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The Cold/Class War, and the Jailing of Ted Roach

L.J. Louis

In the Cold/Class War of the late 1940s in Australia, the state intervened to limit labour's exercising its superior bargaining strength. The principal agency of coercion was the arbitration system, rearmed with punitive powers by the 1947 Act. Of prime concern were the vanguard communist-led trade unions covering the strategic bottleneck industries. Industrial disputes affecting them were interpreted as threats to national security, and war on communism on the home front was war on communist union officials. Ted Roach serving a 12 months sentence in Long Bay Jail was a prisoner of that war.

 1
After World War II, the Chifley Labor Government embarked on its ambitious programme of national development. It was beset by formidable obstacles. Sharing the widespread presentiment that another depression was likely, it was struggling to cope with international and domestic economic pressures. The dollar shortage and the sterling bloc crisis were compounded by the jump in inflation to over nine per cent in 1947/48. Economic fundamentals were becoming increasingly distorted. At the same time, Chifley was challenged by demands of the labour movement, which he was convinced would precipitate a crisis. This was an unprecedented period in that labour possessed superior bargaining strength at a time of enormous pent-up consumer demand after the Depression and the War. The acute labour shortage meant that in any direct conflict with capital, labour would win substantial gains, as employers would make concessions and pass on the costs. For Chifley, this outcome would result in inflation, diversion of investment away from essential developmental works, and unemployment. Militant unions, too, were spurred on by a fear of imminent depression and the need to secure gains before the opportunity was lost. The advice of economists, and reports to the Investment and Employment Committee of Cabinet, reinforced the convictions of Chifley, as both Prime Minister and Treasurer, that advances in wages and working conditions must be gradual. The dilemma was how to thwart the demands of the labour movement and still retain credibility as a Labor Government.1 2
      All-pervasive Cold War ideology depicted the high incidence of strikes as part of a Moscow-directed communist conspiracy to wreck the economy, foment revolution, and undermine the defences of the West. Communist officials of the Australian Coal and Shale Employees Federation (Miners Federation), Waterside Workers Federation (WWF), Seamens Union, Federated Ironworkers Association (FIA) and other major unions, were, in this Cold War scenario, traitors — a fifth column which had to be destroyed in the interests of national security. Thus, the contours of the Cold/Class War took shape.2 These vanguard unions, now with superior industrial muscle, were labelled 'communist unions', and the punitive measures aimed at them were presented as a crucial aspect of the war against communism. Because the coal mining and stevedoring industries were bottlenecks, strikes there took on a life-or-death complexion. That these industries were inefficient and outmoded, with long histories of bad industrial relations, was ignored in propaganda that focused on communist union officials. The reality was that coal and transport were the life blood of the economy. Even if there had been no Cold War, breaking these bottlenecks had the 'highest priority'.3 But Chifley was handicapped by lack of constitutional powers to regulate wages after the wartime emergency regulations lapsed, the price control referendum was defeated, and his bank nationalisation scheme, which sought to guarantee finance for national development, was invalidated. Confronted with labour's superior bargaining strength, the state intervened, and major agencies were the arbitration system, with special tribunals for the bottleneck industries — the Stevedoring Industry Commission (SIC) and the Coal Industry Tribunal. The conjunction of industrial conflict and the Cold War produced the Cold/Class War. 3
      In his thorough analysis of the period, Tom Sheridan has penetrated Cold War ideology to reveal the industrial realities. As he observes of the 1949 coal strike, 'the public debate was conducted in terms of a sinister communist plot ... rather than, more accurately, focussing on how the arbitration system in full employment retarded workers from making gains otherwise inevitable if they were allowed free use of their market power'.4 The Communist Party did seek to play a leading role, and union officials were expected to carry out the Party line. Party policies, as all accounts agree, were based on the miscalculations that capitalism was on the brink of crisis and the time had arrived for the Party to wrest leadership of the labour movement from the Australian Labor Party (ALP). Sheridan has examined the industrial disputes of the time, and noting that State governments, too, for good practical reasons, adopted extreme measures to hold down wage costs, concluded that the landmark 1948 Queensland rail strike was 'not the outcome of a communist plot. It centred around a clear and legitimate industrial issue'.5 But the language employed for everyday industrial relations was so imbued with anti-communism that it is difficult to disentangle the various elements of the Cold/Class War. Analysis is also hampered by accounts that see communists as alien intruders with no genuine roots in Australian working-class culture. While anti-communist rhetoric was often hysterical, for the inner circle of Government, the threat of subversion and espionage assumed real substance once the Woomera Rocket Range was established. Australia now had secrets to protect and international obligations to the British and Americans in the evolving global strategy to defeat communism.6 4
      E.C. (Ted) Roach, Assistant General Secretary of the WWF since 1942, was one of the casualties of 'the war against communism'. As a communist and official of a vanguard union covering a bottleneck industry, he fits the paradigm. Tracing his experience will provide a human face to this examination of the Cold/Class War. Ted has a place in Australian history as leader of the Port Kembla Pig Iron dispute in 1938, but his 12 months jail sentence during the Cold/Class War is usually overlooked. Its recall should make for a reappraisal of Roach's status in labour historiography.7

