Letter of 1 January 2009 to the Prime Minister

Dear Sir,

I refer to the letter of 16 December 2008 from your senior adviser, Ms Rebecca Irwin, in response to my letter to you of 9 September 2008. I understand your advisers and assistants believe you are too busy to deal with this matter; therefore, Ms Irwin made the decision on your behalf. If I am wrong, please correct me.

A. Two issues have been clarified

2. We appreciate Ms Irwin holds that ‘your key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’. She is the first person in the governments to assert the implication of my key concern, after Mr Alex Anderson is the first person in the governments to verify that ‘the case law that requests Australians to complain about workplace illegalities “only to a Court or Tribunal”: with respect,’ ‘is incorrect’.

3. Obviously your staff have more confidences and authorities to face the truth than the Ministers’ and Labor MPs’ staffs. We appreciate that your staff have made positive contributions to address the two issues outlined in my letter of 7 July 2008 to you:
· Australians’ constitutional right to obey the laws and Constitution at work
· This country operates under the rule of law.

B. How can we raise the issues to you?

4. We consider the above two issues are of public importance, so finally raise them to you; however, Ms Irwin did not make any conclusive decision. Apparently, Ms Irwin did not have the capacity. We understand Ms Irwin and Mr Anderson have responsibilities to limit the matters considered by you; that is a big challenge for them. We all remember, in 2001, the former Prime Minister, John Howard, did not know the truth about children overboard. The staff who held the truth was promoted later on. Obviously, the staff knew what the former Prime Minister wanted.

5. On 6 November 2008, Mr Michael Parry of the correspondence unit of the Department of the Prime Minister and Cabinet told me that my letter of 9 September 2008 was in your office; however, on 15 December 2008 Helen in your office told me that no record showed that my letter was in your office. I faxed my letter to your office immediately.

6. You know you can be out of touch like the former Prime Minister, John Howard. In Australia 2020 summit you particularly sought cost-neutral proposals. Somehow, on 17 November, I even received an email from you. You wrote: ‘The road ahead is going to be tough…I look forward to our continued dialogue’. I excitingly replied your email because my concern is cost-neutral, but Labor National Office that authorised your email told me that you wouldn’t read my email due to overwhelming responses. Tegan in Labor National Office read my email to you, said she was not interested in the matter and hanged up the phone.

C. Placing the constitutional matter in the public domain

7. How can we let you know and make a decision on this matter? I think a hunger strike in front of the Parliament House, more likely than not, will get media attention. If you don’t have time read news paper or watch TV, your relatives or friends may tell you what is on the news.

8. If you were briefed on the matter, Ms Irwin might hint that you have difficulty to deal with it. While the constitutional matter is too difficult for you and others to deal with, except placing it in the public domain, there is no other option left. We believe, after restoring Australians’ constitutional rights at work and constitutional principle, many lives will be saved, many people will live better.

D. Ms Irwin canvasses responses imprecisely

(a) The High Court Registry’s advice

9. In my email of 3 April 2008 to Mr John Carter, the secretary of the Senate Standing Committee on Workplace Relations, which is enclosed in my letter of 7 July 2008 to you, I referred to the High Court Registry’s advice to me: if the government or parliament consider the matter is of public importance, the government or the parliament can request the High Court to hear the matter.

10. Both Ms Irwin and Mr Anderson did not respond to the High Court Registry’s advice. On face of it, the situation is your office and department clearly know what thing can be done to address the constitutional matter but, like the former Coalition Attorney-General’s Office and Department, without any legitimate reasons, decide not to do anything. Could you please kindly respond to the High Court Registry’s above advice?

11. I guess Ms Irwin was not authorized to add anything ‘to the response of Mr Kirkwood (Chief of Staff to the Attorney-General)’ as Mr Anderson wrote: ‘I have nothing to add to the responses you have had from the Secretary of the Committee’. You, as Prime Minister and Labor leader, ought to have authority to add to the the responses of the Chief, the Secretary, Ms Irwin and Mr Anderson.

12. The Registry’s advice suggests the government and parliament should take their parts of responsibility in relation to upholding constitutional principle. While the then Attorney-General was too busy to make decision with respect of the constitutional matter, and put extra workload on the High Court, following suit, the High Court was too busy to comment on the constitutional matter. Ultimately, it is the responsibility of the government and the people to raise constitutional concerns not the court, an arbitrator.

(b) Former Coalition Government’s responses

(1) The former Attorney-General’s response

13. Ms Irwin wrote: ‘I understand that the former Attorney-General, the Hon Philip Ruddock MP, informed you on 26 September 2006 of his decision not to intervene in your case, as no constitutional issues had been identified’. What the Hon Ruddock MP wrote is ‘As Attorney-General it would be inappropriate for me to comment on the issues you have raised’. Please let your staff find out where Ms Irwin got her understanding. Ms Irwin was the former Attorney-General’s assistant secretary. She might know something that has not been disclosed to us.

14. Ms Irwin might hope that the former Attorney-General had made a decision, but the fact is he did not. Except her, no judge, government officer, parliamentary staff, politician has written: ‘no constitutional issues had been found’. She, as legal professional, should not make such mistake.

