Australians’ Constitutional Right to Obey Law has been Affected

The former chair of Senate standing committee on employment, workplace relations and education, Senator Troeth, does not deny that the Judgment of Hilda Zhang’s case has affected all Australians’ right to obey law at work but refused to do anything about it.

Before the election I contacted Senator Troeth in relation to the petition. Her response was she followed the government’s decision.

On 1 December 2007, she declared at The Age that she was silenced by the Liberal, and ‘Lib must heed the grassroots voices’. Therefore, I raised the petition issue to her by an email of 17 December 2007.

A. Senator Troeth’s reply of 21 December 2007 through her staff, Mr Minas

1. “Having read Zhang’s cases, as well as the High Court transcript, it would appear that the legal issues involved were straightforward and were fully dealt with.”

2. “The first goal of the petition, to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’, presupposes that such rights, insofar as they exist, are not presently being upheld. No evidence to support that proposition is before us.”

3. “The second goal of the petition is to ‘ensure that the Attorney General of Commonwealth responds to Hilda Zhang’s Notice of A Constitutional Matter … and intervenes [in] the matter in the High Court’. While the executive arm of government is ultimately accountable to the legislature, it would be quite extraordinary for the Parliament to compel the Attorney-General to take action in an operational matter, and no sufficient justification for such a radical departure is before us.”

4. “Further, as you would be aware, the sections of the Workplace Relations Act 1996 (Cth) that were litigated in Zhang’s cases (ss 170CK(2)(e), 170CR, 170CQ) no longer form part of the Act. Part 9.4AAA of the Corporations Act 2001 (Cth) may be of interest to you: it provides certain protections for company employees making internal disclosures within a company.”

5. “In any event, Senator Troeth is not a member of the new, Labor Government. In your latest email, you state that your goal is for the Government to seek an opinion from the High Court regarding what you term the ‘constitutional right at work’. Given this, I could only suggest that you bring your concerns to the attention of Labor parliamentarians, in particular the Commonwealth Attorney-General, Mr Robert McClelland, and the Victorian Attorney-General, Mr Rob Hulls.”

B. My reply of 8 January 2008 to Senator Troeth’s response of 21 December 2007

(a) In response to the 1st point

The Federal Court’s “decisions make it straightforward and clear that ‘the file of a complaint’ is ‘only to a Court or Tribunal’. It is the ‘straightforward’ point that the petitioners request Senators to consider.”

"Mr Minas seems to assert that the High Court transcript deals with the issue (‘the filing of a complaint’ is ‘only to a Court or Tribunal’) ‘fully’. If I interpret it wrongly, please correct me. I really need your help to point out where the High Court deals with the issue ‘straightforward[ly] and fully’ in the High Court transcript.

"The petitioners request the High Court to deal with the issue straightforwardly and fully."

(b) In response to the 2nd point

"the second paragraph of the ‘Background of the petition’:
'In the Federal Court, a judge characterized Hilda’s complaint as ‘only in the capacity as employee’ and the employer’s counsel conceded that: ‘the illegality is in fact on the part of the employer’. However the Federal Court struck out her claim of unlawful termination of employment, which was certified by the Industrial Relations Commission. A Full Court dismissed her appeals, holding her claim ‘had been instituted vexatiously or without reasonable cause’ because she did not file a complaint against her boss’s unlawful instructions and activities ‘to a Court or Tribunal’ before she was terminated.”

"We have sought legal advices. We have been told: an employee has three options while his/her boss give him/her unlawful instruction:

· If you want to keep your job because you have to support your family and to pay mortgages, you have to shut up and to follow all unlawful instructions given to you
· You can resign and that will be easy for you to find another job
· If you complain about your boss’s illegalities, you will be dismissed legally (or the legal system will cannot protect you from the retaliatory dismissal anyway).

"Please kindly advise what kind of particular evidences do you need if you believe that above evidences cannot been counted."

