Part 22: Australia’s “irrelevant” Crimes Against Humanity – Insight into the bloody-minded role of the Administrative Appeals Tribunal.

Centrelink glitchIt is my considered opinion that, as a Lay advocate, in 2014 I participated in an appalling failure of justice during an AAT appeal.

Please note that I am a school teacher, not a lawyer, and my personal opinion, for whatever it is worth, is that if you get hit with one of Centrelink’s  “Account payable” demands, you are probably the victim of a fraudulent civil rights violation and the most appropriate response that you can make  is to refer Centrelink’s “Account payable” demand to the police citing “Abuse of Power” fraud under Section 142 of the Commonwealth Criminal Code Act.It is also my recommendation that you avoid appeals through the federal governments appeals tribunal system, e.g. the Administrative Appeals Tribunal, as you may find that your civil rights are ignored by this non-constitutional appeal system.

[Note the short link to this posting is: http://wp.me/p1n8TZ-u2    ]

BACKGROUND to the ‘Waivergate 2016’ rip-off:

On the 1st January 2016, the Department of Human Services, aka Centrelink, electronically sent “Account payable” notifications to 73,000 welfare recipients. [See the URL link below for details:]

http://www.news.com.au/finance/economy/australian-economy/centrelink-sorry-for-computer-glitch-that-affected-73000-families/news-story/e59444029d37fb98456c898cdd8e65ae

Since Centrelink is a party to what is legally known as a “Tort”, a number of court decisions, and the constitution, underscore the fact that Centrelink cannot arbitrarily determine that the other party involved in a tort is at fault. As has been pointed in the last 3 or 4 Ronald’s space posting, according to the Australian High Court, the determination of “the primary facts of the matter” in Centrelink’s “Account payable” tort actions is a matter for the courts to decide.

IF THERE IS NO COURT DECISION AS TO THE PRIMARY FACTS OF THE MATTER, IT MEANS THAT THERE IS NO LEGALLY VALID DECISION THAT CAN BE REVIEWED BY THE SSAT OR THE AAT, I.E. WITHOUT A COURT MAKING FINDINGS OF FACTS, THERE IS “NO DECISION AT ALL.”

BEFORE any “Account payable” notifications can be issued by Centrelink, both parties as to who was responsible for the alleged over-payments, i.e. Centrelink and the individual welfare recipient must either agree as to what are “the primary facts of the matter” and the welfare recipient, without any duress, agrees that they are liable for the over-payment. If the welfare recipient disagrees, it is then a matter for a court, not Centrelink bureaucrats, to decide what are the relevant facts of the matter so that legal liability can then be determined.  At an average of $25,000 to Centrelink per court appeal, this is hugely expensive. Needless to say, Centrelink has a vested interest in totally by-passing this civil rights obligation which indicates the reason for the electronic “Account payable” notices being rolled on a long week-end to welfare recipients .

Tracie Mitchell – An Aussie Battler hero.

Fortunately for the 73,000 victims of the New Year’s day abuse of power, which I firmly believe was a criminal Abuse of Power violation under s 142 of the Commonwealth Criminal Code Act (1995), MS. TRACIE MITCHELL of Cowra in New South Wales spat-the-dummy and fought back by posting her plight on FaceBook. Inundated with a flood of responses by other people who were also hit with what I now call “Waivergate 2016”, Ms. Mitchell took these responses to the 7 network which investigated and blew the whistle on 7th January 2016. Hank Jongen, the chief spin doctor for Centrelink, then responded by claiming that the electronic “Accounts payable” messages to 73,000 was due to a computer “glitch.”

 BUNKUM! As stated above, it is my considered opinion that Waivergate 2016 was not a “glitch” as was reportedly claimed by Hank Jongen, but was actually a deliberate attempt to use Centrelink’s computer system to defraud 73,000 people who were unaware of their legal rights as set out in criminal law and case law decisions.

INSIGHT INTO THE PROBLEMS ENCOUNTERED WHEN USING CENTRELINK’S UNCONSTITUTIONAL, BIASED APPEAL SYSTEM.

 I have written this posting because I cannot emphasize too strongly the pitfalls and dangers in relying on the administrative appeals system set up by the Australian federal parliament. To protect the identity of the welfare recipient, I have withheld the case file number in the text below which comes straight from a federal Administrative Appeals Tribunal (AAT) case that I was involved in a few years ago.

The appalling  message buried in the legal jargon is that if Centrelink gives bad advice and people act on it in good faith, then these people, not Centrelink, have made a mistake and therefore Centrelink, i.e. the Commonwealth, is no longer “solely responsible” and consequently welfare recipients must repay the debt, i.e. had the 73,000 victims of the Waivergate 2016 “glitch” appealed through the federal government’s appeals system, all 73,000 people would have had to repay the millions of dollars in commonwealth errors that Centrelink was sneakily trying to recover by violating the civil rights of these people.

