J.W. Shaw | John (Jack) Bernard Sweeney QC: Trade Union Lawyer | Labour History, 91

John (Jack) Bernard Sweeney QC: Trade Union Lawyer

J.W. Shaw^*

Jack Sweeney's life between 1911 and 1981 may have lacked colour; nonetheless he was an effective and widely respected trade union lawyer. Although he was involved in politics and civil liberties, including a pivotal technical role in assisting E.G. Whitlam's reconstruction of the Australian Labor Party in the late 1960s, it was as an advocate for the trade unions that he made his substantial contribution to Australian industrial relations. He played valuable roles as a commissioner enquiring into some vexed issues: the state/federal union divide (the Moore v Doyle dilemma) and waterfront corruption. As a judge, Sweeney was a liberal democrat, balancing the rights of rank-and-file trade union memberships against the importance of a leadership capable of playing a significant role in reaching equitable collective bargains about wages and conditions.	1
John Bernard Sweeney, known as Jack, was to become the leading industrial lawyer practising in the New South Wales (NSW) and federal jurisdictions in the 1950s and 1960s. He was also a significant participant in the politics of the labour movement.	2
Sweeney was born on 14 February 1911 at Wellington, New Zealand. His father, Edward Ross Sweeney, was a Tasmanian contractor and his mother, Rose Sweeney (nee Stewart), had been born in Wanganui, New Zealand. Before long, the family moved to Sydney where the young J.B. Sweeney was educated at Fort Street Boys High School, thereafter graduating in law from the University of Sydney in 1931.¹ Other names in that graduating year included John Wishart, controversial and radical solicitor,² Lester Meares, later a judge of the Supreme Court of NSW and Aaron Levine, later a notable, liberal minded judge of the District Court, well-known for his judgments in cases involving abortion and censorship.³	3
In December 1939, Sweeney married Amy Helena Mary (Helen) Thomson from Timaru, New Zealand. The marriage produced three sons, the eldest of whom, Michael John Sweeney (born 1942), followed his father's footsteps as an industrial solicitor, barrister and judge of the Industrial Commission of NSW. The other sons were Christopher (born 1944) and Richard (born 1946). The family set up home in Mount Street, Hunters Hill in Sydney. Michael Sweeney's early impressions of his father are that he presented as a rather austere and somewhat distant parent who was away from home for much of the time because of enormous work commitments. Nevertheless, Michael had a profound admiration for the work that Jack Sweeney was doing and the causes he represented. Jack never wavered in his loyalty and support for his three sons, and as adults, they were close to him. This marriage was dissolved in 1971 and, in March 1972, Sweeney married Kathleen Helen (Kay) Cunningham and they set up residence at Wollstonecraft, Sydney.⁴	4
Apart from a substantial commitment to the practice of law, Jack's principal recreation was horse racing and breeding, in particular trotters, in which endeavour he was sometimes in partnership with W.K. (Bill) Fisher, who was later to be President of the Industrial Relations Commission of NSW. Other interests included art, music and theatre and he had friends and colleagues in each of those areas. He joined the NSW Trotting Club, the Journalists Club in Sydney and the Royal Automobile Club of Victoria.⁵ He had recurrent and often serious health problems, including heart problems from the 1940s and, later, diabetes which affected his eyesight. Despite this, Sweeney enjoyed life to the full and continued a punishing regime of work, cultural and social involvement.	5

Entering the Law
After graduation Sweeney became the articled clerk and then partner of prominent Communist Party of Australia (CPA) solicitor Christian Jollie-Smith and practised in that capacity for about 13 years. Miss Jollie-Smith was one of a small group of revolutionaries who formed the Australian Communist Party in December 1920.⁶ According to Law Almanac records, he was admitted as an attorney, solicitor and proctor of the Supreme Court of NSW on 4 May 1933, holding a practising certificate from 1935 to 1947 when he transferred to the Bar. His involvement in such a small but politically directed firm led to Sweeney playing an active role in litigation directed to allowing Communist peace advocate Egon Kisch to stay in Australia. This led ultimately to a High Court test case which considered the validity of a language test administered to Kisch by the immigration authorities, with the High Court declaring that the test in Scottish Gaelic was not a test of a European language as was required by the legislative regime, and therefore that the order for Kisch's deportation was unlawful.⁷	6

