Part 28: Australia’s “irrelevant” Crimes against Humanity. Why are the “irrelevant” breaching fatalities legally Crimes against Humanity?

Australia’s ‘No Show. No Dole’ triggered Crimes against Humanity violate Australia’s laws and if these crimes are not dealt with under Australian law, then they default to the jurisdiction of the International Criminal Court of Juctic3e at The Hague in Holland.

Why is this so?                                      

The answer to that question is found within the provisions contained in Article 7 of the Rome Statute of the International Criminal Court which are set out below.

[NOTE: The short link for this posting is:      http://wp.me/p1n8TZ-wM  ]

In reading this information, please note the following:

  • 1 (d) and other points are purposely left blank as I believe that they do not apply to Australia’s breaching laws and penalties.
  • My personal comments are inserted in [ italic plain text ] and should not be confused with the Article 7 provisions.

 Article 7: Crimes against humanity

 For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

            (a)     Murder;  [ In 1839 an English Royal Commission defined Murder as the placing of life in peril, a definition still used by Australian courts*, courts throughout the British Commonwealth of Nations, and courts in many other nations, e.g. the United States of America. ]

            (b)     Extermination;  [ With the possibility that the death toll may exceed 100,000, this term is appropriate. In addition, statements by the former Australian Treasurer in his “The Age of Entitlement is over speech in London in 2012, indicate that the extermination of impoverished people was deemed to be a positive achievement. Joe Hockey’s speech was in many ways a re-hash of Heinrich Himmler’s speech at Posen in 1943 in which he lauded the benefits of exterminating the Jews. ]

            (c)     Enslavement; [ “Work for the Dole” is another way of saying “Civil Conscription”, a form of enforced labour that is specifically prohibited in paragraph 51 (xxiii) (a) of the Australian Constitution. Since civil conscription is unconstitutional, it is therefore unlawful, and this makes it unlawful under ICCPR article 8 (3) (a)  “No one shall be required to perform forced or compulsory labour;” Because civil conscription is prohibited, the exemption under article 8 (3) (b) (iv) does not apply. ]

            (d)                (e)      

            (f)     Torture;  [ Please refer to 2 (e) below for the definition of torture. It is important to note that state and territory criminal laws in Australia contain similar definitions of torture, i.e. the emotion impact and harm caused by criminal misconduct. ]

            (g)     

            (h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; [ Readers should refer to my comments at the end of this document re ‘socio-economic apartheid that is a deliberate act of persecution against a clearly identifiable group, i.e. welfare recipients. ]

            (i)     

            (j)     The crime of apartheid; [ Ditto to my comments above. ]

            (k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.  [ Ditto to my comments above. ]

 For the purpose of paragraph 1: 

            (a)     “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; 

            (b)     “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;  

            (c)                

            (d)    

            (e)     “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; 

            (f)      

            (g)     “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;  

            (h)     “The crime of apartheid”** means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;  

[ ** “The crime of apartheid”.]

In Australia, “apartheid” most definitely applied to “The Stolen Generations” laws that were not phased outuntil the 1970s. However, that racially based apartheid has been replaced by socio-economic apartheid. The Serious Compliance Failure Penalties are “committed in the context of an institutionalized regime of systematic oppression”.  Domination by one socio-economic group, affluence politicians and their affluent supporters, over another socio-economic group, impoverished welfare recipients, and is committed with the intention of maintaining that regime by enabling political parties convince voters that they are sound economic managers when the truth is that they are defrauding welfare recipients of their constitutional and statutory and human rights to a subsistence allowance that enables these people to exist. Breaching is therefore socio-economic apartheid rather than racial apartheid; however, the means and the motive of socio-economic apartheid are the same as racially motivated apartheid. ]

 The “irrelevant” Breaching Penalties Fatalities and the responsibility of Australian Politicians who “ought to know” that their “No Show. No Dole” laws were lethal and violated human rights laws and state/territory homicide laws.

It is absolutely impossible for federal or state politicians, Department of Human Services senior management, the Australian Federal Police or other police forces and federal government agencies to claim that they did not know that breaching fatalities were homicides under Australian state, territory and federal laws.

Faure v. The Queen

 In the findings handed down by Justice Brooking in Faure v. The Queen* in the Victorian Supreme Court of Appeal on 24th September 1999, at paragraph 29 Justice Brooking stated that “It is the placing of life in peril that constitutes the crime.” [ Breaching is a crime that deprives people of the ability to ‘subsist’. ]

Boughey v. The Queen [1986] HCA 29 on 6TH June 1986

 “…ought to know”

“ …it amounts to murder if the offender actually knows that the act is likely to cause death in the circumstances or if the offender ought to know that the act is likely to cause death in the circumstances (s.157(1)(c)). The elements of murder drawn from par.(c) of s.156(2) and from par.(c) of s.157(1)

Justice Brennan at paragraph [10]

[NOTE to readers]

s. 156 (2) and s. 157 (1) are some of the murder statutes contained in the Tasmanian Crimes Act. Under South Australian laws breaching a person suffering from Depression and causing the emotional distress, i.e. “torture” mentioned in 7 (1) (f) and 7 (2) (e) of the Rome Statute is a homicide under s. 13 (7) of the SA Criminal Law Consolidation Act (1935).

Similar statutes are contained in the criminal laws of other states

 Queensland:            s. 295, s. 296 and s. 302 (4);

Western Australia: s. 279 (4)

New South Wales: s. 18 (1)

Victoria:        s. 9 and several other sections, e.g. 22. Conduct endangering life

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.

Penalty: Level 5 imprisonment (10 years maximum).

UNCONSTITUTIONAL:

Breaching laws do NOT provide lawful excuse as these laws are a criminal act of reckless endangerment, a crime that violates Article 7 of the Rome Statute AND the states laws mentioned above. The also violate paragraph 51 (xxiii) -(a) of the Australian constitution which requires that the Federal Parliament make laws for: “The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:” The key phrase in this constitutional obligation is the phrase, “The provision of …”. Since this amendment was added by referendum in 1946, has the Federal Parliament has not had the right to make laws that DEPRIVE people of a welfare allowance.

  • Breaching laws are inhumane acts …intentionally causing great suffering, or serious injury to body or to mental or physical health.
  • Below are extracts from the Victorian “Charges Book” of the Judical College of Victoria which explains fairly clearly what is meant by the various forms of murder – yes, there really are different types or forms of murder!

7.2.1 – Intentional or Reckless Murder

7.2.1.1 – Bench Notes[1] (Source: Judicial College of Victoria.)

Forms of Murder

There are three ways in which murder can be committed:

    1. The accused can cause the victim’s death while intending to kill or cause really serious injury, or being reckless as to that result;[2]
    2. The accused can unintentionally cause the victim’s death in the course or furtherance of certain violent crimes; and
  • The accused can unintentionally cause the victim’s death in order to escape arrest. [Not applicable to Breachgate or Waivergate fatalities.]

[HOWEVER: The principle of “Automatic Murder” applying to breaching triggered fatalities is almost certainly valid under Article 7 (1) (a) of the Rome Statute of the International Criminal Court of Justice as breaching is an intentional act of deprivation with such a reckless disregard for loss of life that fatalities are officially deemed “irrelevant”.]

  1. These notes address the first category of murder outlined above. See Constructive Murder: Bench Notes for information concerning the second and third categories.

Overview of Elements

  1. Murder is a crime at common law. It has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
    1. The accused committed acts which caused the victim’s death;
    2. The accused committed those acts voluntarily;[3]
  • The accused committed those acts while:
    1. intending to kill someone or cause them really serious injury; or
    2. [if reckless murder has been left to the jury] knowing that it was probable that death or really serious injury would result.

The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency).

 Note to readers.

JUDICIAL COLLEGE OF VICTORIA ACT 2001 – SECT 1

Purpose

The purpose of this Act is to establish the Judicial College of Victoria with the function of assisting the professional development of judicial officers and providing continuing education and training for judicial officers.

The purpose of the Bench Notes is to train and assist judges in Victorian courts to understand the laws of Victoria, and to also aid them in the vital task of explaining these laws to jurors.

[1] This document was last updated on 2 November 2014.

[2] This type of murder will simply be referred to as “murder” throughout these notes.

[3] Although this element is often said to require the accused’s acts to be “conscious and voluntary”, consciousness is simply one aspect of the broader voluntariness requirement (see, e.g., Ryan v R (1967) 121 CLR 205). This issue is addressed in more detail below.

MY COMMENTS: Breaching is literally a criminal act of reckless endangerment for the purpose of the government-of-the day obtaining a benefit that it is not entitled to receive, i.e. the so-called “savings” gained by not paying welfare benefits that both the constitution and international treaty obligations require be paid to impoverished people who are unemployed and have no other means of subsistence.

JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT OF JUSTICE IN BREACHING CRIMES.

If Australian law enforcement agencies do not act to deal with these murders, then under Article 17.2 of the Rome Statute the International Criminal Court has jurisdiction to deal with these murders:

Article 17

Issues of admissibility


  1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)     The case is not of sufficient gravity to justify further action by the Court.

  1. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a)     The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b)     There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c)     The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

  1. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

For 100 years in Australia, children were stolen from their families, sometimes with police or State  Troopers pointing hand guns or rifles at protesting parents. Breaching murders for gain effectively superseded the ‘Stolen Generations’ crimes against humanity. Article 17 (2) (a) is confirmed by the secret classification of these murders and the refusal of the Australian Federal Police, along with a soccer team of other agencies, who have refused to investigate them.

 

AAAAA11 Pearce email page 1

OOPS! Federal agent Pearce did not know that the 2004 decision not to investigate Travelgate and the Quotagate rip-offs had been secretly classified as confidential. That’s the trouble with such secrets; no-one knows when to keep quiet!

The “Irrelevant” MURDERS”

EWRE Irrelevant

Under John Howard, there may have been as many as 8,850 “stupefy & overwhelm” proxy murderers in which the overwhelmed victims, like the “9/11 jumpers”, murdered themselves. Those responsible need to be held accountable, even if they are (former prime ministers or governor-generals, or federal police officers who chose to look the other way and not ‘see’ these murders.

The “confidential” MURDERS.

LEGCON committee gag - undated but posted to me in November 2005

A Check on submissions to the Anti-Terrorism Bill #2 Inquiry will show that submission 287 is officially “Not yet available”. As this letter reveals, it is secretly classified as confidential.

The Prime Minister who “OUGHT TO KNOW” but says nothing.

Turnbull email 1

PLEASE, DO NOT VOTE FOR THE POLITICAL PARTIES RESPONSIBLE FOR THESE CRIMES – YOU MAY ONLY BE HELPING THEM TO KILL MORE PEOPLE BY DOING SO.

Ronald Medlicott – A Christian lay advocate for justice.

 

 

 

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Part 27: Australia’s “irrelevant” Crimes against Humanity: The 3 ‘Elements of Murder’ according to the Justice College of Victoria Charge Book.Victorian

Why are Australia’s “irrelevant” Crimes against Humanity actually crimes?

[Note: the short link for this web page is:   http://wp.me/p1n8TZ-wG   ]

The Justice College of Victoria Act (2001) established the Justice College as a vital resource for judges, prosecutors and police officers. Note the purpose of the Act as set out in the  s 1 of this Act. (Extra lines deleted in this posting.)

Version No. 011
Judicial College of Victoria Act 2001
No. 20 of 2001
The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY

1 Purpose: The purpose of this Act is to establish the Judicial
College of Victoria with the function of assisting the professional development of judicial officers and providing continuing education and training for judicial officers.

[TRANSLATION] Laws and court decisions are now so complex that the Justice College was set up to help judges to understand the law. The beauty of this that complex laws are explained in plain language that any Year 8 student should be able to understand. It also means that anyone who reads Justice College material has insight in both the Law and the mindset of judges.

The 3 Elements of Murder are set out below with my take on the Justice College statements added in [brackets]. It has been my consistent viewpoint ever since I first posted on this website 177 postings and over 1 million words ago that Breaching is a serious crime and that breaching triggered deaths are murders. So check out the Justice College “Charge Book” explanations below. My comments are in [bracketed BOLD print] and I am still working through this information:

7.2.1.1 – Bench Notes[1] (Source: Judicial College of Victoria.)

Forms of Murder

  1. There are three ways in which murder can be committed:
    1. The accused can cause the victim’s death while intending to kill or cause really serious injury, or being reckless as to that result;[2]
    2. The accused can unintentionally cause the victim’s death in the course or furtherance of certain violent crimes; and
  • The accused can unintentionally cause the victim’s death in order to escape arrest. [Not applicable to Breachgate or Waivergate fatalities.]
  1. [HOWEVER: The principle of “Automatic Murder” applying to breaching triggered fatalities is almost certainly valid under Article (1) (a) of the Rome Statute of the International Criminal Court of Justice as breaching is an intentional act of deprivation with such a reckless disregard for loss of life that fatalities are officially deemed “irrelevant”.]
  1. These notes address the first category of murder outlined above. See Constructive Murder: Bench Notes for information concerning the second and third categories.

