Part 3: Australia’s irrelevant crimes against humanity: The destruction of the ANZAC Legacy.

Yarra sinkingAustralia’s “irrelevant” crimes against humanity trample on the ANZAC LEGACY. Did the crew of HMAS Yarra, and another 100,000 courageous ANZACs fight and die so that 40 or 50 years later, the Australian Federal Parliament could ruthlessly abandon their children or their grand-children to total destitution and possible death?

NOTE #1: This article is in 4 major parts:

Note #2″ The short link URL for this posting is: http://wp.me/p1n8TZ-mj

  1. A brief history of the Gallipoli landing and the incredible fight against overwhelming odds by HMAS Yarra.
  2. The death of Sarah, a 79 year woman who was overwhelmed by incredible odds – a fraudulent claim by Centrelink that hounded her to death.
  3. Insight into what government ministers and bureaucrats say about Centrelink’s clapped out “Turbo-charged Commodore 64 …with spoilers”, “Walkman era” computer system and “the 50 million transactions per day that costs hundreds of millions of dollars a year.”
  4. Your legal and human rights when dealing with a demand by Centrelink for repayment of money. This includes case law references that can be used to rebut Centrelink’s fraudulent claims.

 You can scroll down to any section that you like, but I hope that you read Sections 1 & 2 as they are true stories that may help you if Centrelink ever dumps on you.

SECTION 1:

The Legacy of Heroes – The Inspiration to make the world a better place.

  •  Suddenly I realized that I was resigned to all this. I did not like it – I never would – but I accepted it. It was, as I had said, our heritage. This was our world. We could not help what it was like, but by God, we could take it as it was, as it had been left to us, and some day, perhaps we would shatter it to bits and then remould it nearer to our heart’s desire.    WE WERE THE RATS, page 256 Lawson Glassop ©1944                            Horwitz Australian Library 3rd edition 1965

 In 1946, returned service personnel helped to amend paragraph 51 of the constitution so that battlers would always have a helping hand in hard times.

 The Legacy of Cowards.

  •  As it still is in 2015, in FY 2000-01 Breaching was unconstitutional, a violation of legal rights and fundamental human rights. It was deliberately targeted at people who were impoverished, with a high proportion struggling with poor literacy skills and/or serious mental health problems like Depression. Breaching was deliberately intended to prevent these people from meeting even their most basic costs of living for a period of 3-months. Therefore, Breaching was the wilful exposure of life to peril and that constitutes a crime.”
  1.  When, in one year, a national government sets out to deprive 346,078 vulnerable people of the ability to survive without any means of subsistence for a period of 3-months, it is reasonable to assume that this government will achieve some degree of success in preventing the survival of some of the victims who were deliberately placed in peril.
  2. In April 2015, the death toll caused by welfare penalties remains unreported by welfare bureaucrats and is classified as both “confidential” and “irrelevant” by the Australian Federal Parliament!

  Gallipoli (1915) and the sinking of HMAS Yarra (1942).

On the 25th April 2015, Australian and New Zealand will celebrate the 100th anniversary of ‘Gallipoli’, one of the defining moments in the history of these two nations. In the pre-dawn hours of the 25th April 1915, Australian and New Zealand soldiers were part of a British military expedition force that invaded Turkey with the intention of forcing that nation to stop supporting Germany in the war being fought in Europe and the Middle East at that time.

The invasion was a total stuff-up because the ANZAC forces had been landed in the wrong place and the Turkish defenders were courageous, very skilled, and committed to driving the invaders back into the sea. Gallipoli was a disastrous, horrific bloodbath that was concealed from the public behind a seemingly impenetrable barrier of military secrecy and censorship. Fortunately for the ANZAC troops, Keith Murdock an Australian journalist saw first-hand what was happening. 8,000 young Aussies were dead; a cruel fact hidden behind a wall of military censorship which concealed the horror of the Gallipoli blunder, Murdock took it upon himself to personally write to the Australian prime minister and make known the truth that Gallipoli was a fiasco which was draining away the lives of the gallant ANZAC forces. Thanks to his courage in smuggling out the truth, political and public outrage led to the withdrawal of the invading expeditionary forces. Although the invasion had been a military disaster that had ended in defeat, just like the United States War of Independence, the courage and spirit of the ANZAC soldiers had served to unify and develop a powerful sense of national identity in the fledgling, newly proclaimed nations of Australia and New Zealand.

The ANZAC troops went on to fight bravely in the Middle East and on the bloody killing fields in France at places like Fromelles. Although tens of thousands died, many left behind wives and children. In 1918, the survivors of the “war to end all wars” came home and got on with the job of nation-building. They started families and as the years passed, lived with the belief that their children would grow up in a world un-marred by the horrors of war. Sadly, they were wrong.

In September 1939, Australia was once again at war and so some of the old diggers put on new uniforms and helped to train and lead a new generation of ANZACs in the brutal art of war. On December 7th 1941, Japanese naval forces attacked the United States with a devastating attack at Pearl Harbour. At the same time, Japanese military forces launched widespread attacks throughout South-East Asia and the defending allied forces, drained of adequate naval and air power resources by the war in Europe, the Mediterranean, and in North Africa, lacked the assets needed to repel the Japanese attacks. Overwhelmed by the Japanese, retreat to Australia was the only viable option for the battered remnants of allied military forces operating in the Philippines and Indonesia.

Yarra at seaIn the ANZAC tradition: HMAS YARRA.

At 6.30am on 4th March 1942, a small convoy of merchant ships that were fleeing from Java to Australia were attacked by 3 massive pocket-battle ship sized Takao class heavy cruisers, the most powerful cruisers in the Japanese navy. These ships were escorted by heavily armed large Kagero class fleet destroyers.

TakaoThese ships had awesome firepower; with every broadside the massive cruisers could hurl 30 shells, containing some 3 tonnes of explosives, against ships that were 20 kilometres away. The small minesweeper MMS 51, was blasted and sunk leaving only the anti-submarine sloop HMAS Yarra to protect the convoy from this marauding heavy cruiser squadron.

