Part 36. Australia’s “irrelevant” Crimes against Humanity. Centrelink exposed at last; the next question is the BIG ONE, i.e. how many people have died?

Australia’s “irrelevant” crimes against humanity are getting some unwelcome media attention as the following ‘The Guardian’ [AAP] news article reveals:

waivergate-exposed-cropped[Source: https://www.theguardian.com/australia-news/2016/dec/23/centrelink-officer-says-only-a-fraction-of-debts-in-welfare-crackdown-are-genuine ]

The next big question is, exactly how many people have been so traumatized by this fraud that they have died of a heart attack, stroke, or have committed suicide. This is not a spurious question as these deaths are MURDER under both Australian and international laws.

[Note: the short link URL for this posting is: http://wp.me/p1n8TZ-Hm ]

THE KEY FACT OF LAW IS SIMPLE: IF you believe that it was Centrelink’s mistake, assuming that you really were overpaid, and if Centrelink wants the money repaid, then Centrelink must convince a court that it was your fault.YOU DO NOT HAVE TO PROVE ANYTHING TO ANYONE, BUT CENTRELINK SURE DOES!

If Centrelink tries to defraud you with what I call the “Waivergate Scam”, or the “Tudge Fudge Fraud”, just remember the High Court is on your side with the Hellicar and the Bhardwaj decisions [See text below] and the correct response to Centrelink is:

“According to the High Court, I do not have to pay a cent unless a court says so!”

As mentioned in my last Ronald’s space posting, Andrew Wilkie MP posted a statement on the Internet criticizing Centrelink for treating people as “Guilty until proven innocent.” In this article, Mr. Wilkie also claimed that the amount involved was a massive $4,500,000 PER DAY. Correct me if I am wrong but I think that it is not a very smart move to commit this crime thousands of times each day on a 365-day basis using Centrelink’s dysfunctional computer system.

The ‘Abuse of power’ law

Mr. Wilkie may not have realized it at the time, but, in law, he was accusing the Turnbull Government of a very serious federal crime that carries a 5-year jail sentence PER OFFENCE, i.e. an ‘Abuse of public office’. In writing to the Commonwealth Ombudsman, Mr. Wilkie may be lodging his complaint with the wrong organization for, in law, it is the Australian Federal Police who have the task of undertaking criminal investigations.

 The following statute law is contained the Commonwealth Criminal Code Act 1995, (Compilation 98), which was compiled on 15th June 2015.

142.2  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.

The statute provision to focus on is 142.2 (1) (b) (ii) above, which deals with unlawful conduct by public officials who may be “dishonestly causing detriment to another person.” One question of law posed by the disclosure that most of Centrelink’s alleged “debt” recovery claims are spurious, vexatious and without merit, i.e. are FRAUDULENT, is whether-or-not the Turnbull Government has been deliberately raping the civil rights of welfare recipients  for the purpose of recovering millions of dollars EACH DAY day from thousands of people using methods that were known to be unconstitutional and unlawful.

[Note: IF lawful means are used by Centrelink to recover ALLEGED overpayments, then I agree with Mr. Wilkie that if people have been deliberately rorting the system, or have knowing provided Centrelink with incorrect information, then any over-payments must be repaid.]

MATTER OF LAW: ISSUE #1 – THE WAIVER OF DEBT DUE TO COMMONWEALTH ERROR LAW:

Paragraph 1,237A of the Social Security Act states that if a Commonwealth error occurs that is the sole cause of the overpayment, then 100% of the debt must be waived. Also in this statute is a “good faith” provision, i.e. if people ask Centrelink for advice and are given incorrect information that results in overpayments, then the debt must be waived.

Paragraph 1237A of the Act – Waiver of debt arising from error

Administrative error:

(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.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

Underestimating value of property

(2) If:

(a) a debt arose because the debtor or the debtor’s partner underestimated the value of particular property of the debtor or partner; and

(b) the estimate was made in good faith; and

(c) the value of the property was not able to be easily determined when the estimate was made;

the Secretary must waive the right to recover the proportion of the debt attributable to the underestimate.

Proportion of a debt

(3) For the purposes of this section, a proportion of a debt may be 100% of the debt.