Overview of Elements

  1. Murder is a crime at common law. It has the following four elements, each of which the prosecution must prove beyond reasonable doubt:
    1. The accused committed acts which caused the victim’s death;
    2. The accused committed those acts voluntarily;[3]
  • The accused committed those acts while:
    1. intending to kill someone or cause them really serious injury; or
    2. [if reckless murder has been left to the jury] knowing that it was probable that death or really serious injury would result.
  1. The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency).
  1. Each of these elements is addressed in turn below.

Acts which Caused the Victim’s Death

  1. The first element that the prosecution must prove is that the accused committed acts which caused the victim’s death. There are three aspects to this element:
    1. The accused must have committed the relevant acts;
    2. Those acts must have caused someone to die; and
  • The victim must have been a human being.

Accused must have Committed the Relevant Acts

  1. For the accused to be found guilty of murder, the prosecution must prove, beyond reasonable doubt, that s/he committed the act or acts which are alleged to have caused the victim’s death.
  2. In most cases it will be clear which act or acts were the cause of death, and so little time will need to be spent addressing this issue (other than directing the jury that before they can convict the accused, they must be satisfied that s/he committed the relevant act or acts) (Ryan v R (1967) 121 CLR 205).
  3. Specific directions may be required where the death may have been caused by one or more acts in a series of acts. See Causation: Bench Notes.
  4. Where additional directions are appropriate, the jury should be directed about the different ways the causal act can be identified, and instructed that it is for them to determine:
    • What acts caused the victim’s death (see below); and
    • Whether the accused committed the relevant act or acts (Ryan v R (1967) 121 CLR 205).

Acts That Caused Someone to Die

  1. The accused’s acts must have caused the victim’s death. That is, his/her acts must have “contributed significantly” to the death, or been a “substantial and operating cause” of it (Royall v R (1991) 172 CLR 378; R v Rudebeck [1999] VSCA 155). [Breaching is a willful act of destitution that violates constitutional rights, statute law rights, common law rights, and supposedly inalienable human rights that are supposedly protected by internal conventions, laws and treaty obligations that all (supposedly) apply in Australia.]
  2. The acts must be such that an ordinary person would hold them, as a matter of common sense, to be a cause of the death. The mere fact that the accused’s conduct contributed causally to the death, or was a necessary cause of it, is not sufficient (Royall v R (1991) 172 CLR 378). [“a cause” of the death which is not the same as ‘the cause’ of a death. 63% of Australians are obese which has the potentially lethal co-morbidity problem of hypertension. Unconstitutional and a crime against humanity, breaching could easily be “a cause” that triggers a fatal stroke or heart attack. Suicide is the most common form of violent death and since breaching laws were upgraded in 1986, unemployed people with Depression top the list for suicides. Breaching could easily so stupefy and overwhelm an unemployed person with Depression that the emotion duress caused by being breached is the reaction trigger for a successful suicide attempt.]
  3. The accused’s acts do not need to be the sole cause of the death. A person can be criminally liable for a death that has multiple causes, even if he or she is not responsible for all of those causes (Royall v R (1991) 172 CLR 378). [See my comments above for my opinion on this point of law.]
  4. Previously, the law held that a delay of more than “a year and a day” between the accused’s acts and the victim’s death meant that the accused’s acts could not be regarded as a cause of that death. That limitation has been abolished (Crimes Act 1958 s9AA), and now applies only to offences alleged to have been committed before 19 November 1991. [Nowhere in Australia is there a statute of limitations on breaching triggered murders.]
  5. In many cases it will be unnecessary for the judge to do more than simply identify causation as an element of the offence. However, more detailed directions should be given if:
    • Causation was a live issue in the trial; or
    • An undirected jury might consider causation to be a live issue.
  6. The cases where causation will be a live issue will include those where:
    • There were multiple possible causes of the death;
    • The death was delayed;
    • There were intervening acts between the accused’s actions and the victim’s death; or
    • The accused is alleged to have caused the death indirectly (Royall v R (1991) 172 CLR 378). [My opinion on this is simple: Breaching legislation is mass murder by federal legislation. The act of breaching may precipitate a chain reaction of events that result in a fatality. For example, a breached person who suffers from acute Asthma has no money to purchase preventative medication, e.g. an Asthma ‘puffer’ such as Ventolin or Pulmacort, and died for lack of medication during an Asthma attack. Such risks are easily foreseen and Recommendation 14.1.1 of the Report of the Royal Commission into the Home Insulation Program underscores the fact that the failed attempt by the Abbott Government in August and September 2014 to deprive hundreds of thousands of young Australians of subsistence allowance for 6 months is evidence of the willingness of some Australian federal politicians to abuse their power and enact legislation that is at odds with state and territory murder laws and homicide case law decisions for spurious, “Posen Mindset” ideology driven reasons.]
  7. See Causation: Bench Notes for further information about this issue.

Victim a Human Being [Logical for a homicide.]

  1. The accused must have caused the death of a “human being” (R v Hutty [1953] VLR 338).
  2. “Death” is defined to mean the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all function of the brain (Human Tissue Act 1982 s41).
  3. An unborn child is not classified as a “human being” for the purposes of murder and manslaughter (R v Hutty [1953] VLR 338).
  4. A child is treated as being “born” (and thus a “human being”) when “he or she is fully born in a living state”. This occurs when the child is “completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother” (R v Hutty [1953] VLR 338).
  5. Any evidence of independent existence will be sufficient for a child to be classified as a “human being” for the purposes of the law (R v Iby [2005] NSWCCA 178).
  6. The mere fact that a child is still attached by the umbilical cord does not mean it is to be regarded as unborn (R v Hutty [1953] VLR 338).
  7. While killing an unborn child will not be murder or manslaughter, it may be child destruction (Crimes Act 1958 s10).

Voluntary Acts

The second element that the prosecution must prove is that the acts which caused the death were voluntary (Ryan v R (1967) 121 CLR 205).

  1. The issue of “voluntariness” concerns, at least, the accused’s conscious control of his or her bodily movements (He Kaw Teh v R (1984) 157 CLR 523).
  2. The terms “deliberate” and “willed” are sometimes used to describe the voluntariness requirement (Ryan v R (1967) 121 CLR 205). [When it comes to “deliberate” and “willed”,  could anything be more so than Acts of Law by a Federal Parliament, or the failure of public servants, police officers, and even Officers of the Court to uphold the constitution, statute laws, and United Nations human rights conventions, treaties and laws?]
  3. In murder trials it is orthodox to describe this element as requiring that the relevant acts be “conscious and voluntary”, or “conscious, voluntary and deliberate”. See R v Schaeffer [2005] VSCA 306. [See my comments above.]
  4. While a judge may use these terms to help explain the voluntariness requirement to the jury (R v Schaeffer [2005] VSCA 306), they do not need to be used in every case. The use of such alternative terms, and the extent to which they need to be explored, will depend on the circumstances of the case. [See my comments above at 25.]
  5. If the term “conscious” is used care should be taken to ensure that it is not equated with voluntary action. The fact that an accused was conscious at the time of an act does not necessarily mean that act was committed voluntarily (see, e.g., R v Edwards [2005] VSCA 92). [See my comments above at 25.]
  6. Knowledge of the circumstances that give an offence its criminal character is generally a component of intention, not volition. Thus an act remains voluntary even if it is performed in ignorance of fundamental facts that will determine culpability (R v O’Connor (1979) 146 CLR 64). [See my comments above.]
  7. While the jury should always be directed to consider this element, where voluntariness is not in issue it need not be examined in detail (Ryan v R (1967) 121 CLR 205).
  8. Terms such as “accidental”, “unintentional”, “involuntary” and “unwilled” all possess a degree of ambiguity. They can be used to signify either that:
    • The accused acts were not voluntary (addressing the second element); or
    • That the accused lacked the requisite intention to commit the crime (addressing the third element) (Ryan v R (1967) 121 CLR 205).

If such terms are used by counsel, the judge should take care to ascertain precisely which element is being addressed, and charge the jury accordingly. [See my comments above at 25.]

Mental States: Intention and Recklessness

  1. The third element that the prosecution must prove is that when the accused committed the acts that caused the victim’s death, s/he either:
    • Intended to kill someone or cause them really serious injury (“intentional murder”); or [See my comments above at 25.]
    • Knew that it was probable that death or really serious injury would result from those acts (“reckless murder”) (R v Crabbe (1985) 156 CLR 464). [See my comments above at 25 and read them in the context of rates of suicide stated on page 29 of the 1998 National Health Priority Areas Report – Mental health, and the causes of suicide and profiles contained in Box 2.2 of this report.]
  2. The accused does not need to have intended to kill or injure the person who actually died, or to have been reckless about killing or injuring that particular person. It is sufficient if they had the necessary level of intention or recklessness in respect of some person, whether or not that was the person who was ultimately killed (La Fontaine v R (1976) 136 CLR 62).[4]

Reckless murder [Breaching – a reckless disregard for the potentially fatal consequences because deaths are not monitored and have even been dismissed as “irrelevant”. You cannot get more ‘reckless’ than that.]

EWRE Irrelevant

  1. It is not appropriate to direct a jury about reckless murder in every case. The jury should only be directed about “reckless murder” where the evidence can properly support a conclusion that the accused acted recklessly (Pemble v The Queen (1971) 124 CLR 107; R v Barrett [2007] VSCA 96).[5]
  2. In the context of murder, to commit an act “recklessly” is to commit that act knowing that someone will probably die or suffer really serious injury (R v Crabbe (1985) 156 CLR 464). [The 1998 National health Priority Areas Report – Mental health, spelt out the risks very clearly, i.e. more people die violently from suiicde than all other forms of violent deaths due to accidents or murder, et cetera, and unemployed people topped the list of people who ‘topped’ themselves. Politicians and bureaucrats knew the risks and considered them to be “irrelevant’.]
  3. The word “probable” means “likely to happen”. It can be contrasted with something that is merely “possible” (R v Crabbe (1985) 156 CLR 464).
  4. To have acted recklessly, the accused must actually have known that death or really serious injury would probably result from his or her acts. It is not sufficient for that danger to have been obvious to the reasonable person, or to the members of the jury (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557; R v Barrett [2007] VSCA 96).
  5. The jury may use the fact that a reasonable person would have appreciated the probability of death or really serious injury to infer that the accused had such an awareness (Pemble v The Queen (1971) 124 CLR 107). [How about the secret classification of these deaths, senate suppression orders, and DHS/Centrelink management failing to collect this information even after the 4 Home Insulation Program deaths and the 3 official inquiries – THEY KNEW, and the are hiding these deaths.]
  6. However, where such reasoning is open the jury must be warned not to conclude that the accused foresaw the probability of death or really serious injury simply because a reasonable person would have appreciated that probability (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).
  7. Use of the word “reckless” should be avoided when charging the jury in murder trials, as it is liable to be confusing (La Fontaine v R (1976) 136 CLR 62).
  8. Similarly, the word “might” should not be used. Recklessness is not established when the accused knew that particular consequences “might occur”. The accused must have known that those consequences “would probably occur” (R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585). [In the 10-year period 1997 to 2006, there were 23,254 suicides and 1 in 3, about 7,700, were unemployed people. There is no ‘might occur’ in thousands of of suicides triggered by unconstitutional, human rights violating acts of total destitution.]
  9. “Probable” is not a mathematical term. The accused does not need to have mathematically weighed the probability of death or really serious injury occurring, and the jury should not attempt to translate the accused’s knowledge into terms of mathematical probability (Boughey v The Queen (1986) 161 CLR 10). [Many members of parliament, perhaps too many, are lawyers with what Justice Duncan Kerr described as “privileged expertise”. Politicians with law degrees like Tony Abbott, Julia Gillard, Malcolm Turnbull, Bill Shorten, Kevin Andrews, Bronwyn Bishop, Julie Bishop, Scott Morrison and Senator Nick Xenophon, as people with law degrees, “OUGHT TO KNOW” (to quote Justice Brennan in Boughey at 10,) that depriving potentially suicidal people of their only means of financial support, i.e. the Dole, could trigger a suicide. Knowing this, these politicians did not help to breach one or two people, but millions.]
  10. It will generally be sufficient if:
    1. The jury is directed to consider whether the accused knew that death or really serious injury was the probable or likely consequence of his or her acts; and
    2. Reference is made to the distinction between what is probable or likely on the one hand, and what is only possible on the other (R v Crabbe (1985) 156 CLR 464; Boughey v The Queen (1986) 161 CLR 10; R v Faure [1999] 2 VR 537).
  11. If a jury is to be directed on both reckless murder and involuntary manslaughter (whether by unlawful and dangerous act or by criminal negligence), it is vital that the directions draw an appropriate contrast between the mental states required for the two offences (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557). See Manslaughter (Topic Not Yet Compete) for further information.
  12. Where recklessness is to be found by inference, the trial judge must identify the relevant evidence, and the inferences which can legitimately be drawn from that evidence (Pemble v The Queen (1971) 124 CLR 107; R v TY (2006) 12 VR 557).
  13. The jury should be directed that the accused’s circumstances are relevant to their determination of his or her state of mind. These circumstances may include age, educational and social background, emotional state and state of sobriety (Pemble v The Queen (1971) 124 CLR 107; R v Barrett [2007] VSCA 96).

