Email to the Chair of Workplace Relations Committee

Dear Senator Troeth,

I refer to previous correspondences with you and your staffs in November 2006 in relation to the petition for people’s constitutional right to obey law at work, and thank you again for considering the matter. The petition and the background of the petition are attached.

2. Jennifer told me that you did not support the petition because it was against the government’s policy. I asked her whether it was the government’s policy that employees had to follow unlawful instructions from their bosses. She relied that I had to pursue the matter with the government because you followed the government’s decision anyway.

3. The latest information from the Attorney-General’s office is that the Attorney-General is investigating the matter. My letter to the Attorney-General of 27 August and the letter from the chief staff of the Attorney-General’s office of 20 September 2007 are attached.

4. On 11 September 2007, Senator Marshall presented the above petition to the Senate. The petition officer of the Senate told me that the Employment and Workplace Relations Committee, which you chair, would consider the petition in next sitting. The information below might be helpful while you consider the matter in the Committee.

Public importance (“constitutional significance”)

5. Most Australians have no right to obey law and the Constitution in weekdays in accordance with the case law made by the Full Federal Court in relation to Hilda’s unlawful dismissal case in 2005. (More than 50% Australians are employees and work in weekdays.)

6. While Hilda sought protection for her right to obey law under the Constitution, the Full Federal Court held that her requirement was “vexatiously or without reasonable cause” because she did not complain about her superiors’ unlawful instructions and activities “to a Court or Tribunal” before she was dismissed even though the primary judge had recognized, “in this case she's complaining to a person that - to an organisation that looks [a]fter workers that she's being forced to carry out her duties illegally” and “The complaint, however I characterise it, is only in the capacity as employee seeking relief as employee”, and the employer’s counsel had conceded that: “the illegality is in fact on the part of the employer, not on her part”. (Further information may be found in the attached document, Construction of the laws and the Constitution)

7. A question is if people at work have no right to obey law under the Constitution, where do people have rights to obey law under the Constitution? If people at work do not need to obey law, why should they obey law and the Constitution anywhere else?

Constitutional principle

8. In general circumstances, no law allow people at work to complain their superiors’ illegalities “to a Court or Tribunal”. Therefore, people have no right to obey law at work in accordance with the case law.

9. The High Court recognised that our appeals against the Full Federal Court’s judgment involves applications of the Constitution, and issued Notices of Constitutional Matter to the Attorney-General under s 78B of the Judiciary Act 1903.

Do we have to follow the constitutional principles?

10. A junior solicitor from Australian Government Solicitor replied, “If special leave to appeal is granted, the Attorney-General might decide to intervene in the Appeal”. The junior solicitor did not declare that he was writing on the Attorney-General’s behalf. The High Court understood the Attorney-General had not “indicated a desire to intervene” therefore refused to provide a judgment to our appeals.

11. The Attorney-General department informs us that the Attorney-General receives 78B Notice daily. Therefore, they usually do not intervene in proceedings under s 78 of the Judiciary Act 1903 and even do not raise 78B notices to the Attorney-General’s attention. The Attorney-General’s chief staff informs us that no document shows that the matter was raised with the Attorney-General.

12. Do you believe that you have obligations to follow the junior solicitor’s opinion?

13. The High Court receives over 1000 appeals each year but it can only provide less than 100 judgments. Most of the appeals have to be dismissed without any judgments to the appeals if they are not high profiles, are not represented by famous Queen Counsels or are not intervened by the Attorney-General because of constitutional significance or public importance.

14. Obviously, the Government and the High Court are too busy to deal with appeals from ordinary people because of economic efficiency. (Further information may be found in the attached document, The Federal Government’s Response to the Matter)

15. A question is whether ordinary people should not care about their obligations and rights to obey law because the High Court and the Attorney-General will not care about their duties and rights at the end of the day.

16. Another question is whether ordinary people should not be punished in the name of the law at all, because the government and the court do not uphold their right to obey law anyway.

17. The question for parliamentarians is whether the Parliament should not approve the laws, which require ordinary people to obey, because of economic efficiencies of the High Court and the Government, and ought to approve the laws, which only require well-heeled people, who can afford to engage famous Queen Counsels at the end of the day, to obey, when inequity in access justice is accepted.

The Federal Government has not affirmed that the case law is right

18. Obviously, the case law made by the Full Federal Court creates a legal loophole, which leaves most of Australians at work in predicament. After the Full Federal Court had made the case law, Federal Government should have proposed a law that allows people at work to file complaints “only to a Court or Tribunal” against their superiors’ unlawful instructions and activities, and have informed all employees that they should not directly complaint their superiors’ illegalities to the bosses, if the government holds that the case law is correct.

The case law is at odds with the Cover Clause 5 of the Constitution

19. If the Federal Government had held that the case law was correct, that the Constitution was out of date and that employers did need more liberty and power, it would have proposed to change the Constitution. It should have informed the public that the people, which was referred by the Cover Clause 5 of the Constitution, was defined as employers only at workplaces, or that employees did not count as people at workplaces in respect with the Cover Clause 5 of the Constitution.

Parliamentarians may disagree with the case law

20. If the majority of the Federal Parliamentarians has no intention to construe “the filing of a complaint” as “only to a Court or Tribunal” at s 659(2)(e) of the Workplaces Relations Act 1996 (it was s 170CK(2)(e) before 2006), before trying to change the wording, it is able to require the High Court to declare whether the Full Federal Court’s construction is wrong or/and not valid under the Cover Clause 5 of the Constitution. (Please see the attached document, Construction of the laws and the Constitution)

We are grateful to you for your time to consider this matter. We consider if you have concerns about the case law and raise it to the Federal Government and to Employment and Workplace Relations Committee, both of the Government and the Committee will conduct its inquiry seriously and thoroughly. If you need any further assistance to understand the matter please do not hesitate to contact me. We are more than happy to reply all your concerns.

(file below are downloadable as .jpg files)

1. Certificate of the Industrial Relations Commission
2. Letter from the Chief Staff of the Attorney-General's Office of 20 September 2007 p. 1, p. 2

(file below is downloadable as .doc files)

3. The Petition
4. Background of the Petition
5. Construction of the Laws and the Constitution
6. Federal Government's Response to the Matter

7. Letter to the PM of 8 September 2007 was posted on this blog on 10 September 2007
8. Letter to the Attorney General of 27 August 2007 was posted on this blog on 27 August 2007