HMAS Yarra was specifically designed to fight against submarines and E-boats, not giant fleet destroyers and pocket-battleship sized heavy cruisers that were twice as long as a football field. HMAS Yarra simply never stood a chance again this heavy cruiser squadron. The ‘sensible’ thing to do would have been to immediately scuttle HMAS Yarra and surrender. The day before this squadron had attacked and sunk a US warship, in just a few minutes and had then machine-gunned the lifeboats and life rafts.

Despite the awesome odds that HMAS Yarra faced, Lieutenant-Commander Bob Rankin, the young captain of HMAS Yarra, had no thought of surrendering. Rankin promptly issued an order to ‘warn the office’ and let the Admiralty in Fremantle know that the convoy was being attacked by a squadron of enemy warships.

Rankin then ordered the convoy to scatter and proceeded to lay down a protective smokescreen by placing Yarra between the enemy and the convoy. Whilst the 3 guns of HMAS Yarra could destroy a surfaced submarine or an attacking motor torpedo boat, these small 100mm (4”) anti-aircraft guns were vastly outranged by the heavy cruisers’ 205mm (8”) guns and could do little more than spoil the paintwork even if they did score a hit on one of these heavily armoured cruisers.

However, such was the tactical skill of Lieutenant-Commander Rankin, and such was the tenacious, fierce response of her gun crews that incredibly, HMAS Yarra survived and fought for an astounding 90 minutes. Only when the ship was a shattering sinking wreck did Lieutenant-Commander Rankin give the order to abandon ship. Tragically, moments later, he was killed by a direct hit on the ship’s bridge.

One man can sometimes make a difference.

Buck taylorOne man. Leading Seaman Ron (Buck) Taylor, disobeyed Rankin’s order to abandon ship as he literally stuck to his gun.

When two destroyers closed in on the Yarra, possibly with the intention of machine gunning the survivors, he opened fire on the destroyers with the one 4” gun that still worked. Whilst a 4” shell could not hurt the cruisers, it could seriously damage the unarmoured destroyers. If a shell hit a destroyer’s torpedo tubes, it could blow the ship to pieces. Hidden by smoke and flames, the lone sailor’s bravery forced the 2 destroyers to stand-off and so any plan to machine gun the survivors was thwarted.

As powerful as the heavy cruisers may have been, they are exceptionally vulnerable to attacks by submarines, a point driven home 2 years later on the 23rd October 1944 when 2 of the cruisers that sank the HMAS Yarra were sunk by 2 US submarines; the IJN Atago was sunk by the USS Darter and the IJN Maya was sunk by the USS Dace.

HMAS Yarra’s valiant 90 minute fight had left the attacking cruiser squadron very vulnerable to such an attack by any allied submarine which may have been drawn to the battle by the sound of the gunfire. Taking time to machinegun the convoy’s survivors was therefore not a prudent option for the squadron’s commander who immediately withdrew from the scene of battle once HMAS Yarra was sunk. Whilst 71 of the survivors were subsequently rescued by passing ships, 34 survivors on life rafts were not spotted. Consequently, several days later when they were finally rescued by a Dutch submarine, only 13 of these men were still alive. It is from the 84 survivors of this short but savage one-sided battle that the story of HMAS Yarra’s epic, courageous fight against overwhelming odds is known.

A propaganda version of the sinking of HMAS Yarra was published by the Sydney Morning Herald on 17th March 1942. Some facts were deliberately falsified in this report and the heroic fight by HMAS Yarra is somewhat down-played to prevent public concern about the might of the Japanese naval forces that were operating close to Australia’s northern coastline.    http://trove.nla.gov.au/ndp/del/article/17792774 )

If HMAS Yarra had not fought so valiantly, and if Buck Taylor had not sacrificed his life to single-handedly fight off the circling destroyers, it is highly probable that there may have been no convoy survivors at all. In the tradition of the ANZACs, the story of the sinking of HMAS Yarra is a saga of incredible heroism under impossible circumstances.

 However, the shocking sequel to the HMAS Yarra sinking is the appalling way in which the Australian federal parliament has treated their descendants! For insight into how some of the descendants of the ANZACs and our nation’s other war heroes have been slaughtered, please read the true story of how ruthlessly uncaring bureaucrats overwhelmed Sarah.

 SECTION 2:

SARAH’S STORY: Hounded to death by Centrelink.

When it comes to a one-sided fight against overwhelming odds, you don’t have to join the military. The true story of what happened to a Queensland woman, ‘Sarah’, drives home the point that a national government with an uncaring attitude of reckless indifference to the plight of vulnerable people can be just as dangerous as any marauding fleet of warships.

 Sarah was 79-years old when she died in 2005 and since she was born in Britain, she was not a descendant of any of the ANZACs who fought at Gallipoli. However, it is possible that some of her family members fought with the ANZACs at Gallipoli or in the muddy hell poetically known as “Flanders Fields”.

 At first glance the death of ‘Sarah’ appears to be from natural causes but a closer scrutiny reveals that her death may have been the inevitable consequence of a brutally insensitive act of systemic fraud by Centrelink. She may have been un-caringly hounded to death by Centrelink in an attempt to recover alleged over-payments. There was scant regard, if any at all, for her life and almost certainly Centrelink violated what is the most basic of all human rights, the Right to Life.

Redacted Sarah Stat DecWhen you read the statutory declaration above that was written by one of her doctors, the key issue to consider is not ‘WHAT’ killed ‘Sarah’;’ rather it the question of ‘WHO’ killed her by imposing upon her “a stupefying and overwhelming thing”* that undermined her medical treatment by imposing traumatic stress of such intensity that her medical treatment was fatally compromised? (* A legal term used to describe an act that results in the unlawful death of a person.)

 The question of who, in a gross abuse of both lawful authority and due process of law, then ruthlessly raided ‘Sarah’s estate on behalf of the Abbott Government in 2014 is also a textbook ‘no-brainer’ question, for the in-your-face answer is the Secretary for the Department of Social Services.

 Centrelink literally hounded Sarah to death to recover overpayments that were made, according to Centrelink, because of a mistake by Sarah. However, all Centrelink claims against welfare recipients when recovering over-payments needs to considered in the light of the following ministerial statements made in press conferences in March 2015.

SECTION 3:

CENTRELINK’S CLAPPED OUT COMPUTER SYSTEM.