Really serious injury

  1. For the third element to be satisfied, the accused does not need to have intended that someone die, or known that death would probably result from their actions. It is sufficient if s/he intended to cause someone serious non-fatal harm, or knew that such harm would probably result.
  2. In Victoria, the degree of harm that must be intended is “really serious injury”.
  3. The phrase “really serious” should be used to properly indicate the gravity of the required intent (Wilson v R (1992) 174 CLR 313; R v Perks (1986) 41 SASR 335; R v Schaeffer [2005] VSCA 306; R v Barrett [2007] VSCA 95).
  4. It appears to be necessary that the “really serious injury” intended or risked should be a bodily This includes unconsciousness (R v Rhodes (1984) 14 A Crim R 124), but may not include purely psychological injuries.
  5. The meaning of “really serious injury” is a matter for the jury to determine. It is unwise to elaborate on its meaning. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view (R v Rhodes (1984) 14 A Crim R 124).
  6. There is no requirement that the harm intended be a life-threatening harm (R v Cunningham [1982] AC 566.)

Defences to murder

  1. Conduct that would otherwise be murder can be excused or justified by a number of discrete defences, including self-defence, provocation (for homicides committed before 23 November 2005), intoxication, duress and sudden or extraordinary emergency. Each of these defences is examined in detail in Part 8: Defences.
  2. The issue of intoxication may also be of relevance when considering the accused’s mental state. See Intoxication: Bench Notes (Topic Not Yet Complete) for further information.

Order of the Charge

  1. In murder trials it is commonly necessary to direct juries about available alternative verdicts, such as manslaughter.[6] It may also be necessary to direct the jury about a number of different defences or excuses, such as self-defence and provocation. The interrelationship between these issues means that the order in which they are addressed can affect the clarity of the charge.
  2. For offences alleged to have been committed prior to 23 November 2005,[7] it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Self-defence (to murder);
    • Voluntary manslaughter (provocation);
    • The elements of involuntary manslaughter;
    • Self-defence (to manslaughter).
  3. For offences alleged to have been committed on or after 23 November 2005 and before 1 November 2014,[8] it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Murder self-defence (s9AC);
    • Defensive homicide (s9AD);
    • The elements of manslaughter; and
    • Manslaughter self-defence (s9AE).
  4. For offences alleged to have been committed on or after 1 November 2014, it is recommended that judges approach these topics in the following order:
    • The elements of murder;
    • Self-defence (to murder) (s322K);
    • The elements of manslaughter; and
    • Self-defence (to manslaughter) (s322K).

Jurisdiction

  1. If the victim dies in Victoria, the matter may be tried in a Victorian court, regardless of whether or not the causal acts occurred in Victoria (Crimes Act 1958 s9).

[1] This document was last updated on 2 November 2014.

[2] This type of murder will simply be referred to as “murder” throughout these notes.

[3] Although this element is often said to require the accused’s acts to be “conscious and voluntary”, consciousness is simply one aspect of the broader voluntariness requirement (see, e.g., Ryan v R (1967) 121 CLR 205). This issue is addressed in more detail below.

[4] This is known as the doctrine of “transferred malice”.

[5] See R v Hegarty [2011] VSC 111 for a detailed discussion about the types of situations in which a direction on reckless murder may be appropriate.

[6] See Alternative Verdicts: Bench Notes for guidance concerning the requirement to leave alternative verdicts to the jury.

[7] On 23 November 2005 the Crimes (Homicide) Act 2005 came into effect, introducing two statutory self-defence provisions (Crimes Act 1958 ss9AC and 9AE) and a new offence of Defensive Homicide (s9AD), as well as abolishing provocation. See  See 8.9 Self-Defence and Defensive Homicide for further information.

[8] On 1 November 2014 the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 came into effect, introducing a single statutory self-defence provision for all offences (Crimes Act 1958 s322K), and abolishing the previous statutory murder self-defence, manslaughter self-defence and the offence of Defensive Homicide. See 8.9 Self-Defence and Defensive Homicide.

37.4%

I hope that you found this readable and now understand some of the reasons for this website. If you do, may I recommend that when you vote, that you do not vote for any of the politicians or political parties implicated in the serial murders of thousands of welfare recipients. By doing so, you indicate your support for and approval of these crimes. Only vote for candidates that are NOT linked to Breaching or Centrelink’s fraudulent rip-offs. Basically this means that major party candidates, The greens, family First and current “Independent Members” should all be boycotted because of there lack of concern for the brutal murders of so many vulnerable people. If you are receiving a welfare payment, then you are just 1 of 7 million people who do. You help to make up the largest, and therefore potentially the most powerful, voting group in Australia with a massive 37.4% of the vote.

Boycott, or veto, the major parties and supportive minor parties responsible for the murderous human rights violating breaching laws and they then have to fight for the remaining 62.6% of the vote, which on a 50/50 split would only be 31.3% of the first preference vote per major party. If minor parties pick up 10% of the vote, then the major parties only score a pathetic 26.3% of the vote; well below the 37.4% of the vote that welfare recipients collectively hold.

That’s 6/4 odds in favour of welfare recipients and therefore you should vote very carefully for new candidates and dump or ignore the “Old Brigade”

Ronald Medlicott – A Christian lay advocate for justice in Australia.

 

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Part 26: Australia’s “irrelevant” Crimes against Humanity. Has Malcolm Turnbull made it possible for Radovan Karadzic to win a Manifest Ostensible Bias appeal in the International Criminal Court of Justice?

Australia’s “irrelevant” crimes against humanity could be the key to Radovan Karadzic winning an appeal of his recent conviction in the International Criminal Court of Justice for the alleged massacre of over 8,000 men and boys in the Srebrenica Enclave in 1995. If this happens, the email below from the Australian Prime Minister, Malcolm Turnbull, may prove to be a useful “straw” to add to the camel’s back.

Turnbull email 1Whatever else Prime Minister Malcolm Turnbull may say during the upcoming federal election, he cannot say that he did not know about the death toll triggered by Australia’s unconstitutional, human rights violating welfare penalties laws. It is an absolute farce that neither the Department of health nor the Department of Human Services have an accurate record of the deaths of Australian residents/citizens. It is even more of disgraceful farce that the DHS actively avoids collecting the statistical data on breaching triggered fatalities, possibly because they are fully aware that these deaths are crimes against humanity under Article 7 of the Rome Statute of the International Court of Justice.

Skill certified

The full test of the email to Prime Minister Turnbull is posted at http://wp.me/p1n8TZ-vm

[ Note the shortlink for this posting is:  http://wp.me/p1n8TZ-wg   ]

The reality is that any person in Australia who is accused of a homicide can use this email to mount an Apprehended Bias or a Manifest Ostensible Bias appeal against the charged which they have been accused of. Anyone who is not comfortable with that legal reality should demand that those responsible for breaching triggered deaths be investigated and prosecuted for if that happens, then there are no grounds for any appeals on the basis of apprehend bias or manifest ostensible bias.

Re “irrelevant”

EWRE Irrelevant

Australian voters please note: There is no such thing under either Australian law or international human rights conventions as an “irrelevant” death.

Ron Medlicott – A Christian lay advocate for Justice in Australia.

 

 

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Part 25: Australia’s “irrelevant” Crimes against Humanity:- Yvette D’Arth, the Queensland Justice Minister appears less than keen for Gerard Baden-Clay to have the information posted on this website.

When it comes to Australia’s “irrelevant” Crimes against Humanity:- Yvette D’Arth, the Queensland Justice Minister, appears less than keen for Gerard Baden-Clay to have the information posted on this website. Below is the only response that I have received so far to my requests for the contact details for both Gerard Baden-Clay and his lawyer.

Darth

This letter does not tell me anything that I have already raised in my communications with Ms. D’Arth, i.e. the letter basically tells me what I already know but avoiding answering my request for contact details so that I can brief Gerard Baden-Clay and his legal team on the option of mounting an Apprehended Bias/Manifest Ostensible Bias rebuttal to the Queensland Director of Public Prosecutions appeal.

  1. To whom the benefit by NOT providing the requested information?
  2. I would suggest that the big winner would be the Queensland Government if it can have Gerard Baden-Clay’s murder conviction re-instated.

The problem with letting bureaucrats or politicians withhold information in court cases is that it allows them to uphold the law by committing a crime. I do not know about you, but by my standards, such actions are totally unacceptable. Everyone, including Gerard Baden-Clay, like Radovan Karadzic is entitled to a fair hearing, if for no other reason than the fact that if justice is compromised in some cases, the door is opened to justice being compromised at the discretion of politicians.

Can that happen? Check this out:

SCOTT MORRISON “parliament decide conventions”

‘This parliament should decide what our obligations are under these conventions – not those who seek to direct us otherwise from places outside this country, such as foreign courts or the United Nations’

Scott Morrison Migration & Maritime Powers Legislation Amendment (Resolving the Asylums Legacy caseload) Bill 2014 – Parliamentary Debate 25-9-2014

 EXPERT COMMENTARY: “The Minister assured us that Australia would comply with its international obligations – which is presumably not difficult if international law is now simply what the government says it is.” Professor Ben Saul -Emeritus Professor of International Law – Sydney University: ‘The light of human rights is fading in Australia.’

ABC – ‘The DRUM’ 7 October 2014

(Source: http://www.abc.net.au/news/2014-10-07/saul-the-light-of-human-rights-is-fading-in-australia/5794640

Yes, Scott Morrison, now the Federal Treasurer, apparently stated that the Federal Government should decide what international law meant. In 1995 Radovan Karadzic had the same opinion when he was the President of Bosnia. On May 24th 2016, the International Criminal Court of Justice gave him a reality check with this statement:

“Karadzic was the only person with the power to intervene and protect those being killed. Far from that, the accused ordered Bosnian male detainees to be transferred elsewhere to be killed. With full knowledge of the on-going killing, Karadzic declared a state of war in Srebrenica.”

 O-Gon Kwon – Presiding judge : International Criminal Court of Justice.

The three-judge panel said Karadzic was “at the apex of power,” heading the self-styled Bosnian Serb Republic and Supreme Commander of its armed forces, when crimes were committed by his troops. Judges said the 44-month siege of Sarajevo could not have happened without his support; that he committed crimes against humanity in an attempt to purge Muslims and Croats from parts of Bosnia; and that he had intended to eliminate the Bosnian Muslim males of the town of Srebrenica.

Scott Morrison’s out-of-touch-with-reality statement highlights the problem of political parties holding power for too long. Like Hitler’s NAZI Party leaders in Germany in the 1930s and early 1940s, they tend to believe the rightness of their beliefs even when they are committing crimes against humanity.

Yvette D’Arth needs to allow Gerard Baden-Clay access to the evidence of the role of the Federal Parliament, and the Department of Human Services, in violating the rights of vulnerable people. If Gerard Baden-Clay wins an apprehended bias argument, lives will be saved. Even if the High Court does not accept that argument, exposing the uncollected, unreported, classified, “irrelevant” death toll caused by breaching policies and practices will still save lives because the High Court is unlikely to allow this murderous violation of constitutional and human rights to continue.

The idea that people convicted of murder or manslaughter may go free if the breaching triggered death toll is exposed in the International Court or the Australian High Court is not the ideal way to go. However, since I lack the $600,000 deposit to file an appeal in this court, plus the $30,000 a day for lawyers, other options are in short supply.

One practical alternative is for readers of this blog to demand an explanation from politicians; don’t hold your breath that you will get the truth.

Ronald Medlicott – A christian lay advocate for justice.

 

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Part 24: Australia’s “irrelevant” Crimes against humanity”- Letter to Malcolm Turnbull

When it comes to Australia’s “irrelevant” Crimes against Humanity, about 5 minutes ago Malcolm Turnbull joined the ranks of Australia’s Prime Ministers who know about these murders through the medium of this letter which I have just uploaded to him via his Internet ‘Contact’ web page.