 UNBELIEVABLE BUT TRUE – THE AAT DECISION BELOW provides frightening insight into the appalling folly of relying upon the federal government’s welfare appeals system to receive justice. It is my considered belief that the defining of “special circumstances” in the findings below is a legal atrocity that prostitutes and perverts justice and further brings Australia’s ailing justice system into disrepute.

 Finding 39 statement: The question is, rather, whether there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the right to recover all or part of Ms Locke’s debt to Centrelink.

Finding 40 statement: The expression “special circumstances” is not defined in the SSA or SSAA, but has been considered on a number of occasions by the Federal Court and Tribunal. The Tribunal has said that the expression “special circumstances’ in s 1237AAD(b) of the SSA should be interpreted and applied in the same way as the identical expression in s 1184(1) of the SSA is interpreted and applied: Re Secretary, Department of Social Security and Duzevich [1996] AATA 63; 41 ALD 461 at [32] per DP Hotop.

Finding 41 statement:  In summary, it has been held for circumstances to constitute “special circumstances” (for the purposes of s 1184(1) of the SSA and, it follows, s 1237AAD(b) of the SSA), they must be circumstances which are “unusual, uncommon or exceptional”, be “markedly different from the usual run of cases”, “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate”: see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at [545] per Kiefel J and Dranichnikov v Centrelink [2003] FCAFC 133; [2003] 75 ALD 134 at [66] per Hill J. Circumstances might be “special” although they apply to more than one person or class of persons, provided they are not of universal application (for example, they are a common or universal characteristic of social security recipients): see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 441; (2010) 185 FCR 52 at [65].

Finding 42 statement:  <The applicant’s> contention that she acted in reliance of incorrect advice provided by a Centrelink officer over the telephone is not an uncommon compliant or circumstance of socials security recipients. This circumstance is not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary so as to render it a “special circumstance” for the purpose of s 1237AAD(b) of the SSA.

The test underlined in finding 41 and highlighted in finding 42  make a farce out of the legal concept of Accountability for conduct. If mistakes are common, e.g. the 73,000 “Account payable’ claims sent out on 1st January 2016, the AAT accepts this gross incompetence to be a normal part of Centrelink’s operations and therefore mistakes made by Centrelink are not an acceptable reason for the waiver of debt rule in paragraph 1,237 (A) of the Social security Act being applied when Centrelink stuffs up and overpays welfare recipients. This logic is absolutely farcical as the following 3 real-world examples indicate:

Example #1 – Thousands of speeding fines are issued each day which meet the criteria of not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary.” Therefore logically, the more  speeding fines issues, the more “common” is this error when driving and therefore drivers who speed more often are exempt from the consequences of speeding. Yeah! Is that a squadron of pigs flying by?

Example #2 –  The Royal Commission into the sexual abuse of children in institutionalized care. The AAT decision was a FEDERAL tribunal decision that can only be overturned by the Federal Court or the High Court and so that AAT decision carries enormous potential legal implications that go far beyond the primary case issue of determining legal liability of alleged Centrelink overpayments to a welfare recipient. In section 14.1.1 of the Hanger Royal Commission Report into the Rudd Government’s ill-fated Home Improvement Program, Commissioner Hanger recommended that political advisers and public servants look at the ‘big picture’, especially what might be colloquially called “The Dark Side” of political policies, programs and practices. If you apply this ‘dark side-big picture’ to the above AAT decision in the context of the current royal commission hearings into the sexual abuse of children, the legal logic used by the AAT takes a flying leap into a legal quagmire.

  1. Over a period measured in decades, thousands of children, have been sexually abused. It is there reasonable, using the AAT legal logic above, to claim that since there is nothing exceptional that can be classified as “special circumstances” about the sexual abuse of children, then logically, the individual victims have nothing to complain about because Q.E.D. there is nothing exceptional about the sexual abuse of children that would qualify as “special circumstances”.
  2. However, in law, legal precedents have very broad applications and the legal logic used by the AAT establishes a dangerously idiotic legal precedent that because Centrelink errors are not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary,  the same principle applies to the sexual abuse of children. That precedent could be argued in any court in the nation. Heck, it could even be used as a Persuasive Precedent or as an Influencing Precedent in any court in the world that uses laws based upon British Crown Law principles, e.g. the United States.

Example #3 – THE APPREHENDED BIAS/MANIFEST OSTENSIBLE BIAS TIME BOMB.

The legal precedent implicit in Finding 42 above, i.e. <The applicant’s> “contention that she acted in reliance of incorrect advice provided by a Centrelink officer over the telephone is not an uncommon compliant or circumstance of socials security recipients” is potentially a legal time bomb in murder cases!

  1. Murders have also been common throughout Australia’s history, e.g. March 2016 marks the 20th ‘anniversary’ of the Port Arthur massacre when 35 people were shot dead and therefore it is fair to say that “murders are not uncommon”.
  2. Using the AAT ‘s ‘not an uncommon circumstance’ because murders are so common, this AAT finding opens the legal door to anyone accused or convicted of murder potentially using this and similar AAT decisions based upon this legal precedent to  argue an Apprehended Bias or a Manifest Ostensible Bias case when seeking to have the murder charges dismissed.
  3. If an alleged murderer or a convicted murderer were to win an appeal using the AAT “not uncommon” logic above. every murderer in the nation could argue that they are the victims of Apprehended Bias.