On March 9th 2015, the Perthnow website ran a story titled “Welfare IT system costing millons:Abbott”. I recommend that you pay very close attention in this article to these statements from the Social Services Minister, Scott Morrison. You will find this story at:

 http://www.perthnow.com.au/news/breaking-news/serious-attention-for-it-system-morrison/story-fnhrvfuw-1227254679789

  •  “The antiquated system … is costing us tens if not hundreds of millions of dollars in additional costs because data has to be re-entered manually time and time again,” he told reporters in Perth.
  •  “We need to have a proper computer system which is capable of ensuring that people get paid in a timely way … and that all of the administration is as efficient as it possibly can be.”
  •  “Now there are about 10 million welfare recipients, with $400 million spent on 50 million transactions every day.”
  •  “This is a system that still has manual processing attached to it, and it’s been left to basically wither for many years,” he told Sky News.

 Another news media report at that time contained the following statements:

 (Source: http://www.theaustralian.com.au/national-affairs/welfare-systems-face-1bn-upgrade/story-fn59niix-1227254280247 )

  •  “The current Department of Human Services ICT system has been built up since the early 1980s. It is now a labyrinth of inter­connected systems and code that makes it very difficult to implement even relatively straightforward changes in a timely manner, including changes to our standard letters,” Senator Payne told The Australian.
  • “Because the system has been built up bit by bit over three decades, it is now inflexible and costly to change.”
  • “The government is now considering a business case to replace the current ICT system and it is my firm belief that we cannot affor­d to keep the status quo.’’
  • “Changes need to be hard-coded into the payments system, which has 99 templates and 5000 pre-set paragraphs to create each personalised piece of mail.”
  • “They have to be repeated for each type of payment such as the pension, Newstart, Youth Allowance, family tax benefits and Disability Support Pension.”
  • “Up to 36 specialist IT teams comprising more than 100 public servants can be required to make and test the system. Updating ­details or a phone number on a letter can take three months and cost $20,000.”
  • “The McClure report, released last month, recommends simplifying the welfare system from 20 income-support payments with 55 supplements to five basic payments with four supplements.”
  • Department of Human Services secretary Kathryn Campbell told a recent Senate estimates hearing that while the existing computer could cope with minor adjustments, ‘it would be much better to invest in a new system to ensure integrity and flexibility’ “.
  • “While stressing that the government had made no decision, Ms Campbell told the Senate “hypo­thetically, it would not be a good investment” to try to implement the McClure changes with the current computer and “to do the entirety, we would recom­mend a new system”.
  • Mr Morrison has expressed his frustration with the computer, calling it “Walkman-era technology”, and believes a new system would immediately create efficiencies and allow greater data matching with other government agencies to crack down on rorters.
  • “You can’t fix the system if you can’t change the engine which drives that system and makes it work on the ground,” he said. “Even simple changes to policy can be time-consuming, expensive and can have unforeseen impacts on other parts of the system due to the tangled web of code that has been built up over the years.”
  • “When it was built 30 years ago, the computer paid out $10bn a year to 2.5 million people. Now it accounts for $100bn going to 7.3 million welfare recipients — at a rate of $400 million a day. Frequent changes to policy and payments have seen it grow to 30 million lines of code”.*

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

Ron Medlicott: Re that “30 million lines of code”:

Back in 1998 when I undertook training to become a Job Network recruitment consultant, one of the senior people responsible for the computer system pointed out to us trainees that at that time the dreaded “Y2K bug” (which was a programming limitation that could not recognize 21st century dates) was a problem because the original computer system dated back to the 1950s, i.e. back in the ‘stone age’ of computing. We currently have a national welfare computer system servicing over 200 Centrelink offices and 26 call centres located nation-wide that is using 30 million lines of code, some of which dates back to the 1950s, and which includes, ‘back door’, ‘side door’ and ‘trap door’ flaws.

NOTE: According to a senior government official, the CIA has the only other  computer of this type still operating. (Well, that fact is no surprise is it?)========================================================================

 This ancient computer system has been described by Senator Payne as “A turbo-charged Commodore 64 …with spoilers”. It is operated by some 4,000 people who are seriously over-worked, and in many cases, are also seriously under-trained. Centrelink’s 26 call centre operators receive just 6-weeks initial training and have to cope with mind-bogglingly massive workloads using this outdated computer system to service 7.3 million people. Even worse, Centrelink call-centre staff must work with 5,000 pages of complex statute laws which, in the last 20 years, have been subjected to hundreds of complex amendments, one of which saw 15,000 people convicted under a law that did not exist!

This is a system in which errors are the norm; so how do Centrelink and the Federal Government deal with over-payments that are a natural consequence of these systemic deficiencies? Let’s go back to a comment from the first URL which contains details of an interview that Scott Morrison gave to The Australian:

 Mr Morrison has expressed his frustration with the computer, calling it “Walkman-era technology”, and believes a new system would immediately create efficiencies and allow greater data matching with other government agencies to “crack down on rorters.”

 Rorters! If Centrelink’s inadequate computer system, and/or over-worked and under-trained staff, make overpayments to welfare recipients, then Scott Morison’s statement that welfare recipients are ‘rorters’ is blatantly defamatory for the very opposite is true.

 SECTION 4:

KNOW YOUR RIGHTS – THEY  MAY SAVE YOUR LIFE.

As I stated in my last posting, if you dial 13 32 76, you will hear the statement “For your security, this call will be recorded.”

  • Whilst that may sound reassuring, the real-world situation is that if you are overpaid by Centrelink and the recording reveals that it was Centrelink’s fault, the recording will be ‘unavailable’ when Centrelink hits you with a fraudulent Account payable bill that will probably contain the deceptive, maliciously misleading statement, “We are therefore, required to recover this amount.”

