The Achievements of Hilda Zhang’s Legal Struggles against the Unconstitutional Judgment of Her Case—Barristers and Judges Hold that the New Laws Have Undone the Damage Made by the Judgment of Her Case

On 28 January 2015 Sydney Barrister Jim Pearce of Denman Chambers presented his paper, An Update on “Adverse Action”Under Section 340 of the Fair Work Act 2009 on an international conference—North South Conference Marrakesh, Morocco. He referred to Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347, 351 [25] and analysed how section 341(1)(c)(ii) has undone the damage made by the Federal Court in Zhang’s case in 2005 to the workers’ rights when the Full Court interpreted s. 170CK(2)(e), which was later numbered as s. 659(2)(e), of the Workplace Relations Act 1996 (Cth).

Section 170CK(2)(e) was: “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities”. In Zhang’s case “the Full Federal Court held that a complaint by an employee to his or her employer would not be caught by the provision”.

Jim Pearce observed that subparagraph 341(1)(c)(ii) of the Fair Work Act 2009 “specifically protects an employee who  makes  any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has ‘recourse to a competent administrative authority’. It would include situations where an employee makes an inquiry or complaint to his or her employer”. He referred to the decision made by Jessup J in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908. In the decision “Jessup J after discussing these earlier provisions held that s.341(1)(c)(ii) operated more widely to embrace a complaint by an employee to his or her employer”. “The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s. 659(2)(e), and observed that the new provision would "include situations where an employee makes an inquiry or complaint to his or her employer". One of the illustrative examples, that of "Rachel", seems apt to cover the meaning for which the applicant contends”.

Information Relevant to: Why did the Commonwealth not Participate in Hilda Zhang’s Constitutional Case?

Lawyer Nicholas N Chin of Western Australia in his blog

 http://wwwnicholasnchin.blogspot.com.au/2013/09/high-court-lectures-on-prerogative-writs.html referred to Part 2 of Critical Reflections on Australian Public Policy http://press.anu.edu.au//anzsog/critical/mobile_devices/index.html, which was edited by John Wanna, Sir John Bunting Chair of Public Administration, Research School of Social Science the Australian National University, to provide thoughts which were relevant to: why did the Commonwealth not participate in Hilda Zhang’s constitutional case?
Part 2, Reflections on Australian politics and policy, was written by Griffith University’s Patrick Weller AO. Professor Weller holds an ANZSOG Chair at Griffith University, where he is also a professor of Politics and Public Policy and a director of the Centre for Governance and Public Policy. The relevant information is:

The Procedure

1. If the case is one to which the Commonwealth is not a party, the first step is for the Attorney-General to decide whether to intervene. Generally, s.78B notices are received in the Attorney-General’s office, which forwards the notice to the Constitutional Litigation Unit of the Australian Government Solicitor (AGS).
2. AGS is a law firm owned by the Commonwealth. Pursuant to the Legal Services Directions 2005 (which are made under the Judiciary Act), generally speaking, and subject to [his] role as the Solicitor-General, constitutional work can be performed only by AGS and the Attorney-General’s Department.
3. AGS forms a view on whether the Attorney-General should intervene. In doing so, AGS consults with the Solicitor-General, the Constitutional Policy Unit of the Attorney-General’s Department and any other area of the department or other department that has a policy interest in the subject matter of the notice (for example, if the constitutional issue is the validity of a Commonwealth law, AGS consults with the department that administers that law).
4. If AGS and the Solicitor-General agree that there should be no intervention, the Attorney-General is not further consulted and there is no intervention.
5. If the Attorney-General approves intervention, generally, AGS acts for the Attorney-General in the conduct of the matter, but briefs counsel to appear for the Attorney-General at the hearing. Generally, AGS will brief one senior and one junior barrister.
6. The pool of talent from which counsel are selected includes the Solicitor-General, senior constitutional lawyers employed by AGS (for example, AGS’s Chief General Counsel, Henry Burmester) and private barristers with expertise in constitutional law.

Why do constitutional matters need counsels selected from public sector and private practice?