Political Involvement
The young lawyer was also stepping up his political activities. In the early 1930s he was a member of the socialisation units formed by Jack Lang's Labor Party, one of 19 members of the 'Inner Circle' together with his later nemesis Reg Downing who was to become the NSW Attorney General in a NSW Labor government.⁸ By 1936, Sweeney was seen by the anti-Stalinist (Trotskyist) left as pro-Soviet.⁹ During the 1930s, J.B. Sweeney joined the CPA (according to anecdotal evidence provided by Sweeney's family). It is not precisely clear when he left that party and, indeed, even his formal membership remains elusive and doubtful, although apparently he left without fanfare and simply let his membership lapse. His family tends to think that he departed over tactical differences surrounding the 1949 coalminers' strike, which in an ultra-leftist phase the CPA had promoted as a revolutionary move against the then federal Chifley Labor government.¹⁰	7
In the late 1930s, Sweeney became an active office holder in the left-leaning Council of Civil Liberties, a body separate and distinct from the later, less politically partisan, NSW Council for Civil Liberties (CCL) in which Sweeney also became active during the 1960s.¹¹ In 1942, Sweeney was elected to the central executive of the Australian Labor Party (ALP), State of New South Wales (the so-called Hughes-Evans party) which was, in substance, a united front between communists and militant members of the Labor Party.¹²	8
Acting as solicitor for the Defence, Sweeney took the case for two communists (Messrs Ratliff and Thomas) who had been referred by the Minister for Army to the International Tribunal headed by retired Justice Pike. Sweeney proffered an undertaking to the tribunal that, at least since the Soviet Union had become a combatant, his clients would make every effort to assist the war effort. Nevertheless, the tribunal recommended that the internment of the defendants be continued, and the relevant minister acted on that recommendation.¹³	9
The Commonwealth archives have yielded a document from the 'Investigation Branch' which is a detailed report of a meeting held on 6 August 1941 under the auspices of the Manly branch of the ALP on the subject of the internment of Ratliff and Thomas. As the solicitor for the two defendants, Sweeney presented a lengthy address. The report is said to be 'verbatim' so it must be assumed that it was in some way recorded by the intelligence agency. Sweeney recounted the story of Ratliff and Thomas being arrested by the Military Police Intelligence, living in a small house at Como, and using that house to set up and distribute a roneoed pamphlet consisting of exhortations to people to join trade unions, to take action to preserve democracy within Australia, and similar matters. They were charged with distributing papers which a court could hold were in some way likely to prejudice the efficient prosecution of the war. A magistrate heard the charges and they were sentenced to gaol for a period of six months. The Minister for the Army in the Menzies government, Percy Spender, issued internment orders against the two men. Whilst held on internment, and after serving their time in a gaol, the two went on a hunger strike. They then appealed to the National Security Advisory Committee, which sat in what Sweeney called 'undisturbed privacy'. The tribunal had vast amounts of documentation which, although shown to the prosecution, was not given to the person interned nor whoever was appearing for him. There was no chance to reply to the dossiers, no chance to challenge the reports as being false. For Sweeney that was 'the major criticism' of committees of this kind, Secondly, the defendants were not informed in detail what the charge against them was. Sweeney simply did not know what was alleged against Thomas and Ratliff. The final criticism of the processes of the tribunal expressed by Sweeney was that the defendants carried the onus of satisfying the Committee that they were innocent. On instructions, their solicitor offered an undertaking that they would not engage in any activities whatsoever likely in any way to prejudice the efficient prosecution of the war. However, the prosecution wanted a further undertaking, namely an acknowledgement that Mr Spender's action in interning these men was a proper one. That, Sweeney and his clients declined to give. These aspects of the hearing were, so Sweeney argued, the forerunners of fascism. His speech was met by applause from the 250 persons present.	10
An examination of the file held in the Commonwealth archives compiled by the Australian Security Intelligence Organisation (ASIO) discloses ongoing surveillance, including an intelligence assessment of Sweeney as at November 1962 in the following terms: John Bernard SWEENEY, born 14.2.1911, Wellington, New Zealand, a Barrister and Solicitor of Sydney, New South Wales, has been recorded since the early 1930s as representing the Communist Party, its subsidiaries, fronts and controlled organisations in court cases. The highlight of his career in this regard may be said to be when, together with Frederick PATERSON, M.L.A., he appeared for Lawrence SHARKEY v The Crown sedition case. Subsequent to this he has continued to represent Communists and Communist controlled unions in the industrial field. Over the past 4 or 5 years he has been less active, being last noted in 1959 when invited to a Communist front reception.¹⁴ That assessment found its place on the file in curious, perhaps comical, circumstances. The ASIO regional director for Queensland ascertained that a Mr Charles Sweeney was to be briefed by the Public Service Board in connection with an industrial appeal brought by the Commonwealth Legal Officers Association. This information contained at least two egregious errors. First, Sweeney would not have accepted such an employer's brief. Secondly, he was confused in the security records with C.A. Sweeney, who also became ultimately a judge of the Federal Court of Australia, but who was a religious conservative, appointed at first to the Commonwealth Conciliation and Arbitration Commission and who had a fractious relationship with its president Sir Richard Kirby.¹⁵	11
Other allegations made about Sweeney in the archival records include that: in 1934 he was a 'prominent advocate' on behalf of the International Labour Defence; in and, 1939 he was the NSW state secretary of the CCL. In 1939 he was an advocate for Yugoslav communists, and an advocate for the Yugoslav paper Napredak; in the 1940s he continued his association with the CPA and its leading members, being a trustee in the Deed of Trust for Marx House in George Street, Sydney when it was leased to the CPA and signed legal documents for the purchase of most of the CPA purchases in Sydney in conjunction with Ernie Thornton, Jack McPhillips, J.B. Miles and H. Chandler. In 1940 it was alleged that Sweeney was a speaker at a meeting of the Left Book Club. His connections with the firm Jollie Smith & Co were noted and it was said that 'in that capacity he has been the legal advisor of the Communist Party'; in 1940 he was an organiser for the 'People's Party'; and, he was said to be a shareholder in the 'Peoples Printing & Publishing Society'.	12
This alleged association with the Communist Party was evinced because part of a seizure of documents from Marx House in July 1949, some pencilled notes apparently written by Sweeney were obtained by ASIO which were, in effect, an advice on evidence concerning a CPA member Mr McDonald. It seems to be an advice as to gathering evidence for what was presumably an internal disciplinary proceeding against the party member — although possibly it related to a defamation action, including seeking evidence so as to justify the use of the term 'spy', that McDonald was a Liberal agent, and evidence as to 'filthy abuse'. However, Sweeney, despite proffering this advice, seems to indicate a healthy scepticism about the process when he says: 'finally I would like the paper to indicate what it had in mind as to the public benefit to be served by the attack on MacDonald'.	13
One banal note among the archives observes Sweeney in December 1949 using his grey coloured Citroen (registered XP 410) and obtaining petrol from a service station in Woolloomooloo, being alone at the time. Further allegations include that Sweeney's Citroen was observed on 8 September 1950 by ASIO outside the Federated Ironworkers Association (FIA) building in George Street, Sydney together with other cars, including one driven by Jim Healy of the Waterside Workers Federation. In the 1950s Sweeney 'continued to come to notice' acting on behalf of communists in court cases principally in the industrial field. Notes in relation to Sweeney's legal practice include interception of the fact that Sweeney was advising in relation to an appeal against the imposition of fines on the Federated Engine Drivers and Firemens Association in Newcastle and Port Kembla in 1956, and that he was seeking the advice of senior counsel based upon the defence that the workers were covered by a federal award. In 1959, it was also alleged that he was invited to a reception by the Australian China Society (Communist Front).	14
In 1947, Jack Sweeney was admitted to the Bar of NSW, and appointed a Queen's Counsel in 1962 at the same time as aspiring politicians Tom Hughes and Gough Whitlam. Despite his rift with the communists he continued to act as a barrister for many left-wing unions, but his practice soon blossomed so that he was also acting for centrist, right-wing and apolitical unions in a wide variety of industrial cases. Upon his appointment as a Deputy-President of the Commonwealth Conciliation and Arbitration Commission in 1973 it was said, in the note of the appointment published in the Australian Law Journal, that he had gained the goodwill and confidence of unions by 'his hard work, skilful advocacy and his ability to make shrewd assessments of what could be achieved by conciliation or arbitration'. The same note described him as 'the doyen of the Industrial Bar in New South Wales'.¹⁶	15
Despite some sharp schisms with a number of former associates, such as Dr Lloyd Ross and Jim Staples,¹⁷ the latter based on generational and professional conflicts, Sweeney was close to a number of people for a lifetime. His political mates included Neville Wran, 'Diamond' Jim McClelland and the various members of the Fourth Floor of Wentworth Chambers who were, generally speaking, barristers who did not fit readily into the more establishment floors: W.K. Fisher, Tony Bellanto, L.K. Murphy and others. He remained close to Frank Cahill, a lay advocate, who was employed by a number of firms of solicitors and acted particularly for meatworkers and municipal employees. Then there were the left-wing trade union officials such as Pat Clancy of the Building Workers Industrial Union (BWIU), and, on the employer's side of the legal profession, he co-operated positively with Hal Wootton, later a judge of the equity division of the Supreme Court, to formulate the sophisticated and mathematical tally or piece work system for slaughtermen and labourers working in abattoirs under the principal federal award in the meat industry.	16
Sweeney was also friendly with W.S. (Bill) Sheldon, who was a highly intellectual opponent, acting mainly for BHP and associated steelworks companies. He kept in touch too with the communist journalist Rupert Lockwood with whom he shared anecdotes concerning the arrogance of Ernie Thornton, Communist leader of the FIA who was defeated in an election ballot in the early 1950s by Laurie Short after allegations of ballot rigging had been agitated in the Commonwealth Court of Conciliation and Arbitration.¹⁸ According to Lockwood's account, after he (Lockwood) had edited the Ironworkers' journal, Thornton instructed him that he (Thornton) could write 'better than you can'. In like vein, Jack Sweeney complained to Lockwood 'that Thornton had told him he had a better understanding of industrial law than had Sweeney'. On one occasion Lockwood was walking down Phillip Street in Sydney with Jack Sweeney and Ernie Thornton when they passed a fisherman friend who was greeted by Sweeney and Lockwood. Thornton is said to have given a low bow, prompting Sweeney to ask, 'what's he been up to Ernie?' 'He uses worms!' said the revolutionary union leader turned trout-fly fisherman, an occupation which Lockwood thought suited the English squirearchy.¹⁹	17

Civil Liberation
One of Sweeney's earliest cases as a barrister was highly political. He appeared in 1949 in the High Court of Australia, with Fred Paterson, the only (open) member of the CPA to be elected to an Australian Parliament, for Lance Sharkey in a challenge to the criminal prosecution of Sharkey, secretary of the CPA, for uttering seditious words. Famously, Sharkey was accused of proclaiming that if Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them. The jury returned a verdict of guilty but questions of law were reserved for consideration by the High Court. Paterson and Sweeney challenged the constitutional validity of the sedition provisions of the Crimes Act 1914 (Cth), and advanced the proposition that there was no evidence from which the jury could conclude that Sharkey had actually uttered the words attributed to him in the published statement, and that furthermore any such words were not capable of being an expression of seditious intention within the statute. The court rejected these ingenious arguments.²⁰ A photograph of the two counsels was published in the CPA newspaper, Tribune.²¹	18
In 1963, a spate of cases against the police and in defence of civil rights emerged in the NSW courts. Three advocates of freedom determined that it was appropriate to establish a CCL. The convenors were Jack Sweeney, an economic historian from Sydney University, Ken Buckley, and a right-of-centre libertarian who later became a Federal ALP Member of Parliament, Dr Richard Klugman. Thirty people were invited to the inaugural meeting which resolved to draft a constitution and to organise the CCL. For several years thereafter Jack Sweeney was on its committee. He remained close to those early CCL leaders. There was one point of dissension, however. The CCL was asked to support a test case designed to go to the Privy Council to argue that police prosecutors, being members of the police force, had no standing to prosecute criminal matters in NSW courts because they lacked legal qualifications and were too enmeshed with the police investigatory and prosecutorial process. Sweeney gave the advice that the appeal would not succeed, but a majority of the committee determined to support the appeal.²² Some muttered that Sweeney's stance was influenced by his taking a number of industrial briefs for the Police Association of NSW. But, as it turned out, Sweeney was correct in law, and the appeal was lost. The case was argued by J.D. Holmes QC, of the Sydney bar against the NSW Solicitor-General (H.A. Snelling QC) before the Judicial Committee of the Privy Council presided over by Lord Reid, with the opinion being delivered by Lord Pearson. The appellant argued that the judicial discretion to permit a police officer to appear for the informant in a criminal prosecution would be a wrongful exercise of that power. The opinion of their Lordships was to the effect that no statute deprived the magistrates of their pre-existing discretionary power to allow a person other than the informant, counsel or an attorney to conduct the case for the prosecution and that no 'special reason' in a particular case need be shown before the wide power could be exercised.²³	19
On policy grounds, Mr Justice Lusher's Report of the Commission to Inquire into NSW Police Administration recommended that police prosecutors should be replaced with legal practitioners because the police function does not extend into administering justice in the courts.²⁴ No NSW government has adopted this proposal.	20
By the late 1960s, Sweeney had become active in the ALP and had struck up a close working relationship and friendship with Clyde Cameron who was opposition leader, E.G. Whitlam's Shadow Minister for Industrial Relations. That association endured until Sweeney's death and was highly relevant to the Whitlam-Cameron project to reform the leadership of the Victorian and NSW branches of the ALP so as to facilitate Labor's eventual election victory of December 1972. It was also a relationship that was relevant to Sweeney's subsequent judicial appointments although no informed person could have objected to those appointments on merit.	21