 The truth is that the Social Security Act carries a “Waiver of debt due to Commonwealth error” provision in paragraph 1,237A. This states:

 (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

  •  The key word in this is “SOLELY” – if someone who receives an overpayment can be tricked into admitting to an alleged “mistake”, which can be as simple as not reading the bulk form letters that Centrelink sends out by the million, (literally) then it is your fault that Centrelink made a mistake and overpaid you.
  • Centrelink then badgers, bullies and intimidates impoverished welfare recipients with a DEMAND that the over-payments must be IMMEDIATELY repaid.
  • Since these over-payments which can amount to thousands of dollars, the effect of this bureaucratic ‘shock and awe’ bullying is to “stupefy and overwhelm” welfare recipients who do not know their legal rights.
  • However, as Scott Morrison made quite clear in his media interview, Centrelink staff make 50 million (keystroke?) entries every day that results in a ‘cost’ of hundreds of millions of dollars in a year.
  • That ‘cost’ includes erroneous over-payments, and Centrelink leaves no stone unturned, including destroying or withholding evidence, in order to get that money back.

 THE REAL ANZAC LEGACY: PARAGRAPH 51 (XXIII) (A).

After World war 1 finished in 1918, when the ANZAC soldiers returned home, they were loudly hailed as heroes, and then a perhaps no-so-grateful nation abandoned them as they would again when the Vietnam veterans came home 50 years later.

  • During the dark years of the Depression, “civil conscription” was introduced. Some unscrupulous employers would accept lucrative government contracts, sack their employees, and then demand that the government provide ‘suitable’ conscripted labour so that the contract could be fulfilled.
  • In reality, this meant that the sacked employees were re-hired, at little or no cost to the employer, and the government then paid workers just a fraction of the award rates.
  • Civil Conscription was a cruel con job that enabled employers to exploit their workers and make lucrative windfall profits.
  • In 2 world wars, over 100,000 ‘Diggers’ had died. The survivors were determined that they would not be ruthlessly exploited again if they fell on hard times again as had happened during the Depression and in Japanese slave-labour camps in Burma, Singapore, Malaya and Japan.
  • In 1946, when the soldiers, sailors and airmen (and women) returned, they were determined to ensure that the families of their mates would be taken care of. Mates who had been killed in action, or who had died in slave camps like the infamous Sandakan death camp where 2,390 prisoners, mostly ‘Aussie Diggers’, were murdered by the Japanese or killed by starvation, sickness and overwork. When allied forces arrived at the camp, just 6 of the ‘Diggers’ were still alive. http://www.pacificwar.org.au/JapWarCrimes/TenWarCrimes/Sandakan_Death_March.html

 THE REAL ANZAC LEGACY is Section 51, (xxiiiA) of the Australian Constitution.

In 1946, they demanded a referendum and changed the Australian Constitution. Below is the enduring legacy that they gave to their families and their future descendants. It is Section 51, sub-paragraph xxiii(A) of the constitution which clearly reveals how they intended to ensure that in future Aussie Battlers would never again be so easily and ruthlessly exploited:

 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxiii) (A)   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:

A SIMPLE TRANSLATION OF THE ANZAC LEGACY:

Point #1: For the purpose of “peace, good order and good government”, the ANZAC Legacy amendment of the constitution requires that the Federal Parliament make laws for THE PROVISION of a welfare payment to needy people who are unemployed, sick, disabled, elderly, are students, or are parents looking after young children.

 Point # 2: “(but not so as to authorize any form of civil conscription). The significance of this bracketed statement is that Civil Conscription, now called “Work for the Dole”, is UNCONSTITUTIONAL. The Federal Parliament does not have the constitutional power, or the “jurisdiction” to make legislation that:

  • DEPRIVES a person of an unemployment benefit;
  • FORCES a person to work for the dole.

 A core purpose of civil conscription was to force people to perform work at below award rates, an exploitative situation that is currently enforced by the Federal Parliament that has for decades given a 1-finger-salute to the constitutional restriction that welfare payments cannot be used to force people to perform (underpaid) work against their will.

Why Centrelink has “No Jurisdiction”:

In 2002 the Australian High Court ruled in Minister for Immigration & Cultural Affairs v Bhardwaj [2002] 209 CLR 597, that if there is no jurisdiction for a determination (or a decision), then there is “no decision at all”.

  • Over a period of some 4 decades, the Federal Parliament has deliberately exceeded its constitutional jurisdiction and authority.
  • Penalty provisions contained in the Social Security Act, have violated the Constitutional Rights, the Legal Rights, and the Human Rights of some 3 – 4 million Australians.
  • Alleged’ ‘violations’ of unconstitutional mutual obligations –“Work for the Dole” contract, have been used to justify the deliberate termination of welfare payments.
  • It is therefore no surprise that the fatalities triggered by this unconstitutional, human rights violating legislation are still unreported by DSS or Centrelink bureaucrats, and are also considered to be “irrelevant” by both politicians and at least one Crown Law lawyer who represents the Secretary of the Department of Social Services.

 ‘MUTUAL OBLIGATIONS’ includes HUMAN RIGHTS.

Australia has signed 7 human rights treaties, 6 of which apply to adults, i.e. people of 18 years of age or older. Australian politicians often make a big deal about the “Mutual Obligations” of welfare recipients. In doing so, federal politicians strongly emphasize “Obligations” whilst the Federal Parliament’s own “Mutual Obligations” are ignored.

 AUSTRALIA’S HUMAN RIGHTS OBLIGATIONS.

 On 18 December 1972, Australia signed the International Convention for Economic, Social and Cultural Rights (ICESCR) and then ratified this human rights convention by treaty on 10 December 1975. These obligations are NOT ‘optional extras’ under “Mutual Obligations.”

 The ICESCR treaty imposes obligations upon the Federal Parliament that in recent times the Abbott Government has, by both word and deed, attempted to violate, possibly because of the false belief that the Australian Parliament cannot be held accountable for these violations.

 In 2014, Professor Ben Saul, one of Australia’s leading experts on international law and international treaty obligations made this statement:

“The Immigration Minister spat the dummy on international law saying: ‘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.’  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.”

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

It is manifestly obvious to any fair-minded, rational thinking person that the Abbott Government places its ideological beliefs ahead of its Mutual Obligations under international treaties and laws. Every Australian citizen needs to demand that the Abbott Government fully complies with these international obligations.

 On 1st July 1983, in a controversial 4:3 decision, the High Court ruled in the Tasmanian Dams case, Commonwealth v Tasmania [1983] (HCA 21), that Australia’s international treaties took legal precedence over statute laws that contradict international treaty obligations.

