Response to Julia Gillard MP’s Letter of 18 February 2009

Dear the Hon Gillard MP,

Thank you very much for your letter of 18 February 2008 sent by email. We all know you have two super portfolios and really appreciate you take time to consider about the issue in relation to Australians’ constitutional right to obey law at work.

You state to the effect that Federal Labor ‘Government can take no further action’ in relation to the constitutional matter arouse from ‘Ms Zhang’s application for unlawful dismissal’ because ‘no further question of intervention arises in relation to the matter’.

In my opinion, three aspects of your findings above might need to be clarified:

1. I have raised the question of intervention

I have noticed ‘that Federal Labor has strong commitment to protecting the rights of workers’. Therefore I wrote, in my email to the Attorney-General: ‘We know the Labor has serious concerns about Liberal’s attitude toward both workers’ right and FOI requests’ and requested the Attorney-General to review the decisions made by the previous Coalition Attorney-General in relation to not intervening in the constitutional matter and not disclosing the reasons of the decision of not intervening.

The Attorney-General’s chief staff, Mr Kirkwood replies (On the face of the letter, he did not reply on the Attorney-General’s behalf): ‘I do not believe it would be appropriate to make any comment on the 2006 decision in relation to intervention’. The question is: when he know he, as a staff, is not ‘appropriate to make any comment on’ that matter, why could he let the appropriate person, the elected Labor Attorney-General, make comments on that. (or he is wrong to say that the Attorney-General can not make comment on previous Federal Coalition Government’s decisions. Many Laobr Ministers have made comments on previous decisions made by the previous Federal Coalition Government.) Then he concluded to the effect that ‘no further question of intervention arises in relation to that matter’ (to the Attorney General by him---I assume) because ‘relevant circumstances (the Governments’ attitudes toward workers’ rights---the attitudes is a relevant circumstance in response to my reason for review) do not appear to have altered since….. July last year (even though he should know that the Federal Labor Government has serious commitment to workers’ rights)’.

Obviously, Mr Kirkwood held to the effect that the Federal Labor Government’s attitudes toward Australians’ rights at work and FOI request are actually the same as the previous Coalition government. Both Mr Kirkwood’s letter and my email to the Attorney-General are attached.

In my opinion, Mr Kirkwood should not deny or ignore the fact that I have raised the ‘further question’ of intervention in my email.

2. Your department raised the question of intervention

In your letter, you referred to the petition for intervention in the constitutional matter arouse from Hilda Zhang’s applications. In response to the first request in the petition, you state: ‘The transitional legislation will not include any amendments to the unlawful dismissal laws’. Apparently, you hold that the unlawful dismissal laws do not need to be altered in accordance with both of the interpretation of unlawful dismissal laws in the Judgment of Hilda Zhang’s case and the Australian Constitution at this stage.

Then you turned to the second request that is about intervention. The virtual question for the second request of the petition is whether the new construction of unlawful termination laws made by the Full Court of Federal Court in the Judgment of Hilda’s case is wrong and should be set aside in accordance with the unlawful dismissal laws and the Constitution. You sought a response from the Attorney General for the second request, the ‘further question of intervention’, which has been endorsed by many people, organisations, political parties and politicians. Obviously, as a matter of fact, you raised the ‘further question of intervention’ in the petition to the Attorney-General because you believe Australians’ right to obey law at work has been affected by the Judgment in relation to Hilda’s case. If I am wrong, please correct me.

I know a probable argument might be that you just forwarded the question to the Attorney-General. The question or request is the petitioners’ not yours. However, I prefer to assume that you held that the ‘further question of intervention’ in the petition was legitimate; therefore, you forwarded ‘the further question of intervention’ to the Attorney-General for a response.

3. The unsolved question is sill there

I may understand the probable arguments that Mr Kirkwood did not raise the question to the Attorney-General and that the question put to the Attorney-General was not yours or your department’s question. Then the issue becomes an issue of attitude because neither you nor Mr Kirkwood doubt that Australians’ constitutional right to obey law at work have been affected by the new construction of unlawful dismissal laws in the Judgment of Hilda’s case.