Union Advocate
As a barrister, Sweeney appeared for the trade union interest and not for employers. The legal establishment would have argued that this was in prima facie breach of the 'cab rank' rule governing the Bar, but it was a tradition passed on to his protégés including Wran, Murphy and Fisher, and a similar observation could be made about counsel regularly appearing for employers. Sweeney's style was quiet, measured and methodical with a mastery of intricate detail of salary histories, award comparisons, work value details, and the record of both legislative provisions and trade union constitutional rules. Sweeney did not share the view of W.A. Holman, upon his return to the Bar after a turbulent political career, as to the 'tedious grind of industrial arbitration work'.²⁵ His advocacy was restrained but lethal, reserving vituperation and pungent language directed towards judges, opponents or dullards for out-of-court discussions with colleagues in his chambers or at some less formal venue. He gained the respect and sometimes fear of his opponents and the courts and tribunals before which he appeared. The result was a career that saw him representing clients in most of the significant and groundbreaking industrial cases of the era.	22
In the mid-1960s, Sweeney was extensively involved in litigation for the Transport Workers Union (TWU), NSW Branch (that is, the state registered union). The TWU sought to establish an industrial coverage that went beyond representation of employees working under a contract of service, and a broader representative role which took advantage of provisions inserted in the NSW industrial legislation in 1959 deeming certain persons who would not, at common law, have been regarded as employees to be employees for the purposes of the Act. This included a variety of workers in different industries, but for the purposes of the TWU it included taxicab drivers, who were bailees rather than employees, and lorry owner-drivers who were independent contractors rather than the employees in the common law sense. There was vociferous employer objection to such classes of workers being included in the industrial arbitration processes contemplated by the NSW legislation. So Sweeney QC together with his junior Neville Wran travelled to London in July of 1965 to defend the amendment of the eligibility rules of the TWU to enlarge the class of persons eligible for membership against employer objection. They argued, in the Privy Council, that the extended meaning of 'employees' could be availed of by the union and that, buttressed by legislative amendments both in 1959 and 1964, there was nothing in the legislation which prevented the approval of a new rule by the industrial registrar giving the TWU coverage of persons who were not employees in the conventional common law meaning. As their Lordships said: The deemed employees require future awards of their own and in order to do this they must be able to obtain membership of a union. Unless the amendment has this effect, it misfires.²⁶ Not easily deterred, the employers mounted yet another challenge to this process of expansion of the TWU rules by arguing before the NSW Court of Appeal that the regulations which facilitated the process went beyond the statutory regulation-making power and were invalid. Again, the employers failed to make good that contention in the face of Sweeney's arguments before a court constituted by Wallace P, Jacobs and Asprey JJA.²⁷	23
In 1967, Sweeney appeared for the NSW trade union movement in a pioneering case that established a scheme whereby state award rates would be adjustable in accordance with National Wage Case decisions.²⁸ Federal award changes in margins (that is, payments above the basic wage) based upon economic grounds would prima facie be adopted for all state awards. This concept of comity between the federal and state jurisdictions was later enshrined in legislation enacted by the NSW Liberal government.	24
That same year, further turmoil emerged within the TWU, leading to what must be Sweeney's most famous case as a barrister, Moore v Doyle.²⁹ Sweeney and Wran led the team for the union case before the Full Court of the Commonwealth Industrial Court constituted by Spicer CJ, Smithers and Kerr JJ. Once again, the genesis of the controversy which came before the court and raised by a dissident member of the federally registered TWU was the application by the NSW state registered union to seek approval to alter its rules so as to include as persons eligible to become members, persons who were deemed employees under NSW legislation.³⁰ The state trade union had its members become members of the federally registered organisation and there was a general assumption that the state body was a branch of the federal organisation. However, in response to Sweeney's advocacy focussing upon the autonomy of the state registered union, the court held that the state trade union had not ceased to exist, nor was it a branch of the federal organisation. It was probably obiter dicta, but the court went on to express the opinion that a trade union registered under NSW laws is a separate legal entity with a personality of its own, distinct from its members at any particular time. The court itself recognised the possible inconvenience of such a conclusion for trade unions which had a registered presence both in the state and federal jurisdictions. The bench perceived that the case demonstrated that when factional differences arise in trade unions, or when it suits the interest of some litigant or litigants to do so, the federal or State body can be attacked and its valid operation, its entitlements to assets, funds and membership, imperilled. Furthermore the validity of membership in one body or the other may be difficult to establish in cases in which membership has to be proved as a condition of exercising jurisdiction or to qualify or enable a person to be or to be made a party in legal proceedings. The system, as required to exist by State and federal legislation and as it has evolved under that legislation in practice is technical, productive of artificialities and in urgent need of the attention of the law reformer. Mr Sweeney in the present case submitted as much and he was undoubtedly correct.³¹ More than a decade later, it fell to J.B. Sweeney, who was by then a judge, to formulate provisions designed to rectify these difficulties to which, in an ironical twist, his advocacy had led.	25
Two processes attempted, by divergent means, to alleviate the potential technical difficulties of the Moore v Doyle doctrine. One was the proposition of some federal court judges that the state branch of the federal organisation could be registered under state laws so that the theoretically two separate bodies were one and the same. Some judicial pronouncements emphasised the overriding nature of the incorporation of trade unions under Commonwealth law and that by reason of s109 of the Commonwealth Constitution there was an inconsistency between federal and state laws so that there was only one resultant entity despite the separate acts of registration in the two jurisdictions. However, that line of cases, detracting from Moore v Doyle, was dramatically overridden by the resuscitation of Moore v Doyle in the High Court, in 1995, in Re McJannet and Ors; ex parte Minister for Employment Training and Industrial Relations for the State of Queensland Re McJannet and Ors; ex parte The Australian Workers Union of Employees, Queensland and Ors³² in which the court held that the Queensland branch of the federal union covering theatrical employees was not an entity with an existence separate from its members and therefore could not be registered under Queensland legislation; the state registered union did have a legal personality separate and distinct from its members and from the federal organisation, and that furthermore, there was no inconsistency under the Constitution between the provisions of the federal Act and the Queensland Industrial Relations Act which precluded such a conclusion.³³ The second method of addressing these difficulties was legislative amendment recommended by Sweeney himself, to which later reference will be made.	26
Sweeney appeared as leading counsel for the NSW Teachers Federation in the important 1970 work value case in which the Industrial Commission of NSW increased the salaries which otherwise would have been awarded because, as state public servants, teachers received no over-award payments.³⁴ Based in part upon the 'radical changes' impacting upon secondary school teachers arising from the introduction of the six-year Wyndham System, the Commission in Court Session awarded salary increases of 14 per cent although Sheldon J (dissenting) would have granted more.	27
In 1971, Sweeney was extensively involved with the campaign of the building industry unions to obtain what was described as 'accident pay' which meant that when building workers suffered an injury within the Workers Compensation Act, 1926 (NSW) weekly sums should be added to payments under the 1926 legislation so as to make up those payments to the level which would be due to the employees under the award, for a period of six months. This campaign was led by Pat Clancy, secretary of the BWIU, and Jack Mundey, leader of the Builders Labourers Federation (BLF), although there were some tactical differences between the two unions as to the conduct of the campaign.³⁵ The unions persuaded Sheehy J to make an accident pay award in the context of compulsory conference proceedings arising out of the dispute. A hearing commenced in May 1971 resulted in an award in favour of the unions. Sweeney led the appellate argument before a Full Bench of the Commission.³⁶ All jurisdictional and merits arguments raised by the employers were rejected by the Commission and the pioneering measure was adopted, spreading into other industries and becoming an accepted standard for injured workers in NSW. Sweeney's strategic impulses had a synergy with that of the trade union leadership and his persuasive advocacy had an obvious impact upon the tribunal members. It was to be his last significant foray into a serious industrial dispute prior to his elevation to the bench.	28
Sweeney's interests in industrial relations were not entirely confined to the courtroom. For example, he wrote an article for an early volume of the Journal of Industrial Relations³⁷ in which he referred to the powers vested in the Industrial Commission of NSW to engage in conciliation in industrial matters, arguing that although attention had been drawn to the need for conciliation 'little positive action has been taken by unions, employers or government'. He said that recent years had seen a greater emphasis on litigation. He suggested that effective conciliation requires both wide knowledge and some particular knowledge. At the request of Associate Professor D.C. Thomson, who taught labour law at the University of Sydney, he gave lectures to post-graduate courses from time to time. He met overseas visiting experts on industrial relations, including representatives of the Ontario Royal Commission on labour disputes, which produced a report in 1968. Upon the completion of his 1974 report of the Committee of Inquiry on Co-ordinated Industrial Organisations (that is the Moore v Doyle dilemma) Sweeney gave an address to the Industrial Relations Society of NSW in which he explained his conclusions about the 'dual personality' problem. At that gathering, he faced some hostile questions from C.P. Mills, the reader in commercial and industrial law in the Faculty of Economics at the University of Sydney, who seemed to have some fundamental disagreements with the judge about the whole question and who was later to write in somewhat intemperate terms about that report as being 'unprofessional' and having the effect of promoting 'division and disruption within an organisation'.³⁸	29

