Letter to the Attorney-General of the Commonwealth

Dear Sir,

Thanks for your letter of 22 November 2006 in response to my letter of 9 October 2006. The “further information is of assistance” to clarify the issues about the constitutional matter.

Who ought to respond to the 78B notices in accordance with the Judiciary Act 1903?

You stated: “I do not, as Attorney-General, respond directly to notices of constitutional issues given by parties to proceedings under section 78B of the Judiciary Act 1902” (sic), and “The Australian Government Solicitor responds formally once a decision about a notice has been made”. You conceded to the effect that section 78B of the Judiciary Act 1903 clearly specify that the Notices of Constitutional Matter have to be served to the Attorney-General and not to the Government Solicitor; however, the government’s general practice has not followed the formal procedures enacted by section 78B of the Judiciary Act 1903. We cannot understand that; please kindly advise what rule has formally allowed you to not follow “the formal court proceedings” enacted formally by section 78B of the Judiciary Act 1903.

Public importance of the constitutional matter

(a) Why the Judiciary Act 1903 requests the courts to ensure 78B notice to be served to the Attorneys-General?

You wrote: “The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”. Put another way you believe section 78B of the Judiciary Act 1903 requires that the supreme Judges in the country seek legal advices from junior lawyers before Their Honours make decisions in relation to constitutional matters. In our opinion, section 78B of the Judiciary Act 1903 requires that the Judges seek public opinion, in respect of “public importance” of the proceeding, from the elected officers and members of parliaments because “public importance” is the paramount criterion “for granting special leave to appeal” in accordance with section 35A of the Judiciary Act 1903.

In previous letter, you correctly quoted: “The documents filed by the applicant do not demonstrate that there are prospects of her showing error in the reasoning of the courts below sufficient to justify a grant of special leave to appeal in any of the applications” ([2006] High Court of Australia Transcript 227 at page 2). Immediately before the above conclusion, the High Court outlined the reason why the constitutional matter was not “sufficient to justify a grant of special leave to appeal” by saying: “the applicant has also filed, and it is said that she has served, a notice under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, the States and the Territories. A reasonable time has elapsed since the s 78B notices were given. No Attorney-General has indicated a desire to intervene”. Implicitly, our special leave applications failed the test of “public importance” because no Attorney-General indicated that the constitutional matter raised from our applications for special leave to appeals was “sufficient to justify” a intervention.

In previous letter you stated: “it would be inappropriate for me to comment on the issues you have raised as they have been heard and determined by the courts”. Therefore, I in turn inquired: “I have obtained an advice from the High Court Registry that the Governments and Parliaments could request the High Court to readdress the matter if they wanted to do so. Please kindly advise whether the advice of the High Court Registry is wrong”. This time, you wrote: “The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”. Obviously you have indirectly conceded to the effect that you can intervene in a proceeding if it is of “public importance” (“constitutional significance”).

(b) The methods used for assessing “public importance”

You did not respond to the questions asked in my previous letter except the question in relation to the matter in the second paragraph above. Obviously your tacit answers to those questions were yes. If I am wrong please correct me. Those questions were relevant to the assessment of “public importance”
(“constitutional significance”).

When responding to our Notices of a Constitutional Matter, a lawyer from the Office of General Counsel wrote: “if special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal”. Obviously, the lawyer could not determinate the “public importance” (“constitutional significance”) of the matter in his own capacity so that he left the High Court to make such assessment. However, apparently, the High Court refused to make such assessment that it ought to be assessed by Attorneys-General, the elected officers and members of parliaments under the Judiciary Act 1903, therefore, the High Court did not use the normal terms, “there was no prospect of success in an appeal”, which are used when dismissing an application for special leave to appeal in normal circumstances. You were an experienced solicitor yourself and, as Attorney-General, have many legal advisers. Please kindly advise why you wrote: “I note in your case that the Court ultimately dismissed the application on the basis there was no prospect of success in an appeal” while the High Court did not actually say so and you noted differently in your previous letter as quoted above.

Please kindly provide, under the Freedom Information Act 1982 (Cth), the standard methods applied to this kind of assessments and both of the “technical assessment” of "public importance" (“constitutional significance”) of this matter and the reasons of the decision in terms of not intervening in this matter. Put another way, when making such assessment and decision, what questions were asked, what were the answers for those questions and what were the reasons for those answers? While assessing “public importance” (“constitutional significance”) we have asked ourselves questions as listed in my previous letter and you gave tacit consents to those answers as mentioned above. Further, for obtaining evidences of the “public importance” (“constitutional significance”) of this matter we have presented the matter to the public. Many parliamentarians, organizations, legal professionals and ordinary people have agreed that this matter is of “public importance” and supported our petitions to the parliaments. If you or the Government Solicitor have made two decisions in response to both the Notices of Constitutional Matter dated 21 April 2006 and my enquiry to the Honourable Costello MP dated 25 May 2006, please kindly provide documents in relations to both decisions.

(c) The “public importance” of the law, “only to a Court or Tribunal”

For dismissing our appeals, the Full Federal Court established a law to redefine the test for claiming unlawful dismissal or for seeking court protection from retaliatory dismissal. The new test is that employees, before their dismissals, have filed complaints against their employers’ unlawful instructions and activities “to a Court of Tribunal”. As outlined in my previous letter, as far as we know, no laws allow employees, before their dismissals, to file complaints “to a Court or Tribunal” against their employers’ unlawful instructions and activities. Therefore, that law made by the Full Federal Court makes it impossible for employees to uphold and obey the Constitution in workplaces when it is against their employers’ wills and that law was the foundation of the decision of the Full Federal Court to dismiss our appeals.

A swath of corporate scandals in the last few years has eroded confidence in the business community. With HIH, the failure of Ansett and One-Tel in domestic sphere, and AWB in international sphere, everyone knows the corporate ethics had collapsed much earlier than those companies’ collapse and the companies’ criminal activities. Obviously, without protection from the legal system no corporate ethics can exist. In our opinion, nobody doubt anymore the “significance” of the workers’ fundamental constitutional rights in workplaces if they believe in upholding the Constitution and do not believe that the Constitution has no “significance” in workplace.

I look forward to hearing from you.

(file below is downloadable as .jpg file)

a letter from the Attorney-General of the Commonwealth dated 22/11/06