Response to Ms Julia Gillard MP’s reply of 12 September 2007

Dear Ms Gillard MP,

Thank you for replying so promptly to my enquiries through your adviser, Ms Adams. We have carefully considered your concerns and are pleased to make following reply.

A. Whether it is appropriate for Federal Labor to raise the issue in the Parliament that people at work should have the right to obey laws under the Constitution?
a. Your advices

1. In my email I did not specify what kind of actions that we expect Federal Labor to take because we assume Federal Labor knows what kind of things are able to do to enhance people’s right to obey law at work under the Constitution. Your responses were: firstly, “as the Federal Opposition, Labor does not have standing to intervene in the High Court proceedings” (directly), secondly, “It would also be inappropriate for Federal Labor to comment on proceedings which are currently before the Court” (even if Federal Labor wins the next election and has “standing to intervene in the High Court proceeding”). If I understand wrongly, please correct me.

2. Under your leadership Federal Labor commented on David Hick’s case when it was before the American Court. If I am wrong, please correct me.

b. Sect 78A of the Judiciary Act 1903

3. “Intervention by Attorneys-General
(1) The Attorney-General of the Commonwealth may, on behalf of the Commonwealth, and the Attorney-General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal Court or any Court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation.
……” (bold added).

c. Sect 78B of the Judiciary Act 1903

4. “Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a Court of a State or Territory 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 Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
……
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
……
(b) may direct a party to give notice in accordance with that subsection; and ……
(3) For the purposes of the subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of the Attorney-General;
……” (bold added).

d. The High Court must give the Attorney General the opportunity to intervene in the matter

5. The High Court has issued Notices of a Constitutional Matter to the Federal Attorney General in relation to Hilda’s case in accordance with s 78B of the Judiciary Act 1903 because the High Court recognises “a matter arising under the Constitution or involving its interpretation” (see [4] above).

e. The High Court Registry holds that the Government and the Parliament can require the High Court to hear the appeals on the ground of public importance

6. The High Court Registry has advised us that the governments and the parliaments are able to request the High Court to dealing with the matter if they disagree with the Full Federal Court’s construction of the laws, which have been proposed and approved by themselves. So far, the advice given by the High Court Registry has not been directly challenged including the Attorney General.

7. The 1st question is whether Federal Labor holds that the advice given by the High Court Registry is correct.

B. Previous emails from you and your office
a. You email of 20 December 2006

8. Ms Adams mentions the previous emails from you and your office. You stated, in your email of 20 December 2006, “I am working hard on Labor’s industrial relations policies including ensuring workers get appropriate and fair protection from unfair dismissal” (bold added), in response to our particular inquiries in relation to protection from unlawful dismissal.

9. The 2nd question is whether you hold that once a worker claims an unlawful dismissal, the dismissal must be fair, therefore, it is not the thing that you care about. We believe that an unlawful dismissal must also be an unfair dismissal and over the top of unfair dismissal.

10. You might believe unlawful dismissal should be fully covered by the government. The government might consider if the Labor does not care about unlawful dismissal, certainly, they are too busy to care about it because the foremost task for the Coalition is to ensure that employers get the liberty to do what they want to do even though they are against the laws that the government requests everyone to obey.

11. The 3rd question is whether “Labor’s industrial relation policies”, on which you are “working hard”, “including ensuring workers get appropriate and fair protection from” unlawful dismissal.

b. Comments from your office about the findings of the Courts and the Commission

12. Ms Adams states: “I am aware that our office has previously provided you with comments about the findings of the Federal Court and the Australian Industrial Relations Commission in relation to the particular wording of the Workplace Relations Act as it stood at the time”. I did not have any “comments about the findings of the Federal Court and the Australian Industrial Relations Commission” from your office in relation to the matter. If your office can find any such comments, could you please forward to me?

13. Anyhow, the only email from your office of 14 July 2006 stated: “As the content of the petition does not fall within Julia’s portfolio, and you are not living her electorate, she will not be able to act on this matter. As you claim in your correspondence to already have the support of Ms Nicola MP, this should be enough support for your situation”.