WHAT DOES THAT MEAN?

It means that if Centrelink screws up, then every cent of the overpayment must be “waived”, i.e. Centrelink cannot lawfully recover the overpayment.

SO WHO DECIDES WHO IS AT FAULT?

At-the-moment, the Turnbull Government appears to be deliberately violating the constitutional and legal rights of welfare recipients by allowing Centrelink officials to decide who is responsible for any overpayments made to welfare recipients using the mind-bogglingly dysfunctional ‘integrated social infrastructure system’ [ISIS] computer system.

It should come as no surprise that as far as most politicians, DHS officials, including some Australian Government Service [AGS] lawyers who ought to know better because of their legal expertise, consider that it is the 1,100,000 welfare recipients who may have received the ALLEGED $4.7 Billion in overpayments are RORTERS responsible for this happening.

Are 1.1 million Australians really rorting the welfare system, or are the overpayments the direct consequence of systemic errors? Alan Tudge’s “Guilty until proven innocent” policy that requires welfare recipients to prove within 21 days that it was Centrelink’s fault is a serious violation of Section 142.2 (1) (b) (ii) because constitutionally. CONSTITUTIONALLY,  Alan Tudge and Centrelink officials have NO JURISDICTION to demand that welfare recipients prove that the overpayment was not their fault. This policy is a criminal abuse of power as Centrelink must prove to a court that it was not solely at fault.

MATTER OF LAW ISSUE #2: THE CONSTITUTION, it is IT IS A MATTER FOR THE COURTS, NOT FEDERAL POLITICIANS OR CENTRELINK BUREAUCRATS.

Regardless of what the unconstitutional statutory provisions in Section 42C of the Centrelink Social Security (Administration) Act, or Alan Tudge may state, when it comes to tortious conduct, i.e. actions by Centrelink to recover alleged overpayments, constitutionally, it is “a matter for the courts” and therefore, the demands by Alan Tudge, the Minister for the Department of Human Services, [DHS] and Centrelink officials for welfare recipients to “prove” to Centrelink that they are not responsible for overpayments is a criminal abuse of public office because, constitutionally, Centrelink must prove it was not solely responsible for any overpayments made to a welfare recipient.

CHECK THIS OUT: PARAGRAPH 75 (iii) OF THE AUSTRALIAN CONSTITUTION:

Original jurisdiction of High Court.

  1. (III) In all matters–  In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

When seeking to recover overpayments, or when claiming that that welfare recipients have “breached their ‘mutual obligations”, the constitutional statute above means that the courts, not bureaucrats, decide what are known in law as THE PRIMARY FACTS OF THE MATTER. At-the-moment, the Turnbull Government, like every other former government that have held office over the last 30 -40 years, have deliberately ignored this constitutional statute by creating laws that have turned Tortious Conduct, i.e. Centrelink’s recovery of ALLEGED overpayments, into an administrative decision. Just by creating such laws, Australia’s federal politicians may be in violation of Section 142.2 (1) (b) (ii) of the Commonwealth Criminal Code.

ISSUE OF LAW #3 – THE HIGH COURT’S BHARDWAJ AND HELLICAR DECISIONS.

Some Federal Court and High Court decisions can effect federal laws and so the federal Attorney-General’s Department issues Legal briefing Papers which can be downloaded from http://ags.gov.au/publications/legal-briefing/index.html

Briefing Paper No. 67 deals with the Bhardwaj Decision in 2002.

BHARDWAJ:

At paragraph 53 of this decision the High Court ruled that:

“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.”

WHAT DOES THIS DECISION MEAN?

If a decision is made that affects a person’s rights, if there is jurisdiction error, i.e. a mistake in law or due process of law, in law, no decision has been made and the whole decision-making process has-to-be-redone again because “…the decision remains unperformed.” When this decision is matched with the HELLICAR decision, the fact that the civil rights of vulnerable welfare recipients are being raped becomes immediately obvious.

HELLICAR:

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

On May 3rd 2012, at paragraph 141 in the High Court’s decision, the Court quietly dropped a legal ‘Nuke’ that invalidated decades of arbitrary decision-making by DHS officials in regard to ALLEGED breaches of contract by welfare recipients and responsibility for overpayments. The High Court 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, the High Court dropped another legal “Nuke” when it 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.”

