Reject the illusion of the “independent umpire”

Nick G.

Running through commentary on the recent Fair Work Commission decision to cut penalty rates is repeated reference to the Commission as an “independent umpire”.

This goes to the heart of illusions about the nature of the state under capitalism.

The essence of the state is that it is a series of institutions created during the bourgeois era for the special purpose of suppressing the working class at home and furthering the interests of the bourgeoisie abroad.

That reality is expressed in the armed forces, police (open and secret), courts, and gaols. 

This reality is concealed wherever possible by the illusion of parliamentary democracy, a free press and an independent judiciary.

These illusions are designed to persuade the workers that the system is fair because the billionaire and the New Start Allowance recipient each have only one vote of equal value, and because justice is blind to their social and economic differences.

Both know in their heart of hearts that such equality is illusory.  But still the message of deception is reinforced: in schools, in the media, in the words and actions of the people’s representatives, and more often than not, by those representatives in the trade union bureaucracy and the Labor Party.

Where and when did the concept of an “independent” judiciary arise?

Comrade E.F. Hill, writing in Revolution and the Australian State: A Socialist Analysis (February 1974) described the emergence of the notion of judicial “independence”:

“Some of the judges in the struggle against feudalism took a stand with the rising capitalist class against the feudal monarch.  They came to be spoken of as ‘independent’. That is, whereas certain judges were dependent upon the feudal monarch, these judges were ‘independent’ of him and were prepared to defy him. The reality was that they were dependent upon the newly arising capitalist class. Again it was a class question. We have just said that objectively capitalism was historically progressive as against decaying feudalism.  Its judges were progressive in that sense. When capitalism became established these judges served it faithfully; in its reactionary phase so too are its judges reactionary.  Hence independence of feudalism became fully consummated in dependence on capitalism.  The tradition of independence has been nurtured to feed the illusion that this independence is independence of capitalism and above classes.  Of course it is just not so. On the contrary, it is a very dangerous illusion” (p. 56).

The subsequent practice of the “independence” of the judiciary is essentially born of the fact that once appointed by the government of the day, judges of the various courts that moderate, arbitrate upon and regulate social and industrial relations under capitalism are not subjected to daily orders and directions from the government.  That is, they are trusted by the bourgeoisie’s executive committee (the government) to “do the right thing”, to work within the law (itself a codified expression of bourgeois class interest).  This sometimes means they have the independence to rule on a matter that goes against the preferred position of the government. 

The wisdom of such decisions is that they generally take the overall class interests of the imperialists and local monopoly capitalists into account whereas governments often look to sectional interests to secure momentary political support, particularly from their cheerleaders in the media and their advisors in peak bodies of commercial, manufacturing, mining and other sectors.

In a class society, fairness is a class question

Great harm is done by so-called leaders of the labour movement who continually foster illusions about “independence” and “fairness”.  The Rudd Labor Government rebranded the former Australian Industrial Relations Commission as Fair Work Australia (now the Fair Work Commission - FWC) as part of an attempt to restore working people’s confidence in an IR system befouled by the stench of Abbott’s Work Choices. The FWC was briefed to ensure that any changes to enterprise agreements and awards had to leave workers “better off overall”.  The various commissioners themselves, following the practice of appointments to the state and federal industrial relations bodies, were drawn from both employer and employee organisations. Impartiality and fairness indeed!

These Fair Work Commissioners have operational independence, as noted above. But they are not, and cannot be, independent of the all-pervading, ubiquitous and stifling ideology of capitalism. The very nature of their selection process precludes the appointment of a scientific socialist, genuinely revolutionary and anti-capitalist champion of the working class. 

In so far as the system itself proclaims, and individual commissioners may believe in, independence, impartiality and fairness, these concepts are embedded in and reinforce the very unfair and unjust operation of monopoly capitalism.  They are concepts that cannot be abstracted from or raised above their social context. In a class society, such concepts have their class character and the questions must always be asked: “independence” for whom? “Fairness” for whom?

Iain Ross: a case in point

The Fair Work Decision to slash penalty rates was handed down by the President of the FWC, Iain Ross. It was arrived at by Ross and other members of the Full Bench of FWC. He was appointed to head the FWC by then Minister for Employment and Workplace Relations, Bill Shorten. In a press statement by the latter, couched in the illusory concepts of independence and impartiality, Shorten said “Justice Ross is eminently qualified to lead Australia’s independent industrial umpire.”

“Justice Iain Ross is a highly respected Judicial Officer with extensive experience dealing with workplace relations matters, including during his time as Vice President of the Australian Industrial Relations Commission”.

The press statement gave details of Ross’s qualifications for the position: “Since 2009 Justice Ross has been a Victorian Supreme Court judge and last year became President of the Victorian Civil and Administrative Tribunal. He is also Chair of the Council of Australian Tribunals.  He has held positions with the Australian Council of Trade Unions and worked with the law reform commissions in New South Wales and Victoria. From 1994-2006 he was Vice President of the Australian Industrial Relations Commission. 

“Consistent with FWA’s independence, the President has been appointed following an extensive, merit based process and in consultation with the Opposition, States and Territories.

“Concurrent with his FWA appointment, Justice Ross has also been appointed judge of the Federal Court.

“Justice Ross’ appointment headlines a further six FWA appointments made by the Government today.

“’This is a carefully balanced package of appointments comprising candidates who are well qualified and will bring with them a depth of experience from both employer and employee organisations,’ Mr Shorten said.

“’I am confident that under Justice Ross and his team, FWA will continue to build on its excellent reputation for impartial arbitration, expert advice on workplace relations issues, an important role in strengthening the Australian economy and the practical enforcement of entitlements for employers and employees.’”

The ACTU was no better than Shorten at welcoming Ross’s appointment to head the FWC.  Then ACTU Secretary Jeff Lawrence said Justice Ross was an “extremely experienced and widely-respected judge who was well-equipped to perform this important role. 

“Judge Ross is someone Australian workers can trust to treat each issue that comes across his bench with impartiality and fairness,” he said.

Like a former Labor Prime Minister who stupidly appointed the man who was later to sack him, Shorten has been hoist on his own petard.  He loudly declared that he would abide by the decision of the “independent umpire”, his appointee Ross, on the matter of penalty rates.  More fool him!

He surely knew that last September Ross had called for swapping penalty rates for a higher base pay rate, echoing the dodgy approach adopted by the Shop, Distributive and Allied Employees Association (SDA). 

He surely knew what type of workers’ advocate Ross was, having in 2012, encouraged Ross to broker an end to the CFMEU’s blockade of Grocon’s Myer Emporium site, despite his having no jurisdiction at the time to do so.

Shorten diverts anger from the monopolies to his parliamentary opponents

Having been embarrassed over his faith in the “independent umpire”, Shorten has sought to defuse any questioning of the system by blaming the penalty rates decision on the Coalition government.  That they support and welcome the decision is beside the point.  The decision was demanded by monopoly capitalists in the big corporations that run the retail and hospitality industries as part of an overall attack on the wages and conditions of Australian workers.  

If Shorten was a genuine leader of working Australians he would be demanding that the big corporations back off and that workers should stand up and fight back.