 Ron, are you nuts? That could not happen, could it?

If you think I’m a nutcase, just remember  Queensland’s infamous ‘Dr. Death.’ Despite the fact that 87 of D. Jayant Patel’s reported patients died as direct consequence of his surgical procedures and another 106 patients reportedly required major corrective surgery, because of Procedural Fairness violations in the Morris Royal Commission Inquiry into these deaths, 50 days of evidence to the royal commission was turned into “poisoned fruit”, i.e. inadmissible evidence that the Queensland Supreme Court be shredded!   [Leck v Morris & Ors; Keating v Morris & Ors, [QSC 243] (1st September 2005) The downstream consequence of that was that in March 2013 a Queensland jury had no option but to bring in a “Not guilty” verdict to a re-trial that had been ordered by the High Court .

The legal reality of the issues that I am raising in these WordPress journal postings is that whether or not you agree or disagree with what I write, or even if you opt to totally ignore them, FACTS ARE TRUTHS THAT DO NOT CHANGE. So here are some more legal facts that all of Australia’s 7.3 million welfare recipients should be aware of.

The findings in the above AAT decision were justified using a number of case law precedents, some of which date back decades. The problem with the case law precedents quoted is two-fold.

In the case that I was involved in in 2014, the AAT ignored the constitution, statute laws, and binding High Court precedents that the presiding AAT Member should have been reasonably been aware of.

I believe that errors of law occurred because the AAT decision  ignored serious criminal law statutes that applied to this case, e.g. the withholding or possible destruction of evidence, specifically the telephone call recording at the centre of this legal dispute that contained what I believe were the primary facts of the matter. This disregard for the statutory and Common Law rules of evidence and provisions within the Commonwealth Criminal Code Act were more than an “errors of law”, it was probably a serious violation of the statute below.

 Statute 142 of the Commonwealth Criminal Code Act (1995)

This laws states “A Commonwealth public official is guilty of an offence if (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

Dial 13 32 76 and within seconds you will hear the statement “For your security this call will be recorded.”

  1. However, all attempts to obtain this recording, including requesting that the AAT Member hearing the appeal use their power under the AAT to order the handing over of this evidence, proved unsuccessful.
  2. The statement in finding 42 made it quite clear that the presiding AAT Member did not give a stuff about who said what in the recorded phone call.
  3. This was a very prejudicial, biased viewpoint that made it easy for the presiding AAT Member to rationalize that since the provision of erroneous information was “not uncommon” the phone call recording was “irrelevant.”
  4. In doing so, the presiding AAT Member was making a defacto finding as to the primary facts of the matter., i.e. the recording did not contain evidence that was a “primary fact of the matter.”
  5. How many courts would go along with the idea that a phone call recording which is central to a dispute is so irrelevant that the court would not bother to make it available to the applicant in a legal dispute?
  6. There are in fact 2 High Court decisions that I believe provide binding precedents as to the importance of the phone call that the presiding AAT Member ignored:

Coco v Queen [HCA 15] (13th April 1994)

In 1994 the High Court ruled in paragraph 8 of 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.”

This High Court decision was an “Invasion of Privacy” case dealing with the legality of a telephone call recording made by police officers.

As is stated above, the Court ruled that “tortious conduct must be clearly expressed in unmistakable and unambiguous language” torpedoed the Crown’s case because the Law of Trespass had been violated due to an oversight by the magistrate who issued the warrant to install a telephone tap.

Since trespassing is unlawful, the phone call was unlawfully recorded and the applicant wanted the phone call dismissed as evidence.

Conversely, in the 2014 AAT case, I wanted the disputed phone cal for the same reason that the Crown wanted the phone in the Coco case, i.e. it was irrefutable of evidence needed to impartially determine “the primary facts of the matter” in dispute. Without the relevant recording, in both legal actions, a police prosecution in Coco in 1994 and the Centrelink tort action in 2014, no valid determination of the primary facts was possible.

Trespassing is illegal and so the Coco recording was ruled invalid as evidence. Withholding evidence, in this case another phone call recording, is also unlawful and that means that the AAT had no legal right to make a decision that endorsed the unlawful conduct of Centrelink officials.

Kioa v West [HCA 81] (1985)

This is a landmark High Court decision which, in paragraph 6ofthe Court’s findings made it quite clear that the withholding of information from an applicant by a bureaucrat was a procedural fairness violation that invalidated the bureaucrat’s decision.

This determination was effectively a ‘grandfather’ precedent for the High Court’s Bhardwaj decision in 2002 in which the High Court ruled that a tribunal have no jurisdiction to make procedural decisions that were unfair and when procedural unfairness, e.g. the withholding of credible, relevant or significant information occurs, then as far as the High Court is concerned, there is no decision at all.