(2) The former Prime Minister’s response

15. Furthermore, on 25 October 2007, the former Prime Minister’s assistant secretary, Mr Patrick Sedgley, held the matters are ‘policy matters’ and suggested ‘You may wish to raise the matters that are contained in your letter with incoming government once the outcome of the election is known’.

(3) The decision made by the staffs of the former Attorney-General

16. Ms Irwin replied: ‘Section 78B of the Judiciary Act 1903 contains no reference to the Prime Minister. The power to intervene in relevant legal matters on behalf of the Commonwealth is given only to the Attorney-General’. The facts are neither the then Attorney-General, the Hon Philip Ruddock MP, nor the Attorney-General, the Hon Robert McClelland MP, made any decision on this constitutional matter after s 78B notices served in 2006.

17. Until now no legitimate reason for the decision of not intervening in the constitutional matter has been found. Why could not you, as Prime Minister, requests the Attorney-General to make a decision on this matter and provide his reasons for his decision after your staffs have found that the case law is ‘incorrect’ and ‘relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’?

18. As the former Prime Minister’s staff did not let the former Prime Minister know the truth about children overboard in 2001 election, the former Attorney-General’s assistant secretary did not let the former Attorney-General make a decision in respect of workers’ constitutional rights when the Coalition Government was campaigning for WorkChoices legislation. On 28 April 2006, in response to our notices of constitutional matter, a junior lawyer of Australian Government Solicitor wrote to me: ‘if special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’. Implicitly, the junior lawyer identified constitutional matter in our notices; however, he could not make a conclusive decision for the then Attorney-General, as Ms Irwin could not make a conclusive decision for you; therefore, she raised more questions than answers.

(c) The Attorney-General’s Department’s response

19. Ms Irwin referred to the letter of 9 January 2008 from Mr Johnathon Kirkwood, Chief of Staff to the Attorney-General, the Hoh Robert McClelland MP, and stated: ‘no further question of intervention arises in relation to that matter’. Apparently, his logic was that the question of intervention would only have been raised if the special leave to appeal had been granted, as the junior lawyer suggested in his letter of 28 April 2006 as outlined at paragraph 18 above.

20. Mr Kirkwood meant the original question had been proper answered; however, so far the Attorney-General’s Department has not been able to disclose any reasons for not intervening in the constitutional matter. The department clearly knows the original question about intervention has not been properly answered.

21. On 23 August 2006 the Deputy Victorian Government Solicitor provided his reason─‘it is not appropriate (to intervene in application for special leave to appeal) as, until leave is granted, there is nothing to intervene in’, which contradicts what expressed in the High Court’s transcript of Hilda Zhang’s case. The Deputy Victorian Government Solicitor’s letter is enclosed.

22. Your office and department have found the case law is ‘incorrect’ and affects workers’ right to obey the laws and Constitution. The Attorney-General’s responsibility is upholding Australians’ constitutional rights. You have authority to request the Attorney-General that you handpicked, to fulfil his duty and fix the problem left by the previous Attorney-General.

(d) The dilemma of Labor Senators in the Committee

23. On 15 May 2008 the secretary of Senate Standing Committee on Workplace Relations wrote: ‘The committee (Labor Senators have five out of nine votes) does not believe that any constitutional connection has been established. It does not arise in the unfair dismissal case brought by Hilda Zhang in the Federal Court’. Except the secretary, so far, no judge, no government staff, no politician has expressed Hilda Zhang’s case was an ‘unfair dismissal case’.

24. Even though most of the Labor Senators in the committee have supported the petition on behalves of their constituents, they seemingly could not question Labor Government without your directions as suggested by the media. If they had insisted, as Ms Irwin and Mr Anderson did, that the case law is ‘incorrect’ and that ‘key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’, they would have made a different decision; however, they have neither the authority nor resources that you have. They feared ‘that no recommendation the committee might make to the Senate urging a plea to the Attorney-General would succeed’. Senator Gavin Marshall’s advisor advised me to turn my energy to more productive methods.

(e) The Hon Julia Gillard MP’s direction

25. Having presented the petition, Senator Gavin Marshall advised me to follow up the petition with the then Ms Julia Gillard MP because she was the Spokeswoman on Workplace Relations even though I argued this matter belongs to Attorney-General’s portfolio. Ms Gillard MP’s adviser, Ms Sarah Adams, asked me to draft questions for Ms Gillard MP to question the then Coalition Government.

26. On 8 October 2007 I wrote to Ms Adam the questions to the then Coalition Government:
‘The case law has been established since 2005. The WR minister responded to the workers’ (the petitioners’) concerns in 2006. Now, it is at the end of 2007. The government has not informed workers that they should complain about all illegalities “only to a Court or Tribunal” in accordance with the case law. Further, the government has not enacted any laws to allow workers’ complaints against their superiors’ illegalities to be filed “to a Court or Tribunal” in general situations. A question is why the government does not want that people at work have rights to complain about their superiors’ illegalities.’