Industrial Judge
By the mid-1960s, Sweeney had become interested in an appointment as a judge, prompted in part by the toll taken by long years of practice as an advocate and in part by health difficulties. The Industrial Commission of NSW was the tribunal where Sweeney had spent most of his working life. But Attorney General Reg Downing was a ferocious anti-communist and, in the context of the right-wing leaning state Labor government, such an appointment proved unachievable. However, agitation from Trades Hall, by unions across the political spectrum, was such that eventually Downing did ask Sweeney over to his office and offered him an appointment to the District Court, which was summarily rejected by Sweeney using pungent language.³⁹	30
Whilst a barrister, Sweeney was not active on the Bar Council and was more comfortable having a beer with his mates as distinct from the rarefied atmosphere of the leather-seated Bar Common Room in the basement of Wentworth Chambers.But on at least one occasion his expertise was called upon. In 1960, the Bar Council established a committee consisting of Sweeney and Bob Franki (an equity counsel who also did some industrial work, especially in the meat industry) to look at the scale of fees payable to barristers. Their research showed that remuneration of the Bar had not kept up with the cost of living and that, whilst judges' salaries had increased substantially, counsels' fees had been 'relatively static'. The result was a 30 per cent increase in the fees allowable by the taxing officers.⁴⁰	31
With the election of the Whitlam government, judicial opportunities readily opened up. In 1973, Sir Richard Kirby retired as the President of the Commonwealth Conciliation and Arbitration Commission.⁴¹ R.J. Hawke, who at the time was the President of the Australian Council of Trade Unions, has written that he successfully persuaded the new Prime Minister, E.G. Whitlam, to override the intention of Clyde Cameron to appoint J.B. Sweeney as Kirby's successor.⁴² Whitlam asserts that not only he, but also the Attorney General L.K. Murphy and Cameron, all wanted John Cochrane Moore, already a Deputy President of the Commission to succeed Kirby, although they all wanted J.B. Sweeney to be part of a federal system. Whitlam notes that because of Sweeney's early communist background, he would not have been appointed by either side of politics to the Industrial Commission of NSW. However, Whitlam goes on to say that Sweeney was not attracted to the Commission, but rather more interested in becoming a judge of the Commonwealth Industrial Court. The difficulty was that that Court had achieved its statutory quota of 'a chief judge and not more than seven other judges'. In April 1973, Cameron had introduced legislation to open up the numbers of judges to be appointed to that Court. But the Bill was defeated on 6 June 1973. As Whitlam records the matter, Sweeney had been winding up his practice and therefore accepted an appointment as a Deputy President of the federal Commission on 14 June. Moore was sworn in at a ceremony on 6 August, and welcomed by a formal address from Cameron. As it turned out, Moore and Sweeney worked well together on the Commission. Cameron tried for another amendment introduced into the Parliament on 30 August 1973, although this was modified by a Democratic Labor Party (DLP) amendment to the effect that the Australian Industrial Court should consist of a chief judge 'and not more than nine other judges'. This compromise, achieved by some wheeling and dealing by Cameron, was assented to on 13 November and Sweeney was swiftly appointed as a judge of the Industrial Court on 10 December 1973.⁴³ This account is substantially corroborated by Clyde Cameron who wrote: Although it was Lionel Murphy who made the recommendation that Jack Sweeney be transferred from the Commission to the Industrial Court, it was at my insistence; because when it was decided to make John Moore President of the Commission instead of giving it to Sweeney, as Whitlam and I had promised to do so before the 1972 election, I had given Jack the assurance that as soon as the C&A Act was amended to permit the appointment of additional judges to the Court, he would be appointed to the Industrial Court.⁴⁴ Cameron also refers⁴⁵ to the manoeuvres required with the DLP to effect the amendments that apparently included an undertaking to appoint a DLP nominee as an Arbitration Inspector. The DLP senator Frank McManus made an appeal to Cameron to appoint another person to the Court who was 'not obviously aligned', after listing a number of allegedly left-wing appointments to the Arbitration Commission.⁴⁶	32
The formal welcome to Sweeney as a judge of the Australian Industrial Court occurred at Sydney on 3 April 1974. The Court was presided over by Sir John Spicer, the Chief Judge. N.K. Wran QC, who was to become Premier of NSW in 1976, spoke on behalf of the Federal Attorney General. Wran was a protégé of Sweeney's at the Bar and appeared with him as his junior regularly in a variety of cases. Wran referred to as his Honour's 'long and distinguished career at the Bar' and 'short but distinguished career as a Deputy President of the Australian Conciliation and Arbitration Commission'. Mr Wran referred to Sweeney's advocacy as being courageous, lucid and logical and as an advocate who did not suffer fools gladly. Mr R.F. Turner, a prominent Sydney industrial solicitor who was later to become a Labor member of the Legislative Council of NSW, spoke on behalf of the Law Council of Australia, endorsing the remarks of Mr Wran and pointed out that Sweeney had always had the ability 'to extend to the most disadvantaged member of our society the same courtesy, consideration, respect and encouragement as his Honour would extend to the leader of the nation'.⁴⁷ Mr T.E.F. Hughes QC spoke on behalf of the NSW Bar Association, identifying the fitness of the new appointee to the Court and the likelihood of its expansion of jurisdiction into some further very significant areas. Sweeney recalled that he had dissented on the last Full Bench of the Commission upon which he had sat, and also dissented on the first Full Bench of the Industrial Court on which he participated. He added dryly, 'I should like to assure everyone, and perhaps particularly my colleagues, that it is not a habit. If it is, I shall try to get out of it'.⁴⁸	33
His final decision as a member of the Full Bench of the Australian Conciliation and Arbitration Commission involved a dissent from the majority opinion.⁴⁹ The case concerned a claim for a wage increase in relation to the electrician special class classification of employees of the State Electricity Commission of Victoria. From 1970, the electrician special class had been paid a rate of 15 per cent above the award rate paid to the electrical fitter. Most of the engineering grades had been given an increase of $4.00 per week. The question was whether that should flow on to the electrician special class. Sweeney J took the view that to deny the increase for this classification constituted an anomaly and an injustice. He thought that there was no reason why the Commission should not exercise its jurisdiction to cure that injustice and that, although it was with 'considerable regret' that he disagreed with the majority on the Bench (Aird J and Neill C), he nonetheless, would have granted the union's claim.	34
Sweeney J's first and dissenting judgment in the Australian Industrial Court was in Cutmore v Bianchin.⁵⁰ A majority of the Court (Smithers and Franki JJ) joined with Sweeney J in imposing a penalty on a Queensland retail butcher for the failure to lodge an indenture concerning an employed apprentice and, consequently, the failure to pay him adult rates. But the tyro dissenting judge held that a higher wage rate was payable on the basis that the youth was employed to perform the functions of a 'general butcher'. The relevant industrial award, Sweeney J thought, was designed to discourage the 'splitting up' of the tradesmen's functions and that a higher rate was applicable where the employer directed performance of a 'substantial part' of those functions.⁵¹	35
Jack Sweeney had provided informal advice to Labor minister Cameron in relation to the formulation of Cameron's 1973 Conciliation and Arbitration amending legislation, and in particular had advised the inclusion of an additional object of the Act, namely 'to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation'.⁵² In the pre-1972 election era Sweeney had provided valuable advice for the then opposition in relation to its industrial relations policy, in particular, suggesting that bans clauses (involving penalties) should not be inserted in the awards of the Commission, but that awards should be made with the expectation that there could be further bargaining for over-award payments and conditions and that bargaining would be between unions and individual employers or groups of employers. He advocated agreements between unions and employers containing a provision for procedures in settling disputes and provisions for penalties by way of liquidated damages or loss of benefits for breaches of the agreement. Such an agreement would need to be ratified by the union members affected by a secret ballot. The plan also provided for negotiated agreements without penalties if that is what the parties desired.⁵³ This may be seen as an embryonic version of enterprise bargaining.	36
It is clear from Clyde Cameron's diaries that he and Sweeney kept in touch on a variety of matters concerning possible appointments or rearrangements in the various courts and tribunals and also engaged in general discussions about the direction of industrial relations. However, there is no suggestion that Sweeney discussed any pending cases with Cameron.⁵⁴ His sense of propriety and discretion was manifest.	37