A key point in the Kioa ‘procedural fairness’ decision is the obligation or duty of care of administrative decision-makers to act fairly when making decisions that affect people’s rights or interests.

Unless statute laws expressly over-ride the procedural fairness principles enunciated in Kioa[1], in all cases before an Australian court or a tribunal, the following Common Law procedural fairness points of law now apply:

 The Hearing Rule the right to a fair hearing, which is also a right under Article 14 of the International Convention for Civil and Political Rights.

The No-Bias Rule The decision-maker is impartial; a rule or principle consistent with the common law principle that people should not sit in judgement in cases where they have a clear vested interest. This rule kills off the idea that Centrelink bureaucrats can arbitrarily determine who is responsible for overpayments invalidates the “Account payable” bills that are sent out as Standard Operating Procedure as per the 73,000 ‘Waivergate 2016’ notices distributed electronically on 1st January 2016.

The Evidence rule – the requirement for decisions to be based on empirical evidence, i.e. logically probative evidence. Suspicion may be speculation with reasonable foundation and provide logical grounds for an investigation, but suspicion is not adequate grounds for a decision that is based on biased, bigotry-driven personal assumptions, values or beliefs. The phone call recording at the Centre of the tort action was the only empirical evidence as to “who said what” and, given ‘The Evidence Rule”, which DHS/DSS bureaucrats and Crown Law lawyers would have been fully aware of, there is only one logical reason for the withholding or destruction of this recording by Centrelink, i.e. its content revealed that a Commonwealth error had resulted in a “good faith error” by the applicant and the alleged overpayment ‘debt’ should have been waived.

Readers should note that the Kioa and Coco decisions were included in the applicant’s statement of Claim to the AAT and the Kioa decision points above were raised during the hearing. Readers should also be aware that these legally binding High Court precedents, which now underpin courtroom procedures in all Australian courts, were ignored by the presiding AAT Member!

 By failing to order that Centrelink make the recording available, the presiding AAT Member was almost certainly committing a serious “Error of Law”. However, by withholding or destroying the phone call recording, Centrelink was almost certainly in violation of s 149.1 of the Commonwealth criminal Code Act i.e.

Obstruction of Commonwealth public officials

            (1)       A person is guilty of an offence if:

            (a)       the person knows that another person is a public official; and

            (b)       the first‑mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

            (c)       the official is a Commonwealth public official; and

            (d)       the functions are functions as a Commonwealth public official.

Penalty: Imprisonment for 2 years.

In the AAT case that spawns the disgraceful findings mentioned above, the presiding AAT Member simply ignored these laws. I believe that by doing so, the presiding AAT Member may have therefore violated one or more of the above provisions in the Commonwealth Crimes Act (1995).

 There are many Federal Court or High Court decisions that invalidate the precedents used by Crown lawyers in the 2014 AAT case including:

In a speech to the NSW branch of the Australian Institute of Administrative Lawyers (AIAL) in August 2013, the president of the AAT, Justice Duncan Kerr, described lawyers as people who had “privileged expertise.” Since AAT Members are the equivalent of what are known in the United states as “Administrative Judges”, it is reasonable to assume that AAT Members are people with high levels of “privileged expert” and should have very levels of knowledge of all case law decisions that may apply to their very limited field of jurisdiction. In addition the previously mentioned Kioa and Coco High Court decisions, there are a number of other binding High court and Federal court legal precedents that the presiding AAT Member did not take into consideration.

ACCC V TPG Inc. [2013] HCA 54.

In ACCC v TPG Inc. [2013] HCA 54, the High Court’s December 12th 2013 determination of responsibility for wrong or misleading advice preceded a similar decision a year later in December 2014 by the Federal Court in ACCC v AGL (SA) [2014] FCA 1369. Both are recent examples of case law decisions in which the Courts placed accountability for incorrect or misleading advice on the givers, NOT the receivers, who may have then made good faith errors! The following concise legal opinion on the ACCC v TPG decision is by Clayton Utz lawyers, Matthew Battersby and Kirsten Webb and can be downloaded from http://www.claytonutz.com/publications/edition/19_december_2013/20131219/advertising_and_the_acl_fine_print_couldnt_save_tpg_internet_in_the_high_court.page

  On 12 December 2013, the High Court by a 4-1 majority overturned the Full Federal Court’s decision and reinstated the $2 million pecuniary penalty initially imposed on TPG Internet Pty Ltd for a misleading advertising campaign about its Unlimited ADSL2+ broadband bundle (ACCC v TPG Internet Pty Ltd [2013] HCA 54).

The key messages for advertisers from the High Court’s decision are that:

The “dominant message”test is central to any assessment of whether advertisements are misleading or deceptive; and

qualifying statements accompanying headline representations must be sufficiently clear and prominent so as not mislead consumers, particularly where the representation is about price.

