Upholding People's Rights under the Constitution

FOI Application of 3 January 2011 for Documents Exempted Under Repealed Section of the FOI Act

2012-01-03T12:06:00.007+11:00

Dear Mr Anagnostis,

Thanks you for sending the FOI documents requested.

Based on previous communications, my impression was that Mr Anderson had decided to release all documents in the list, and his only concern was application fee and late, the processing fee. Therefore, when you mentioned Mr Anderson’s decision in your email of 3 October 2011, I misunderstood it as Mr Anderson’s previous decision. Now I find many documents on the list are exempted from releasing under section 36 of the Freedom of Information Act 1982 (the FOI Act). My understanding is that s. 36 of the FOI Act has been repealed.

In her decision of 17 February 2011 on waiving the processing charges, Ms Lynch took practical approach by considering the changes of the FOI Act regarding the requests made after 1 November 2010. Mr Anderson might have not read Ms Lynch’s decision of 17 February 2011 on reviewing his decision of 10 December 2010 as he has not adapted Ms Lynch’s method in relation to making the decision on FOI requests made before 1 November 2010.

Even though I have the right to apply for reviewing Mr Anderson’s decision of 30 September 2011, I take practical approach and make a new request under the FOI Act to access all the documents which were exempted.

A. the documents exempted by Mr Anderson under the repealed s. 36 of the FOI Act.

1. Email of 17/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, PMO, confirming deletion of one paragraph of a response letter to Mr He, with additional email traffic attached.

2. Email of 15/07/2009 from Mr Jose, SA, PMO to Mr MacDowell, SA, LPB agreeing to transfer Mr He’s request to PM&C, with additional email traffic attached.

3. Email of 15/07/2009 from Mr MacDowell, SA, LPB to Mr Jose, SA, PMO seeking transfer of the request to PM&C, with additional email traffic attached.

4. Email of 10/01/2008 from Mr Gavin Ryan, Office of Senator Gavin Marshall, to Ms Sarah Adams regarding Mr He.

5. Brief of 22/01/2008 from Mr Peter Cully, AS, Workplace Relation Legal Group, DEEWR, to Ms Sarah Adams, SA, PMO.

B. the documents exempted by Mr Anderson under s. 22 of the FOI Act, which requests the applicant’s agreement, whereas I have not given any agreement

6. Email of 07/10/2008 from Mr Broad, LPB, to Mr Corbett, regarding unfair dismissal correspondence in relation to Mr He, with additional email traffic.

7. Email of 13/10/2008 from Mr Corbett to Mr Broad.

8. Email of 13/10/2008 from Mr Corbett to Mr Broad.

I look forward to hearing from you.

Enclosure:

1. Mr Alex Anderson’s decision of 30 September 2011 on exempted documents
2. The attachment to Mr Anderson’s decision of 30 September 2011

Complaint dated 9 June 2011 to Ombudsman about the FOI delay of Prime Minister Department

2011-11-16T09:26:00.001+11:00

Dear Prof McMillan,
I made the FOI inquiry on 8 May 2009 more than two years ago. The reference number of the inquiry is FOI/2009/032.

I complain that the Legal Policy Branch of the Department of the Prime Minister and Cabinet has failed to release the FOI documents after the Department decided to release the documents without charge on 17 February 2011. The relevant officers have no ideas when the documents can be released. Please find the enclosed communications with the officers. I believe the Department’s performance is unacceptable. Please help the officers do their job properly.

Prime Minister’s Department Encourages Me to Complain about its Delay on 31 May 2011

2011-10-01T20:29:00.000+10:00

Dear Mr He

I regret the delay in responding to your email. My supervisor, Ms Jill Clark, advised me that you called yesterday seeking an update on your FOI request. Regrettably, no progress has been made since my last email to you. As Ms Clark indicated to you, the decision-maker for the request has been busy working on some legislation and therefore there has not been an opportunity to make progress on your request. Further, there has been a delay in initiating the consultation with the other Australian Government agency because of competing workloads and priorities, but we aim to initiate that as soon as possible.

Ms Clark advised me that you asked for details on how to lodge a complaint. Should you wish to complain, you may do so to the Information Commissioner. More information about making a complaint is available at the web site of the Office of the Australian Information Commissioner: http://www.oaic.gov.au/publications/FOI_fact_sheet13_how_to_make_a_complaint.html.

I shall contact you again when I have more information.

Regards

Angelo Anagnostis

Adviser
Access and Administrative Review Section
Legal Policy Branch
Department of the Prime Minister and Cabinet

Email of 24 February 2011 in Response to the Department’s Inquiry

2011-08-10T12:43:00.001+10:00

Dear Ms Clark,
Thanks for your quick response. I would like that ‘[my] comments in relation to the meaning of benefit and public interest’ are assessable by more officers in the Government. I hope ‘the benefit from the release of’ my comments to relevant decision makers ‘would flow to the public at large, or a substantial section of the public’. I really appreciate Ms Lynch’s attitude toward an applicant’s opinion on the Government’s Guidelines.

Could you please kindly advise me when I can get the documents?

Enclosure: The Prime Minister Department’s Inquiry of 23 February 2011

My email of 22 February 2011 commenting on the FOI decision on waiving processing charges

2011-07-11T16:08:00.007+10:00

Dear Ms Clark,

Thanks for your email and letter of 17 February 2011. I accept Ms Lynch’s decision of ‘[waiving] all FOI processing charges’ even through some reasons for the decision are strange to me. Please kindly advise when I can get the documents requested.

When last time Ms Lynch made the decision of waiving the $30 application fee, she did not provide her reasons. This time you outlined her reasons for waiving the processing fees. Like Mr Anderson in his decision on application fee, you referred to the Government’s FOI Guidelines, which request the decision maker to ask the question, ‘whether the benefit from the release of the information contained in the particular documents sought would flow to the public at large, or a substantial section of the public’ (bold added). That is not the question asked by the FOI Act. The FOI Act asks: ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’(bold added). It does not request ‘benefit…flow to the public at large’. In my opinion the Government’s FOI Guidelines is incorrect in that regard.

According to the Australia’s National Dictionary—Macquarie the first three definitions of 'benefit' are:

‘1. an act of kindness.
‘2. anything that is for the good of a person or thing.
‘3. a theatrical performance or other public entertainment to raise money for a worthy purpose.’

And the first three definitions of 'interest' are:

‘1. the feeling of one whose attention or curiosity is particularly engaged by something.
‘2. a particular feeling of this kind.
‘3. the power of exciting such feeling; interesting quality.’

‘Benefit’ requests a positive result whilst ‘interest’ does not. In other words, the Guidelines request a decision maker to make sure that ‘the release of the information contained in the particular documents’ has detrimental effects to ‘the public at large, or a substantial section of the public’. Ms Lynch failed to identify any particular document requested would have detrimental effects to the general public or a substantial section of it; therefore, her decision failed to show any substantial reasons to justify her opinion on my public interest grounds. This may not be all her fault. She is paid to follow the Guidelines even it is ridiculous. Nevertheless, I cannot argue whether or not the general public or substantial section of it will get benefit from the documents requested so far because the contents of the documents have not been shown to me. It sounds insane that I ask first to access the documents for complaining and reviewing some Ms Lynch’s reasons for her decision in relation to accessing those documents. In my opinion, if I follow the Guidelines, I have no other choice. I kind of understand Ms Lynch’s difficulties to follow the Guidelines.

I would like to get any comment about my opinion on the Guidelines from you or Ms Lynch.

I look forward to hearing from you.

Enclosure:

Decision dated 17 February 2011 from Ms Philippa Lynch, First Assistant Secretary, Government Division of the Department of the Prime Minister and Chamber

The Minister refused to reply my email of 7 January 2011

2011-05-08T20:50:00.002+10:00

On 20 January 2011,Jo who worked in the office of the Minister for Workplace Relations called back and said a staff had gone through my email. As I had raised the matter for a few times and Murray Furlong had responded for a few times, there would be no more response to my email. I asked her to put what she said in writing. She said she couldn’t do that. I said to let other people do that. She said nobody would do that. I said I believe that I am entitled to get a response in writing. It does not matter, one line or two lines. Just say: we had heard enough about it. That is the end of the road. No more response will be given on this matter. That is a waste of time. She said nobody would do that because Murray Furlong had responded to my letter, he was an expert. Nobody could do better than him and he asked you to get independent legal advice. I said I got legal advice that is employees have to follow apparently unlawful directions given by their employers. If they don’t follow their employers’ apparently unlawful direction and are sacked due to that they cannot win their claims of reinstatement under the law of unlawful dismissal. She said the government could not control what kind of independent legal advices are given. I asked: does the government want the employees to follow employers’ apparently unlawful directions given by their employers? She said she did not know that. I said that is the point of my letter because Murray Furlong failed to answer that question. He failed to answer the question about the case law which requests complaining workplace illegalities ‘only to a Court or Tribunal’. She said she did not read my email of eight pages. I said please read it. She said she had no time to read it. I said if she had no time let other people read it. It is relevant to eight millions employees and the general public. It is worthwhile to read it. She said she had no time to speak to me anymore and had to gone. I said I knew she had no authority to say anything to me just like Murray Furlong, he was not authorised to say the case law is wrong or right. He kept playing around and made errors on the facts. I correct them in my email. She said she had to go and hung up the phone.

Email of 7 January 2011 to the Minister for Workplace Relations

2011-04-05T22:41:00.004+10:00

Dear the Hon. Senator Evans,

Thank you for the letter of Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman, of 20 December 2010, which was written on your behalf in response to my email of 12 October 2010 to you.

The Attitude of Your Office and the Director of Government Policy of Fair Work Ombudsman

Mr Furlong referred to the facts that I had written to the Ministers for Employment and Workplace Relation a few times about the case law (Zhang v the Royal Australian Chemical Institute In; [2005] FCAFC 99 (Zhang’s Case)) since January 2008 and he had responded three times since 29 April 2010. Actually I had raised the matter to the then Government and Opposition since the case law was published in 2005. The Labor Government tried to address the issue but ‘the inapplicability of section 772(1)(e)’, as found by Mr Furlong, is still affecting all workers’ basic right and the society.

My concern, which has been supported by thousands peoples, dozens politicians and organizations who support the petition for the matter, is the case law requests workers to complain workplace illegalities ‘only to a Court or Tribunal’ (par 25 of Zhang’s Case) and therefore, is unconstitutional. Mr Furlong’s responses failed to answer my question. He has not directly referred to the case law—complaining workplace illegalities ‘only to a Court or Tribunal’. He doesn’t deny that the case law affects workers’ right to claim unlawful dismissal under section 772(1)(e) of the Fair Work Act 2009.

As written in previous emails, I understand Mr Furlong’s dilemma—he can say neither that the case law is wrong because you don’t give him the authority and he is paid to enforce the government’s policies including the case law, nor that the case law is right due to his conscience and professionalism; therefore, he advised me twice to ‘seek independent legal advice’.

As written in previous emails, the legal advices from the Fair Work Australia are all case laws are government’s policies. Many lawyers including industrial law expert support the petition against the case law like many Labor politicians. The independent legal advices are if employees refuse their employers’ apparently unlawful directions, the employees can be sacked and cannot win their legal fight for reinstatement. That is why I have been raising the matter to the Government for many years.

I know that is what your office and Mr Furlong want. They did not say the case law is the government’s policy and correct. That is the independent legal advice. They put their heads into the sand. They cannot do anything else because you or the Labor leadership has not authorized them to say anything about it or they do not want to take the responsibility at all.

In his letter of 29 April of 2010, Mr Furlong confidently wrote: ‘The Fair Work Act prohibits an employer from taking adverse action, such as dismissing an employee or altering the employee’s position, because the employee has made a complaint or inquiry in relation to employment to anyone’; however, the reality is different.

A good example is the well know dismissal of the Jetstar’s pilot in late 2010, Mr Eakins who complained the Jesstar’s safety culture to the media under section 341(1)(c) of the Fair Work Act. His union got industrial expert’s advice. There was no argument that Mr Eakins was sacked due to his complaints to the media. The Department of Workplace Relations and the Fair Work Australia did not say Mr Eakins could get his job back. The result was Mr Eakins could not be reinstated under the Fair Work Act because of the operation of the case law except making an open apology to his employer and suffering public humiliation. His union boss Mr Barry Jackson said he expected ‘stronger whistleblower protections’.

The High Court Registry’s advice was nothing could change the case law except the government takes the matter to the High Court.

Mr Furlong failed to comment on that. Mr. Furlong wrote: ‘This issue has been dealt exhaustively’. He might consider he has done his best. He cannot change the Labor Government’s policy. If that is the case, I have to write raise this issue to you again because from my view point:

a. if the Government holds the case law is correct, it should inform employees to complain workplace illegalities ‘only to a Court or Tribunal’ and how to do so as, for the time being, employees cannot complain workplace illegalities to ‘a Court or Tribunal’ in ordinary circumstance

b. If the Government holds the case law is wrong, in my opinion, the Government should express its concern publicly and do something to correct the error. If your office cannot make a decision on this matter, it can transfer the matter to the Prime Minister’s Office. If the Prime Minister cannot make a decision, then let the voters decide it. In summary of this section, please directly answer the question whether the case law—employees should complain workplace illegalities ‘only to a Court or Tribunal’—is wrong.

The Issues Dealt by Mr Furlong

‘(a) Reinstatement continues to be available a remedy.’

Reinstatement has been a remedy for unfair dismissal under the previous Workplace Relations Act 1996. Why is the Labor Government bothered to add extra protection? It is because everyone knows it is too hard to be reinstated under the unfair dismissal law. In the pilot’s case mentioned above, Mr Eakins could not be reinstated under the law of ‘General Protections’. Therefore the ‘General Protection’ law does not work better than the unfair dismissal law in respect of reinstating employees who are sacked due to their complaints.

(b) The case law breaches the Termination of Employment Convention Mr Furlong referred to section 772(1)(e) of the Fair Work Act ‘the filing of a complaint or …or recourse to competent administrative authorities’, said ‘This is based on identical words used in the Termination of Employment Convention’. On the face of them, they are not consistent with the case law—‘only to a Court or Tribunal’. In my opinion, that is why he has not quoted the case law in his letters. Mr Furlong referred to my quote from the Report of the Committee of Experts: ‘legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law…’ (emphasis added). However, he hinted the following paragraph of the Report, which is: ‘the existence of guarantees providing protection against retaliatory measures for a person who lodges complaint with the appropriate body…’ (emphasis added by Mr Furlong), corrects the paragraph I referred to.

It is strange to me that Mr Furlong understood the Report that way. In my opinion, if the Committee had ever doubted about the paragraph I referred to, the committee would:

(i). have simply deleted that paragraph or
(ii). have used the wordings—lodges of complaint with the appropriate body—instead of ‘the filing of a complaint or …or recourse to competent administrative authorities’.

On the face of this section of the Report, the paragraph I referred to explains ‘the filing of a complaint’; the paragraph Mr Furlong referred to deals with ‘or recourse to competent administrative authorities. Mr Furlong is well educated he should know why the word—‘or’— is used here. ‘Or recourse to competent administrative authorise’ does not affect or put restriction on ‘the filing of a complaint’. He should know this, except trying to mislead or deceive the public. Nevertheless, ‘recourse’ is used here. That is when ‘denounce’ does not work, the next step is to ‘recourse to competent administrative authorities’.

Furthermore, as mentioned above, Mr Furlong asserted that the Labor Government held employees have the right to make complaints to their employers. Why does he try to allege the Report held that employees have no right to make complaints to employers? Nevertheless, in his previous letter he even believed to the effect that the court in Zhang’s Case should hold ‘that any one of three circumstances could be relied on under s. 170CK(2)(e):

‘1. the filing of a complaint by the employee against an employer involving the alleged violation of laws or regulations

‘2. the employee’s participation in proceedings against an employer involving the alleged violation of laws or regulations.

‘3. the employee’s recourse to competent administrative authorities.’ Mr Furlong contradicted himself. Now he believes only the third circumstance could be relied on, not the first one.

(c). Employees can claim reinstatement on ‘a discriminatory ground (race, colour, sex, sexual preference, age, etc.)’.

I cannot understand why Mr Furlong considered that was a new issue risen in my email except he tried to change the issues of concern. The cases referred to in my websites include sacked employees who were young white male employees.

( d) There is no need to protect employees’ right of complaint against workplace illegalities because there are many statures prohibiting employers from conducting workplace illegalities.

According to Mr Furlong’s assertion there is no need to enact the ‘General Protection’ law of the Fair Work Act at all. There is no need to give employees right to complain and refuse apparently unlawful directions given by their employers.

Mr Furlong first asserted ‘the inapplicability of section 772(1)(e)’ but failed to write down the cause of the ‘inapplicability’. Then he contradicted his own assertion saying: ‘All Zhang’s Case established was that the ambit of the unlawful termination provision did not extend to complaints made internally to the employer alone’. Mr Furlong is a legal expert. If he had truly believed what he wrote, he would have analysed why Zhang’s Case law is right to say that complaints should be made ‘only to a Court of Tribunal’ and why many Judges and Commissioners only referred to paragraph 25 of Zhang’s Case, which contains ‘only to a Court or Tribunal’, not other paragraphs.

Mr Furlong referred to Jennings v Salvation Army [2003] FCA 1193, which held WorkCover is not the competent administrative authorities defined by the Convention because of the no-fault compensation scheme. There is no real ‘no-fault compensation scheme’. If an employer believes he has no fault and responsibility, the employer, of course, does not want to pay, and WorkCover will not support an employee’s claim if it finds the employer has ‘no-fault’. The real term of the ‘no-fault’ is that even though the WorkCover decides that an employee should be compensated it will write down that the employer has a fault because a fault finding in writing may cause further problems for the employer. Furthermore, the Convention and Report do not say that a competent authority has to be an authority that does not manage a ‘no-fault compensation scheme’; therefore, Jennings’s Case does not conform to the Convention and Report. Put another way, Mr Furlong has not found any ‘competent authority’ to which that mistreated, coerced or bullied employees can complain.

In Damien Warren Weier v Modern Alarms - [2007] AIRC 432 (4 June 2007), the Court clarified: ‘the scope of [772(1)(e)of the Act] is limited to complaints made to tribunals and courts, and not to other bodies constituted by acts of parliament for (part) purposes of investigation and resolution of employment-related complaints. On this reading, a complaint to the Office of Workplace Services or the Employment Ombudsman would not constitute a complaint for purposes of [772(1)(e)of the Act]. Nor would a complaint to the Australian Taxation Office in respect of non-compliance with the Superannuation Guarantee legislation’ (par 44 of the judgment).

In my email I clearly wrote that Zhang’s Case is a strike-out case. The judge could not make any finding except assuming all claims made by the applicant were correct. If the judge had had anything unclear he would have had heard the evidences. He struck out the case because it was clear that the applicant did not complain ‘to a Court or Tribunal’. Mr Furlong is a legal expert. Strangely, he failed to make any comments on my assertion, but repeated what he had written in his previous letter that the judge found ‘the evidence was unclear’ and the judge made findings. Seemly, he believed that a lie repeated a thousand times becomes a truth.

Mr Furlong asserted: ‘Unless an employer is aware of complaint, the complaint cannot be the basis for the dismissal.’ In Zhang’s Case, the union’s involvement is a fact. I have difficulty to understand why Mr Furlong ignored this fact when he made his assertion. According to his assertion Zhang’s Case is wrong. I guess he wants me to raise this issue to you because he has no authority to say Zhang’s Case is wrong.

Enclosure:

1. My email of 12 October 2010 to the Minister for Employment and Workplace Relations

2. Mr Furlong’s response dated 20 December 2010

Email of 12 October 2010 to the Minister for Workplace Relations

2011-03-05T21:42:00.001+11:00

Dear the Hon. Senator Evans,

Congratulations on your appointment as Minister for Employment and Workplace Relations.

1. Background

On 3 June 2010 and 7 July I wrote emails in relation to workers’ constitutional right to the then ministers. On 19 August I received an email response dated 2 August from Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman on behalf of the Hon Simon Crean MP.

I have pursued the issue since Zhang’s case law—workers complain about workplace illegalities ‘only to a Court or Tribunal’—was published in June 2005 (Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 (Zhang’s case)(par 25)). As workers cannot directly complain ‘to a Court or Tribunal’ against employers’ apparently unlawful instructions in normal circumstances, Mr Furlong found to the effect that Zhang’s case law ‘shut’ ‘the “unlawful termination” door.’ In the other words, for the time being, workers have to follow employers’ apparently unlawful directions if they do not want to upset their employers and to be sacked in retaliation.

I have been grateful for that you were willing to present the petition against Zhang’s case law in March 2007 to the Senate. I hope that workers’ constitutional right to follow the law will be upheld soon under your leadership.

I understand that Mr Murray, as a government’s employee, he could not say the government’s policy, which includes Zhang’s case law, was wrong; otherwise his own employment would be in dilemma. His job is to ‘enforce’ the government’s policy. Even though his job requests him to say that Zhang’s case law is correct, he did not say that despite I asked the question—whether Zhang’s case law was wrong—a few times in my previous email.

2. Zhang’s case law

In my email of 3 June 2010, the title of the second section is ‘Mr Furlong failed to directly refer to the case law—complaining workplace illegality “only to a Court or Tribunal”’ He avoided directly dealing with Zhang’s case law, even though this time he did better than his previous response by referring to the case.

In previous response Mr Furlong wrote he read my website http://upholding-people-right.info. At webpage, /unlawful.html, I wrote:

‘The unlawful dismissal law above was from the Termination of Employment Convention 1982 of the International Labour Organization after Australia Government signed the Convention. In ‘Protection against Unjustified Dismissal’ Report of Committee of Experts, International Labour Office, 1995, pars 115-117, the interpretation of the law is:

“Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labor Code or other legislative provisions. Thus, in a growing number of countries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law, discriminatory practices in employment or non-compliance with occupational safety and health provisions…”

Bold is added on “denounce”. The Full Court of Federal Court in the principal decision referred to this interpretation but did not quote any part of it.’

On face of the above interpretation, the complaint is to the employer. The word ‘denounce’ is used at workplace. Certainly, it is not used in a Court or Tribunal. To a third party, normally the word ‘complaint’ is used. I only know complaint form. I have never seen a denounce form. If you can find a relevant denounce form, please kindly send a copy to me.

Mr Furlong found to the effect that ‘the limitation’ in s.772(1)(e)’ of the Fair Work Act 2009 (Fair Work Act) was put by ‘Zhang’s case’, and the ‘limitation’ disables the unlawful termination law. That is why the petitions against Zhang’s case law have been supported by thousands people, many organizations, political parties, local governments and Federal and State politicians.

In Zhang’s case the court held: ‘[“the filing of a complaint” to an employer] cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. (par 25)’. The court clearly asserted to the effect that ‘the limitation’ put on the subsection was a convoluted ‘reading of the subsection’.

Why cannot the subsection be plainly read? Is a plain reading of the subsection against the Covering Clause 5 of the Constitution— ‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……’ or the convoluted reading made by the court? Implicitly, the court convolutedly read because, in my opinion, the court assumed workers did not know what apparently unlawful instructions were as law ‘cannot be so on a plain reading’. Based on such assumption, the court deliberately omitted the illegal issues in Zhang’s complaints to third parties, in particular, the Victorian Trades Hall Council’ response to Zhang’s complaint— ‘your situation is totally unacceptable. What your employers are demanding that you do is illegal …… Asking you to falsify records is illegal – and the company board and directors could be jailed,’—in spite of the court quoted another part of the response.

Mr Furlong did not mention Zhang’s communication with WorkCover in the case. WorkCover is a competent administrative authority, but Mr Furlong did not refer to it. Obviously that would affect his conclusion that Zhang did not communicate with ‘competent administrative authority’. I think his excuse for his omission was that he conceded to the effect that ‘the “unlawful termination” door is shut’.

The court omitted the WorkSafe Incident Notification Form, in which Zhang stated: ‘The company director gave me unlawful instructions to violate accounting standards and regulations, forced me to input wrong information to accounting record by awful phone calls, emails and by threatening my employment.’

I think the court’s excuse to omit above facts was that the bottom line set by the court was Zhang did not complain ‘to a Court or Tribunal’, therefore, ignoring above facts did not affect the conclusion—striking out Zhang’s application—like Mr Furlong’s excuse above. The court and Mr Furlong showed that they did not feel comfortable with these facts. Put another way, they did not want to show the real effect of Zhang’s case law. They believed that Zhang’s case law was apparently wrong and was not acceptable by the public.

Mr Furlong wrote: ‘the court found that the employer was not aware these communications.’
Mr Furlong as an experienced lawyer should know, a Court cannot make any finding based on the opposing party’s evidence in a striking out case. The Court struck out Zhang’s complaints by assuming every thing claimed by Zhang was true. Zhang claimed that she was terminated because of her complaints to the employer and third parties. That was the reason the Industrial Relation Commission referred Zhang’s matter to the Federal Court and wrote in the certificate: ‘An assessment of the merits has been indicated to the parties in the following terms: Based on the conflict of the factual situation and the need to hear evidentiary material the Commission is unable to issue an opinion.’ Therefore, the Commission’s opinion was the case needed to hear evidentiary material. In the other words, if the Commission had only relied on Zhang’s claim, the Commission’s opinion would have been that she was unlawfully terminated. On the face of the Commission’s opinion, the specialized Commission held that Zhang claimed that she had complained about unlawful matter to third parties.

Mr Furlong wrote: ‘The purpose of Article 5, according to the Court, was ‘to prevent retaliation against employees who make complaints to third parties against their employers’. This may explain the limitation in s. 170CK(2)(e).’ According to the context, ‘the Court’ referred to by Mr Furlong was the Court of Zhang’s case. But the fact is that the Court of Zhang’s case, following above quotation, specifically wrote: ‘For all those reasons, in my opinion, the decision in He is, with respect, correct.’ Therefore, Zhang’s complaint to the court was struck out because she did not complain ‘to a Court or Tribunal’ during her employment, not because she did not complain to a third party.

Mr Furlong looked at my website. At webpage—case.html, I referred to dozen cases, which had applied Zhang’s case law. Furthermore, in section 5 of my email of 3 June, I particurly referred to other judgemnts which applied the case law— complaining workplace illegality ‘only to a Court or Tribunal’. Mr Furlong did not reply to my point. He did not explain why his understanding of Zhang’s case law was different from other judges’ and commissioners’ understanding about the Zhang’s case law.

3. He’s case law

Mr Furlong referred to He’s case law—‘complaint to any external authority’ (He, in the matter of an application for Writs of Mandamus and Certiorari or Constitutional Relief against Lewin [2004] FCAFC 161(par 45) (He’s case)), and outlined that the court found He was sacked because he complained workplace illegalities. Mr Furlong found to the effect that He’s case law put ‘limitation’ on ‘the unlawful termination’ law. My concern is that such limitation is unconstitutional like my comment on Zhang’s case law.