(c) In response to the 3rd point

"Based on the facts:

a. Hilda had made complaints ‘in the capacity as employee’ as said by the Judge
b. ‘the illegality is in fact on the part of the employer’ as said by the employer’s barrister

"Hilda’s claim of unlawful termination had been characterised as being 'instituted vexatiously or without reasonable caus' in Zhang’s decisions because she did not complain to ‘a Court or Tribunal’ before she was terminated. The decisions do not uphold people’s constitutional right to obey law at work and apply to all workers in Australia. We really have difficult to understand why this is not the kind of ‘quite extraordinary [matter] for the Parliament to compel the Attorney-General to take action in an operational matter’.

"We understand that employees should not complain about their employers’ illegalities if the Constitution does not request people to do so, and/or if there isn’t any laws made by the Government and Parliament, which request employees to follow the laws at the first instance. We will appreciate if you help us to understand this issue that workers’ moral and legal obligations in relation to the Constitution, the laws and regulations.

"The former Victorian shadow Attorney-General and Industrial Relations, Mr Andrew McIntosh MP did not think that workers should first complain to ‘a Court or Tribunal’ about employers’ illegalities.

"We know Members of Parliament and Senators’ routine jobs are to question the Government in operational matters and to keep it accountable. Parliament Hansard records all inquiries. We could not understand why Mr Minas states to the effect that Members of Parliament and Senators should not make an inquiry about the Government’s operational matters."

(d) In response to the 4th point

"a. the former s 170CK(2)(e) is s 659(2)(e) of the Act [Work Choice]
b. the former s 170CR is s 665 of the Act in relation to s 659(2)(e)
c. the former s 170CQ is s 664 of the Act in relation to s 659(2)(e)’

"s 1317AA(1)(b) [Part 9.4AAA of the Corporations Act 2001 (Cth)] defines what is disclosure, which is equal to ‘the filing of a complaint’ of s 659(2)(e) of the Workplace Relation Act 1996 (Cth), in workplace. That is why we say the interpretation of ‘the filing of a complaint’ as ‘only to a Court or Tribunal’ is incorrect."

(e) In response to Senator Troeth’s 5th point

"According to your article published on The Age on 1 December 2007, you were silenced because you were a Member of the Government. Now Mr Minas advises me to the effect that you have no responsibility to speak out for the grassroots because you aren’t ‘a member of the new, Labor Government’. These really confuse me. Could you please kindly clarify your attitude toward the ‘grassroots voices’?’

C. Senator Troeth’s reply of 17 January 2008

1. "Nor can the Parliament, or an individual parliamentarian, compel the judiciary to create or to recognise a constitutional right. Any attempt to do so would be wholly improper. Nor can a petition, whether supported by parliamentarians or not, compel a court to take a particular position on a question of law, or to reverse an earlier position."

2. "it is unclear how and where the Constitution could provide for a ‘constitutional right to obey law at work’, which you seem to suggest is a right granted by the Constitution to employees that can be enforced against employers."

D. My reply of 22 January 2008 to Senator Troeth’s response of 17 January 2008

(a) In response to the 1st point

“The petition raises awareness to the situation that Australians have no right to obey the laws and Constitution at work, and seeks such right under the Constitution.

“Accordance to the advice of the High Court Registry, the Parliament and Government are able to request the High Court to finally arbitrate whether the unlawful termination laws [need to be amended], or whether the Full Court’s interpretation of the laws [needs] to be set aside if the Parliament has no intention to:
a. Request Australians to complain [about] workplace illegalities first ‘to a Court or Tribunal’, and
b. Enact the laws to allow Australians to complain workplace illegalities: ‘to a Court or Tribunal’ or, in effect,
c. Request Australians to follow unlawful instructions at work

“Put another way, the High Court can arbitrate the argument of whether it is that the unlawful termination laws technically disallow people at work to obey law or that the Full Court’s interpretation of the laws technically disallow[s] people at work to obey law. If the High Court hold[s] a law is unconstitutional, the Government and Parliament are bound to change the law in accordance with the Constitution. If the High Court hold[s] the interpretation of the laws is unconstitutional, the interpretation will be set aside.”