The High Court’s decision is an important one for advertisers in understanding the nature and extent of their obligations under the Australian Consumer Law (ACL). It will also inform the ACCC’s enforcement strategy in this area.

ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19

The following comments on this High Court decision are sourced from: http://www.mondaq.com/australia/x/79848/Publishing/High+Court+Clarifies+The+Limits+Of+The+Publishers+Defence+In+S+65A+Of+The+Trade+Practices+Act

In ACCC v Channel Seven Brisbane Pty Ltd [2009] HCA 19, the ACCC alleged that in late 2003 and early 2004 Channel 7’s Today Tonight broadcast and thereby effectively adopted misleading representations about the benefits of the services offered by a property investment training program, Wildly Wealthy Women (WWW).

The broadcasts resulted from an agreement, brokered by a marketer, between Today Tonight and WWW, pursuant to which the marketer would receive a commission for every woman who signed up to the WWW investment program.

Channel 7 did not dispute that untrue representations were made about the success of WWW, nor that they were misleading and deceiving. However, it sought protection for its misleading and deceptive conduct under s 65A of the TPA.

Findings: The High Court upheld the primary judge’s findings that s 65A of the TPA did not provide a defence to Today Tonight. It was held that the “safe-harbour” does not apply to situations in which a media outlet, pursuant to an arrangement with a supplier of goods or services, publishes and, by adoption or otherwise, makes representations of a misleading or deceptive character in relation to those goods or services.

Lessons

Media outlets should be aware, that where an arrangement has been made with a supplier of goods and services to effectively “sell” or advertise those goods or services in a broadcast, the broadcaster itself can face liability for misleading and deceptive conduct, and will not be able to rely upon s 65A of the TPA for protection.

MY COMMENT: The clear, binding legal principle in the 2013 ACCC v TPG decision and the earlier ACCC v Channel 7 Brisbane decision in 2009 is that when legal entities give bad advice, they are fully accountable for the consequences of those decisions, i.e. there is no “safe harbour” for organizations or individuals who provide misleading or erroneous information that people subsequently act on “in good faith.” Whether erroneous or misleading advice is given intentionally or due to systemic problems, hen welfare recipients phone Centrelink and ask for advice and then receive incorrect advice, this legal precedent further underscores the fact of law that Centrelink is solely and fully responsible for the downstream consequences of that error. Centrelink cannot buck-pass the blame to welfare recipients on the basis that these errors “are not uncommon” and are therefore not “exceptional circumstances.” That the presiding AAT Member, who has what Justice Kerr described as “privileged expertise” failed to appreciate this very basic principle of law, is most disturbing. At the very least it indicatesincompetence on the part of the presiding AAT Member.

ACCC v AGL (SA) [2014] FCA 1369.

“The Court has found that AGL SA made false or misleading representations to consumers about the key benefit under their energy plan – the discount off energy usage charges. Other retailers should sit up and take note – they must not mislead consumers about the savings they will achieve under energy plans.”

 Okay, this decision post-dates the AAT decision by a short period of time, but the legal principle in both the ACC V TPG and the ACCC V AGL decisions was the i.e., if legal entities provide misleading information, then they are accountable for that misleading information. People who acted in good faith on that information are not legally liable for the consequences of acting in good faith. In point of fact the very reverse applies. In 2015 the Federal Court hit AGL SA with a $1 Million fine and required the company to make compensation payments that amounted to approximately $1 Million to customers who were financially disadvantaged by AGL’s misleading advertising. In making this determination, the Federal Court was being consistent with another earlier High Court decision in 2009

THE MISSION CRITICAL HIGH COURT DECISIONS IGNORED BY THE AAT:

In addition to the above points of law which are included in “The Emcott report”, I also made known the following case law decisions to the Chief Legal Counsel to the Department of Human Services in December 2015, i.e. just a few weeks BEFORE Centrelink hit 73,000 people with the electronic “Account payable’ notifications.

 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17

This decision was handed down on May 3rd 2012, i.e. 2 years before the AAT case decision mentioned earlier in this posting.

At paragraph 141 in the High Court’s decision the judges ruled:

“…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.”

In paragraph 143 of this case the High Court ruled that:

“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.”

 NOTE THE LAST SENTENCE: “Deciding the facts of a case is a court’s task, not a task for a regulatory authority.”

 

This is not my personal opinion; this is a binding High Court precedent that applies as much to Centrelink as it did to the Australian Securities and Investment Commission. This decision means that Centrelink has  never had the constitutional “jurisdiction” to arbitrarily decide who is responsible for over-payment errors. This principle of “no jurisdiction” is underscored by another even earlier High Court decision. Bhardwaj.

 

The flow-on implication in AAT hearings is very simple: if the Secretary of the Department of Human Services (the Chief Executive Office or boss of Centrelink) has no legal right to determine the primary facts of the matter” because this is the constitutional jurisdiction of the Courts, then the AAT also has no jurisdiction.