In He’s case, the legal or unconstitutional point is clear:
(a) a worker has no right to claim reinstatement after being sacked because he complained about workplace illegalities;
(b) an employer can legally dismiss any worker who refuses to follow apparently unlawful instruction;
(c) a sacked work cannot reinstated under the unfair dismissal law because the employer has the right to retaliate and sack a worker who complains against the employer’s apparent unlawful instructions;

Mr Furlong wrongly wrote that ‘the Australian Industrial Relation Commission held that the unlawful termination provision in s. 170CK(2)(e) of the WR Act did not apply. The Full Bench of the Commission …agreed.’ It sounds that Mr Furlong read these two decisions. However the facts are that these two decisions denied any workplace illegalities. That was the reason the High Court remitted He’s appeal to the Full Federal Court. Why did the Commission and the Full Bench denied the unlawful issues in He’s complaint (par 37 of the He’s case)? On the face of it, the specialized Commission and Full Bench had believed that if He was sacked due to his complaint against workplace illegalities, he should be reinstated.

4. The limitations put by He’s and Zhang’s case laws disable the unlawful dismissal law and workers’ constitutional right; therefore the limitations are unconstitutional

Mr Furlong found to the effect that the limitations put by He’s and Zhang’s case laws breach the Termination of Employment Convention 1982 of the International Labour Organisation Convention signed by Australian Government because the ‘“unlawful termination” door is shut’.

Mr Furlong argued that the Government uses the unfair dismissal law and workplace right law to deal the problem caused by He’s and Zhang’s case laws. As said in section 4 of my previous email, the bottom line drawn by two case laws is that it is legal that an employer terminates an employee who refuses and complains about apparently unlawful instructions. He’s case is a good example. He was not reinstated.

Even though Mr Furlong is paid to enforce the government policy—Zhang’s case law, he showed that he did not want to enforce the policy—complaint ‘only to a Court or Tribunal’. I guess that was beyond the bottom line of his conscientious and professionalism. He has no authority to question the policy. Please let someone who has the authority to question the policy to respond to this email.

The main remedies for unfair dismissal and workplace right are almost same for the employees. The main remedies or reliefs are not reinstatement. Even though some employees can get some remedies, usually, if it is lucky, those remedies are just enough for legal costs. Mr Furlong has not find any case that an employee has been reinstated after being sacked because the employee’s complaints against workplace illegalities. On my website, on page case.html, dozens cases are listed. In those cases workers were not only told that they were stupid to consider they had rights to claim unlawful dismissals but also ordered them to pay the employers’ costs.

Mr Furlong mentioned ‘workplace occupational health and safety laws are administered by State and Territory Government. He as a senior lawyer should know the commonwealth law prevails over the state law under s 109 of the Constitution. He mentioned state governments have right to indict employers’ offenses, but unfortunately that is not the employee’s right to claim unlawful dismissal and reinstatement.

5. Summary

Mr Furlong did not answer the questions below raised in my email of 3 June:
‘a. why the government diminish workers’ right to be reinstated comparing with the Work Choice 2005?
b. why the government wants to deny worker’s right to claim unlawful dismissal when workers are retaliated and dismissed due to their complaints against workplace illegalities?
c. why Fair Work Australia denies the existence of the law of unlawful dismissal (Mr Furlong wrote worker could still claim unlawful dismissal in national system. On Fair Work Ombudsman’s website, it has unlawful termination. When I called the Ombudsman on 13 13 94 on 11 October 2010, I was told I had to call Fair Work Australian for unlawful dismissal on 1300 799 675. Michelle of Fair Work Australian told me on 11 October that a worker in national system cannot claim unlawful dismissal. I looked at the webpage, http://www.fwa.gov.au/index.cfm?pagename=disputegeneral#unlawful, which says in national system a worker cannot claim unlawful dismissal. My answer for this question is that Fair Work Australia knows “‘the unlawful termination’ door is shut’, it should not knowingly send workers to the Court to make workers be ordered to pay the employers’ costs’)?
d. whether the government believes that the employer’s authority is more important than the laws and regulations?’

Mr Furlong found to the effect that He’s case law is wrong; therefore, the government uses workplace right to address the issue. He wrote: ‘paragraph 1370, that unlike previous provisions, “it is not a prerequisite 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.”’ Zhang’s case law is even worse but he did not have the authority to say whether Zhang’s case law is wrong or put limitation on Fair Work Act.

In additional to the unanswered question raised in previous email, why the government cannot eliminate the limitations put on s. 772(1)(e) of the Fair Work Act by He’s and Zhang’s case laws in order to enable the government to fulfill its obligation under the Termination of Employment Convention 1982 and Australian Constitution?

I appreciate Mr Furlong’s effort to clarify the matter. Obviously, Mr Furlong has no authority to answer the above questions as he outlined at the beginning of his letter: the incoming government has the freedom to take actions. Please let proper person answer these questions and take actions. Now it is clearer than before that the question is whether the government has the political will to solve the problems caused by both He’s and Zhang’s case laws and to make a policy decision.

My email of 3 June 2010 to the then Minister for Employment and Workplace Relations and Mr Furlong’s response dated 2 August are attached.

Enclosure:
1. My email of 3 June 2010 to the then Minister for Employment and Workplace Relations
2. Mr Furlong’s response dated 2 August

Email of 7 July 2010 to the then Minister for Workplace Relations

2011-02-08T12:29:00.000+11:00

Dear The Hon. Simon Crean MP,

Congratulation on your appointment as Minister for Employment and Workplace Relations. On 3 June 2010 I wrote an email to the then minister in relation to workers’ constitutional right. Yesterday I was advised by your office that I had to resend the email. The email is attached.

I have pursued the issue for years since the case law was published in June 2005. I am grateful for your support for the campaign against the case law. On 28 June 2006 you signed the petition against the case law. Workers are lucky to have you be the minister for employment again. I hope that workers’ constitutional right will be upheld soon.

Application for Reviewing the Decision of Charging $571 FOI Fee

2011-01-05T22:06:00.014+11:00

Dear Sir or Madam,

Ref: FOI/2009/032

I refer to Mr Anagnostis’s letter of 10 December 2010 regarding Mr Anderson’s decision in respect of my application of 28 August 2010, which requested that the estimated charge for my FOI request be reduced and furthermore not be imposed.

I request Mr Anderson’s decision on charges for my FOI request be reviewed because his reasons of decision actually failed to address the two issues raised in my application:
a. why the estimated decision-making hours (47.27 hours) is longer than a couple of hours, if the decision-makers are competent and well trained, and work efficiently?
b. why my FOI inquiry is not in the public interest?

In my application I wrote: ‘my grounds for waiving application fee and for not imposing processing charge are substantially identical’. The only possible reason for Mr Anderson’s excuses of not providing his reasons, which I could image, is that Mr Anderson used the same reasons in his decision of 14 April 2010 as his reasons for his present decision on processing charge.

My application of 30 April 2010 for reviewing Mr Anderson’s decision about not waiving the application fee was successful. Even though the decision maker Ms Philippa Lynch, First Secretary Government Division, did not directly address my grounds, apparently, my grounds were not wrong. She might have considered that Mr Anderson could address these grounds if he had had the opportunities.

Mr Anagnositis wrote: Mr Anderson considered my grounds in my application of 30 April but failed to make any comments on my grounds in the application for reviewing his previous decision. This application might have been avoided, if Mr Anderson had addressed my grounds in my successful application for reviewing his previous decision.

The further grounds for reviewing issue b

As Mr Anderson still used his reasons for his previous decision of not waiving application fee of 14 April 2010 for the present decision, I use substantially the same grounds for my previous application for reviewing his previous decision for the present application.

I appreciate that Mr Anderson apologised for the delay, which is three months longer than the guideline’s request (I was informed that the response should be in four weeks.), without any reasons. He failed to provide any reasons. Or he reckoned that he did not need to follow the guideline anyway. While the PMD’s attitude toward the guideline is that they don’t need to follow the guideline strictly, the guideline is only used to defense the PMD’s decision of refusing to disclose documents, to waive FOI application and processing fees.

1. The definition of ‘an existing public debate’

The most popular definition is:
i. debate: the formal presentation of a stated proposition and the opposition to it (usually followed by a vote) wordnetweb.princeton.edu/perl/webwn
ii. Public debate is a formal style of debate. Two teams of two compete through six rounds of argument, giving persuasive speeches on a particular topic. http://www.osaa.org/publications/handbook/0708SPEECHHandbook.pdfen.wikipedia.org/wiki/Public_debate
according to http://www.google.com.au/search?hl=en&defl=en&q=define:public+debate&ei=5ajKS76PC8yLkAXY8eHFBA&sa=X&oi=glossary_definition&ct=title&ved=0CAYQkAE

According to above definitions and the guideline quoted by Mr Anderson, which is ‘a disclosure would contribute valuable material to an existing public debate’, the decisive factors for waiving application fee are that two teams of two are competing through an argument of six-rounds and the argument is on hold waiting the FOI inquiry.

Firstly the PMD has never requested the names or evidences of ‘two teams of two’. Secondly, please provide some well known examples of ‘existing public debate’ that the FOI processing fees are waived (in particular the information can be found on internet. That is accessible by the public as required by the guideline).

Mr Anderson referred to subsection 30A(1) of the FOI Act, which does not request the additional condition of ‘existing public debate’. Please provide the definition of the ‘existing public debate’ in the guideline. If the definition is not in the guideline, it can be any controversial things, which are not private or confidential.

Mr Anderson held that:
i. the matter is of public interest; therefore, it meets the request set out in subsection 30A(1) of the FOI Act and
ii. the disclosed documents are accessible by the general public.

Mr Anderson looked at my website and blog. He knew:
i. the government had refused to do anything including providing a guideline on how to complain ‘to a Court or Tribunal’ in ordinary situations, which is requested by the case law, and
ii. on the other hand, dozens organisations, politicians and many thousands peoples from all walks of life had expressed their concerns on the matter, and
iii. while organizations, politicians and people were considering the matter, they had debated about the matter. Many websites had referred to the matter.

In summary of this section, Mr Anderson found to the effect that there is a ‘public debate on the matter of concern to you’; however, while the definition of ‘existing public debate’ is not clear, what is ‘valuable material to an existing public debate’ cannot be clear. That may not be his fault. He erred in deciding that I did not provide clear information, instead of pointing out that the definition was not clear. Please kindly provide the definition of ‘an existing public debate’, then I may provide clearer information. He erred in relying on a reason that is clear neither to the decision maker nor the applicator.

2. It is ‘incorrect’ to request workers to complain about workplace illegalities ‘only to a Court or Tribunal’

Mr Anderson wrote: ‘in fact, I wrote that your interpretation of the case law was incorrect’. The fact is he did not use the word—‘interpretation’. Seemingly, he was too shy to or a bit worry to quote what he wrote. I quote it here: ‘You refer to “the case law that requests Australians to complain about workplace illegalities ‘only to a Court or Tribunal”: with respect, this is incorrect.’

i. It is a convention to say ‘with respect’ when one expresses an opinion different from a Court’s decision. Mr Anderson has not said ‘with respect’ when he disagreed with my points in his letters.

ii. He further clarified what part was ‘incorrect’—the part ‘only to a Court of Tribunal’—saying: ‘This protects employees not only against dismissal because of a complaint to a court or tribunal, but also against dismissal because of a complaint to any other outside authority with power to investigate relevant allegation.’ On the face of it, the ‘incorrect’ part of the sentence is ‘only to a Court or Tribunal’.

iii. No government officer has said that ‘only to a Court or Tribunal’ is wrong except Mr Anderson said it on behalf of the Prime Minister. I kind of understand his dilemma. He still considered ‘only to a Court or Tribunal is ‘incorrect’, but he erred in finding that ‘incorrect’ statement was my interpretation. It is not clear to me why he made such apparent mistake.

iv. The fact is ‘only to a Court or Tribunal’ is a quotation from the case law, not an interpretation. No government officers or politician has asserted that ‘only to a Court or Tribunal’ is correct; implicitly, Mr Anderson cannot assert that as well.

v. Mr Anderson failed to provide any interpretation that he thought could be correct one. I do not doubt that he would have provided a correct interpretation, if he had a different one.

vi. Mr Anderson has looked at my website, which refers to more than two dozen cases that have followed the case law. Mr Anderson did not find any judges or commissioners had made any different interpretations.

vii. His letter of 26 August 2008 was written on behalf of the then Prime Minister. The letter of 14 April 2010 was written on his own capacity. If that is the reason of why he tried to change the wording used in his letter of 26 August 2008, in my opinion, it is improper.

viii. I could not figure out why he made such mistake. I guess Mr Anderson might be under pressure to defence the government’s attitude towards the ‘incorrect’ case law. He might try to find an excuse. The only thing he could do was blaming me not other officers or politicians.

In summary of this section, Mr Anderson erred in deciding: place no weight on your incorrect characterisation of what I wrote for the purpose of considering whether the processing fee should be waived

3. Public interest and debate in whether the then Prime Minister wanted to keep the ‘incorrect’ policy

Mr Anderson reaffirmed to the effect that ‘only to a Court or Tribunal’ is ‘incorrect’ even though he wrongly alleged that was my interpretation as outlined above. As no government officer or politician has asserted that ‘only to a Court or Tribunal’ is correct, the consequential question of the public debate and interest is why the government has not done anything against the ‘incorrect’ policy.

Mr Anderson held ‘the public might well have an interest in government information relating to the protection of employees given apparently unlawful directions by their employers in workplace’; however, he did not find that the government had properly addressed the public interest in this matter. Now the public interest and debate are on whether or not the Hon. Kevin Rudd MP knew the ‘incorrect’ policy. If he had not been informed, who decided the Hon Kevin Rudd MP should not be informed? What guideline was followed?

Children overboard affair is a good example that the public was interested in and debated on the ‘record administrative notes in relation to processing Ministerial correspondence.’ The then Labor Opposition made two senate inquiries to find out whether the then Prime Minister had known relevant information.

The public is puzzled why the Government has kept the ‘incorrect’ policy for so long. My FOI inquiry is also relevant to the public interest and debate in whether the Hon Kevin Rudd MP is two-faced.

Mr Anderson found to the effect that Ms Marsha Thomson MP’s letter supported my previous inquiry which was about ‘administrative notes in relation to proceeding Ministerial correspondence’ in relation to the case law or ‘the protection of employees given apparently unlawful directions’.

In summary of this section, Mr Anderson erred in deciding:
i. that the public have no interest in the ‘administrative notes in relation to processing Ministerial correspondence…,’ or that ‘such notes would [not] add to any debate about the protection of employees given apparently unlawful directions by their employers in the workplace.’
ii. not to attach any significant weight from Ms Marsha Thomson MP’s letter in considering my request for the remission.

I also apply for waiving the application fee for review. My grounds are that the FOI inquiry is in the interests of the general public or a substantial section of the public. The grounds are basically the same grounds outlined above plus the grounds of the general public interests or in the interest of a substantial section of public in my initial FOI inquiry letter of 8 May 2009 to the then Prime Minister, which is attached.

If you have any queries about this letter, please do not hesitate to contact me.

Enclosure:

My initial FOI inquiry letter of 8 May 2009 to the then Prime Minister

Mr Anagnostis’s letter of 10 December 2010 p1, p2 and p3

Letter of 28 August 2010 to the Adviser of the Prime Minister’s Department

2010-12-06T13:15:00.005+11:00

Dear Sir,

Ref: FOI/2009/032

I refer to your letter dated 29 July 2010. I contend that the charge should be reduced or not imposed because:

a. the estimated decision-making hours (47.27 hours) is too long,
b. the giving of access will be in the public interest.

I believe that if the decision making time longer than a couple of hours, apparently, it means the decision makers do not family with the FOI policy. In my opinion, I should not pay for the decision makers’ training, learning, incompetence or inefficiency.

In my letter of 30 April 2010, I requested, on the ground of public interest, to review Mr Alex Anderson’s decision on my application fee. You informed me that my application for reviewing Mr Anderson’s decision would be on hold if I wanted to process my FOI inquiry first and that I could swap the priorities if I wanted.

As my grounds for waiving application fee and for not imposing processing charge is substantially identical, I request now to process my application for reviewing Mr Anderson’s decision of not waiving my application fee first.

If you have any queries about this letter, please do not hesitate to contact me.

Enclosure: Letter of 29 July 2010 from Mr Angelo Anagnostis, Adviser of the Access and Administrative Review Section, Legal Policy Branch, Department of the Prime Minister and Cabinet p1, p2, and p3.

Letter of 30 April 2010 to the FOI Co-ordinator of the Prime Minister’s Department

2010-11-06T17:01:00.005+11:00

Dear Sir or Madam,

Ref: FOI/2009/032

I refer to Mr Anderson’s decision of 14 April 2010. I attach a cheque of $30 for the application fee so my FOI inquiry can go ahead. At the same time I request Mr Anderson’s decision on remission of application fee to be reviewed because his decision was based on some vague or faulty assumptions.

If you find Mr Anderson’s assumptions are not proper, my application fee can be refund later. If the guideline provides: once application is paid no review will be conducted, please conduct the review first and post back the cheque.

The grounds for review

I appreciate that Mr Anderson apologised for the delay, which is three months longer than the guideline’s request (I was informed that the response to a FOI inquiry is four weeks.), without any reasons. He failed to provide any reasons. Or he reckoned that he did not need to follow the guideline anyway. While the PMD’s attitude toward the guideline is that they don’t need to follow the guideline strictly, the guideline is only used to defence the PMD’s decision of refusing to disclose documents or to waive FOI application fee.

The section of ‘Revised terms of your FOI request’ (in Mr Anderson’s letter)

My point was not whether or not the PMD could deal with my FOI inquiry. My point was my FOI inquiry in relation to the documents held by the PMO should be dealt with by the FOI branch not the legal police branch when dealt with by the PMD because I was advised that the reasons of why my previous FOI inquiry was not dealt with by the FOI branch was that the inquired documents were not produced by the FOI branch.

The section of ‘Decision on remission of application fee’ (in Mr Anderson’s letter)

1. The definition of ‘an existing public debate’

The most popular definition is:
a. debate: the formal presentation of a stated proposition and the opposition to it (usually followed by a vote) wordnetweb.princeton.edu/perl/webwn
b. Public debate is a formal style of debate. Two teams of two compete through six rounds of argument, giving persuasive speeches on a particular topic. http://www.osaa.org/publications/handbook/0708SPEECHHandbook.pdfen.wikipedia.org/wiki/Public_debate
according to http://www.google.com.au/search?hl=en&defl=en&q=define:public+debate&ei=5ajKS76PC8yLkAXY8eHFBA&sa=X&oi=glossary_definition&ct=title&ved=0CAYQkAE

According to above definitions and the guideline quoted by Mr Anderson, which is ‘a disclosure would contribute valuable material to an existing public debate’, the decisive factors for waiving application fee are that two teams of two are competing through an argument of six-rounds and the argument is on hold waiting the FOI inquiry.

Firstly the PMD has never requested the names or evidences of ‘two teams of two’. Secondly, please provide some well known examples of ‘existing public debate’ that the FOI application fees are waived (in particular the information can be found on internet. That is accessible by the public as required by the guideline).

Mr Anderson referred to subsection 30A(1) of the FOI Act, which does not request the additional condition of ‘existing public debate’. Please provide the definition of the ‘existing public debate’ in the guideline. If the definition is not in the guideline, it can be any controversial things, which are not private or confidential.

Mr Anderson held that:
a. the matter is of public interest; therefore, it meets the request set out in subsection 30A(1) of the FOI Act and
b. the disclosed documents are accessible by the general public.

Mr Anderson looked at my website and blog. He knew:
a. the government had refused to do anything including providing a guideline on how to complain ‘to a Court or Tribunal’ in ordinary situations, which is requested by the case law, and
b. on the other hand, dozens organisations, politicians and many thousands peoples from all walks of life had expressed their concerns on the matter, and
c. while organizations, politicians and people were considering the matter, they had debated about the matter. Many websites had referred to the matter.

In summary of this section, Mr Anderson found to the effect that there is a ‘public debate on the matter of concern to you’; however, while the definition of ‘existing public debate’ is not clear, what is ‘valuable material to an existing public debate’ cannot be clear. That may not be his fault. He erred in deciding that I did not provide clear information, instead of pointing out that the definition was not clear. Please kindly provide the definition of ‘an existing public debate’, then I may provide clearer information. He erred in relying on a reason that is clear neither to the decision maker nor the applicator.

2. It is ‘incorrect’ to request workers to complain about workplace illegalities ‘only to a Court or Tribunal’

Mr Anderson wrote: ‘in fact, I wrote that your interpretation of the case law was incorrect’. The fact is he did not use the word—‘interpretation’. Seemingly, he was too shy to or a bit worry to quote what he wrote. I quote it here: ‘You refer to “the case law that requests Australians to complain about workplace illegalities ‘only to a Court or Tribunal”: with respect, this is incorrect.’

a. It is a convention to say ‘with respect’ when one expresses an opinion different from a Court’s decision. Mr Anderson has not said ‘with respect’ when he disagreed with my points in his letters.

b. He further clarified what part was ‘incorrect’—the part ‘only to a Court of Tribunal’—saying: ‘This protects employees not only against dismissal because of a complaint to a court or tribunal, but also against dismissal because of a complaint to any other outside authority with power to investigate relevant allegation.’ On face of it, the ‘incorrect’ part of the sentence is ‘only to a Court or Tribunal’.

c. No government officer has said that ‘only to a Court or Tribunal’ is wrong except Mr Anderson said it on behalf of the Prime Minister. I kind of understand his dilemma. He still considered ‘only to a Court or Tribunal is ‘incorrect’, but he erred in finding that ‘incorrect’ statement was my interpretation. It is not clear to me why he made such apparent mistake.

d. The fact is ‘only to a Court or Tribunal’ is a quotation from the case law, not an interpretation. No government officers or politician has asserted that ‘only to a Court or Tribunal’ is correct; implicitly, Mr Anderson also cannot assert that.

e. Mr Anderson failed to provide any interpretation that he thought could be correct one. I do not doubt that he would have provided a correct interpretation, if he had a different one.

f. Mr Anderson has looked at my website, which refers to more than two dozen cases that have followed the case law. Mr Anderson did not find any judges or commissioners had made any different interpretations.

g. His letter of 26 August 2008 was written on behalf of the Prime Minister. The letter of 14 April 2010 was written on his own capacity. If that is the reason of why he tried to change the wording used in his letter of 26 August 2008, in my opinion, it is improper.

h. I could not figure out why he made such mistake. I guess Mr Anderson might be under pressure to defence the government’s attitude towards the ‘incorrect’ case law. He might try to find an excuse. The only thing he could do was blaming me not other officers or politicians.

In summary of this section, Mr Anderson erred in deciding: ‘place no weight on your incorrect characterisation of what I wrote for the purpose of considering whether the application fee should be remitted’

3. Public interest and debate in whether the Prime Minister wanted to keep the ‘incorrect’ policy

Mr Anderson reaffirmed to the effect that ‘only to a Court or Tribunal’ is ‘incorrect’ even though he wrongly alleged that was my interpretation as outlined above. As no government officer or politician has asserted that ‘only to a Court or Tribunal’ is correct, the consequential question of the public debate and interest is why the government has not done anything against the ‘incorrect’ policy.

Mr Anderson held ‘the public might well have an interest in government information relating to the protection of employees given apparently unlawful directions by their employers in workplace’; however, he did not find that the public interest in this matter has been properly addressed. Now the public interest and debate are on whether or not the Hon. Kevin Rudd MP knew the ‘incorrect’ policy. If he has not been informed, who decided the Hon Kevin Rudd MP should not be informed? What guideline has been followed?

Children overboard affair is a good example that the public was interested in and debated on the ‘record administrative notes in relation to processing Ministerial correspondence.’ The then Labor Opposition made two senate inquiries to find out whether the then Prime Minister had known relevant information.

The public is puzzled why the Government has kept the ‘incorrect’ policy for so long. My FOI is also relevant to the public interest and debate in whether the Hon Kevin Rudd MP is two-faced.

Mr Anderson found to the effect that Ms Marsha Thomson MP’s letter supported my previous inquiry which was about ‘administrative notes in relation to proceeding Ministerial correspondence’ in relation to the case law or ‘the protection of employees given apparently unlawful directions’.

In summary of this section, Mr Anderson erred in deciding:
a. that the public have no interest in the ‘administrative notes in relation to processing Ministerial correspondence…,’ or that ‘such notes would [not] add to any debate about the protection of employees given apparently unlawful directions by their employers in the workplace.’
b. not to attach any significant weight from Ms Marsha Thomson MP’s letter in considering my request for the remission.

I don’t argue whether I should pay the application fee for review because Mr Anderson wrote: ‘a decision is made on review to remit the application fee.”

If you have any queries about this letter, please do not hesitate to contact me.

Enc: a cheque of $30 for the application fee of FOI inquiry

Enclosure:

Mr Alex Anderson Assistant Secretary of Legal Policy Branch of PM’s Department of 14 April 2010 p1, p2, p3, p4, and 5.

Email of 3 December 2009 to the Adviser of the Prime Minister’s Department

2010-10-03T20:24:00.006+11:00

Dear Mr Anagnostis,

Thanks for your long email of 19 November. You repeated what were said previously, but did not respond to my points in my emails.

The documents I want at this stage are:

1. ‘The Guidlines in place for dealing with correspondence’ on behalf of the Prime Minister. (Thank you for summurizing the Guidelines, but I want the original documents. It can be electronic copy. It will waste paper and postage to send the hardcopy. Actually, if it is possible, I want all the documents’ electronic copies.)

2. A complete list of the documents relating to the correspondences of
(1) my letters of:
(i) 9 September 2008, and
(ii) 1 January 2009, and
(iii) 8 May 2009,
(2) Ms Rebecca Irwin’s letter of 16 December 2008,
(3) Ms Sarah Adams’s letter of 23 Feb 2009.

3. All documents on the above list.

4. The decisions should be included in the documets in 3 above, but for clarification they are listed seperately below:

(1) the decisions and reasons in relation to my letter of 9 September 2008 and 1 January 2009—the ‘subject matter[s] that warrants a response, but not from the Prime Minister, the Cabinet Secretary or the Parliamentary Secretary to the Prime Minister’,

(2) the decision and reasons in relation to not to respond to my letter of 8 May 2009 except the FOI inquiry in the letter.

5. The document relied on by Ms Irwin to state: ‘the Hon Philip Ruddock MP, informed you on 26 September 2006 of his decision not to intervene in your case, as no constitutional issues had been identified’ (par 5 of Ms Irwin’s letter of 16 December 2008 and par 13 of my letter of 1 January 2009).

With identical request, the LP Branch dislosed documents, but the PMO needed clarification

Your refer to Ms Mckivat’s letter to me of 24 April 2009, she listed my requests, which were substantially identical to the request in my letter of 8 May 2009. The PMD’s LP branch made a search and disclose the documents it held; on the contrary you kept insisting: ‘what specific information or documents you were seeking’.

You asserted: ‘The response you received from Ms Irwin and Ms Adams appear consistent with these guidelines as your letters contained a complaint about a Department response and, in relation to your letter of 1 January, followed previous correspondence from Ms Irwin’.

