“…the matter should proceed to trial on that date” said the Crown Law lawyer representing the Department of Social Security.
“Thank you” said the presiding Administrative Appeals Tribunal Member who then moved on to discuss whether or not another conference on the matter was merited so that I could be “brought up to speed” on the case.
So, what’s the big deal about that those comments? The answer to that question is provided by the statement below. This was made by a judge who was giving a speech to lawyers about the powers of the Administrative Appeals Tribunal.
“Keeping the AAT from Becoming a Court:” The Hon. Justice Duncan Kerr Chev LH
Ch III of the Constitution mandates a strict separation of powers which prevents the conferral of judicial power on any tribunal other than a court and precludes the admixture of Commonwealth judicial and non-judicial functions on a federal tribunal.
AIAL (NSW) Seminar, Sydney 27 August 2013
A year after the above statement about the “separation of powers”, we have a Crown Law lawyer saying at an Administrative Appeals Tribunal Directions hearing that “…the matter should proceed to trial”.
My message to The Hon. Justice Duncan Kerr Chev LH and the lawyers who attended that seminar, is tough luck judge, regardless of what the constitution, the law, the courts and judges like yourself may say, the Administrative Appeals Tribunal is being run as a court system and has been doing so for yonks!
How could this have happened?
Here are a couple of clues:
CLUE #1: The statement below statement was made by D G Jarvis LL.B.(Hons) FAICD; Deputy President, Administrative Appeals Tribunal. Administrative Law Seminar conducted by the Law Society of South Australia on 16 March 2007.
“The structure of the Tribunal is based on the judicial model, in that it has power to summons witnesses and documents, to receive evidence on oath or affirmation, to direct parties to attend a conference, and to require documents to be lodged. Further, the parties are entitled to be represented, and the Tribunal is required to give reasons for its decision.”
[MY TRANSLATION OF THAT:] The Federal Parliament set up the AAT “like a court” but without the constitutional powers of a court because the constitution does not allow administrative and legal decision making to mix. Like most things devised by politicians, in theory it sounds good, but in practice it not so good, i.e. it is a stuff-up!
CLUE #2: The next statement below comes from “Appearing Before the AAT : a Non-adversarial Approach.” The Hon. Justice Deirdre O’Connor. New South Wales Bar Association Seminar, Monday 10 May 1999.
“Sir Gerard Brennan, when marking the 20th anniversary of the AAT, remarked that the AAT has always been in a curious position straddling the divide between executive power and the exercise of judicial power. He noted that this allowed two possible paths of development for the AAT – the administrative model or the judicial model. He readily acknowledges that under his Presidency the AAT followed a judicial model.”
[MY COMMENT:] There is an old saying that “power corrupts and absolute power corrupts absolutely.”
When he was the President of the Administrative Appeals tribunal, Judge Brennan apparently decided that since he was the proverbial King of the castle, that he would do things his way. Being a highly respected judge with a long and distinguished career in the legal professional, it was only natural that Judge Brennan would mold the newly established tribunal into something consistent with his vast professional experience and his personal values, i.e. a quasi-court system.
Here is what the Administrative Appeals tribunal Act actually says:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
Note part (b) that the Tribunal must be “fair”, “just” and “informal”. So where in this criteria is there any leeway to set up a quasi-court system that is “accessible” to people on the dole who cannot afford lawyers.
When it comes to “quick”, it is a case of “To whom the benefit”? It is most certainly a “quick” system for the federal Government when trying to claw back Commonwealth error over-payments that the government has no legal right to reclaim because of the Waiver of debt due Commonwealth error law in paragraph 1,237(A) of the Social Security Act.
- As the example detailed in pages 25 -29 of the 26th February 2015 Hansard Minutes of the Australian senate’s Community Affairs Legislation Committee reveal, the Secretary of the Department of Human Services (Ms Kathryn Campbell) has spent $565,000 trying to recover the sum of about $5,700 from a welfare recipient!
- Just how ell does that fit in with the statutory obligation to be “economical”?
- “Quick”? Certainly for a team of Crown Law lawyers who club together and pool their knowledge, and then with the taxpayers funded administrative support of legal secretaries, photo-copiers, et cetera then whip a massive “Statement of facts and Issues ” that is about 300 -400 pages in length!
- Where is the “fairness” in having spent, on average according to Ms Campbell, some $25,000 of taxpayers money on preparing this case with its massive Statement of Facts and Issues, it is dumped upon a poverty stricken welfare recipient who has to survive on $37.20 a day?
- There is no fairness or justice in this unconstitutional work-around to a fair trial as is required by Article 14 of the International Convention on Civil and Political Rights which specifies that people are entitled to a fair trial.
The ultimate abuse in this system, apart from the withholding of evidence such as telephone recordings of who said what when people report their income to Centrelink, is the injustice that i highlighted in my previous posting, i.e. the High Court’s Hellicar Decision on May 3rd 2012:- Australian Securities and Investments Commission v Hellicar  HCA 17 at Paragraph 143
“The proposition that the public interest requires that the facts upon which a regulatory authority relies must be facts that “actually occurred” appears to require that regulatory agency to make some final judgement about what “actually occurred” before it adduces evidence. Deciding the facts of a case is a court’s task, not a task for a regulatory authority.”