 5
The Commonwealth Conciliation and Arbitration Act as amended in 1947 was to play a central role in the Cold/Class War. The parliamentary debates on the Bill revolved around the contradictions inherent in an industrial arbitration system. The Liberal/Country Parties insisted that, in accepting arbitration awards, trade unions forfeited the right to strike, and demanded severe penalties for 'unlawful strikes'. The Labor Party — dependent on trade union support — though totally wedded to arbitration, could not disavow the right to strike. Pointing to a history of their inefficacy, the Chifley Government refused to restore the penalties abolished by the Scullin Government in 1930. The 1947 enlargement of the role of Conciliation Commissioners provoked vehement employer opposition arising from fears that appointments would be biased and even include communists. The industrial disruption in Victoria at this time prompted Opposition spokesmen from the Liberal/ Country parties to refer to impending civil war as an argument for anti-strike penalties.8 These hysterical perceptions obscured the reality of workers' challenge to wage pegging. Alarm over the 1947 Act was misplaced, as it proved to be a most effective coercive weapon in the state's armoury against militant trade unions. While the Act did not prohibit strikes, more significantly, the 1947 amendment created the Arbitration Court as a Superior Court of Record. Disobedience of its orders could now be punished as a contempt of Court. Moreover, the Court could enforce anti-strike 'ban' clauses in arbitration awards. Nor were the dire predictions about the appointment of conciliation commissioners accurate. Among the additional nine members initially appointed was A.S. Blackburn VC, President of the Returned Sailors, Soldiers and Airmens Imperial League of Australia (RSL) in South Australia, who was notorious in workers' eyes for his enlistment of scabs in the 18d8 waterfront strike. On the other hand, three trade union officials were appointed along with three who had held positions in the labour movement; subsequently, a few more unionists filled vacancies. None of them was a communist, and in practice all conformed to moderation and acted to restrain labour costs. 6
      Together with the basic wage fixed by the Arbitration Court, the pegging of margins for skills was a major triumph over union industrial power, and this was achieved by Commissioner J. Galvin who had been General Secretary of the Australian Federated Union of Locomotive Enginemen (AFULE) since 1929. In recognition of his 'courage', the Menzies Government appointed him Chief Conciliation Commissioner in 1954.9 Any illusions that the Chifley Government would make appointments to the Arbitration Court to rectify what was regarded as the anti-working class bias of previous governments had been dashed. The Court was comprised of four judges appointed by previous conservative governments and A.W. Foster appointed in 1944 by the Curtin Government. In earlier days, Foster had described himself as a revolutionary socialist, and delivered lectures on the 'The Futility of Arbitration', which should be abolished.10 By the late 1940s, the only vestige of this rebellious past was occasional flamboyance, and he, too, jailed trade unionists. The Chifley Government passed up the opportunity to change the complexion of the bench. In 1947, Chifley personally secured the appointment of R.C. Kirby. This former 'silver tail' had gravitated via professional work as a barrister into the Sydney trade union and Labor Party orbit. Determined to take no risks, the Government appointed Kirby as inaugural chairman of the SIC, at the expense of Foster who had regarded the position as his; and Kirby was to fulfil expectations in his resistance to WWF militancy.11 From a union point of view, the other new appointment was worse. E.A. Dunphy, on the eve of assuming the position, publicly declared that 'the right to strike has gone',12 and on the bench he was to give vent to his anti-communism. In 1947, to union consternation, the Government had promoted E.A. Drake-Brockman (formerly Nationalist Senator and President of the Employers Federation, and the target of much hostility) to the position of chief judge. On his death in 1949, he was replaced by R.C. Kelly, another ideologically driven anticommunist. Kelly, an appointment by the United Australia Party (UAP) Government in 1941, had in 1943 been on the drafting committee chaired by B.A. Santamaria that produced the Catholic social justice statement, Pattern for Peace, that informed the National Catholic Rural Movement. These economic doctrines were at odds with a society in the process of rapid industrialisation; the Chief Judge, nevertheless, was to be a major player in the Cold/Class War.13 7
      Clashes of personalities among the judges did not impede industrial arbitration functioning as an essential component of the state apparatus. The judges were equally zealous in their determination to 'uphold the law' against militant unionists and to act 'responsibly' in weighing the economic consequences of their decisions. In practice, this meant conforming to the Government's objectives of economic stability and fighting inflation. This was not conspiracy but class hegemony. Judicial behaviour reflected personal characteristics and the judges' anti-communism. Their sensitivity to criticism, manifested in their readiness to jail offending unionists, may well have derived (in part at least) from insecurities as to whether they were 'real judges'. They ranked lower in the hierarchy and received lower salaries than judges who sat in the 'real' superior courts of record. To compensate, the Arbitration Court was invested with the formalities and trappings of the superior courts, and Chief Judge Kelly's pretensions led him to claim the title of Chief Justice — to the annoyance of the Chief Justice of the High Court.14 Common foibles and prejudices were rife among Arbitration Court judges who, invested with punitive powers, were to treat defiant unionists as criminals. As Foster in 1947 declared in public addresses:
The awards of the Arbitration Court are legislation and not adjudication ... The Arbitration Court makes laws for Australia which its citizens must obey and which are enforced ... It is a matter of striking comment that in a democracy so much legislative power should be imposed on and entrusted to [arbitration judges] appointed for life and beyond the reach of popular will.15
 		8
      It was these judges who were to provide bulwarks against the tidal wave of militant unionism.

