Letter of 9 September 2008 to the Prime Minister

Dear Sir,

I refer to the letter of 26 August from your assistant secretary, Mr Alex Anderson, in response to my letter to you of 7 July. Mr Anderson concludes you cannot assist with this matter because:

a. the Full Federal Court’s interpretation of the unlawful dismissal laws, in effect, ‘is incorrect’
b. workers who are dismissed because they have complained about workplace illegalities ‘may apply…for relief on the ground that the termination of their employment was harsh, unjust or unreasonable’
c. the Hon Julia Gillard MP has informed me ‘that the government’s transitional legislation will not include any amendments to the unlawful dismissal laws’
d. ‘no further question of intervention arises in relation to that matter, because the High Court has dismissed the special leave application’
e. even though the Attorney-General’s Department has not disclosed any reasons for not intervening in the matter, it ‘does not mean that there were no legitimate reasons for not intervening in the matter’
f. you are head of the government, therefore, cannot comment on the response from the Senate Standing Committee on Employment, Education and Workplace Relations.

Implicitly, Mr Anderson has tried to clarify the issues in his capacity; therefore, he does not want to receive ‘any further correspondence on these topics’. Could you please do Mr Anderson a favour: do not let him to handle this letter anymore?

We are given to understand that Mr Anderson has failed to bring this matter to your attention and has not let you decide what thing can be done because, apparently, he decides you do not care or do not want to know whether Australians have right to obey the laws and Constitution at work even though you are the Labor’s leader and uphold workers’ rights have been your major election promise. Do you agree with Mr Andersons’ decision?

Mr Anderson was a key adviser to John Howard’s WorkChoice legislations. He worked hard to diminish workers’ rights for the previous Coalition Government. Obviously, he has kept his mindset and felt no enthusiasm for undoing what he has achieved.

Comments on Mr Anderson’s points above

1. Complaining about workplace illegalities ‘only to a Court or Tribunal’ ‘is incorrect’

Mr Anderson holds to the effect that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’. However, he has not shown any intention to let judges and solicitors know his correct interpretation let alone he, a solicitor, knows judges and fellow solicitors have to apply the Full Court’s interpretation, but not his. He understands, in accordance with the Full Court’s interpretation, Australians at work have no right to obey the laws and Constitution.

Mr Anderson fails to clarify:

a. whether the Attorney-General’s Department and the Attorney-General agree to his legal advice (interpretation) that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’
b. whether you agree with his interpretation
c. why the Labor government wants to keep the ‘incorrect’ interpretation as a law depriving Australians’ constitutional right at work while Labor have campaigned for ‘your right at work’

Should workers deserve this under the Labor Government? Please kindly clarify whether you want to keep the Full Court’s ‘incorrect’, unconstitutional interpretation of the unlawful dismissal laws?

2. Seeking relief on ‘harsh unjust or unreasonable’ ground

Employees cannot allege any their employers’ illegalities when seeking relief on ‘harsh unjust or unreasonable ground’ because the Industrial Relations Commission does not have jurisdiction to deal with unlawful issues. Employees have to, against their conscience, give up their legal rights to obey the laws and Constitution when claiming unfair dismissals.

Mr Anderson suggests employees claim unfair dismissals after being dismissed because of complaining about their employers’ illegalities. That suggestion actually undermines the laws and Constitution, humiliates the employees who have tried to do what the laws and Constitution require them to do, and tries to destroy their morals or consciences.

3. The unlawful dismissal laws does not cause the constitutional problem

We are given to understand that the Hon Julia Gillard MP considers the unlawful dismissal laws do not need to be amended in accordance with the Full Court’s wrongful interpretation.

4. Whose responsibilities to raise the further question of intervention

Mr Anderson agrees with: ‘no further question of intervention arises in relation to that matter, because the High Court has dismissed the special leave application.’ He fails to indicate whom he agrees with.

On behalf of the Attorney-General, Mr James Faulkner, assistant secretary of constitutional policy unit of the Attorney-General’s Department, replied my letter of 16 December 2007 to you. He stated he could not add anything more, having considered the former Attorney-General’s responses of 26 September and 22 November 2006.