Commissions and Reports
As a judge, Sweeney (described as J.B. Sweeney J to distinguish him from the unrelated C.A. Sweeney) during the time of the Whitlam government, was asked to prepare two formal reports. The first, finalised in July 1974, concerned the difficulties for registered organisations arising from the Moore v Doyle doctrine. The report stated: 'the existing complexities raise difficulties and uncertainties which do not make for democratic control nor do they encourage the full participation by members in the affairs of the organisation'. Solutions proposed included state legislation allowing for recognition within the state industrial jurisdictions of state branches of federal organisations on the basis that they would not become corporate bodies but could otherwise participate in the state system; secondly, a series of provisions could be inserted in the federal legislation enabling the court to validate internal administrative matters even where the steps taken were legally null and void, in appropriate circumstances. Only South Australia passed the recognition laws, and hence no comprehensive national system was erected. Whitlam blamed this lack of progress at the state level on 'parochialism' on industrial matters.⁵⁵ Certainly, states rightist views espoused by some state registered unions and trades and labour councils played an oppositionist role.	38
The second report — prepared as Royal Commissioner — was into allegations concerning some maritime unions. The need for such a commission had arisen from allegations of criminality in some waterfront unions, particularly the Painters and Dockers Union. The Commission became famous for the perhaps inadvertent claim of one union official that 'we catch and kill our own'. R.N. Madgwick J has recounted the story of Sweeney, whom he characterised as 'the great industrial lawyer', being offered the services of Bob St John QC as counsel assisting. According to Madgwick, Sweeney affected not to know him: 'Hmm', he said, 'a pugilist of note, I believe'. According to Madgwick, Sweeney's initial antipathy to St John arose out of old differences in the CCL. Madgwick went on to say: 'However, Sweeney soon recognised that St John had real ability and persuaded him that it should be used on the bench'.⁵⁶ As Whitlam pointed out, Sweeney's Royal Commission represented the only inquiry appointed by his government into facts as a basis for criminal proceedings, as distinct from reports on facts as a basis for legislative and administrative reforms.⁵⁷	39