In my opinion:
· ‘a complaint about a Department response’ means ‘a line’ Department other than the Prime Minister’s Department, (Furthermore, I stated in my letter of 9 September 2008: ‘Mr Anderson has tried to clarify the issues in his capacity’, and ‘Mr Anderson has failed to bring this matter to your attention and has not let you decide what thing can be done’. According to the documents disclosed with Ms Mckivat’s letter to me of 24 April 2009, Mr Anderson did try to bring the issue to the Prime Minister’s attention, but MCU disalowed him to do it.)
· ‘where a PMO staff member has previously signed a reply on the subject matter’ means the same member should sign the second letter again, not another member;
therefore, I need to look at the original guildlines not the summary or interpretation.

Why the PMO replied to my letters but not more closely connected with these activites than the PMD?

You refer to ss 16(1)(b) of the FOI Act. On face of it the PMO replied to my letters and ought to be more closely connected with these activities than the PMD. I could not understand your logic. Could you please explain your logic?

The Rudd Government has done nothing to undo the damage caused by the case law in terms of protecting ‘employees who are given apparently unlawful directions by their employers in the workplace’ from retaliatory dismissals

I wanted the constitutional problem to be solved, not ‘a personal response from the Prime Minister. As outlined in my letters mentioned above:
· Mr Anderson held the case law is ‘incorrect’ and Ms Irwin held the case law ‘relates to the protection of employees who are given apparently unlawful directions by their employers in the workplace’, but both of them expressed to the effect that nothing could be done.
· the Prime Minister stated: ‘The failures that we have seen in recent times do not lie in the institutions alone. The failure lies more in the poverty of our political will to animate these institutions to dischage the purposes for which they were created’.
The government repeatedly asserted: ‘The Rudd Government has no tolerance for conduct which breaks the law’. However the situation is that bad employers’ apparently unlawfufl directions are enforceable in accordance with the ‘incorrect’ case law. Given above information, I cannot agree with you that my correspondence had received ‘appropriate consideration’. Given what the Prime Minister appealled for, I want the Prime Minister to know the damage caused by the case law.

Please kindly confirm on receiving this email and indicate when I will get a response.

I look forward to receiving your reply.

Enclosures:

Mr Angelo Anagnostis’s email of 19 November 2009

Email of 8 September 2009 to the Adviser of the Prime Minister’s Department

2010-09-03T16:47:00.003+10:00

Dear Ms Huegill,

Thanks for your email of 27 August 2009.

You wrote: ‘The Prime Minister’s Office does not have any other records relating to your various letters, which is part of the reason why your requests were transferred to the Department’ (bold added). If that was the case, please disclose the declaration from the PMO that the PMO ‘does not have any records relating to’ Ms Rebecca Irwin’s letter of 16 December 2008 and Ms Sarah Adams’s letter of 23 February 2009.

According to my request the LP branch has successfully searched the Slipstream records relating to its letter of 26 August 2008. I have difficulty to understand why Ms MacDowell could not forward my request back to the PMO while she could not access documents held by the PMO. In his letter of 10 July Mr David Macgill wrote ‘Each agency is responsible for its own decisions under the FOI Act’. Please forward my FOI inquiry back to the PMO and let the PMO make its decision.

In Ms MacDowell’s letter of 20 July 2009, she wrote: ‘As with your previous request, the subject-matter of your request is more closely connected with the functions of the department. Accordingly, your request has been transferred to the department in accordance with paragraph 16(1)(b) of the FOI Act’. On face of it she did not declare in her letter of 20 July that ‘The Prime Minister does not have any other records relating to your various letters’. In her letter he mentioned my letter of 7 July 2008 to the Prime Minister, Mr Macgill’s letter of 10 July 2009 and Ms McKivat’s letter of 24 April 2009. Both Mr Macgill’s letter and Ms McKivat’s letter are responses to my FOI inquiry of 9 September 2008 relating to my letter of July 2008. Ms MacDowell should not mix up the present FOI inquiry arose from my letters of 8 May 2009 to the Prime Minister, which is about both Ms Rebecca Irwin’s letter of 16 December 2008 and Ms Sarah Adams’s letter of 23 February 2009, with the previous FOI inquiry.

Enclosures:

Ms Kim Huegill’s email of 27 August 2009

Email of 3 June 2010 to Julia Gillard MP

2010-08-01T16:39:00.007+10:00

Dear Ms Gillard MP,

Thank you for asking Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman, to reply my email of 25 March 2010 on your behalf on 5 May 2010 (His letter was emailed to me on 5 May but dated 29 April). However, he showed that he did not have the capacity to properly address the matter raised in my email.

1. Mr Furlong wrongly referred to ‘the Fair Work Act 2010’, which does not exist at all

He might try to show that he did not family the Fair Work Act at all, writing: ‘The Fair Work Ombudsman is the agency, established by the Fair Work Act 2010.’ I cannot find ‘the Fair Work Act 2010’. On the website of the Fair Work Ombudsman: http://www.fairwork.gov.au/Footer/Pages/Legislation.aspx, it refers to the Fair Work Act 2009. Furthermore, the Fair Work Ombudsman is established under section 681 of the Fair Work Act 2009, not 2010. He might assume that the matter I raised should be dealt with by the Fair Work Act 2010 in the future.

Please kindly clarify why Mr Furlong referred to ‘the Fair Work Act 2010’.

2. Mr Furlong failed to directly refer to the case law—complaining workplace illegality ‘only to a Court or Tribunal’ (Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC99 (3 June 2005))

He referred to the website, http://upholding-people-right.info, but failed to directly refer to case law. Implicitly, for his employment prospect, he was in a dilemma:
a. He could not say that the case law is wrong because it is a well established law;
b. He could not doubt that the case law might be unconstitutional as apparently you have not allowed him to say that;
c. He could not say the case law is correct because he believed that case law was incorrect and you might have directed him not to say anything about the case law.

Please kindly provide your opinion about the case law. Is it correct, wrong or doubtful?

3. Mr Furlong wrongly asserted to the effect that the Fair Work Act 2009 ‘is marked departure from the previous legal provision’ in relation to the law of unlawful dismissal

He referred to the website http://upholding-people-right.info. On the webpage http://upholding-people-right.info/unlawful.html, it clearly states: ‘The unlawful dismissal Law, sub-section 170CK(2) of the Workplace Relations Act 1996, 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, is:
‘an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;’

He declared to the effect that a worker can claim unlawful dismissal, but was unable or failed to provide the section, under which a worker can claim unlawful dismissal after the worker is dismissed due to the worker’s complaint against workplace illegalities. He also asserted to the effect that subsection 772(1)(e) of the Fair Work Act 2009 ‘also applied prior to the commencement of the Fair Work Act. It is this provision that some of the workers in the case law cited in he documentation attached to your email relied on.’

Seemingly, he knew he had no capacity to deal with the issue. He was just playing at the matter. That was all he could do.

Please kindly provide the section of the Fair Work Act 2009, under which a worker can claim unlawful dismissal after the worker is dismissed due to the worker’s complaint about the employer’s illegalities ‘to anyone. This includes… an employer, union or to a government agency like the Fair Work Ombudsman.’ (as declared by Mr Furlong)

4. Mr Furlong found to the effect that ‘the filing of a complaint’ in subsection 772(1)(e) of the Fair Work Act 2009 is interpreted by the case law as not including employer, union and government agencies

He also found to the effect that the government acknowledged that subsection 772(1)(e) had been undermined by the case law, which requires workers complain about workplace illegalities ‘only to a Court or Tribunal’, therefore, got round the case law and enacted ‘a provision, separate [from] the unlawful termination one, which specifically protects employment-related complaints to whoever they are made.’

It seems that you did not give him the authority to tell me why the government could not challenge the case law in the High Court or reword subsection 772(1)(e) to give worker a right to claim unlawful dismissal under the law of unlawful dismissal. He suggested to the effect that while the law of unlawful dismissal is undermined, a worker can claim unlawful dismissal after the worker was dismissed due to complaints about workplace illegalities under another provision in the Fair Work Act 2009. He failed to provide the provision.

Seemingly, he suggested to the effect that the government’s policy or the Fair Work Act 2009 have two faces or can be explained in both ways: a worker have right to complain to anyone, but cannot claim unlawful dismissal under the law of unlawful dismissal. Put another way, subsection 772(1)(e) of the Fair Work Act 2009 gives an employer a right to dismiss a worker who complains workplace illegalities to anyone except ‘a Court or Tribunal’, while a worker have a right to complain to anyone under another provision of the Fair Work Act 2009, but cannot claim unlawful dismissal anyway under such provision. Therefore, we can say such provision or the government misleads or deceives workers.

Please kindly clarify whether subsection 772(1)(e) of the Fair Work Act 2009 is undermined by the case law or is in contradiction with another provision of the Fair Work Act 2009.

5. Mr Furlong deliberately avoided to directly deal with the case law, which interprets the subsection 772(1)(e) of the Fair Work Act 2009

On the face of his letter, he read all citied cases in my email, the attached documents and the website, but he deliberately avoided to refer to the cases, in which workers complained to unions and government’s agencies including Employment Ombudsman about workplace illegalities. He only referred to cases, in which workers only complained to their employers.

He referred to Stanislawa Bahonko v Moorfileds Community Anor [2005] FCAFC 116 and asserted: in this case ‘there was no ruling that complaints to administrative authorities were not protected. His assertion showed he knew the case law and other cases ruled: those ‘complaints to administrative authorities were not protected’ under the law of unlawful dismissal, which is identical to ss 772(1)(e) of the Fair Work Act 2009.

Furthermore, Stanislawa Bahonko’s case referred to the case law. It flies in the face of his assertion that ‘there was no ruling that (these) complaints to administrative authorities were not protected.’ He might argue that he only suggested that the case law referred to by the judge was irrelevant to the case and the judge made a mistake.

Please kindly provide your opinion on the reason why these cases referred to the case law.

6. Fair Work Australia declares there is no unlawful dismissal provision in the Fair Work Act 2009

According to Mr Furlong’s suggestion, I called Fair Work Online on 13 13 94. There is no option for unlawful dismissal. I chose option 5—the unfair dismissal option. My phone was transferred to Fair Work Australia. On 26 May at 10:10 am, Melissa of Fair Work Australia said there is no unlawful dismissal provision in the Fair Work Act 2009. The previous unlawful dismissal provision is equal to the court proceedings under the current general protection provision—s 340.

I could not understand why Fair Work Australia denies the existence of the unlawful dismissal provision—s 772.

I guess the reasons may be:
a. the government concedes that the case law undermines ss 772(1)(e) as I have raised the issue to you, your department, other departments and all Labor members of Federal Parliament for five years, and many members support my inquiry;
b. the government concedes that ss 772(1)(e) undermines s 341 and 342 due to the case law.

I am puzzled by why the government wants to keep the case law even though knowing the case law undermined ss 772(1)(e) and s 341 and 342. I guess the reason is that the Labor leadership believes that employees should follow all directions given by their employer including ‘apparently unlawful directions’. Employees have the rights to complain under s 341 and 341 but should not affect the relationships between the employees and their employers. The employers can sack the employees due to the breaking down of relationships and consequential issues.

If the case law is set aside, the difference between s 772(1)(e) and s 341 are:

a. s 772(1)(e) request an employer to prove that its employee’s complaint is not a reason at all to sack or retaliate the employee, while s 341 and 342 reverse the request, that is, an employee to prove that his or her complaint is the reason of the termination or retaliation;
b. reinstatement is the remedy under s 772, but a spare remedy under s 341 and 342. (Under s 170CH of the Work Choice 2005, even though reinstatement is the first remedy, almost no employees were reinstated.)

On the face of it, the government’s attitude is that it is unfair to an employer to reinstate an employee after the breaking down of their relationships. The Act’s name is Fair Work Act. The government’s concern is whether a workplace relation is fair to the employer, not whether the employer has broken the laws or whether the employee has a right to follow the law. Section 341 of the Fair Work 2009 particularly disallows a union to push an employee to exercise worker’s right.

The remedies clearly show that the government’s intention is that even though an employer breaches s 341 and 342, a Court or Tribunal should first consider other remedies, not reinstatement. Put another way, once a workplace relation breaks down, a Court or Tribunal should not try to reestablish the workplace relation under the law, a Court or Tribunal should try all methods to terminate the relation under the Fair Work Act 2009.

In my opinion, from both viewpoints of employees and employers, the government should clearly inform workers that they should follow all directions given by their employers, and the employers take fully responsibility of their employee’s activities. I kind of understand the government’s dilemma—it fully supports the employers’ authority in workplaces but on the other hand is too embarrass to declare that its policies (laws) are just for political propaganda, nothing else.

While the government takes employers’ authority more serious than the authority of the laws and regulations, for fairness, the government should clearly inform workers its attitude.

To address my concerns, please kindly provide your opinion on:
a. why the government diminish workers’ right to be reinstated comparing with the Work Choice 2005;
b. why the government wants to deny worker’s right to claim unlawful dismissal including the dismissals that workers are retaliated due to their complaints against workplace illegalities;
c. why Fair Work Australia denies the existence of the law of unlawful dismissal;
d. whether the government believe the employer’s authority is more important than the laws and regulations in workplaces.

In summary, I appreciate:
a. Mr Furlong looked at my email, the attached documents, the case law, the cited cases and the website;
b. he accepted to the effect that the case law, which interprets the subsection 772(1)(e) of the Fair Work Act 2009, ruled ‘that complaints to administrative authorities were not protected’ let alone to the employer or union;
However, you do not give him the power to say:
a. the case law is wrong or,
b. under the Fair Work Act 2009, a worker cannot claim unlawful dismissal after being dismissed due to the worker’s complaint against workplace illegalities; therefore, before the government takes any action against the case law or rewords subsection 772(1)(e), workers should follow the employers’ apparently unlawful directions to avoid retaliatory dismissals suffered by the workers in the cited cases and the ruling case.

I know you are very busy, but Mr Furlong’s email below saying: ‘please contact the original recipient of your sent email should you have any further queries or comments.’ I would prefer not to repeatedly write to you on the same issue, if the issue does not affect millions of people, is not about the constitutional principles, and have been properly addressed. Please help Mr Furlong and millions of people, and clarify the six aspects of the matter outlined above.

I look forward to hearing from you.

Please kindly confirm on receiving this email.

Enclosures:

Mr Murray Furlong’s email of 5 May 2010

Email of 25 March 2010 to Julia Gillard MP

2010-07-03T13:55:00.005+10:00

Dear Ms Gillard MP,

I refer to my email of 1 February of 2010 to Mr Karl Bitar, the national secretary of ALP. The email is attached. Ms Jessica Lasky, personal assistant to Mr Bitar, informed me that my email had been forwarded to your office and that I should contact the policy unit of your office. I tried to phone your office, but was advised that I had to put it in writing.

The concern in my email to Mr Bitar is, for the time being, all Australians have no right to complain about workplace illegality at work according a ruling case. I raised the issue to your attention before and after you became the Deputy Prime Minister and the Minister for Employment and Workplace Relations. On 24 April 2008 Ms Sue Sadauskas replied on your behalf saying to the effect that nothing could be done.

In his email of 22 January 2010, Mr Bitar urged all ALP supporters ‘to make sure Australian voters are well informed of’ what the Rudd government’s policies are. Ms Lasdy could not confirm whether or not that workers have no right to complain about workplace illegalities is Rudd Government’s policy. She forwarded my email to your office and advised me to call your department for further information. On 19 March 2010 at 4:15 pm Lee, who refused to spell his name and hanged up the phone, asserted that the court ruling becomes the government’s policy even though people believe that the court ruling is incorrect.

On 26 August 2008, Mr Alex Anderson, assistant secretary of the Prime Minister, wrote on behalf of the Prime Minister saying to the effect that the court ruling is ‘incorrect’. On 16 December 2008, Ms Rebecca Irwin, senior adviser to the Prime Minister, found my ‘key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplace’.

In my opinion, something went wrong; therefore, I tried to address the issue for years. I think Mr Bitar considered something went wrong as well, otherwise, he would not have forwarded my email to your office. Furthermore, many people, organisations and politicians, who support the petition regarding the court ruling, have concerns on the matter. (A leaflet is attached.) However, on face of it, you and your department have no problem that the ‘incorrect’ (or unconstitutional) ruling case becomes a Rudd government’s policy.

As said by Mr Bitar, I have responsibility to let voters know Rudd government’s policy for this year’s election even though I refused to accept over the years that the court ruling is a Rudd government’s policy and tried hard to raise the issue to the government.

I understand you and your staffs are very busy. I would have no reason to raise the same issue repeatedly to you and your department, if Mr Bitar had not forwarded my email to your office. To avoid misunderstanding or clarify any possible confusion, I would like to get a written response from you or your office in relation to my email to Mr Bitar. I believe Mr Bitar wants your office to clarify the matter as well.

I look forward to hearing from you.

Please kindly confirm on receiving this email.

Enclosures:

Communications with Karl Bitar, the national secretary of ALP

The leaflet page 1 and 2

Email of 25 August 2009 to the Adviser of the Prime Minister’s Department

2010-06-03T15:12:00.003+10:00

Dear Ms Huegill,

Thanks for your email.

In his letter of 10 July Mr David Macgill wrote ‘Each agency is responsible for its own decisions under the FOI Act’. I consider the information in relation to the letters of Ms Rebecca Irwin and Ms Sarah Adams is in the Office of the Prime Minister (the OPM) because they are senior advisers of the OPM. Ms MacDowell does not work in the OPM. She might not have the authority to search the information in the OPM. If that is the case, she ought to forward my request to the OPM, which hold the information, in accordance with s. 15(4) and s. 16 of the Freedom of Information Act 1982. Nevertheless, my original FOI request is to the OPM.

Mr Macgill wrote: ‘Mr Hettiarachi undertook a search for any documents relating to your correspondence of 7 July 2008…’. Ms Macdowell has not undertaken any searches in relation to Ms Rebecca Irwin’s letter of 16 December 2008 and Ms Sarah Adams’s letter of 23 February 2009.

Mr David Macgill further clarified: ‘The legal Policy Branch of the department responded to your correspondence on behalf of the Prime Minister. The subject-matter of your FOI request is related to the functions of the Legal Policy Branch of the department. Accordingly, the decision-maker at the department for your request was Mr Priyanga Hettiarachi in his capacity as A/g Assistant Secretary, Legal Policy Branch’. Accordingly, my FOI request is related to the functions of the OPM. The decision-maker ought to be a person in the OPM, and not a person in the Department of the Prime Minister and Cabinet.

Enclosures:

Ms Kim Huegill’s email of 21 August 2009

Radio Broadcasts AAWL Campaigns against the Case Law

2010-05-08T11:12:00.001+10:00

On 8 May 2010 at 9:10 am, Radio 855 AM Melbourne broadcasted AAWL’s news about its campaign against the case law. (click to hear the news)

Email of 7 August 2009 to the Adviser of the Prime Minister’s Department

2010-04-05T20:18:00.016+10:00

Dear Ms Huegill,

Thanks for your email. Seemingly, you did not understand why I called you and sent you email of 28 July 2009. My email was in response to Mr MacDowell’s letter of 10 July 2009 which was about my FOI inquiry. This FOI inquiry is about:
1. how Ms Rebecca Irwin, senior adviser in the Office of the Prime Minister, made her decision in her letter of 16 December 2008 and,
2. how Ms Sarah Adams, senior adviser in the Office of the Prime Minister, made her decision in her letter of 23 February, in terms:
‘a. whether this matter has been brought to your (the PM’s) attention?
b. whether you (the PM) have decided ‘further correspondence on this issue may not receive a response’?
c. whether you (the PM) have decided not to do anything in respect of Australians’ constitutional right to follow the laws and Constitution at work even though you (the PM) have been advised that the Full Court’s interpretation of the unlawful dismissal laws ‘is incorrect’ and affects all workers?
d. what are your (the PM’s) grounds for not upholding Australians’ constitutional right at work?
e. what are your (the PM’s) grounds for keeping the situation that Australians at work have to follow apparently unlawful directions?
f. who decided not to inform you (the PM) about the matter and what policies were applied, if you (the PM) have not been informed?
g. who decided not to take any actions, and what were the decision maker’s grounds, if you (the PM) have not done so?’

The previous FOI inquiry, which is now under reviewing, is about Mr Alex Anderson’s letter of 26 August 2008 regarding how he, as the assistant secretary of Legal Policy Brach in the Department of the Prime Minister, made his decision of 26 August 2008.

Enclosures:

1. Ms Kim Huegill’s email of 3 August 2009 and my email of 28 July 2009

2. Letter of 10 July 2009 of Mr David Macgill A/g First Assistant Secretary Government Division of the Department of the Prime Minister and Cabinet p1, p2, p3, p4, p5 and p6

Letter of 8 May 2009 to the Prime Minister

2010-03-06T20:23:00.007+11:00

Dear Sir,

I refer to the letter of 23 February 2009 from your senior adviser, Ms Sarah Adams, in response to my letter to you of 1 January 2009.

Summarizing the situation

Even though I desperately tried to raise the issue that Australians at work have to follow apparently unlawful directions, Ms Adams expressed to the effect that you had not been informed this matter. She did not provide any reasons of why she failed to do so.

Given that ‘during last financial year [you] received in excess of 200,000 items of correspondence’, the Department of the Prime Minister and Cabinet (the Department) wrote: ‘Guideline in place for dealing with correspondence provide that the Department may respond to some correspondence on behalf of the Prime Minister in relation to factual information or established policy’.

Forwarding my letter of 9 September 2008 to your office, the Department held, on face of it, that the established case law, which requests worker, to the effect, to follow apparently unlawful directions, is against the ‘established policy’. On her letter of 12 December 2008, Ms Irwin clarified that my ‘key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’. However, she provided some reasons of why you could not do anything about it.

In response to Ms Irwin’s reasons, I provided:

a. The High Court Registry’s advice that the Governments can raise the issue to the High Court if the Governments want to do so.

b. The confusions among the Governments Solicitor that they believed that ‘it was not appropriate (to intervene in application for special leave to appeal) as, until leave is granted, there is nothing to intervene in’.

c. Ms Irwin’s mistake of fact. The fact is that the former Attorney-General, the Hon Philip Ruddock MP, did not decide not to intervene in the special leave to appeal of the matter let alone he ever held ‘no constitutional issues had been identified’.

In response to above points, Ms Adams raised no objection but declared: ‘I do not have anything further to add to the response provided to you by Ms Irwin on 16 December 2008.’ Both Mr Alex Anderson, your assistant secretary, who replied my letter of 7 July 2008 and Ms Irwin have tried to do something about the matter; however, Ms Adams did not want to do anything about it.

Disclosing information

‘First, what went wrong?’ was the question raised by you at United Nations General Assembly on 25 September 2008. Ms Adam who just took the position seemingly does not have experience, authority or competence to deal with the matter. To identify the problems, 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 ‘further correspondence on this issue may not receive a response’?

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. what are your grounds for keeping the situation that Australians’ at work have to follow apparently unlawful directions?

f. who decided not to inform you about the matter and what policies are applied, if you have not been informed?

g. who decided not to take any actions, and what are the decision maker’s grounds, if you have not done so?

In the general public interest or in the interest of a substantial section of public

Mr Anderson held the established case law is ‘incorrect’, and Ms Irwin held: my ‘key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplace’. Australia has over seven millions fulltime employees and over three millions part-time employees. If including the employees’ families, my key concern related to the protection of employees is relevant to the majority of Australian population. When apparently unlawful directions cause financial and economic crisis (for instance, fraudulent financial data), endanger environment and public safety, my key concern is relevant to more Australians.

Furthermore, our local MP, the Hon Marsha Thompson MP, held that our FOI request in relation to the matter is “in the general public interest or in the interest of a substantial section of the public”. The Hon Marsha Thompson MP’s letter is enclosed.

A relevant leaflet is enclosed as well.

Based on above reasons, I seek remission of the application fee to lodge an FOI request on public interest grounds.

Given you have announced to the world that you want to ‘marshal the political will’ to deal with the problems, now can be the time for you to decide what things must be done to deal with the problems “in the general public interest or in the interest of a substantial section of the public”.

Enclosures:

Letter of 15 February 2007 from the Hon Marsha Thompson MP

Leaflet of supporting workers constitutional right

The matter is published on the boards of ABC’s ‘Four Corner Open Letters’

2010-02-03T13:45:00.003+11:00

In response to the ABC’s article ‘New year farewells WorkChoices’ of 1 January, I wrote an open letter on 6 January to the ABC’s ‘four Corner’, which is published on the ABC’s webpage: http://www2b.abc.net.au/tmb/Client/Board.aspx?b=37.

What ‘Choices’ are left?

It sounds good ‘New year farewells WorkChoices’ http://www.abc.net.au/news/stories/2010/01/01/2783721.htm. However the effect of the Howard’s campaign to slash workers’ right has not gone. Analysing bullying and retaliation cases in last few years we may find employees don’t have the right to make complaints against employers.

Could, a worker be sacked due to complaining about bullying and harassment to union, like Victor, a long serving employee, a union’s Health and Safety Representative?

He was sacked. A judge found he was sacked due to his complaint to union about the manager’s bullying and harassment. However, the termination was not unlawful. What option is left for workers when they do not have the right to make a complaint?

As employers can legally sack employees due to their complaints, employers can do whatever they want to do.

Damien made a complaint in writing to the Employment Ombudsman about his wages and conditions of employment, and believed that he was sacked soon due to his complaint. He filed an unlawful dismissal claim to the Industrial Relations Commission. A commissioner told him that he could not make such claim because the Ombudsman was not a Court or Tribunal; to meet the threshold of claiming unlawful dismissal, he had to file a complaint to a Court or Tribunal before his dismissal.

It was out of Damien’s imagination that he followed the Government’s advice, but the Court did not uphold. The Government says workers can complain about their underpaid wages etc, so he filed his complaint. The consequence was that he got even worse—being sacked.

The Government has never said: to prevent retaliatory dismissal, workers have to file complaints to a Court or Tribunal before the filing of complaint to the Employment Ombudsman or whatsoever. However, the Court and the Commission hold the Government in effect states that.

In response to the Court’s interpretation, the Government replies the Court’s interpretation is incorrect, but cannot do anything about it.

A study conducted by Curtin University of Technology in 2007 found workers believe if they were seen as rocking the boat they might be ousted.

To avoid retaliatory dismissal, legal advice for workers is that you shouldn’t complain about boss including boss’s apparently unlawful activities. It flies in the face of the Governments’ assertions summarised below.

The Government asserts (on documents, websites, news releases, etc):

it is a workplace right to be able to make a complaint,
it is against the law for the employers to threaten to dismiss employees for making a workplace complaint, and
it is unlawful to sack a worker due to the filing of a complaint against his or her employer involving alleged violation of laws,
the Government has no tolerance for conduct which breaks the law.

No doubt the conflict between the Government information and legal advices leave employees just as confused and upset as the employers. To clarify the confusion, prevent both conflict and frustration and let both worker and employer make fully informed decision with respect to:

workers’ right to make complaint,
bosses’ right to manage their business,

a public debate is needed. The Government may get ideas on how to solve the problem through the debate.

