Letter to the Victorian Attorney-General

Dear Sir,

I refer to your email dated 31 October 2006, which I received on 8 January 2007. On 8 January 2007 Jodia of your office initially told me that you would not respond to my email of 28 August 2006 at all, then said you might respond to it after next week. Finally she told me that she resent this email because I claimed that I did not receive it. I could not understand why I had not received the email or why Ms Wortley of your office, who said that she had sent the email on 31 October, did not know that the email had not been received. I knew Mr Languiller MP’s office also forwarded my email of 28 August 2006 to your office. On 6 November Rose of Mr Languiller MP’s office told me that you could not make a decision about it before the election on 25 November because the government was a caretaker government.

Three questions in my previous email

Your email did not refer to my email of 28 August. It seems that you might not have actually read the email. You did not refer or directly reply to any of the three questions asked in my email and listed below.

1. Whose obligation in response to the Notices?

I appreciate you responding to my email personally. With due respect, I could not understand why you did not personally respond to the 78B Notice, which was specifically addressed to you in accordance with section 78B of the Judiciary Act 1903. I believe there is no rule allowing you to not respond to the 78B Notice personally. In my opinion, your tacit answer to the question is that you ought to respond to the 78B Notices personally, which is formally enacted by the Judiciary Act 1903. If I am wrong please correct me.

2. Whether it was appropriate to service the Notices of A Constitutional Matter?

Mr Ruddle of the Victorian Government Solicitor wrote: “As a general rule, the Attorney-General does not intervene in special leave applications”, and “that is not appropriate (to intervene in the matter) as, until leave is granted”. You might remember that you intervened in Cowell’s case for its special leave application in 2003. Obviously, Mr Ruddle did not provide correct information and made up “a general rule”. You did not reply to the question directly. In my opinion, your tacit answer to the question is that it is appropriate to service the 78B Notices for special leave application, you are able to intervene in matters at the stage of special leave applications, and you would have intervened in the matter if you had responded the 78B Notice personally. If I am wrong please correct me.

3. Whether there are Further Roles for the Attorney-General in this Matter after the High Court Refused Special Leave?

You wrote, “You have already been advised on my behalf that I am unable to intervene in [Hilda]’s legal proceedings because the High Court case is at an end”. The High Court Registry (the “Registry”) has informed us that “the High Court case” is not “at an end” if the governments and parliaments intervene in the case and request the High Court to readdress the case. In my email I asked you whether the Registry’s legal advice is right. In my opinion, your tacit answer to it is that you agree with the Registry’s advice. If I am wrong please correct me.

According to the Registry’s legal advice we have campaigned for the petitions to both parliaments of the Commonwealth and Victoria for workers’ fundamental constitutional rights at work arising from Hilda’s unlawful termination case. The leaflet and the petitions are attached.

You stated: “Should [you] be involved in any further legal proceedings which raise questions of interpretation of the Australian Constitution, I will of course consider any further requests to intervene”. According to the Registry’s legal advice the campaign for petitions are “in legal proceedings which raise questions interpretation of the Australian Constitution”. Therefore, we request you to consider intervening in the matter at this stage.

Seeking legal assistance

We have also forwarded the Registry’s legal advice to the Federal Attorney-General. On 22 November 2006 the Hon. Ruddock MP replied: “an Attorney-General is not obliged to intervene in a proceeding under section 78A of the Judiciary Act simply because a party mentions the Constitution, or believes an issue has been identified. The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”. Obviously the Hon. Ruddock MP indicated, to the effect, that our petition had failed his technical assessment of “constitutional significance”.

In our opinion the petitions against the case law made by the Full Federal Court in its judgment in relation to Hilda’s case ought to be counted as a part of Victorian Government’s campaign against “the Commonwealth WorkChoices legislation which denies any unfair dismissal rights to employees in businesses with fewer than 100 employees” because Mr Bernie Ripoll MP wrote: “The case of Hilda Zhang highlights, what is wrong with these laws”, even though the petitions are initiated by us and we are not paid by the Victorian Government.

You “encourage” me to write to the Federal Attorney-General. Could I get legal assistance in this task, in terms of the “constitutional significance” of “employees’ rights under the Australian Constitution”, from you as the Victorian Attorney-General because this ought to be a part of the Victorian Government’s campaign for workers’ rights and these “rights under the Australian Constitution” are relevant to Victorian workers?

Seeking support for a waiver of FOI fee

You stated: “you are interested in employees’ rights under the Australian Constitution”. I appreciate that you has acknowledged that what I am doing are for “employees’ rights under the Australian Constitution”.

The Federal Attorney-General’s department held that I was not doing it for “general public” or “a significant section” of it, when I tried to obtain relevant documents in relation to the “technical assessment” of “constitutional significance” of the matter from the Federal Attorney-General’s department and requested a waiver of the application fee under subsection 30A(1)(b)(iii) of the Freedom of Information Act 1982. The letter from the Federal Attorney-General’s department of 2 January 2007 is attached.

We believe: the “general public” interest in peoples’ rights under the Australian Constitution, and Australian workers are “a substantial section of the public”. Could you kindly provide a letter to support my request that the application fee should be waived on the grounds of the interests of the “general public” or “a substantial section of the public”?

I look forward to receiving your response.

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Letter from the Federal Attorney-General's department dated 02/01/07 page 1 and page 2

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Letter from the Victorian Attorney-General received on 08/01/07