Mining commenced at Broken Hill, NSW in 1885, initially for lead in the form of galena and then the ore deposit was found to contain silver & zinc.
[4] In 1892 there was a strike by miner's at Broken Hill that was precipitated by a decision to terminate the 1889 and 1890 agreements that prevented the introduction of a contract system for ore excavation and reduced the working week from 48 hours to 46.
As a result of the defeat of the strike, there was a 10% reduction in wages, the working week went back up to 48 hours and contract mining continued.
[8] It was with this background that Charles Kingston, the then Premier of South Australia, unsuccessfully proposed that the Australian parliament have the power to establish courts of conciliation and arbitration for the settlement of industrial disputes.
[11] The Commonwealth power to make laws in relation to interstate industrial disputes is in subsection 51(xxxv) of the Constitution which provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: In December 1906 BHP and the unions entered into a two-year agreement that increased wages at the mine with the lowest paid workers receiving a 15% increase from 7s 6d,[13] per 8-hour shift to 8s 7½d,[14] In August 1908 the Chairman of BHP stated that wages needed to be cut at its Broken Hill mine because low metals prices, particularly lead, were making the mine uneconomic.
The unions sought the assistance of the Commonwealth Court of Conciliation and Arbitration, seeking that the agreement reached with the other mining companies at Broken Hill should govern BHP and its employees.
BHP offered to pay the employees the 1906 rates and put the difference into a trust fund that would depend on the decision of the Arbitration Court.
[18] On Saturday 9 January 1909 the violence escalated with bloody clashes involving thousands of protesters and police, resulting charges of riot, rout and unlawful assembly.
[22] Harry Holland, Secretary of the Socialist Federation of Australia, was also tried in Albury on charges of sedition and inciting to violence over a speech he gave on 14 February in which he was alleged to have said "If you are going to fight, put a little ginger into it, or to be plain-spoken—dynamite.
[24] Higgins J made an award on 12 March 1909. holding that "unless great multitudes of people are to be irretrievably injured in themselves and in their families, it is necessary to keep this living wage as a thing sacrosanct, beyond the reach of bargaining".
The majority, Griffith CJ & O'Connor J briefly rejected an interpretation of section 51(xxxv) that there must be an interstate industry, holding that this did not reflect the words of the constitution.
[47] The case was one of 11 decisions of the High Court referred to by the Attorney-General, Billy Hughes, as cutting down the Commonwealth's powers until they were futile and justifying the changes proposed in the 1913 referendum.