Machiune Gunning the Welfare Life Boat: Pages 13 to 15. (Part 5 of 7 parts.)

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’s unilateral imposition of compliance measures.

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 if it were to accuse a non-welfare entity of ‘non-compliance’ with contractual obligations. If such a dispute could not 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.

Even though it has entered into hundreds of thousands of contractual agreements, as a Commonwealth agency, Centrelink’s obligation is to comply with Paragraph 75 (iii) of the Constitution in each instance were it believes that non-compliance has occurred. In a contractual compliance dispute between Centrelink and any 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 current 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 vulnerable welfare recipients being deliberately placed at a higher level of risk. For obvious reasons, the death toll from this recklessly dangerous injustice currently remains unmonitored and thus 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.

Issue #3: Human Rights Violations.

In August 2003, I filed a complaint with the Australian Human Rights and Equal Opportunity Commission (hereafter referred to as HREOC) alleging that the policy known as ‘Breaching’ violated 24 basic human rights as set out in the United Nations Universal Declaration of Human Rights.

  1. Eventually I received a long winded response from HREOC which pointed that I was incorrect in that the right to a welfare benefit had been removed from the Universal Declaration of Human Rights in 1986.
  2. HREOC did not refute the other 23 violations listed.
  3. I was informed that HREOC’s charter did not allow it to investigate complaints made against the Department of Social Security in regard to possible human rights violations!
  4. That was the same year that the Social Security (Administration) Act 1986 was legislated with a staggering 66 different ways to deprive a welfare recipient of a welfare benefit.
  5. It was also the same year that the Australian Human Rights and Equal Opportunity Commission legislation was drafted.

The conflict between the human rights violations contained in the Social Security (Administration) Act 1986 and the HREOC legislation would have been clearly evident to some of the people involved in the formulation of these two pieces of legislation. If HREOC’s charter was framed in such a manner as to prevent HREOC officials from investigating human rights complaints made against the Department of Social Security’s implementation of breaching legislation then the legal ramifications are of enormous magnitude.

A deliberate decision to knobble HREOC in this manner would mean that the human rights violations inherent in the breaching process were a premeditated activity made without regard for the any of the reasonably foreseeable consequences such as breaching triggered fatalities!

  1. A deliberate decision to perpetrate human rights violations against At-risk welfare recipients would represent a callous and reckless disregard for any and all downstream consequences, whether intended or not intended.
  2. As I have previously pointed out, a reckless disregard for human life that results in a death is a very serious crime, e.g. Felony Murder or Manslaughter by Criminal Negligence.
  3. Every act of Breaching/Compliance Measures thus represents “The targeted, and therefore deliberate, partial or total removal of the only means of support so that At-risk people are either less able or totally unable to meet their critical basic costs of living”.
  4. With some 3 million people affected by ‘Breaching/Compliance Measures’, this represents some 69 million human rights violations that deliberately targeted “At-risk” victims.
  5. With some 3 million people affected by ‘Breaching/Compliance Measures’, this also represents some 3 million deliberate acts of Reckless Endangerment.
  6. The deliberate, premeditated decision to breach “exceptionally vulnerable” welfare recipients represents reckless, dangerous actions that wilfully places lives in serious danger in order to comply with legislation that is of highly questionable morality, merit or legality.
  7. In recent correspondence to all 226 members of Federal Parliament, I expressed the viewpoint that supporting breaching legislation was supporting an Act of State Terrorism.
  8. The fact that the death toll from breaching is unpublished, denied, secretly classified as confidential and is the subject of multiple Parliamentary Privilege suppression orders, is exceedingly strong evidence that there is an awareness by both politicians and bureaucrats that Breaching/Compliance Measures triggered deaths are unlawful.
  9. Assistant Secretary Skill’s unguarded comments about Centrelink management not collecting Post Breaching Terminal Outcomes statistics may represent a serious legal error.

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