1. AGS and Attorney-General’s Department lawyers and advisers generally have strong relationships with, and the trust of, the government. These lawyers have finely honed skills in constitutional law and policy, as well as long memories of cases won and lost in the past and a good sense of some of the reasons why. They have advantages of specialist expertise in public law.
2. Private barristers offer the attribute of independence. As sole practitioners bound by the cab-rank rule to act for all who come to them regardless of their personal views, private barristers tend to practice on both sides of the record. (Paragraph 602–606 of the Code of Conduct of the Bar of England and Wales state: A self-employed barrister must comply with the "Cab-rank rule" and accordingly. The rule derives its name from the tradition by which a Hackney carriage driver at the head of a queue of taxicabs is supposed to take the first passenger requesting a ride.) A barrister who represents all sides over time is better able to advise his or her client at any particular time; he or she tends to have a broader view of the law than a solicitor who acts only for or against the Commonwealth.
3. By retaining private barristers to appear for it, the Commonwealth enhances its capacity sensibly to cooperate with opponents in the conduct and, occasionally, settlement of cases. Almost universally, private barristers with expertise in constitutional law trust one another. These barristers represent a small pool of lawyers who regularly appear with, and against, each other. These circumstances facilitate a highly respectful and cordial professional culture that is amenable to the smooth conduct of litigation.

The Solicitor-General

1. As a matter of practice, the dominant function of the Solicitor-General has been to appear on behalf of the Commonwealth in important constitutional cases.
2. the Solicitor-General has generally been selected from the pool of private barristers with expertise in constitutional law. He has represented many interests over his career and forged many strong relationships with fellow barristers.

Matters influencing the Solicitor-General not to intervene in a constitutional matter

1. The Commonwealth not putting submissions in one case that are inconsistent with its submissions in another
2. Not giving an answer to a question from the Bench in one case that might be used against the Commonwealth in another.
3. Whether there is likely to be an appeal from the judgment of the court
4. Whether a Commonwealth party is already involved in the matter
5. Whether the applicant is represented.

What is the Problem?

So far there have been no National or Liberal politicians supporting the petition for upholding workers’ constitutional rights to obey the laws at workplace. Apparently it has shown this issue really tests politicians’ attitudes towards workers’ basic rights and obligations under the Constitution. Similarly, the judges who have made relevant decisions about Ms Zhang’s case have held the same attitudes that the conservative politicians held.

Of course the unlawful dismissal law was first introduced by the Labor government in 1988. When Labor was in power making the Fair Work Act 2009 and believing that what happened to Ms Zhang should never happen again, Labor Attorney-General could raise Ms Zhang’s case to the High Court and ask the High Court to outline whether employees have to first complain about employers’ unlawful activities to the court or tribunal to be protected by the unlawful termination law in accordance with 170CK(2)(e) of the Workplace Relation Act 1996, which is substantially identical to 659(2)(e) of the Workplace Relation Act (Work Choices) Act 2005 and 772(1)(e) of the Fair Work Act 2009. (We should remember the High Court’s point was the government did not raise any concerns about Ms Zhang’s case, when dismissing the application of leave to appeal in relation to Ms Zhang’s case.) If Labor government had done that, the judges in High Court and other courts would have been more careful about workers’ rights when making decisions; therefore the rule of law would be enforced not the rule of judges.

Unfortunately the leaders of Labor such as Kevin Rudd and Julie Gillard did not hold the attitude that the majority of Labor politicians has held. Both Kevin Rudd and Julie Gillard have shown that they have focused on power struggles.

Obviously, when Labor leaders do not respect the workers’ rights in their hearts, how can we expect the judges to respect the rights of vulnerable workers? The Constitution gives the government power to intervene in important cases to enforce the rule of law not the rule of judges.

Therefore the problem has been the judges’ and politicians’ attitudes towards workers’ rights. When attitude is wrong, rule of law cannot be carried out because those people who hold wrong attitudes are able to find ways to do thing not in accordance with the laws and Constitution. 

Reflection on the government’s motivation in relation to hiding the facts (4)

The staff in the Departments knew what Kevin Rudd’s and Julia Gillard’s attitudes toward the matter. Both of them did not support the petition. Obviously they did not want to be distracted from their ambitions of leadership, not like the politicians who have had consciences to support our petition.

Comparing the politicians who have supported the petition with both Kevin Rudd and Julia Gillard, the former did not consider what they could get from their supports for the petition; the latter obviously have worried about what they could get from supporting the petition. I really appreciate and respect the politicians who have supported the petition because in the political games they still have primitive conscience. They stand firstly as honorable men and women, secondly as politicians. Kevin Rudd and Julia Gillard stand firstly as canny politicians.

From that point of view, when Kevin Rudd and Julia Gillard under the pressure from other Labor MPs, who have supported the petition, decided to change the Workplace Relation laws to “ensure the situation facing Mr He’s wife does not occur again”, to avoid any negative impacts to their reputations, they chose to diminish our initiative and input in relation to changing the law by denying our initiatives and the importance of our petition. 

Reflection on the government’s motivation in relation to hiding the facts (3)

The FOI Commissioner, Mr Timothy Pilgrim wrote in his decision:

“In the context of this IC review, I believe the disclosure of the information will assist to inform the community of how government operates. In particular, I believe it will assist the community in understanding that their correspondence or submissions to the Office of the Prime Minister may not always be brought to the personal attention of the Prime Minister.”