(If you want to know more about bullying or retaliatory and unlawful dismissal, and to share your real stories, comments or suggestions, please look at website: http://upholding-people-right.info/.)

Post on ACTU’s Rights Watch Blog

2010-01-01T15:42:00.005+11:00

'http://www.unionsaustralia.com.au/rightswatchblog/default.aspx?start=0

'Bullying and retaliation cases in Court and Commission

'Posted by Daming - 01:06 PM 16.12.09

'Could an account be sacked for refusing to falsify accounting record and report, like Hilda, an accountant?

'Yes, she was sacked. This may explain why there are many financial scandals, for instance, HIH, One-Tel and AWB. A judge characterised her complaint to the employer, union, CPA, WorkSafe and ATO etc as only in the capacity as employee. The employer’s counsel conceded: the illegality is in fact on the part of the employer. However, her claim of unlawful dismissal was struck out and she was ordered to pay the employer’s costs because she had not made any complaint to a Court or Tribunal in her employment even though no law allows her to do so.

'To avoid retaliatory dismissal, legal advice for workers is that you have to follow all directions from bosses including apparently unlawful directions.

'Adding to the issue is that the governments’ information (on the governments’ websites etc) and legal advices contradict each other. The government assert:
it is a workplace right to be able to make a complaint,
it is against the law for the employers to threaten to dismiss employees for making a workplace complaint.

'To clarify the confusion and let worker make fully informed decision about workers’ right to make complaint, a public debate is needed.

'(To know more about bullying or retaliatory dismissal, and to share your real stories, comments or suggestions, please look at website: http://upholding-people-right.info.)

'Unions Australia answered on: 17.12.2009'

Letter of 1 January 2009 to the Prime Minister

2009-11-30T16:58:00.021+11:00

Dear Sir,

I refer to the letter of 16 December 2008 from your senior adviser, Ms Rebecca Irwin, in response to my letter to you of 9 September 2008. I understand your advisers and assistants believe you are too busy to deal with this matter; therefore, Ms Irwin made the decision on your behalf. If I am wrong, please correct me.

A. Two issues have been clarified

2. We appreciate Ms Irwin holds that ‘your key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’. She is the first person in the governments to assert the implication of my key concern, after Mr Alex Anderson is the first person in the governments to verify that ‘the case law that requests Australians to complain about workplace illegalities “only to a Court or Tribunal”: with respect,’ ‘is incorrect’.

3. Obviously your staff have more confidences and authorities to face the truth than the Ministers’ and Labor MPs’ staffs. We appreciate that your staff have made positive contributions to address the two issues outlined in my letter of 7 July 2008 to you:
· Australians’ constitutional right to obey the laws and Constitution at work
· This country operates under the rule of law.

B. How can we raise the issues to you?

4. We consider the above two issues are of public importance, so finally raise them to you; however, Ms Irwin did not make any conclusive decision. Apparently, Ms Irwin did not have the capacity. We understand Ms Irwin and Mr Anderson have responsibilities to limit the matters considered by you; that is a big challenge for them. We all remember, in 2001, the former Prime Minister, John Howard, did not know the truth about children overboard. The staff who held the truth was promoted later on. Obviously, the staff knew what the former Prime Minister wanted.

5. On 6 November 2008, Mr Michael Parry of the correspondence unit of the Department of the Prime Minister and Cabinet told me that my letter of 9 September 2008 was in your office; however, on 15 December 2008 Helen in your office told me that no record showed that my letter was in your office. I faxed my letter to your office immediately.

6. You know you can be out of touch like the former Prime Minister, John Howard. In Australia 2020 summit you particularly sought cost-neutral proposals. Somehow, on 17 November, I even received an email from you. You wrote: ‘The road ahead is going to be tough…I look forward to our continued dialogue’. I excitingly replied your email because my concern is cost-neutral, but Labor National Office that authorised your email told me that you wouldn’t read my email due to overwhelming responses. Tegan in Labor National Office read my email to you, said she was not interested in the matter and hanged up the phone.

C. Placing the constitutional matter in the public domain

7. How can we let you know and make a decision on this matter? I think a hunger strike in front of the Parliament House, more likely than not, will get media attention. If you don’t have time read news paper or watch TV, your relatives or friends may tell you what is on the news.

8. If you were briefed on the matter, Ms Irwin might hint that you have difficulty to deal with it. While the constitutional matter is too difficult for you and others to deal with, except placing it in the public domain, there is no other option left. We believe, after restoring Australians’ constitutional rights at work and constitutional principle, many lives will be saved, many people will live better.

D. Ms Irwin canvasses responses imprecisely

(a) The High Court Registry’s advice

9. In my email of 3 April 2008 to Mr John Carter, the secretary of the Senate Standing Committee on Workplace Relations, which is enclosed in my letter of 7 July 2008 to you, I referred to the High Court Registry’s advice to me: if the government or parliament consider the matter is of public importance, the government or the parliament can request the High Court to hear the matter.

10. Both Ms Irwin and Mr Anderson did not respond to the High Court Registry’s advice. On face of it, the situation is your office and department clearly know what thing can be done to address the constitutional matter but, like the former Coalition Attorney-General’s Office and Department, without any legitimate reasons, decide not to do anything. Could you please kindly respond to the High Court Registry’s above advice?

11. I guess Ms Irwin was not authorized to add anything ‘to the response of Mr Kirkwood (Chief of Staff to the Attorney-General)’ as Mr Anderson wrote: ‘I have nothing to add to the responses you have had from the Secretary of the Committee’. You, as Prime Minister and Labor leader, ought to have authority to add to the the responses of the Chief, the Secretary, Ms Irwin and Mr Anderson.

12. The Registry’s advice suggests the government and parliament should take their parts of responsibility in relation to upholding constitutional principle. While the then Attorney-General was too busy to make decision with respect of the constitutional matter, and put extra workload on the High Court, following suit, the High Court was too busy to comment on the constitutional matter. Ultimately, it is the responsibility of the government and the people to raise constitutional concerns not the court, an arbitrator.

(b) Former Coalition Government’s responses

(1) The former Attorney-General’s response

13. Ms Irwin wrote: ‘I understand that the former Attorney-General, the Hon Philip Ruddock MP, informed you on 26 September 2006 of his decision not to intervene in your case, as no constitutional issues had been identified’. What the Hon Ruddock MP wrote is ‘As Attorney-General it would be inappropriate for me to comment on the issues you have raised’. Please let your staff find out where Ms Irwin got her understanding. Ms Irwin was the former Attorney-General’s assistant secretary. She might know something that has not been disclosed to us.

14. Ms Irwin might hope that the former Attorney-General had made a decision, but the fact is he did not. Except her, no judge, government officer, parliamentary staff, politician has written: ‘no constitutional issues had been found’. She, as legal professional, should not make such mistake.

(2) The former Prime Minister’s response

15. Furthermore, on 25 October 2007, the former Prime Minister’s assistant secretary, Mr Patrick Sedgley, held the matters are ‘policy matters’ and suggested ‘You may wish to raise the matters that are contained in your letter with incoming government once the outcome of the election is known’.

(3) The decision made by the staffs of the former Attorney-General

16. Ms Irwin replied: ‘Section 78B of the Judiciary Act 1903 contains no reference to the Prime Minister. The power to intervene in relevant legal matters on behalf of the Commonwealth is given only to the Attorney-General’. The facts are neither the then Attorney-General, the Hon Philip Ruddock MP, nor the Attorney-General, the Hon Robert McClelland MP, made any decision on this constitutional matter after s 78B notices served in 2006.

17. Until now no legitimate reason for the decision of not intervening in the constitutional matter has been found. Why could not you, as Prime Minister, requests the Attorney-General to make a decision on this matter and provide his reasons for his decision after your staffs have found that the case law is ‘incorrect’ and ‘relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’?

18. As the former Prime Minister’s staff did not let the former Prime Minister know the truth about children overboard in 2001 election, the former Attorney-General’s assistant secretary did not let the former Attorney-General make a decision in respect of workers’ constitutional rights when the Coalition Government was campaigning for WorkChoices legislation. On 28 April 2006, in response to our notices of constitutional matter, a junior lawyer of Australian Government Solicitor wrote to me: ‘if special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’. Implicitly, the junior lawyer identified constitutional matter in our notices; however, he could not make a conclusive decision for the then Attorney-General, as Ms Irwin could not make a conclusive decision for you; therefore, she raised more questions than answers.

(c) The Attorney-General’s Department’s response

19. Ms Irwin referred to the letter of 9 January 2008 from Mr Johnathon Kirkwood, Chief of Staff to the Attorney-General, the Hoh Robert McClelland MP, and stated: ‘no further question of intervention arises in relation to that matter’. Apparently, his logic was that the question of intervention would only have been raised if the special leave to appeal had been granted, as the junior lawyer suggested in his letter of 28 April 2006 as outlined at paragraph 18 above.

20. Mr Kirkwood meant the original question had been proper answered; however, so far the Attorney-General’s Department has not been able to disclose any reasons for not intervening in the constitutional matter. The department clearly knows the original question about intervention has not been properly answered.

21. On 23 August 2006 the Deputy Victorian Government Solicitor provided his reason─‘it is not appropriate (to intervene in application for special leave to appeal) as, until leave is granted, there is nothing to intervene in’, which contradicts what expressed in the High Court’s transcript of Hilda Zhang’s case. The Deputy Victorian Government Solicitor’s letter is enclosed.

22. Your office and department have found the case law is ‘incorrect’ and affects workers’ right to obey the laws and Constitution. The Attorney-General’s responsibility is upholding Australians’ constitutional rights. You have authority to request the Attorney-General that you handpicked, to fulfil his duty and fix the problem left by the previous Attorney-General.

(d) The dilemma of Labor Senators in the Committee

23. On 15 May 2008 the secretary of Senate Standing Committee on Workplace Relations wrote: ‘The committee (Labor Senators have five out of nine votes) does not believe that any constitutional connection has been established. It does not arise in the unfair dismissal case brought by Hilda Zhang in the Federal Court’. Except the secretary, so far, no judge, no government staff, no politician has expressed Hilda Zhang’s case was an ‘unfair dismissal case’.

24. Even though most of the Labor Senators in the committee have supported the petition on behalves of their constituents, they seemingly could not question Labor Government without your directions as suggested by the media. If they had insisted, as Ms Irwin and Mr Anderson did, that the case law is ‘incorrect’ and that ‘key concern relates to the protection of employees who are given apparently unlawful directions by their employers in the workplaces’, they would have made a different decision; however, they have neither the authority nor resources that you have. They feared ‘that no recommendation the committee might make to the Senate urging a plea to the Attorney-General would succeed’. Senator Gavin Marshall’s advisor advised me to turn my energy to more productive methods.

(e) The Hon Julia Gillard MP’s direction

25. Having presented the petition, Senator Gavin Marshall advised me to follow up the petition with the then Ms Julia Gillard MP because she was the Spokeswoman on Workplace Relations even though I argued this matter belongs to Attorney-General’s portfolio. Ms Gillard MP’s adviser, Ms Sarah Adams, asked me to draft questions for Ms Gillard MP to question the then Coalition Government.

26. On 8 October 2007 I wrote to Ms Adam the questions to the then Coalition Government:
‘The case law has been established since 2005. The WR minister responded to the workers’ (the petitioners’) concerns in 2006. Now, it is at the end of 2007. The government has not informed workers that they should complain about all illegalities “only to a Court or Tribunal” in accordance with the case law. Further, the government has not enacted any laws to allow workers’ complaints against their superiors’ illegalities to be filed “to a Court or Tribunal” in general situations. A question is why the government does not want that people at work have rights to complain about their superiors’ illegalities.’

27. My point was if the then Coalition Government considered the Full Federal Court’s interpretation of the unlawful dismissal laws was correct, that meant the government and parliament had always undermined the workers’ constitutional right since the law was enacted. To correct such terrible errors they ought to enact relevant laws to uphold Australians’ constitutional right to obey laws at work immediately.

28. After the election, on 9 January 2008, I wrote to the Hon Gillard MP: ‘Please kindly advise whether you are going to deal with the petitioners’ concerns’, while referring to the previous communication with her and her staffs. She replied on 18 February 2008 that she contacted the Attorney-General’s office and the Senate Standing Committee on Workplace Relations, and had no plan to amend the unlawful dismissal laws according to the Full Federal Court’s interpretation. My understanding is that she believes the Full Federal Court’s interpretation is incorrect; it ought to be dealt with by the Attorney-General and the Labor Senators in the Senate Standing Committee.

29. As Ms Irwin found the Hon Julia Gillard MP encouraged me to continue my endeavours, in one way or another, for the ‘concerns more generally about the protection of worker’s right’ even though the Hon Julia Gillard MP cannot give directions to the Attorney-General and the Labor Senators in the committee.

E. Your response to the matter

30. Having received my request of 14 September 2006 for supporting the petition for workers’ right on behalves of your constituents, on 2 October 2006 you replied: ‘One of the constraints of being in Opposition is a lack of resources. Unfortunately that means I am only able to respond directly to correspondence received from the 120,000 constituents living in my federal electorate of Griffith. Please be assured though that I do see all correspondence coming into my office’.

31. I raised the matter to you again on 2 March 2007, after you became Labor leader. Melissa in your office told me that you considered the matter but no response at that stage.

32. After you became the Prime Minister, on 16 December 2007 I raised the matter to you. I was told that my letter was forwarded to the Attorney-General on 9 April 2008. Then the Attorney-General’s office told me, according to the information on their computer system, a letter had been posted to me on 12 May; however, on 25 June 2008 the Attorney-General’s office informed me that no letter had been and would been sent in response to my letter to you.

33. In response to my letter to you of 7 July 2008, your assistant secretary of legal policy branch, Mr Alex Anderson wrote: ‘The Prime Minister is unable to assist you with this matter’, and held the case law is ‘incorrect’. He acknowledged to the effect that the case law affects workers’ right to obey laws, saying ‘An eligible employee who was dismissed because of querying or complaining about an employer (unlawful) practice or instruction could potentially receive relief on [harsh, unjust or unreasonable] ground’.

34. Mr Anderson declared on your behalf to the effect that Labor Government without informing the public has abandoned constitutional principle that this country operates under the rule of law, as Labor Government has accepted the situation that Australians have no right to obey laws at work.

F. Implication of Ms Irwin’s letter

35. Apparently, Ms Irwin did not try to canvass what things could be done, but seemingly concluded the situation is that the government, parliament and High Court all acquiesce in the ‘incorrect’ case law. Nevertheless, she, as your justice adviser, failed to justify how you want to keep the unconstitutional case law to deny workers’ rights and undermine constitutional principle. Should you, as Labor Prime Minister, tolerate this situation for so long? If you are still consider that you do not have enough resolve and resources to deal with this matter, please kindly inform us ASAP. The Australian people will judge the matter.

36. Ms Irwin seemingly raises a question: when lawyers and judges proposed and followed the unconstitutional case law, why should workers have problem obey apparently unlawful directions given by their employers in the workplace? Could you please, as Labor leader, answer this question?

37. The only reason that we could image for Ms Irwin to decide to do nothing about the matter is that she believes the matter is not of public importance. She ought to analyse which groups of Australians are not affected by the principle that this country operates under the rule of law.

G. Do you put your foot where your mouth is?

38. A swathe of corporate scandals has occurred in the past few years, which has eroded confidence in the business community. There is a widespread crisis of faith in corporate ethics – especially since the collapse and exposure of criminal activities of HIH, Ansett and One-Tel in the domestic sphere, and AWB in the international sphere. According to the news on The Age on 29 October 2005, “Prime Minister John Howard said he did not think the AWB would have knowingly been involved in corruption. ‘My dealing with the people in AWB …they’ve always been a very straight up and down group of people’, he told ABC radio”. But the fact is these people were bent. Obviously, without protection from the legal system no corporate ethics can exist.

39. No doubt you noticed above events. On 25 September 2008 at United Nations General Assembly, you taught the world: ‘The failures that we have seen in recent times do not lie in the institutions alone. The failure lies more in the poverty of our political will to animate these institutions to discharge the purposes for which they were created’.

40. You have shown off to the world that you resolve ‘to animate these institutions to discharge the purposes for which they were created’; however, your senior justice adviser’s perception of your resolve is different. No doubt Ms Irwin is in a better position to understand what you really want to do than us. We only know you from your public speeches.

41. The rules have been alternated by the case law of Hilda Zhang’s case. Why do you want to keep that ‘incorrect’ rule? On 25 September 2008 at United Nations General Assembly, you asked: ‘First, what went wrong’, ‘So what must now be done’.

I look forward to receiving your response.

Enclosure:

Letter of 16 December 2008 from the Prime Minister’ senior adviser, Ms Rebecca Irwin p.1 and p.2

Letter of 23 August 2006 from the Deputy Victorian Government Solicitor

2009-10-23T12:44:00.004+11:00

Website: http://upholding-people-right.info/

Letter of 9 September 2008 to the Prime Minister

2009-09-30T13:02:00.015+10:00

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

Letter of 7 July 2008 to the Prime Minister

2009-09-04T12:57:00.007+10:00

Dear Sir,

I refer to my previous letter of 8th March 2008 and thank you for forwarding it to the Attorney-General on 9 April.

The Attorney-General’s office first advised me a response would be sent to me, then informed me a letter had been sent out on 12 May, and finally on 25 June confirmed no response would be provided at all because no new issue was raised even though I argued the Attorney-General’s conclusion should be in writing anyway.

I called your office and asked whether your office considered the Attorney-General had responsibility to reply a letter forwarded by you. Mr Michael Parry told me that it was up to the Attorney-General. Apparently, you didn’t instruct the Attorney-General to do anything, or you could not push further.

On 24 April Ms Sue Sadauskas replied on behalf of the Hon Gillard MP that she had nothing further to add on the Hon Gillard MP’s letter of 18 February, which stated: ‘no further question of intervention arises in relation to the matter. As a result, the Government can take no further action’, ‘In addition, Senator Marshall has advised me that your petition was presented in the Senate’, ‘The committee will decide whether any further action will be taken in relation to the petition’.

On 15 May the secretary of the committee wrote: the committee would not recommend the Senate take up the matter. I replied to the secretary’s letter by an email of 26 of May and pointed out his letter failed to address the first request of the petition and provided fraudulent reasons. The correspondences between the secretary and me are attached. The secretary did not deny at all he knowingly provided fraudulent reasons. Obviously, the committee chooses to ignore the first request of the petition, which is to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’.

Should Australians at work have rights to obey the laws and Constitution now becomes a ‘further question’ as the committee comprised of senators from the Labor, Liberal and Democrats has chosen not to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’. Nobody has openly opposed Australians’ right at work to obey the laws and Constitution. Nobody has denied Australians at work cannot obey the laws and Constitution due to the case law that requests Australians to complain about workplace illegalities ‘only to a Court or Tribunal’.

No lawyers, no Australians at work can ignore the Full Court’s interpretation of the unlawful dismissal laws that workers complain about workplace illegalities ‘only to a Court or Tribunal’. Many judges have made decisions in accordance with the Full Court’s interpretation of the unlawful dismissal laws, for instance, Dowling v John Fairfax Publications Pty Ltd [2007] FMCA 2104 (20 December 2007) and Sapula v ResMed Ltd [2007] FCA 438 (19 March 2007) etc.

The Attorney-General’s Department have confirmed to the effect that they cannot find and disclose any legitimate reasons for not intervening in the constitutional matter.

Having known the bureaucrats have no legitimate reasons for not upholding Australians’ right to obey the laws at work, ministers and you seemly cannot convince bureaucrats in the Attorney-General’s Department that Australians at work ought to have rights to obey the laws and Constitution.

The secretary of the committee urges us to ‘turn [our] energies to more productive activities’.

Workers’ rights are the heart and soul of Labour movement. What is your advice on how to uphold Australians’ constitutional right to obey the laws and Constitution at work, or how to raise ‘further question of intervention arises in relation to the matter’ for all concerned?

One proposal is a hunger strike in front of the Parliament House for:
a. Australians’ constitutional right to obey the laws and Constitution at work
b. This country operates under the rule of law.
In our opinion, that will push the bureaucrats in the Attorney-General’s Department at least to disclose or work out the reasons for not dealing with the constitutional matter and answer the further question: Should Australians at work have rights to obey the laws and Constitution?

I look forward to receiving your advices.

Enclosures:

Letter of 18 February 2008 from the Hon Gillard MP

Letter of 15 May 2008 from the secretary of Senate standing committee on Education, Employment and Workplace Relations and P.2

Letter of 8 March 2008 to the Prime Minister

2009-08-07T13:27:00.008+10:00

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

Letter of 16 December 2007 to the newly elected Prime Minister

2009-07-02T15:57:00.004+10:00

Dear Sir,

Congratulation on becoming the Prime Minister!

We have been touched when you paid tribute to Mr Bernie Banton in your election victory speech because he had fought for fellow sufferers for many years. You encourage people to learn from Mr Banton and to fight for justice and their rights. We are inspired by Mr Banton’s campaign for compensations from James Hardie Industries, and have campaigned for Australians’ constitutional right to obey law at work because the former Coalition Government refused to take any action when the judgment of Zhang v The Royal Australian chemical Institute Inc affected all workers’ constitutional right to obey law.

We raised our concerns to the former Prime Minister at the beginning of this year. On 25 October, after calling the election, he finally recognized that the matters were ‘policy matters’ and suggested us ‘raise the matter that are contained in [our] letter with the incoming government once the outcome of the election is known’.

Previous communications with the former Prime Minister are enclosed.
We all know the Labor’s attitude toward worker’s right is different from the Liberal, and believe the Labor Government will take proper actions to resolve the problems quickly.

Enclosures:

Letter of 9 February 2007 to the then Prime Minister John Howard

Letter 13 August 2007 from the office of the then Prime Minister John Howard

Letter of 8 September 2007 to the then Prime Minister John Howard

Letter of 25 October 2007 from the office of the then Prime Minister John Howard

Email to the then Opposition Leader of 4 May 2007

2009-06-06T12:38:00.008+10:00

Dear Mr Rudd MP,

I am writing to acknowledge that Melissa advised me on 24 April 2007 that you did not want to respond to my email of seeking support for the petition for people’s fundamental constitutional rights to obey law at work. Implicitly, it means, to the effect, that you do not support the petition for people’s fundamental constitutional rights to obey law at work even though you might believe workers’ rights are the heart and soul of Labor Party. If I am wrong, please correct me.

Nevertheless thank you for your time and attentions. I should write this email earlier.

On 2 October 2006, in response to my initial inquiry, you excused yourself from supporting the petition by saying that I was not your constituent even though you did not deny that the petition for people’s fundamental constitutional rights to obey law at work was for the interests of your constituents, who were working class, and the interests of the society as well.

Now you have the resource, and Melissa advised me that you had no reason for not responding to my email. Apparently, it is not a matter whether you have resource; it is a matter whether you want to uphold people’s fundamental constitutional rights to obey law at work.

Last time your advice was: “In addition, it would be best if you raise these concerns directly with your Federal Member of Parliament, Nicola Roxon MP. I have copied Ms Roxon's office into this correspondence for their information”. Obviously you do not need to send a copy of my email to Ms Roxon MP this time. You are Ms Roxon MP’s boss now, have the authority to take actions and know that you have no reasonable excuses for doing nothing in respect of this petition.

An argument will be: if the Labor leader does not care people’s fundamental constitutional right at work why the Federal Coalitional Government ought to care people’s rights at work.

This is a matter as to whether we can say: “no” to unlawful activities. This case indicates well, how the system technically allows people with power to act unlawfully and disallow vulnerable people to act lawfully when the laws conflict with the interest of people with power. Apparently you hold it is acceptable that people have no right to obey law at work. If I am wrong, please correct me.

Apparently you hold: the employees ought to follow any instructions from their bosses including unlawful instructions; this country does not operate under the rule of law; it operates under Mr John Howard’s rulings, or your rulings in the future; ordinary people and politicians should not bother themselves with the laws and Constitution. If I am wrong please correct me.

We believe: people’s rights at work are worth fighting for, and we have obligations to tell you, as the alternative Prime Minister, what has happened and what are happening to other workers and the society, despite being frustrated by the difficulties we have faced.

Thanks anyway for your response that you did not want to respond, without any particular reasons, to our request to supporting the petition for people’s fundamental constitutional rights to obey law at work on behalves of your constituents and working class.

Note: Mr Rudd MP failed to respond to this email.

Email to the then Opposition Leader of 2 March 2007

2009-05-05T17:14:00.006+10:00

Dear Mr Rudd MP,

We have campaigned for a petition for workers’ fundamental constitutional rights to the Parliaments of the Commonwealth and Victoria, and would like to get support from you.

We seek support from you because we think the petitions for workers’ fundamental constitutional rights in the workplace are important for the workers, who are your constituents.

Australian workers can be lawfully terminated when they refuse to carry on or complain about their bosses' unlawful instructions and activities, which may harm the workers, their mates and the society, if the workers have not filed complaints to 'a Court or Tribunal' before they are terminated, in accordance with the Federal Courts' Judgments backed up by the High Court in relation to Hilda's case.

Furthermore, we have asked many solicitors whether a court can directly deal with workers’ complaints about their bosses’ unlawful instructions and activities before they are dismissed, but no solicitor has told us that a court can do so. Therefore, Australian workers have no legal right to uphold and obey the laws in the workplaces at all in accordance with that case law made by the Full Federal Court in the Judgment of Hilda’s case.

Implicitly, workers’ fundamental constitutional rights in the workplace are important for workers. If you believe that workers’ fundamental constitutional rights in workplaces are of public importance, and that we should not leave the case law made by the Full Federal Court in the Judgments of Hilda’s case harming both the workers and the society, please support the petitions.

The petitions have been proudly supported by many people including Ms Sharan Burrow (ACTU), Father Bruce Duncan (Redemptorist Priest) and many organizations.

Leaflet of the petition and the petition are attached.

This matter was brought to your attention in September last year. You declared that you had not got the resource to respond to it, and advised me that we should contact Ms Nicola Roxon MP directly even though you might have known that we had done so. Ms Roxon MP could not do anything more than endorse the petition.

Recently a Labor MP urged me to raise this matter to you, the Leader of the Opposition.

Note: Mr Rudd MP failed to respond to this email.

Response to Kevin Rudd MP’s email of 2 October 2006

2009-04-06T11:30:00.007+10:00

Dear Mr Rudd MP,

I am writing to acknowledge that my understanding of your response is to the effect that you did not support the petition for workers’ rights even though you might believe workers’ rights are the heart and soul of the Labor Party. Your attitude toward the petition was that it was not “sufficient to justify” a support from you, like the High Court’s attitude toward our appeal. If I am wrong, please correct me.

The High Court’s attitude toward the case was better than the Federal Courts. The Federal Courts did not deny that Hilda’s complaint about her boss’s unlawful instructions and activities were right but held that it was vexatious to seek support and protection from the Federal Courts against the retaliatory dismissal.

You advised us that we should stick to our local MP. That sounded as if you was criticizing that our local MP did not do her job. If you were in her position would you believe that you would do better than what she had done? It was easy to blame other people and did nothing.