 9
As wage pressures mounted in the later 1940s, the Court demonstrated its willingness to impose the penalties now available to discipline militant unionists who were attempting to bypass the court. Its 1949 jailing of communist L.J. (Jack) McPhillips (Assistant Secretary of Ironworkers Association) and a member of the Australian Council of Trade Unions (ACTU) panel preparing the basic wage case, set a precedent. On 22 February, the Court had adjourned its hearing of the case until 7 March, and a public meeting was called on 3 March to protest against the dilatoriness of the Court. In his speech, McPhillips was alleged to have declared, 'This issue will be determined outside the Arbitration Court. We do not trust the people in charge of the Court to play the game'.16 McPhillips was charged with contempt of the Arbitration Court, and, after a two-day hearing, was found guilty and sentenced to one month in Long Bay Jail. This sentence was imposed by Acting Chief Judge Kelly and Foster, while Kirby held that a fine of £100 was more appropriate in the light of a recent penalty of £200 imposed by the same bench on the Metal Trades Employers Association after its journal had attacked the Court's 40-hour week decision. This disparity in penalties was further evidence for critics of the Court's class bias. Furthermore, it was now revealed that the 1947 Act had handed judges another knuckle-duster by providing that 'a judgement, order or award of the Court ... shall not be subject to an appeal to the High Court' (section 36). Protests against the jailing of McPhillips exacerbated industrial turmoil and ructions within the labour movement.17 10
      As noted above, the Labor Government had established the SIC to clear the bottleneck in the strategic stevedoring industry. The WWF representatives on the SIC were its General Secretary (J. Healy) and Assistant General Secretary (Roach), both communists, and the chairman was Justice Kirby. Wharfies had a long tradition of taking action on 'political' issues, and when, on 28 March 1949, they held a two-hour stop work meeting to protest against the trial of the General Secretary of the Communist Party (L. Sharkey) for sedition, Kirby used his casting vote on the SIC to thwart the imposition of penalties. But when the Federal Executive of the WWF called on members to strike for 24 hours on 11 April, to protest against the jailing of McPhillips, Kirby moved to impose discipline. On 9 April in a radio broadcast, he abandoned the role of mediator and appealed directly to the men to defy their officials. He demanded undertakings from Healy and Roach that they would abide by SIC decisions, and thus precipitated a clash of fundamental principles. 11
      The WWF Federal Executive insisted on retaining the right to strike and representation by officers elected by its members; and it called a special meeting of the Federal Council to make authoritative policy decisions. The Labor Government was less interested in the WWF's democratic decision-making processes than exploiting anti-communism. The strikes over Sharkey and McPhillips were not about industrial issues, and the union's right to strike was not in question, ministers and the press proclaimed: wharfies were being misled by communists for ulterior political purposes. Despite the considerable influence of Industrial Groups within the WWF, the Federal Council unanimously reaffirmed the basic trade union principles of the right to strike and to elect its own representatives; and it confirmed the appointments of Healy and Roach to the SIC. It also endorsed the Federal Executive's directions to stop work over Sharkey and McPhillips, but only by ten votes to nine. Cabinet ignored the Federal Council and supported Kirby's ultimatum, dismissing Healy and Roach. When the WWF refused to nominate replacements, it abolished the SIC. Its functions reverted to the Arbitration Court, with a special division covering the stevedoring industry presided over by Kirby. He enunciated the new dispensation on 12 August 1949 when he pronounced on 'the so-called and at present disputed "right to strike"'. As waterside workers had been given many benefits by arbitration tribunals, they 'in return, have been placed under an obligation, not only legally but morally, to make their labour available'.18 12
      When miners had held stop work meetings to protest against the jailing of McPhillips, the Chairman (F. Gallagher) of the Coal Industry Tribunal threatened to prosecute officials of the union, but the Acting Commonwealth Crown Solicitor expressed the opinion that no offence had been committed. Gallagher's opinion was that the stoppage was 'most reprehensible' and the miners were 'scapegoats' for 'nefarious political purposes' — which was to be an early warning shot.19

 13
In June 1949, volatile elements of the Cold/Class War interacted to produce the momentous coal strike.20 The issues, agents and events paralleled those in the stevedoring industry and conformed to the paradigm being constructed by this paper. According to official reports, 'the [coal] industry is fundamentally inefficient and out of date', and its productive capacity inadequate for national requirements. It was desperately in need of modernisation, but reforms were being resisted. Industrial relations were notoriously bad. Ownership was highly concentrated, and mine owners had a record of ruthless exploitation. Working conditions and amenities, though recently improved, were for the most part 'primitive'.21 At the same time, there was a very high degree of unionisation, principally in the Miners Federation. It had a long history of militancy, and shared many characteristics with the WWF. It was labelled a 'communist union', which was effective propaganda and did in a general sense identify orientation, but it promotes obfuscation rather than analysis. Nor is counting heads very productive. The General President and the Vice President and other communists at district level played leading roles, but this did not guarantee adoption of their policies by rank and file meetings. Depictions of miners, and their WWF counterparts, as puppets manipulated by communist conspirators were demeaning stereotypes. In fact, it was the lack of central control that accounted for unauthorised local stoppages of miners and wharfies that plagued these industries. In the Cold/Class war, the labelling facilitated the summary dismissal of alternative radical economic and political programmes, and the stigmatising of union leaders as traitors. 14
      With the economy dependent on coal, shortfalls in production were retarding development: this was a bottleneck the Chifley Government, fearful of another depression, had to solve, whatever the cost.22 But the unprecedented bargaining power of labour presented difficulties and dilemmas. As the Maritime Worker argued, miners should be supported in their demands because 'Shorter hours for miners paves the way for shorter hours for all workers', and long service leave 'should be every workers' right'.23 Fearing such a flow-on, Chifley had to defeat this threat to economic stability, and would employ the punitive powers of the state to prevent labour wresting a larger share of national income. The coal strike occurred in the context of the worsening Cold War which distorted perceptions of mundane events. The language of industrial conflicts was couched in Cold War terminology, as disputes over wages and conditions were again represented as communist conspiracies. It takes the painstaking work of Sheridan to penetrate the ideological distortions and see the legitimate industrial issues at stake. To take the next step and identify the class dimension of the Cold War requires an alternative frame of reference to that of conventional historiography. 15
      Sharing the widespread fear that favourable conditions would not last, the Miners Federation urgently pursued claims for a 35-hour week and long service leave. Once again, the conflict was not to be directly between labour and capital, but between unions and the state. When these claims were stalled before the Coal Industry Tribunal, the Central Council of the Miners Federation, on 11 June, decided to call stop-work meetings which would consider a recommendation to strike on 27 June. In response, the chairman of the Tribunal (Gallagher) issued a no-strike order and threatened to prosecute the officials. Following Kirby's example, he took the extraordinary step of directly challenging the basic principle of the right to strike, and ignored union President Idris Williams' warning 'that we will never sell the right to strike ... The Trade Union would become non-existent if we sold that right'.24 The miners refused to be intimidated and held the aggregate meetings which voted to strike on 27 June if their claims were not dealt with satisfactorily. The Government refused to mediate, and the last-minute substantial concessions offered by miners were rejected out of hand with the rebuff that they must return to arbitration. Immediately after the strike commenced, the Labor Government launched the coercive weapons of the state against the miners to carry out Chifley's vow to fight them 'Boots and All'. 16
      In one day, on 29 June, Ministers rushed through Parliament the National Emergency (Coal Strike) Act. It applied retrospectively, and was so draconian that few could have anticipated that such legislation was conceivable under a Labor Government. The Act operated to deny financial support for the miners and their families, and it astutely compensated for the limited constitutional powers of the Federal Government over industrial matters by harnessing the punitive contempt provisions of the 1947 Arbitration Act. Section 9 of the Coal Strike Act gave the Arbitration Court jurisdiction, exercisable by a single judge, to issue injunctions to ensure compliance with the Act.25 The Act came into effect immediately. On a Saturday (2 July) in a special session of the Arbitration Court, Chief Judge Kelly issued an injunction prohibiting four unions from disposing of funds withdrawn from banks; and on 5 July he followed up with an order requiring the unions to pay the monies to the Court's Registrar. When the union officials refused to obey the orders, they were served with summonses for contempt. On 6 July, J. King of the Miners Federation was sentenced to one month's jail by Kelly who then fell ill and was replaced by Foster. Under this Acting Chief Judge, the prosecutions came to resemble a Kangaroo Court. The hearing of charges under the 1947 Arbitration Act seriously disadvantaged the union leaders as they were denied many of the rights they would have been entitled to in criminal proceedings. Normal rules of evidence were not applied; the onus of proof was reversed from Crown to defendants; and the accused did not have the right to refuse to give incriminating evidence. Furthermore, whereas the Coal Strike Act had stipulated a maximum penalty of six months or £1,000 fine, there was no such limit for contempt of the Arbitration Court. Foster sentenced seven officials to 12 months jail, and McPhillips to six months, and also fined five officials and three unions (for the Miners and WWF the fine was £2,000 each). When Healy and Roach had appeared before Foster, he had rejected the submission that each of the accused had the right to a separate trial. Roach insisted on speaking on his own behalf, and the exchanges illustrated the class divide. In defending his refusal to pay the funds to the Court, Roach declared 'I am not prepared to accept the right of anybody to interfere in the domestic affairs of a trade union'. Unions were the fighting organisations of the workers, who, through history, had had to resist bad laws. Cutting him short, Foster would not permit discussion whether the law was good or bad, 'It is the law'. To which Roach retorted, 'It is a law to starve miners into submission'. When Roach claimed the right to argue why his liberty should not be taken away, Foster refused and sentenced Healy and Roach to 12 months with 'light labour'. The unionists had been brought into Court in handcuffs, and in Long Bay Jail were treated as ordinary criminals.26 17
      The coal strike had devastating consequences, with soaring unemployment and social and economic dislocation. In the ultimate betrayal of the principles and tradition of the labour movement, troops began working open-cut mines on 1 August. As Phillip Deery has shown, plans for the use of troops had been set in train in early July.27 In his public announcements, and in reply to a mountain of letters, Chifley never varied his formula that the Government did not have an opinion on the merits of the miners' claims which could be dealt with only by the Coal Industry Tribunal.28 Coerced by the state and with divisions spreading within their ranks, the miners capitulated to resume work on 15 August. Applications were then made to the Arbitration Court (Kelly, Kirby and Dunphy) so that the jailed union leaders could purge their contempt and be released, which occurred on 24 August — with Dunphy dissenting. The form of the purge was significant for the authority of the Court and the right to strike. Roach and the other officials had to affirm their acceptance of the orders Foster made as being in discharge of his duty under the Coal Strike Act, and that the provisions of the law were to be carried out in preference to the rules of their organisation.29 The defeat of the miners was a triumph for the determination of Ben Chifley, the modest ex-engine driver, and now a Prime Minister and Treasurer responding to domestic and international economic imperatives. And it was H.V. Evatt, with a record of upholding democratic rights, who, as Attorney General, had enacted the Coal Strike Act and fashioned the formula that authorised the use of troops. With the establishment of the Australian Security Intelligence Organisation (ASIO) in 1949, the Labor Government had put in place all the major policies that the Menzies Government was to employ in its Cold/Class War; and H.A. Bland (Secretary, Department of Labour and National Service) and K. Bailey (Secretary, Attorney-General's Department) and other key public servants provided continuity in administration. The notion that the December 1949 elections constituted a watershed is misleading. And the continuities also applied to individuals, as the later sentencing of Ted Roach to another 12 months will demonstrate.30

