Beyond the High Court’s “statutory fiction” decision: Politicians are still apparently rorting the system and the Federal Police are still apprently refusing to investigate.

Over a period of decades, federal politicians like Tony Abbott and other members of the Federal Parliament may have ripped off several million dollars from the Parliamentary “Entitlements Fund. However, consistent to the last, the Federal Police still refuse to investigate this alleged rorting by the band of rooters who hide out in the underground rats nest known as the Australian Federal Parliament.Tony Abbott _Section 135

(Source: The Advertiser, page 7, Wednesday October 9 2013)

[Note: The short-link for this URL is:  ]

The information contained appears to clearly indicate that Tony Abbott and other members of of the Federal Parliament may have violated Section 135.3 of the Commonwealth Criminal Code Act (1995) by “obtaining a financial advantage that they were not entitled to receive.” 

What’s the big deal about that? The answer is that Section 135.2 is the criminal code most frequently used by Centrelink (or more accurately the CDPP) to prosecute welfare recipients at the rate of 10 or more people PER DAY for wrongly claiming welfare allowances. The legal term for such gross double standards is “MANIFEST OSTENSIBLE BIAS and the implication for the continued refusal of the Federal Police to investigate politicians who may have violated this law is that the other 30,000 or so prosecutions of welfare recipients by Centrelink.

Below is a letter that I am posting to the SA Chief Administrator of the Department of Finance in South Australia which I hope will be kicked upstairs to Canberra for consideration:

Dear Sir/Ms,

 Re: Section 135.2 of the Commonwealth Criminal Code Act (1995) and the manifestly obvious difference in its application by the Department of Human Services and the Department of Finance and the implications inherent in Justice Moynihan’s findings in Leck vs. Morris; Keating vs. Morris which were handed down in the Queensland Supreme Court on 1st September 2005

 On May 8th 2013 the High Court turfed-out “After the fact” legislation that was intended to ‘validate’ the prosecution and conviction of some 15,000 welfare recipients who had been prosecuted for a crime that did not exist in statute law. The High Court’s contempt for this retrospective legislation is best summed up with the comment that the legislation was “statutory fiction.” As a direct consequence of the Commonwealth vs. Keating decision, most, if not all, of the 15,000 convictions may be overturned. One of the flow-on issues raised by this decision raises the very serious question as to what other “statutory fiction” injustices have occurred that have been detrimental to welfare recipients?

The answer to that question is found in the marked difference in the ways in which the Department of Human Services and the Department of Finance deal with Section 135.2 of the Commonwealth Criminal Code Act (1995).

 The Department of Human Services approach:

This best explained with the following Centrelink advertisement which first appeared in newspapers late in 2005 and which was also advertised on television.Centrelink 10 a day prosecutions

  1. The demand for welfare recipients to tell Centrelink about any changes in financial circumstances was “statutory fiction” because there was no legislation in place that actually required welfare recipients to do this.
  2. Note that in this $10 Million advertising campaign, Centrelink brags about prosecuting people at the rate of 10 people every day! Since about 1 in 3 was not based upon any underlying statute, that is one heck of a legal liability for taxpayers.
  3. A core question then is just how valid are the other 30,000 prosecutions and convictions?

Thanks in part to the constant failure of the Department of Finance to refer possible rorting of parliamentary entitlements by federal politicians to the police, and a “Manifest Ostensible Bias” decision handed down in the Queensland Supreme Court on 1st September 2005, it is highly likely that the legal basis for the other 30,000 convictions being overturned on appeal exists.S_Mail 6-10-13 Abbott pg 10

The case in question that I refer to is Leck vs. Morris; Keating vs. Morris, a case that no only enabled the plaintiffs to avoid being held accountable in the courts for their alleged failure to provide adequate oversight of Dr Jayant Patel’s allegedly lethal surgical activities but may have also played a crucial role in enabling Dr Patel to also escape many of the legal consequences of those activities!

  1. For decades, the approach taken by the Department of Finance when federal politicians brazenly exploit or rort the Parliamentary Entitlements Fund has been to simply demand that the politicians repay the monies that they have wrongly claimed.
  2. This is in marked contrast to the Department of Social Security and its successor, the Department of Human Services, which took the view that when welfare recipients wrongly claimed an allowance of welfare entitlement, that these people should be prosecuted.