Legal Technique
As a judge, J.B. Sweeney was taciturn, occasionally acerbic and demonstrated a complete command of industrial jurisprudence. Although he spent his time on the Australian Industrial Court and, subsequently, the Federal Court of Australia largely presiding over industrial cases either on a full court or at first instance, he nevertheless shared the workload of the court in a more general sense and demonstrated his command of other technical areas of the law.⁵⁸ There can be no suggestion that Sweeney J adopted some Pavlovian or inappropriate reaction to the assertion of the rights of workers. His technique was more subtle and his regard for orthodox legal reasoning was obvious. On balance, one can discern from his judgments a regard for the processes of conciliation and arbitration and for the rights of working people according to law. For example, he, together with Phillip Evatt J, took a relatively broad view of the contract of employment when considering the position of a timber worker, pointing to the respondent's reservation of a right to control the work of the individual and the absence of the worker conducting a business of his own together — with the factor that his activities could be regarded as 'part and parcel' of the respondent's organisation.⁵⁹ As a member of a full court, Sweeney J took a clear view in relation to an allegation that an employee had been dismissed by reason of the circumstance that the employee was a delegate of a federally registered organisation. The court held that, given the reversal of the onus of proof as to the reason for dismissal, the employer had failed to prove that it had not been actuated by the reason alleged in the charge, that the trial judge's conclusion should be accepted and that although the question of reinstatement was discretionary, the court should ordinarily order reinstatement unless there were good reasons to the contrary.⁶⁰	40
In the area of conscientious objection to membership of a registered association Sweeney J was a participant in a full court judgment holding that the relevant statutory provision required that the conscientious beliefs must be such that they did not allow the person to be a member of all associations described in the Act, that is to say it was not sufficient for the objector to say that he or she could not conscientiously be a member of a particular or specified registered organisation.⁶¹	41
The judge was prepared to facilitate amalgamations and to give the statutory provisions a practical interpretation holding that there could be a valid rule, forming part of the scheme of amalgamation, providing that, upon dissolution of the amalgamating body, all property and funds would be transferred to the amalgamated organisation so as to satisfy liabilities, debts and obligations of the dissolved organisation.⁶² However, where the text of a federal award failed to confer the right claimed by an employee, the judge was compelled to find that it had not been established that the individual had been appointed to a relevant position in the grade of 'ticket clerk' and that the employee was not an officer within the relevant award because of the failure to classify the person in a relevant grade or class.⁶³ And, notwithstanding the fact that there was no common law right vested in an employer to deduct payment of wages in the circumstances that a worker could not be usefully employed because of strike or stoppage, nevertheless the terms of the particular award in question did confer such a right of deduction on the employer where the circumstances specified by the clause were shown.⁶⁴	42
It was in the area of internal democracy within trade unions that Sweeney J made his great contribution to the development of the law. He agreed with Cameron, not as a result of any improper pressure or persuasion, but rather because he had the intellectual conviction that the rights of rank-and-file workers within registered organisations ought to be accorded appropriate respect. Clyde Cameron, of course, was the battle-scarred product of a maelstrom of controversy within the Australian Workers Union and his longstanding enmity with the federal secretary of that union, Tom Dougherty, including a legal challenge to the expulsion of Cameron from membership of the union.⁶⁵ Due to his long association with the labour movement, Sweeney had a balanced view about these matters. He saw the advantages of a strong, competent leadership of a trade union in assisting the resolution of an industrial dispute and in advancing the claims for better wages and conditions for working people. But he also knew that the bureaucratic leadership of such an organisation could become estranged from the real aspirations and genuine views of the rank-and-file membership. It is this attempt to strike a balance that marks the high point of Sweeney's judicial contribution to the law. The recognition of the competing tensions was acknowledged expressly in a number of judgments. In upholding rules which required elected officers to reside in the place where the registered office of the organisation was located, Sweeney J readily accepted that there was a need to insure observance of the legislative requirements of encouraging the democratic control of the organisation and the full participation by members in the affairs of the organisation. But also there needed to be 'balance' between those factors and the need to maintain the viability of the organisation. For some of the important full-time officers, the judge was prepared to uphold the validity of the residential requirements, but in relation to other positions, he thought that there was an undue deprivation of the right of a significant proportion of the membership to contest elections for those offices.⁶⁶ Again, in McLeish v Kane⁶⁷ for Sweeney, there was a need for 'checks and balances' analogous to those contained in a constitutional federation, so that account could be taken of the reality of geographical differences in the growth of industry and the unequal strength of branches. Sweeney recognised there was a miscellany of factors that needed to be considered in determining whether or not there was in substance 'democratic control' of an organisation, and they included history of the organisation, the area covered and problems with communication. He referred particularly to questions as to whether the smaller branches and that could be properly, in conformity with the statutory mandate as to democratic control, be dominated by the larger branches of the organisation. In that case, the conclusion of the court was that there was a scale of voting which was excessively loaded in favour of the smaller branches, that the disparate impact of the rules was uneven and excessive in the circumstances such as to render the rules susceptible to legal challenge.	43
There were a number of practical outcomes flowing from this creative tension identified by Sweeney J. One was the need for the ultimate national decision-making body in the organisation to be reasonably representative of the membership so as not to thwart in any substantial way the views of the majority of the membership.⁶⁸ Other elements of this approach to trade union democracy included the notion that all democratically elected officers of the organisation were entitled to natural justice (that is to say, a fair hearing) before dismissal or disciplinary action was taken against them.⁶⁹ However, where there was an allegation of bias against the decision-making body within the organisation, a relatively flexible test needed to be applied, namely that an objection to the internal tribunal should ordinarily show that a member of the committee was biased; that mere knowledge of the conduct of a member would not be sufficient to constitute a ground for disqualification if no other members were available to preside.⁷⁰ However, it must be said that there is something of a tension between a decision of this kind, focussing upon actual bias, and the more recent development of law which emphasises that perception or apprehension of bias on the part of a reasonable observer would be sufficient to justify disqualification of a member of the adjudicative body. Another aspect of Sweeney's commitment to internal democracy in industrial organisations was to point out that when the rules, representing the compact between the members of an organisation, were changed then the rule amendment provisions should be construed as mandatory, that is, requiring strict compliance. In other words, near enough was not good enough if the fundamental arrangement between the members was to be altered.⁷¹ However, he was prepared to give a robust construction to and of application the validation provisions of the federal regime, the formulation of which he had played a vital role. Moore J of the Federal Court has resurrected a Sweeney J dictum from unreported obscurity in Brown v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia⁷² in which Sweeney J was quoted as follows: [the validating section] is I think clearly designed to provide a means first where by organisations may avoid long investigations into past matters with a view to obtaining orders that certain acts were invalid ... Primarily it is I think designed to enable orders to be made where there have been invalidities which have occurred unwittingly or perhaps where they have occurred knowingly but extreme difficulty would be found in curing them.⁷³ Here is the legislative and judicial antithesis of 'black letter' law as applied to industrial organisations.	44
Other aspects of Sweeney's practical approach to the regulation of affairs of industrial organisations include a recognition that an employer could make a deduction from wages if the deduction was justified for the purposes stated in an authority to take that step, and that such a deduction would not constitute a breach of the award;⁷⁴ and there should be a finding of an irregularity in a trade union ballot when financial members had been denied a vote by reason of a postal strike. For Sweeney, compliance with the rules of the organisation was essential, as was the encouragement of democratic control of the union. Sweeney was unable to accept the union's argument that persons automatically ceased to be members upon leaving their employment in the industry.⁷⁵ Sweeney J was party to a full court decision which, again taking a practical approach, held that there was no irregularity in relation to the acceptance of a formal vote of ballot papers in a trade union election marked with a cross against the name of one of the candidates for the office because, according to the judge, the voter had in those circumstances indicated an intention with certainty.⁷⁶ In another judgment furthering the advancement of internal democracy Sweeney J was part of a full court which held that the national council of the registered organisation was bound to give effect to the decision of the members which had been ascertained in a referendum or ballot as to the making of new rules.⁷⁷ And, in conformity with a view that persons who fell within the definition of 'officer' under the statutory scheme were entitled to natural justice, the judge held that a person occupying the post of an organiser was to be accorded procedural fairness if he or she were threatened with dismissal from that position.⁷⁸	45