 18
During the second half of the 1940s, the Arbitration Court had sidetracked labour's major demands and neutralised its superior bargaining position. The 40-hour week case had dragged on before the Court from 1945 until August 1947. After 449 hearing days and 224 witnesses, union frustration mounted to such levels that on 2 September 1947 the ACTU Congress issued an ultimatum threatening a national stoppage. A week later, the favourable decision was delivered which the Age interpreted as removing the grounds on which the 'wreckers' had been able to argue that nothing could be gained from arbitration and that concessions could only be won by strikes.31 The basic wage case was also a marathon. An interim judgement handed down on 13 December 1946 had awarded an average increase of 7 shillings a week for capital cities (a rise from £4 18s 0d to £5 5s 0d). In February 1949, the ACTU lodged a claim for £10 and equal pay for women. The Court began the hearing in May 1949 but there were many delays and it was not until August 1950 that it reached a reserved decision. The Court had adjourned the case because of the coal strike and again during the federal election campaign at the end of 1949. The High Court had rejected (4–1) an ACTU application to compel it to proceed with the hearing. Almost immediately after resumption, the Court had adjourned until 14 February 1950 for the two months law vacation. An ACTU request to shorten the vacation was dismissed by Chief Judge Kelly as 'impertinent'.32 19
      Even moderates became impatient, but militant unions were in a stranglehold. From the outset, the Court had demonstrated its determination that its hearing of the basic wage case was conditional on unions giving assurances that they would not seek to secure wage increases by industrial muscle. It had imprisoned union leaders who defied its authority, and it intimidated ordinary workers. In December 1949, in giving evidence in the case, the Treasurer of the Melbourne Tramways Board made allegations about the unsatisfactory performance of conductresses. They resented the slur and held a meeting to demand an apology, and their resolution was endorsed by the Victorian Executive of the Tramways Union. At the direction of Kelly, contempt summonses were served on the union officials alleging an attempt to influence or terrorise a witness. Kelly found that it was a 'serious case' meriting 'serious punishment', and Foster found that it was an 'attack upon the very foundation of the administration of justice'. The officials were found guilty, but in view of expressions of regrets and apologies, no penalty was imposed, and Kelly used the occasion to warn against any repetition of the offending conduct.33 During 1950, there was a decline in strikes. The reasons given to the Minister for Labour (Holt) by his Department were the threats hanging over the basic wage hearing and how the Communist Party Dissolution Bill had rendered impotent communist union leaders, already battered during the 1949 coal strike.34 20
      On 12 October 1950, when the basic wage judgement was delivered, Kelly held that there could be no increase because it would drive up inflation. Foster and Dunphy, however, decided on an unprecedented £1 increase. In her version of the inside story, Blanche d'Alpuget claims that Foster believed he was only making a 'glorious gesture', and was 'astounded' that Dunphy agreed to the £1 because he had expected that Dunphy would recommend 10 shillings, and after negotiation with Kelly the outcome would be a compromise of 5 shillings.35 In any case, after such long delays, if the Court was to retain credibility for moderate unionists, it had to make an acceptable concession; and, further, on closer examination the £1 was not as remarkable as most accounts would have it. In August 1950, unemployment figures were the lowest on record with unfilled vacancies rising, and while the basic wage was £7 a week, advertisements in the daily press were offering £10 for a 40-hour week for unskilled workers. Despite the £1 increase, the Court had held firm against the high tide of union bargaining power; and during the 50s, it played a vital role in that critical period of the Cold/Class War and the transition to the Menzies Era of the Golden Years of capitalism. Chief Judge Kelly now prevailed, and the Court imposed a basic wage freeze until 1956 after abolishing the quarterly cost of living adjustments in 1953.36 And this was reinforced by the freezing of margins. Margins cases for the Metal Trades unions had national significance as any increase flowed on and had the effect of a general wage rise. Margins had been seriously eroded by January 1952, when, after years of delays, Commissioner Galvin shattered union expectations and refused to award any increase. Subsequent applications also failed until an increase was granted at the end of 1954. In his decisions, this long time union official, now a Commissioner, disavowed any class perspective to insist that increases in margins were not in the national interest. As Sheridan has demonstrated, such curbs, not communist plots, were the cause of Amalgamated Engineering Union (AEU) militancy.37 21
      After the Arbitration Court had awarded the increase in the basic wage in October 1950, individual unions had to establish a case before the Court. It was Kirby's adverse decision on the WWF application that led to Ted Roach's imprisonment. By then, he was a marked man. He had clashed with Kirby as chairman of the SIC, and Foster had sentenced him to 12 months during the coal strike. In the face of widespread despondency in the labour movement after the election of the Menzies Government pledged to destroy communist influence, Roach published a defiant front-page article in the Maritime Worker. The arbitration system, he declared, was part of the capitalist state apparatus to suppress workers' legitimate struggles for better conditions; it was, therefore, essential for unions to remain independent fighting organisations of the workers.38 In early 1950, he embarked on a tour of Queensland ports to rally the rank and file and inspire confidence in organised industrial strength. He also laid the groundwork for hit-and-run tactics to win improved conditions. In March, the port at Brisbane was disrupted by 'rolling strikes' to enforce a demand for a fairer deal in the working of hatches. Headlines featured Roach as the communist wrecker, and the Attorney-General's Department considered taking action against him under Section 30K of the Crimes Act. Having 'declared war on communism', the Menzies Government issued a proclamation under Section 30J of the Crimes Act, which forced the WWF to call off industrial action and refer the dispute to the Arbitration Court. In his move to decapitate communist-led unions with the Communist Party Dissolution Act, Prime Minister Menzies targeted Roach; and ASIO used material from its file on him to compile a case for his 'declaration' under the Act. Roach was prominent in the campaign against the Act which hung over him until the High Court invalidated it in March 1951.39 22
