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Law of unlawful dismissal

Ruling case
High Court's response

Attorneys-General's responses

Prime Minister's Department's responses
Department of Employment's responses
Senate's response to petition
Senate's response to submission

Other websites and radio published the matter


The High Court’s decision of dismissing the application for special leave to appeal against the ruling (the High Court’s decision of the matter)

‘…The applicant has also filed, and it is said that she has served, a notice under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, the States and the Territories. A reasonable time has elapsed since the s 78B notices were given. No Attorney-General has indicated a desire to intervene.

‘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. They should be dismissed.’

The High Court did not use its usual reasons for declining an application for special leave to appeal:

a.       the judgment appealed from is correct or not sufficiently doubtful

b.       the appeal is unlikely to succeed

c.       the appeal does not involve a question of law of sufficient public importance, etc

(par 4.198, Australian Law Reform Commission Discussion Paper 64 December 2000)

On face of it, the High Court could not dismiss the application for special leave to appeal against the ruling case with above usual reasons.

The High Court Registry advised: if the governments or parliaments consider the matter is of public importance, they can request the High Court to judge whether the case 1 ruling is unconstitutional.

Section 78B of the Judiciary Act 1903:

'Where a cause pending in a [court] 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 Attorney-General, of the question of intervention in the proceedings or removal of the cause to the High Court.'

(bold added)

The High Court’s decision referred to above section. But the Federal Federal Attorney-General is too busy to pay attention to notices of constitutional matter as required by above section, let alone ‘indicate a desire to intervene’ because about 300 constitutional notices are received annually; therefore, a policy (page 1, 2, 3 and 4 of the policy) was made to let other officers deal with the notices.

Criteria for granting special leave to appeal

the Judiciary Act 1903 - sect 35A Criteria for granting special leave to appeal

‘In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matter that it considers relevant but shall have regard to:

‘(a)      whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

‘(i)       that is of public importance, whether because of its general application or otherwise; or’

(bold added)

The High Court has no time to answer every question of law raised to it. It annually received 1-2 thousands applications for leave to appeal, but only have the capacity to deal less than 100 cases.