14. Except your email of 20 December 2006 mentioned at [1] above, another email from you of 24 July 2006 stated, in response to my concerns, “I will continue to devote my time to defeating the Howard Government and ensuring that an incoming Labor Government can rip up John Howard’s extreme industrial relations laws”. In my email to you of 9 March 2007, I commented on your above declaration, “You seemed to hint that the case law made by the Full Federal Court was not an extreme law in respect of industrial relation, and that you could accept that people had no right to obey law at work under the Constitution. If I am wrong please correct me”. You have not replied to my comment yet.

C. Constructions of the Constitution and the unlawful termination law
a. Cover Clause 5 of the Constitution

15. “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;……”

b. Unlawful termination law

16. s 635 of the Workplace Relations Act 1996 (the WR Act) (It was s. 170CA before 2006):
“Object
(1) The principal object of this Division is:
……
(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention.
……” (bold added).

17. s 659 of the WR Act 1996 (It was s 170CK before 2006)
“Employment not to be terminated on certain grounds
(1) In addition to the principal object of this Division set out in section 635, the additional object of this section is to make provisions that are intended to assist in giving effect to:
……
(2) ……an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
……
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
……” (bold added).

c. The finding of the Australian Industrial Relations Commission

18. The “findings of” “the Australian Industrial Relations Commission in relation to the particular wording of the Workplace Relations Act as it stood at the time” (the section of unlawful dismissal has not been changed) is “based on the conflict of the factual situation and the need to hear evidentiary material the Commission is unable to issue an opinion”. Therefore, the Commission has certified that evidentiary material need to be examined on the Court. The Commission’s certificate is attached.

19. Implicitly, the specialized Industrial Relations Commission holds Hilda has met the criteria of claiming unlawful dismissal. Put another way the Commission holds to the effect that Hilda has been unlawful dismissed if relying on the “factual situation” provided by Hilda in accordance with section 635 of the WR Act (s. 170CA of the WR Act before 2006) (see [16] above).

d. The finding of the Federal Courts

20. By contrast, the Federal Courts, without precedent, strike out Hilda’s application certified by the Commission before trial and hold that Hilda’s claim was instituted “vexatiously or without reasonable cause” because she had not complained about her superiors unlawful instructions and activities to “a Court or Tribunal” before she was dismissed, even though the primary judge has recognized “in this case she's complaining to a person that - to an organisation that looks [a]fter workers that she's being forced to carry out her duties illegally” and “The complaint, however I characterise it, is only in the capacity as employee seeking relief as employee”, and the employer’s counsel has conceded that: “the illegality is in fact on the part of the employer, not on her part”.

21. The Full Federal Court construes s 659(2)(e) of the WR Act (see [17] above), “the filing of a complaint”, as “only to a Court or Tribunal”. In our opinion, if it does not clarify, the WR Act only deals with the matters that happen at workplaces. For instance, this subsection specifies “or recourse to competent administrative authorities”; if both of the Government that proposed the WR Act and the Parliament that approved the WR Act meant filing “only to a Court or Tribunal”, it would certainly have put the word on the subsection. Put another way, if it is “filing of a complaint” “only to a Court or Tribunal”, it contradicts to filing of a complaint (“recourse”) “to competent administrative authorities”. Further, before she was terminated, Hilda had filed complaint to Australia Taxation Office and Victorian WorkSave, which are “administrative authorities”.

e. Wordings of the Report of Committee of Experts

22. s 659(2)(e) of the WR Act is enacted because of Australia’s international obligation under the Termination of Employment Convention (see [16] above). The Full Federal Court declares that its construction of “filing of a complaint” is according to International Labour Conference ‘Protection against Unjustified Dismissal’ Report of Committee of Experts (the Report). The Full Federal Court refers to paragraphs 115-117, but does not quote any parts of those paragraphs. At paragraph 116, it states, “Protection of this kind can be established through provisions to protect workers against retaliattory measures when they try to defend their right under the Constitution, the Labor Code or other legislative provisions. Thus, in a growing number of contries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meeting standards set by law, discriminatory practices in employment or non-compliance with occupational safety and health provisions. ……” (bold added). The Report uses “denounce” to explaining “filing of a complaint”. Implicitly, the denouncing is to the management at workplace and impossible “only to a Court or Tribunal”.

23. It seems that the Full Federal Court tries to construe the protection as witness protection in proceedings in court. However the Report clarifies that the protection is “to protect workers against retaliattory measures when they try to defend their right under the Constitution, the Labor Code or other legislative provisions” not under Witness Protection Act.