      In contrast to his life as an agitator stirring up wharfies in the rough and tumble of the ports, Ted was obliged to spend time in the Arbitration Court. This was a narrow, enclosed world of judges, advocates, ministers and department heads, all on first-name terms, with Bland (Labour and National Service) and Bailey (Attorney-General's Department) keeping a vigilant watch on communist-led unions. Roach was prominently in their sights: he was not just a communist carrying out Party policies, but, more threateningly, he was persuasive with the rank and file and openly advocated reliance on industrial organisation and struggle. In fact, Roach represented the syndicalist wing of the Communist Party. Contemporaries and commentators have unfavourably contrasted Roach to Healy. As Kirby recalled 'They were different types of chaps'. Healy was 'one of the most likable and reasonable men I have ever met'; whereas Roach had 'a sort of anti-silvertail grudge'. Bland has offered the same recollection, branding Roach as 'dangerous'.40 Coming from a working-class family, Ted's anger against capitalism had been steeled in the Great Depression when he had developed his organising skills among the unemployed. He resisted co-option, and denied judges the humble demeanour they demanded.41 23
      In December 1950, Kirby began hearing the WWF application to vary its award to include the basic-wage increase. On being informed that the port at Mackay was on strike, he stood the case over to 18 December. On that date, with Mackay still on strike, Kirby demanded an undertaking that the union would ensure a return to work. After the WWF advocate stated 'Yes, we will give a firm undertaking', he delivered his judgement. At Mackay, however, when the men were given an adverse decision on their claims by the local Board of Reference, they stopped work again without consulting Roach. As a consequence, he was summoned to appear before the Court, and on 21 December an ominous clash of principles occurred. Kirby accepted that the undertaking had been given in good faith, but insisted it was the duty of Roach and the WWF to ensure that it was not broken. WWF officials had to impose discipline on members and prevent local ports taking independent action. His 'forbearance' of 'prevarication' was at an end, as he dismissed Roach's protest that he could not fly to Mackay to end the dispute and simultaneously appear before Kirby to answer his summons. In his judgement in the WWF wage case, Kirby had, in effect, awarded 10 shillings per week, and not the £1 increase received by other workers.42 When the Court sat again on 3 January 1951, and Mackay had still not returned to work, Kirby, spurred on by Commonwealth intervention, warned Roach of the 'seriousness of his position', and threatened a contempt prosecution. He adjourned the Court to the next day, expressing the hope that by then the WWF Federal Executive would have remedied the situation. 24
      In fact, the meeting of the Federal Executive after the Court adjourned heard a rousing address by Roach as Acting General Secretary, and agreed that this attempt to hamstring the union in its fight for wage justice by threatening its officials with contempt had to be defeated. As the word spread, Sydney wharfies held meetings to protest against 'intimidation' of their officials and the 'blatant interference' in the affairs of the union. Also on 3 January, the Secretary of the Attorney-General's Department (Bailey), directed that a summons be issued calling on Roach to show cause why he should not be dealt with for contempt. At a hearing on 4 January, counsel informed the Court of the steps taken. When Kirby asked if he had any suggestions, Roach replied 'I leave it entirely to you'.43 The Judge fixed 11 January as the return date, and subsequently agreed to an application by Roach's representatives for an adjournment until 30 January. During January, Roach, as Acting General Secretary, led the campaign for the reversal of 'Judge Kirby's wage stealing decision'. Twenty-four hour stop-work meetings of branches agreed to the imposition of an overtime ban, which, when put into effect in early February, caused serious disruption. At the same time, miners began their one-day-a-week strikes against a Tribunal award which produced an 'industrial emergency'. This 'crisis', Holt insisted, was 'a cunningly devised Communist plan' for subversion, and Roach was demonised as a public enemy.44 25
      The Deputy Crown Solicitor and Solicitor General Bailey saw difficulties in sustaining the contempt charge against Roach based on his failure to take proper steps to ensure that the Mackay undertaking was carried out. And as Bailey noted, they had worked on a mistaken assumption: 'It was thought earlier that Roach was willing to adopt the general attitude of submission and apology'.45 The 'defiant' Roach, however, had handed them a much stronger case. As Acting General Secretary, Roach could be held responsible for publishing an article and a cartoon in the WWF's Maritime Worker on 13 January 1951. The article attacked Kirby's 'infamous judgement' and his attempt to 'intimidate' the union by threatening contempt. The cartoon (by McClintock) depicted a judge playing the pea and thimble trick, with the message: Sleight of Hand, Judge gives £13,000 per week to Boss, 10 shillings Light to Worker. Bailey gave instructions to proceed against Roach and not the WWF. New summonses were lodged with the Court, returnable on 28 February. The hearing took place before the Arbitration Court (consisting of Acting Chief Judge Foster, Dunphy and Wright) on 28 February, 10.40am to 4.20pm, and 1 March, 10.30am to 12.10pm. Counsel for the Commonwealth stressed the seriousness of the charge, employing political arguments that some union leaders wanted to destroy arbitration in order to create industrial unrest and chaos. Roach's advocate tendered his regrets and apologies, with the assurance that no personal attack on Kirby was intended. By a unanimous decision, the Court sentenced Roach to 12 months jail, and rejected a request for a stay of 21 days to allow an appeal to the High Court. The Acting Chief Judge held it was 'one of the most serious contempts', and that the Court had to consider action not only against Roach but also 'to deter others of a like mind from believing that they could distort and destroy the Court'. Dunphy feared such attacks would destroy democracy. An application to the High Court to have the conviction quashed was dismissed by Mr Justice Williams on 8 March. Then followed an unsuccessful appeal against this decision to the Full High Court in May.46 26
      After the sentence of 12 months had been delivered in the Arbitration Court on 1 March, Foster inquired, 'and the character of the penal servitude, hard labour, light labour, or what is asked?'. The Crown submission was for hard labour at Long Bay. S. Isaacs (Counsel for Roach) pleaded that this was not warranted as he would be 'confined with criminals and perform the same menial tasks as criminals who had committed serious crimes'. On being informed that a sentence at Long Bay could be only imprisonment with hard labour or 'simpliciter', Foster asked what was the practical difference. Isaacs replied, 'I think the practical result is that with hard labour the defendant would be associated with criminals of all types, with imprisonment simpliciter he would not'. On this basis, Foster made the sentence 'simpliciter' — a concession which was to have very painful consequences for Roach.47 27