27. My point was if the then Coalition Government considered the Full Federal Court’s interpretation of the unlawful dismissal laws was correct, that meant the government and parliament had always undermined the workers’ constitutional right since the law was enacted. To correct such terrible errors they ought to enact relevant laws to uphold Australians’ constitutional right to obey laws at work immediately.

28. After the election, on 9 January 2008, I wrote to the Hon Gillard MP: ‘Please kindly advise whether you are going to deal with the petitioners’ concerns’, while referring to the previous communication with her and her staffs. She replied on 18 February 2008 that she contacted the Attorney-General’s office and the Senate Standing Committee on Workplace Relations, and had no plan to amend the unlawful dismissal laws according to the Full Federal Court’s interpretation. My understanding is that she believes the Full Federal Court’s interpretation is incorrect; it ought to be dealt with by the Attorney-General and the Labor Senators in the Senate Standing Committee.

29. As Ms Irwin found the Hon Julia Gillard MP encouraged me to continue my endeavours, in one way or another, for the ‘concerns more generally about the protection of worker’s right’ even though the Hon Julia Gillard MP cannot give directions to the Attorney-General and the Labor Senators in the committee.

E. Your response to the matter

30. Having received my request of 14 September 2006 for supporting the petition for workers’ right on behalves of your constituents, on 2 October 2006 you replied: ‘One of the constraints of being in Opposition is a lack of resources. Unfortunately that means I am only able to respond directly to correspondence received from the 120,000 constituents living in my federal electorate of Griffith. Please be assured though that I do see all correspondence coming into my office’.

31. I raised the matter to you again on 2 March 2007, after you became Labor leader. Melissa in your office told me that you considered the matter but no response at that stage.

32. After you became the Prime Minister, on 16 December 2007 I raised the matter to you. I was told that my letter was forwarded to the Attorney-General on 9 April 2008. Then the Attorney-General’s office told me, according to the information on their computer system, a letter had been posted to me on 12 May; however, on 25 June 2008 the Attorney-General’s office informed me that no letter had been and would been sent in response to my letter to you.

33. In response to my letter to you of 7 July 2008, your assistant secretary of legal policy branch, Mr Alex Anderson wrote: ‘The Prime Minister is unable to assist you with this matter’, and held the case law is ‘incorrect’. He acknowledged to the effect that the case law affects workers’ right to obey laws, saying ‘An eligible employee who was dismissed because of querying or complaining about an employer (unlawful) practice or instruction could potentially receive relief on [harsh, unjust or unreasonable] ground’.

34. Mr Anderson declared on your behalf to the effect that Labor Government without informing the public has abandoned constitutional principle that this country operates under the rule of law, as Labor Government has accepted the situation that Australians have no right to obey laws at work.

F. Implication of Ms Irwin’s letter

35. Apparently, Ms Irwin did not try to canvass what things could be done, but seemingly concluded the situation is that the government, parliament and High Court all acquiesce in the ‘incorrect’ case law. Nevertheless, she, as your justice adviser, failed to justify how you want to keep the unconstitutional case law to deny workers’ rights and undermine constitutional principle. Should you, as Labor Prime Minister, tolerate this situation for so long? If you are still consider that you do not have enough resolve and resources to deal with this matter, please kindly inform us ASAP. The Australian people will judge the matter.

36. Ms Irwin seemingly raises a question: when lawyers and judges proposed and followed the unconstitutional case law, why should workers have problem obey apparently unlawful directions given by their employers in the workplace? Could you please, as Labor leader, answer this question?

37. The only reason that we could image for Ms Irwin to decide to do nothing about the matter is that she believes the matter is not of public importance. She ought to analyse which groups of Australians are not affected by the principle that this country operates under the rule of law.

G. Do you put your foot where your mouth is?

38. 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. According to the news on The Age on 29 October 2005, “Prime Minister John Howard said he did not think the AWB would have knowingly been involved in corruption. ‘My dealing with the people in AWB …they’ve always been a very straight up and down group of people’, he told ABC radio”. But the fact is these people were bent. Obviously, without protection from the legal system no corporate ethics can exist.

39. No doubt you noticed above events. On 25 September 2008 at United Nations General Assembly, you taught the world: ‘The failures that we have seen in recent times do not lie in the institutions alone. The failure lies more in the poverty of our political will to animate these institutions to discharge the purposes for which they were created’.

40. You have shown off to the world that you resolve ‘to animate these institutions to discharge the purposes for which they were created’; however, your senior justice adviser’s perception of your resolve is different. No doubt Ms Irwin is in a better position to understand what you really want to do than us. We only know you from your public speeches.

41. The rules have been alternated by the case law of Hilda Zhang’s case. Why do you want to keep that ‘incorrect’ rule? On 25 September 2008 at United Nations General Assembly, you asked: ‘First, what went wrong’, ‘So what must now be done’.

I look forward to receiving your response.

Enclosure:

Letter of 16 December 2008 from the Prime Minister’ senior adviser, Ms Rebecca Irwin p.1 and p.2

Letter of 23 August 2006 from the Deputy Victorian Government Solicitor