  • This decision did far more than save a world heritage listed area of Tasmania; it placed a court enforceable constraint on the powers of Australian politicians to abuse the rights of Australian residents, whether they be citizens, refugees or aged pensioners like Sarah when human rights treaties are ignored or violated.
  • Enforceable in the courts, Australia’s ICESCR Treaty human rights obligations include:

 Article 2: “In no case may a people be deprived of its own means of subsistence” This is the ‘negative right’ not to deprive people of their only assured means of subsistence.

In Australia, that means that people cannot be deprived of a welfare allowance if they are unemployed, disabled, a pensioner, or a parent with young children, et cetera.

 Article 6: “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

  •  Not only do people have the right not to be forced to work against their will, e.g. to be forced to do Work for the Dole or be compelled to do “work experience”; having signed and ratified the ICESCR, the Australia Parliament must actually make laws to prevent any form of exploitative forced labour!
  • Forced labour against a person’s will is a form of slave labour that under international law is no different from the forced labour in the Japanese and Nazi German slave-labour camps.
  • This why Work for the Dole is a human rights violation and any deaths caused by this legislation are, (under Article 7 of the Rome Statute), a crime against humanity.

 Article 9: The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. In addition to having a constitutional right to welfare benefits is you are unemployed, under the ICESCR Treaty, it is also one of the basic human rights for all people in Australia who need assistance in order to subsist.

 THE RIGHT TO LIFE.

The most basic and fundamental right is the Right to Life. This is contained in Article 6 (1) of the International Convention for Civil and Political Rights. (ICCPR)

  Article 1: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

  • Australian federal politicians and federal public servants should be/are well aware of this most basic of human rights as the following Copy and Paste extracts which were copied from the Australian Attorney-General’s web site reveals:

http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Righttolife.aspx

 “What is the right to life?”

“Under human rights law, countries and agents of the country must not deprive a person of life arbitrarily or unlawfully. Countries also have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders.”

 “Australia has an obligation not to impose the death penalty, and also an obligation not to remove a person to another country where there are substantial grounds for believing that there is a real risk of the person being subjected to the death penalty in that country.” Note this 2nd paragraph:

  1.  Andrew Chan and Myuran Sukumaran are currently facing execution by firing squad in Indonesia because the Australian Federal Police passed on information to the Indonesian police knowing that this could result in as many as 9 Australian citizens facing the death penalty in Indonesia.
  2. In doing so, the Australian Federal Police violated both Australian laws and Australia’s human rights obligations to those people. Consequently, Andrew Chan and Myuran Sukumaran, may be executed at any time.
  3. The issue to consider is not whether or not these 2 men “deserve” the death penalty.
  4. Why did the Federal Police, who are supposed to serve and protect ALL Australian citizens, exceed their lawful authority and place the lives of Australians in peril?
  5. By doing so, they violated the legal and international human rights obligations that the Commonwealth of Australia, owes to Andrew Chan and Myuran Sukumaran.
  6. The crucial question for anyone who has ever been, or still is, a welfare recipient is simple; has any Australian federal government, past or present, ever violated your legal rights.

 YOUR LEGAL RIGHTS.

Legislated welfare penalties, commonly known as “Breaching”, violates both your constitutional rights and your human rights to a welfare benefit. In addition, the process known as Breaching also violates your legal rights.

 Do you recall my previous statement about a 2002High Court decision, i.e. “if there is no jurisdiction for a determination (or a decision), then there is “no decision at all”.

 The process known as “Breaching” is unconstitutional and therefore welfare penalties (Breaching) legislation is “statutory fiction”. If you have ever been breached, i.e. had your dole payment turned off, your legal rights have been violated. Sadly, the Australian Federal Parliament is a known serial violator of human rights:

  • The White Australia Policy;
  • The Stolen Generations Policies;
  • Attempting to preempt and undermine the High Court’s Poniatowska Decision.
  • Whatever the medical rational, the government’s decision to withhold family benefits payments from parents who do not vaccinate children is a no jurisdiction The parliament is constitutionally required to provide a welfare benefit . (Article 9 of the ICESCR also requires payment of a welfare benefit to the needy.)

 Many readers may know about the White Australia and Stolen Generations policies but many may not know about the Poniatowska and Keating decisions.

 Poniatowska ([2013] HCA 43.

When Malgorzata Poniatowska discovered that she had pleaded guilty to a crime that the Federal Parliament had accidently extinguished in March 2000, she appealed her conviction in the SA Supreme Court and it was overturned. With the validity of thousands of similar convictions of welfare recipients now in question, the Director of Public Prosecutions (DPP) appealed that decision before the Full bench of the SA Supreme Court. Ms Poniatowska again won the case and so the DPP appealed to the High Court.

 In August 2011, realizing that Ms Poniatowska would probably win in the High Court, the Gillard Government, supported by the Opposition, passed retrospective legislation in the Parliament that was intended to validate thousands of convictions for a non-existent crime! One of the people affected by this retrospective legislation was Kelli Anne Keating.

 “statutory fiction”: DPP (Cth) v Keating [2013] HCA 20.

http://www.abc.net.au/news/2013-05-08/high-court-to-consider-welfare-fraud-laws/4676454

  1. Kelli Anne Keating was affected by the retrospective legislation and challenged its validity with the assistance of Victorian Legal Aid and a legal researcher, Dr Natalie Burgess DJ.
  2. On May 8th 2013 the High Court ruled that the retrospective legislation was “statutory fiction”, a decision that not only overturned Ms Keating’s conviction but some 15,000 of Centrelink’s “10 prosecutions a day” convictions of welfare recipients!
  3. Adding insult to injury for the Federal Parliament, on the same day the High Court handed down its decision in Beckett v NSW, (HCA 17), a decision that meant that people affected by the Keating decision did not have to wait for their own convictions to be overturned by a court before they could sue the Commonwealth for wrongful conviction or wrongful incarceration, et cetera!

Both breaching legislation, now called “Serious Compliance Failure Penalties”, and Work for the Dole legislation are unconstitutional and anyone who has ever been a victim of this legislation can sue the Commonwealth.