A close scrutiny of specific examples reveals some incredibly gross injustices.

Compare the prosecution of 15,000 welfare recipients for failing to report changes in their financial circumstances to Centrelink, i.e. the core issue in the Commonwealth vs. Keating case with a case that I refer to as “Travelgate.”

Falsely claiming a travel allowance for someone who was not her spouse was one mistake. Sacking a whistle blower who knew about this fraud was another. Implicating the Prime Minister in this fraud was real whopper of a mistake, so yes, she certainly made some errors!

Falsely claiming a travel allowance for someone who was not her spouse was one mistake. Sacking a whistle blower who knew about this fraud was another. Implicating the Prime Minister in this fraud was real whopper of a mistake, so yes, she certainly made some errors!

  1. “We all make errors” said Trish Draper, the Member for Makin in May 2004 after it was revealed by a TV station that she had falsely claimed a travel allowance for a person who was not her defacto spouse.
  2. The Department of Finance did not refer this blatant fraud to the Australian Federal Police, perhaps because the AFP would have refused to investigate because of the (political) “gravity/sensitivity” of the matter.

The “gravity/sensitivity” comment is not a sarcastic remark but is taken verbatim from 2 Federal Police responses to my requests that politicians who may have rorted the Parliamentary Entitlements Fund and thus had violated the provisions of Section 135.2 of the Commonwealth Criminal Code Act (1995) by wilfully obtaining a financial advantage that they were not entitled to receive.

Please, check out the documents posted at 1-07-12

Although these documents are the subject of what I believe is an (unlawful) Senate “confidential” classification, I continue to such ‘stuff’ on the web for the purpose of educating my readers about their legal rights, which, if Justice Steven Rares is to believed, are eroded by politicians who exploit the fact that most Australians do not know such basic rights as their constitutional rights.

I strongly recommend that if you read the above mentioned web posting, that you also read the following postings”.           2-07-12 Still more senate classified stuff.          16-07-12   More ‘don’t copy, don’t distribute’ stuff.

The ‘Catch-22’ for the Senate is that to cite me for Contempt of Parliament is to draw world-wide attention to the issues that they prefer to have swept under the carpet.

Comparing the approach used by the Department of Human Services with the Department of Finance when it comes to “errors’ such as that made by Trish Draper is very like comparing apples with oranges. It appears almost as though 2 totally different laws were in play, i.e. a Section 135.2 for welfare recipients and a totally different section 135.2 for federal politicians!

A comparative analysis reveals some very disturbing facts.

Politicians and the rules for “entitlements.”

  1. “Parliamentary Entitlements Regulations 1997 – Statutory Rules No. 318, 1997 as amended” is a 45 page document with a total of 8,112 words.
  2. The 226 members of the Federal Parliament who are expected to comply with this legislation are highly educated professional people lawyers, accountants, doctors, former union leaders and business professionals, etcetera.

Welfare Recipients and the rules under the Social Security Act.

  1. Compare this with the “Social Security Act 1991” which comes in 5 volumes totalling a massive 2,671 pages and a thoroughly mind boggling 684,817 words. The Social Security Act is literally 84 times larger and far more complex than the Statutory Rules for parliamentary entitlements!
  2. In 2006 the Australia Bureau of Statistics released a report[1] that revealed that 46% of Australians are “functionally illiterate” with the largest identifiable group being in the ranks of the nations unemployed, i.e. welfare recipients.
  3. In 1999 the Commonwealth Department of Health and Aging released a report[2] that indicated that the highest levels of mental health problems were amongst the ranks of Australia’s unemployed, i.e. amongst the ranks of the nation’s welfare recipients.

The situation is that whilst the highly educated politicians who make the nation’s laws only have to apologize and say “I made a error”, they are not investigated and not prosecuted for failing to understand 8,112 words of obligation whilst functionally illiterate welfare who may have serious mental health issues are prosecuted at the rate of 10 a day for failing to understand 684,817 words of obligation!

“Ignorance of the Law is no excuse.”