Why did the staff refuse to disclose that the Prime Minister did not read my letter personally?

I requested:

“Who decided not to inform [the Prime Minister] about the matter and what policies were applied, if [the Prime Minister] has not been informed,

“Who decided not to take any action and what the decision maker’s grounds were, if [the Prime Minister] has not done so”

If they told me the Prime Minister did not read my letter personally, they had to answer the question “who decided not to inform [the Prime Minister] about the matter and what policies were applied”.

As the exempted information might contain relevant information, I had to focus on the proceedings to release the exempt information. During the deliberately delayed review process, many years passed and both then Prime Ministers Kevin Rudd and Julia Gillard have all quitted politics.

Apparently the staff played with the FOI review proceedings.

Particularly, in the original draft of the letter wrote by Senior Adviser Brendan MacDowell of the Legal Policy Branch of the Department of the Prime Minister and Cabinet to me on 17 July 2009 exactly mentioned the guideline and my letter was not brought to the attention of the Prime Minister personally. The original paragraph was:

“Finally, I note that, as you have been advised previously, in addition to all of the other duties performed by the Prime Minister, it is not possible for him to handle and individually respond to the very large volume of correspondence received. Guidelines in place for dealing with correspondence provide for circumstances in which others, including departmental officers and the Prime Minister’s advisers, may respond to correspondence on behalf of the Prime Minister. It is my understanding that the matters raised in your various letters to the Prime Minister have not been brought to the attention of the Prime Minister personally.”

According to the instruction of Mathew Jose, Senior Adviser of the office of the former Prime Minister Kevin Rudd, the above paragraph was replaced by the paragraph below: 

“If you do not specify documents you wish to access by 31 July 2009, we will assume you do not wish to proceed and we will treat the matter as finalised.”

  

In his draft of the letter to me Brendan MacDowell naturally assumed: “that the matter raised in your various letters to the Prime Minister have not been brought to the attention of the Prime Minister personally”. Mathew Jose did not want me to know that. He wrote in the released document 1: “I’m comfortable with the language in the paragraph, except the last sentence”. So Brendan MacDowell replied: “I’ll delete the whole paragraph” as he understood Mathew Jose’s worry was: “it’s unlikely he will now take the point when he appears not to have in the past”.

           

Apparently, they worried that if they told me that the matter I rose was not brought to the attention of the Prime Minister personally, I would send another letter or try to find another way letting the Prime Minister read the letter. So they played a trick with me.

Reflection on the government’s motivation in relation to hiding the facts (2)

The main difference between Julia Gillard MP’s email and the released document 4 is the attitude toward the case law at point 3 of the document 4. In her email, Gillard MP’s advised that I was welcome to make input, implying that my point was reasonable or at least relevant. At point 3 of the released document 4, it stated definitely “to ensure the situation facing Mr He’s wife does not occur again”. That outlined the government’s approach.  

The staff of the department apparently knew the difference. Gillard MP’s office certainly knew she did not support the petition when I sought her support to the petition. To protect Gillard MP’s reputation in relation to her judgment on this matter, they chose to cover up the fact.

In 2013 Gillard MP resigned from politics. Therefore, in 2014 the government has no need to take care of the former Prime Minister’s fame. 

Reflections of the government’s motivation in relation to hiding the facts (1)

Julia Gillard MP stated: in her email of 19 February 2008, “that no further question of intervention arises in relation to the matter. As a result the Government can take no further action with respect to Ms Zhang’s application for unlawful dismissal”. That was not the fact. The “further question of intervention arise in relation to the matter” was whether the situation Ms Zhang faced was acceptable. The answer was not acceptable. The government wanted to “ensure the situation facing Mr He’s wife does not occur again” according to the released document 4. 
 

Why did not the Government try to solve the problem from the source, arguing in the High Court that the Federal Court’s interpretation of s. 170CK(2)(e) of the Workplace Relation Act 1996 was unconstitutional? Who would get benefits from the proper way to solve the legal issue? 

Apparently, the dignity of laws, all workers including Ms Zhang would get benefits. Who would get negative impact from this, obviously, the judges of the Federal Court and High Court and the former Attorney General Phillip Ruddock. Both Julia Gillard MP and the then Prime Minister Kevin Rudd would not get benefit from this because they did not support the petition against the case law. Therefore, Julia Gillard decided to look after her, other politicians' and judges’ interests not the interest of the laws and workers. Therefore, she decided to hide the fact.

If she had still been the Prime Minister or the Minister for Workplace relations she would have tried to find a way to continuously hide the facts.