  1. Until recently, suing the Federal Government was an unrealistic no-go scenario for welfare recipients; however, in recent times there have been a number of class actions involving hundreds of thousands of people so it is now potentially a viable possibility.
  2.  Anyone considering a class action against the Commonwealth for violation of rights might like to consider emailing law firms like Maurice Blackburn. (Andrew Watson is a lawyer in the class action practice division of this law firm you could consider contacting.)
  3. NOTE: I do NOT recommend contacting Dun & Bradstreet as this law firm could have a serious Conflict of Interest problems because it was hired by Centrelink to coerce a welfare recipient, code named WR-X, when pursuing what was almost certainly a fraudulent tort claim. (See Part 1 of Australia’s irrelevant crime against humanity).
  4. When it comes to a “stupefying and overwhelming thing” that shocked and awed an impoverished welfare recipient, i.e. WR-X, into being coercively compelled, under extreme duress, to reluctantly agree to repay Centrelink’s fraudulent tort claim, even though the issue was being appealed, some of the lawyers at Dun & Bradstreet appear to have demonstrated a very high level of competency in performing this task!

 NOTE: If you do not know your constitutional rights, you should download your own copy of the Australian constitution and check out paragraph 51 (xxiii) (A).

http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution

YOUR RIGHTS: THE ICCPR – “A MATTER FOR THE COURTS”.

Basic legal rights can easily be violated or compromised if people do not know these rights. The International Convention for Civil and Political Rights (ICCPR) not only safeguards the Right to Life; Article 14 also protects the legal rights of people:

  • Article 14recognizes and protects a right to justice and a fair trial. 
  • Article 14.1establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public. 
  • Closed hearings are only permitted for reasons of privacy, justice, or national security.
  • These obligations apply to both criminal and civil hearings, and to all courts and tribunals.

http://www.ask.com/wiki/International_Covenant_on_Civil_and_Political_Rights?o=2802&qsrc=999&ad=doubleDown&an=apn&ap=ask.com

 When it comes to alleged breaching violations, or Centrelink recovering over-payments, or Scott Morrison referring to overpaid welfare recipients are “rorters”, it is for the courts to decide who is responsible for alleged over-payments to welfare recipients, not politicians. These are examples of “tortious conduct” and under the old Magna Carta principles (1215 AD) and the ICCPR, jurisdiction belongs solely to the courts.

 In 1994 the High Court ruled in 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.”

  •  Centrelink’s infamous “Account payable” letters (See the previous posting) are anything but clearly expressed in unmistakable and unambiguous language.”
  • They are straight up fraud because it is up to a court to first decide, based upon an objective and impartial assessment of the facts, as to who was responsible for the error and whether or not the “good faith” waiver of debt provisions in paragraph 1,237A, sub-paragraph 3, may or may not apply if the welfare recipient was in any way responsible, either partly or solely, for any mistake that had occurred.
  • Centrelink employees have no jurisdiction to make legal decisions and until a court determines legal liability Centrelink’s “Account payable” letters of demand are not legally valid.
  • When sent to people with Depression, they are also very dangerous, a fact dismissed as “irrelevant” by a least one Crown Law lawyer!

 In addition to being unconstitutional and a violation of human rights, legislated breaching penalties are also inherently dangerous for they deliberately expose vulnerable lives to lethal peril. Using information contained in federal government documents and research reports, the following definition applies to the 346,078 breaches that were arbitrarily imposed by the Howard Government in FY 2000-01. (1 July 2000 – 30 June 2001.)

It is the wilful exposure of life to peril that constitutes the crime.”

 “Breaching was the targeted, deliberate removal of the only means of subsistence from financially impoverished, functionally illiterate people, many of whom were emotionally fragile and potentially suicidal, so that for a period of 3 months, they were unable to meet even the most basic of their costs of living.” (Note: Breaching was/is wilful exposure to peril.)

 THE HEART OF MALICE: WILFUL EXPOSE TO PERIL.

In 1835, the British Parliament set up a Royal Commission to review Crown statute laws. In a series of reports tabled over almost 10 years, the Commission made some conclusions that are relevant to any fatalities caused by the Howard Government’s enforcement of the illegal breaching quotas that resulted in the 346,078 breaching penalties:

A Conclusion: The ‘heart bent on mischief’ must in this case, and it is apprehended in all others, in the absence of a special definite rule of law which defines what is meant by implied malice, consist simply in the disregard of life manifested by exposing life to peril, although no malice in the popular sense of the term exist against any individual. [1]

  •  TRANSLATION: “although no malice in the popular sense of the term exist against any individual” was a legal principle that applied in the prosecution of Peter Cowan for the murder of Daniel Morecombe.
  • You do not have to intend to kill someone to be found guilty of murder, a legal principle that applies to all of the as yet uncounted and unreported to Parliament, “irrelevant” breaching and fraudulent tort triggered fatalities.

 The Royal Commissioners were also of the opinion that It is the wilful exposure of life to peril that constitutes the crime.”

  • Since then, this logic has influenced literally thousands of homicide cases throughout the British Commonwealth of Nations, as well as in nations that use laws based upon British Crown law principles, e.g. the United States of America.
  • Potentially, this legal opinion could also have implications in regard to the tens of thousands of ‘collateral’ civilian deaths caused by the illegal invasion of Iraq in 2003.

 In FY 2000-01, ‘Breaching’ was the wilful exposure of impoverished people to total destitution, a perilous action that deprived people of the ability, for a period of 3-months, to subsist and therefore, to survive. Such a recklessly dangerous act on such a massive scale involved the total disregard for life by exposing life to peril, not once, but a staggering 346,078 times in a single year! In the 3-year period 2000-2002, some 750,000 people were placed in peril as a direct consequence of the Howard Government’s actions.