The view expressed by Centrelink officials and prosecutors from the Commonwealth Director of Public Prosecutions has for years been that whether or not welfare recipients intended to break the law, and whether or not they knew that they had broken the law, at the end of the day, “ignorance of the law is no excuse.”

With the Howard Government spending some $10 million of taxpayer’s money pushing the “10 people prosecuted a day” message in the 2005-06 financial year, the crucial question now is why is that this statement does NOT apply to federal politicians, e.g. Tony Abbott or the former prime minister Julia Gillard, or to any of the politicians identified in Auditor-General’ Report #3 that was tabled in the Federal Parliament in September 2009.

Paragraph 5 of the Australian Constitution states:

 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, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war …

Either the Department of Finance complies with this constitutional provision in the same manner that the Department of Human Services complies with this legislation or else some 30,000 convictions are at risk of being overturned on appeal on the basis of “Manifest Ostensible Bias.”

  1. Politicians are literally “agents” who act on behalf of their “principals”, i.e. voters, and as such politicians have no greater powers or privileges under the constitution than the members of the public whom they serve.
  2. In the same manner, Public Servants are also “servants’ or “agents” who act on behalf of their “principals”, i.e. the public, and as such they no power to over-rule the constitutional provision that “all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State.”
  3. At the June 2013 AGS Law Administrators Conference, Justice Rares presented a paper that contained the following statement:

“The Courts presume that legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication in respect of “important common law rights”, such as:

  • the right to personal liberty;
  • trial by jury;
  • taking property without compensation;
  • procedural fairness;”
  1. When it comes to “clear words”, the constitutional imperative that “all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State” is a very clearly worded statement. There is no ambiguity in this statement at all for a great deal of effort went into the wording of this constitutional provision for the express purpose of ensuring that Australia’s (criminal) justice system was totally impartial.
  2. A question that needs to be seriously considered and answered is why do Department of Finance officials believe that they do not have to comply with the constitutional imperative that the law is binding upon everyone, including federal politicians who may have either unwittingly or deliberately violated Section 135.2 of the Commonwealth Criminal Code Act (1995)?
  3. The legal and constitutional reality is that whether impoverished, functionally illiterate welfare recipients or prime ministers violate Section 135.2 of the Commonwealth Criminal Code Act, both are equally accountable before the Law, in precisely the same manner.
  4. If they are not held accountable in precisely the same manner, then there is no Equality Before the Law.

The latest excuse offered by the Australian Federal Police for not investigating a number of possible violations of Section 135.2 by Prime Minister Tony Abbott and other federal politicians is that the Department of Finance has not asked them to investigate! That excuse is perhaps most aptly defined by the 4-letter acronym C.R.A.P., i.e. Completely Ridiculous And Pretentious. It turns a blind eye to the fact that for almost 10 years, as many as 10 Federal Police officers have been assisting Centrelink to investigate and charge welfare recipients at the rate of 10 people per day.

The Federal Police do not need the permission of the Department of Finance to investigate possible violations of Section 135.2 by federal politicians for, by Act of Parliament, it is the responsibility of the Australian Federal Police to investigate violations of federal laws.

The AFP was not set up 34 years to only investigate crimes if senior public servants gave them permission to so and yet, if the Federal Police are to be believed, that is the state of play at this time. As stated 3 paragraphs above, that is C.R.A.P.

As a matter of the utmost urgency, the Department of Finance leadership needs to issue a public statement that if the Australian Federal Police believes that Section 135.2 has been violated by federal politicians, or if they receive complaints from the public in regard to alleged rorting by politicians, then regardless of the parliamentary position or public status of these politicians, the Federal Police are under both a statute law obligation and a constitutional obligation to impartially investigate these allegations in the same manner that they assist Centrelink’s investigators to investigate the thousands of anonymous calls received by Centrelink on its fraud reporting hotline each month.

To refuse to issue such a public statement, or to refer previous indiscretions or “errors” made by federal politicians that are not beyond any statute of limitations that may apply to Section 135.2, is to open the door to 30,000 “Manifest Ostensible Bias” appeals by welfare recipients who have been convicted of violating Section 135.2. Perhaps of even greater significance, as I distribute the ‘do not copy, do not distribute’ documents that are the subject of Senate suppression tactics to lawyers representing clients accused of other crimes, it is highly possible that just as Commonwealth vs. Keating is a decision that impacts another 15,000 prosecutions, a win by one person on the grounds of Ostensible Bias may well flow-on to thousands of other serious criminal law cases that at the moment are in the pipeline.

