Email of 26 May to Secretary of Senator Committee on Workplace Relations

Dear Mr Carter

I refer to your letter of 15 May 2008. I don’t exactly know how you presented the matter to the committee. However, according to your letter, you have missed the most important issue of the petition, and made some apparent mistakes, which might amount to misleading conduct. So I have to provide correct information to the committee.

A. Unlawful dismissal or ‘unfair dismissal’?

2. You might say unfair dismissal cases have no constitutional connection. It clearly shows what your intention was. You are wrong to say Hilda Zhang’s case is an ‘unfair dismissal case’. Finkelstein J summarised the case as ‘termination of employment – unlawful reason’ in the judgment that you refer to. The petition states the case is an ‘unlawful termination case’. I cannot find where ‘the unfair dismissal case’ comes from and cannot figure out any reason for you to make such a mistake except you were trying to make misleading comments.

B. Whether ‘the issues have been fully covered’?

3. The first request of the petition is to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’. Your letter does not touch it let alone provides any response to the virtual question arisen from the first request, which is whether Australians’ constitutional right to obey the laws at work are ensured under Zhang v The Royal Australia]n Chemical Institute Inc [2005] FCAFC 99 (3 June 2005).

4. ‘Do you believe Australians ought to complain about workplace illegalities ‘only to a Court or Tribunal’?’ This is the last question I asked in my previous email of 5 May 2008. Maybe it is easier for you to ignore the Full Court’s interpretation of the unlawful dismissal laws in Zhang’s case, but unfortunately, no lawyers, no Australians at work can ignore the Full Court’s interpretation. This is the point of the petition. That is why so many people, organisations, political parties, parliamentarians and local governments have supported the petition. You do not show that you have turned your mind to this request. How can we reckon your letter as a ‘final’ response on the request?

5. While the Constitution requests Australians at work to obey the laws, the Full Court demands Australians to complain about workplace illegalities ‘only to a Court or Tribunal’. As no laws request and allow workers to do that, for the time being, Australians have no right to obey the laws at work in accordance with the Full Court’s requirement.

6. There are many reasons of why we want to stick to the principle. For example:
(1) If you were a worker who had been injured because his superior had breached safety regulation, you would have felt the pain due to no right to obey the laws at work
(2) If you were a retiree investing in HIH and OneTel, you would have lost your saving from your whole work life because the employees of HIH and OneTel had no right to obey the laws
(3) If you were a lawmaker you would have been frustrated realizing all hard work, generations’ struggle, had been undermined by wrongful interpretation
(4) Taxpayers will be disappointed to find out that millions dollars have been wasted on making laws that Australians at work have no right to obey at all
(5) As Australian you might feel to be shamed by AWB scandal because the employees of AWB have no right to obey the laws
(6) You might be overwhelmed by knowing Australians have no right to obey the laws at work if you respect the laws and Constitution.

7. Whether millions Australians have no right to obey the laws at work for the time being is an ‘extraordinary circumstance’? Please provide criteria for ‘extraordinary circumstance’.

8. We aren’t able to figure out the reasons of why you do not address the most important issue in the petition bearing in mind many members of the committee have supported the petition. Please provide reasons.

9. May I suggest: the reason is the matter is a serious and complex one and the committee needs extra assistance and time to conclude this request?

C. ‘The tenor of judicial comments’

10. Comparing the judicial comments in SZJIT v Minister for Immigration & Citizenship & Anor [2008] HCATrans 109 (29 February 2008) (the comments are:
‘The applicant’s draft notice of appeal does not advance any question of law that would justify a grant of special leave to appeal. There was no jurisdictional error in the conclusion of the Tribunal, and no reason to doubt the correctness of the judgment of the Federal Court’.)
with Zhang v The Royal Australian Chemical Institute Inc [2006] HCATrans 227 (10 May 2006), (the comment are:
‘The documents filed by the applicant do not demonstrate that there are prospects of her showing error in the reasoning of the courts below sufficient to justify a grant of special leave to appeal in any of the applications’.)
you will find that the judicial comments on Zhang’s case clearly suggest, or that you can readily deduce:
(1) The applicant advances some questions of law close to justify a grant of special leave to appeal, however due to no ‘sufficient’ evidences from neither the Government nor Parliament to ‘demonstrate’ that they did not agree with the Full Court’s interpretation let alone considered it was of public importance
(2) Nevertheless, there are reasons to doubt the correctness of the judgment of the courts below, and
(3) there are jurisdictional error in the conclusion of the courts below.

11. The judicial comments on Zhang’s case are the best tenor you can get when an application for special leave to appeal is dismissed.

