Letter of 8 March 2008 to the Prime Minister

Dear Sir,

I refer to my previous letter of 16 December 2007 and thank you for forwarding my letter to the Attorney-General’s ‘attention’ on 11 February 2008.

A. Decision making procedure
(a) Who ought to make the decisions of intervention with respect to constitutional matter?

2. Under section 78B of the Judiciary Act 1903 (the Act), the Court cannot deal with constitutional matter without notice the Attorney-General, an elected officer. Implicitly, the Act requests that the elected officer to decide whether a constitutional matter arouse from a case is of public importance, and that the Court must inform the elected officer, a Member of Parliament.

3. On 13 September 2005 the former Coalition Attorney-General approved a policy, which was drafted by his assistant secretary, Mr James Faulkner, and has been partially disclosed to me, in relation to how to deal with constitutional matter. According to the policy both of the Attorney-General and Solicitor-General’s attentions on constitutional matter are not necessary, and the assistant secretary has the authority to handle them.

4. The policy proposed by Mr Faulkner and approved by the former Coalition Attorney-General did not follow the Act. They changed section 78B of the Act from the High Court must inform an elected officer, a Member of Parliament to the High Court must inform some junior solicitors.

(b) Who made the original decision of not intervening in the constitutional matter in relation to Australians’ constitutional right to obey law at work (the Decision)?

5. The former Coalition Attorney-General’s chief staff, Mr Steve Ingram, declared, in his letter of 20 September 2007 in response to my request, that no document indicated that the former Attorney-General knew or decided personally the decision of not intervening in the constitutional matter in relation to Australians’ constitutional right to obey law at work arose from Hilda Zhang’s case (the Case).

6. According to the above mentioned policy, the Decision ought to be made by the assistant secretary, Mr Faulkner.

B. The Decision has no legitimate reasons

7. Under the Freedom of formation Act 1982, legitimate reasons of decision ought to be disclosed. However the Attorney-General’s department has not found any legitimate reasons in response to my request for disclosing the reasons of the Decision. I raised the question of whether there were any legitimate reasons for the Decision to the former Coalition Attorney-General. He did not deny, in his letter of 17 October 2007, that there were no legitimate reasons for the Decision.

C. Who ought to review the Decision under Labor Government?

8. Whether the Attorney-General has put his ‘attention’ on the matter as requested by you is not clear. Ironically, it is clear that Mr Faulkner, who made the Decision on behalf of the former Coalition Attorney-General, has put his attention on the matter and replied: ‘I do not believe there is anything I can useful add in relation to that matter’ (the Decision made by himself) bearing in mind he ought to know that he had no legitimate reasons for his decision. Obviously, he made his decision according to the Coalition Government’s attitude toward the rights of workers like other bureaucrats who knew that the former Coalition Prime Minister did not want to know details in respect of children overboard during 2001 election.

D. Who ought to raise the ‘further question of intervention’ on behalves of all workers and the public?
(a) Raise the ‘further question of intervention’ to the former Coalition Attorney-General

9. Even though the former Coalition Attorney-General refused to accept that he made the Decision of not intervening he held to the effect that the Decision was legitimate because he knew it was based on ‘a technical assessment of the constitutional significance of the proceeding’. However, he failed to disclose such ‘technical assessment of the constitutional significance of the proceeding’ or any reasons of the Decision.

(b) Raise the ‘further question of intervention’ to the former Coalition Prime Minister

10. Having had no way to know ‘the constitutional significance of the proceeding’ from the former Coalition Attorney-General, we gathered evidences of ‘the constitutional significance of the proceeding’ from constituents with the petition, which has been supported by many people, organizations, political parties and politicians, and provided the evidences to the former Coalition Prime Minister for his reference. He suggested us to raise the matter to the incoming government after the election.

(c) Raise the ‘further question of intervention’ to the Attorney-General

11. After the election I raised the ‘further question of intervention’ to the Attorney-General because ‘that Federal Labor has strong commitment to protecting the rights of workers’. However 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) on 9 January: ‘I do not believe it would be appropriate to make any comment on the 2006 decision in relation to intervention’. A question is when he knew he, as a staff, was not ‘appropriate to make any comment on’ that matter why he couldn’t let the appropriate person, the elected Labor Attorney-General to make common on that. (or he is wrong to say that the Attorney-General can not make comment on the former Coalition Government’s decisions. Many Laobr Ministers have made comments on previous decisions made by the former Coalition Government before and after the election.) Then he concluded to the effect that ‘no further question of intervention arises in relation to that matter’ (to the Attorney General by himself---I assume) because ‘relevant circumstances (the Government’ attitude toward the rights of workers---the attitude is a relevant circumstance in response to my reason for review) do not appear to have altered since…. July last year (even though he ought to know that Labor Government has serious commitment to the rights of workers)’

(d) Raise the ‘further question of intervention’ to the Workplace Relations Minister

12. Following the former Labor Minister of Justice and Attorney-General, the Hon Duncan Kerr SC, MP’s advice I brought the concerns raised in the petition to the Workplace Relation Minister (the Minister) after the election. The minister considered the first request of the petition, which is, in effect, whether the unlawful dismissal laws need to be amended in accordance with both of the Constitution and the Judgment of the Case, and replied: ‘The transitional legislation will not include any amendments to the unlawful dismissal laws’. Apparently she holds there is no need to amend the unlawful dismissal laws now.