 

On 27th August 2013, Justice Duncan Kerr, the President of the AAT gave a speech to the New South Wales Branch of the Australian Institute of Administrative Lawyers (AIAL) in which he stated:

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.

Justice Kerr then stated that “Merits review-that is the function of evaluating and substituting the correct or preferable decision standing in the place of a decision maker, as opposed to enforcing the law that constrains and limits the powers of the other branches of government-is, on that analysis, beyond judicial power.”

Source: http://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-duncan-kerr-chev-lh-presid/keeping-the-aat-from-becoming-a-courtKangaroo Court

The AAT has no legal power to independently make findings as to “the primary matters of fact” in a legal dispute, e.g. a DHS/Centrelink “Account payable” claim.

The AAT only has the power to review any administrative decision made by a Federal Government bureaucrat but this should be AFTER a court has determined the primary facts of the matter in a dispute. As the following High Court decision makes perfectly clear, if a government decision maker, e.g. Centrelink, makes a decision that they have no jurisdiction to make, then there is no decision.

 Minister for Immigration & Cultural Affairs v Bhardwaj HCA 11 [2002]

Paragraph [53] of the Australian High Court’s 2002 Bhardwaj Decision states,

“In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.”

The the legal ramifications of the Hellicar and Bhardwaj Decision very made very clear in his August 27th 2013 speech to the NSW AIAL lawyers, many of whom may been AAT Members:

“Merits review-that is the function of evaluating and substituting the correct or preferable decision standing in the place of a decision maker, as opposed to enforcing the law that constrains and limits the powers of the other branches of government-is, on that analysis, beyond judicial power.”

The “correct” decision in the AAT “Kangaroo Court” hearing that I was involved in was very clear, i.e. since no court had determined “the primary facts of the matter” and neither the Secretary of the Department of Human Services nor the Secretary of the Department of Social Services had constitutional “jurisdiction” to so, the duty to make a legally valid decision had not been performed and therefore the only AAT determination possible was that “…in law, the duty to make a decision remains unperformed.”

It is important to realize that that this constitutional and legal reality applies to AAL AAT decisions, including those used by the presiding AAT Member to determine that the welfare recipient that I was assisting, e.g. Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD at 3 per Toohey J; Beadle and Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ;

If the legal precedents above are legally “no decision” because courts had not determined the primary facts of the matter in each case, then they are invalid and meaningless precedents.

The decision made by the presiding AAT in the case that i was involved in was not based upon a determination of primary facts by a court and even worse, with no legal jurisdiction to do so, the presiding AAT Member made such determinations, e.g. the phone call recording withheld by Centrelink was apparently not deemed to be a “primary fact of the matter” and so the presiding AAT Member did not order that it be made available.

Indeed, I made the 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” and in my summary pleaded with the Tribunal to use its statutory powers to obtain the precise number of fatalities caused breaching penalties.

As stated in numerous other postings, these deaths are A Crime against Humanity and are murders under Article 7 (1) (a) of the Rome Statute. By failing to do so, the presiding AAT member was making a defacto determination that, like the withheld phone call recording, these Australian Parliament sanctioned murders were not “primary fact of the matter”.

Please note that due to a calculation error, this statement incorrectly under-stated the true death toll which was 23,254 with approximately 1 in 3, i.e. an estimated 7,700 of these suicides being unemployed Centrelink clients at the at the time of their demise.

How many decisions have AAT members made that are constitutionally “No decision at all” because a court has not determined the primary facts of the matter in each case? In addition, how many  decisions have also disregarded case law decisions that hold accountable legal entities that provide bad advice, as per the ACC v TPG and ACCC V AGL (SA) court decisions. Those two decisions were not unique landmark cases as the examples below reveal.

Source: Maurice Blackburn website: https://www.mauriceblackburn.com.au/work-behaviours/misleading-and-deceptive-conduct

“The Competition and Consumer Act 2010 (Cth) provides protection for prospective employees including executives against misleading and deceptive conduct. The provision of the Act cover the availability, nature or terms and conditions of employment, or any other matter relating to the employment, or a company’s financial status, including profitability and risk, or other material aspect of any business activity of the company that proposes to engage the prospective employee.”

Morton v Interpro Australia Pty Ltd [2009] FMCA 423

Mr Morton, a senior sales employee of Interpro, alleged his employer had engaged in misleading and deceptive conduct regarding his employment contract. Mr Morton argued that the company made representations about its commission based bonus scheme during contract negotiations. And that (in good faith) he had accepted the offer of employment on the basis of these representations and had subsequently relocated from the United Kingdom to Australia to join the company. After commencing in the role, the company unilaterally revoked the commission based scheme. –

Source: http://www.mauriceblackburn.com.au/legal-services/employment-law/employment-law-services/work-behaviours/misleading-and-deceptive-conduct/#sthash.hVtdeCAK.y5aGZw14.dpuf

Anor [2009] FMCA 423 and Moss v Lowe Hunt & Partners [2010] FC 1181

In 2010 Maurice Blackburn represented Mr Moss in a case of misleading and deceptive conduct. Mr Moss was an advertising and research consultant who ran his own company. He worked on a consultancy basis for Lowe Hunt & Partners (Lowe Hunt). Rather than using Mr Moss on a consultancy basis, Lowe Hunt wanted to employ Mr Moss directly and tried to recruit him to the company. In the course of this recruitment, Lowe Hunt made representations to Mr Moss, including that that the company was a financially successful agency and was in a strong business position. Moss became an employee of Lowe Hunt after relying on these statements, but within 18 months his role was made redundant. The judge in the case stated it was misleading or deceptive to describe a business as being successful when it did not have the continued support of its parent company.