(b) In response to the 2nd point

“Cover clause 5 of the 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 and of every part of the Commonwealth’.

“Implicitly, ‘people of every State and every part of the Commonwealth’ include people at work. Therefore, we believe that the Constitution gives the Commonwealth power to enforce the laws at workplace (i.e., to protect people who obey the laws from retaliatory measures, and to punish people who breach the laws). I mentioned Cover Clause 5 of the Constitution in my email of 2 October 2007 and quoted it in the attachment to the email.

“While Hilda appealed the primary decision to a Full Court on the ground that she had a right to obey law at work under the Constitution, The Full Court did not directly answer the question of whether she had a right to obey law under the Constitution, but held her appeal was ‘vexatiously or without reasonable cause’. If the Full Court held that Hilda had no right to obey law at work, the Full Court would have dealt with it directly and declared that she had no constitutional right to obey law at work. However, the Full Court declared that Hilda had no right to claim unlawful termination because she did not file a complaint against her superiors’ illegalities ‘to a Court or Tribunal’ before she was terminated.

“If we reasonably assume that the Full Court did not ignore Hilda’s appeal ground on her right to obey law at work under the Constitution, implicitly, the Full Court held to the effect that Hilda were unable to claim her constitutional right because the Parliament had the intention to put a condition (i.e., ‘the filing of a complaint’ was ‘only to a Court or Tribunal’ before a termination of employment) to claim such constitutional right. Put another way, the Full Court hold to the effect that the Parliament wants Australians at work to follow unlawful instructions given by their bosses because the Parliament has not enacted the laws that allow a worker to file a complaint against his/her boss’s illegalities ‘to a Court or Tribunal’ before his/her termination if the illegalities are not due to the worker’s age, sex, race etc.”

“We cannot believe that the Parliament has no intention to protect people’s right to obey law at work from retaliatory dismissal. We believe that the Parliament has genius intention to protect workers’ right to obey law from retaliatory dismissal. We believe the Full Court’s decision (interpretation) has caused constitutional problem. Therefore, we appealed the Full Court’s decision to the High Court.

“If the High Court held that Australians have no right to obey law at work under the Constitution, the High Court would have said so straightly in its transcript. If the High Court held that workers have to complain against their employers’ illegalities ‘to a Court or Tribunal’ before having the right to be protected from retaliatory dismissal, the High Court would have said so clearly in the transcript.”

“the question of whether Australians at work have a right to obey law under the Constitution is put clearly and straightly to the Full Court, the High Court and the Attorney-Generals elected, none of them has denied or doubt that Australians have constitutional right to obey law at work. Further, as discussed above, we believe the Cover Clause 5 of the Constitution has clearly and straightly granted employees a constitutional right, ‘that can be enforced against employers (illegalities)’. Obviously, if Commonwealth has no constitutional power to request Australians to obey law at work and Australians have not been granted constitutional right to obey law at work, we cannot say that Australian operates under the rule of law.”

E. Senator Troeth’s reply of 31 January 2008

1. "the question of whether an employer or work superior can lawfully order an employee to commit an offence is not an issue of constitutional law. Rather, it would appear to be a matter for state (Victorian) criminal law. Section 321G of the Crimes Act 1958 (Vic) provides:
'where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by-
(a) the person incited;
(b) the inciter; or
(c) both the inciter and the person incited-
'if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.
'(2) For a person to be guilty under subsection (1) of incitement the person-
(a) must intend that the offence the subject of the incitement be committed; and
(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.
'(3) A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.’
"This would appear to be a full answer to the question of whether an employer can lawfully displace the duty of an employee to obey the laws."

2. "One final comment regarding the legality of internal complaints (i.e. complaints made within the company hierarchy): As previously stated, Part 9.4AAA of the Corporations Act 2001 (Cth) provides protection for persons who make certain internal disclosures. However, it appears that no party to the Zhang proceedings raised Part 9.4AAA at any stage, so the relevance (if any) of Part 9.4AAA to Mrs Zhang’s situation has not been determined."

