Monday, January 22, 2007

Letter replies to Kevin Andrews MP’s letter to Senator Payne

Dear Senator Payne,

Thank you very much for helping us obtain a response from the Hon Kevin Andrews MP, Minister for Employment and Workplace Relations. We really appreciate that you have taken the matter seriously and requested His Honour to clarify the matter, therefore, we are replying to His Honour’s letter.

Probably only to a Court or Tribunal

The Hon Andrews MP held, to the effect, that “‘probably’ clearly encompasses the possibility” that an employee whose complaint had been “filed with a body other than a court or tribunal” is entitled to file an unlawful dismissal application to the Federal Court (I think that was his meaning, otherwise he changed the subject of the argument). If that was the Full Federal Court’s meaning, the Full Federal Court would not have used the word “only” to prevent Hilda (whose complaint had been “filed with a body other than a court or tribunal”) from filing her unlawful dismissal application to the Federal Court. Put another way, if the Full Federal Court did not eliminate any “possibility”, it would not need to say it at all, or the Full Federal Court would have upheld our appeal. We would like the Hon Andrews MP to clarify what kind of “possibility” has been eliminated by the Full Federal Court and whether such limitation is against the Covering clause 5 of the Australian Constitution (see the attachment)?

In my opinion, the Full Federal Court used “probably” only to express that it had not been sure about its construction of section 170CK of the Workplace Relation Act 1996 (the WR Act) because the only authority (a report of the International Labour Organization) it relied on does not express anything like that. (refer to quotation from the report in the attachment).

Furthermore, Hilda’s application was struck out (dismissed) without a trial because the Courts held that the Federal Court had no jurisdiction under the WR Act to hear Hilda’s application. If the Hon Andrews MP really held, “‘probably’ clearly encompasses the possibility of a complaint being filed with a body other than a court or tribunal” His Honour should have requested the Attorney-General to intervene in the matter and to put Hilda’s matter on trial. It ought to be decided on trial whether Hilda’s “complaints” is “within the meaning of the WR Act” and whether Hilda was dismissed because of her “complaints”.

Filing an complaint “to a Court or Tribunal

The Hon Andrews MP, as the Minister for Employment and Workplace Relations, certainly has a team of experts specialized on industrial relations laws, but he has not found any law under which Hilda could file a complaint, before she was dismissed, “to a Court or Tribunal” against her former employer who had coerced her to cook the book. (I do not think that His Honour was suggesting that she should file a complaint to the Human Rights and Equal Opportunity Commission, before her dismissal, that her boss coerced her to cook the book because of her race.) When backing up the Full Federal Court’s decision that Hilda could not rely on section 170CK(2)(e), the unlawful termination section, of the WR Act, His Honour has not found any law under which “a Court or Tribunal” protects accountants from retaliatory dismissals after complaining about and refusing to follow their bosses’ unlawful instructions, That is why we have campaigned for the petition against the law made by the Full Federal Court.

Now we have a better understanding why a swath of corporate scandals has occurred in the last few years, which 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.


The Full Court quoted Hilda’s complaints to authorities: “I was also forced (to) not keep $1.4m share investment record for the company and I am not allowed to provide proper reports on the shares. I am also forced to input more than $122k wrong amounts to accounting record. I told the Board I can not do it therefore, the Board Chair called me frequently by using awful telephone manners and I am facing termination. I have many written documents to proof my case”, and “[the tresurer] does not collect outstanding GST report from one of the RACI’s sub-entity but forced me, through the RACI Boad, to sign an uncompleted GST return for end of June 2003”, however, held that these “were not complaints within the meaning of the WR Act”. The WR Act does not interpret the meaning of “complaints” at all. As there was no trial, her employer did not show any evidence that Hilda was not terminated because of her complaints against her employer’s unlawful instructions and activities.

Constitutional issues

Section 78B of the Judiciary Act 1903 provides: “Where a cause pending in a [court] involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General, of the question of intervention in the proceedings” (emphasis added). His Honour Justice Gummow of the High Court particular mentioned the 78B Notices had been “served” and “a reasonable time has elapsed”. That meant the High Court had fulfilled its duty in relation to a “matter arising under the Constitution or involving its interpretation” in accordance with section 78B of the Judiciary Act 1903. Therefore, with due respect, obviously, the Hon Andrews MP was wrong to conclude, “there are no constitutional issues to be resolved”.

Further, the Hon Philip Ruddock MP wrote, on 22 November 2006, “The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”. Implicitly, the Hon Ruddock MP held that there are constitutional issues but the “Constitutional significance” of the issues was not significant enough for him to intervene in the matter.

Public importance”/“constitutional significance” of the matter

The Hon Philip Ruddock MP did not provide the “technical assessment of the constitutional significance” of the matter. We are conducting our assessment of the “public importance”/“constitutional significance” through the petition. Many people, organizations, political parties, parliamentarians and local councils have supported the petition (see the updated backgrounds of the petition attached).

A summary of relevant legal points in relation to the Full “Federal Court’s decision, the relevant provision in the WR Act and the Constitution” is attached.

I look forward to hearing from you.

(files below are downloadable as .doc files)

Updated background of the petition

A summary of relevant legal points

(file below is downloadable as .pdf file)

A letter from Kevin Andrews MP to Senator Payne