- Do you get the implication in the last line?
- Deciding the facts of a case is a court’s task, not a task for a regulatory authority.”
- Centrelink may decide that a welfare recipient has been overpaid, but it is a matter for the courts to determine who was responsible for the cause of those over-payments.
- In paragraph 141, the High Court also determined“…that the public interest can only be served if the case advanced on behalf of [a] regulatory agency does in fact represent the truth in the sense that the facts relied upon as primary facts actually occurred.”
- Centrelink cannot withhold evidence as is call too commonly the case. In fact, the AAT Act actually requires that all relevant evidence be tabled for consideration, even the stuff that blows Centrelink’s case out of the water:
- 37 Lodging of material documents with Tribunal – Scope (1AAA) This section does not apply to a proceeding in the Security Division to which section 39A applies.Decision‑maker must lodge statement of reasons and relevant documentsDecision‑maker must lodge material documents
(1) Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
The law, as set out above, requires that “documents’ which can include audio or video recordings, MUST, with 28 days after receiving notice of the application” lodge a copy withe tribunal. under the Evidence Act rules, this must then be provided to the applicant, e.g. the welfare recipient who lodged the appeal.
- In the case that am involved in, all efforts to obtain the audio recording of the conversation at the centre of the dispute have proved futile. Despite my hammering home the point to the Tribunal that there was “no factual certainty” in the case, the AAT Member running the case allowed it to go to “trial” without the recording just 28 days later.
- What sort of justice is it when Centrelink can be allowed to violate the law and withhold evidence? This is a very serious crime under 142.2 of the Commonwealth Criminal Code Act, i.e. it is literally an Abuse of public office
(1) A Commonwealth public official is guilty of an offence if:
(a) the official:
(i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or
(ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or
(iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and
(b) the official does so with the intention of:
(i) dishonestly obtaining a benefit for himself or herself or for another person; or
(ii) dishonestly causing a detriment to another person.
Penalty: Imprisonment for 5 years.
Paragraph 2 (d) of the AAT Act requires that “the proceedings of the promotes public trust and confidence in the decision‑making of the Tribunal.”
Ask yourself this, what sort of justice is it that upholds Centrelink decisions when:
- Centrelink has no constitutional authority to make judgements that are literally the constitutional jurisdiction of the courts;
- Withhold evidence in violation of federal laws?
- Swears in welfare recipients, but the Secretary of Centrelink who is responsible for the original claim is no-where in sight!
- Ignores human rights that are protected by statute law, e.g. Schedule 2 of the Human Rights Act?
- Only questions welfare recipients but does not ask questions about counter-claims by welfare recipients, e.g. my statement that“In the 10-year period from 1st January 1997 until the 31st December 2006, there were 20,914 suicides; a significant percentage of which were unemployed people. It is not possible to state precisely how many were post breaching fatalities because Centrelink does not collect the data, the Federal Parliament has secretly classified the death toll as “confidential” and “irrelevant”… the Australian Federal Police has refused to investigate [these deaths] because of the “gravity/sensitivity”. Due to a calculation error, this statement incorrectly under-stated the true death toll which was 23,254. Approximately 1 in 3 suicides, i.e. about 7,700 of these people were unemployed at the time. –Do not kid yourself, I was accusing the Howard Government of mass murder and the tribunal Member had the power to order centrelink to hand over the statistical data that would confirm or refute that statement. Instead the Tribunal Member ignored these statements!
- Why was this so? Could it have been because the death toll was already known to the Member, and since they are crimes against humanity, the Member was not going to reveal these fatalities in a federal “trial” because of the massive national and international ramifications that the Victorian Coroner, Judge Ian L Gray, referred to in his letter to me dated 28 October 2014:
Based upon my experience over the last year, it be most unwise, indeed, extremely foolish to presume that the AAT’s unconstitutional ‘quasi-court’ system of justice will deliver fair and impartial justice. If what the welfare recipient that I was trying to help and myself experienced is the normal “thing” with the AAT, the best advice that I can give is that if Centrelink ever overpays you and demands the money back, simply say:
“It was probably your fault and you’ll have to take me to court and prove it there. In the meantime, send me everything that you have including the recordings of my phone calls to Centrelink. It is my constitutional right and lawful right to ask for these things, so respect them.”
REMEMBER: YOU HAVE THE LEGAL RIGHT TO REMAIN SILENT, SO ONLY STICK TO THE SCRIPT ABOVE. IF YOU CAN’T REMEMBER IT, SAY NOTHING AT ALL.
Ronald Medlicott – Christian lay advocate for justice in Australia.
P.S. – if a member of your family died after being breached or hit with one of Centrelink’s fraudulent “Account payable” letters, you should consider legal action against Centrelink. In 2010, the WA Government paid $3.2 Million for the unintended but negligent death of Ian Ward. How much an “irrelevant” post breaching or tort triggered death is worth is beyond my judgement but I suspect it would be far more that Ian Ward’s family received. With a possible death toll in the range of 15,000 – 60,000, that is one heck of a massive taxpayer funded compo’ bill. [Lawyers take note!]
 s 40(1A).
 s 40(2).
 s 34.
 ss 37(2) and 38.
 s 32.
 s 43.