F. My reply of 2 February 2008 to Senator Troeth’s response of 31 January 2008

(a) In response to the 1st point

“In Hilda Zhang’s case, Hilda was not incited by her bosses. Her bosses instructed and coerced her to follow unlawful instructions. Further, if someone argues that ‘people of every State and every part of the Commonwealth’, which is referred to in Cover Clause 5 of the Constitution, does not include people at workplaces, similarly, ‘a person’ and ‘any other person’, which are referred to in Section 321G Incitement of the Crimes Act 1958 (Vic), does not include a person and any person in workplaces.”

(b) In response to the 2nd point

“section 659(2)(e) of the Workplace Relations Act 1996 (the WR Act) provides general protection for persons who make internal disclosures under the Constitution.

“All unlawful termination laws have been consolidated by section 674(2) of the WR Act, ‘An employee must not commence other termination proceedings in respect of a termination of employment if an application alleging unlawful termination of the employment has already been made’. Once employees have been denied their right to obey law under the WR Act, their rights under other laws have been decided as well. Implicitly, in section 674(2) of the WR Act, the Parliament considers that all unlawful termination laws provide same protection for workers, and that there is no need to claim unlawful termination under different laws made by the same Parliament (in case of the laws made a State, Commonwealth laws prevail over the States laws under the Constitution).”

“The Full Federal Court’s interpretation of s 659(2)(e) of the WR Act is apparent inconformity with Part 9.4AAA of the Corporations Act 2001 (Cth)(s 1317AA(1)(b)). If agreeing with the Full Court’s interpretation of s 659(2)(e) of the WR Act, the Parliament needs to alter s 1317AA(1)(b) of the Corporations Act 2001 (Cth). If the Parliament holds that the Full Court’s interpretation of s 659(2)(e) of the WR Act is justified under the Constitution, obviously, it is legitimate to say that s 1317AA(1)(b) of the Corporations Act 2001 (Cth) is unjustified under the Constitution.”

"Fortunately, you were the Chair of the Senate Workplace Relations Committee when Work Choice was passed in 2005. You clearly knew what the Senate’s intentions were when the laws were scrutinised by the Senate Standing Committee on Workplace Relations. A question is whether you agree with the Full Court’s interpretation. If you agree with the Full Court’s interpretation, I would like to know the reasons.

"Under Cover Clause 5 of the Constitution, Judge and Court are bound to interpret the laws correctly. If the Parliament disagrees with a Court’s interpretation of the laws, the High Court will provide final arbitration. As mentioned in previous email, if the High Court holds that the Parliament fails to express its intention properly, the Parliament has to alter the laws and to express its intention properly; if the High Court holds that a Court’s interpretation is wrong, the Court’s decision will be set aside."

"As discussed insofar, the point is whether you and Senate Standing Committee on Workplace Relations accept that Australians’ complaints against workplaces illegalities to be filed ‘only to a Court or Tribunal’. If the Senate Standing Committee on Workplace Relations considers that the Full Court’s interpretation reflects the Parliament’s intention correctly, a question is whether you and your parliament colleagues have forgot to enact any laws to allow Australians’ complaints against workplace illegalities to be filed ‘to a Court or Tribunal’ in ordinary situations.

"My understanding is that if considering the Full Court interpreted the Parliament’s intention correctly, you would have advised me that what we were doing was vexatious ‘or without reasonable cause’."

(files below are downloadable as .doc files)
Email to Senator Troeth of 02/10/07
Email to Senator Troeth of 17/12/07
Reply from Senator Troeth of 21/12/07
Email to Senator Troeth of 08/01/08
Reply from Senator Troeth of 17/01/08
Email to Senator Troeth of 22/01/08
Reply from Senator Troeth of 31/01/08
Email to Senator Troeth of 02/02/08
Reply from Senator Troeth of 15/02/08