Email of 3 April to Secretary of Senate committee on Workplace Relations

I refer to the matter above and our communications in March. You advised me that it was improper for the Senators to inquiry about the Government’s business and a matter that had been before the Courts. An email to that effect had been sent to all Committees. So having concern over your advice I asked you to disclose your email and the source of your information. You advised me to wait the Committee’s formal decision.

Believing the Committees must been fully informed, I would like to express my concerns.

One may say it is improper for the Senators to be too fussy about the Government’s business. As many Senators’ inquiries recorded in the Hansard, it is incorrect to say generally that it is improper for the Senators to inquiry about the Government’s business.

If inquiring the matter in relation to Australians' constitutional right to obey law at work, it might lead to:

a. enacting particular laws to allow Australians to complain about workplace illegalities ‘only to a Court or Tribunal’, if considering that it is constitutional, or
b. requesting the Attorney-General’s department to disclose its reasons for no intervention, if considering that ‘only to a Court or Tribunal’ is unconstitutional, and
c. assessing the reasons, and
d. amending the unlawful dismissal laws, if considering that they are unconstitutional due to the Full Court’s interpretation, which is legitimate, or
e. requesting the High Court to arbitrate whether the unlawful dismissal laws are unconstitutional due to the Full Court’s interpretation, if considering that the Government and Parliament have no intention whatsoever to request Australians complain about workplace illegalities ‘only to a Court or Tribunal’.

The Full Court’s interpretation requests Australians to complain about workplace illegalities ‘only to a Court or Tribunal’. As no laws allow and request Australians to complain about workplace illegalities ‘only to a Court or Tribunal’ for the moment, the legal loophole is that for the time being Australians cannot complain about workplace illegalities. Therefore, the unlawful dismissal laws with the Full Court’s interpretation deprive of Australians’ constitutional right to obey law at work.

The bizarre situation is all Australians including all lawyers have to follow the interpretation that no Parliamentarians agree with.

The 1st question is whether the Committees agree with the Full Court’s interpretation. Put another way, does the Government and Parliament have genius intention to request Australians to complain about workplace illegalities ‘only to a Court or Tribunal’? Labor Committees and Democrats Committee have supported the petition. Implicitly, they disagree with the Full Court’s interpretation.

The 2nd question is whether the unlawful dismissal laws with the Full Court’s interpretation diminish or deprive of Australians’ constitutional right to obey law at work. The Committees who have supported the petition apparently hold that Australians’ constitutional rights have been affected by the Full Court’s interpretation.

The 3rd question is whether the Government and Parliament ought to leave the unlawful dismissal laws with the Full Court’s interpretation there for the moment despite it has affected Australians’ constitutional rights. It might depend on an assessment of constitutional significance of the matter. The Committees who have supported the petition implicitly hold the matter has constitutional significance.

The former Attorney-General did not doubt that this was a constitutional matter and that Australians’ constitutional right to obey law at work had been affected by the Full Court’s interpretation. Deciding to wait and see (‘If special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’ is the formal response from Australian Government Solicitor in relation to the constitutional matter) means that the Attorney-General’s Department and Australian Government Solicitor did not deny the constitutional significance of the matter. However, they could not make a final decision for the elected former Attorney-General in relation to the constitutional significance of the matter.

The 4th question is what thing ought to be done about the matter, while it has constitutional significance. The petition request virtually:

1. the Government and Parliament to amend the unlawful dismissal laws in accordance with both of the Constitution and the Full Court’s interpretation, or

2. the Government and Parliament to request the High Court to arbitrate whether the unlawful dismissal laws or the Full Court’s interpretation is unconstitutional.

For the second request, the High Court Registry’s advice is that the Government and Parliament are able to request the High Court to do so.

The Attorney-General’s Department has not changed its decision to wait and see, and said, ‘no further question of intervention arises (from the Parliament) in relation to the matter. As a result, the Government can take no further action with respect to Ms Zhang’s application for unlawful dismissal’. If the Department held that the Parliamentarians could not raise further question of intervention, it would have said that no further question of intervention can be raised. Anyway, ultimately it is the Parliamentarians’ responsibilities to decide what is of public importance.

The 5th question is whether ordinary Australians and the Parliamentarians have moral, legal and constitutional obligations to respect and uphold laws and the Constitution, particularly when a matter affects themselves or their constituents. You are advising the Committees that it is improper for them to do anything even though they believe they have moral, legal and constitutional obligations to do something about it. Please kindly provide your reasons so we can fully discuss them. The Committees are entitled to make fully informed decisions.

Without fully addressing above issues, just saying, it is improper for the Senators to make any inquiry about the matter that had been before the Courts. It clearly suggests that the Senators have no moral, legal and constitutional obligations and legitimate power to make any inquiry about it. It is improper and may amount to misleading.

I would be more than happy to assist you and the Committees to be fully informed bearing in mind:

a. over 10 millions Australians’ constitutional right and the constitutional principle that this country operates under the rule of law are at stake

b. many people, organisations, political parties, parliamentarians and local governments have supported the petition.

Thank you very much for your information and advice. I look forward to hearing from you in respect to above concerns.