[Note the short link to this URL is:   http://wp.me/p1n8TZ-vm     ]

AAAA Turnbull email

Above is a screen capture of my email to Prime Minister Turnbull at about 9.00 AM this morning (Adelaide, South Australia – Central Standard Time).

The full text of the letter uploaded to Mr. Turnbull is shown below along with the EWRE “irrelevant” letter that Radovan Karadzic and his supporters may find to be of some use if he decides to go for a Manifest ostensible Bias appeal in the International Criminal Court of Justice, especially if Prime Minister Turnbull does not stop these murders from continuing to occur.

=========================================================================

Dear Prime Minister,
The letters to the dead fiasco is a legal time bomb that may be about to put a real dent in your day. The following text is copied verbatim from a News Corp article published both on the Internet and in News Corp newspapers. As embarrassing as the article is, what turns it into legal and political “time bomb” is Assistant Secretary Neil Skill’s letter which is also published on the Internet.

News Corp extract:
The Department of Human Services says it sent letters to people who were deceased because it did not have a date of death recorded against their customer records.
“The department is aware that of the one million letters sent about the My Health Record trial, a small number have been sent to deceased individuals,” a spokeswoman said.
“The department sincerely apologises for any distress this has caused.”
The department says it is notified of a death from family members and other authorised persons such as health professionals, funeral directors and, in more recent years by data-matching with Birth, Deaths and Marriages registrations.
“If the department is not notified, a date of death will not be recorded on a customer’s record,” it said.

Minister for Health Sussan Ley offered a direct apology to any family affected by the ‘unfortunate’ administrative error.’

“What I find disheartening is Labor are quick to use this as an excuse to attack the Government’s IT and payment systems when something goes wrong, but are also actively blocking our attempts to upgrade them so they are more accurate and convenient for patients.”

Source; http://www.news.com.au/lifestyle/health/dead-people-given-ehealth-records-in-latest-bungle-for-1-billion-government-program/news-story/966ec22c7fe8a40e7ecf66aa98b1ed90

Neil Skill extract:

“Centrelink does not collect post Breaching Terminal Outcome statistics and is therefore unable to assist with this information.”

Source: http://wp.me/p1n8TZ-uR

TRANSLATION: The DHS, and by extension, the Federal parliament does not know the scale of the death toll caused by breaching.
(Un)fortunately, the suicides triggered by breaching are homicides and state coroners, the ABS and the AIHW all keep tabs on these.
In the 10-year period 1997-2006 there were 23,254 suicides with 1 in 3 being an impoverish Centrelink client. Extrapolating the average number of suicides per month over the full 11-years and 5-months of John Howard’s Prime Ministership, that is approximately 8,850 suicides that are ‘uncollected’ and unreported by DHS officials and the responsible Ministers for Social Security and Employment. Under Article 7 of the Rome Statute, Breaching is a ‘Crime against humanity’ with fatalities being murders under 7 (1) (a), a fact that Radovan Karadzic can utilize in the appeal against his conviction on March 24th.

In Australia, Gerard Baden-Clay can use these and all other breaching fatalities to argue a manifest ostensible bias case when the QLD DPP appeals his recent conviction being downgraded from murder to manslaughter. Locally, Cy Williams case goes to court in SA in June and he too can run the same argument through the court. In all, the total unreported, secretly classified, “irrelevant” death toll over the last 40 years or so may exceed 60,000.

Plus, on 1st January the DHS failed in an attempt to defraud 73,000 people when there received electronic “Account payable” notices.

“defraud”?

YES!

See ASIV v Hellicar [HCA 12 – 2012] at 141 & 143 and Bhardwaj [HCA 11 – 2002] at 53, and R v Coco v R [HCA 15 – 1994], Briginshaw v Briginshaw [CLR 1938] re Briginshaw Principle, plus <Redacted from this posting> & the Secretary of the DSS [AATA <Redacted from this posting>] for more details.

Finally, check out the constitution, para’ 51 (xxiii) (a), especially the clearly words bits about “the  PROVISION” of welfare allowances and not linking welfare payments to “civil conscription”, i.e. Work for the Dole.

Whatever the actual death toll caused by breaching penalties, the HIP Royal Commission capped the limit on government policy triggered deaths at 1 being 1 too many! (Thank you Tony for that inquiry.)

Prime Minister, now may not be a good time for double dissolution.

EWRE Irrelevant.jpgAPPENDED: The EWRE committee classification of the breaching murders as “irrelevant”.

Ronald Medlicott – Teacher and lay welfare justice advocate.

=========================================================================

My comment about the rejected “irrelevant” submission.

I pointed out that Work Choices was bad legislation because, like breaching legislation, it was harmful to Australia’s most vulnerable people, i.e. low income workers and the unemployed. As you can see from the letter above, the EWRE Committee regarded the high number of unreported post breaching fatalities that I wrote about as being “irrelevant”.

These comments are in stark contrast to the Liberal Party’s concerns about the 4 Home Improvement Program fatalities which were the subject of a Senate ECA Committee inquiry in February 2010, coroner’s inquests in Queensland and New South Wales, a Royal Commission in 2013, and numerous criminal negligence prosecutions.

In 14.1.1 of the Home Improvement Program Royal Commission Report, Commissioner Ian Hanger QC made the following recommendations:

“This could be done by including a section in the briefing template which requires the author to air risks relevant to the proposal (a ‘devil’s advocate’ section)—this would provide Ministers with an opportunity to make decisions fully informed about the implications and consequences thereof. Officers must be supported to engage with personal risk when giving advice, rather than to remain complicit with a particular approach thought to be favoured by the Minister or a political adviser. Senior officials must likewise satisfy themselves that advice concerning risks is accurate, independent, and comprehensive. Additionally, advice on risk, whether delivered in a written submission or verbally, should not be pitched at such a high level that it is impossible for the Minister to discern real tangible risks therein. Ministers and their advisers must not, by subtle suggestion or otherwise, dictate what advice they receive.”

Within the above statement is this comment:

The APS ought to brief Ministers on the risks inherent in a recommended approach or advise on how the proposed approach might contain faults in the design or otherwise fail to work.”

Over the last 40 years since legislated welfare penalties came into force, how many times have Australian Public Service (APS) officials informed government ministers that these penalties are a Crime against humanity under international laws and violate state and territory homicide laws such as (WA) s 279.4, (SA) s 13.7, QLD s 302.4, (TAS) s 156, (VIC) s 4 and (NSW) s 18.1??????

Correct me if I wrong but I believe that there is not record in Hansard of senior DHS, DSS or DWEER officials having ever done this. If they did so, it was in private, not public meetings and there is therefore no published evidence that would exonerate these officials for acts of omission under s 4 of the Commonwealth Criminal Code Act (1995).

As stated in my last posting and in the text of the information provided to Malcolm Turnbull, DHS do not know how many people have died as a consequence of being breached. In point of fact, Hansard minutes of a CALC hearing in February 2015 and a CARC hearing in June 2015 make it quite clear that they do not know how many people have had essential services cut off or have been evicted after being breached.

The reality is that whatever the potential danger to Australian citizens is posed by Islamic terrorist groups such as Islamic State and J.I., this risk is almost totally insignificant when compared to the risks created Australian politicians when creating public policies. The Queensland coroner’s inquest report into the three Home Improvement Program fatalities that occurred in that state heavily criticized the Rudd Government for focusing upon financial considerations ahead of public safety.

For those who did not read yesterday’s posting, hear are the views of Tony Abbott and Joe Hockey on the importance of saving money rather than saving lives:

“The entitlements bestowed on tens of millions of people by successive governments, fuelled by short-term electoral cycles and the politics of outbidding your opponents is, in essence, undermining our ability to ensure democracy, fair representation and economic sustainability for future generations.” … “It is ironic that the entitlements system seems to be the most obvious and prevalent in some of the most democratic societies. Most undemocratic nations are simply unable to afford the largesse of universal entitlement systems. So, ultimately the fiscal impact of popular programs must be brought to account no matter what the political values the government are or how popular a spending program may be. Let me put it this way the age of entitlement is over. We should not take this is cause for despair.”  [Joe Hockey’s London Institute of Economic Affairs speech on 17th April 2012]

“I am all in favour of rights. I am also in favour of the rights of taxpayers not to have their money abused. I am in favour of the rights of taxpayers to say that young people should be doing the right thing by themselves and by our society.”
[Question Time: 30th September 2014, Hansard, page 10,755. 30th September 2014]

The focus in these statements was upon saving money, not the “Mutual Obligations” that Joe Hockey and Tony Abbott owed to welfare recipients who had, and still have a range of constitutional and legally enforceable  rights to “the Dole”, i.e. a subsistence allowance.

Ron Medlicott

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Part 23: Australia’s “irrelevant” crimes against humanity. Sending letters to the dead.

When it comes to Australia’s “irrelevant” crimes against humanity, i.e. Breaching penalties triggered fatalities+++, or Centrelink’s fraudulent “Waivergate” scam, these abuses are hard to top. However, when it comes to federal government departments doing outrageous and totally bizarre things that offend, nothing is impossible. How low can you go when the Department of Human Services dysfunctional computer systems sending letters to people who have been dead for 20 years? Below are extracts from a news article by a News Corp journalist, Sue Dunlevy, which provide insight into this latest blunder.

[The short link for this posting is:  http://wp.me/p1n8TZ-uR   ]

Key points that I would make about this article are:

  1. Centrelink’s ISIS computer is too unreliable to provide evidence in either criminal prosecutions of welfare recipients for alleged fraud, i.e. Health Minister Sussan Ley’s comment about an “unfortunate administrative error.”.
  2. This computer system is also too unreliable to provide the “primary facts of the matter” that a court would require when trying to decide who was legally responsible for alleged over-payments to any  one of the more than 1 million people who have been over-paid about $5 Billion which Department of Human Services (DHS) bureaucrats have been trying to recover by skipping over the courts and arbitrarily (and unlawfully) deciding that they are not at fault and therefore welfare recipients should repay any over-payments made.
  3. Breaching is a Crime against Humanity under Article 7 of the Rome Statute of the International Criminal Court of Justice with Breaching triggered fatalities being murders under Article 7 (1) (a). What some of the comments below by the Health Minister, Sussan Ley, appear to indicate is that neither the Ministers responsible for Welfare or health have the slightest idea as to just how many people they have murdered through Breaching and Centrelink’s fraudulent tort claims!

=========================================================================

ISIS Letters to the dead – for the full text and details, please go to:

http://www.news.com.au/lifestyle/health/dead-people-given-ehealth-records-in-latest-bungle-for-1-billion-government-program/news-story/966ec22c7fe8a40e7ecf66aa98b1ed90

Dead people given e-health records in latest bungle for $1 billion government program.April 16, 20167:00am Sue Dunlevy News Corp Australia Network

 EXCLUSIVE. THE federal Health Department is setting up My Health records for people who have been dead for over two decades in the latest bungle to beset the troubled $1 billion project.It comes as a major international technology company CSC last month warned medical practices not to use the My Health Record because of a glitch that meant data for one patient “may be saved against an incorrect patient record”.

And as the Australian Medical Association calls for a major overhaul of the records to integrate them into existing medical software because just 300 GPs are using the records each week.’  Four years after it was launched only 75,000 records are populated with a patient health summary that makes them useful to doctors. As the project to drag health care into the digital age flounders it has emerged the government is setting up My Health records for people who are no longer alive.

  1.  Alison McLaren says her family was shocked and upset to receive a letter from the Department of Health in February informing them a My Health record would be established for her nanna Muriel Stratton who had passed away 20 years ago.
  2. “It was a real shock to mum because it was so close to the 20th anniversary of Nanna’s passing and was strange to get this letter out of the blue,” said Ms McLaren.  “I support e-health but what concerns me is if they are using information that old and getting that wrong, what else are they getting wrong?” she said.
  3. Roger Grearly says his wife Lillian passed away 23 years ago but he received a letter recently informing him a My Health record would be set up for her. “It bought back a few memories and was a bit emotional,” he says.
  4. He says another Facebook friend also received a letter informing her a My Health record would be set up for her 19-year-old son who had passed away.
  5. “Whether it’s blundering or carelessness it’s pretty pathetic,” he said.

The Department of Human Services says it sent letters to people who were deceased because it did not have a date of death recorded against their customer records.

  1.  “The department is aware that of the one million letters sent about the My Health Record trial, a small number have been sent to deceased individuals,” a spokeswoman said.
  2. “The department sincerely apologises for any distress this has caused.”The department says it is notified of a death from family members and other authorised persons such as health professionals, funeral directors and, in more recent years by data-matching with Birth, Deaths and Marriages registrations.
  3. “If the department is not notified, a date of death will not be recorded on a customer’s record,” it said.

Minister for Health Sussan Ley offered a direct apology to any family affected by the  “‘unfortunate’ administrative error.”

