Compliance is a two way street:- Part 4 of 5 parts.

Are “Compliance Measures” valid?

Given the well known and widely reported humanitarian consequences of compliance measures, plus the unreported Post-Breaching Terminal Outcomes, it is vital that the question be asked, are these Breaching/Compliance measures valid?

I hope that previous comments have made it quite clear that Breaching/Compliance Measures involve “A reckless disregard for human life” that is a serious crime. Where Breaching/Compliance Measures have resulted in a death, regardless of the actual cause of death, these deaths may be able to be re-classified as “Felony Murders” in South Australia or re-classified as “Manslaughter by Criminal Negligence” in Victoria and other states.

Clearly, any decision which, even as an unintended consequence, can turn out to be a death sentence, is not a decision for Centrelink clerks with no professionally accredited legal or mental health training. Since the judiciary can no longer issue a death sentence, is it appropriate to give what are known to be life and death powers to Participation Solution Teams?

Both the Criminal Justice implications and Common Law Tort implications raise serious doubts that the current “Compliance Measures” are a reasonable approach to ensuring that welfare recipients comply with their “obligations’. The phrase “Compliance Measures” implies that there may be a legal or contractual obligation that has been deliberately and wilfully not complied with. The word “Measures” implies that a penalty has been unilaterally imposed for the alleged non-compliant breach of contract. In essence, “Compliance Measures” means that Centrelink staff have detected a perceived Breach of Contract and the Participation Solutions Teams have made a judgement about this alleged breach of contract and unilaterally imposed a “Breach of Contract” penalty.

From an administrative perspective, this process seems like a highly efficient system for dealing with hundreds of thousands of “contracted” welfare recipients. However, from a broader, real-world perspective, this system is flawed because it is inconsistent with issues such as Equality before the Law, Natural Justice, Due Process of Law, the Protection of the Courts and the Presumption of Innocence.

Paragraph 5 of the Australian Constitution contains the following statement:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth,

  1. Note the underlined words. “…binding” means that compliance with the law is a binding responsibility for “courts”, “judges” and people of every State and of every part of the Commonwealth,
  2. “… the people of every state and every part of the commonwealth” was the unique Australian people’s comprise way of saying that, no exceptions, the law applied to everyone. One implied purpose was to prevent Parliament from legislating special or unique privileges that put politicians and/or the Public Service above the Law.
  3. Ensuring binding compliance is the responsibility of the courts, not politicians nor public servants who may have absolutely no legal training whatsoever. One former government politician, Pauline Hanson, only had a Year 10 high school education and, like many of her parliamentary peers, had no legal training.
  4. Ensuring that the courts function in accordance with Due Process of Law to ensure binding compliance with the Law and the Constitution is the responsibility of Judges. A critical part of this Due Process is The Presumption of Innocence.
  5. The phrase “Protection of the Courts” refers to the Presumption of Innocence and ensuring that Due Process of Law is correctly observed at all times and it is the impartial responsibility of the Judiciary to undertake this task.

With the majority of members of the Federal Parliament lacking the necessary legal training and the years of court room experience required to be member of judiciary, it is entirely inappropriate for politicians to enact laws that contain provisions such as Centrelink’s “Compliance Measures” that fast track a Breach of Contract dispute process as an administrative process rather than treating the dispute as precisely what it is, as a legal issue involving a contractual dispute that can only be impartially resolved in a court of law.

Paragraph 75 of the Constitution: Original jurisdiction of High Court. . In all matters–

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

Breaching legislation deliberately avoided the jurisdiction of the courts by not suing for an alleged breach of contract but instead making it an “administrative process”. Since all other Australian residents are protected by the courts and must be sued by the Commonwealth if an alleged Breach of Contract occurs, welfare recipients have had their constitutional right to the protection of the court violated by Centrelink.

The Denial of Natural Justice.

For everyone, except welfare recipients, if an alleged Breach of Contract with the Commonwealth occurs, the matter is either resolved through consultation or mutually agreed independent dispute resolution processes. The key word is “alleged” for that is the Natural Justice limit of Centrelink’s authority when accusing non-welfare entities. If the alleged dispute cannot be resolved through these mediation processes, then one or more parties involved in the dispute may seek to have the matter impartially resolved through the courts.

Paragraph 75, (iii) of the Australian Constitution makes it quite clear that one of the powers of the High Court is to resolve Breach of Contract disputes between the Commonwealth and other parties who may have entered into a contractual agreement with the Commonwealth.

Centrelink is a Commonwealth agency that has entered into hundreds of thousands of contractual agreements with individuals seeking welfare support in order to meet their “basic costs of living”. In a contractual dispute between Centrelink and a welfare recipient, if the dispute cannot be resolved by mutual agreement, then it is a matter for the courts to resolve impartially using due process of law, statute law and case law precedents. It is most definitely not the responsibility of Centrelink employees, i.e. the Participation Solutions Teams, to determine the outcome of alleged breach of contract disputes. They do have a genuine role to play in the negotiation process, but if agreement cannot be reached, it is NOT their responsibility to usurp the power of the courts and to make judgements and impose penalties.

The entire Compliance Measures process is one in which there is a complete Denial of Natural Justice, a situation which no court should tolerate, in which Centrelink is the Accuser, Judge and Executioner. This “administrative” process made a total mockery of our nation’s system of Justice. It was/is made all the worse because it was/is a sometime fatal process that was, and still is, deliberately targeted at a defenceless minority.

It was/is a system that was/is incredibly ripe for misuse for without the protection of the courts, and no effective external oversight to prevent systemic misuse, welfare recipients were “Fair Game” for predators both within and external to the welfare system.

Here’s how the Kangaroo Court process worked under the Howard Government and former ALP governments:

1. The alleged breach of contract was usually not checked or verified, merely processed.

2. The alleged breach of contract could be for extremely trivial reasons, e.g. personal appearance at a job interview deemed “unsuitable” by an employer.

3. There was often no discussion or negotiation with the person accused of breach of contract due to case loads of 80 or more clients, or worse, no case manager at all.

4. The person was automatically presumed guilty of a breach of contract, i.e. there was no Presumption of Innocence.

5. Computer processing meant that a penalty was imposed instantly. When I was a Job Club manager in 1995-96, the penalty was often imposed without prior notification.

6. There was no pre-breaching impact assessment to evaluate the humanitarian impact of the breaching penalty that would be automatically imposed.

7. There was no post-breaching follow up to evaluate the humanitarian impact of the breaching penalty that had been imposed.

Compare points 6 and 7 above with the situation reported in the 2008-09 annual report:

Eligible job seekers had their essential expenses paid up to the limit of the income support they would otherwise have received. Essential expenses include reasonable costs of living, such as food and other household provisions (for example, laundry detergent, and personal hygiene and pharmaceutical products), rent, mortgages, medical expenses, rates, gas, electricity, telephone, public transport and other reasonable costs.

The failure to conduct either pre-breaching or post-breaching impact assessments or to provide the above listed life preserving humanitarian support triggered a rolling humanitarian disaster of unparalleled proportions with some three million At-risk welfare recipients being deliberately placed at risk over a period of decades. For obvious reason, the death toll from this recklessly dangerous injustice currently remains unreported.

The failure to highlight the very first death(s) in official reports established a “3 Wise Monkeys” mentality that allowed Breaching to become a humanitarian disaster that affected 3 million Australians and which killed randomly and indiscriminately.

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