Mr Faulkner made the original decision of not intervening in the constitutional matter on behalf of the former Attorney-General in April 2006, when the previous Coalition Government was desperately promoting its WorkChoices legislations. He did not want to undo his decision.

Mr Anderson errs in fact in saying: ‘no further question of intervention arises in relation to that matter’. The petition presented in the Senate on 11 September 2007 raises the further question of intervention. In my previous letters to you, further questions of intervention have been raised as Mr Anderson acknowledged. Furthermore, he, holding the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’, has provided a substantial reason for a further intervention.

Mr Anderson does not say: because the High Court has dismissed the special leave application, a further question of intervention cannot be raised. Why does he not say so? Apparently, he knows it is incorrect to say that. The High Court Registry has advised us the government and parliament can require the High Court to revisit the matter and make a judgement.

According to Mr Anderson’s letter, we are given to understand that you know workers ought to have right to obey the laws and Constitution, but decides not to uphold such right. Please kindly clarify your position and provide substantial reasons.

5. The Attorney-General’s Department has never said they have legitimate reasons

Mr Anderson, a solicitor, has provided his advices to me in his letter. He does not express his ‘legal advice ceases to be legal advice once relevant decision has been taken’. Seemingly he knows, in common sense, his decision ought to be accountable.

Section 2.7 of the Freedom of information Guidelines: Fundamental Principles and Procedures provides:

“In 1985 the Government issued directions that agencies should not refuse access to non‑contentious material only because there are technical grounds of exemption available under the FOI Act. These directions remain applicable. Proper compliance with the spirit of the FOI Act requires that an agency first determine whether release of a document would have harmful consequences before considering whether a claim for exemption might be made out. For example, the fact that an exemption may be claimed under section 42 (legal professional privilege) should only lead to a claim for exemption where disclosure will cause real harm” (bold added).

The Attorney-General’s Department and Mr Anderson have not applied a real harm test yet.

Section 13.4 of the FOI Memorandum specifically clarifies:

“In Bennett v Australian Customs (D501) the Full Court of the Federal Court held that disclosure of the conclusions provided in legal advice, even without disclosure of the reasoning supporting those conclusions, could still result in an implied waiver of privilege if disclosure included the effect of the legal advice”

The Full Court states:

“The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion” (bold added) (par 65 of Bennett v Australian Customs).

Mr Anderson fails to refer to the FOI Memorandum and the judgment of Bennett v Australian Customs. Should he seek legal advice on your behalf, knowing his advice is at odds with his common sense? Has he done his unprofessional job on your behalf? Or has he misled you? Could you please kindly provide substantial reasons for this?

If Australian Government Solicitor’s legal advice for the matter is the same as Mr Anderson’s legal advice that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’, what can be the reasons for not intervening in the constitutional matter?

Is the reason that the previous Coalition Government wanted to give employers right to make choices whether or not to obey the laws and constitution? What are your legitimate reasons for not intervening in the constitutional matter affected all workers?

6. You are the leader of the Federal Labor

Mr Anderson is unable to give you any advice in relation to what thing can be done by the Labor Senators who are members of the Senate Standing Committee on Employment, Education and Workplace Relations. It is the Federal Labor’s business.

Disclosing information

Under the Freedom of Information Act 1982 I request disclosing information below:

a. whether this matter have been brought to your attention
b. whether you have decided not to receive anything about ‘these topics’
c. whether you have decided not to do anything in respect of Australians’ constitutional right to obey the laws and Constitution at work even though you have been advised that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’ and affected all workers
d. what are your grounds for not upholding Australians’ constitutional right at work
e. who decided not to inform you about the matter and what policies are applied, if you have not been informed
f. who decided not to take any actions, and what are the decision maker’s grounds, if you have not done so.

I appreciate Mr Anderson, as your legal adviser, expresses to the effect that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’, but much more need to be done to uphold Australians’ constitutional right at work and constitutional principles after your department has, in effect, verified the constitutional problem.

I look forward to receiving your response.

Enclosure

Letter of 26 August 2008 from the Prime Minister’s assistant secretary, Mr Alex Anderson, p.1 and p.2