  1. “What I find disheartening is Labor are quick to use this as an excuse to attack the Government’s IT and payment systems when something goes wrong, but are also actively blocking our attempts to upgrade them so they are more accurate and convenient for patients.”
  2. Privacy groups fear those with a mental illness or who have had an abortion or sexually transmitted disease or other medical problems they want to keep secret from an employer, insurance company or former partner may be unaware of the privacy risk they face. 
  3. Labor candidate for Macquarie Susan Templeman was approached by potential constituents about the letters written to deceased people and has written to Health Minister Sussan Ley about the mistakes. “These people need an apology from the minster,” she said. 
  4. “The key question is how can anyone have confidence in the process, where such personal details are involved, if the government can’t even work out if someone is alive or dead?” she says in the letter. 
  5. Australian Medical Association president Professor Brian Owler says the real question is “why these letters were sent” and what data base was being used.

RONALD’S SPACE COMMENTS ON THE ABOVE STATEMENTS.

This statement was a monumental pre-election blunder by Sussan Ley:

‘unfortunate’ administrative error.”

It undermines constant claims by both politicians and Department of Human Services bureaucrats (and Australia’s mass media) that welfare recipients are “rorters” who exploit the system, or when over-payments occur, that it was because welfare recipients were at fault.

This statement was also a monumental pre-election blunder by Ms. Templeman:

“The key question is how can anyone have confidence in the process, where such personal details are involved, if the government can’t even work out if someone is alive or dead?”

As the letter below clearly reveals,six years ago in May 2010, Assistant Secretary Neil Skill wrote that Centrelink did not collect the statistical data on post-breaching fatalities and therefore could not make the information available to me.

Skill certified

I am not surprised that Centrelink bureaucrats have never “collected” the statistics on post-breaching fatalities because EVERY BREACHING is a crime against humanity and EVERY BREACHING FATALITY is a MURDER.

  1. My most optimistic assessment as to the scale of the “uncollected”, unreported, secretly classified, “irrelevant” death toll is that is its less than 15,000.
  2. My worst case estimate is that it may exceed 60,000 fatalities.
  3. Quite clearly, a third option is that the precise number of unreported, “irrelevant” murders is within the range of 15,000 – 60,000.
  4. Whatever the precise number of murders being concealed, whether through incompetence as is indicated in some of the statements in Sue Dunlevy’s article, or through deliberately not collecting the data as is indicated in Neil Skill’s letter, the plain and simple truth is that no-one can dispute my estimates.
  5. Adding weight to the validity of my estimates are the official statistics of the Australian Bureau of Statistics and the 1998 National Health Priority Areas Report on mental health. 
  6. During the ‘Howard Years’, i.e 1997 – 2006, there were 23,254 suicides and approximately one in 3 was an Centrelink clients, most of whom were unemployed people.
  7. Extrapolating to the full 11 years and 5 months that John Howard held office, that is a suicide toll in excess of 8,000 people, a figure that is directly comparable with the 1995 Srebrenica Massacre in Bosnia!

RADOVAN KARADZIC could exercise his right to a fair trial under Article 10 the Universal Declaration of Human Rights “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Articles 14 of the International Covenant on Civil and Political Rights (ICCPR) states that “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. .

  1. The catch 22 with Radovan Karadzic’s  conviction by the International Court on March 24th 2016 is that if he lodges an “APPREHENDED BIAS  or MANIFEST OSTENSIBLE BIAS appeal on the grounds that the United Nations , and Australia’s criminal justice system, have ignored the death toll caused by Breaching laws in Australia, then he may win an appeal on these grounds.
  2. A win is not about being found innocent of the Srebrenica murders; it is a legal loophole that allows EXCULPATION, i.e. the charges are tossed out and, thanks to the ‘double-jeopardy’ rule which prevents a person being tried twice for the same crime, he could be released.appeal avoid being held accountable before the courts for these murders.
  3. People who support Radovan Karadzic can research the Australian federal parliament’s HANSARD minutes over the last 40 years.
  4. Ditto for the various oversight committees for welfare, employment and human rights.
  5. They could also research and examine breaching laws contained in the 100s of variations of the Social Security Act and Social Security (Administration) Act over the last 40 years.
  6. In the same manner, the annual reports and quarterly public accountability reports from the departments of Human Services, Social Security, Employment, and agencies such as the Australian Human Rights Commission, The Commonwealth Ombudsman and the Australian Federal Police could also be vetted for evidence of the concealment of the death toll caused by the crimes against  humanity committed against Australia’s impoverished welfare recipients.
  7. Then there are the documents contained in this website that can also be used as starting points for identify the politicians, bureaucrats and police officers who are involved in the concealment of these crimes.s
  8. This would be an impossibly huge task for one person but no big deal for a co0rdinated team effort, especially one undertaken by the Bosnian Government which appears to be pro-Karadzic.

The irony is that people who want Radovan Karadzic to stay in jail for the rest of his life would need to research the same information and then lobby the United Nations to conduct a Crimes against Humanity  inquiry into Australia’s uncollected, unreported, classified, “irrelevant” death toll.

 

END NOTE: Sue Dunlevy can have the last word on the ‘letters to the dead” fiasco. Australia’s federal political parties like to claim that they are sound economic managers but as the points in Ms. Dunlevy’s article, including this point below, make quite clear, the primary skill of these politicians appears to be the ability to preside over hugely bureaucratic disasters.

The National E- Health Transition Authority (NEHTA) in charge of the record revealed in 2012 it had spent over $5 million on travel and entertaining stakeholders in five star hotels. This included one event at Sydney’s Intercontinental Hotel where guests were offered steak and seafood and crème brulee. A former policeman was the motivational speaker at the dinner and entertained guests with grisly details about murders while they were eating dessert.

Ronald Medlicott

A Christian lay advocate for fair and impartial justice in Australia.

 FOOTNOTES – TEXT IN CONTEXT: Why are Australia’s legislated welfare penalties ‘Crimes against Humanity’ and why do I believe that Breaching triggered fatalities are murders? the answer is complex but the Rome Statute provides significant insight and understanding:

The Rome Statute of the International Criminal Court.

Article 7 of the Rome Statute deals with Crimes against Humanity. Section 7.2 contains the following definitions that are, under the Commonwealth Criminal Code Act, are Facts of Law:

 (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (A problem is that any parliament can create laws to by-pass this weak sanction!)

            (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

Article 7 (1) (a) states: “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination”

Article 7 (1) (k) further states: “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The last sentence in Article 1 (2) of the International Convention for Civil and Political Rights states:  “In no case may a people be deprived of its own means of subsistence.” 

Paragraph 51, sub-paragraph xxiii (a) of the Australian constitution also places an obligation upon the Australian Federal Parliament to PROVIDE A subsistence allowance to welfare recipients that cannot be linked to “civil conscription”, i.e. forced labour.

The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:”

Legislated welfare penalties are intended to circumvent both the constitution and the human rights obligation not to deprive people of their only means of subsistence, i.e. the arbitrary imposition of the legislated penalties, commonly referred to as “Breaching” work by accusing a person of a “breach of contract” and the penalty is to deprive a person of their only means of subsistence for a period measured in months.

Survival for any person under such conditions would be almost impossible, a fact highlighted in September 2014 when a Senate human rights committee inquiry stated in Report #12  at 2.10 The committee thanks the Minister for Social Services for his response.

 2.11 However, the response does not provide any further information as to how young people are to sustain themselves during a six-month period without social security. The committee noted in its original assessment that information regarding the likely impact of the measure on individuals and their families, and how individuals subject to the measure will retain access to adequate shelter and food, is necessary in order to assess the human rights compatibility of this measure.

  • The core question that the Human Services Minister declined to answer was the question as to “how individuals subject to the measure will retain access to adequate shelter and food”.
  • This was a highly leading question that Kevin Andrews, the Human Services Minister, and a former barrister, did not provide an adequate answer too. However, that question opens up the question of how did people survive under the former 3-month breaching penalty period and the current 2-month breaching penalty period.
  • Further compounding the criminal negligence issue was a Victorian Supreme Court of Appeal decision in 1999, R v Faure  at paragraph 14 the Court ruled:“His Honour distinguished wilful murder from reckless murder – understandably, those expressions were not used – by telling the jury, by way of modification of what might be called the usual definition of murder given to juries, that there were two different intents, either of which would, in conjunction with the other elements of the crime, constitute the crime of murder. The first was the intent either to kill or to do really serious injury and the second was the knowledge that it was probable that death or really serious injury would result from the act done.”
  • In paragraph 29 the Court ruled “It is the placing of life in peril that constitutes the crime.” Breaching willfully placed life in peril by deliberately depriving impoverished people of their only means of subsistence but that was, and is, only part of the risk assessment problem.
  • In Chapter 2 of the 1998 National Health Areas Report – mental health, the most common cause of suiicde was listed as “Poverty”, e.g unemployment” whilst the best defence against a person committing suicide was “support”.
  • Breaching was, and still is, a violation of constitutional, legal, common law rights and human rights that protected by international laws and treaties, e.g. Article 1 (2) of the ICCPR. The risk of triggering a suicide is easily foreseen, an issued addressed in high Court appeals such as Boughey, where foreseeably fatal consequences determine whether a murder was due to either reckless indifference or willful intent.
  • In a speech given in London on April 17th 2012, Joe Hockey stated The entitlements bestowed on tens of millions of people by successive governments, fuelled by short-term electoral cycles and the politics of outbidding your opponents is, in essence, undermining our ability to ensure democracy, fair representation and economic sustainability for future generations.… It is ironic that the entitlements system seems to be the most obvious and prevalent in some of the most democratic societies. Most undemocratic nations are simply unable to afford the largesse of universal entitlement systems. So, ultimately the fiscal impact of popular programs must be brought to account no matter what the political values. The government are or how popular a spending program may be. Let me put it this way the age of entitlement is over. We should not take this is cause for despair.”
  • As far as Joe Hockey was concerned, fiscal priorities were more important than human rights and constitutional obligations to provide a subsistence allowance to welfare recipients.
  • On 30th September 2016, during Question time in the Australian Parliament, Prime Minister Tony Abbott expressed similar sentiments when the above mentioned senate report rejected his attempt to deprive unemployed people of a subsistence allowance for 6-months.
  • “I am all in favour of rights. I am also in favour of the rights of taxpayers not to have their money abused”.
  • There is a very frightening parallel between what Australia’s right wing politicians say and the Holocaust mantra of leading Nazi politicians such as Heinrich Himmler who in 1943 justified the mass murder of millions of Jewish people with this statement:  

 

 

 

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Part 22: Australia’s “irrelevant” Crimes Against Humanity – Insight into the bloody-minded role of the Administrative Appeals Tribunal.

Centrelink glitchIt is my considered opinion that, as a Lay advocate, in 2014 I participated in an appalling failure of justice during an AAT appeal.

Please note that I am a school teacher, not a lawyer, and my personal opinion, for whatever it is worth, is that if you get hit with one of Centrelink’s  “Account payable” demands, you are probably the victim of a fraudulent civil rights violation and the most appropriate response that you can make  is to refer Centrelink’s “Account payable” demand to the police citing “Abuse of Power” fraud under Section 142 of the Commonwealth Criminal Code Act.It is also my recommendation that you avoid appeals through the federal governments appeals tribunal system, e.g. the Administrative Appeals Tribunal, as you may find that your civil rights are ignored by this non-constitutional appeal system.

[Note the short link to this posting is: http://wp.me/p1n8TZ-u2    ]

BACKGROUND to the ‘Waivergate 2016’ rip-off:

On the 1st January 2016, the Department of Human Services, aka Centrelink, electronically sent “Account payable” notifications to 73,000 welfare recipients. [See the URL link below for details:]

http://www.news.com.au/finance/economy/australian-economy/centrelink-sorry-for-computer-glitch-that-affected-73000-families/news-story/e59444029d37fb98456c898cdd8e65ae

Since Centrelink is a party to what is legally known as a “Tort”, a number of court decisions, and the constitution, underscore the fact that Centrelink cannot arbitrarily determine that the other party involved in a tort is at fault. As has been pointed in the last 3 or 4 Ronald’s space posting, according to the Australian High Court, the determination of “the primary facts of the matter” in Centrelink’s “Account payable” tort actions is a matter for the courts to decide.

IF THERE IS NO COURT DECISION AS TO THE PRIMARY FACTS OF THE MATTER, IT MEANS THAT THERE IS NO LEGALLY VALID DECISION THAT CAN BE REVIEWED BY THE SSAT OR THE AAT, I.E. WITHOUT A COURT MAKING FINDINGS OF FACTS, THERE IS “NO DECISION AT ALL.”