  • In the 10-year period, 1997 to 2006, there were 20,914 suicides and, perhaps not unsurprisingly, about 1 in 3 of these suicides was an unemployed person!
  • Just like the 4 ‘Roofgate” fatalities, these deaths were unreported by Centrelink bureaucrats to parliament.
  • Currently, they are secretly classified as ‘confidential’ by the Australian Senate’s Legal & Constitutional Affairs Committee. (2005) These fatalities have also twice been dismissed as “irrelevant” by the Employment, Workplace relations & Education Committee in 2006 and were also recently dismissed as “irrelevant” by a Crown Law lawyer representing the Secretary for the DSS in an appeal before the AAT.
  • Since the Tribunal ignored these fatalities and failed to act to compel the Secretary to disclose any details of these fatalities, by an ‘act of omission’ the AAT has effectively endorsed the Crown Law viewpoint that these deaths are “irrelevant”.
  • There was ‘implied malice’ in the reckless disregard for life in the circumstances that led to the death of ‘Sarah’, i.e. to what extent did the tort action by Centrelink to recover alleged over-payments of $18,000 contribute to Sarah’s death by undermining her ability to cope with her manifestly obvious life-threatening health problems?
  • There was a clearly foreseeable risk of placing Sarah’s life in peril by exposing her to a very traumatic tort that may well have been of comparable dubious merit to Ashby v Commonwealth (No 4) [2012] (1411), a case which Justice Rares described as being of such dubious merit as to bring international disrepute upon Australia’s justice system if he were to endorse Mr Ashby’s tort claim.

 ‘QUOTAGATE’: Long before ‘Rudd’s Roofgate’, there was John Howard’s ‘Quotagate’.

Tony AbbottIn a press conference on 12th February 2010, Tony Abbott blamed Peter Garrett for the deaths of 4 insulation installers. He reportedly told the mass media that if Mr Garrett were a company director in NSW ”…he would be charged with industrial manslaughter”. Mr Abbott then stated that the Government had a hide to attack Barnaby Joyce for his economic gaffes when people were dying in ceiling cavities. That is grossly hypocritical given that Tony Abbott may be concealing something in the vicinity of 2,600+ unreported, secretly classified Performance Indicator Target triggered post-breaching fatalities, a John Howard rip-off that I call ‘Quotagate’.

  1.  Violations of the Right to Life obligation are Crimes against Humanity under Article 7 (1) (k) of the Rome Statute of the International Court.
  2. The refusal of law enforcement agencies, the Administrative Appeals Tribunal and state and territory coroners courts to acknowledge these deaths may have unintentionally opened the way for a United Nations Human Rights Commission investigation into the mounting death toll caused by Australia’s lethal welfare penalties system.

WHO’S BEEN HURT BY THESE VIOLATIONS OF RIGHTS?

The answer to that question is that for the last 3 or 4 decades, the constitutional rights, legal rights and fundamental human rights of our nation’s most vulnerable people have been violated literally millions of times without any thought for the consequences other than the budgetary ‘$avings’ achieved. (Yes, I am accusing the Australian Federal Parliament of committing crimes against humanity for financial gain.) Amongst the people financially harmed or killed by the ruthlessly insensitive actions of Australia’s ideology driven federal politicians and sycophant public servants and lawyers are:

  • The families or descendants of the original ANZACs who fought in World War 1; i.e. children, grand-children and great-grand-children;
  • The families or descendants of the original ANZACs who fought in World War 2; i.e. children, grand-children and great-grand-children;
  • The families or descendants of the service men and women who served in Korea, Vietnam, and more recently, Afghanistan and Iraq;
  • Refugees and immigrants who came to Australia seeking safety and security from oppression and terror;
  • Ordinary Aussie battlers like Sarah who have been doing it tough because they have fallen on hard times due to circumstances beyond their control, or because they have been denied a fair go by those who are too self-satisfied or too complacent to care about their plight.

NOTE: The combined (classified) death toll caused by the ‘no jurisdiction’ welfare penalties and Centrelink’s fraudulent “Account payable” swindle may probably be somewhere between 15,000 and 30,000.

Until such time as there is a Royal Commission of Inquiry, a coroner’s inquest, or a United Nations HRC investigation into the impact of Australia’s legislated welfare penalties (Breachgate), the Howard Government’s illegal “Performance Indicator Targets”, (Quotagate), and the failure of Centrelink and the ARO/SSAT/AAT appeal system to uphold the waiver of debt law and the Procedural Fairness rights of welfare recipients, (Waivergate), on the balance of probability, the death toll will still continue to increase.

According to the Human Services Minister, Scott Morrison, “Now there are about 10 million welfare recipients, with $400 million spent on 50 million transactions every day.” Right now, whether it is 7.3 million or 10 million people who receive a welfare payment, all are at risk of becoming a victim of a “Commonwealth error”, i.e. a mistake either by under-trained and/or over-worked Centrelink staff, or as the result errors by Centrelink’s aging, dysfunctional “Walkman era”, “turbo-charged Commodore 64… with spoilers”, 1980’s era computer system; a system that cannot deliver “ethical” reliability!

7.3 million people represents almost 1 person in 3 in Australia. If you or a member of your family receives a welfare payment from Centrelink, then there is a high degree of probability (1 in 3), that you or a family member could one day become another victim of the Federal Government’s violation of rights and could be placed in life-threatening peril. The key question then is; will you or yours be able to survive this violation of rights?

In 1994 the Victorian Supreme Court was faced with an appeal that involved a death caused by a ‘game’ of Russian Roulette, R v Faure [1999] VSCA 166 (24 September 1999). The Appellate Court left no stone unturned in looking at legal precedents for such incidents. When handing down the Court’s decision Justice Brooking stated:

“As long ago as 1839 it was accepted by the distinguished English Royal Commissioners inquiring into the criminal law that it would be murder if, knowing that one only of two (or three or four) pistols set before him was loaded, but not knowing which one, the accused, for the pleasure of it, picked up one pistol, put it to another person’s head and pulled the trigger with fatal results.”

A 50-50 PROBABILITY: SURVIVE OR DIE.