In May 2002, Senate Vanstone made headlines across the nation with her strident claim that the Howard Government would “crack down on rorters.”[3] However, whilst welfare recipients have been persecuted/prosecuted at the rate of 10 people a day since that time, many for a non-existent crime, to the best of my knowledge, the Department of Finance has never prosecuted 1one politician even though millions of dollars in over-payments have been made as a result of wrongful claims. If I am wrong about that last statement and politicians have been prosecuted for allegedly rorting parliamentary entitlements, please send me a list of names, dates and amounts involved.

Enclosed with this letter is a copy of a letter that I initially sent to the Australian Federal Police in June 2013. After two months without any response, I sent a copy of this letter to the South Australian branch of the Australian Federal Police. I am still waiting for a response.

Complaint 2012 – 109928 was a multiple issues complaint lodged with the Office of the Commonwealth Ombudsman. One of the issues lodged was the refusal of the Federal Police to investigate the Trish Draper “Travelgate” issue and the possibility that the Howard Government had misused its lawful authority to defraud welfare recipients of legitimate welfare entitlements, i.e. the Howard Government had, by Acts of Commission, violated Section 135.2 and gained a (massive) financial advantage that it was not legally entitled to receive by illegally applying breaching quotas thinly disguised as “Performance Indicator Targets.”

 In a blatant defiance of both the constitution and statute law, the Federal Police refused to investigate. As the letter posted on the first mentioned web page clearly reveals, the police indicated that even if crimes had been committed they would not investigate because of an implied case load and the (political) “gravity/sensitivity” of this issue which is made even more complex by the fact that if this fraudulent activity had resulted in any fatalities in New South Wales or South Australia, then they would be Felony Murders.

Tony Abbott may indisputably be the Prime Minister of Australia. However, because of the repeated refusals of the Federal Police to uphold either the constitution or statute law, the Honourable Tony Abbott may also be a far less than honourable rooter  of parliamentary entitlements. If the “Performance Indicator Targets”, first reported by Cheryl Kernot in a press release dated 27th June 2000 and confirmed by Centrelink staff who gave testimony to the Independent Pearce Inquiry, resulted in any fatalities as a consequence, then Tony Abbott may well be in violation of the above mentioned felony murder laws. Facts do not cease to exist just because they are ignored. The way in which the Department of Finance deals with wrongful claims by highly educated politicians MUST be in precisely the same manner as which the Department of Human Services daily deals with impoverished, functionally illiterate welfare recipients who may have wrongfully claimed an allowance or benefit to which they are not entitled, i.e. the Department of Finance must impartially “crack down on rorters’ in precisely the same manner as has been happening to tens of thousands of welfare recipients.

After you read Federal Agent Pearce’s response to my request for the Federal Police to investigate the rooting reported by the Auditor-General in Report #3, have a listen to the interview with the former Finance Minister, Senator Wong.

 This interview was broadcast on the ABC’s AM program on the morning of May 12th 2012 and is of interest because she totally demolishes some of the logic used by Agent Peace, i.e. the idea that because the issue had been debated in the Federal Parliament, the Federal Police did not need to take any action.

The reality is that the C.R.A.P. justice that has protected politicians whilst dumping on welfare recipients is beginning to break down. When that happens, the situation is likely to “blow” with all the suddenness of Krakatoa and those public servants who have abused their positions of authority to obstruct justice or to pervert the course of justice may well suddenly find themselves accounting for their actions in a court of law.

Yours truly,

 Ronald Medlicott. GDA, Dip T, Cert FLM.

References listed in this posting:

Commonwealth Department of Health and Aged Care and Australian Institute of Health and Welfare (1999) National Health Priority Areas Report: Mental health 1998 . AIHW Cat. No. PHE 13. HEALTH and AIHW, Canberra.

 [3]  Hansard May 30th 2002. Refer to the 9:56 am speech by Wayne Swan, which is found in Hansard on page 2,717 re Senator Vanstone’s “crack down on rorters” remark and the mass media’s response.

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