BEFORE any “Account payable” notifications can be issued by Centrelink, both parties as to who was responsible for the alleged over-payments, i.e. Centrelink and the individual welfare recipient must either agree as to what are “the primary facts of the matter” and the welfare recipient, without any duress, agrees that they are liable for the over-payment. If the welfare recipient disagrees, it is then a matter for a court, not Centrelink bureaucrats, to decide what are the relevant facts of the matter so that legal liability can then be determined.  At an average of $25,000 to Centrelink per court appeal, this is hugely expensive. Needless to say, Centrelink has a vested interest in totally by-passing this civil rights obligation which indicates the reason for the electronic “Account payable” notices being rolled on a long week-end to welfare recipients .

Tracie Mitchell – An Aussie Battler hero.

Fortunately for the 73,000 victims of the New Year’s day abuse of power, which I firmly believe was a criminal Abuse of Power violation under s 142 of the Commonwealth Criminal Code Act (1995), MS. TRACIE MITCHELL of Cowra in New South Wales spat-the-dummy and fought back by posting her plight on FaceBook. Inundated with a flood of responses by other people who were also hit with what I now call “Waivergate 2016”, Ms. Mitchell took these responses to the 7 network which investigated and blew the whistle on 7th January 2016. Hank Jongen, the chief spin doctor for Centrelink, then responded by claiming that the electronic “Accounts payable” messages to 73,000 was due to a computer “glitch.”

 BUNKUM! As stated above, it is my considered opinion that Waivergate 2016 was not a “glitch” as was reportedly claimed by Hank Jongen, but was actually a deliberate attempt to use Centrelink’s computer system to defraud 73,000 people who were unaware of their legal rights as set out in criminal law and case law decisions.

INSIGHT INTO THE PROBLEMS ENCOUNTERED WHEN USING CENTRELINK’S UNCONSTITUTIONAL, BIASED APPEAL SYSTEM.

 I have written this posting because I cannot emphasize too strongly the pitfalls and dangers in relying on the administrative appeals system set up by the Australian federal parliament. To protect the identity of the welfare recipient, I have withheld the case file number in the text below which comes straight from a federal Administrative Appeals Tribunal (AAT) case that I was involved in a few years ago.

The appalling  message buried in the legal jargon is that if Centrelink gives bad advice and people act on it in good faith, then these people, not Centrelink, have made a mistake and therefore Centrelink, i.e. the Commonwealth, is no longer “solely responsible” and consequently welfare recipients must repay the debt, i.e. had the 73,000 victims of the Waivergate 2016 “glitch” appealed through the federal government’s appeals system, all 73,000 people would have had to repay the millions of dollars in commonwealth errors that Centrelink was sneakily trying to recover by violating the civil rights of these people.

 UNBELIEVABLE BUT TRUE – THE AAT DECISION BELOW provides frightening insight into the appalling folly of relying upon the federal government’s welfare appeals system to receive justice. It is my considered belief that the defining of “special circumstances” in the findings below is a legal atrocity that prostitutes and perverts justice and further brings Australia’s ailing justice system into disrepute.

 Finding 39 statement: The question is, rather, whether there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the right to recover all or part of Ms Locke’s debt to Centrelink.

Finding 40 statement: The expression “special circumstances” is not defined in the SSA or SSAA, but has been considered on a number of occasions by the Federal Court and Tribunal. The Tribunal has said that the expression “special circumstances’ in s 1237AAD(b) of the SSA should be interpreted and applied in the same way as the identical expression in s 1184(1) of the SSA is interpreted and applied: Re Secretary, Department of Social Security and Duzevich [1996] AATA 63; 41 ALD 461 at [32] per DP Hotop.

Finding 41 statement:  In summary, it has been held for circumstances to constitute “special circumstances” (for the purposes of s 1184(1) of the SSA and, it follows, s 1237AAD(b) of the SSA), they must be circumstances which are “unusual, uncommon or exceptional”, be “markedly different from the usual run of cases”, “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate”: see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at [545] per Kiefel J and Dranichnikov v Centrelink [2003] FCAFC 133; [2003] 75 ALD 134 at [66] per Hill J. Circumstances might be “special” although they apply to more than one person or class of persons, provided they are not of universal application (for example, they are a common or universal characteristic of social security recipients): see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at [65].

Finding 42 statement:  <The applicant’s> contention that she acted in reliance of incorrect advice provided by a Centrelink officer over the telephone is not an uncommon compliant or circumstance of socials security recipients. This circumstance is not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary so as to render it a “special circumstance” for the purpose of s 1237AAD(b) of the SSA.

The test underlined in finding 41 and highlighted in finding 42  make a farce out of the legal concept of Accountability for conduct. If mistakes are common, e.g. the 73,000 “Account payable’ claims sent out on 1st January 2016, the AAT accepts this gross incompetence to be a normal part of Centrelink’s operations and therefore mistakes made by Centrelink are not an acceptable reason for the waiver of debt rule in paragraph 1,237 (A) of the Social security Act being applied when Centrelink stuffs up and overpays welfare recipients. This logic is absolutely farcical as the following 3 real-world examples indicate:

Example #1 – Thousands of speeding fines are issued each day which meet the criteria of not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary.” Therefore logically, the more  speeding fines issues, the more “common” is this error when driving and therefore drivers who speed more often are exempt from the consequences of speeding. Yeah! Is that a squadron of pigs flying by?

Example #2 –  The Royal Commission into the sexual abuse of children in institutionalized care. The AAT decision was a FEDERAL tribunal decision that can only be overturned by the Federal Court or the High Court and so that AAT decision carries enormous potential legal implications that go far beyond the primary case issue of determining legal liability of alleged Centrelink overpayments to a welfare recipient. In section 14.1.1 of the Hanger Royal Commission Report into the Rudd Government’s ill-fated Home Improvement Program, Commissioner Hanger recommended that political advisers and public servants look at the ‘big picture’, especially what might be colloquially called “The Dark Side” of political policies, programs and practices. If you apply this ‘dark side-big picture’ to the above AAT decision in the context of the current royal commission hearings into the sexual abuse of children, the legal logic used by the AAT takes a flying leap into a legal quagmire.

  1. Over a period measured in decades, thousands of children, have been sexually abused. It is there reasonable, using the AAT legal logic above, to claim that since there is nothing exceptional that can be classified as “special circumstances” about the sexual abuse of children, then logically, the individual victims have nothing to complain about because Q.E.D. there is nothing exceptional about the sexual abuse of children that would qualify as “special circumstances”.
  2. However, in law, legal precedents have very broad applications and the legal logic used by the AAT establishes a dangerously idiotic legal precedent that because Centrelink errors are not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary,  the same principle applies to the sexual abuse of children. That precedent could be argued in any court in the nation. Heck, it could even be used as a Persuasive Precedent or as an Influencing Precedent in any court in the world that uses laws based upon British Crown Law principles, e.g. the United States.

Example #3 – THE APPREHENDED BIAS/MANIFEST OSTENSIBLE BIAS TIME BOMB.

The legal precedent implicit in Finding 42 above, i.e. <The applicant’s> “contention that she acted in reliance of incorrect advice provided by a Centrelink officer over the telephone is not an uncommon compliant or circumstance of socials security recipients” is potentially a legal time bomb in murder cases!

  1. Murders have also been common throughout Australia’s history, e.g. March 2016 marks the 20th ‘anniversary’ of the Port Arthur massacre when 35 people were shot dead and therefore it is fair to say that “murders are not uncommon”.
  2. Using the AAT ‘s ‘not an uncommon circumstance’ because murders are so common, this AAT finding opens the legal door to anyone accused or convicted of murder potentially using this and similar AAT decisions based upon this legal precedent to  argue an Apprehended Bias or a Manifest Ostensible Bias case when seeking to have the murder charges dismissed.
  3. If an alleged murderer or a convicted murderer were to win an appeal using the AAT “not uncommon” logic above. every murderer in the nation could argue that they are the victims of Apprehended Bias.

 Ron, are you nuts? That could not happen, could it?

If you think I’m a nutcase, just remember  Queensland’s infamous ‘Dr. Death.’ Despite the fact that 87 of D. Jayant Patel’s reported patients died as direct consequence of his surgical procedures and another 106 patients reportedly required major corrective surgery, because of Procedural Fairness violations in the Morris Royal Commission Inquiry into these deaths, 50 days of evidence to the royal commission was turned into “poisoned fruit”, i.e. inadmissible evidence that the Queensland Supreme Court be shredded!   [Leck v Morris & Ors; Keating v Morris & Ors, [QSC 243] (1st September 2005) The downstream consequence of that was that in March 2013 a Queensland jury had no option but to bring in a “Not guilty” verdict to a re-trial that had been ordered by the High Court .

The legal reality of the issues that I am raising in these WordPress journal postings is that whether or not you agree or disagree with what I write, or even if you opt to totally ignore them, FACTS ARE TRUTHS THAT DO NOT CHANGE. So here are some more legal facts that all of Australia’s 7.3 million welfare recipients should be aware of.

The findings in the above AAT decision were justified using a number of case law precedents, some of which date back decades. The problem with the case law precedents quoted is two-fold.

In the case that I was involved in in 2014, the AAT ignored the constitution, statute laws, and binding High Court precedents that the presiding AAT Member should have been reasonably been aware of.

I believe that errors of law occurred because the AAT decision  ignored serious criminal law statutes that applied to this case, e.g. the withholding or possible destruction of evidence, specifically the telephone call recording at the centre of this legal dispute that contained what I believe were the primary facts of the matter. This disregard for the statutory and Common Law rules of evidence and provisions within the Commonwealth Criminal Code Act were more than an “errors of law”, it was probably a serious violation of the statute below.

 Statute 142 of the Commonwealth Criminal Code Act (1995)

This laws states “A Commonwealth public official is guilty of an offence if (b) the official does so with the intention of:

(i) dishonestly obtaining a benefit for himself or herself or for another person; or: (ii) dishonestly causing a detriment to another person.

Penalty: Imprisonment for 5 years

Dial 13 32 76 and within seconds you will hear the statement “For your security this call will be recorded.”

  1. However, all attempts to obtain this recording, including requesting that the AAT Member hearing the appeal use their power under the AAT to order the handing over of this evidence, proved unsuccessful.
  2. The statement in finding 42 made it quite clear that the presiding AAT Member did not give a stuff about who said what in the recorded phone call.
  3. This was a very prejudicial, biased viewpoint that made it easy for the presiding AAT Member to rationalize that since the provision of erroneous information was “not uncommon” the phone call recording was “irrelevant.”
  4. In doing so, the presiding AAT Member was making a defacto finding as to the primary facts of the matter., i.e. the recording did not contain evidence that was a “primary fact of the matter.”
  5. How many courts would go along with the idea that a phone call recording which is central to a dispute is so irrelevant that the court would not bother to make it available to the applicant in a legal dispute?
  6. There are in fact 2 High Court decisions that I believe provide binding precedents as to the importance of the phone call that the presiding AAT Member ignored:

Coco v Queen [HCA 15] (13th April 1994)

In 1994 the High Court ruled in paragraph 8 of Coco v Queen (HCA 15) that “Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.”

This High Court decision was an “Invasion of Privacy” case dealing with the legality of a telephone call recording made by police officers.

As is stated above, the Court ruled that “tortious conduct must be clearly expressed in unmistakable and unambiguous language” torpedoed the Crown’s case because the Law of Trespass had been violated due to an oversight by the magistrate who issued the warrant to install a telephone tap.

Since trespassing is unlawful, the phone call was unlawfully recorded and the applicant wanted the phone call dismissed as evidence.

Conversely, in the 2014 AAT case, I wanted the disputed phone cal for the same reason that the Crown wanted the phone in the Coco case, i.e. it was irrefutable of evidence needed to impartially determine “the primary facts of the matter” in dispute. Without the relevant recording, in both legal actions, a police prosecution in Coco in 1994 and the Centrelink tort action in 2014, no valid determination of the primary facts was possible.

Trespassing is illegal and so the Coco recording was ruled invalid as evidence. Withholding evidence, in this case another phone call recording, is also unlawful and that means that the AAT had no legal right to make a decision that endorsed the unlawful conduct of Centrelink officials.

Kioa v West [HCA 81] (1985)

This is a landmark High Court decision which, in paragraph 6ofthe Court’s findings made it quite clear that the withholding of information from an applicant by a bureaucrat was a procedural fairness violation that invalidated the bureaucrat’s decision.

This determination was effectively a ‘grandfather’ precedent for the High Court’s Bhardwaj decision in 2002 in which the High Court ruled that a tribunal have no jurisdiction to make procedural decisions that were unfair and when procedural unfairness, e.g. the withholding of credible, relevant or significant information occurs, then as far as the High Court is concerned, there is no decision at all.