13. In response to the second request of the petition, which is, in effect, whether the Judgment of the Case needs to be set aside in accordance with both of the Constitution and the unlawful dismissal laws, the Minister raised the issue to the Attorney-General, who replied, as referred by the Minister, ‘no further question of intervention arises in relation to the matter’. It seems that both of the Minister and the Attorney-General do not deny that Australians’ constitutional right to obey law at work have been affected by the Judgment of the Case, but choose not to raise the ‘further question of intervention’.

14. It is hard to understand the Minister’s findings: ‘no further question of intervention arises in relation to the matter’. The Minister’s point might be that she just forwarded the question or request of the petition to the Attorney-General and that the question or request is the petitioners’ not hers. However, I prefer to assume that she held that the ‘further question of intervention’ in the petition was legitimate; therefore, she forwarded ‘the further question of intervention’ to the Attorney-General for a response.

15. When some Federal Labor Members of Parliament sought the Minister’s advice in respect of the petition, the Minister’s advice was: do not support the petition for workers’ fundamental constitutional right to obey law at work, because she could not do anything about it. Why could not she raise the ‘further question of intervention’ on behalves of all workers? Her point might be:
(i) anything in relation to constitutional matter should be in the Attorney-General’s portfolio bearing in mind she has two super portfolios
(ii) the Decision was based on a so-called ‘a technical assessment of the constitutional significance of the proceeding’ made by the Attorney-General’s department
(iii) both the former and current Attorney-Generals do not hold that the unlawful dismissal laws ought to be amended in accordance with the Constitution and the Judgment in relation to the Case.

(e) Raise the ‘further question of intervention’ to you

16. Do you expect that your request to the Attorney-General to act according to the Labor’s attitude toward the rights of workers is actually dealt by Mr Faulkner who, as the former Attorney-General’s assistant secretary, has made the Decision according to the Coalition Government’s attitude? When forwarding my letter to the Attorney-General’s attention, you, apparently considered, in common sense, the ‘further question of intervention’ ought to be raised by the Attorney-General if it was necessary.

17. The former Coalition Government did not deny that Australians’ constitutional right to obey law at work had been affected by the Judgment of the Case. However, the former Coalition government refused to do anything about it until the election was called. Obviously, it is a matter of attitude.

18. It seems that Mr Faulkner is confused by the request for responding to my letter, which is against his decision. If Federal Labor’s attitude toward the rights of workers is the same as the Coalition, he has reasons to say: ‘I do not believe there is anything I can useful add in relation to that matter’ (the decision made by himself according to the Coalition’s attitude). His advice is ‘You may wish to raise any concerns regarding workplace relations with the Department of Education, Employment and Workplace Relations’. He might mean if the Labor Workplace Relations Minister who supposes to represent the Labor’s attitude toward the rights of workers prefers not to raise the ‘further question of intervention’ how we could expect him to raise it on behalves of workers. The Attorney-General’s point might be:
(i) anything in relation to the rights of workers or workplace relations should be in the Minister’s portfolio
(ii) the petition is brought to the notice of the Senate standing committee for education, employment and workplace relations not the legal and constitutional affairs.

19. Ms McKew MP advised me to raise the issue to you if I was not happy with the Ministers’ response. When raising the issue to the Minister, she responded to it. When raising the issue to the Attorney-General, his chief staff replied to it. When raising the issue to you, the person, who made the Decision, in effect, argued why we expect that he would prefer to add something to what he had done for the Coalition. Does that mean you do not encourage grassroots to raise issue to you directly or ……?

(f) Whose responsibility to raise the ‘further question of intervention’ on behalves of all workers?

20. Both of the Minister and the Attorney-General don’t want to take extra workloads. Fortunately, you are in the position to decide who ought to take the responsibility or that both of them should cooperate on:
(i) Australians’ constitutional right to obey law at work and
(ii) the constitutional principle that this country operates under the rule of law.

21. Nevertheless Labor’s commitment to the rights of workers is not only your commitment but also commitments of other Labor Members of parliament.

E. Further questions with respect to Australians’ constitutional right to obey law at work

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 law at work under the Constitution have been affected by the Judgment in relation to the Case bearing in mind that the former Coalition Government did not deny that?

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

d. Whether you consider that Labor Government ought to request the High Court to arbitrate the constitutional matter arouse from the 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. Who has the responsibility to raise the ‘further question of intervention’, you, the Attorney-General, the Minister for Workplace Relations, the Labor Members of Parliament or Senators, non Labor Members of Parliament or Senators, Hilda Zhang, or others?

f. Who has the responsibility to take care Australians’ constitutional right to obey law at work, you, the Attorney-General, the Minister for Workplace Relations, the Labor Members of Parliament or Senators, non Labor Members of Parliament or Senators, Hilda Zhang, or others?

I look forward to hearing from you. Both letters from the Attorney-General’s office of 9 January and 27 February are enclosed.
Yours sincerely,
Daming He
Enc

Cc: The Hon. Maxine McKew MP

P.S.: comment on the FOI matter in Mr Kirkwood’s letter of 9 January 2008

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.

Enclosures:

Letter of 9 January 2008 from the Attorney-General’s office

Letter of 27 February 2008 from the Attorney-General’s office