Reply to the Victoria Government Solicitor’s letter of 15 April 2008

Dear Mr Cain

Ref: Petition for Victorians’ constitutional right to obey the laws at work (MC/08/2280)

I refer to your letter of 15 April, which was received on 24 April, regarding the matter above.

A. The constitutional matter arises in the Petition

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

3. The bizarre situation is all Victorians, including all lawyers, have to follow the interpretation that no Parliamentarians agree with. (We have contacted all political parties and independent parliamentarians in Federal and Victorian parliaments.)

B. The questions rise from your letter

4. Implicitly when people, organisation, political parties and parliamentarians support the petition they have believed, in according to common sense that the Government and Parliament have duty to deal with the situation arisen in the petition. However, you do not deal with the situation that Victorians at work have to deal with everyday. By contrast you declare to the effect that the Government has no obligation to do anything about it.

5. It becomes necessary to clarify whether there are some common grounds between you and the petitioners.
(i) Does the constitutional problem exist and affect all Victorians’ constitutional right at work? (You have not expressed any doubts that such problem do exist and affects all Victorians at work.)
(ii) Does the Attorney-General have moral, legal and constitutional obligations to respect and uphold the laws and the Constitution? (You have not expressed any doubts that Victorians at work ought to respect, obey and uphold the laws and Constitution.)
(iii) Why hasn’t the Attorney-General taken any actions to uphold Victorians’ constitutional right to obey the laws at work while he is paid and elected for such duty? (You have not expressed any doubts that the Government requests workers to obey the laws, and punish them if they fail to do so.)

6. The whole petition is directed to the Legislative Assembly. It is incorrect to say that only the first request is directed to the Legislative Assembly. The Government (the Attorney-General and Workplace Relations Minister regarding to this petition) is accountable to the Parliament. The Attorney-General and Industrial Relation Minister ought to give explanations to the Legislative Assembly:
(i) whether the legal loophole exists and needs to be fixed?
(ii) how to fix it if the answer for the previous question is positive?

C. How to stick to the principle that this country operates under the rule of law?

7. The petition proposes two methods to deal with the constitutional matter.
(i) The Government and Parliament enact particular laws to allow and request Victorians to complain about workplace illegalities ‘only to a Court or Tribunal’ in accordance whit both of the Constitution and the Full Court’s interpretation, or
(ii) The Government and Parliament request the High Court to arbitrate whether the Full Court’s interpretation is unconstitutional if considering the first method is not necessary until the High Court makes arbitration. (We suggest the second method because of having not found any parliamentarians agree with the Full Court’s interpretation of the unlawful dismissal laws.)

D. Whether the Government can take further action?

8. The High Court Registry’s advice is that the Government and Parliament are able to request the High Court to arbitrate whether the Full Court’s interpretation is valid. Nobody has challenged this advice.

9. Colin Ross was hanged in 1922 after his application for special leave to appeal was dismissed by the High Court. On 23 October 2006 The Age reported that the Attorney-General for Victoria would be referring the matter of Colin Ross back to the courts after researcher Kevin Morgan filed a petition.

10. Your statement, ‘No further action can therefore be taken by the Attorney-General in this case’, is incorrect and may amount to misleading.

E. What are the reasons of the original decision of not intervening?

11. Even though stating: ‘the receipt of a notice does not give rise either to an obligation to intervene or to provide a response,’ you did not express any doubt that the Attorney-General has an obligation to intervene if the matter is of public importance and affect all Victorians’ constitutional right to obey the laws at work.

12. You state: ‘I note that, on 26 April 2006, the Attorney-General received a notice of a constitutional matter……’ I was informed the notice was forwarded to Victorian Government Solicitor (the VGS) and that the VGS failed to response. Furthermore, the VGS advised me they did not have such notice at all.

13. Could you please advise:
(i) when the VGS received the notice
(ii) when the VGS provided legal advice to the Attorney-General, if it ever happened
(iii) what legal advice were provided
(iv) who made the decision of not intervening, if there was a decision?

14. I seek disclosing the reasons for the decision of no-intervention, if there were any, under the Freedoms of Information Act 1982.)

I look forward to hearing from you.

(files below are downloadable as .jpg files)

Letter of 15 February 2007 from the Hon Marsha Thompson MP to the Hon Philip Ruddock Attorney General

Letter of 15 April 2008 from the Victoria Government Solicitor

Note: The Victoria Government Solicitor failed to respond to this letter, even though he initially promised to the office of the Hon. Marsha Thomson MP that he would respond to my letter.