A key point in the Kioa ‘procedural fairness’ decision is the obligation or duty of care of administrative decision-makers to act fairly when making decisions that affect people’s rights or interests.

Unless statute laws expressly over-ride the procedural fairness principles enunciated in Kioa[1], in all cases before an Australian court or a tribunal, the following Common Law procedural fairness points of law now apply:

 The Hearing Rule the right to a fair hearing, which is also a right under Article 14 of the International Convention for Civil and Political Rights.

The No-Bias Rule The decision-maker is impartial; a rule or principle consistent with the common law principle that people should not sit in judgement in cases where they have a clear vested interest. This rule kills off the idea that Centrelink bureaucrats can arbitrarily determine who is responsible for overpayments invalidates the “Account payable” bills that are sent out as Standard Operating Procedure as per the 73,000 ‘Waivergate 2016’ notices distributed electronically on 1st January 2016.

The Evidence rule – the requirement for decisions to be based on empirical evidence, i.e. logically probative evidence. Suspicion may be speculation with reasonable foundation and provide logical grounds for an investigation, but suspicion is not adequate grounds for a decision that is based on biased, bigotry-driven personal assumptions, values or beliefs. The phone call recording at the Centre of the tort action was the only empirical evidence as to “who said what” and, given ‘The Evidence Rule”, which DHS/DSS bureaucrats and Crown Law lawyers would have been fully aware of, there is only one logical reason for the withholding or destruction of this recording by Centrelink, i.e. its content revealed that a Commonwealth error had resulted in a “good faith error” by the applicant and the alleged overpayment ‘debt’ should have been waived.

Readers should note that the Kioa and Coco decisions were included in the applicant’s statement of Claim to the AAT and the Kioa decision points above were raised during the hearing. Readers should also be aware that these legally binding High Court precedents, which now underpin courtroom procedures in all Australian courts, were ignored by the presiding AAT Member!

 By failing to order that Centrelink make the recording available, the presiding AAT Member was almost certainly committing a serious “Error of Law”. However, by withholding or destroying the phone call recording, Centrelink was almost certainly in violation of s 149.1 of the Commonwealth criminal Code Act i.e.

Obstruction of Commonwealth public officials

            (1)       A person is guilty of an offence if:

            (a)       the person knows that another person is a public official; and

            (b)       the first‑mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

            (c)       the official is a Commonwealth public official; and

            (d)       the functions are functions as a Commonwealth public official.

Penalty: Imprisonment for 2 years.

In the AAT case that spawns the disgraceful findings mentioned above, the presiding AAT Member simply ignored these laws. I believe that by doing so, the presiding AAT Member may have therefore violated one or more of the above provisions in the Commonwealth Crimes Act (1995).

 There are many Federal Court or High Court decisions that invalidate the precedents used by Crown lawyers in the 2014 AAT case including:

In a speech to the NSW branch of the Australian Institute of Administrative Lawyers (AIAL) in August 2013, the president of the AAT, Justice Duncan Kerr, described lawyers as people who had “privileged expertise.” Since AAT Members are the equivalent of what are known in the United states as “Administrative Judges”, it is reasonable to assume that AAT Members are people with high levels of “privileged expert” and should have very levels of knowledge of all case law decisions that may apply to their very limited field of jurisdiction. In addition the previously mentioned Kioa and Coco High Court decisions, there are a number of other binding High court and Federal court legal precedents that the presiding AAT Member did not take into consideration.

ACCC V TPG Inc. [2013] HCA 54.

In ACCC v TPG Inc. [2013] HCA 54, the High Court’s December 12th 2013 determination of responsibility for wrong or misleading advice preceded a similar decision a year later in December 2014 by the Federal Court in ACCC v AGL (SA) [2014] FCA 1369. Both are recent examples of case law decisions in which the Courts placed accountability for incorrect or misleading advice on the givers, NOT the receivers, who may have then made good faith errors! The following concise legal opinion on the ACCC v TPG decision is by Clayton Utz lawyers, Matthew Battersby and Kirsten Webb and can be downloaded from http://www.claytonutz.com/publications/edition/19_december_2013/20131219/advertising_and_the_acl_fine_print_couldnt_save_tpg_internet_in_the_high_court.page

  On 12 December 2013, the High Court by a 4-1 majority overturned the Full Federal Court’s decision and reinstated the $2 million pecuniary penalty initially imposed on TPG Internet Pty Ltd for a misleading advertising campaign about its Unlimited ADSL2+ broadband bundle (ACCC v TPG Internet Pty Ltd [2013] HCA 54).

The key messages for advertisers from the High Court’s decision are that:

The “dominant message”test is central to any assessment of whether advertisements are misleading or deceptive; and

qualifying statements accompanying headline representations must be sufficiently clear and prominent so as not mislead consumers, particularly where the representation is about price.

The High Court’s decision is an important one for advertisers in understanding the nature and extent of their obligations under the Australian Consumer Law (ACL). It will also inform the ACCC’s enforcement strategy in this area.

ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19

The following comments on this High Court decision are sourced from: http://www.mondaq.com/australia/x/79848/Publishing/High+Court+Clarifies+The+Limits+Of+The+Publishers+Defence+In+S+65A+Of+The+Trade+Practices+Act

In ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19, the ACCC alleged that in late 2003 and early 2004 Channel 7’s Today Tonight broadcast and thereby effectively adopted misleading representations about the benefits of the services offered by a property investment training program, Wildly Wealthy Women (WWW).

The broadcasts resulted from an agreement, brokered by a marketer, between Today Tonight and WWW, pursuant to which the marketer would receive a commission for every woman who signed up to the WWW investment program.

Channel 7 did not dispute that untrue representations were made about the success of WWW, nor that they were misleading and deceiving. However, it sought protection for its misleading and deceptive conduct under s 65A of the TPA.

Findings: The High Court upheld the primary judge’s findings that s 65A of the TPA did not provide a defence to Today Tonight. It was held that the “safe-harbour” does not apply to situations in which a media outlet, pursuant to an arrangement with a supplier of goods or services, publishes and, by adoption or otherwise, makes representations of a misleading or deceptive character in relation to those goods or services.

Lessons

Media outlets should be aware, that where an arrangement has been made with a supplier of goods and services to effectively “sell” or advertise those goods or services in a broadcast, the broadcaster itself can face liability for misleading and deceptive conduct, and will not be able to rely upon s 65A of the TPA for protection.

MY COMMENT: The clear, binding legal principle in the 2013 ACCC v TPG decision and the earlier ACCC v Channel 7 Brisbane decision in 2009 is that when legal entities give bad advice, they are fully accountable for the consequences of those decisions, i.e. there is no “safe harbour” for organizations or individuals who provide misleading or erroneous information that people subsequently act on “in good faith.” Whether erroneous or misleading advice is given intentionally or due to systemic problems, hen welfare recipients phone Centrelink and ask for advice and then receive incorrect advice, this legal precedent further underscores the fact of law that Centrelink is solely and fully responsible for the downstream consequences of that error. Centrelink cannot buck-pass the blame to welfare recipients on the basis that these errors “are not uncommon” and are therefore not “exceptional circumstances.” That the presiding AAT Member, who has what Justice Kerr described as “privileged expertise” failed to appreciate this very basic principle of law, is most disturbing. At the very least it indicatesincompetence on the part of the presiding AAT Member.

ACCC v AGL (SA) [2014] FCA 1369.

“The Court has found that AGL SA made false or misleading representations to consumers about the key benefit under their energy plan – the discount off energy usage charges. Other retailers should sit up and take note – they must not mislead consumers about the savings they will achieve under energy plans.”

 Okay, this decision post-dates the AAT decision by a short period of time, but the legal principle in both the ACC V TPG and the ACCC V AGL decisions was the i.e., if legal entities provide misleading information, then they are accountable for that misleading information. People who acted in good faith on that information are not legally liable for the consequences of acting in good faith. In point of fact the very reverse applies. In 2015 the Federal Court hit AGL SA with a $1 Million fine and required the company to make compensation payments that amounted to approximately $1 Million to customers who were financially disadvantaged by AGL’s misleading advertising. In making this determination, the Federal Court was being consistent with another earlier High Court decision in 2009

THE MISSION CRITICAL HIGH COURT DECISIONS IGNORED BY THE AAT:

In addition to the above points of law which are included in “The Emcott report”, I also made known the following case law decisions to the Chief Legal Counsel to the Department of Human Services in December 2015, i.e. just a few weeks BEFORE Centrelink hit 73,000 people with the electronic “Account payable’ notifications.

 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17

This decision was handed down on May 3rd 2012, i.e. 2 years before the AAT case decision mentioned earlier in this posting.

At paragraph 141 in the High Court’s decision the judges ruled:

“…that the public interest can only be served if the case advanced on behalf of [a] regulatory agency does in fact represent the truth in the sense that the facts relied upon as primary facts actually occurred.”

In paragraph 143 of this case the High Court ruled that:

“The proposition that the public interest requires that the facts upon which a regulatory authority relies must be facts that “actually occurred” appears to require that regulatory agency to make some final judgement about what “actually occurred” before it adduces evidence. Deciding the facts of a case is a court’s task, not a task for a regulatory authority.”

 NOTE THE LAST SENTENCE: “Deciding the facts of a case is a court’s task, not a task for a regulatory authority.”

 

This is not my personal opinion; this is a binding High Court precedent that applies as much to Centrelink as it did to the Australian Securities and Investment Commission. This decision means that Centrelink has  never had the constitutional “jurisdiction” to arbitrarily decide who is responsible for over-payment errors. This principle of “no jurisdiction” is underscored by another even earlier High Court decision. Bhardwaj.

 

The flow-on implication in AAT hearings is very simple: if the Secretary of the Department of Human Services (the Chief Executive Office or boss of Centrelink) has no legal right to determine the primary facts of the matter” because this is the constitutional jurisdiction of the Courts, then the AAT also has no jurisdiction.

 

On 27th August 2013, Justice Duncan Kerr, the President of the AAT gave a speech to the New South Wales Branch of the Australian Institute of Administrative Lawyers (AIAL) in which he stated:

Ch III of the Constitution mandates a strict separation of powers which prevents the conferral of judicial power on any tribunal other than a court and precludes the admixture of Commonwealth judicial and non-judicial functions on a federal tribunal.

Justice Kerr then stated that “Merits review-that is the function of evaluating and substituting the correct or preferable decision standing in the place of a decision maker, as opposed to enforcing the law that constrains and limits the powers of the other branches of government-is, on that analysis, beyond judicial power.”

Source: http://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-duncan-kerr-chev-lh-presid/keeping-the-aat-from-becoming-a-courtKangaroo Court

The AAT has no legal power to independently make findings as to “the primary matters of fact” in a legal dispute, e.g. a DHS/Centrelink “Account payable” claim.

The AAT only has the power to review any administrative decision made by a Federal Government bureaucrat but this should be AFTER a court has determined the primary facts of the matter in a dispute. As the following High Court decision makes perfectly clear, if a government decision maker, e.g. Centrelink, makes a decision that they have no jurisdiction to make, then there is no decision.

 Minister for Immigration & Cultural Affairs v Bhardwaj HCA 11 [2002]

Paragraph [53] of the Australian High Court’s 2002 Bhardwaj Decision states,

“In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.”

The the legal ramifications of the Hellicar and Bhardwaj Decision very made very clear in his August 27th 2013 speech to the NSW AIAL lawyers, many of whom may been AAT Members:

“Merits review-that is the function of evaluating and substituting the correct or preferable decision standing in the place of a decision maker, as opposed to enforcing the law that constrains and limits the powers of the other branches of government-is, on that analysis, beyond judicial power.”

The “correct” decision in the AAT “Kangaroo Court” hearing that I was involved in was very clear, i.e. since no court had determined “the primary facts of the matter” and neither the Secretary of the Department of Human Services nor the Secretary of the Department of Social Services had constitutional “jurisdiction” to so, the duty to make a legally valid decision had not been performed and therefore the only AAT determination possible was that “…in law, the duty to make a decision remains unperformed.”

It is important to realize that that this constitutional and legal reality applies to AAL AAT decisions, including those used by the presiding AAT Member to determine that the welfare recipient that I was assisting, e.g. Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ;

If the legal precedents above are legally “no decision” because courts had not determined the primary facts of the matter in each case, then they are invalid and meaningless precedents.

The decision made by the presiding AAT in the case that i was involved in was not based upon a determination of primary facts by a court and even worse, with no legal jurisdiction to do so, the presiding AAT Member made such determinations, e.g. the phone call recording withheld by Centrelink was apparently not deemed to be a “primary fact of the matter” and so the presiding AAT Member did not order that it be made available.