The court held that Mr. Moss was induced to enter into the contract by the misleading conduct on behalf of Lowe Hunt and ordered compensation for damages plus all legal expenses to be paid to Mr. Moss for the losses he suffered.

Source: http://www.mauriceblackburn.com.au/legal-services/employment-law/employment-law-services/work-behaviours/misleading-and-deceptive-conduct/#sthash.hVtdeCAK.dpuf

 In both the Morton v Interpro and Anor v Lowe hunt & Partners cases conducted by Maurice Blackburn, the applicant in each case was misled.

In law, the respondents in these 2 cases were legal entities who had given bad advice or misleading that was acted upon in good faith by the ‘applicants’. In both cases, the respondents were held by the presiding courts to be fully accountable for the erroneous or misleading advice.

These two decisions further underscore the absurdly farcical, thoroughly disgraceful AAT finding above which that Centrelink cannot be held accountable for its mistakes simply because Centrelink makes so many of these mistakes that there is nothing “exceptional” about this conduct and therefore welfare recipients who are overpaid because of these frequent errors are partially to blame and , under the “soley” provision in s1,237A of the Social Security Act, therefore welfare recipients must repay the overpayments caused by Centrelink’s ‘Commonwealth errors’.

At this time, that is about $5 BILLION that were most likely caused primarily by Centrelink’s inadequately training, badly over-worked staff making such frequent errors that they are not “exceptional” but in fact the norm a fact made even worse by the inadequate 1980s era ISIS computer system which receives a mind blowing 50 million keystrokes per day, each of which has a 50% margin of error.

These disgraceful AAT decisions occur for two primary reasons; firstly welfare recipients cannot afford the thousands of dollars per day to fight such absolutely disgusting decisions whilst Centrelink has access to taxpayer funds and is prepared to spend $565,000 of this money in legal costs to recover a paltry, by government budget standards, $6,000 from a welfare recipient.

Secondly, the underlying problem is that the ISIS computer system was not fit for purpose when first purchased in the early 1980s and once this was realized, rather than own up to this waste of taxpayer’s money, it is now Standard Operating Procedure for politicians and DHS management to automatically blame welfare recipients for the overpayments and send out “Account payable” notifications in a fraudulent violation of civil rights that the AAT endorses with its unconstitutional, and quite possibly, unlawful, determinations.

Make no mistake, AAT Members ARE aware of the High Court and Federal Court decisions mentioned above. However, in the appeal that I was involved in, the presiding Member ignored the decisions that pre-dated the 2014 hearing in favour of home-town AAT decisions and other court decisions that enabled the AAT Member to rationalize the ridiculous and ordering the welfare recipient to repay the overpayments that I believe do not have to be repaid because they are solely ‘Commonwealth errors.’ Had the welfare recipient that I assisted been able to afford a lawyer and the case was argued in a Magistrates Court, instead of in the AAT, Centrelink’s claim would have been “booted out of court.

[1] Paragraph 7 findings: “The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case.”

In December 2015, Alice Linacre, the Acting Chief Legal Counsel for the department of Human Services ignored these decisions and 2 weeks later 73,000 people were hit with Waivergate 2016! Ms. Linacre had a copy of “The Emcott Report” which included most of the above information.

Emcott cover page

 

At a Malaysian law conference in 2010, a former High Court judge, The Honourable Michael Kirby said:  

“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]

In his speech to the AIAL lawyers on 27th August 2013, Justice Kerr made the following statements which I have bullet-pointed for clarity:

  1. Thus section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) directs that in carrying out its functions;
  2. the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
  3. Section 33(1)(b) of the AAT Act then directs that the proceedings of the AAT;shall be conducted with as little formality and technicality, and with as much expedition….as a proper consideration of the matters before the Tribunal permit.

The reality of what actually happens is the very opposite. Crown Law lawyers prepare complex documents that are hundreds of pages in length and which quote obscure legal precedents i9n an attempt to legally justify the “solely” component of s1,237(A). Impoverished welfare recipients, who may be functionally illiterate and have no knowledge of the law are not provided with taxpayer funded access to the “privileged expertise” provided to the Secretary of the DHS and the Secretary of the DSS at taxpayers expense.

A very sick joke – the commonwealth as a “Model Litigant”.