Sweeney J was a member of a full court that elucidated the legislative requirements as to the validity of registered rules to the effect that the question was not only what each individual rule may do, but also that the rules as a whole, in specified respects, were vulnerable to the criticism before the court in that they did not provide the requisite degree of democratic control.⁷⁹ The court paid particular regard to the conduct of plebiscites within registered organisations and was concerned that such an ascertainment of the will of the membership should be properly conducted in accordance with the rules, and that, in particular, the inclusion of a document setting out the recommendation of the federal executive in relation to a particular proposal (constituting influential propaganda) was in breach of the rules.⁸⁰	46
In another practical application of the statutory scheme, Sweeney J wrote the leading judgment in an important case which decided that an elected office holder may, by the rules of the organisation in force at the time of an election, also hold, ex officio, another office as defined by the statute. The court was at pains to stress that every person acquiring the position of a member of the committee of management must be elected, but providing there was such an election then the occupation of dual offices was permissible.⁸¹ None of this liberality should be used to deny that Sweeney J was prepared to take a strict approach where the facts and circumstances of a particular case called for it. For example, where an organisation had wilfully neglected to provide for the collection of subscriptions, fees and penalties and where the rules of the organisation had not been observed, then circumstances were present to demonstrate that the registration of the organisation should be cancelled.⁸² And in Re Keogh & Federated Clerks Union of Australia; ex parte Linehan,⁸³ the judge took a rigorous view both as to eligibility for membership of the Federated Clerks Union and as to the question of 'general bad character' as being a disqualifying factor from such membership.	47
One area in which Sweeney J carved out a unique and dissenting opinion concerned the implementation of the secondary boycotts legislation introduced by the Fraser government, and in particular s 45D of the Trade Practices Act 1974 (Cth). His Honour's view might now be characterised as heresy by some. In Transport Workers Union of Australia (NSW Branch) v Leon Laidely Pty Ltd⁸⁴ Mr Laidely had obtained an interlocutory injunction under the relevant provision from a judge of the court and the union appealed from that judgment, in particular arguing that the conduct was substantially related to conditions of employment and asserting that the respondent was a state registered union and thus it was not a 'person' for the purposes of s 45D of the Act. The majority of the court (Bowen CJ and Deane J) held that a prima facie case had been made so as to sustain the grant of injunction. However, Sweeney J held that the intent of the conduct was not for the purpose of causing a substantial loss or damage to the business but rather to protect the employment of Amoco tanker drivers and that therefore the injunction should not be continued. Interestingly, the judicial expert on Moore v Doyle declined to hold that the NSW registered union was not a 'person' within the Act, but he would have dissolved the injunction on the ground of dominant purpose and held that it fell within an exception specified by the statutory provision, a conclusion which depended, his Honour thought, on questions of fact which were in the contemporary climate 'suspect even as economic or industrial or sociological findings'.	48
On questions of the construction of the eligibility for membership rules of registered organisations, Sweeney was inclined to take a broad approach. A prime example was when he presided over the Full Court of the Federal Court of Australia in Co-operative Bulk Handling Limited v Waterside Workers Federation of Australia.⁸⁵ In that case, the Full Court (constituted by Sweeney J, Evatt and Northrop JJ) considered the meaning of the term 'waterside workers' in the registered rule of the organisation, emphasised the need for the meaning or usage of the words to be ascertained in accordance with 'current denotation' and determined that persons engaged in the loading of bulk cargo (grain) were eligible to be members of the organisation because they were engaged in the loading of that cargo into ships, and the handling, treating and storage of that cargo at or in a vicinity of a wharf where the purpose was the ultimate shipping of the cargo in question. This controversy had its genesis in a deregistration proceedings in Western Australia in which Sweeney J was presiding over a full court. The matter was adjourned for discussions in chambers when it was gently suggested by the bench that perhaps the actual question of the construction of the rules of the Federation should be dealt with by the Court, rather than the oblique and problematic action for deregistration. Accordingly, the matter was adjourned to enable that application to be made. When the case came on for directions before Sweeney J, suggestions were made by the employer's counsel that he could not realistically deal with the matter in Perth because it involved some physical climbing of ladders and other inspections which would be beyond his capacity. The judge appeared displeased. The trial at first instance was heard by Toohey J (later a judge of the High Court of Australia) in Perth involving such inspections, with the result that Sweeney presided over the appeal bench heard in the rather different environment of a courtroom in Little Bourke Street, Melbourne. The employers' appeal was dismissed.	49
Sweeney J entered into inevitable controversy when dealing with a number of cases concerning the Australian Building Construction Employees and BLF whilst a judge of the Federal Court of Australia. This was an era of intense internal factional disputes within the BLF. The Jack Mundey faction, leading the NSW BLF, was a militant proponent of industrial action, green bans and supportive of the Euro-Communist aligned CPA against the Soviet line and in particular opposed to the Soviet invasion of Czechoslovakia, whereas the federal office, led by Norm Gallagher, was closely associated with the CPA (Marxist-Leninist), that is the Maoist Party whose intellectual leadership was provided by the Melbourne barrister E.F. Hill. Both of these groupings were opposed by Pat Clancy, leader of the BWIU who was sympathetic to the position of the Soviet Union in international affairs and led the breakaway from the CPA which became known as the Socialist Party of Australia (SPA). In all of this, it is impossible to characterise the adjudications by Sweeney as in any way partisan or otherwise than in accordance with legal principle. In Re Election for Office in ABCE & BLF,⁸⁶ in the context of an election inquiry asserting irregularities in connection with elections for officers in the BLF, namely the positions of trustees, the judge found that there had not been appropriate compliance with the rules providing for a period of continuous membership as to eligibility to nominate another member as a candidate for office but that the failure of the returning officer to advise the member of rejections of various nominations did not amount to any irregularity and nor did any failure to comply with various regulations affect the election. In Re Australian Building Construction Employees & BLF; ex parte Rix,⁸⁷ a number of applicants challenged the action of the returning officer rejecting their nominations to stand for office. The BLF alleged that the nominees had not paid a levy imposed by the federal council of the BLF. However, Sweeney J held that the levy had not been validly imposed because it had only been endorsed by two state branches out of six and that the applicants before the court, nominees for office, were not unfinancial members of the BLF. Accordingly, the election of the General Secretary of the BLF was declared void and an order was made for a new election which would enable the competing candidates to stand.	50
On the other hand, a decision of the court in which Sweeney J joined with Evatt J to produce an outcome favourable to the BLF, in that the court validated a levy which had been imposed by the federal council on its members.⁸⁸ The court noted that the BLF had been deprived of registration in June 1974, but had once again become a registered organisation in October 1976. It held that the legislation gave a wide discretion and that it was, in all of the circumstances, appropriate to validate the imposition of the levy if the court was satisfied that such an order did not do substantial injustice to the organisation, its members or creditors or any other person. Keely J dissented.	51
More painful for the Gallagher BLF was, no doubt, the outcome in Owens v Australian Building Construction Employees & Builders Labourers Federation.⁸⁹ The Sweeney-led bench dramatically vindicated the position of the Mundey faction of the NSW BLF. The court emphatically held that Jack Mundey's associates who had led the NSW BLF and who had been excluded from membership of the union and therefore the opportunity to be employed in the building industry were not people whose conduct was of a general bad character so as to exclude them from the union. A distinction was made between the character of the applicants for membership and their role as officers of the union. The burden of proof to demonstrate general bad character lay upon the organisation, and this onus had not been discharged. The proposition that these individuals were of bad character was characterised as 'extraordinary'. The defendant BLF in this litigation embarked upon a 'retreat' which was completely unexplained.⁹⁰ Accordingly, Mundey and others were allowed to be members of their union and thus earn a living in the construction industry from which they had emerged as union leaders.	52
Despite the measured, legally reasoned and diverse nature of these various decisions concerning the turmoil in the BLF, Sweeney was attacked viciously by the Gallagher-led federal office. A pamphlet was produced and circulated which described 'Justice Sweeney and P. Clancy' as 'arse lickers of Soviet-social imperialism'. A demonstration was organised outside Sweeney's court. It was alleged that Sweeney was a 'bought judge', whose address and telephone number at Wollstonecraft was listed in the pamphlet. It was asserted 'his decisions show a marked bias towards Clancy, Mundey, Owens, Pringle, Olive and Rix'. It was said that he had heard all of the recent cases concerning the BLF and had decided for 'the Russian agents every time', and that in the 1950s he was the 'largest single shareholder in the rag Tribune, the newspaper produced by Mundey and Owens' tiny political party'. It was said that Sweeney was the lawyer and legal brains behind Clancy's BWIU for many years, and was a close personal friend of Pat Clancy. Analogous allegations were made about Kep Enderby (a former Attorney General in the Whitlam government) who had appeared for applicants against the BLF, and also Clancy, NSW Deputy State Premier Jack Ferguson and others. No objective analysis of Sweeney's judgments in this area of controversy bears out or gives the slightest support to this vituperation. As I have attempted to demonstrate, Sweeney as an industrial judge was measured and objective, bringing an intellectual integrity to the task at hand, notwithstanding former affiliations of a kind which are inevitable in the appointment of any busy practitioner who has both clients and friends.	53