Indeed, I made the statement that In the 10-year period from 1st January 1997 until the 31st December 2006, there were 20,914 suicides; a significant percentage of which were unemployed people. It is not possible to state precisely how many were post breaching fatalities because Centrelink does not collect the data, the Federal Parliament has secretly classified the death toll as “confidential” and “irrelevant”… the Australian Federal Police has refused to investigate [these deaths] because of the “gravity/sensitivity” and in my summary pleaded with the Tribunal to use its statutory powers to obtain the precise number of fatalities caused breaching penalties.

As stated in numerous other postings, these deaths are A Crime against Humanity and are murders under Article 7 (1) (a) of the Rome Statute. By failing to do so, the presiding AAT member was making a defacto determination that, like the withheld phone call recording, these Australian Parliament sanctioned murders were not “primary fact of the matter”.

Please note that due to a calculation error, this statement incorrectly under-stated the true death toll which was 23,254 with approximately 1 in 3, i.e. an estimated 7,700 of these suicides being unemployed Centrelink clients at the at the time of their demise.

How many decisions have AAT members made that are constitutionally “No decision at all” because a court has not determined the primary facts of the matter in each case? In addition, how many  decisions have also disregarded case law decisions that hold accountable legal entities that provide bad advice, as per the ACC v TPG and ACCC V AGL (SA) court decisions. Those two decisions were not unique landmark cases as the examples below reveal.

Source: Maurice Blackburn website: https://www.mauriceblackburn.com.au/work-behaviours/misleading-and-deceptive-conduct

“The Competition and Consumer Act 2010 (Cth) provides protection for prospective employees including executives against misleading and deceptive conduct. The provision of the Act cover the availability, nature or terms and conditions of employment, or any other matter relating to the employment, or a company’s financial status, including profitability and risk, or other material aspect of any business activity of the company that proposes to engage the prospective employee.”

Morton v Interpro Australia Pty Ltd [2009] FMCA 423

Mr Morton, a senior sales employee of Interpro, alleged his employer had engaged in misleading and deceptive conduct regarding his employment contract. Mr Morton argued that the company made representations about its commission based bonus scheme during contract negotiations. And that (in good faith) he had accepted the offer of employment on the basis of these representations and had subsequently relocated from the United Kingdom to Australia to join the company. After commencing in the role, the company unilaterally revoked the commission based scheme. –

Source: http://www.mauriceblackburn.com.au/legal-services/employment-law/employment-law-services/work-behaviours/misleading-and-deceptive-conduct/#sthash.hVtdeCAK.y5aGZw14.dpuf

Anor [2009] FMCA 423 and Moss v Lowe Hunt & Partners [2010] FC 1181

In 2010 Maurice Blackburn represented Mr Moss in a case of misleading and deceptive conduct. Mr Moss was an advertising and research consultant who ran his own company. He worked on a consultancy basis for Lowe Hunt & Partners (Lowe Hunt). Rather than using Mr Moss on a consultancy basis, Lowe Hunt wanted to employ Mr Moss directly and tried to recruit him to the company. In the course of this recruitment, Lowe Hunt made representations to Mr Moss, including that that the company was a financially successful agency and was in a strong business position. Moss became an employee of Lowe Hunt after relying on these statements, but within 18 months his role was made redundant. The judge in the case stated it was misleading or deceptive to describe a business as being successful when it did not have the continued support of its parent company.

The court held that Mr. Moss was induced to enter into the contract by the misleading conduct on behalf of Lowe Hunt and ordered compensation for damages plus all legal expenses to be paid to Mr. Moss for the losses he suffered.

Source: http://www.mauriceblackburn.com.au/legal-services/employment-law/employment-law-services/work-behaviours/misleading-and-deceptive-conduct/#sthash.hVtdeCAK.dpuf

 In both the Morton v Interpro and Anor v Lowe hunt & Partners cases conducted by Maurice Blackburn, the applicant in each case was misled.

In law, the respondents in these 2 cases were legal entities who had given bad advice or misleading that was acted upon in good faith by the ‘applicants’. In both cases, the respondents were held by the presiding courts to be fully accountable for the erroneous or misleading advice.

These two decisions further underscore the absurdly farcical, thoroughly disgraceful AAT finding above which that Centrelink cannot be held accountable for its mistakes simply because Centrelink makes so many of these mistakes that there is nothing “exceptional” about this conduct and therefore welfare recipients who are overpaid because of these frequent errors are partially to blame and , under the “soley” provision in s1,237A of the Social Security Act, therefore welfare recipients must repay the overpayments caused by Centrelink’s ‘Commonwealth errors’.

At this time, that is about $5 BILLION that were most likely caused primarily by Centrelink’s inadequately training, badly over-worked staff making such frequent errors that they are not “exceptional” but in fact the norm a fact made even worse by the inadequate 1980s era ISIS computer system which receives a mind blowing 50 million keystrokes per day, each of which has a 50% margin of error.

These disgraceful AAT decisions occur for two primary reasons; firstly welfare recipients cannot afford the thousands of dollars per day to fight such absolutely disgusting decisions whilst Centrelink has access to taxpayer funds and is prepared to spend $565,000 of this money in legal costs to recover a paltry, by government budget standards, $6,000 from a welfare recipient.

Secondly, the underlying problem is that the ISIS computer system was not fit for purpose when first purchased in the early 1980s and once this was realized, rather than own up to this waste of taxpayer’s money, it is now Standard Operating Procedure for politicians and DHS management to automatically blame welfare recipients for the overpayments and send out “Account payable” notifications in a fraudulent violation of civil rights that the AAT endorses with its unconstitutional, and quite possibly, unlawful, determinations.

Make no mistake, AAT Members ARE aware of the High Court and Federal Court decisions mentioned above. However, in the appeal that I was involved in, the presiding Member ignored the decisions that pre-dated the 2014 hearing in favour of home-town AAT decisions and other court decisions that enabled the AAT Member to rationalize the ridiculous and ordering the welfare recipient to repay the overpayments that I believe do not have to be repaid because they are solely ‘Commonwealth errors.’ Had the welfare recipient that I assisted been able to afford a lawyer and the case was argued in a Magistrates Court, instead of in the AAT, Centrelink’s claim would have been “booted out of court.

[1] Paragraph 7 findings: “The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case.”

In December 2015, Alice Linacre, the Acting Chief Legal Counsel for the department of Human Services ignored these decisions and 2 weeks later 73,000 people were hit with Waivergate 2016! Ms. Linacre had a copy of “The Emcott Report” which included most of the above information.

Emcott cover page

 

At a Malaysian law conference in 2010, a former High Court judge, The Honourable Michael Kirby said:  

“As a principle, the rule of law is essential. However, it is only so as it safeguards and promotes the higher principle of justice. Justice for all. Harmony in society and its laws through justice. Not simply justice for the majority, as expressed in democratic elections. Justice also for minorities. Justice, especially for vulnerable and unpopular minorities. It is when minorities demand the protection of the law that our discipline, the law is tested.” [1]

In his speech to the AIAL lawyers on 27th August 2013, Justice Kerr made the following statements which I have bullet-pointed for clarity:

  1. Thus section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) directs that in carrying out its functions;
  2. the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
  3. Section 33(1)(b) of the AAT Act then directs that the proceedings of the AAT;shall be conducted with as little formality and technicality, and with as much expedition….as a proper consideration of the matters before the Tribunal permit.

The reality of what actually happens is the very opposite. Crown Law lawyers prepare complex documents that are hundreds of pages in length and which quote obscure legal precedents i9n an attempt to legally justify the “solely” component of s1,237(A). Impoverished welfare recipients, who may be functionally illiterate and have no knowledge of the law are not provided with taxpayer funded access to the “privileged expertise” provided to the Secretary of the DHS and the Secretary of the DSS at taxpayers expense.

A very sick joke – the commonwealth as a “Model Litigant”.

Way back in 1912 a court ruled that because of the power that the the Commonwealth had in legal actions and because it was the rule maker in civil litigation the Commonwealth has a duty to act as a Model Litigant. The development of this obligation in conducting litigation can be traced to Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 where Griffith CJ explained it as ‘[t]he old fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects’[1]. In that case the Court criticised that ‘[t]he Crown should not take technical points’.

  1. The idea that the Crown should not take technical points is a joke when you consider the extremes used to avoid being “solely responsible” for Commonwealth errors.
  2. If Centrelink makes a mistake and you do not read the form letters that they send you, that is used as the technical error excuse to claim that the Commonwealth, i.e. Centrelink, was not solely responsible for the over-payment error!
  3. Note that although the Court decision was in 1912, the Model Litigant rules were not introduced until 2005, i.e. 92 years later. This begs the question, why stall on obeying the court ruling for 92 years? The answer is found within the Model Litigant Rules introduced in 2005.The obligation states:
  4. 1                 Consistently with the Attorney‑General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.Nature of the obligation2                 The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency…

[1] Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342.

  • Note that the Commonwealth must act “honestly and fairly” in handling claims and litigation. Dail 13 32 76 to report income and a recorded message message will  state, “For your security this call will be recorded.”
  • When a request was made to have the recording provided, Centrelink would not make it available and the presiding AAT Member did not order that it be made available.
  • That was neither “honest” nor “fair”; it was in point of fact, an abuse of power for the purpose of obstructing justice, i.e. it was a violation of 2 criminal statutes that the AAT Member opted to ignore.
  • This was not justice; rather it was a systemic denial of justice with the AAT and Crown Law lawyers effectively giving the proverbial “1-finger-salute” to the Hellicar principle that it is for the courts to determine “the primary facts of the matter.”
  • What I both witnesses and experienced may best be summed in this statement by the Queensland Chief Justice, Tim Carmody:

“I will not allow this court to become a Dickensian Bleak House, where parties will be ‘tripping one another upon precedents, groping knee deep in technicalities [and making mountains of costly nonsense]’. Otherwise, to cite Dickens, it will become a ‘scarecrow of a suit… so complicated that no man [or woman] alive knows what it means’.”     May 7th 2015 (Brett Cowan Appeal)

I cannot in all honesty recommend the Federal government’s “appeal” system. It makes a farce out the concept of the “Model litigant” to the extent that if evidence has to be hidden to win a case, then it will be hidden. In December 2015 I provided Justice Kerr, the president of the AAT, with a detailed summary of many of the points above, including the classified breaching death toll caused by human rights violating laws, the Hellicar and Bhardwaj decisions and my “sacking” by the Ombudsman’s Office on the 25th November after sitting on the detailed appeal that I had lodged with Adelaide branch of the Commonwealth Ombudsman on the 16th November 2015.25-11-15 Redacted OCO

  1. Apart from being ‘sacked’ by the Ombudsman’s Office, which had no legal right to do so, the only responses to the Hellicar and Bhardwaj case law precedents have been Acting Chief legal Counsel Alice Linacre’s letter  and the failed attempt to violate the civil rights of 73,000 on 1st January 2016.

    7-1-16 Redacted Centrelink response

    This letter was written just hours before the 7 Network blew the whistle on Centrelink’s attempt to by-pass due process of law by electronically billing 73,000 for small claims that collectively amount to tens of millions of dollars.

I cannot show you Justice Kerr’s response to a letter from me dated 15th December 2015 because I have not received any response. If “actions speak louder than words”, then the failed attempt by Centrelink to bully and intimidate 73,000 into repaying amounts of up to $800 is, by ‘A Physical  Act of Omission’ on Justice Kerr’s part, his response to my correspondence.

If the President of the AAT, a Federal Court judge, is apparently prepared to ignore High Court decisions such as Kioa, Bhardwaj and Hellicar, is it any wonder or surprise that AAT Members presiding in appeals do likewise?

I cannot say it too often: Avoid what appears to be an exceedingly corrupt and dysfunctional federal government appeal system if you receive an “Account payable” demand from Centrelink and refer the Centrelink demand for repayment to the police. Do not let the police accept the “computer glitch” excuse used by Hank Jongen on January 7th 2016. Point out that ‘on the balance of probability’, it may have been a deliberate abuse of power that violated s 142 of the Commonwealth Criminal Code Act.

This URL,  http://wp.me/p1n8TZ-u2  

The above short cut URL link can be provided to the police who can then contact me. I can provide them with further evidence indicating why federal politicians and DHS/Centrelink officials should be investigated for both the Waivergate fraud scams and Australia’s “irrelevant” Crimes against Humanity.

QUICK TIP: If you are using Microsoft Windows, right-click your mouse and Copy this website to your computer desktop folder so that you will be able to locate this posting on your desktop screen whenever you boot your computer.  Ronald Medlicott – A Christian advocate for justice in Australia.  

  FOOTNOTES:

[1] The Hon. Michael Kirby AC CMG. “The rule of law beyond the law of rules.” Address to the 15th Malaysian Bar Association Conference, Kuala Lumpa, 29 July 2010.

 

Ronald Medlicott – A Christian advocate for justice in Australia.   make

 

 

 

 

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