I can image when your constituents suffer in similar situations like Hilda have suffered and raise their matters to you, you will say: Sorry, you cannot help them, because you know what have happened to Hilda’s case. If I am wrong, please correct me.

The governments might also claim that they did not respond to the matter because of “lack of resources”. We are lack of resource so we need your support. “United we stand, Divided we fall”.

Nevertheless, thank you for your time and attentions.

We believe: workers’ rights at work are worth fighting for, and we have obligations to tell you what has happened and what will happen to the workers who are your own constituents, despite frustrated by the difficulties we faced.

Thanks for your response anyway.

Yours sincerely

Daming He

(file below is downloadable as .doc file)

Email from Kevin Rudd MP of 02/10/06

Note: Mr Rudd MP failed to respond to this email.

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

2009-03-05T14:20:00.017+11:00

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.

Response to Ms Julia Gillard MP’s reply of 12 September 2007

2009-02-08T13:14:00.020+11:00

Dear Ms Gillard MP,

Thank you for replying so promptly to my enquiries through your adviser, Ms Adams. We have carefully considered your concerns and are pleased to make following reply.

A. Whether it is appropriate for Federal Labor to raise the issue in the Parliament that people at work should have the right to obey laws under the Constitution?
a. Your advices

1. In my email I did not specify what kind of actions that we expect Federal Labor to take because we assume Federal Labor knows what kind of things are able to do to enhance people’s right to obey law at work under the Constitution. Your responses were: firstly, “as the Federal Opposition, Labor does not have standing to intervene in the High Court proceedings” (directly), secondly, “It would also be inappropriate for Federal Labor to comment on proceedings which are currently before the Court” (even if Federal Labor wins the next election and has “standing to intervene in the High Court proceeding”). If I understand wrongly, please correct me.

2. Under your leadership Federal Labor commented on David Hick’s case when it was before the American Court. If I am wrong, please correct me.

b. Sect 78A of the Judiciary Act 1903

3. “Intervention by Attorneys-General
(1) The Attorney-General of the Commonwealth may, on behalf of the Commonwealth, and the Attorney-General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal Court or any Court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation.
……” (bold added).

c. Sect 78B of the Judiciary Act 1903

4. “Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a Court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
……
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
……
(b) may direct a party to give notice in accordance with that subsection; and ……
(3) For the purposes of the subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of the Attorney-General;
……” (bold added).

d. The High Court must give the Attorney General the opportunity to intervene in the matter

5. The High Court has issued Notices of a Constitutional Matter to the Federal Attorney General in relation to Hilda’s case in accordance with s 78B of the Judiciary Act 1903 because the High Court recognises “a matter arising under the Constitution or involving its interpretation” (see [4] above).

e. The High Court Registry holds that the Government and the Parliament can require the High Court to hear the appeals on the ground of public importance

6. The High Court Registry has advised us that the governments and the parliaments are able to request the High Court to dealing with the matter if they disagree with the Full Federal Court’s construction of the laws, which have been proposed and approved by themselves. So far, the advice given by the High Court Registry has not been directly challenged including the Attorney General.

7. The 1st question is whether Federal Labor holds that the advice given by the High Court Registry is correct.

B. Previous emails from you and your office
a. You email of 20 December 2006

8. Ms Adams mentions the previous emails from you and your office. You stated, in your email of 20 December 2006, “I am working hard on Labor’s industrial relations policies including ensuring workers get appropriate and fair protection from unfair dismissal” (bold added), in response to our particular inquiries in relation to protection from unlawful dismissal.

9. The 2nd question is whether you hold that once a worker claims an unlawful dismissal, the dismissal must be fair, therefore, it is not the thing that you care about. We believe that an unlawful dismissal must also be an unfair dismissal and over the top of unfair dismissal.

10. You might believe unlawful dismissal should be fully covered by the government. The government might consider if the Labor does not care about unlawful dismissal, certainly, they are too busy to care about it because the foremost task for the Coalition is to ensure that employers get the liberty to do what they want to do even though they are against the laws that the government requests everyone to obey.

11. The 3rd question is whether “Labor’s industrial relation policies”, on which you are “working hard”, “including ensuring workers get appropriate and fair protection from” unlawful dismissal.

b. Comments from your office about the findings of the Courts and the Commission

12. Ms Adams states: “I am aware that our office has previously provided you with comments about the findings of the Federal Court and the Australian Industrial Relations Commission in relation to the particular wording of the Workplace Relations Act as it stood at the time”. I did not have any “comments about the findings of the Federal Court and the Australian Industrial Relations Commission” from your office in relation to the matter. If your office can find any such comments, could you please forward to me?

13. Anyhow, the only email from your office of 14 July 2006 stated: “As the content of the petition does not fall within Julia’s portfolio, and you are not living her electorate, she will not be able to act on this matter. As you claim in your correspondence to already have the support of Ms Nicola MP, this should be enough support for your situation”.

14. Except your email of 20 December 2006 mentioned at [1] above, another email from you of 24 July 2006 stated, in response to my concerns, “I will continue to devote my time to defeating the Howard Government and ensuring that an incoming Labor Government can rip up John Howard’s extreme industrial relations laws”. In my email to you of 9 March 2007, I commented on your above declaration, “You seemed to hint that the case law made by the Full Federal Court was not an extreme law in respect of industrial relation, and that you could accept that people had no right to obey law at work under the Constitution. If I am wrong please correct me”. You have not replied to my comment yet.

C. Constructions of the Constitution and the unlawful termination law
a. Cover Clause 5 of the Constitution

15. “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……”

b. Unlawful termination law

16. s 635 of the Workplace Relations Act 1996 (the WR Act) (It was s. 170CA before 2006):
“Object
(1) The principal object of this Division is:
……
(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention.
……” (bold added).

17. s 659 of the WR Act 1996 (It was s 170CK before 2006)
“Employment not to be terminated on certain grounds
(1) In addition to the principal object of this Division set out in section 635, the additional object of this section is to make provisions that are intended to assist in giving effect to:
……
(2) ……an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
……
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
……” (bold added).

c. The finding of the Australian Industrial Relations Commission

18. The “findings of” “the Australian Industrial Relations Commission in relation to the particular wording of the Workplace Relations Act as it stood at the time” (the section of unlawful dismissal has not been changed) is “based on the conflict of the factual situation and the need to hear evidentiary material the Commission is unable to issue an opinion”. Therefore, the Commission has certified that evidentiary material need to be examined on the Court. The Commission’s certificate is attached.

19. Implicitly, the specialized Industrial Relations Commission holds Hilda has met the criteria of claiming unlawful dismissal. Put another way the Commission holds to the effect that Hilda has been unlawful dismissed if relying on the “factual situation” provided by Hilda in accordance with section 635 of the WR Act (s. 170CA of the WR Act before 2006) (see [16] above).

d. The finding of the Federal Courts

20. By contrast, the Federal Courts, without precedent, strike out Hilda’s application certified by the Commission before trial and hold that Hilda’s claim was instituted “vexatiously or without reasonable cause” because she had not complained about her superiors unlawful instructions and activities to “a Court or Tribunal” before she was dismissed, even though the primary judge has recognized “in this case she's complaining to a person that - to an organisation that looks [a]fter workers that she's being forced to carry out her duties illegally” and “The complaint, however I characterise it, is only in the capacity as employee seeking relief as employee”, and the employer’s counsel has conceded that: “the illegality is in fact on the part of the employer, not on her part”.

21. The Full Federal Court construes s 659(2)(e) of the WR Act (see [17] above), “the filing of a complaint”, as “only to a Court or Tribunal”. In our opinion, if it does not clarify, the WR Act only deals with the matters that happen at workplaces. For instance, this subsection specifies “or recourse to competent administrative authorities”; if both of the Government that proposed the WR Act and the Parliament that approved the WR Act meant filing “only to a Court or Tribunal”, it would certainly have put the word on the subsection. Put another way, if it is “filing of a complaint” “only to a Court or Tribunal”, it contradicts to filing of a complaint (“recourse”) “to competent administrative authorities”. Further, before she was terminated, Hilda had filed complaint to Australia Taxation Office and Victorian WorkSave, which are “administrative authorities”.

e. Wordings of the Report of Committee of Experts

22. s 659(2)(e) of the WR Act is enacted because of Australia’s international obligation under the Termination of Employment Convention (see [16] above). The Full Federal Court declares that its construction of “filing of a complaint” is according to International Labour Conference ‘Protection against Unjustified Dismissal’ Report of Committee of Experts (the Report). The Full Federal Court refers to paragraphs 115-117, but does not quote any parts of those paragraphs. At paragraph 116, it states, “Protection of this kind can be established through provisions to protect workers against retaliattory measures when they try to defend their right under the Constitution, the Labor Code or other legislative provisions. Thus, in a growing number of contries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meeting standards set by law, discriminatory practices in employment or non-compliance with occupational safety and health provisions. ……” (bold added). The Report uses “denounce” to explaining “filing of a complaint”. Implicitly, the denouncing is to the management at workplace and impossible “only to a Court or Tribunal”.

23. It seems that the Full Federal Court tries to construe the protection as witness protection in proceedings in court. However the Report clarifies that the protection is “to protect workers against retaliattory measures when they try to defend their right under the Constitution, the Labor Code or other legislative provisions” not under Witness Protection Act.

D. The Federal Government’s response to the case law made by the Full Federal Court
a. The Attorney General fails to indicate a desire to intervene in the matter and to provide any reasons for not intervening

24. Under s 78A of the Judiciary Act 1903 the Attorney General can intervene in proceedings in courts if the proceedings “relate to a matter arising under the Constitution or its interpretation” (see [3] above). The Attorney-General has declared that he made “a technical assessment of the constitutional significance of the proceeding” and decided that he would not intervene in the proceeding except the High Court granting a special leave to the appeal. Implicitly, he means that it does not have “constitutional significance” that people have no right to uphold and obey the laws at work even though the Cover Clause 5 of the Constitution requests people to do so.

25. The Full Federal Court’s construction of unlawful termination section of the WR Act deprives workers of the fundamental constitutional right. Federal Government does not deny that case law is wrong. More than 50% Australian are workers. All workers have no right to obey the laws in accordance with that case law. Therefore, the majority of Australian people at 9:00am to 5:00pm in weekdays have no right to obey both of the Constitution and the laws. We cannot figure out why the Attorney General declares that it is not something with “constitutional significance” or public importance. The Attorney-General does not tell his reasons.

26. Through the petition, we have collected evidence that the public believe that people’s right to obey the laws at work is of public importance and needs to be considered by the Federal Parliament. Many people, organizations and politicians support the petition. By contrast, the Attorney General has not given any reasons why he holds that that people at work have no right to uphold and obey law has no “constitutional significance”. (Please refer to my letter to the Attorney General of 27 August 2007, which is attached to previous email.).

27. The Attorney-General’s department has advised me to the effect that no such “technical assessment of the constitutional significance of the proceeding” exists at all, in response to our request to disclosing the reasons for the Attorney-General’s decision under the Freedom of Information Act 1982. Therefore, the Attorney General apparently knows that he has not had any grounds for not intervening in the proceeding. Obviously, he hints to the effect that there is no need to provide any reasons for his decision because he believes people are silly to consider that the laws and the Constitution are significant enough to be obeyed at work, to argue their obligation in the Court and to raise the matter to him.

b. The Prime Minister holds that the request to filing of complaints “only to a Court or Tribunal” is “strong protections for employees”

28. The Prime Minister holds to the effect that the case law made by the Full Federal Court in relation to Hilda’s matter is “strong protections for employees”. We could not understand how the Prime Minister reasons his conclusion. It only makes sense if we treat employers as dangerous armed criminals. It is similar to the police require people never confront with dangerous armed criminals, which is for the safety of the people.

29. However, we do not know any governments’ documents warning the safety of the workers who “denounce” the employers who breach laws or regulations. We believe that the case law is strong protection for employers who breach the laws, and encourages employers to disregard the laws approved by the Parliament.

30. The 4th question is whether Federal Labor believes that the case law is “strong protections for employees” who try to obey the laws or “strong protections for” employers who breaches the laws.

c. No government documents have ever informed that employees should complained their employers’ illegalities "only to a Court or Tribunal”

31. We have not found any documents ever suggest that employees should complain their superiors’ illegalities, in general circumstances, before the employees are dismissed, to “a Court or Tribunal”, let alone “only to a Court or Tribunal” except the Full Federal Court’s judgment in relation to Hilda’s case.

d. The WR minister does not find any laws that allow employees to complain about their employers’ unlawful instructions “to a Court or Tribunal”

32. The minister for Employment and Workplace Relations has not found any laws, which allow employees complaining their employers’ illegalities “to a Court or Tribunal”, even though he mentions that an employee can pursue an unlawful dismissal claim because he or she has lodged a complaint with the Human Right and Equal Opportunity Commission on the ground of unlawful discrimination because their race. So far, according to the minister’s findings, if an employee cannot prove that the employer’s unlawful instructions and activities are because of the employee’s race, the employee’s has to follow the employer’s unlawful instructions and cannot complaint about the employer’s illegalities. The minister has not expressed that he has any concerns about it.

e. Federal Government understands the case law made by the Full Federal Court is wrong

33. If Federal Government had held the Full Federal Court’s construction is correct it would have informed all employees that they should complain their employers’ illegalities “only to a Court or Tribunal”. Even though the Prime Minister holds to the effect that the case law is “strong protections for employees”, but the Federal Government has not informed all employees such “strong protections for employees” are available. Obviously, the Federal Government understands the case law is wrong. That is why it does not follow the Full Federal Court’s construction to informing all employees such important information.

f. Federal Government does not believe this country operates under the rule of law

34. As outlined above the Federal Government does not care that people at work cannot obey the Constitution, but on the other hand, encourages employers to breach the laws by providing “strong protections” for them. That is the reason why the Attorney General, with a sublime disregard for the Cover Clause 5 of the Constitution, does not want to indicate a desire to intervene in the matter in the High Court for people’s right to obey the laws at work under the Constitution even though he is paid to uphold people’s right under the Constitution.

E. Appropriate questions to the Attorney General

35. The 5th question is whether Federal Labor holds that it has “constitutional significance” or public importance in accordance with Cover Clause 5 of the Constitution that people have no right to uphold and obey the laws at work.

36. The 6th question is why the Attorney General fails to take the opportunity to correct the mistake made by the Full Federal Court while the High Court invites him to do so. One of the possible answers is that the Attorney General is more than happy to keep it as long as possible because it encourages the employers to breach the laws approved by the Parliament, and provides much more liberty for employers.

37. The 7th question is whether Federal Labor holds that the Attorney General has failed his duty to uphold people’s right at work as he fails to show any intention to intervene in the matter without any reasons.

38. The 8th question is whether Federal Labor holds that the Attorney General has a duty to provide reasons for his decision of not intervening in the matter.

39. The 9th question is whether Federal Labor ought to question the Attorney General about the matter because workers’ rights are Labor’s soul and heart, if Federal Labor believes the case law has “constitutional significance”.

F. What thing can been done while the case law is at odds with both of the WR Act and the Constitution
a. Whether the Federal Government should propose a law allowing employees complain “only to a Court or Tribunal”?

40. Obviously, the case law made by the Full Federal Court creates a legal loophole, which puts employees in predicament. After the Full Federal Court had made the case law, Federal Government should have proposed a law that allows employees to file complaints against their employers’ unlawful instructions and activities. That is one of the evidence that suggest the Federal Government has known the case law made by the Full Federal Court is wrong. That is why it does not propose the law, which allows employees to file complaints against their employers’ unlawful instructions and activities before they are dismissed.

b. Whether the apparent disconformities between the case law and the Cover Clause 5 of the Constitution need to be resolved

41. The Constitution requests people to obey law. However, the Full Federal Court holds that Hilda seeks protection for her right to obey law under the Constitution is “vexatiously or without reasonable cause”. The Federal Government does not deny there are disconformities between the case law and the Constitution. However, it does not show that it cares about it.

42. If the Federal Government had held that the case law was correct, that the Constitution was out of date and that employers did need much more liberty, it would have proposed to change the Constitution. It should have informed the public that the people, which was referred by the Cover Clause 5 of the Constitution, was defined as employers only at workplace, or that employees did not count as people at workplace in respect with the Cover Clause 5 of the Constitution.

43. The 10th question is if people at work have no right to obey law under the Constitution, where do people have right to obey the laws under the Constitution?

44. The 11th question is while Federal Government and Federal Parliamentarians undermine and diminish both of the laws and the Constitution, who ought to respect and obey both of the laws and the Constitution?

c. Whether Federal Parliament wants to construe the “the filing of a complaint” as “only to a Court or Tribunal”

45. If the majority of the Federal Parliamentarians has no intention to construe “the filing of a complaint” as “only to a Court or Tribunal”, before trying to change the wording, it is able to require the High Court to declare whether the Full Federal Court’s construction is wrong or/and not valid under the Cover Clause 5 of the Constitution. I have contacted the famous constitutional expert, Professor George Williams, the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales with email. He replies that he hopes the petition “meets with some success”.

G. Other issues

46. If the Federal Government had fulfilled its duty properly, above questions would not have existed or would have been answered. We are grateful to you for raising your concerns about my email. I understand you and your staffs are very busy on other issues. If you have any further concerns, please do not hesitate to contact me. We are more than happy to try our best to reply your concerns. For your convenience, the documents attached to previous email are attached as well.

I look forward to hearing from you.

(file below is downloadable as .doc file)

Email of 12 September 2007 from Ms Julia Gillard MP’s adviser

(file below is downloadable as .jpg file)

The certificate of 26 February 2004 issued by the Australian Industrial Relations Commission

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

2009-01-19T21:28:00.019+11:00

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.

Email of 25 May 2006 to the Attorney-General for Victoria

2008-12-29T17:26:00.008+11:00

Dear Sir,

Re: Hilda Zhang v The Royal Australian Chemical Institute Inc. (M76, M77, M129 and M130/2005)

I refer to both of the High Court’s orders of above matter made on 10 May and the reasons for the orders, which were not available until 19 May.

The High Court did not doubt that our challenges to the Full Federal Court’s judgments were about all workers’ fundamental constitutional rights, did not doubt that the case laws made by the Full Federal Courts were wrong and did not doubt that if the High Court had heard our appeals we would have won. However, the High Court held to the effect that workers’ rights were nothing (not “sufficient to justify a grant of special leave to appeal”) comparing to the employers’ absolute right to give any directions to employees because “A reasonable time has elapsed since the s 78B notices were given. No Attorney-General has indicated a desire to intervene”, even though the High Court knew that 600 people had supported and signed the petitions against the case law made by the Full Federal Court. Arguments in detail can be found at our website: http://www.upholding-peoples-rights.blogspot.com.

Please clarify whether Your Honour concede: as “[a] reasonable time has elapsed since the s 78B notices were given” and Your Honour has not responded to Hilda’s Notices, the High Court has correctly understood Your Honour’s desire: not intervening in the matter in the High Court at all, because I will raise this matter to the members of the parliament.

I look forward to hearing from Your Honour.

Your Honours faithfully

Daming He

(file below is downloadable as .doc file)

My emails of both 21 April and 5 May 2006 to the Attorney-General for Victoria

(file below is downloadable as .jpg file)

Letter of 23 August 2006 from Deputy Victorian Government Solicitor

Email of 11 September 2007 to Labor IR Spokesperson Ms Julia Gillard MP

2008-12-08T17:11:00.016+11:00

Dear Ms Gillard MP,

I refer to my previous letters of both 16 June 2006 and 12 December 2006, and to your replies of both 24 July 2006 and 20 December 2006 in relation to our petition for people’s fundamental constitutional right to obey law at work.

Mr Gavin Ryan of Senator Marshall’s office has advised me that the petition would be presented to the Senate on 10 September 2007. Further, he said I should directly contact you in relation to any following up actions with respect of the petition because you are the IR spokeswoman of the Labor Party and Senator Marshall is a Labor Senator.

We have requested the Attorney-General’s office to disclose the reasons for not intervening in the proceeding in the High Court as the Attorney-General had informed us that he had reasons for not intervening. However, the Attorney-General’s department advises us to the effect that there are not any reasons for the decision except legal advices that are exempted from disclosing because those legal advices do not support the conclusion of not intervening. My letter to the Attorney-General of 27 August 2007 is attached.

A senior adviser on behalf of the Prime Minister responded to my letter regarding to the petition. The senior adviser’s letter of 13 August is attached. Implicitly, the Prime Minister holds that the case law made by the Full Federal Court in the Judgment of Hilda’s case provides 'strong protections for employees'. That is employers can legally dismiss any employees who dare to complain about the employers’ unlawful activities to the employers, external organizations and authorities because the case law requests that the employees file complaints 'only to a Court or Tribunal' before they are dismissed to meet the criteria for unlawful dismissal claims; however, there are no laws, in normal circumstances, allowing employees to file such complaints.

Now we see the Prime Minister believes to the effect that employers’ instructions prevail over the laws and the Constitution in the workplace. That is why we say the Prime Minister’s new IR laws are extreme laws and only for employers because he believes, anyhow, to the effect that employees have no right to obey any laws at work. My letter of 8 September 2007 to the Prime Minister is attached.

Could you please kindly advise me whether you would follow up the petition to the Senate and what things we might do to follow up the petition to the Senate?

I look forward to hearing from you. Updated backgrounds of the petition and the petition are attached.

(files below are downloadable as .doc files)
Ms Gillard MP’s email of 24/07/06 in response to my email of 24/07/06
Ms Gillard MP’s email of 20/12/06 in response to my email of 12/12/06
My letter to the Attorney-General of 27 August 2007 My letter to the Prime Minister of 8 September 2007

(file below is downloadable as .jpg files)
letter of 13 August 2007 from the Prime Minister's Office

Letter of 17 November to the Commonwealth Ombudsman

2008-11-17T16:00:00.004+11:00

Dear Professor John McMillan

I appreciate that you replied personally to my complaint of 26 September (Your ref: 2007-120702).

You didn’t deal with my ground of complaint. You didn’t even provide any reasons for not dealing with my ground─the Federal Court’s ruling of ‘implied waiver of privilege’ in Bennett v Australian Customs. It seems that you had problems to apply the Federal Court’s ruling; however, you didn’t want to tell me your problems. Is that correct?

You didn’t respond to any of my questions. If my questions were unreasonable, or illegitimate, I believe, you would have pointed out. Apparently, you chose to not respond to any of my questions. Were you happy with yourself, an ombudsman, without giving reasons, you didn’t answer any questions?

One of my questions is ‘whether the deleted information is part of the reasons for the decision that had been disclosed’. Implicitly, you held ‘the deleted information (‘a summary of the legal advice’, on which the decision in concern was based.) is part of the reasons for the decision that had been disclosed’. If you had held the deleted information isn’t part of the reasons for the decision that had been disclosed, you would have informed me that. Is that right?

You ‘assure[d] [me] that a proper investigation was conducted’; on the contrary, you didn’t assure me a proper or correct conclusion was made; you didn’t assure me the result of your investigation, in terms of ‘whether the deleted information is part of the reasons for the decision that had been disclosed’, is disclosed. Put another way, you knew, according to the result of your investigation, your conclusion was incorrect and improper.

Please disclose your investigation result. If you cannot disclose your investigation result, please provide reasons.

You didn’t deny that my ground is legitimate, but you stated your ‘office cannot take the issue any further’. You didn’t even mention ‘implied waiver’─that is my ground of complaint.

Your ‘role’ (and your office’s role) is to answer complainant’s question, disclose your investigation result, and directly respond to the ground of complaint. If I am wrong, please correct me.

If you can tell me what your problems are, why you cannot answer any of my questions, and why you cannot deal with my ground of complaint, your problems can be solved easier and faster.

In due course I will try to expose and solve your problems for the public and for you because the public may not accept that an ombudsman cannot obey the laws, cannot answer questions, and cannot provide any reasons for not answering questions.

Thanks for your courtesy to advise me that you will ‘read’ my ‘further correspondence on the same issue’.

(files below are downloadable as .jpg files)

The Commonwealth Ombudsman’s letter of 6 November p. 1 and p. 2

Complaint of 26 September about the A-G’s Department’s FOI Decision

2008-10-28T16:56:00.011+11:00

Dear Professor John McMillan

I complain about the decision of 8 September 2008 made by Mr Richard Glenn, the assistant secretary of Personal Property Security Branch of the Attorney-General’s Department (Ref: 08/7411). Mr Glenn reviews a decision made by Mr Malcolm Bennett to delete material from documents provided to me under the Freedom Information Act 1982. Mr Glenn’s decision, Mr Bennett’s decision and my application for reviewing Mr Bennett’s decision are attached.

Mr Glenn’s decision failed to address my main complaints, and did not provide any reasons for ignoring my complaints. My main complaints were:

‘Mr Malcolm Bennett’s decision of deleting some materials in one of the disclosed documents is unreasonable and erroneous as he failed:

‘1. to consider whether or not the legal advice was a part of the reasons for the decision that had been disclosed. (Implicitly, the "professional legal adviser", who was the decision maker as well in relation to not intervening in the constitutional matter, "repeated" "some legal advice earlier provided in this matter" because the legal advice was the reasons for his decision. Obviously, he considered: to understand his decision, it is necessary to give the reasons.)’
…
‘3. to consider “implied waiver of privilege” in accordance with Bennett v Australian Customs, in which Tamberlin J points out:

(i): “Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: ‘I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.’” (paragraph 7, emphasis added)

(ii) “…the whole of the advice on which all those conclusions are based, must be considered to have been waived”. (paragraph 14, emphasis added)’

I particularly requested: ‘Therefore, please review Mr Bennett’s decision and provide substantial reasons for your decision in relation to above issues.’

My questions are:

1. whether Mr Glenn ought to respond to the above two aspects of the complaints, or the main grounds of the complaints
2. whether the deleted information is a part of the reasons for the decision that had been disclosed
3. whether Mr Glenn ought to apply Bennett v Australian Customs as quoted above?

I believe Mr Glenn’s review is incomplete.

(files below are downloadable as .jpg files)

Mr Bennett’s decision of 4 August 2008 p. 1, p. 2, and attachment p. 1, p. 2 and p. 3
Mr Glenn's decision of 8 September 2008 p. 1, p. 2 and p. 3

(file below is downloadable as doc. File)

My application of 18 August 2008 for reviewing Mr Bennett’s decision

Complaint of 23 September to the Commonwealth Ombudsman

2008-10-10T17:10:00.004+11:00

Dear Professor John McMillan

I complain about the decision made by Ms Julia Agostino. Her decision is irrelevant to my complaints. She fails to address my complaints, and does not provide any reasons for ignoring my complaints.

Ms Agostino’s conclusion is: ‘the documents are clearly subject to legal professional privilege.’ I have never doubted or complained that the documents should not be subject to legal professional privilege. My complaints have always been that the legal professional privilege should be waived. Ms Agostino fails to make any decision in term of what I have complained. Her decision is unprofessional or incompetent.