Way back in 1912 a court ruled that because of the power that the the Commonwealth had in legal actions and because it was the rule maker in civil litigation the Commonwealth has a duty to act as a Model Litigant. The development of this obligation in conducting litigation can be traced to Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 where Griffith CJ explained it as ‘[t]he old fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects’[1]. In that case the Court criticised that ‘[t]he Crown should not take technical points’.

  1. The idea that the Crown should not take technical points is a joke when you consider the extremes used to avoid being “solely responsible” for Commonwealth errors.
  2. If Centrelink makes a mistake and you do not read the form letters that they send you, that is used as the technical error excuse to claim that the Commonwealth, i.e. Centrelink, was not solely responsible for the over-payment error!
  3. Note that although the Court decision was in 1912, the Model Litigant rules were not introduced until 2005, i.e. 92 years later. This begs the question, why stall on obeying the court ruling for 92 years? The answer is found within the Model Litigant Rules introduced in 2005.The obligation states:
  4. 1                 Consistently with the Attorney‑General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.Nature of the obligation2                 The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency…

[1] Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342.

  • Note that the Commonwealth must act “honestly and fairly” in handling claims and litigation. Dail 13 32 76 to report income and a recorded message message will  state, “For your security this call will be recorded.”
  • When a request was made to have the recording provided, Centrelink would not make it available and the presiding AAT Member did not order that it be made available.
  • That was neither “honest” nor “fair”; it was in point of fact, an abuse of power for the purpose of obstructing justice, i.e. it was a violation of 2 criminal statutes that the AAT Member opted to ignore.
  • This was not justice; rather it was a systemic denial of justice with the AAT and Crown Law lawyers effectively giving the proverbial “1-finger-salute” to the Hellicar principle that it is for the courts to determine “the primary facts of the matter.”
  • What I both witnesses and experienced may best be summed in this statement by the Queensland Chief Justice, Tim Carmody:

“I will not allow this court to become a Dickensian Bleak House, where parties will be ‘tripping one another upon precedents, groping knee deep in technicalities [and making mountains of costly nonsense]’. Otherwise, to cite Dickens, it will become a ‘scarecrow of a suit… so complicated that no man [or woman] alive knows what it means’.”     May 7th 2015 (Brett Cowan Appeal)

I cannot in all honesty recommend the Federal government’s “appeal” system. It makes a farce out the concept of the “Model litigant” to the extent that if evidence has to be hidden to win a case, then it will be hidden. In December 2015 I provided Justice Kerr, the president of the AAT, with a detailed summary of many of the points above, including the classified breaching death toll caused by human rights violating laws, the Hellicar and Bhardwaj decisions and my “sacking” by the Ombudsman’s Office on the 25th November after sitting on the detailed appeal that I had lodged with Adelaide branch of the Commonwealth Ombudsman on the 16th November 2015.25-11-15 Redacted OCO

  1. Apart from being ‘sacked’ by the Ombudsman’s Office, which had no legal right to do so, the only responses to the Hellicar and Bhardwaj case law precedents have been Acting Chief legal Counsel Alice Linacre’s letter  and the failed attempt to violate the civil rights of 73,000 on 1st January 2016.

    7-1-16 Redacted Centrelink response

    This letter was written just hours before the 7 Network blew the whistle on Centrelink’s attempt to by-pass due process of law by electronically billing 73,000 for small claims that collectively amount to tens of millions of dollars.

I cannot show you Justice Kerr’s response to a letter from me dated 15th December 2015 because I have not received any response. If “actions speak louder than words”, then the failed attempt by Centrelink to bully and intimidate 73,000 into repaying amounts of up to $800 is, by ‘A Physical  Act of Omission’ on Justice Kerr’s part, his response to my correspondence.

If the President of the AAT, a Federal Court judge, is apparently prepared to ignore High Court decisions such as Kioa, Bhardwaj and Hellicar, is it any wonder or surprise that AAT Members presiding in appeals do likewise?

I cannot say it too often: Avoid what appears to be an exceedingly corrupt and dysfunctional federal government appeal system if you receive an “Account payable” demand from Centrelink and refer the Centrelink demand for repayment to the police. Do not let the police accept the “computer glitch” excuse used by Hank Jongen on January 7th 2016. Point out that ‘on the balance of probability’, it may have been a deliberate abuse of power that violated s 142 of the Commonwealth Criminal Code Act.

This URL,  http://wp.me/p1n8TZ-u2  

The above short cut URL link can be provided to the police who can then contact me. I can provide them with further evidence indicating why federal politicians and DHS/Centrelink officials should be investigated for both the Waivergate fraud scams and Australia’s “irrelevant” Crimes against Humanity.

QUICK TIP: If you are using Microsoft Windows, right-click your mouse and Copy this website to your computer desktop folder so that you will be able to locate this posting on your desktop screen whenever you boot your computer.  Ronald Medlicott – A Christian advocate for justice in Australia.  

  FOOTNOTES:

[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.

 

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

 

 

 

 

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