Conclusion
On 1 May 1981 Justice Sweeney was made an officer of the general division of the Order of Australia in recognition of his services to the law. Six days later he died, while still a judge of the court, in Perth.⁹¹ A memorial sitting of the Federal Court of Australia was held on 14 May 1981. The Chief Judge of the Court, Sir Nigel Bowen, spoke warmly of Sweeney's career and character. M.H. Byers QC, appearing for the Attorney General of the Commonwealth, said: 'his touch was especially sure in industrial questions. It was there that his legal career had been predominantly involved. His knowledge of the history of the Commonwealth Act and of the history of it and that of at least one state and all their provisions and their practical operation was both deep and exact'.⁹² His friend Neville Wran organised a secular gathering to pay tribute to John Bernard Sweeney's life and work on 16 May 1981 at the University of Sydney Law School in Phillip Street. A large and diverse crowd came to the occasion to acknowledge a man who had made a substantial contribution to the law, industrial relations and public life in Australia.	54
J.W. (Jeff) Shaw QC graduated in law from the University of Sydney, taking silk in 1986. He served as NSW Attorney General (1995–2000) before serving as a Supreme Court Judge. He is now a legal consultant and academic in the field of employment law. Endnotes ^* This paper has been peer-reviewed by two referees for Labour History. The author has used abbreviations describing legal titles: J means Justice, CJ — Chief Justice. JJ — Justices, P — President (usually of a state court of appeal or state industrial tribunal), JA — a Justice of Appeal. ^1. John and Judy Mackinolty (eds), A Century Down Town: Sydney University Law School's First Hundred Years, Sydney University Law School, Sydney, 1991, p. 215. ^2. Hall Greenland, Red Hot: The Life & Times of Nick Origlass, 1908–1996, Wellington Lane Press, Sydney, 1998, pp. 78–80. ^3. Kenneth D. Buckley, Offensive and Obscene: A Civil Liberties Casebook, Ure Smith, Sydney, 1970, pp. 47–91. ^4. The account of family relationships is based on their testimony to the author. ^5. J.S. Legge (compiler and editor), Who's Who in Australia, Herald and Weekly Times Ltd, Melbourne, 19^th edn, 1968, p. 820. ^6. The authoritative discussion is Stuart Macintyre, The Reds, Allen and Unwin, Sydney, 1998 at pp. 19, 21 and 125, inter alia; see also M.H. Ellis, The Garden Path, Sydney, 1949, p. 31; Damousi, 'C.B.D. Jollie-Smith', Australian Dictionary of Biography, vol. 11. Melbourne University Press, Melbourne, 1988, pp. 641–642. ^7. R v Corer; ex parte Kisch (1934) 52 Commonwealth Law Reports (CLR) 221 per Evatt 7; R v Wilson; ex parte Kisch (1934) 52 CLR 234; and see generally, Egon Kisch. Australian Landfall, Australasian Book Society, Sydney, 1969, (translated from the German by John Fisher and Irene and Kevin Fitzgerald; first published by Seeker & Warburg, London. 1937); Nicholas Hasluck, The Legal Labyrinth: The Kisch Case and Other Reflections on Law And Literature, Freshwater Bay Press, Claremont, Western Australia, 2003. One conservative Australian writer, Hal Colebatch, has recently proclaimed in a book review of a collection of essays on White Australia that 'Kisch was a Soviet agent, though his work actually benefited the Nazis if anybody': Right Now, vol. 47, 2004, p. 22. ^8. Robert Cooksey, Lang and Socialism: A Study in the Great Depression, Australian National University Press, Canberra, 1971, p. 19 and footnote 16. ^9. Greenland, Red Hot, p. 70. ^10. The CPA itself did not deny that 'sectarianism' was partly responsible for the disastrous miners' strike: Alistair Davidson, The Communist Party of Australia: A Short History, Hoover Institution Press, Stanford, 1969, p. 136. ^11. Ellis, The Garden Path, p. 402. ^12. Ibid., p. 415. ^13. Ibid., pp. 453, 454. ^14. National Archives of Australia, Series A6119; Item 170. ^15. Blanche d'Alpuget, Mediator: A Biography of Sir Richard Kirby, Melbourne University Press, Carlton, Victoria, 1977, pp. 204, 205, 205, 216, 226–7. ^16. 'Personalia Commonwealth: Mr Justice J.B. Sweeney', Australian Law Journal, vol. 47, 1973, p. 411. ^17. Clyde Cameron, The Cameron Diaries, Allen & Unwin, Sydney, 1990, p. 306: Staples had been a CPA member until his expulsion in 1956 for publishing Khrushchev's 'secret' speech denouncing Stalin. ^18. Re Inquiries into Elections for Offices in the Federated Ironworkers Association (1951–1952) 73 Commonwealth Arbitration Reports (CAR) 27. ^19. Rupert Lockwood, 'Power Corrupted the Poor Boy from Yorkshire', Annals Australia, vol. 106, no. 2, 1995, p. 18, at 19, 20. ^20. R v Sharkey (1949) 79 CLR 121 at 108. ^21. Tribune, 2 April 1949. ^22. Civil Liberty Newsletter, no. 96, May/June 1981, p. 2. ^23. O'Toole v Scott [1965] Appeal Cases (AC) 939 at 658, 659. This decision was followed by the Supreme Court of NSW in Ex parte Brodsky; Re McKeowan (1968) 88 Weekly Notes (WN) (Pt 1) (NSW) 295 and Ex parte Chambers; Re Schetrumpf (1969) 90 WN (Pt 2) (NSW) 137. ^24. Mr Justice Lusher, Report of the Commission to Inquire into New South Wales Police Administration, Government Printer, Sydney, 29 April 1981, pp. 255, 256. ^25. Herbert Vere Evatt, Australian Labour Leader: The Story of W.A. Holman and the Labour Movement, Angus and Robertson, Sydney, 1979 edn, p. 384. ^26. Green Cab Service Pty Ltd v Whitfield (1965) 66 State Reports (SR) (NSW) 1 at 6. ^27. Ex parte Farley & Lewers Limited v Re Transport Workers Union of Australia (NSW Branch) (1966) 67 SR (NSW) 171. ^28. Agricultural Employees (State) and other Awards [1967] Arbitration Reports (AR) (NSW) 56; discussed in J.W. Shaw, 'Economic Factors and Wage Fixation Principles: Developments in New South Wales in 1974', Journal of Industrial Relations, vol. 17, 1975, p. 369, at 471, 472. ^29. (1967) 15 Federal Law Reports (FLR). ^30. Ibid. at 61. ^31. Ibid. at 123. ^32. [1995] 184 CLR 620. ^33. Ibid. per Brennan CJ, Deane and Dawson JJ at 639, 640 and 641 (where the Sweeney Report into the Moore v Doyle dilemma was cited) and Toohey, McHugh and Gummow JJ at 662–665. ^34. Re Crown Employees (Teachers-Department of Education) Award [1970] AR (NSW) 345 at 517, 525. ^35. Meredith and Verity Burgmann, Green Bans, Red Union: Environmental Activism and the New South Wales Builders Labourers Federation, UNSW Press, Sydney, 1998, pp. 112, 113. ^36. Re Building Trades Dispute Award [1971] AR NSW 619; see also, in the Court of Appeal, Ex parte Master Builders Association of New South Wales; Re Industrial Commission of New South Wales [1971] 1 New South Wales Law Reports (NSWLR) 655. ^37. J.B. Sweeney 'The Forgotten Powers of the Industrial Commission', Journal of Industrial Relations. vol. 1, no. 2, 1969, p. 115. ^38. C.P. Mills, Industrial Laws New South Wales, Butterworths, Sydney. 4th edn, 1977, p. 34–36. ^39. Anecdote told to the writer by W.K. Fisher. ^40. J.M. Bennett (ed.), A History of the New South Wales Bar, Law Book Co, Sydney, 1968, p. 180. ^41. Blanche d'Alpuget, Mediator: A Biography of Sir Richard Kirby, p. 260. ^42. Robert J. Hawke, The Hawke Memoirs, William Heinemann Australia, Port Melbourne, 1994, p. 63. ^43. This account summarises the account of E.G. Whitlam in his book review entitled 'Memoirs and Lapses' being a review of The Hawke Memoirs, in Western Australian Law Review vol. 24, 1994, p. 291 at 292. ^44. Clyde Cameron, The Cameron Diaries, p. 143. ^45. Ibid., pp. 143, 144. ^46. Ibid., p. 144. ^47. J.W. Shaw and P. Tyson, 'Roy Frederick Turner', The Australian, 30 June 2004. ^48. Transcript, 3 April 1974, pp. 1–9; Coram: Spicer CJ. Dunphy, Joske, Smithers, Franki and Sweeney JJ. ^49. The Metal Trades Award 1952 (1973) 154 CAR 6l at 64. ^50. [1974] 22 FLR 127. ^51. Ibid. at 134. ^52. Clyde Cameron, The Cameron Diaries, p. 296; see also, C.P. Mills, 'Labour Legislation Under a Labor Government' Australian Law Journal, vol. 47, 1973, p. 317 at 318, 325. ^53. Fred Wells. 'Labor plan to abolish penal clauses', Sydney Morning Herald, 3 May 1971. ^54. See for example, The Cameron Diaries, pp. 535, 635. ^55. Gough Whitlam, The Whitlam Government 1972–1975, Viking, Ringwood, Victoria, 1985, pp. 284–286. ^56. R.N. Madgwick, 'Bob St John QC (1925–2003)', Bar News (Journal of the NSW Bar Association), Winter 2003, pp. 60. ^57. Whitlam, The Whitlam Government 1972–1975, p. 702. ^58. See, for example, his ruling annulling a bankruptcy notice on the ground that the applicant for annulment had not been in Australian on the relevant date of service and that he had only one debt, and that had been paid: Re Bond; ex parte The Bankrupt [1978] 36 FLR 131; although in an industrial context, Sweeney J had to grapple with issues such as the right of appeal against the dismissal of a summons alleging a criminal offence, deciding that such an appeal on the merits was incompetent; Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne [1979] 41 FLR 22; however, compare and contrast the situation which faced Sweeney J in relation to a summons seeking the imposition of a penalty which was held not to be a criminal proceeding in character and consequently an appeal did lie against a dismissal of the summons at first instance: Gapes v Commercial Bank of Australia Ltd (No 2) [1979] 38 FLR 431; his Honour also considered issues such as whether an undertaking given by a party was an undertaking to the court or was merely an undertaking inter pares, with the judge finding that there was no evidence of breach of the undertaking, in part, because it had not been established that the undertaking had been breached by a person with the requisite authority; Housewives United Buyers Co-Operative Ltd v Trustees of the Sisters of St Joseph [1980] 42 FLR 106. ^59. Australian Timber Workers Union v Monaro Sawmills Pty Ltd [1980] 42 FLR 369. ^60. Bowling v General Motor's Holden Pty Ltd [1980] 50 FLR 79. ^61. Re Application of Jacques of Jacques Aper under s144A [1978] 35 FLR 388. ^62. Maguire v Frend [1977] 32 FLR 160. ^63. Australian National Railways Commission v Zatorski [1980] 49 FLR 53. ^64. Re Application by Building Workers Industrial Union of Australia [1979] 41 FLR 192. ^65. Bill Guy, A Life on the Left: A Biography of Clyde Cameron, Wakefield Press, Kent Town, South Australia, 1999, pp. 160–168: Mark Hearn and Harry Knowles, One Big Union: A History of the Australian Workers Union 1886–2004, Cambridge University Press, Cambridge, 1996, p. 262; Cameron v Davis [1960] 1 FLR 413. ^66. Kayne v Australian Broadcasting Commission Staff Association [1978] 34 FLR 104. ^67. [1978] 36 FLR SO; see also McLeish v Faure [1979] 40 FLR 462, a case which concerned the right to demand a referendum on policy decisions within the Electrical Trades Union. Sweeney's influence on the joint judgment of the Full Court is readily discernible to the effect of emphasising a balance' between democratic control and the viability of the organisations whose existence were fundamental to the operation of the Conciliation & Arbitration Act 1904 (Cth). ^68. Scott v Rolfe [1979] 36 FLR 249; Luckman v Australian Postal & Telecommunications Union [1978] 36 FLR 68. ^69. Clexorth v Barrow (1978) 20 Australian Law Reports (ALR) 359. ^70. Cairns v Jenkins [1979] 42 FLR 188. ^71. Roots v Hutton [1978] 32 FLR 15; Kayne v Banks (1978) 22 ALR 255; Australian Transport Officers Federation v State Public Services Federation [1981] 50 FLR 438. ^72. (2001) 109 Industrial Reports (IR) 162 at 172. ^73. Re Professional Radio and Electronics Institute of Australasia (unreported, 9 May 1979, Federal Court of Australia at p. 13). ^74. Jarrad v Silver Top Taxi Service [1980] 43 FLR 1. ^75. Troja v Australian Meat Industry Employees Union (Victorian Branch) [1978] 46 FLR 340 at 346. ^76. Allen v Vehicle Builders Employees Federation of Australian [1977] 30 FLR 263. ^77. McLeish v Kane (No 2) [1979] 41 FLR 152. ^78. O'Donoghue v Amalgamated Society of Carpenters & Joiners of Australia & Griffin [1979] 41 FLR 197. ^79. Morris v Federated Liquor & Allied Industries Employees Union of Australia [1978] 35 FLR 60. ^80. Lyons v Deegan [1978] 35 FLR 430. ^81. Re Airline Hostesses Association [1980] 48 FLR 214. ^82. Shrubb v Air Pilots Guild of Australia [1979] 40 FLR 374. ^83. [1979] 40 FLR 445; Mr Keogh had apparently been involved in internecine conflict in the Federated Miscellaneous Workers Union: Ray Gietzelt, Worth Fighting For: The Memoirs of Ray Gietzelt : General Secretary of the Federated Miscellaneous Workers Union of Australia 1955–1984, Federation Press, Annandale, 2004. ^84. [1980] 43 FLR 168. ^85. [1980] 49 FLR 355. ^86. [1978] 30 FLR 252. ^87. [1978] 18 ALR 43. ^88. Australian Building Construction Employees & Builders Labourers Federation [1978] 46. ^89. [1978] 46 FLR 16. ^90. Ibid. at 41. ^91. Obituary, 'Judge was industrial expert', Sydney Morning Herald, 8 May 1981. ^92. Transcripts, Federal Court of Australia, 14 May 1981, at p. 6.

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John (Jack) Bernard Sweeney QC: Trade Union Lawyer

J.W. Shaw*

Entering the Law

Political Involvement

Civil Liberation

Union Advocate

Industrial Judge

Commissions and Reports

Legal Technique

Conclusion

Endnotes

J.W. Shaw^*