I expressly complained: ‘Mr Bluck did not try to investigate whether the reviewer had considered “the implied waiver of privilege” or to suggest the AGD to consider “the implied waiver of privilege” even though he wrote that he had power to do so.’

Ms Agostino viewed the documents. On face of it, she wanted, in response to my complaints, to identify whether the documents contain any grounds of the decision made by the Attorney-General’s Department, but she failed to disclose what she found. In my opinion if the documents did not contain any grounds of the decision, she would have declared it. Do you agree?

My complaints have always been that the “implied waiver of privilege” apples to the reasons of decision in accordance with Bennett v Australian Customs, in which Tamberlin J points out:

a. ‘Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: “I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.”’ (paragraph 7, emphasis added)

b. ‘…the whole of the advice on which all those conclusions are based, must be considered to have been waived’. (paragraph 14, emphasis added)

If you do not have jurisdiction or power to deal with the decision made by the government, please inform us. For all concerned, could you please instruct the decision makers that they should not play around?

I request to disclose Ms Agostino’s finding in relation to whether the documents contain the reasons of the decision made by the Attorney-General’s Department. Furthermore, I request to investigate and decide what I have complained about:

1. whether the documents contain any reasons of the decision
2. whether the reasons of the decision should be disclosed in accordance with Bennett v Australian Customs?

My previous complaint and Ms Agostino’s decision are enclosed.

(file below is downloadable as doc. File)

My complaint of 11.12.2008 to the Ombudsman

(file below is downloadable as .jpg file)

Ms Agostino’s decision of 07.05.2008

More Senator Supports the petition

2008-09-22T18:02:00.000+10:00

Federal Labor Senator for New South Wales, Senator Douglas Niven Cameron, Ground Floor, 111-117 Devonshire Street, Surry Hills NSW 2010, Tel: (02) 9690 2455

Application of 18 August for Review of A-G’s Department’s Decision on ‘deletions’

2008-09-08T21:42:00.010+10:00

To Whom It May Concern:

Mr Malcolm Bennett’s decision of deleting some materials in one of the disclosed documents is unreasonable and erroneous as he failed:

1. to consider whether or not the legal advice was a part of the reasons for the decision that had been disclosed. (Implicitly, the ‘professional legal adviser’, who was as well the decision maker in relation to not intervening in the constitutional matter, ‘repeated’ ‘some legal advice earlier provided in this matter’ because the legal advice is the reasons for his decision. Obviously, he considered, to understand his decision, it is necessary to provide the reasons.)

2. to apply ‘real harm’ test that is a preliminary request for ‘a claim for exemption’ in accordance with section 13.2 of Freedom of Information Memorandum no 98

3. to consider “implied waiver of privilege” in accordance with Bennett v Australian Customs, in which Tamberlin J points out:

(i): ‘Kirby J points out in Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 at 34: “I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.”’ (paragraph 7, emphasis added)

(ii) ‘…the whole of the advice on which all those conclusions are based, must be considered to have been waived’. (paragraph 14, emphasis added)

Therefore, please review Mr Bennett’s decision and provide substantial reasons for your decision in relation to above issues.

Furthermore, I request for a waiver of the $40 application fee as:

a. a general rule is that review fee and application fee ought to be waived when the requests are ‘of serious concern or benefit to the public, not merely of individual interest’ (British Steel Corporation v Granada Television Ltd )

b. as showed in the background of the petition, our FOI requests are ‘of serious concern or benefit to the public, not merely of individual interest’

c. So far all decision makers, who made decisions about the matter in relation to:
(i) the notices of a constitutional matter
(ii) the petition
(iii) the FOI requests,
have not denied that the Full Court’s interpretation of the unlawful dismissal laws have affected all Australian workers’ rights to obey the laws and Constitution.

Holding it is better ‘to move this matter along’, Mr Bennett has waived our previous application fee even though his ground is to the effect that the reviewer’s time is more ‘valuable’ than the $40. If the reasons for decision of not intervening in the constitutional matter were disclosed, we would not have spent ‘valuable time proceeding’ our requests.

If you need any further information or particular documents please do not hesitate to contact me.

(files below are downloadable as .jpg files)

Mr Malcolm Bennett’s letter p.1, p.2, and attachment p.1, p.2 and p.3

Email to Clerk of Senate of 18 July, and His Reply of 18 July

2008-08-22T17:13:00.004+10:00

Dear Mr Evans

Thanks for your quick reply.

It is clear Mr Carter conveyed the decision of the committee. However the letter was not signed by the Chair of the committee. Mr Carter signed the letter. He takes the responsibility for the legitimacy of the information or reasons in the letter. What was put before the committee is whether or not they support the letter. The members of committee made the decision based on believing the reasons or information in the letter were legitimate.

According to the parliament’s website, ‘the clerk’s office is directly responsible for:

* ‘provision of high quality procedural and constitutional advice to senators in respect of the operations of the Senate and its committees
* ‘provision of secretariat, advisory and administrative support to the Procedure Committee and the Committee of Privileges’

It expressly appears your ‘office is responsible for’ the quality ‘of secretariat support’.

It seems your office has given the committee advice:

a. it should recommend the Senate to take up the matter if the petition is about a constitutional matter
b. to avoid dealing with the constitutional matter the secretary could do following tricks or twist the facts:

i. changing the matter concerned from ‘unlawful termination case’ to ‘unfair dismissal case’
ii. altering the High Court judges’ wording from ‘documents filed by the applicant do not demonstrate…’ (bold added) to ‘documents filed by the applicant fail to demonstrate…’ (bold added)
iii. Ignoring the first request of petition, which is: ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’.

My complaints are whether or not those three tricks are legitimate according to the professional standards. Your email seemly confirms those three tricks are legitimate.

My complainants to you are ‘quality’ of the ‘procedural advices’ and ‘secretariat, advisory and administrative support’ given by your office to the committee.

We really appreciate your responses. They are helpful to clarify the issues concerned.

I look forward to assisting you further with this matter.

Yours sincerely

Daming He

Dear Mr He

The points made in your email of today's date are misconceived, as indeed are the matters raised in your submission in the first instance. I do not have time to correct all of the misconceptions. As with the committee, our correspondence is terminated.

Yours sincerely

Harry Evans
Clerk of the Senate

Email to Clerk of Senate of 11 July, and His Reply of 15 July

2008-08-08T12:55:00.002+10:00

Dear Mr Evans

I complain about the conduct of Mr John Carter, the secretary of Senate standing committee on Employment, Workplace Relations and Education.

Mr Carter has not denied he provides fraudulent reasons below in his letter of 15 May 2008 in relation to the committee’s decision on a petition.

a. The petition arises from an ‘unlawful termination case’; however, Mr Cater writes: it is an ‘unfair dismissal case’.
b. High Court judges stated: ‘documents filed by the applicant do not demonstrate…’ (bold added); but Mr Carter changes it to ‘documents filed by the applicant fail to demonstrate…’ (bold added)
c. There are only two requests in the petition. The first request of petition is: ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’. He does not refer to the first request at all; however, his conclusion is: ‘the issues have been fully covered’.

We believe Mr Carter, as a secretary, ought to provide correct services to the committee. I have been advised you are able to deal with the errors in Mr Carter’s letter of 15 May.

The petition, its background and correspondences between Mr Carter and me are attached.

I look forward to hearing from you.

Yours sincerely

Daming He

hl.let.16028
15 July 2008

Dear Mr He

I have your email of 11 July 2008.

As John Carter's letter to you made clear, he conveyed the decision of the committee in relation to the matter you raised; he did not make his own determinations on the matter. There is, therefore, no basis for any complaint about him.

Yours sincerely
Harry Evans Clerk of the Senate

Email of 23 June to Secretary of Senate Committee on Workplace Relations

2008-07-23T09:48:00.007+10:00

Dear Mr Carter

You know best why I send emails to members of committee. You know you have provided fraudulent reasons and ignored first request of petition. You have not denied it. Have you?

Should Australians at work have rights to obey the laws and Constitution becomes a question after first request of petition is not dealt with by the committee.

Some members forward my emails to you. Apparently they believe the onus is on you, not them, to answer why you fail to address the first request of the petition, why you give fraudulent reasons in your letter.

You advise us to ‘turn [our] energies to more productive activities’, implicitly, you mean ‘more productive activities’ are needed for Australians’ constitutional right to obey the laws at work, but just fall short of saying what are ‘more productive activities’. We are trying to ‘turn [our] energies to more productive activities’. The common ground among members of committee, you and us is ‘more productive activities’ are needed for Australians’ constitutional right to obey the laws at work.

Members of committee know what requests of petition are and what kind of misleading reasons have been provided. They can access diverse resources. Furthermore:
a. many Labor parliamentarians including members of committee have supported the first request of the petition, they want Australians have rights to obey the laws at work
b. the Democrats Party have supported the first request of the petition as well
c. Senator Marshall has advised Deputy Prime minister the committee would ‘decide whether any further action will be taken in relation to the petition’ but, the committee has not dealt with the first request of the petition
d. The Deputy leader of Opposition states: ‘I believe that a number of the issues you raised with respect to the constitutional right to obey the law at work deserve some attention’; however, the committee has not paid any attentions at all on ‘the constitutional right to obey the law’.

That is why no one has written to me that he or she is not ‘interested any longer in this matter’. You may say my email will not be answered because members of committee are unable to work out proper responses for your fraudulent letter. That is why we seek advices from members of committee before doing anything else.

It seems you respond particularly to my last email of 23 June. Comparing with previous emails the last email is more like a courtesy email as there is common ground among members of committee, you and us as outlined above.

You know it is wrong to knowingly provide fraudulent reasons. Don’t you? Why are you doing that? If you hadn’t given fraudulent reasons, would your job have been in jeopardy?

We really appreciate your response. It is very helpful to clarify the common ground. I look forward to receiving your response to this email.

Yours sincerely

Daming He

Cc: members of committee

(file below are downloadable as .doc file)

Mr John Carter’s email of 23 June 2008

Email to Liberal Senator Boyce of 23 June

2008-06-30T13:06:00.003+10:00

Dear Senator Boyce

Should Australians at work have rights to obey the laws and Constitution? The petition has virtually raised this question. What is your answer for this question? I have asked similar questions in previous emails. You haven’t responded to it.

Having read my email to Mr Carter of 26 May, your email stated to the effect that you knowingly supported the fraudulent reasons in Mr Carter’s letter of 15 May. On 19 June Yasmin told me you considered the case laws that Australians complain about workplace illegalities ‘only to a Court or Tribunal’ was correct.

On 5 May, Yasmin told me the case law was correct according to a lawyer’s advice. On 14 May I talked to Michael, ‘the lawyer’. He said he was a law student and was doing a research for the case law. He was going to send me an email by 23 May. I haven’t got any emails from him. On 19 June, he talked to me over the phone. However, when I asked the email he promised he gave the phone to Yasmin. Obviously, he didn’t want to express his opinion on this matter.

On 19 June I talked to Mr Carter. He didn’t have intention to deny at all that he knowingly gave the fraudulent reasons in his letter of 15 May. He said I was banging my head against a brick wall because of separation of power. Obviously, it is an excuse. If it were true he would have clearly written it in his letter of 15 May. I said to him the committee accepted to the effect that the Full Court’s interpretation that Australians ought to complain about workplace illegalities ‘only to a Court or Tribunal’ was legitimate interpretation of the laws. As no laws allow Australians to complain about workplace illegalities ‘only to a Court or Tribunal’ the committee should make inquiries about it and urge the parliament to fix the constitutional problem by enacting laws to allow Australians complain about workplace illegalities ‘only to a Court or Tribunal’.

Mr Carter advised me I should seek advices from constitutional lawyers. I told him we sought opinions from famous constitutional law professor in Sydney University, George Williams. Then Mr Carter advised me the committee’s decision was final and the case would not be reopened, I have to go to other jurisdictions or avenues. Apparently, he accepts our opinion that Australians’ constitutional rights are affected by the Full Court’s interpretation of the unlawful dismissal laws.

The committee mainly comprised of bipartisan senators. Where could we go? Someone suggests that we campaign for a referendum on this issue. Others argue demonstrations will work as the Constitution has given Australians at work constitutional right to obey the laws and Constitution. Someone proposes that a hunger strike in front of the Parliament House will be a good kick start for next phrase of the campaign for:
a. Australians’ constitutional right to obey the laws and Constitution at work
b. This country operates under the rule of law.

As you are the only one so far, saying, through Yasmin, to the effect that Australians ought to complain about workplace illegalities ‘only to a Court or Tribunal’ or Australians at work shouldn’t have rights to obey the laws and Constitution, the reasons of your conclusion are very important. Could you please provide reasons for your assertion? We greatly appreciate it in advance.

I look forward to receiving your reasons.

Yours sincerely

Daming He

Email to Democrats Senator Murray of 13 June

2008-06-16T18:06:00.003+10:00

Dear Senator Murray

You declare you support the fraudulent reasons of decision but fall just in short of saying that you ‘do not really want Australians have right to obey the laws’. I understand Mr Carter conveyed a letter agreed by the committee and the committee wants to use the letter to ‘end the matter’. However, I prefer not to assume the committee knowingly provides the fraudulent reasons in the letter.

After knowing why we say the reasons in the letter are fraudulent, you don’t deny your misleading intention in the letter at all. That is helpful for us to understand why Australians have no right to obey the laws and Constitution at work for the time being.

Implicitly, you believe Australians should not have right to obey the laws and Constitution at work. What I cannot understand are:
a. why you don’t have the courage and decency to say it,
b. why you don’t give your true reasons that you don’t want Australians to obey the Constitution at work
c. why it is so difficult for you to be honest and tell the truth
d. why you want to undermine the Constitution
e. why you deliberately force Australians at work into at a catch 22 situation
f. why you keep yourself busy by working on laws that Australians at work have no right to obey if you have conscience
g. why you try to mislead Australians into believing that they have the right to obey the laws and Constitution at work when clearly expressing you do not support the petition, which is to ‘ensure’ ‘employees’ rights under the Constitution’.

In your email of 11 April, you stated: ‘your issue is a matter to be decided at law’. You may say it has been decided at law as judges believe the parliament requests workers to complain about workplace illegalities ‘only to a Court or Tribunal’ and you support the judges’ interpretation. As no laws request and allow workers to complain about workplace illegalities ‘only to a Court or Tribunal’, the problem is Australians at work cannot obey the Constitution. This matter must be decided in accordance with the Constitution, so the first request of the petition is to ‘ensure’ ‘employees’ rights under the Constitution’.

‘Whether Senate really wants Australians have right to obey the laws at work?’ is the question asked in my previous email. As you have not prepared yourself to answer this question, we will try our best to assist you to answer this question. (An alternative question for you is: Do you believe Australians at work ought to have right to obey the laws and Constitution?)

Thanks for your response. It is helpful for us to understand the situation.

I look forward to receiving your response to this email.

Yours sincerely

Daming He

Cc: committee members

(file below are downloadable as .doc file)

Senator Murray’s letter of 11 June 2008

Email of 26 May to Secretary of Senator Committee on Workplace Relations

2008-05-29T17:29:00.017+10:00

Dear Mr Carter

I refer to your letter of 15 May 2008. I don’t exactly know how you presented the matter to the committee. However, according to your letter, you have missed the most important issue of the petition, and made some apparent mistakes, which might amount to misleading conduct. So I have to provide correct information to the committee.

A. Unlawful dismissal or ‘unfair dismissal’?

2. You might say unfair dismissal cases have no constitutional connection. It clearly shows what your intention was. You are wrong to say Hilda Zhang’s case is an ‘unfair dismissal case’. Finkelstein J summarised the case as ‘termination of employment – unlawful reason’ in the judgment that you refer to. The petition states the case is an ‘unlawful termination case’. I cannot find where ‘the unfair dismissal case’ comes from and cannot figure out any reason for you to make such a mistake except you were trying to make misleading comments.

B. Whether ‘the issues have been fully covered’?

3. The first request of the petition is to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’. Your letter does not touch it let alone provides any response to the virtual question arisen from the first request, which is whether Australians’ constitutional right to obey the laws at work are ensured under Zhang v The Royal Australia]n Chemical Institute Inc [2005] FCAFC 99 (3 June 2005).

4. ‘Do you believe Australians ought to complain about workplace illegalities ‘only to a Court or Tribunal’?’ This is the last question I asked in my previous email of 5 May 2008. Maybe it is easier for you to ignore the Full Court’s interpretation of the unlawful dismissal laws in Zhang’s case, but unfortunately, no lawyers, no Australians at work can ignore the Full Court’s interpretation. This is the point of the petition. That is why so many people, organisations, political parties, parliamentarians and local governments have supported the petition. You do not show that you have turned your mind to this request. How can we reckon your letter as a ‘final’ response on the request?

5. While the Constitution requests Australians at work to obey the laws, the Full Court demands Australians to complain about workplace illegalities ‘only to a Court or Tribunal’. As no laws request and allow workers to do that, for the time being, Australians have no right to obey the laws at work in accordance with the Full Court’s requirement.

6. There are many reasons of why we want to stick to the principle. For example:
(1) If you were a worker who had been injured because his superior had breached safety regulation, you would have felt the pain due to no right to obey the laws at work
(2) If you were a retiree investing in HIH and OneTel, you would have lost your saving from your whole work life because the employees of HIH and OneTel had no right to obey the laws
(3) If you were a lawmaker you would have been frustrated realizing all hard work, generations’ struggle, had been undermined by wrongful interpretation
(4) Taxpayers will be disappointed to find out that millions dollars have been wasted on making laws that Australians at work have no right to obey at all
(5) As Australian you might feel to be shamed by AWB scandal because the employees of AWB have no right to obey the laws
(6) You might be overwhelmed by knowing Australians have no right to obey the laws at work if you respect the laws and Constitution.

7. Whether millions Australians have no right to obey the laws at work for the time being is an ‘extraordinary circumstance’? Please provide criteria for ‘extraordinary circumstance’.

8. We aren’t able to figure out the reasons of why you do not address the most important issue in the petition bearing in mind many members of the committee have supported the petition. Please provide reasons.

9. May I suggest: the reason is the matter is a serious and complex one and the committee needs extra assistance and time to conclude this request?

C. ‘The tenor of judicial comments’

10. Comparing the judicial comments in SZJIT v Minister for Immigration & Citizenship & Anor [2008] HCATrans 109 (29 February 2008) (the comments are:
‘The applicant’s draft notice of appeal does not advance any question of law that would justify a grant of special leave to appeal. There was no jurisdictional error in the conclusion of the Tribunal, and no reason to doubt the correctness of the judgment of the Federal Court’.)
with Zhang v The Royal Australian Chemical Institute Inc [2006] HCATrans 227 (10 May 2006), (the comment are:
‘The documents filed by the applicant do not demonstrate that there are prospects of her showing error in the reasoning of the courts below sufficient to justify a grant of special leave to appeal in any of the applications’.)
you will find that the judicial comments on Zhang’s case clearly suggest, or that you can readily deduce:
(1) The applicant advances some questions of law close to justify a grant of special leave to appeal, however due to no ‘sufficient’ evidences from neither the Government nor Parliament to ‘demonstrate’ that they did not agree with the Full Court’s interpretation let alone considered it was of public importance
(2) Nevertheless, there are reasons to doubt the correctness of the judgment of the courts below, and
(3) there are jurisdictional error in the conclusion of the courts below.

11. The judicial comments on Zhang’s case are the best tenor you can get when an application for special leave to appeal is dismissed.

12. If you say: the judicial comments on SZJIT’s case as mentioned above ‘suggest that no recommendation the committee might make to the Senate urging a plea to the Attorney-General would succeed’, it is not objective to deduce the same interpretation for the judicial comments on Zhang’s case as the judicial comments on SZJIT’s case are poles apart from the judicial comments on Zhang’s case.

13. Furthermore, the High Court’s wording is: ‘do not demonstrate’; however, you altered it to ‘fail to demonstrate’. (Is that a part of your misleading tactics?) As we had not got supported from any parliamentarians at that time, the High Court held to the effect that we ‘do not demonstrate’ ‘sufficient’ evidence to doubt that the Parliament would not accept the Full Court’s interpretation.

14. It was not: ‘fail to demonstrate’ because it was not our responsibility to demonstrate whether the Government accept the Full Court’s interpretation or not. Our duty was to provide our opinion. It is the Attorney-General’s responsibility to decide whether the Government accepts the Full Court’s interpretation and consider whether the constitutional matter is of public importance. It was the junior solicitor failed to raise the constitutional matter to the then Attorney-General, subsequently, the then Attorney-General failed to show ‘a desire to intervene’.

15. Another mistake is you state incorrectly that Justices Gummow and Hayden’s transcript for decision in relation to special leave to appeal is ‘the judgment’ of the case. To simply prove that you can search published judgments on the High Court’s website. There is no judgement for Hilda Zhang’s case. There is only transcript for decision on not granting special leave to appeal.

16. Ultimately, only the peoples’ representatives, the members of parliament, have the right, in a sense, to say what is the Parliament’s intention and judge what is of public importance. Now we have many parliamentarians’ support for the petition. That is ‘sufficient’ enough for granting special leave to appeal according to ‘[t]he tenor of the judiciary comments’.

D. The High Court Registry’s advice

17. The Registry’s advice does point out where the problem is: ‘s 78B notices were given’, but ‘No Attorney-General has indicated a desire to intervene’ as straight pointed out by the Justices.

18. Apparently you notice the High Court did not mention the Full Court’s interpretation of the unlawful dismissal laws, so follow suit. However, the difference is the High Court Registry subsequently directed us the proper way (even though it is a long way due to no intervention from Attorney-General) to solve the constitutional matter (by getting the Attorney-General’s intervention), but you show no attention to solve the constitutional matter by making misleading comments and errors and saying: ‘There is no further adviser or assistance we can offer you’.

19. Obviously the High Court leaves the Full Court’s interpretation to the Government and Parliament. Whether the Full Court’s interpretation is wrong or right is up to the Government and Parliament themselves. Is it correct to say the Full Court has interpreted the Parliament’s intention not the High Court’s intention?

20. The implication of section 78B of the Judiciary Act 1903 is the Government and Parliament keep the right to have a say in court what their intentions are with respect of the laws enacted by themselves. The High Court can reasonably assume that no response from the Attorney-General means that the Government has not got any problem with the Full Court’s interpretation. Knowing the Government agreed with the Full Court’s interpretation, the High Court still could not agree with it.

21. Could you please consider the questions below?

(1) What other thing could the High Court do as arbitrator when we argued the Full Court’s interpretation of the unlawful dismissal laws was incorrect and the Government apparently did not accept our argument by showing no desire to intervene, especially given the then Government was overhauling industrial relations laws at that time?

(2) Would the High Court be further frustrated if it assumed the Government deliberately put the High Court in the situation to guess what the Government’s intention would be?
In particulars
(a). In 2004 Senate inquired into legal aid and access to justice, and found at 10.48:
‘Judicial officers and registry staff experience high levels of stress and frustration when dealing with litigants in person, because of the difficulty of holding a fair balance between the represented and unrepresented parties.
The perceived tension between judicial impartiality and the need to help litigants in person meant that a number of judges and Registrars thought that their role as presiding officer was compromised by the presence of a litigant in person.’

(b). According to the Senate’s finding above, there are reasons, which are:
(i) ‘Judicial officers and registry staff experience high levels of stress and frustration’ and
(ii) ‘judges and Registrars thought that their role as presiding officer was compromised’,
for the High Court Registry to encourage us to question why the Attorney-General failed to show ‘a desire to intervene’ in the proceedings in relation to Australians’ constitutional right to obey the laws at work. To avoid unnecessary stress and frustration, and judiciary role to be compromised the High Court did not have choice except requesting us to first get the Government’s intervention.

22. If the Senate does not accept the Full Court’s interpretation, the then Attorney-General might excuse himself by saying that he did not make the decision. Could you find any reasonable excuse for the committee? (May I suggest your excuse for the committee may be: the committee only considers whether your letter itself is OK or not, nothing else. So you have to provide misleading information and disallow me to contact the members of the committee. Will constituents, who are overwhelmed, disappointed, shamed, frustrated and hurt, as outlined at [6] above, accept such excuse?) If you cannot find legitimate excuse to give to the constituents, the subsequent question is: do you want constituents to believe that the Senators in the committee accept the Full Court’s interpretation. If that is the case, constituents may ask:
a) why do parliamentarians make laws, when they do not give Australian at work the right to obey the laws.
b) does they just keep themselves busy and frustrate the High Court’s Justices and people who respect the laws and Constitution?

23. The Registry’s advice directs us toward the cause of the problem. The Government and Parliament take the final and paramount responsibility for telling what their intention are and for assessing what matter is of public importance, which is the criteria enacted by parliament for the High Court to grant special leave to appeal (sect 35A(a)(i) Judicial Act 1903, parliament does not request the High Court to deal with all questions of law arisen from courts below). The High Court Registry wants the Government and Parliament to take their duties. The Government has to be accountable to the Parliament. The Parliament has to be accountable to the constituents.

24. The implication of the Registry’s advice is the Registry’s understanding of the tenor of the judicial comment on the case is different with yours. The Registry’s advice suggests Senate urging a plea to the Attorney General can succeed. If your understanding is really different from the Registry’s, do you need to make misleading comments and errors?

E. ‘Context’ for ‘junior solicitor’

25. The junior solicitor stated: ‘If special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’. Clearly, the junior solicitor identified constitutional matter, and considered the High Court had reasons for granting special leave to appeal. However, he could not make a decision of intervention for the then Attorney-General. The then Attorney-General’s office’s advice is: no document showed that the Attorney-General decided personally not to intervene. It is clear the matter was not properly handed after the junior solicitor had verified the constitutional matter and considered the High Court might have reasons for granting special leave to appeal. The junior solicitor seemly suggested he did not have the capacity to bother the then Attorney-General to make the decision himself, (s 78A of the Judicial Act 1903 requests Attorney-General to make the decision.), if the High Court had granted special leave to appeal, the junior solicitor then would have had the evidence to request the Attorney-General to consider intervention.

26. What the junior solicitor did not know is it is incorrect to wait the High Court to express its opinion. The Attorney-General ought to express his opinion to the High Court because the High Court is arbitrator. The junior solicitor breached section 78B of the Judicial Act 1903 as he had no legitimate capacity to make such decision in respect of the constitutional matter?

27. The fact is the Attorney-General’s Department cannot provide any reasons for its decision not to intervene. Put another way they have no legitimate reason for not intervening. Is it strange that the committee does not want to find out why the decision was made without any legitimate reasons and how the matter was handed when it was relevant to Australians’ constitutional right to obey the laws at work?

F. Responses in principle from Senator Troeth, shadow WR minister and WR minister

28. The final words of Senator Troeth’s first response (email of 21 December 2007) are:
‘Senator Troeth is not a member of the new, Labor Government. In your latest email, you state that your goal is for the Government to seek an opinion from the High Court regarding what you term the ‘constitutional right at work’. Given this, I could only suggest that you bring your concerns to the attention of Labor parliamentarians, in particular the Commonwealth Attorney-General, Mr Robert McClelland, and the Victorian Attorney-General, Mr Rob Hulls’.