D. The Federal Government’s response to the case law made by the Full Federal Court
a. The Attorney General fails to indicate a desire to intervene in the matter and to provide any reasons for not intervening

24. Under s 78A of the Judiciary Act 1903 the Attorney General can intervene in proceedings in courts if the proceedings “relate to a matter arising under the Constitution or its interpretation” (see [3] above). The Attorney-General has declared that he made “a technical assessment of the constitutional significance of the proceeding” and decided that he would not intervene in the proceeding except the High Court granting a special leave to the appeal. Implicitly, he means that it does not have “constitutional significance” that people have no right to uphold and obey the laws at work even though the Cover Clause 5 of the Constitution requests people to do so.

25. The Full Federal Court’s construction of unlawful termination section of the WR Act deprives workers of the fundamental constitutional right. Federal Government does not deny that case law is wrong. More than 50% Australian are workers. All workers have no right to obey the laws in accordance with that case law. Therefore, the majority of Australian people at 9:00am to 5:00pm in weekdays have no right to obey both of the Constitution and the laws. We cannot figure out why the Attorney General declares that it is not something with “constitutional significance” or public importance. The Attorney-General does not tell his reasons.

26. Through the petition, we have collected evidence that the public believe that people’s right to obey the laws at work is of public importance and needs to be considered by the Federal Parliament. Many people, organizations and politicians support the petition. By contrast, the Attorney General has not given any reasons why he holds that that people at work have no right to uphold and obey law has no “constitutional significance”. (Please refer to my letter to the Attorney General of 27 August 2007, which is attached to previous email.).

27. The Attorney-General’s department has advised me to the effect that no such “technical assessment of the constitutional significance of the proceeding” exists at all, in response to our request to disclosing the reasons for the Attorney-General’s decision under the Freedom of Information Act 1982. Therefore, the Attorney General apparently knows that he has not had any grounds for not intervening in the proceeding. Obviously, he hints to the effect that there is no need to provide any reasons for his decision because he believes people are silly to consider that the laws and the Constitution are significant enough to be obeyed at work, to argue their obligation in the Court and to raise the matter to him.

b. The Prime Minister holds that the request to filing of complaints “only to a Court or Tribunal” is “strong protections for employees”

28. The Prime Minister holds to the effect that the case law made by the Full Federal Court in relation to Hilda’s matter is “strong protections for employees”. We could not understand how the Prime Minister reasons his conclusion. It only makes sense if we treat employers as dangerous armed criminals. It is similar to the police require people never confront with dangerous armed criminals, which is for the safety of the people.

29. However, we do not know any governments’ documents warning the safety of the workers who “denounce” the employers who breach laws or regulations. We believe that the case law is strong protection for employers who breach the laws, and encourages employers to disregard the laws approved by the Parliament.

30. The 4th question is whether Federal Labor believes that the case law is “strong protections for employees” who try to obey the laws or “strong protections for” employers who breaches the laws.

c. No government documents have ever informed that employees should complained their employers’ illegalities "only to a Court or Tribunal”

31. We have not found any documents ever suggest that employees should complain their superiors’ illegalities, in general circumstances, before the employees are dismissed, to “a Court or Tribunal”, let alone “only to a Court or Tribunal” except the Full Federal Court’s judgment in relation to Hilda’s case.

d. The WR minister does not find any laws that allow employees to complain about their employers’ unlawful instructions “to a Court or Tribunal”

32. The minister for Employment and Workplace Relations has not found any laws, which allow employees complaining their employers’ illegalities “to a Court or Tribunal”, even though he mentions that an employee can pursue an unlawful dismissal claim because he or she has lodged a complaint with the Human Right and Equal Opportunity Commission on the ground of unlawful discrimination because their race. So far, according to the minister’s findings, if an employee cannot prove that the employer’s unlawful instructions and activities are because of the employee’s race, the employee’s has to follow the employer’s unlawful instructions and cannot complaint about the employer’s illegalities. The minister has not expressed that he has any concerns about it.

e. Federal Government understands the case law made by the Full Federal Court is wrong

33. If Federal Government had held the Full Federal Court’s construction is correct it would have informed all employees that they should complain their employers’ illegalities “only to a Court or Tribunal”. Even though the Prime Minister holds to the effect that the case law is “strong protections for employees”, but the Federal Government has not informed all employees such “strong protections for employees” are available. Obviously, the Federal Government understands the case law is wrong. That is why it does not follow the Full Federal Court’s construction to informing all employees such important information.

f. Federal Government does not believe this country operates under the rule of law

34. As outlined above the Federal Government does not care that people at work cannot obey the Constitution, but on the other hand, encourages employers to breach the laws by providing “strong protections” for them. That is the reason why the Attorney General, with a sublime disregard for the Cover Clause 5 of the Constitution, does not want to indicate a desire to intervene in the matter in the High Court for people’s right to obey the laws at work under the Constitution even though he is paid to uphold people’s right under the Constitution.