Australians at work have to face the question of whether they can complain about their superiors’ illegalities to the employers, to the unions and to the government etc. When making laws or referring to laws the Governments, the politicians and the law enforcement agencies etc must ask themselves the question of how Australians, who try to obey law at work, are protected from retaliatory measures. The question has been there all time.

We have difficulties to understand why you, as the Labor Minister for Workplace Relations, believe, there is ‘no further question of the intervention arises in relation to’ the constitutional matter arouse from Hilda’s applications. To clarify the issues it might be better to put questions and not statements.

The questions are:

a. Whether you hold that Australians have right to obey law at work under Australian Constitution bearing in mind that the Labor Government is making many laws and requests Australians to obey those laws at work?

b. Whether you hold that Australians’ rights to obey at work under the Constitution have been affected by the Judgment in relation to Hilda’s case bearing in mind that the previous Coalition Government did not deny that?

c. Whether the case law in the Judgment of Hilda’s case ought to continuously affect Australians’ constitutional right to obey law at work under the Federal Labor Government after you have asserted: ‘the transitional legislation will not include any amendments to the unlawful dismissal laws’?

d. Whether you consider that the Labor Government ought to request the High Court to arbitrate the constitutional matter arouse from Hilda’s case bearing in mind that the High Court Registry’s advice is that the Government is able to do so if it holds the matter is of public importance?

e. Whether you consider that your department ought to request the Attorney-General to intervene in the constitutional matter arouse from Hilda’s case bearing in mind that many Labor MPs have raised their concerns to you with respect of Australians’ right to obey law at work?

f. Whether you request the Attorney-General to intervene in the constitutional matter?

I understand you are very busy. It might be better if I would have written the above points in previous email.

By the way, on 29 February 2008, Mr Gavin Ryan, who works for Senator Marshall, the chairman of the Senate Standing Committee for Workplace Relations, told me that he did not know the Committee would ‘decide whether any further action will be taken in relation to the petition’, and that, generally, the Committee did not make a decision in relation to a petition, my particular concerns should go to the Workplace Relations Department even though I told him that you had written that the committee would decide it.

I look forward to receiving your response.

Enc

P.S.: comment on the FOI matter in Mr Kirkwood’s letter

In relation to disclosing of reasons of the decision of not intervening, under the Freedom of Information Act 1982, the details in Mr Kirkwood’s letter about documents inquired are incorrect, or Mr Kirkwood tried to make it look better. In the letter it sounds:
a. there were three or more documents in relation to the FOI inquiry
b. there were two or more documents were disclosed
c. only one document was not disclosed by the Department

The fact is that the Department:
a. find only two documents within the FOI inquiry
b. refuse to disclose the document 1, which is legal advices given for the particular matter
c. only disclose some parts of document 2, which is a policy approved by the previous Attorney-General in relation to the procedures of handling constitutional matter.

If the final decision was based on the legal advices in document 1, ‘the implied waiver of privilege’ would have been applied in accordance with the Full Court of the Federal Court’s judgment In Bennett v Australian. Put another way, the Department found no legal reasons or advices support the decision of not intervening because legal advices against the final decision are exempt from disclosing under legal professional privilege. It contradicts the information provided by the previous Attorney-General, who asserted the decision of not intervening was based on ‘a technical assessment of the constitutional significance of the proceeding’.

In document 2, the Department only disclosed the procedure for not intervening in the constitutional matters, but refused to disclose the procedure for intervening in the constitutional matters. All policies are not exempted under legal professional privileges once the policies have been approved. The approved policies are no longer legal advices.

(file below is downloadable as .pdf file)

Julia Gillard MP’s letter of 18 February 2008

(file below is downloadable as .doc file)

My email of 9 January 2008 to Julia Gillard MP

Note: Julia Gillard MP’s staff told me: they did not have anything to add to Julia Gillard’s letter of 18 February 2008 in relation to my letter of 3 March 2008, so no response to it.