12. If you say: the judicial comments on SZJIT’s case as mentioned above ‘suggest that no recommendation the committee might make to the Senate urging a plea to the Attorney-General would succeed’, it is not objective to deduce the same interpretation for the judicial comments on Zhang’s case as the judicial comments on SZJIT’s case are poles apart from the judicial comments on Zhang’s case.

13. Furthermore, the High Court’s wording is: ‘do not demonstrate’; however, you altered it to ‘fail to demonstrate’. (Is that a part of your misleading tactics?) As we had not got supported from any parliamentarians at that time, the High Court held to the effect that we ‘do not demonstrate’ ‘sufficient’ evidence to doubt that the Parliament would not accept the Full Court’s interpretation.

14. It was not: ‘fail to demonstrate’ because it was not our responsibility to demonstrate whether the Government accept the Full Court’s interpretation or not. Our duty was to provide our opinion. It is the Attorney-General’s responsibility to decide whether the Government accepts the Full Court’s interpretation and consider whether the constitutional matter is of public importance. It was the junior solicitor failed to raise the constitutional matter to the then Attorney-General, subsequently, the then Attorney-General failed to show ‘a desire to intervene’.

15. Another mistake is you state incorrectly that Justices Gummow and Hayden’s transcript for decision in relation to special leave to appeal is ‘the judgment’ of the case. To simply prove that you can search published judgments on the High Court’s website. There is no judgement for Hilda Zhang’s case. There is only transcript for decision on not granting special leave to appeal.

16. Ultimately, only the peoples’ representatives, the members of parliament, have the right, in a sense, to say what is the Parliament’s intention and judge what is of public importance. Now we have many parliamentarians’ support for the petition. That is ‘sufficient’ enough for granting special leave to appeal according to ‘[t]he tenor of the judiciary comments’.

D. The High Court Registry’s advice

17. The Registry’s advice does point out where the problem is: ‘s 78B notices were given’, but ‘No Attorney-General has indicated a desire to intervene’ as straight pointed out by the Justices.

18. Apparently you notice the High Court did not mention the Full Court’s interpretation of the unlawful dismissal laws, so follow suit. However, the difference is the High Court Registry subsequently directed us the proper way (even though it is a long way due to no intervention from Attorney-General) to solve the constitutional matter (by getting the Attorney-General’s intervention), but you show no attention to solve the constitutional matter by making misleading comments and errors and saying: ‘There is no further adviser or assistance we can offer you’.

19. Obviously the High Court leaves the Full Court’s interpretation to the Government and Parliament. Whether the Full Court’s interpretation is wrong or right is up to the Government and Parliament themselves. Is it correct to say the Full Court has interpreted the Parliament’s intention not the High Court’s intention?

20. The implication of section 78B of the Judiciary Act 1903 is the Government and Parliament keep the right to have a say in court what their intentions are with respect of the laws enacted by themselves. The High Court can reasonably assume that no response from the Attorney-General means that the Government has not got any problem with the Full Court’s interpretation. Knowing the Government agreed with the Full Court’s interpretation, the High Court still could not agree with it.

21. Could you please consider the questions below?

(1) What other thing could the High Court do as arbitrator when we argued the Full Court’s interpretation of the unlawful dismissal laws was incorrect and the Government apparently did not accept our argument by showing no desire to intervene, especially given the then Government was overhauling industrial relations laws at that time?

(2) Would the High Court be further frustrated if it assumed the Government deliberately put the High Court in the situation to guess what the Government’s intention would be?
In particulars
(a). In 2004 Senate inquired into legal aid and access to justice, and found at 10.48:
‘Judicial officers and registry staff experience high levels of stress and frustration when dealing with litigants in person, because of the difficulty of holding a fair balance between the represented and unrepresented parties.
The perceived tension between judicial impartiality and the need to help litigants in person meant that a number of judges and Registrars thought that their role as presiding officer was compromised by the presence of a litigant in person.’

(b). According to the Senate’s finding above, there are reasons, which are:
(i) ‘Judicial officers and registry staff experience high levels of stress and frustration’ and
(ii) ‘judges and Registrars thought that their role as presiding officer was compromised’,
for the High Court Registry to encourage us to question why the Attorney-General failed to show ‘a desire to intervene’ in the proceedings in relation to Australians’ constitutional right to obey the laws at work. To avoid unnecessary stress and frustration, and judiciary role to be compromised the High Court did not have choice except requesting us to first get the Government’s intervention.