E. Appropriate questions to the Attorney General

35. The 5th question is whether Federal Labor holds that it has “constitutional significance” or public importance in accordance with Cover Clause 5 of the Constitution that people have no right to uphold and obey the laws at work.

36. The 6th question is why the Attorney General fails to take the opportunity to correct the mistake made by the Full Federal Court while the High Court invites him to do so. One of the possible answers is that the Attorney General is more than happy to keep it as long as possible because it encourages the employers to breach the laws approved by the Parliament, and provides much more liberty for employers.

37. The 7th question is whether Federal Labor holds that the Attorney General has failed his duty to uphold people’s right at work as he fails to show any intention to intervene in the matter without any reasons.

38. The 8th question is whether Federal Labor holds that the Attorney General has a duty to provide reasons for his decision of not intervening in the matter.

39. The 9th question is whether Federal Labor ought to question the Attorney General about the matter because workers’ rights are Labor’s soul and heart, if Federal Labor believes the case law has “constitutional significance”.

F. What thing can been done while the case law is at odds with both of the WR Act and the Constitution
a. Whether the Federal Government should propose a law allowing employees complain “only to a Court or Tribunal”?

40. Obviously, the case law made by the Full Federal Court creates a legal loophole, which puts employees in predicament. After the Full Federal Court had made the case law, Federal Government should have proposed a law that allows employees to file complaints against their employers’ unlawful instructions and activities. That is one of the evidence that suggest the Federal Government has known the case law made by the Full Federal Court is wrong. That is why it does not propose the law, which allows employees to file complaints against their employers’ unlawful instructions and activities before they are dismissed.

b. Whether the apparent disconformities between the case law and the Cover Clause 5 of the Constitution need to be resolved

41. The Constitution requests people to obey law. However, the Full Federal Court holds that Hilda seeks protection for her right to obey law under the Constitution is “vexatiously or without reasonable cause”. The Federal Government does not deny there are disconformities between the case law and the Constitution. However, it does not show that it cares about it.

42. If the Federal Government had held that the case law was correct, that the Constitution was out of date and that employers did need much more liberty, it would have proposed to change the Constitution. It should have informed the public that the people, which was referred by the Cover Clause 5 of the Constitution, was defined as employers only at workplace, or that employees did not count as people at workplace in respect with the Cover Clause 5 of the Constitution.

43. The 10th question is if people at work have no right to obey law under the Constitution, where do people have right to obey the laws under the Constitution?

44. The 11th question is while Federal Government and Federal Parliamentarians undermine and diminish both of the laws and the Constitution, who ought to respect and obey both of the laws and the Constitution?

c. Whether Federal Parliament wants to construe the “the filing of a complaint” as “only to a Court or Tribunal”

45. If the majority of the Federal Parliamentarians has no intention to construe “the filing of a complaint” as “only to a Court or Tribunal”, before trying to change the wording, it is able to require the High Court to declare whether the Full Federal Court’s construction is wrong or/and not valid under the Cover Clause 5 of the Constitution. I have contacted the famous constitutional expert, Professor George Williams, the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales with email. He replies that he hopes the petition “meets with some success”.

G. Other issues

46. If the Federal Government had fulfilled its duty properly, above questions would not have existed or would have been answered. We are grateful to you for raising your concerns about my email. I understand you and your staffs are very busy on other issues. If you have any further concerns, please do not hesitate to contact me. We are more than happy to try our best to reply your concerns. For your convenience, the documents attached to previous email are attached as well.

I look forward to hearing from you.

(file below is downloadable as .doc file)

Email of 12 September 2007 from Ms Julia Gillard MP’s adviser

(file below is downloadable as .jpg file)

The certificate of 26 February 2004 issued by the Australian Industrial Relations Commission