29. Having read my emails, Senator Troeth, in her email of 31 January 2008, expressed to the effect that she did not think, that ‘an employer can lawfully displace the duty of an employee to obey the laws’. Giving advice in respect of Hilda Zhang’s legal right, Senator Troeth expressed to the effect that justice had been denied Hilda Zhang.

30. Please verify whether those are the Senator Troeth’s principles you referred to.

31. The shadow minister for workplace relation, the Deputy Leader of the Opposition, states: ‘I believe that a number of the issues you raised with respect to the constitutional right to obey the law at work deserve some attention, especially given that, according to your correspondence, so many Labor member of parliament have previously support your petition’.

32. The minister for workplace relation, the Deputy Prime Minister, states: ‘I am advised that the Office of the Attorney-General informed you …… 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. In addition, Senator Marshall has advised me that your petition was presented in the Senate on 11 September 2007. …… The committee will decide whether further action will be taken in relation to the petition’. She clearly suggests: if the committee does not ‘fail to’ raise ‘further question of intervention’, the government can take further action. The Attorney-General’s Office’s advice suggests they understand ‘the tenor of the judicial comments on the case’ is the Senate urge a plea to the Attorney General can succeed.

G. Summary

33. Do you believe: all Senators really want Australians at work have right to obey the laws passed by them? If your answer is: yes, or unclear in one way or another, we will try our best to assist you and the committee members to understand the matter for the best interest of Australians and the committee because workers have been denied justice due to no right to obey the laws.

I hope the above responses are helpful and look forward to hearing from you.

Yours sincerely

Daming He

Cc: members of committee

(files below are downloadable as .jpg files)

Mr John Carter's letter of 15 May 2008 P1, p2

Email of 5 May to Secretary of Senator committee on Workplace Relations

2008-05-13T11:00:00.002+10:00

Dear Mr Carter,

Ref: Petition regarding workers’ constitutional rights arising from unlawful termination case of Hilda Zhang, presented by Senator Marshall on 11 September 2007

Thank you very much for taking time to consider the matter. You advised me that you had not got any opinion about my previous email. I would like to summarise the matter in concerns.

A Full Court’s interpretation of unlawful dismissal laws has caused a constitutional problem or created a legal loophole, which is Australians are requested to complain about workplace illegalities ‘only to a Court or Tribunal’ while for the time being no laws request or allow Australians to do so.

The questions are:

1. What is the merit of the laws, while Australians have no right to obey those laws at work? (As Australians have no right to obey the laws at work for the time being, apparently, the merit of those laws is diminished.)

2. Do you believe Australians have constitutional right to obey the laws at work? (If the answer is no, a particular law ought to be enacted, which is employers’ instructions prevail over the rules, regulations, laws and Constitution at workplace. For the time being Australians at work are bond by the cover clause 5 of the Constitution.)

3. Do you believe that Australians ought to complain about workplace illegalities ‘only to a Court or Tribunal’ or that the Government and Parliament have to amend the unlawful dismissal laws in accordance with the Full Court’s interpretation? (If the answer is yes, a particular law ought to be enacted to request and allow Australians to complain about workplace illegalities ‘only to a Court or Tribunal’.)

It is hard to image or clarify why Australians have to face the dilemma (cannot obey the laws at work) everyday without the details of a real case.

Please do not hesitate to inform me, if you have any further concerns.

The backgrounds of the petition are attached.

I look forward to hearing from you.

Yours sincerely

Daming He

Enc

Cc: the Committee Members

Email of 3 April to Secretary of Senate committee on Workplace Relations

2008-04-28T16:00:00.009+10:00

I refer to the matter above and our communications in March. You advised me that it was improper for the Senators to inquiry about the Government’s business and a matter that had been before the Courts. An email to that effect had been sent to all Committees. So having concern over your advice I asked you to disclose your email and the source of your information. You advised me to wait the Committee’s formal decision.

Believing the Committees must been fully informed, I would like to express my concerns.

One may say it is improper for the Senators to be too fussy about the Government’s business. As many Senators’ inquiries recorded in the Hansard, it is incorrect to say generally that it is improper for the Senators to inquiry about the Government’s business.

If inquiring the matter in relation to Australians' constitutional right to obey law at work, it might lead to:

a. enacting particular laws to allow Australians to complain about workplace illegalities ‘only to a Court or Tribunal’, if considering that it is constitutional, or
b. requesting the Attorney-General’s department to disclose its reasons for no intervention, if considering that ‘only to a Court or Tribunal’ is unconstitutional, and
c. assessing the reasons, and
d. amending the unlawful dismissal laws, if considering that they are unconstitutional due to the Full Court’s interpretation, which is legitimate, or
e. requesting the High Court to arbitrate whether the unlawful dismissal laws are unconstitutional due to the Full Court’s interpretation, if considering that the Government and Parliament have no intention whatsoever to request Australians complain about workplace illegalities ‘only to a Court or Tribunal’.

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

The bizarre situation is all Australians including all lawyers have to follow the interpretation that no Parliamentarians agree with.

The 1st question is whether the Committees agree with the Full Court’s interpretation. Put another way, does the Government and Parliament have genius intention to request Australians to complain about workplace illegalities ‘only to a Court or Tribunal’? Labor Committees and Democrats Committee have supported the petition. Implicitly, they disagree with the Full Court’s interpretation.

The 2nd question is whether the unlawful dismissal laws with the Full Court’s interpretation diminish or deprive of Australians’ constitutional right to obey law at work. The Committees who have supported the petition apparently hold that Australians’ constitutional rights have been affected by the Full Court’s interpretation.

The 3rd question is whether the Government and Parliament ought to leave the unlawful dismissal laws with the Full Court’s interpretation there for the moment despite it has affected Australians’ constitutional rights. It might depend on an assessment of constitutional significance of the matter. The Committees who have supported the petition implicitly hold the matter has constitutional significance.

The former Attorney-General did not doubt that this was a constitutional matter and that Australians’ constitutional right to obey law at work had been affected by the Full Court’s interpretation. Deciding to wait and see (‘If special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal’ is the formal response from Australian Government Solicitor in relation to the constitutional matter) means that the Attorney-General’s Department and Australian Government Solicitor did not deny the constitutional significance of the matter. However, they could not make a final decision for the elected former Attorney-General in relation to the constitutional significance of the matter.

The 4th question is what thing ought to be done about the matter, while it has constitutional significance. The petition request virtually:

1. the Government and Parliament to amend the unlawful dismissal laws in accordance with both of the Constitution and the Full Court’s interpretation, or

2. the Government and Parliament to request the High Court to arbitrate whether the unlawful dismissal laws or the Full Court’s interpretation is unconstitutional.

For the second request, the High Court Registry’s advice is that the Government and Parliament are able to request the High Court to do so.

The Attorney-General’s Department has not changed its decision to wait and see, and said, ‘no further question of intervention arises (from the Parliament) 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’. If the Department held that the Parliamentarians could not raise further question of intervention, it would have said that no further question of intervention can be raised. Anyway, ultimately it is the Parliamentarians’ responsibilities to decide what is of public importance.

The 5th question is whether ordinary Australians and the Parliamentarians have moral, legal and constitutional obligations to respect and uphold laws and the Constitution, particularly when a matter affects themselves or their constituents. You are advising the Committees that it is improper for them to do anything even though they believe they have moral, legal and constitutional obligations to do something about it. Please kindly provide your reasons so we can fully discuss them. The Committees are entitled to make fully informed decisions.

Without fully addressing above issues, just saying, it is improper for the Senators to make any inquiry about the matter that had been before the Courts. It clearly suggests that the Senators have no moral, legal and constitutional obligations and legitimate power to make any inquiry about it. It is improper and may amount to misleading.

I would be more than happy to assist you and the Committees to be fully informed bearing in mind:

a. over 10 millions Australians’ constitutional right and the constitutional principle that this country operates under the rule of law are at stake

b. many people, organisations, political parties, parliamentarians and local governments have supported the petition.

Thank you very much for your information and advice. I look forward to hearing from you in respect to above concerns.

'the issues….. deserve some attention', said Bishop MP

2008-04-11T15:38:00.002+10:00

‘I believe that a number of the issues you raised with respect to the constitutional right to obey the law at work deserve some attention,’ said the Hon Julie Bishop MP, Deputy Leader of the Opposition, Shadow Minister for Employment, Business and Workplace Relations, in response to my appeal for supporting the petition for Australians’ constitutional right to obey the laws at work.

(file below is downloadable as .doc file)

Letter to the Hon Dr Brendan Nelson MP of 16/12/07

(file below is downloadable as .jpg file)

Letter from the Hon Julie Bishop MP

Australians’ Constitutional Right to Obey Law has been Affected

2008-03-28T13:10:00.007+11:00

The former chair of Senate standing committee on employment, workplace relations and education, Senator Troeth, does not deny that the Judgment of Hilda Zhang’s case has affected all Australians’ right to obey law at work but refused to do anything about it.

Before the election I contacted Senator Troeth in relation to the petition. Her response was she followed the government’s decision.

On 1 December 2007, she declared at The Age that she was silenced by the Liberal, and ‘Lib must heed the grassroots voices’. Therefore, I raised the petition issue to her by an email of 17 December 2007.

A. Senator Troeth’s reply of 21 December 2007 through her staff, Mr Minas

1. “Having read Zhang’s cases, as well as the High Court transcript, it would appear that the legal issues involved were straightforward and were fully dealt with.”

2. “The first goal of the petition, to ‘ensure that employees’ rights under the Constitution are upheld by the laws and courts’, presupposes that such rights, insofar as they exist, are not presently being upheld. No evidence to support that proposition is before us.”

3. “The second goal of the petition is to ‘ensure that the Attorney General of Commonwealth responds to Hilda Zhang’s Notice of A Constitutional Matter … and intervenes [in] the matter in the High Court’. While the executive arm of government is ultimately accountable to the legislature, it would be quite extraordinary for the Parliament to compel the Attorney-General to take action in an operational matter, and no sufficient justification for such a radical departure is before us.”

4. “Further, as you would be aware, the sections of the Workplace Relations Act 1996 (Cth) that were litigated in Zhang’s cases (ss 170CK(2)(e), 170CR, 170CQ) no longer form part of the Act. Part 9.4AAA of the Corporations Act 2001 (Cth) may be of interest to you: it provides certain protections for company employees making internal disclosures within a company.”

5. “In any event, Senator Troeth is not a member of the new, Labor Government. In your latest email, you state that your goal is for the Government to seek an opinion from the High Court regarding what you term the ‘constitutional right at work’. Given this, I could only suggest that you bring your concerns to the attention of Labor parliamentarians, in particular the Commonwealth Attorney-General, Mr Robert McClelland, and the Victorian Attorney-General, Mr Rob Hulls.”

B. My reply of 8 January 2008 to Senator Troeth’s response of 21 December 2007

(a) In response to the 1st point

The Federal Court’s “decisions make it straightforward and clear that ‘the file of a complaint’ is ‘only to a Court or Tribunal’. It is the ‘straightforward’ point that the petitioners request Senators to consider.”

"Mr Minas seems to assert that the High Court transcript deals with the issue (‘the filing of a complaint’ is ‘only to a Court or Tribunal’) ‘fully’. If I interpret it wrongly, please correct me. I really need your help to point out where the High Court deals with the issue ‘straightforward[ly] and fully’ in the High Court transcript.

"The petitioners request the High Court to deal with the issue straightforwardly and fully."

(b) In response to the 2nd point

"the second paragraph of the ‘Background of the petition’:
'In the Federal Court, a judge characterized Hilda’s complaint as ‘only in the capacity as employee’ and the employer’s counsel conceded that: ‘the illegality is in fact on the part of the employer’. However the Federal Court struck out her claim of unlawful termination of employment, which was certified by the Industrial Relations Commission. A Full Court dismissed her appeals, holding her claim ‘had been instituted vexatiously or without reasonable cause’ because she did not file a complaint against her boss’s unlawful instructions and activities ‘to a Court or Tribunal’ before she was terminated.”

"We have sought legal advices. We have been told: an employee has three options while his/her boss give him/her unlawful instruction:

· If you want to keep your job because you have to support your family and to pay mortgages, you have to shut up and to follow all unlawful instructions given to you
· You can resign and that will be easy for you to find another job
· If you complain about your boss’s illegalities, you will be dismissed legally (or the legal system will cannot protect you from the retaliatory dismissal anyway).

"Please kindly advise what kind of particular evidences do you need if you believe that above evidences cannot been counted."

(c) In response to the 3rd point

"Based on the facts:

a. Hilda had made complaints ‘in the capacity as employee’ as said by the Judge
b. ‘the illegality is in fact on the part of the employer’ as said by the employer’s barrister

"Hilda’s claim of unlawful termination had been characterised as being 'instituted vexatiously or without reasonable caus' in Zhang’s decisions because she did not complain to ‘a Court or Tribunal’ before she was terminated. The decisions do not uphold people’s constitutional right to obey law at work and apply to all workers in Australia. We really have difficult to understand why this is not the kind of ‘quite extraordinary [matter] for the Parliament to compel the Attorney-General to take action in an operational matter’.

"We understand that employees should not complain about their employers’ illegalities if the Constitution does not request people to do so, and/or if there isn’t any laws made by the Government and Parliament, which request employees to follow the laws at the first instance. We will appreciate if you help us to understand this issue that workers’ moral and legal obligations in relation to the Constitution, the laws and regulations.

"The former Victorian shadow Attorney-General and Industrial Relations, Mr Andrew McIntosh MP did not think that workers should first complain to ‘a Court or Tribunal’ about employers’ illegalities.

"We know Members of Parliament and Senators’ routine jobs are to question the Government in operational matters and to keep it accountable. Parliament Hansard records all inquiries. We could not understand why Mr Minas states to the effect that Members of Parliament and Senators should not make an inquiry about the Government’s operational matters."

(d) In response to the 4th point

"a. the former s 170CK(2)(e) is s 659(2)(e) of the Act [Work Choice]
b. the former s 170CR is s 665 of the Act in relation to s 659(2)(e)
c. the former s 170CQ is s 664 of the Act in relation to s 659(2)(e)’

"s 1317AA(1)(b) [Part 9.4AAA of the Corporations Act 2001 (Cth)] defines what is disclosure, which is equal to ‘the filing of a complaint’ of s 659(2)(e) of the Workplace Relation Act 1996 (Cth), in workplace. That is why we say the interpretation of ‘the filing of a complaint’ as ‘only to a Court or Tribunal’ is incorrect."

(e) In response to Senator Troeth’s 5th point

"According to your article published on The Age on 1 December 2007, you were silenced because you were a Member of the Government. Now Mr Minas advises me to the effect that you have no responsibility to speak out for the grassroots because you aren’t ‘a member of the new, Labor Government’. These really confuse me. Could you please kindly clarify your attitude toward the ‘grassroots voices’?’

C. Senator Troeth’s reply of 17 January 2008

1. "Nor can the Parliament, or an individual parliamentarian, compel the judiciary to create or to recognise a constitutional right. Any attempt to do so would be wholly improper. Nor can a petition, whether supported by parliamentarians or not, compel a court to take a particular position on a question of law, or to reverse an earlier position."

2. "it is unclear how and where the Constitution could provide for a ‘constitutional right to obey law at work’, which you seem to suggest is a right granted by the Constitution to employees that can be enforced against employers."

D. My reply of 22 January 2008 to Senator Troeth’s response of 17 January 2008

(a) In response to the 1st point

“The petition raises awareness to the situation that Australians have no right to obey the laws and Constitution at work, and seeks such right under the Constitution.

“Accordance to the advice of the High Court Registry, the Parliament and Government are able to request the High Court to finally arbitrate whether the unlawful termination laws [need to be amended], or whether the Full Court’s interpretation of the laws [needs] to be set aside if the Parliament has no intention to:
a. Request Australians to complain [about] workplace illegalities first ‘to a Court or Tribunal’, and
b. Enact the laws to allow Australians to complain workplace illegalities: ‘to a Court or Tribunal’ or, in effect,
c. Request Australians to follow unlawful instructions at work

“Put another way, the High Court can arbitrate the argument of whether it is that the unlawful termination laws technically disallow people at work to obey law or that the Full Court’s interpretation of the laws technically disallow[s] people at work to obey law. If the High Court hold[s] a law is unconstitutional, the Government and Parliament are bound to change the law in accordance with the Constitution. If the High Court hold[s] the interpretation of the laws is unconstitutional, the interpretation will be set aside.”

(b) In response to the 2nd point

“Cover clause 5 of the Constitution provides:
‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’.

“Implicitly, ‘people of every State and every part of the Commonwealth’ include people at work. Therefore, we believe that the Constitution gives the Commonwealth power to enforce the laws at workplace (i.e., to protect people who obey the laws from retaliatory measures, and to punish people who breach the laws). I mentioned Cover Clause 5 of the Constitution in my email of 2 October 2007 and quoted it in the attachment to the email.

“While Hilda appealed the primary decision to a Full Court on the ground that she had a right to obey law at work under the Constitution, The Full Court did not directly answer the question of whether she had a right to obey law under the Constitution, but held her appeal was ‘vexatiously or without reasonable cause’. If the Full Court held that Hilda had no right to obey law at work, the Full Court would have dealt with it directly and declared that she had no constitutional right to obey law at work. However, the Full Court declared that Hilda had no right to claim unlawful termination because she did not file a complaint against her superiors’ illegalities ‘to a Court or Tribunal’ before she was terminated.

“If we reasonably assume that the Full Court did not ignore Hilda’s appeal ground on her right to obey law at work under the Constitution, implicitly, the Full Court held to the effect that Hilda were unable to claim her constitutional right because the Parliament had the intention to put a condition (i.e., ‘the filing of a complaint’ was ‘only to a Court or Tribunal’ before a termination of employment) to claim such constitutional right. Put another way, the Full Court hold to the effect that the Parliament wants Australians at work to follow unlawful instructions given by their bosses because the Parliament has not enacted the laws that allow a worker to file a complaint against his/her boss’s illegalities ‘to a Court or Tribunal’ before his/her termination if the illegalities are not due to the worker’s age, sex, race etc.”

“We cannot believe that the Parliament has no intention to protect people’s right to obey law at work from retaliatory dismissal. We believe that the Parliament has genius intention to protect workers’ right to obey law from retaliatory dismissal. We believe the Full Court’s decision (interpretation) has caused constitutional problem. Therefore, we appealed the Full Court’s decision to the High Court.

“If the High Court held that Australians have no right to obey law at work under the Constitution, the High Court would have said so straightly in its transcript. If the High Court held that workers have to complain against their employers’ illegalities ‘to a Court or Tribunal’ before having the right to be protected from retaliatory dismissal, the High Court would have said so clearly in the transcript.”

“the question of whether Australians at work have a right to obey law under the Constitution is put clearly and straightly to the Full Court, the High Court and the Attorney-Generals elected, none of them has denied or doubt that Australians have constitutional right to obey law at work. Further, as discussed above, we believe the Cover Clause 5 of the Constitution has clearly and straightly granted employees a constitutional right, ‘that can be enforced against employers (illegalities)’. Obviously, if Commonwealth has no constitutional power to request Australians to obey law at work and Australians have not been granted constitutional right to obey law at work, we cannot say that Australian operates under the rule of law.”

E. Senator Troeth’s reply of 31 January 2008

1. "the question of whether an employer or work superior can lawfully order an employee to commit an offence is not an issue of constitutional law. Rather, it would appear to be a matter for state (Victorian) criminal law. Section 321G of the Crimes Act 1958 (Vic) provides:
'where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by-
(a) the person incited;
(b) the inciter; or
(c) both the inciter and the person incited-
'if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.
'(2) For a person to be guilty under subsection (1) of incitement the person-
(a) must intend that the offence the subject of the incitement be committed; and
(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.
'(3) A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.’
"This would appear to be a full answer to the question of whether an employer can lawfully displace the duty of an employee to obey the laws."

2. "One final comment regarding the legality of internal complaints (i.e. complaints made within the company hierarchy): As previously stated, Part 9.4AAA of the Corporations Act 2001 (Cth) provides protection for persons who make certain internal disclosures. However, it appears that no party to the Zhang proceedings raised Part 9.4AAA at any stage, so the relevance (if any) of Part 9.4AAA to Mrs Zhang’s situation has not been determined."

F. My reply of 2 February 2008 to Senator Troeth’s response of 31 January 2008

(a) In response to the 1st point

“In Hilda Zhang’s case, Hilda was not incited by her bosses. Her bosses instructed and coerced her to follow unlawful instructions. Further, if someone argues that ‘people of every State and every part of the Commonwealth’, which is referred to in Cover Clause 5 of the Constitution, does not include people at workplaces, similarly, ‘a person’ and ‘any other person’, which are referred to in Section 321G Incitement of the Crimes Act 1958 (Vic), does not include a person and any person in workplaces.”

(b) In response to the 2nd point

“section 659(2)(e) of the Workplace Relations Act 1996 (the WR Act) provides general protection for persons who make internal disclosures under the Constitution.

“All unlawful termination laws have been consolidated by section 674(2) of the WR Act, ‘An employee must not commence other termination proceedings in respect of a termination of employment if an application alleging unlawful termination of the employment has already been made’. Once employees have been denied their right to obey law under the WR Act, their rights under other laws have been decided as well. Implicitly, in section 674(2) of the WR Act, the Parliament considers that all unlawful termination laws provide same protection for workers, and that there is no need to claim unlawful termination under different laws made by the same Parliament (in case of the laws made a State, Commonwealth laws prevail over the States laws under the Constitution).”

“The Full Federal Court’s interpretation of s 659(2)(e) of the WR Act is apparent inconformity with Part 9.4AAA of the Corporations Act 2001 (Cth)(s 1317AA(1)(b)). If agreeing with the Full Court’s interpretation of s 659(2)(e) of the WR Act, the Parliament needs to alter s 1317AA(1)(b) of the Corporations Act 2001 (Cth). If the Parliament holds that the Full Court’s interpretation of s 659(2)(e) of the WR Act is justified under the Constitution, obviously, it is legitimate to say that s 1317AA(1)(b) of the Corporations Act 2001 (Cth) is unjustified under the Constitution.”

"Fortunately, you were the Chair of the Senate Workplace Relations Committee when Work Choice was passed in 2005. You clearly knew what the Senate’s intentions were when the laws were scrutinised by the Senate Standing Committee on Workplace Relations. A question is whether you agree with the Full Court’s interpretation. If you agree with the Full Court’s interpretation, I would like to know the reasons.

"Under Cover Clause 5 of the Constitution, Judge and Court are bound to interpret the laws correctly. If the Parliament disagrees with a Court’s interpretation of the laws, the High Court will provide final arbitration. As mentioned in previous email, if the High Court holds that the Parliament fails to express its intention properly, the Parliament has to alter the laws and to express its intention properly; if the High Court holds that a Court’s interpretation is wrong, the Court’s decision will be set aside."

"As discussed insofar, the point is whether you and Senate Standing Committee on Workplace Relations accept that Australians’ complaints against workplaces illegalities to be filed ‘only to a Court or Tribunal’. If the Senate Standing Committee on Workplace Relations considers that the Full Court’s interpretation reflects the Parliament’s intention correctly, a question is whether you and your parliament colleagues have forgot to enact any laws to allow Australians’ complaints against workplace illegalities to be filed ‘to a Court or Tribunal’ in ordinary situations.

"My understanding is that if considering the Full Court interpreted the Parliament’s intention correctly, you would have advised me that what we were doing was vexatious ‘or without reasonable cause’."

(files below are downloadable as .doc files)
Email to Senator Troeth of 02/10/07
Email to Senator Troeth of 17/12/07
Reply from Senator Troeth of 21/12/07
Email to Senator Troeth of 08/01/08
Reply from Senator Troeth of 17/01/08
Email to Senator Troeth of 22/01/08
Reply from Senator Troeth of 31/01/08
Email to Senator Troeth of 02/02/08
Reply from Senator Troeth of 15/02/08

More MPs Support Petition

2008-02-25T15:15:00.000+11:00

Federal Labor MP for Dawson, QLD, Mr James Bidgood MP, Cnr Sams & Willetts Road, North Mackay, Qld 4740, Tel: (07) 4942 6011

Federal Labor MP for Lyons, TAS, the Hon Dick Adams MP, 53B Main Road, Perth, Tas 7300, Tel: (03) 6398 1115,

More MPs and Party Support Petition

2008-01-25T10:09:00.001+11:00

Federal Labor MP for Makin, SA, Mr Tony Zappia MP, 959 North East Road, Modbury, SA 5092, Tel: (08) 8265 3100

Federal Labor MP for Blaxland, NSW, Mr Jason Clare MP, Suite 7, Level 1, 400 Chapel Road, Bankstown, NSW 2200, Tel: (02) 9790 2466

Letter to the Commonwealth Ombudsman

2007-12-18T10:14:00.000+11:00

Dear Professor John McMillan,

“I complain about: the Attorney-General’s Department’s (AGD) review decision in relation to my FOI request.

I disagree with the decision, regarding my complaint, made by Mr Paul Bluck, Director Legal/Policy of the Commonwealth Ombudsman on 4 December 2007.

In my opinion Mr Bluck’s decision is wrong because on face of the review decision made by the AGD in relation to my FOI request, the reviewer failed to consider 'the implied waiver of privilege' and Mr Bluck did not try to investigate whether the reviewer had considered 'the implied waiver of privilege' or to suggest the AGD to consider 'the implied waiver of privilege' even though he wrote that he had power to do so.

Details

The AGD declared that the two documents in discussion were the only documents in relation to a decision of not intervening. The decision was given to me in April 2006.

The document 2 is a general policy approved by the Attorney-General on 13 September 2005 in relation to intervention. The document 1 is legal advices given by the Australian Government Solicitor to the Attorney-General about the particular intervention.

On face of the review decision made by the AGD, the Attorney-General relied on the two documents because no other legal advices and policies were relevant to the matter, and the reviewer of my FOI request did not consider 'the implied waiver of privilege'. Mr Bluck held it was not clear 'whether the Attorney-General relied solely, partly or not at all on the advice' and 'Any question of whether there has been a waiver is far better considered by the AAT'.

When making his decision Mr Bluck obviously assumed that the Attorney-General did not relied on the two documents at all and that the reviewer of the FOI request considered the 'the implied waiver of privilege' in accordance with the Full Court of the Federal Court’s judgment In Bennett v Australian Customs. In my opinion, his assumptions are baseless, and he should not make decision based on assumptions when he has power and opportunity to request the AGD to clarify his question or doubt.

Therefore my questions are:

1. Whether it is wrong that Mr Bluck made his decision based on his baseless assumptions while he has power and time to investigate his unanswered questions

2. Whether the AGD’s reviewer of my FOI request failed to consider 'the implied waiver of privilege' when making the AGD’s review decision.”

(files below are downloadable as .doc files)

My complaint to the Ombudsman of 13/08/07
My Email to the Director of 22/11/07 and 04/12/07
Emails from the Director Legal/Policy of the Commonwealth Ombudsman of 12/11/07, 26/11/07 and 07/12/07

DLP’s press release

2007-11-27T15:10:00.000+11:00

On 22 November, Democratic Labor Party issued a press release about Hilda’s case, from which our petition for workers’ constitutional rights to obey law at work has aroused.

