The just judge gets full marks

JUDGES tend to fall into one of two groups. The first group is made up of Philosopher Kings who tend towards pomposity.

Many of them chase the spotlight and revel in the attention that comes from making public comments about controversial issues of the day. For these judicial socialites, the role of sitting in chambers writing long judgments read by very few people is only part of the judicial role. They seem to prefer moral posturing from a public podium.

Take former High Court judge Michael Kirby and former chief justice of the Family Court Alastair Nicholson. Both used the prestige of their judicial positions to seek out uncritical media attention for their pet causes.

Other Philosopher Kings on the bench are more cunning, choosing to exert their extra-judicial authority in secret. Consider what we now know about Anthony Mason's deep involvement in the 1975 dismissal of Gough Whitlam. Mason, a member of the High Court of Australia, should never have advised then governor-general John Kerr. This was a highly divisive political matter. Alas, Philosopher Kings do not subscribe to such constraints, believing only that the bench does not fully use their brilliant intellect.

Then there is the second group of judges. You won't know their names. More humble, they have no hunger for the limelight. In fact, they consciously steer clear of making controversial remarks for fear of creating a perception of bias. The need to uphold impartiality defines their work as a sitting judge. These judges work for decades in their field, hearing cases, writing judgments and, in the case of industrial relations judges, trying to settle matters between two parties.

Frank Marks is the second kind of judge. Frank who? Precisely. He is the antithesis of the grandstanding Philosopher King. As a judge of the Industrial Relations Commission of NSW and the state's Industrial Court, Marks chose not to make public comments during his 19 years on the bench. He deliberately kept a low profile. As he tells The Australian: "I didn't want people to go, 'Oh, he's biased.' "

Only when he retired did Marks say something publicly. His farewell address from the bench last month was not the usual hail-fellow-well-met one. Marks laid down some home truths. He said that the new Fair Work Act was not working. Clearly exasperated by what he had seen happen to industrial relations in recent years, Marks said that rather than trying to settle disputes, the Fair Work Act actually encouraged industrial action between parties and then protected that industrial action.

Speaking to The Australian, Marks repeated his view that the fundamental flaw of the current system was the absence of a central umpire that could efficiently and effectively step in early to mediate between the parties. Under the Fair Work regime, parties must jump through too many legislated, "tortuous steps" before the new industrial umpire, Fair Work Australia, could resolve the underlying dispute. These steps, which Marks sets out in detail in an article in Workplace Review, serve only to polarise the parties, hardening the competing positions and diminishing the likelihood of a speedy resolution.

"I am appalled, absolutely appalled at what is going on," he says of the Fair Work regime that has stripped power from the FWA.

Marks is a lawyers' lawyer; the eminent jurist goes back to first principles. "Politicians are there for the peace, order and good government of the country. But they are using industrial relations ... as an ideological and political football. They are not focusing on the main game and that is to create an appropriate regime for employment relationships and, more importantly, to deal with industrial disputes."

People from across the political divide, even union leaders, agree with Marks. The former judge recalls a conversation with a couple of senior officials of a large trade union (intimately involved in a recent high-profile dispute) and had asked them: "Guys, do you like this system?"

They replied: "No, we don't like it at all." Marks asked them why they didn't exercise some influence through the Labor Party to improve the system. They said: "We'd have no hope. The politicians are running it."

Marks, by the way, is scathing of the ideology that drove Work Choices and Fair Work. "Work Choices went too far in one direction on the pendulum and Fair Work has gone too far the other way," he says.

Under the regime that operated in NSW before Work Choices and the Fair Work Act, the court could step in earlier. "If there was an industrial dispute, for example; if I got a whiff that bus drivers were about to go on strike, I would have them, if necessary, in my courtroom the same day and we would be talking about the matter and the strike would go away."

Marks points to the Qantas dispute as a symbol of the flawed Fair Work regime. "It took six months before the parties sat down with FWA and talked about their differences."

With damaging strikes in strategic industries, such as mining and construction, "we need a regime that settles disputes quickly and fairly", Marks says.

Industrial relations lawyers add that the complexity of the law is compounded by another problem: the quality of personnel at Fair Work Australia. Where once the NSW IRC would regularly attract the best legal minds, smarter lawyers now head for the Federal Court, not Fair Work Australia. And those at the Fair Work tribunal are left to decipher, interpret and enforce a legal nightmare.

And as always, the lawyers are the winners. Marks notes that the big law firms are making buckets of money from the convoluted Fair Work laws. "The Fair Work Act was written by lawyers for lawyers," he says. Small to medium-sized businesses cannot hope to defend industrial actions in the courts. This month, John Howard signalled the need for industrial relations reform. The former prime minister called for new laws to allow for individual contracts and laws to limit unfair dismissal claims so small businesses would no longer need to pay large go-away payments to disgruntled employees.

The only remaining question is this: Tony Abbott, are you listening?