Tribune. 24 March 1980. p. 5 – via Trove.
  27. ^ "Staples the 'sacrificial lamb'". The Canberra Times. 18 March 1980. pp. 1–3 – via Trove.
  28. ^ "11 sign letter: Lawyers criticise judge's demotion". The Canberra Times. 8 May 1980. p. 9 – via Trove.
  29. ^ Industrial Relations (Consequential Provisions) Act 1988 (Cth) s 81
  30. ^ Hawke, Robert, Prime Minister (1 March 1989). "Former Mr Justice Staples". Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. pp. 212–213.
  31. ^ Juddery, Bruce (26 March 1989). "Few answers, no tears for Staples". The Canberra Times. p. 7 – via Trove.
  32. ^ Parliament of the Commonwealth of Australia (November 1989). Klugman, Richard (ed.). Report of the Joint Select Committee on Tenure of Appointees to Commonwealth Tribunals (Report). Parliamentary Paper no. 289 of 1989. Canberra: Australian Government Publishing Service. ISBN 0644112794 – via Trove.
  33. ^ McGuinness, Padraic (26 January 1989). "An Australia Day hero". Australian Financial Review.
  34. ^ Marin-Guzman, David (22 March 2017). "Inside the undermining of the industrial umpire, now the Fair Work Commission". Australian Financial Review.
  35. ^ a b Raggatt, Matthew (30 April 2016). "Former communist turned federal judge sacked by Hawke dies". The Canberra Times.
  36. ^ "Inscription 15556281 - James (Jim) Frederick (Hon.) Staples". Australian Cemeteries Index.
  37. ^ Mansfield, Janet, ed. (May–June 1982). "Editorial Committee". Pottery in Australia. Vol. 21, no. 1. p. 2.
  38. ^ Morgan, Frances (September 2001). Dean, Trisha (ed.). "Margot Staples". Pottery in Australia. Vol. 40, no. 3. p. 19.
  39. ^ Collins, Janelle (12 April 2022). "James Frederick Staples (2 Jun 1929–27 Apr 2016)". Find a Grave. Memorial ID 238746397.
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