(file below is downloadable as .doc file)

Press release of the Democratic Labor Party

The Prime Minister Concedes “the maters” are “policy matters”

2007-11-05T17:48:00.000+11:00

Since the issue was raised to the government in April 2006, the government has refused to take any actions to address the issue that a worker’s constitutional right to obey law at work is not protected from retaliatory dismissal after he/she complains his/her superior’s illegalities or violation of laws and regulations.

I wrote to the Prime Minister on 8 September. The Correspondence Unit of the Department of the Prime Minister advised me that a response was scheduled to be sent to me in four weeks. However, on 25 October Assistant Secretary of the Prime Minister, Mr Patrick Sedgley wrote: “The government is now in a caretaker role pending the outcome of the election” because the Prime Minister called the election on 14 October.

Since the petition was presented to the Senate on 11 September, the government’s attitude toward the matters has been changed a bit. It now admits “the matters” are “policy matters”, and further advises me: “You may wish to raise the matters that are contained in your letter with the incoming government once the outcome of the election is known”.

The government has 18 months to deal with the matter but fails to do so. Obviously, the government's policies are not to try to uphold workers’ rights even though the workers’ rights are for upholding and obeying the government’s regulations and laws at workplaces.

(file below are downloadable as .jpg files)

Letter from the Department of the Prime Minister and Cabinet of 25/10/07

Email to the Chair of Workplace Relations Committee

2007-10-03T12:30:00.001+10:00

Dear Senator Troeth,

I refer to previous correspondences with you and your staffs in November 2006 in relation to the petition for people’s constitutional right to obey law at work, and thank you again for considering the matter. The petition and the background of the petition are attached.

2. Jennifer told me that you did not support the petition because it was against the government’s policy. I asked her whether it was the government’s policy that employees had to follow unlawful instructions from their bosses. She relied that I had to pursue the matter with the government because you followed the government’s decision anyway.

3. The latest information from the Attorney-General’s office is that the Attorney-General is investigating the matter. My letter to the Attorney-General of 27 August and the letter from the chief staff of the Attorney-General’s office of 20 September 2007 are attached.

4. On 11 September 2007, Senator Marshall presented the above petition to the Senate. The petition officer of the Senate told me that the Employment and Workplace Relations Committee, which you chair, would consider the petition in next sitting. The information below might be helpful while you consider the matter in the Committee.

Public importance (“constitutional significance”)

5. Most Australians have no right to obey law and the Constitution in weekdays in accordance with the case law made by the Full Federal Court in relation to Hilda’s unlawful dismissal case in 2005. (More than 50% Australians are employees and work in weekdays.)

6. While Hilda sought protection for her right to obey law under the Constitution, the Full Federal Court held that her requirement was “vexatiously or without reasonable cause” because she did not complain about her superiors’ unlawful instructions and activities “to a Court or Tribunal” before she was dismissed even though the primary judge had recognized, “in this case she's complaining to a person that - to an organisation that looks [a]fter workers that she's being forced to carry out her duties illegally” and “The complaint, however I characterise it, is only in the capacity as employee seeking relief as employee”, and the employer’s counsel had conceded that: “the illegality is in fact on the part of the employer, not on her part”. (Further information may be found in the attached document, Construction of the laws and the Constitution)

7. A question is if people at work have no right to obey law under the Constitution, where do people have rights to obey law under the Constitution? If people at work do not need to obey law, why should they obey law and the Constitution anywhere else?

Constitutional principle

8. In general circumstances, no law allow people at work to complain their superiors’ illegalities “to a Court or Tribunal”. Therefore, people have no right to obey law at work in accordance with the case law.

9. The High Court recognised that our appeals against the Full Federal Court’s judgment involves applications of the Constitution, and issued Notices of Constitutional Matter to the Attorney-General under s 78B of the Judiciary Act 1903.

Do we have to follow the constitutional principles?

10. A junior solicitor from Australian Government Solicitor replied, “If special leave to appeal is granted, the Attorney-General might decide to intervene in the Appeal”. The junior solicitor did not declare that he was writing on the Attorney-General’s behalf. The High Court understood the Attorney-General had not “indicated a desire to intervene” therefore refused to provide a judgment to our appeals.

11. The Attorney-General department informs us that the Attorney-General receives 78B Notice daily. Therefore, they usually do not intervene in proceedings under s 78 of the Judiciary Act 1903 and even do not raise 78B notices to the Attorney-General’s attention. The Attorney-General’s chief staff informs us that no document shows that the matter was raised with the Attorney-General.

12. Do you believe that you have obligations to follow the junior solicitor’s opinion?

13. The High Court receives over 1000 appeals each year but it can only provide less than 100 judgments. Most of the appeals have to be dismissed without any judgments to the appeals if they are not high profiles, are not represented by famous Queen Counsels or are not intervened by the Attorney-General because of constitutional significance or public importance.

14. Obviously, the Government and the High Court are too busy to deal with appeals from ordinary people because of economic efficiency. (Further information may be found in the attached document, The Federal Government’s Response to the Matter)

15. A question is whether ordinary people should not care about their obligations and rights to obey law because the High Court and the Attorney-General will not care about their duties and rights at the end of the day.

16. Another question is whether ordinary people should not be punished in the name of the law at all, because the government and the court do not uphold their right to obey law anyway.

17. The question for parliamentarians is whether the Parliament should not approve the laws, which require ordinary people to obey, because of economic efficiencies of the High Court and the Government, and ought to approve the laws, which only require well-heeled people, who can afford to engage famous Queen Counsels at the end of the day, to obey, when inequity in access justice is accepted.

The Federal Government has not affirmed that the case law is right

18. Obviously, the case law made by the Full Federal Court creates a legal loophole, which leaves most of Australians at work in predicament. After the Full Federal Court had made the case law, Federal Government should have proposed a law that allows people at work to file complaints “only to a Court or Tribunal” against their superiors’ unlawful instructions and activities, and have informed all employees that they should not directly complaint their superiors’ illegalities to the bosses, if the government holds that the case law is correct.

The case law is at odds with the Cover Clause 5 of the Constitution

19. If the Federal Government had held that the case law was correct, that the Constitution was out of date and that employers did need more liberty and power, it would have proposed to change the Constitution. It should have informed the public that the people, which was referred by the Cover Clause 5 of the Constitution, was defined as employers only at workplaces, or that employees did not count as people at workplaces in respect with the Cover Clause 5 of the Constitution.

Parliamentarians may disagree with the case law

20. If the majority of the Federal Parliamentarians has no intention to construe “the filing of a complaint” as “only to a Court or Tribunal” at s 659(2)(e) of the Workplaces Relations Act 1996 (it was s 170CK(2)(e) before 2006), before trying to change the wording, it is able to require the High Court to declare whether the Full Federal Court’s construction is wrong or/and not valid under the Cover Clause 5 of the Constitution. (Please see the attached document, Construction of the laws and the Constitution)

We are grateful to you for your time to consider this matter. We consider if you have concerns about the case law and raise it to the Federal Government and to Employment and Workplace Relations Committee, both of the Government and the Committee will conduct its inquiry seriously and thoroughly. If you need any further assistance to understand the matter please do not hesitate to contact me. We are more than happy to reply all your concerns.

(file below are downloadable as .jpg files)

1. Certificate of the Industrial Relations Commission
2. Letter from the Chief Staff of the Attorney-General's Office of 20 September 2007 p. 1, p. 2

(file below is downloadable as .doc files)

3. The Petition
4. Background of the Petition
5. Construction of the Laws and the Constitution
6. Federal Government's Response to the Matter

7. Letter to the PM of 8 September 2007 was posted on this blog on 10 September 2007
8. Letter to the Attorney General of 27 August 2007 was posted on this blog on 27 August 2007

Senate Received Our Petition

2007-09-18T12:33:00.000+10:00

On 11 September 2007, Labor Senator Marshall, the deputy chair of the Senate Committee Employment, Workplace Relations and Education, presented our petition for people’s fundamental constitutional right to obey the laws at work to the Senate.

The petition is on the Senate’s Hansard of 11 September 2007, http://www.aph.gov.au/hansard/hanssen.htm , at page 15.

Letter to the Prime Minister

2007-09-10T11:29:00.000+10:00

Dear Sir,

I refer to the letter of 13 August 2007 written by your senior adviser, Mr Jamie Briggs, on your behalf in response to my letter of 9 February 2007.

Could the government intervene in a proceeding in a court?

Mr Briggs states: “It would be inappropriate interference with the independence of the judiciary”. In some circumstances Mr Briggs’ opinion is not correct.

Under section 78 of the Judiciary Act 1903, the government “may …… intervene in the proceedings before the High Court or any other federal court ……, being proceedings that relate to a matter arising under the Constitution or involving its interpretation”. Both of the High Court and the Attorney-General of the Commonwealth have not denied that our proceedings in both of the Federal Court and the High Court “relate to a matter arising under the Constitution or involving its interpretation”. Therefore the fact is the government is able to intervene in the matter if it wants to do so. Could you please kindly advise whether Mr Briggs’s statement truly represents your opinion? Further, could you please investigate whether Mr Briggs has knowingly provided such misleading advice if he is a competent senior legal adviser?

Under section 78B of the Judiciary Act 1903, notices of a constitutional matter were sent to the Attorney-General. However, the High Court has understood that the Attorney-General had not indicated “a desire to intervene”. Therefore you, as the head of the government, are able to appropriately comment on whether the government ought to have intervened in the proceedings if you want to do so.

Applications of special leave to appeal in person are usually not granted, as the High Court is only able to deal with less than 100 appeals out of more than 1,000 appeals a year. However, the High Court Registry has advised us: if the government or the parliament intervenes in the matter and request the High Court to deal with our appeal, the High Court will deal with it because of the public importance of the matter.

Could you please kindly advise whether you believe that the advice given by the High Court Registry is wrong? If you are not against the High Court Registry’s advice, will it be appropriate that you consider whether the government should intervene in the matter because of the constitutional principle that people at work have the obligation and right to uphold and obey the laws proposed by the government and enacted by the parliament?

Do you believe that this country operates under the rule of law?

Implicitly, you agree with the Full Federal Court’s construction of the unlawful termination section of the Workplace Relation Act 1996 (the WR Act) that “filing of a complaint” means filing complaint “only to a Court or Tribunal”. That means employees have to follow any unlawful instructions given by the employers if they do not want to be understood as breaking the relationship between the employees and employers and to be retaliated by the employers. Once employees follow unlawful instructions, the employees will take all responsibilities of their unlawful activities under the Constitution. The employers can excuse themselves by saying that the employees should inform the employers that those activities are unlawful activities and refuse to carry out them because the employers do not know the matters in great details.

In previous letter I wrote: “we have asked many solicitors whether a court can directly deal with workers’ complaints about their bosses’ unlawful instructions and activities before they are dismissed, but no solicitor has told us that a court can do so. Therefore, Australian workers have no legal right to uphold and obey laws in the workplaces at all in accordance with that law made by the Full Federal Court in the Judgment of Hilda’s case”. Mr Briggs does not say our opinions are incorrect. He does not deny that the matter is that an accountant has been retaliated after she had refused to follow unlawful instructions, and that the Full Federal Court holds that she is not protected by the unlawful termination section of the WR Act because she did not complain about her superiors’ unlawful instructions to “a Court or Tribunal” before she was dismissed. Mr Briggs fails to point out what kind of “strong protection” has been given to Hilda after she complained her superiors’ unlawful instructions, which is a common ground accepted by both of the Courts and the employer.

The judgment given to Hilda is that her activities against her superiors’ unlawful instructions and dismissal are “vexatiously or without reasonable cause” so that she has to pay the employer, who concedes unlawful instruction has been given to her, its legal costs. Apparently, Mr Briggs holds to the effect that those are “strong protection for” her constitutional rights at work. However the facts are that her employer has been given “strong protection for” its unlawful instruction and activities by allowing it to lawfully dismiss Hilda because she had insisted that she had the right to obey law at work under the Constitution.

Implicitly, you know, employees can be lawfully dismissed after they complain to the Workplace Ombudsman in accordance with the case law made by the Full Federal Court in respect of Hilda’s matter because Ombudsman is not “a Court or Tribunal”. Put another way the Workplace Ombudsman has to act “in accordance with that law made by the Full Federal Court in the Judgment of Hilda’s case”. If I understand your meanings wrongly, please correct me.

While employees have no right to uphold and obey law at work why does the government make so many laws to request the people at work to following, and punishes workers in the name of the laws.

While we may understand that some case laws made by the courts are not right and that some laws proposed by the government and approved by the parliament are not perfect, however, we can not understand that the government has no intention to uphold people’s constitutional right at work to obey the laws made by the government.

Public importance of the matter

A swathe of corporate scandals has occurred in the past few years, which has eroded confidence in the business community. There is a widespread crisis of faith in corporate ethics – especially since the collapse and exposure of criminal activities of HIH, Ansett and One-Tel in the domestic sphere, and AWB in the international sphere, Obviously, without protection from the legal system no corporate ethics can exist.

Further, every year numerous accidents harm the workers, the public and the environments. One may question why the people at work do not do anything to prevent it happening. The reality is that the people at work have no right to prevent those things happening in many of those events and accidents and many employees have had to resign because they simply do not want to do bad things.

Covering Clause 5 of the Australian Constitution provides: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State”.

Many people, politicians and organizations have supported our petition for people’s fundamental constitutional right to obey law at work. On 7 August Mr Tony Cdevitt of your office argued that we had only got supports from left. Obviously, he believes that the Democratic Party and the Uniting Church are left and you will not uphold anything from left.

I am surprised that you of all people, including Liberal and The Nationals MPs so far, believe to the effect that it is “strong protections for employees” that employers can lawfully dismiss employees who have complained about and refused to follow the employers’ unlawful instructions in accordance with the law made by the Full Federal Court. If I am wrong please correct me.

It is ironic that ordinary people believe that this country is operated under the rule of the laws and have to persuade the governments that the people at work must have the right to uphold and obey the laws made by the government. We cannot believe that it is the reality and that nothing can be done to change it. If there were no Cover Clause 5 of the Constitution and the laws made by the government we would not have been in the “catch 22 situation”, please help people at work out of the dilemma.

If you are not going to actually abandon both of the Cover Clause 5 of the Constitution and the laws made by the government, please intervene in the matter in relation to the case law made by the Full Federal Court, which is employers can legally dismiss their employees who have complained about their bosses’ unlawful instructions and activities to the employers and relevant external organizations and authorities.

(file below are downloadable as .jpg files)

Letter from the Prime Minister's senior adviser of 13 August 2007

Letter to the Attorney-General for FOI request

2007-08-27T10:59:00.000+10:00

Dear Sir,

I refer to your letter of 22 November 2006, in which you advised me “The decision about intervention involves a technical assessment of the constitutional significance of the proceeding”.

FOI request

Subsequently, I request to accessing the “technical assessment of the constitutional significance of the proceeding” (or the reasons of the decision) and the decision-making policy under the Freedom of Information Act 1982 (the FOI Act).

However on 30 July 2007 Ms Sheedy, the assistant secretary of Information Law Branch of your department, in her internal review decision, informed me to the affect that no such “technical assessment of the constitutional significance of the proceeding” (or the reasons of the decision) and the decision-making policy exist except legal advices exempted under the FOI Act. Ms Sheedy’s letter is attached.

No reasons for not intervening in the proceeding

In my application for review I particularly refer to Section 13.4 of the Freedom of Information Memorandum no 98 - Exemption Sections In The FOI Act, which 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” (par 65 of Bennett v Australian Customs).

I should not doubt Ms Sheedy is a competent reviewer. I should accept her conclusion, to the effect that the legal advice given by the Australian Government Solicitor’s letter of 27 April 2006 did not conclude that you had no reason to intervene in the matter. Put another way Ms Sheedy has found to the effect that there is no such “technical assessment of the constitutional signification of the proceeding”, as advised in your letter of 22 November 2006, which could lead to the conclusion of not intervening in the proceeding, and no reasons for decision of not intervening in the matter.

No decision-making policy

Section 9(1)(a) of the FOI Act provides:

“Certain documents to be available for inspection and purchase

(1) This section applies, in respect of an agency to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration”;

Ms Sheedy has only found a “Submission entitled ‘Constitutional litigation: arrangements for intervention and removal’” falls “within the ambit” of my request. On face of the document it is a procedure guide for constitutional intervention. There are no guidelines or criterion for the “technical assessment of the constitutional significance” in the disclosed parts of the document.

The document mentions: “Except in special circumstances, a decision is made against intervention if the case involves the application of settled principles of constitutional law to the particular facts or legislation”. However both the High Court and you did not advise us that our “case involves the application of settled principles of constitutional law to the particular facts or legislation”.

The document also mentions: “special circumstances may warrant a recommendation to intervene even where the case raise no significant issue of constitutional policy”; and “1. that intervention and removal necessarily involve significant and sometimes competing policy questions which should be decided personally by the Attorney-General; and 2. that significant policy issues will be raised with you even where intervention is not recommended”.

Conclusion

Something must be wrong. Otherwise, how can you assert that there is “a technical assessment of the constitutional significance” (which could lead to the conclusion of not intervening in the proceeding), but your staffs could not find it? and how can there be no decision-making policy for 78B notices, which “are received on an almost daily basis”?

Obviously, you have failed to tell me the truth, but may be able to investigate and find the truth.

Further, under the FOI Act, I request to disclosing the information, in terms of, whether the matter had been raised to you and whether you had “decided personally” not intervening the matter.

(files below are downloadable as .jpg files)

Letter of 30 July 2007 from the assistant secretary of A-G’s Department p. 1, p. 2, p. 3, p4, p.5 and p. 6 and its attachments p. 1, p. 2, p. 3 and p. 4.

Complaints to Ombudsman about the review of FOI request

2007-08-13T17:30:00.000+10:00

Dear Commonwealth Ombudsman,

I complain about the decision made by the Information Law and Human Right Division of Attorney-General’s department (the A-G’s Department) dated 30 July 2007 in relation to my application for review of a decision made by the A-G’s Department dated 18 May 2007. Those two documents are attached.

The “Brazil Direction”

2. The reviewer, Ms Sheedy, refers to “Brazil Direction” at the end of her decision (par 17). “The decision under review” fails to consider this preliminary request to claim exemption under Section 13.2.4 of the Freedom of Information Memorandum no 98 - Exemption Sections In The FOI Act (the FOI Memorandum), which provides: “agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information”. The reviewer fails to point out this error in “the decision under review”.

3. Further, the reviewer fails to point out that the “real harm” is the preliminary request for “a claim for exemption”. By contrast she uses the “real harm” to finally conclude her decision. It contravenes section 2.7 of the Freedom of information Guidelines: Fundamental Principles and Procedures, which 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 fairness of the procedure

4. The reviewer fails to refer to my grounds in my application for review dated 12 June 2007, which is attached. That is a denial of natural justice. According the principle of natural justice, the grounds for review ought to be addressed in her decision. Implicitly, she knows she has no arguments with my grounds for review.

Document 2: the decision-making policy

5. The A-G’s Department knows I only ask for: “the standard methods applied to this kind of assessment” (par 5). In my application for review I emphasized that I did not asked for any legal advice, I only request the policy or the standard methods (paras 1 to 4 of my application for review). The reviewer asserts that the document 2 is what I request (par 8). I read the released parts of the document 2, which on its face is a policy fully approved by the Attorney-General. So the sole purpose of the document 2 is for the Attorney-General to formally approve the policy or practice. Section 9(1)(a) of the Freedom Information Act 1982 (the Act) specifically deals with this kind of documents:

“Certain documents to be available for inspection and purchase

(1) This section applies, in respect of an agency to documents that are provided by the agency for the use of, or are used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment or scheme administered by the agency, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which persons are or may be entitled or subject, being:

(a) manuals or other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration”;

6. The materials deleted by the reviewer have been approved by the Attorney-General as manual or practice as well. The reviewer fails to provide any reasons why the materials deleted are different with the material released. The reviewer fails to provide any “articulate and acceptable reasons” contravening the FOI Memorandum (paras 8 to 12 of my application for review).

7. The reviewer does not deny the document 2 is a manual or practice. In my application for review I particularly refer to Section 7.2.5 of the FOI Memorandum, which clarifies that the final decision-making policy is not legal advice anymore (paras 6 and 7 of my application for review). The reviewer does not address my grounds. Obviously she knows that she is unable to contest my grounds. She first confirms to the effect that the document 2 is the manual or policy (par 8). Then she contradicts her own conclusion finding the document 2 is not manual or policy, it is legal advice, and contains legal advices exempted by the FOI Act. As she makes her decision based on her finally conclusion that the document 2 contains exempt legal advices, she should have declared that the document 2 is not a decision making policy, and that no such document exists. Put another way, if document 2 is a decision-making policy it has no legal professional privilege at all in accordance with s 9(1)(a) of the FOI Act.

Document 1: the reasons of the decision

8. The A-G’s Department knows I only ask for: “the reasons of the decision in terms of not intervening in this matter” (par 5). In my application for review I emphasized that I did not request for any exempt legal advice, I only request the reasons of the decision (paras 1 to 4 of my application for review). The reviewer asserts that the document 1 is what I request (par 8). It is likely that the reviewer has at least found that the document 1 contains the reasons of the decision.

9. In my application for review I particularly refer to Section 13.4 of the FOI Memorandum, which 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” (par 13 of my application for review). 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” (par 65 of Bennett v Australian Customs). The reviewer does not address my grounds. Obviously she knows that she is unable to contest my grounds.

10. The reviewer does not argue that the conclusion has been disclosed and that the “disclosure included the effect of the legal advice”. The reviewer has no doubt that the document 1 contains “the reasons of the decision”. However, she fail to apply the implied waiver of privilege to document 1, or, at least, to “the reasons of the decision” in the document 1, contravening s 13.4 of the FOI Memorandum and the Judgment Bennett v Australian Customs. Similar to the argument at [7] above, she first confirms the document 1 is the reason of the decision or, at least contains the reasons of the decision (par 8). Then she contradicts her own conclusion finding to the effect that the document 1 is only legal advices exempted by the FOI Act, and contains no reasons of the decision at all (par 13). As she makes decision based on her finally conclusion that the document 1 is exempt legal advice, she should have declared that the document 1 is not what I request or does not contains what I request, and that no such document exists. Put another way, under s 13.4 of the FOI Memorandum, if document 1 is reasons of a released decision the exemption of legal privilege of the reasons has been waived with the disclosure of the conclusion of the legal advice anyway, if document 1 is exempted legal advices it should not be reasons of voluntarily disclosed conclusion.

(files below are downloadable as .jpg files)

Letter of 30 July 2007 from the assistant secretary of A-G’s Department p. 1, p. 2, p. 3, p. 4, p.5 and p. 6, and its attachments p. 1, p. 2, p. 3 and p. 4.

Letter of 18 May 2007 from the assistant director of A-G’s Department p. 1, p. 2, p. 3 and p. 4.

(file below is downloadable as .doc files)

The application dated 12 June 2007 for review of the FOI decision of A-G’s Department.

Letter to Assistant Secretary of Attorney-General’s Department

2007-07-17T11:10:00.000+10:00

I refer to your letter of 10 July 2007 in relation to your decision, which “is to not remit the $40 internal review application fee”.

The backgrounds set out in paragraphs 6 to 16 are correct.

If Ms Antone had informed me that you would make the decision of “internal review fee”, I would not have requested for remission of the internal review fee because I should be able to reasonably predict that you would refuse my request because, obviously, you always want to be “consistent with [your] earlier decision of 29 January 2007”.

I enclose a cheque of $40 for the internal review application fee.

Further, I will comment on your reasons for your decision below:

1. You have failed to consider or to refer to that the request is for the petition to the Senate. You have failed to consider and to refer to that the petition has been supported by thousands people, dozens of politicians and organizations.

2. You have failed to consider whether thousands people, dozens of politicians and organizations are a significant section of the public. You have failed to explain why you disagree with the Hon Marsha Thomson MP’s opinion that the FOI request is of public importance.

3. You have failed to consider whether the matter supported by thousands people and dozens of politicians and organizations is an issue that it can “been described as ‘something which is of serious concern or benefit to the public’”. Put another way, you give no reasons why you believe that when thousands people and dozens of politicians and organizations support the petition they do not seriously concern about it. Obviously you take a dim view of the petition or all petitions.

4. As you know all relevant information about the matter have been put on Internet and made public available. You have no reason to not reasonably predict that the requested information will not be available on the same website and will not be available though other media after the petition to be presented to the Senate. Therefore, you may have predicted that the “the benefit from the release of the information contained in the particular documents will flow to the public at large, or a substantial section of the public, as well as to the specific individual [who] has requested the documents concerned” (bold added). I can promise you that the documents concerned will be put on the website, and provide to the Senators and to the media.

5. You have failed to find or refer to any beneficiary that I or the person whose case I am pursuing can get from the FOI request if the matter is not of public importance.

6. You do not argue the facts that employees in Australian workplace have no right to complain about or refuse to follow their bosses’ unlawful instructions and activities in accordance with the case law made by a Full Federal Court in the judgment of Zhang v The Royal Australian Chemical Institute and that the Cover Clause 5 of the Australia Constitution request everyone in Australia has to uphold and obey law.

7. You do not argue that the employees’ fundamental constitutional rights to uphold and to obey law at Australian workplace should be enforceable. I accept your point that I and the person whose case I am pursuing will get benefit if employees’ fundamental constitutional rights to uphold and to obey law are enforceable. I believe former bosses of AWB, HIH and One-Tel would have got benefit if such rights had been enforceable because their unlawful instructions could have been refused and complained and they would not have been convicted.

8. You believe that people’s constitutional right at work to be enforceable “appears to be no significant advantage to the public at large or even to all employees in Australian workplaces who are vulnerable to dismissal and who would constitute a substantial section of the public”. Put another way, apparently, you believe people at work should not uphold and obey law for one or another reasons. You do not provide any reasons why the public at large will not get significant advantage if all employees can be sure that their constitutional rights are enforceable. As outlined above I provide a few real examples as to why it is matter.

9. You do not argue that I am pursuing for people’s constitutional right to obey law at work, but you believe “the particular employment situations of employees in Australian workplaces are too diverse for the case you are pursuing to constitute a general precedent of benefit to the public at large” (bold added). You do not provide what kind of “particular employment situations” will not get “a general precedent of benefit to” if the people’s constitutional rights at work to obey law are enforceable. Put another way you believe that "a general precedent of benefit to the public at large” is people at work having no constitutional rights.

10. You know my FOI request is on the grounds of both public interest and Senate inquiries. I believe I have right to request your department to refund both of the application fee and the internal review fee once further unarguable evidences will be available as to that the documents concerned “flow to the public at large or a substantial section of the public”.

(files below are downloadable as .jpg files)

Letter of 10 July 2007 from the assistant secretary of A-G’s Department p. 1, p. 2, p. 3, p. 4, P. 5