Monday, September 10, 2007

Letter to the Prime Minister

Dear Sir,

I refer to the letter of 13 August 2007 written by your senior adviser, Mr Jamie Briggs, on your behalf in response to my letter of 9 February 2007.

Could the government intervene in a proceeding in a court?

Mr Briggs states: “It would be inappropriate interference with the independence of the judiciary”. In some circumstances Mr Briggs’ opinion is not correct.

Under section 78 of the Judiciary Act 1903, the government “may …… intervene in the proceedings before the High Court or any other federal court ……, being proceedings that relate to a matter arising under the Constitution or involving its interpretation”. Both of the High Court and the Attorney-General of the Commonwealth have not denied that our proceedings in both of the Federal Court and the High Court “relate to a matter arising under the Constitution or involving its interpretation”. Therefore the fact is the government is able to intervene in the matter if it wants to do so. Could you please kindly advise whether Mr Briggs’s statement truly represents your opinion? Further, could you please investigate whether Mr Briggs has knowingly provided such misleading advice if he is a competent senior legal adviser?

Under section 78B of the Judiciary Act 1903, notices of a constitutional matter were sent to the Attorney-General. However, the High Court has understood that the Attorney-General had not indicated “a desire to intervene”. Therefore you, as the head of the government, are able to appropriately comment on whether the government ought to have intervened in the proceedings if you want to do so.

Applications of special leave to appeal in person are usually not granted, as the High Court is only able to deal with less than 100 appeals out of more than 1,000 appeals a year. However, the High Court Registry has advised us: if the government or the parliament intervenes in the matter and request the High Court to deal with our appeal, the High Court will deal with it because of the public importance of the matter.

Could you please kindly advise whether you believe that the advice given by the High Court Registry is wrong? If you are not against the High Court Registry’s advice, will it be appropriate that you consider whether the government should intervene in the matter because of the constitutional principle that people at work have the obligation and right to uphold and obey the laws proposed by the government and enacted by the parliament?

Do you believe that this country operates under the rule of law?

Implicitly, you agree with the Full Federal Court’s construction of the unlawful termination section of the Workplace Relation Act 1996 (the WR Act) that “filing of a complaint” means filing complaint “only to a Court or Tribunal”. That means employees have to follow any unlawful instructions given by the employers if they do not want to be understood as breaking the relationship between the employees and employers and to be retaliated by the employers. Once employees follow unlawful instructions, the employees will take all responsibilities of their unlawful activities under the Constitution. The employers can excuse themselves by saying that the employees should inform the employers that those activities are unlawful activities and refuse to carry out them because the employers do not know the matters in great details.

In previous letter I wrote: “we have asked many solicitors whether a court can directly deal with workers’ complaints about their bosses’ unlawful instructions and activities before they are dismissed, but no solicitor has told us that a court can do so. Therefore, Australian workers have no legal right to uphold and obey laws in the workplaces at all in accordance with that law made by the Full Federal Court in the Judgment of Hilda’s case”. Mr Briggs does not say our opinions are incorrect. He does not deny that the matter is that an accountant has been retaliated after she had refused to follow unlawful instructions, and that the Full Federal Court holds that she is not protected by the unlawful termination section of the WR Act because she did not complain about her superiors’ unlawful instructions to “a Court or Tribunal” before she was dismissed. Mr Briggs fails to point out what kind of “strong protection” has been given to Hilda after she complained her superiors’ unlawful instructions, which is a common ground accepted by both of the Courts and the employer.

The judgment given to Hilda is that her activities against her superiors’ unlawful instructions and dismissal are “vexatiously or without reasonable cause” so that she has to pay the employer, who concedes unlawful instruction has been given to her, its legal costs. Apparently, Mr Briggs holds to the effect that those are “strong protection for” her constitutional rights at work. However the facts are that her employer has been given “strong protection for” its unlawful instruction and activities by allowing it to lawfully dismiss Hilda because she had insisted that she had the right to obey law at work under the Constitution.

Implicitly, you know, employees can be lawfully dismissed after they complain to the Workplace Ombudsman in accordance with the case law made by the Full Federal Court in respect of Hilda’s matter because Ombudsman is not “a Court or Tribunal”. Put another way the Workplace Ombudsman has to act “in accordance with that law made by the Full Federal Court in the Judgment of Hilda’s case”. If I understand your meanings wrongly, please correct me.

While employees have no right to uphold and obey law at work why does the government make so many laws to request the people at work to following, and punishes workers in the name of the laws.

While we may understand that some case laws made by the courts are not right and that some laws proposed by the government and approved by the parliament are not perfect, however, we can not understand that the government has no intention to uphold people’s constitutional right at work to obey the laws made by the government.

Public importance of the matter

A swathe of corporate scandals has occurred in the past few years, which has eroded confidence in the business community. There is a widespread crisis of faith in corporate ethics – especially since the collapse and exposure of criminal activities of HIH, Ansett and One-Tel in the domestic sphere, and AWB in the international sphere, Obviously, without protection from the legal system no corporate ethics can exist.

Further, every year numerous accidents harm the workers, the public and the environments. One may question why the people at work do not do anything to prevent it happening. The reality is that the people at work have no right to prevent those things happening in many of those events and accidents and many employees have had to resign because they simply do not want to do bad things.

Covering Clause 5 of the Australian Constitution provides: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State”.

Many people, politicians and organizations have supported our petition for people’s fundamental constitutional right to obey law at work. On 7 August Mr Tony Cdevitt of your office argued that we had only got supports from left. Obviously, he believes that the Democratic Party and the Uniting Church are left and you will not uphold anything from left.

I am surprised that you of all people, including Liberal and The Nationals MPs so far, believe to the effect that it is “strong protections for employees” that employers can lawfully dismiss employees who have complained about and refused to follow the employers’ unlawful instructions in accordance with the law made by the Full Federal Court. If I am wrong please correct me.

It is ironic that ordinary people believe that this country is operated under the rule of the laws and have to persuade the governments that the people at work must have the right to uphold and obey the laws made by the government. We cannot believe that it is the reality and that nothing can be done to change it. If there were no Cover Clause 5 of the Constitution and the laws made by the government we would not have been in the “catch 22 situation”, please help people at work out of the dilemma.

If you are not going to actually abandon both of the Cover Clause 5 of the Constitution and the laws made by the government, please intervene in the matter in relation to the case law made by the Full Federal Court, which is employers can legally dismiss their employees who have complained about their bosses’ unlawful instructions and activities to the employers and relevant external organizations and authorities.

(file below are downloadable as .jpg files)

Letter from the Prime Minister's senior adviser of 13 August 2007