      In Long Bay Jail, Roach was entitled to one monthly visit by his wife, and was allowed to write three short letters each month, which, as he apologised to a friend, he reserved for his wife and family. Ron Maxwell, a Sydney wharfie, undertook the responsibility of looking after Roach's interests. At least the prisoner could have palatable meals, as Maxwell was allowed to bring food to the jail several times a week. But as Roach explained, 'There is no way of keeping perishable stuff here and I have my dinner and tea combined between 2 and 3 o'clock and if I do not use the stuff the day it comes in it will be bad by the following morning'.48 In the early weeks, he had communist and other reading material which had been wrapped around the food; but this became nearly impossible after hostile warders instituted close inspections and imposed petty restrictions. Roach was confined to the 'debtors' section of the prison, and was the only person there. He was segregated from other prisoners, having an exclusive exercise yard.49 He was virtually in solitary confinement. In July, C. Jollie Smith (Roach's solicitor) established with the NSW Minister for Justice that, but for the terms of his sentence, Roach could be transferred to a prison farm. An application to vary the order of committal to 'with hard labour' was lodged, and the Crown Solicitor was requested to consent to the application. The Attorney-General's Department was unmoved, and decided that the Crown would neither consent to nor oppose the application. As the sentence was in the form requested by Roach's counsel, the Department recalled, it was now up to the Court. Chief Judge Kelly, Dunphy and Wright, sat for ten minutes on 29 August. Kelly exclaimed several times, 'Why should we hear him while he is in contempt', and 'He is asking for something that he wants'. He terminated the hearing with the declaration, 'We are not prepared to entertain this application at the present time'.50 28
      With normal remissions, Roach was due for release on 18 December. There was a provision in the NSW Crimes Act which permitted the Comptroller General of Prisons to remit a further seven days, and WWF General President (J.C. Beitz) interviewed him to request the remission, but this was denied on the ground that Roach was not doing hard labour. Beitz 'believed that pressure of a Federal nature prevented him from acting in the ordinary course of his duties'. On 23 November, Beitz made a personal appeal to the Attorney General (Senator Spicer) 'to extend a very small measure of consideration to an Australian and a trade union official' and grant the seven days. 'Even the lowest of criminals, such as rapers [sic], robbers etc. are extended this privilege'. Acting on the advice of his Department, Spicer denied the request, as there were no grounds 'which would justify the exercise of clemency'. At 4.45pm on the eve of 18 December when he would have served nine months and eighteen days, Roach was bundled out of the prison without warning. This was to avoid a demonstration that it was feared would occur next day. He was denied a phone call to his wife and told to get on the tram and phone her from the Post Office.51 29
      From the outset of the Arbitration Court hearings, Roach's counsel (Isaacs) had appeared under protest and challenged Kirby's jurisdiction. On 28 February 1951, he had argued unsuccessfully before the Full Court that there was no power in the Court to punish contempt committed against it in its arbitral as distinct from its judicial capacity. In turning down the appeal in May, the High Court accepted that the Arbitration Court did have jurisdiction to make the orders against Roach. The reversal came in 1956 with the High Court majority judgement (4–3) in the Boilermakers Case that sections of the Act were invalid, and arbitral and judicial functions could not be exercised by the same body. Three of the four judges (including Chief Justice Dixon) who formed the majority, had dismissed Roach's appeal in May 1951, and this case was cited in the minority judgement. The explanation for the previous acceptance of the validity of the Arbitration Court's dual functions was that that High Court 'usually acts upon the presumption of validity until the law is specifically challenged'. Even more frustrating for Roach was the description of his sentence as 'fining him'. Bailey was worried that Roach would be entitled to compensation for false imprisonment. But to the end Ted Roach was a victim of the law he despised: he was debarred by the Statute of Limitations.52 30
      On 1 March 1951, as news of Roach's jailing reached the waterfront, there was a mass walk off at Sydney and stoppages at ports around Australia. At a meeting of the WWF Federal Executive that day, consternation about Roach was overshadowed by the overtime ban and opposition to it by the Victorian Executive. Knowing that the ACTU was unsympathetic, and hampered by the anti-communist Victorian officials, the Federal Executive merely called on all members 'to record by all legal means available to them their protest against this heavy and extreme penalty'. The next day, Sydney held a protest meeting, and as reports came in from other ports, the Federal Executive advised them, 'no good purpose would be served ... by continuing these stoppages'. On 10 May, when the High Court rejected Roach's appeal, Sydney and a couple of other ports stopped work. At a stop-work meeting the next day, Sydney men asked the Federal Council to conduct one-day-a-month stoppages — Roach Days. They were directed to return to work, and Roach Days were not adopted. Through 1951, Roach's cause was kept alive by militants in the Sydney branch of the WWF. They established Release Roach Committees which organised meetings, petitions and pamphlets, and raised over £720. The Federal Council recognised the Committee, but kept it on a tight leash. The union paid Roach's wages and legal costs.53 31
      On his release, Roach expressed bitter disappointment, claiming that the Communist Party had let him down.54 In retrospect, it has to be recognised that the failure of militants to mount a successful campaign for his early release was a measure of the overwhelming forces of the state ranged against them. In March 1951, threatened with a Proclamation under the Crimes Act, the WWF had to call off its overtime ban to secure redress of its basic wage grievance. A couple of months later, in another dispute, WWF offices were raided and summonses for offences under the Crimes Act (Section 30K) were issued against General Secretary Healy and other union officials. Healy was convicted and sentenced to six weeks, though on appeal this was reduced to a fine. The conviction of Roach, coinciding with the turmoil of the 'industrial emergency' of early March, was overshadowed by the dramatic announcement of Prime Minister Menzies on 2 March that Australia had to get on a war footing within three years. Another escalation in the Cold/Class War followed. Key elements of a national security state were put in place and resources mobilised to defeat dissent, now equated with subversion. The Communist Party, threatened with extinction, had to devote all its energies to the campaign to secure a NO vote in the September Referendum. At the same time, Operation Alien had troops poised to take over work on the waterfront. Ted Roach was a prisoner of the Cold/Class War.55 32