  1. Legislated welfare penalties, whether they are referred to as ‘Breaching’, or as a ‘Serious Compliance Failure Penalty’, involves “playing” Russian Roulette with the lives of very vulnerable, fragile people. The statistical odds for the survival rates of the 3 -4 million welfare penalties imposed can be accurately calculated using the same mathematical modelling principles used in Faure. However, at the end of the day, the “scorecard” survival rate for any one individual is 50-50, i.e. either they survive or they do not!
  2. Not only were/are these risks known, the lethal consequences of these fatalities were/are callously dismissed as “irrelevant” by those responsible for these deaths.
  3. My personal view, which I believe that any court in Australia, and the International Criminal Court of Justice would endorse is the statement that there is no such thing as an “irrelevant” homicide.
  4. Since 1st July 2002, regardless of the actual cause of death, because welfare penalties are “a stupefying and overwhelming thing” that is intended to place people vulnerable people in peril by removing what may be their sole means of subsistence, breaching fatalities are Crimes against Humanity.
  5. Every Australian politician, bureaucrat, police officer, lawyers or judge involved causing or concealing these deaths should be held fully accountable in accordance with Due Process of Law.
  6. The use of unjust, human rights violating laws, policies and practices to justify fraud and murder in the name of ideologically driven economic rationalistic beliefs is simply not acceptable in any democratic country, especially our country, Australia.
  7. Excuses such as “I was only doing my job”, or “I was only following orders” were not acceptable excuses at the Nuremberg War Crimes Trials. Similarly, when it comes to breaching triggered fatalities, the excuse “I was only upholding the law” is equally unacceptable.
  8. In July 2009, Francis Neale, co-chair of the International Bar Association’s Rule of Law Action Group wrote, “All countries, even those governed by the crudest dictatorship, need or have laws, although the disregard the individual or collective rights of all or parts of the population. Indeed, apartheid was enforced with meticulous attention to form and detail.”

 For over a 100 years Australians have fought and died for this country, not only to oppose and defeat the forces of tyranny and injustice, but also to ensure that Australia would be a safe place to live; a place where struggling battlers doing it tough would receive “a fair go”. On ANZAC Day, when you remember the courage and sacrifice of these brave men and women, spare a moment to remember their most enduring legacy because paragraph 51(xxiii) (A) of the constitution was paid for by the sacrifice of over 100,000 lives.

  • On 1st January 2013, Julia Gillard and Bill Shorten did not honour the ANZAC Legacy when they reduced subsistence level payments to single parents. Why? Because some of those people who were pushed even deeper into the poverty trap by that parsimonious parliamentary penny-pinching are the children or the grandchildren of the men and women who have fought and died so that their children would live in a better world than they had lived in.
  • “I am all in favour of rights. I am also in favour of the rights of taxpayers not to have their money abused”. This irate response by Tony Abbott to the Senate Human Rights Committee’s rejection of legislation that would have deprived young Australians of an unemployment benefit for 6-month was also appallingly wrong.
  • The federal budget cost of these welfare payments to the federal budget does not represent an ‘abuse’ of taxpayers funds. Each time he was elected to Australia’s Federal Parliament and when he was sworn in as the Prime Minister, he made a sworn oath to uphold a constitution that was bought and paid for not with money, but with the blood and sacrifice of our nation’s real
  • On ANZAC Day, you may see one of the not-so-honourable members of our Federal Parliament who may have done their very best to destroy the ANZAC Legacy with murderous, unconstitutional human rights violating legislation.
  • Once the remembrance service is over, don’t be backward or shy in quietly, politely but very assertively, sharing your thoughts and opinions about the unconscionable conduct of Federal Parliament in trying to destroy the ANZAC legacy.
  • Please, is such an opportunity arises, avoid all forms of violence as that would dishonour those whom we Honour.

Did 100,000 Diggers or the valiant crew of HMAS Yarra die for ‘Perksgate’?

 “As elected officials holding public office, Parliamentarians are expected to act with integrity in accordance with the public trust placed in them.” (Source: Page 12, Auditor-General’s Report No.3, 2009-10. Audit Report – Administration of Parliamentarians’ Entitlements by the Department of Finance and Regulation.)

(Perksgate) As the September 14th 2009 email extract below reveals, the Australian Federal Police refused to investigate members of the Federal Parliament who, in 2007, may have rorted a staggering $4.64 Million from the “Parliamentary Entitlements Fund”.

The Federal Police have assisted Centrelink to investigate hundreds of thousands of anonymous reports made on the fraud reporting hotline. However, when federal politicians apparently rorted $4.64 million of our money, the Federal Police flatly refused to investigate even though the swindle had been tabled in Parliament and reported by the news media. Why was there no investigation? Because of “government protocols”, i.e. the Minchin Protocol, and “political debate and inquiry” by the rorters!

 

After the Auditor-Generalworked out that 144 federal MPs had ripped off the

After the Auditor-General worked out that 144 federal MPs may have ripped off the ” Parliamentary Entitlements Fund” to the tune of $4.64 MILLION, the Federal Police again refused to investigate citing almost the same legally invalid reasons as in 2004.

By choosing to ignore these blatantly gross injustices, we are passively choosing to let self-serving politicians continue with their destruction of the ANZAC Legacy?

Michael Kirby, a former High Court judge, once stated that “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]

[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.

Who knows? Perhaps by holding politicians accountable now for the death and despair that they have so willingly inflicted upon our nation’s most vulnerable people for decades, people like Sarah, you may ultimately be saving your own life?

“THE HIGHER PRINCIPLE OF JUSTICE”.

“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.” [2] (Michael Kirby – a former High Court judge.)

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

[1] Commissioners’ 7th Report (1843) 19 Parliamentary Papers, p.24:

[2] 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.

CODA  – “OMISSION” 

The following text outlines why doing nothing can be a serious crime:

COMMONWEALTH CRIMINAL CODE ACT 1995

Division 3 and 4

Division 3 — General

3.1   Elements

(1)  An offence consists of physical elements and fault elements.

(2)  However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3)  The law that creates the offence may provide different fault elements for different physical elements.

3.2   Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

  • the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
  • in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Note 1:       See Part 2.6 on proof of criminal responsibility.

Note 2:       See Part 2.7 on geographical jurisdiction.

Division 4 — Physical elements

4.1   Physical elements

A physical element of an offence may be:

conduct; or

  • a result of conduct; or
  • a circumstance in which conduct, or a result of conduct, occurs.

(2)  In this Code:

“conduct ” means an act, an omission to perform an act or a state of affairs.

“engage in conduct ” means:

  • do an act; or

(b)  omit to perform an act.

“an omission” or “omit to perform an act” – as in not provide evidence in a federal tribunal trial because it would undermine the Federal Government’s case!

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