There must be a shield if the process of regulation becomes oppressive but it’d be better if it wasn’t needed
One might call it ‘Dirty Harry Syndrome’, where the ‘good guys’, frustrated by a system that allows too many of the ‘bad guys’ off the hook, resort to questionable measures to get their man, woman, company, you name it.
Conditioned in part by unending US-based cultural reinforcement, to the delight of many an audience, the anti-hero becomes the hero and is vindicated because, well, that’s what the script-writer wrote.
And so, something akin to a vigilante culture emerges, even in Australia, tinged with a competitive streak that treats anything that gets in the way of a win as enemy action.
Make no mistake, allowing the ‘bad guys’ even a loose rein, especially in trucking, is not just bad for the industry and economy, it’s dangerous.
It engenders a hopelessness that begs competition-in-kind as the only rational response.
Not that that’s a defence, it isn’t even an bad excuse, but it is the symptom of a blight and sickness in the society and its economy, caused by a gross distortion in proper enterprise competition and often supported by enforcement failure.
While it’s impossible to guard against every and all malfeasance, the state must step in to protect its laws and to regulate the economy, or what is a government for?
But there is a flip-side.
Just as dangerous to the body-politic is untrammelled and overweening use of regulatory power.
So, what to make of judicial criticism of how Fair Work Australia goes about trying to clean up the employer-employee scene?
Find yourself in an Australian court and you’re in the midst of what’s known as the British-derived ‘adversarial legal system’: prosecution versus defence, with an impartial judge making sure that all is fair and above board, a decision is arrived at and a finding given.
The other option, derived from Roman law in known as the Inquisitorial system, with judges much more active and able to question all sides in a search for the truth.
The rights to defend one’s self and to legal representation are central pillars of the former and both have been reinforced by judges in the Silverbrook and Atkins Freight Service cases.
The FWO is the common party in both cases.
Like the rest of the federal government, the FWO is supposed to be bound by the ‘model litigant policy’ and it was this that the South Australian Road Transport Association, which has been advising Atkins, used to link the two.
The policy is about ensuring a ‘win at all costs’ aspect does not enter proceedings, for that way tyranny and wanton destruction lies.
Noting the transgression was proved but mostly inadvertent, the Silverbrook case judge lashed the FWO for sending one of entrepreneur Kia Silverbrook’s companies to the wall, to no one’s advantage, least of all the employees, and for being oppressive with his lawyer.
The Atkins case magistrate also defended the company for arguing its side of the case, one that may have been weakened more by circumstance than delinquency, and refused to make an example of it beyond the finding of guilt, which is being appealed, and a resultant fine.
Would an inquisitorial system done any better? We’ll never know.
It may well be that the adversarial system worked pretty smartly.
But, really, neither case shows our legal and regulatory systems in their finest light.
Indeed, unless there are significant ameliorating details yet to surface, they hint at processes edging towards being dangerously shabby and in need of reform.