Endnotes

1. L.J. Louis, Menzies' Cold War: a Reinterpretation, Red Rag Publications, Carlton North, 2001, ch. 1; A.M.C. Waterman, Economic Fluctuations in Australia, 1948 to 1964, ANU Press, Canberra, 1972, p. 73; National Archives of Australia, Canberra (NAA) Commonwealth Records Series (CRS) A571/ 150 item 1947/1907 Part 7, item 1947/2840; A571/136 item 1947/3911; A2700/1 item 1190.

2. For a discussion of the Cold/Class War see Louis, Menzies' Cold War, ch. 5.

3. NAA, CRS A571/150 item 1947/1907 Part 7.

4. Tom Sheridan, Division of Labour: Industrial Relations in the Chifley Years, 1945–49, OUP, Melbourne, 1989, p. 288.

5.Ibid., p. 213.

6. Louis, Menzies' Cold War, chs 5, 8; Wayne Reynolds, Australia's Bid for the Atomic Bomb, MUP, Melbourne, 2000.

7. For a biographical sketch, Greg Mallory, 'Ted Roach (1909–1997)', Hummer, vol. 2, no. 8, 1997.

8.Commonwealth Parliamentary Debates, vol. 191; NAA, CRS A2700/1 item 997A.

9. NAA, CRS A2700/1 item 997B; Argus, 16 August 1947; Herald, 21 October 1947. NAA, M1505/1 item 310.

10. Constance Larmour, Labor Judge; the Life and Time of Judge Alfred William Foster, Hale and Iremonger, Sydney, 1985, pp. 64, 77.

11. Blanche d'Alpuget, Mediator: A Biography of Sir Richard Kirby, MUP, Melbourne, 1977. The appointment of B. Sugarman in 1946 might have altered the bench, but he left in 1947, and was replaced by Kirby.

12.Sun, 12 May 1949; Herald, 17 May 1949.

13. Braham Dabscheck, Arbitrator at Work: Sir William Raymond Kelly and the Regulation of Australian Industrial Relations, Allen and Unwin, Sydney, 1983. See also footnote 36 below.

14.Sun, 15 August 1947; Argus, 15 August 1947. d'Alpuget, Mediator, pp. 84, 117.

15. National Library of Australia (NLA), MS 805/2/3; Larmour, Labor Judge, p. 190.

16.Age, 4 March 1949.

17.Age, 4 March, 20 May 1949; Sun, 5 April 1949; Herald, 7 April, 17 May 1949. Cf. the insistence of the Sun and the Herald on 18 September 1947, 'Issues before the Arbitration Court are of an entirely different nature' to criminal cases, and industrial disputes must be open to 'the frankest commentary'.

18. Noel Butlin Archives, Australian National University (ANU), N114 Box 237; Maritime Worker, 9, 30 April, 28 May 1949.

19. NAA, CRS A432/82 item 1949/385.

20. For accounts of the strike, Sheridan, Division of Labour, chs 11, 12; NAA, CRS A461/10 item DA351/1/4.

21. Board of Inquiry, 1946, NAA, CRS A2700/1 item 1145; Joint Coal Board Report, Maritime Worker, 11 June 1949.

22. See report of 3 June 1949 warning of recession, NAA, CRS A571/150 item 1947/1907 Part 7.

23.Maritime Worker, 16 July 1949.