22. If the Senate does not accept the Full Court’s interpretation, the then Attorney-General might excuse himself by saying that he did not make the decision. Could you find any reasonable excuse for the committee? (May I suggest your excuse for the committee may be: the committee only considers whether your letter itself is OK or not, nothing else. So you have to provide misleading information and disallow me to contact the members of the committee. Will constituents, who are overwhelmed, disappointed, shamed, frustrated and hurt, as outlined at [6] above, accept such excuse?) If you cannot find legitimate excuse to give to the constituents, the subsequent question is: do you want constituents to believe that the Senators in the committee accept the Full Court’s interpretation. If that is the case, constituents may ask:
a) why do parliamentarians make laws, when they do not give Australian at work the right to obey the laws.
b) does they just keep themselves busy and frustrate the High Court’s Justices and people who respect the laws and Constitution?

23. The Registry’s advice directs us toward the cause of the problem. The Government and Parliament take the final and paramount responsibility for telling what their intention are and for assessing what matter is of public importance, which is the criteria enacted by parliament for the High Court to grant special leave to appeal (sect 35A(a)(i) Judicial Act 1903, parliament does not request the High Court to deal with all questions of law arisen from courts below). The High Court Registry wants the Government and Parliament to take their duties. The Government has to be accountable to the Parliament. The Parliament has to be accountable to the constituents.

24. The implication of the Registry’s advice is the Registry’s understanding of the tenor of the judicial comment on the case is different with yours. The Registry’s advice suggests Senate urging a plea to the Attorney General can succeed. If your understanding is really different from the Registry’s, do you need to make misleading comments and errors?

E. ‘Context’ for ‘junior solicitor’

25. The junior solicitor stated: ‘If special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’. Clearly, the junior solicitor identified constitutional matter, and considered the High Court had reasons for granting special leave to appeal. However, he could not make a decision of intervention for the then Attorney-General. The then Attorney-General’s office’s advice is: no document showed that the Attorney-General decided personally not to intervene. It is clear the matter was not properly handed after the junior solicitor had verified the constitutional matter and considered the High Court might have reasons for granting special leave to appeal. The junior solicitor seemly suggested he did not have the capacity to bother the then Attorney-General to make the decision himself, (s 78A of the Judicial Act 1903 requests Attorney-General to make the decision.), if the High Court had granted special leave to appeal, the junior solicitor then would have had the evidence to request the Attorney-General to consider intervention.

26. What the junior solicitor did not know is it is incorrect to wait the High Court to express its opinion. The Attorney-General ought to express his opinion to the High Court because the High Court is arbitrator. The junior solicitor breached section 78B of the Judicial Act 1903 as he had no legitimate capacity to make such decision in respect of the constitutional matter?

27. The fact is the Attorney-General’s Department cannot provide any reasons for its decision not to intervene. Put another way they have no legitimate reason for not intervening. Is it strange that the committee does not want to find out why the decision was made without any legitimate reasons and how the matter was handed when it was relevant to Australians’ constitutional right to obey the laws at work?

F. Responses in principle from Senator Troeth, shadow WR minister and WR minister

28. The final words of Senator Troeth’s first response (email of 21 December 2007) are:
‘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’.

29. Having read my emails, Senator Troeth, in her email of 31 January 2008, expressed to the effect that she did not think, that ‘an employer can lawfully displace the duty of an employee to obey the laws’. Giving advice in respect of Hilda Zhang’s legal right, Senator Troeth expressed to the effect that justice had been denied Hilda Zhang.

30. Please verify whether those are the Senator Troeth’s principles you referred to.

31. The shadow minister for workplace relation, the Deputy Leader of the Opposition, states: ‘I believe that a number of the issues you raised with respect to the constitutional right to obey the law at work deserve some attention, especially given that, according to your correspondence, so many Labor member of parliament have previously support your petition’.

32. The minister for workplace relation, the Deputy Prime Minister, states: ‘I am advised that the Office of the Attorney-General informed you …… no further question of intervention arises 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. In addition, Senator Marshall has advised me that your petition was presented in the Senate on 11 September 2007. …… The committee will decide whether further action will be taken in relation to the petition’. She clearly suggests: if the committee does not ‘fail to’ raise ‘further question of intervention’, the government can take further action. The Attorney-General’s Office’s advice suggests they understand ‘the tenor of the judicial comments on the case’ is the Senate urge a plea to the Attorney General can succeed.

G. Summary

33. Do you believe: all Senators really want Australians at work have right to obey the laws passed by them? If your answer is: yes, or unclear in one way or another, we will try our best to assist you and the committee members to understand the matter for the best interest of Australians and the committee because workers have been denied justice due to no right to obey the laws.

I hope the above responses are helpful and look forward to hearing from you.

Yours sincerely


Daming He

Cc: members of committee

(files below are downloadable as .jpg files)

Mr John Carter's letter of 15 May 2008 P1, p2