24. Sheridan, Division of Labour, p. 284.

25. Copy of Bill, NAA, CRS A461/8 item CY351/1/4; Parliamentary Debates, vol. 203, pp. 1673 et seq.

26. Transcript, Noel Butlin Archives, N114 Box 238; Maritime Worker, 30 July 1949.

27. Phillip Deery, 'Chifley, the Army and the 1949 Coal Strike', Labour History, no. 68, May 1995. Note, also, the threat of intervention by The Association, a paramilitary organisation, Andrew Moore, 'Fascism Revived? The Association Stands Guard, 1947–52', Labour History, no. 74, May 1998, p. 116.

28. NAA, ACT, M1459/1 item 21. For costs of the massive propaganda campaign, NAA, CRS A461/8 item CZ351/1/4.

29. Transcript, Noel Butlin Archives, N114 Box 238.

30. For discussion of the anti-communist measures of the Chifley and Menzies Governments, see Laurence W. Maher, 'Downunder McCarthyism: the Struggle Against Australian Communism 1945–1960', Parts 1 and 2, Anglo-American Law Review, vol. 27, 1998.

31.Age, 9 September 1947.

32. NAA, CRS A571/158 item 1949/1006; Maritime Worker, 28 January 1950.

33. NAA, CRS A432/82 item 1950/563.

34. NAA, M1505/1 item 579.

35. d'Alpuget, Mediator, pp. 120, 121; Sir Richard Kirby, Oral History, NLA, TRC 228, p. 102.

36. For a discussion of Kelly's proposals and Catholic Rural Movement policy see Dabscheck, Arbitrator at Work, pp. 130–139. By 14 July 1952, Kelly's pretensions so alarmed H.A. Bland (Dept of Labour) that he warned his minister (Holt) that the Government's industrial relations policy was threatened, NAA, M1505/1 item 27.

37. Sheridan, Division of Labour, p. 153.

38.Maritime Worker, 14 January 1950.

39. NAA, CRS A432/82 items 1950/777, 1950/213. The Crimes Act was threatened again in November 1950, A432/82 item 1950/2086. Case for Declaration, A6119/79, item 1213.

40. Sir Richard Kirby, Oral History, NLA, TRC 228, pp. 148, 149, 151; d'Alpuget, Mediator, pp. 95, 96, 99; Bland opinion in an interview with the author, 1989.

41. Roach attacked the 'class bias' of the High Court in the Maritime Worker, 25 November 1950. At this time, Dunphy was outraged by a 'scurrilous' pamphlet, 'Dump Dunphy', NAA, CRS A432/82 item 1950/2048. In a photograph of the Federal Council of WWF (1949-50), Roach is the only one without a coat and in open neck and short sleeves.

42. In October, the Judges received an increase of £500 p.a. retrospective from 1 July. Healy was paid £884 pa, Argus, 21 October 1950.

43. Transcript, Noel Butlin Archives, N114 Box 252.

44.Sydney Morning Herald, 1 March 1951; L. Louis, '"Operation Alien" and the Cold War in Australia, 1950–53', Labour History, no. 62, May 1992, p. 6.

45. NAA, CRS A432/80 item 1951/11.

46. Arbitration Court Transcripts: NAA, NSW SP186/1 items 58445 and SL58445 Part 1; NAA, CRS A432/80 item 1951/11, NAA, CRS A432/82 item 1950/2191; Noel Butlin Archives, N114 Box 252, and Federal Executive WWF decisions, N114 Box 147. The Industrial Registrar (J.E. Taylor), the formal applicant who filed the contempt summons, complained to the Crown Solicitor that he had not been consulted, and had not seen the circular and the Maritime Worker. The excuse given was that the matter was 'very urgent', and getting in touch with him was 'overlooked', NAA, CRS A432/80 item 1951/11. Kirby's memory played tricks on him 20 years later when he claimed that the cartoon depicted him taking bribes, Oral History, NLA, TRC 228, pp. 159, 160, TRC 2357, p. 224. d'Alpuget (Mediator, pp. 107, 233) repeats the error.

47. Transcript, p. 83, NAA, CRS A432/80 item 1951/11.

48. Roach smuggled letter, NAA, CRS A367/1 item C90508.

49.Ibid.; Ron Maxwell article, Maritime Worker, 6 March 1979;Maritime Worker, 14 July 1951.

50. NAA, CRS A432/80 item 1951/11.

51. NAA, CRS A432/91 item 1951/1334; Maritime Worker, 15 December 1951; Oral information, Roach to author, 1997.

52. Transcripts, NAA, CRS A432/75 item 1955/2935. NAA, CRS A462/16 item 373/25 Part 2; NAA, M1505/1 item 27, item 153; Noel Butlin Archives, N114 Box 72. Since 1950, the Arbitration Court had imposed fines totalling £4,300 on 17 unions for contempt, NAA, CRS A432/77 item 1956/3073.

53. Report Gen. Pres. Beitz meeting with Emergency Committee of ACTU, Noel Butlin Archives, N114 Box 121; Federal Executive, WWF, N114 Boxes 147, 251; Federal Council, WWF, N114 Boxes 118, 121; Maritime Worker, 17, 31 March, 30 June, 13 October, 10 November 1951; ASIO Reports, NAA, CRS A6122/XR1 items 206, 209, 334; Commonwealth Investigation Service (CIS) Reports, NAA (NSW), SP1714/1 item N43926.

54. ASIO Report, February 1952, NAA, CRS A6119/79 item 1213; Oral information, Roach to author, 1997; Mallory, 'Ted Roach (1909–1997)'.

55. L. Louis, '"Operation Alien" and the Cold War in Australia, 1950–53'; L. Louis, Menzies' Cold War, chs 3, 5; CIS Report 8 August 1951, NAA, M1505/1 item 828. In early 1952, Ted was feted as a hero at Queensland ports. The CIS reported that he continued to attack the Arbitration Court, but could not provide evidence for prosecution, ibid. In July, he was reelected Assistant General Secretary, WWF.

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