WHAT DOES  MEAN?

Paragraph 141 means that the facts presented in any dispute between a government agency, e.g. Centrelink, and a person or corporate group, must be the truth and not just what bureaucrats and government lawyers say is the truth.

In paragraph 142 the Court stated the obvious and ruled that there are two sides to every case:

“Each side in a criminal trial “is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, … Proceedings for declaration of contravention or pecuniary penalty order engage no more stringent requirements.”

The ‘100-Megaton-Nuke’ is in paragraph 143 where the High Court ruled that

“…the proposition that the public interest requires that the facts upon which a regulatory agency relies must be facts that “actually occurred” appears to require the regulatory agency to make some final judgment about what “actually occurred” before it adduces evidence. Deciding the facts of the case is a court’s task, not a task for the regulatory authority.”

 TRANSLATION: It is for a court, not bureaucrats to decide the primary facts upon which administrators must base legal decisions that materially affect corporations or members of the public, INCLUDING welfare recipients.

What this also means is that or Government Ministers like Alan Tudge, the Minister for Human Services, aka Centrelink, have no constitutional right to say that 21 days is adequate time for people to prove to Centrelink that they were not responsible for overpayments.

IT IS A CON JOB TO FOOL PEOPLE THIS WAY: Any statements made by Alan Tudge, or by Centrelink officials, e.g.  Hank Jongen, are probably violations of section 142.2 (b) (ii) of the Commonwealth Criminal Code Act.

HOW TO DEAL WITH CENTRELINK’S VIOLATION OF YOUR RIGHTS.

I repeat: If Centrelink claims you have been overpaid, simply say, “It’s your fault, not mine. I don’t have to repay a cent unless a court says so.”

There are four very good reasons why Centrelink will not want to go to court:

 Given the well documented, and videoed, problems with ISIS and staffing workloads, it will almost impossible to disprove a Commonwealth error if you use official reports about the problems with Centrelink’s ISIS computer system, Ministerial statements about these problems, and the documentary videos that I have placed on YouTube. It is important to note that Parliamentary Privilege was never intended to cover unconstitutional or unlawful abuses of power such as systemic persecution, fraud, genocide and other Crimes against humanity that can be randomly fatal.

The cost: The text below, which may be subject to claims of ‘parliamentary privilege’ by some of the politicians responsible for the deaths of welfare recipients, comes from a Community Affairs Legislation Committee (CALC) hearing held on the 26th February 2015.

Readers should note that using a team of 3 or more lawyers is Standard Operating Procedure when the DHS rebuts AAT appeals made by impoverished welfare recipients who may be functionally illiterate or have significant disabilities or other health problems.

Senator Xenophon: Yesterday’s report in The Canberra Times revealed that the department has spent $565,000 of taxpayers’ money litigating against a father over, effectively, a $6,000 difference of opinion. I presume the journalist is correct with respect to the $565,000 figure?

Ms Campbell: [The Public Service boss of the DHS] The $565,000 is correct in the total amount involved in this case but it is incorrect in the other amount. The reason so much money has been spent on this case has been the need to test at law certain objectives.

Even a ‘normal case’ is hugely expensive, i.e. $25,000 a day, on average according to Ms. Campbell.

Thirdly, the “Model Litigant Rules”, includes include this restriction: “…where it is impossible to avoid litigation, keeping the costs of litigation to a minimum, including by:

  • not requiring the other party to prove the truth of the matter that the Commonwealth knows to be true;

  • not contesting liability if the Commonwealth knows that the dispute is really about quantum;

  • not taking advantage of a claimant who lacks the resources to litigate a claim;

With a reported $4,7 Billion overpaid to welfare recipients, the last point is perhaps more honoured in the breach than the observance with the above $565,000 example mentioned above.

The so far unreported death toll caused by deliberately violating the civil rights of vulnerable welfare recipients is an official state secret that both AGS lawyers will not disclose even though the classified death doll is CREDIBLE, RELEVANT and most definitely a SIGNIFICANT factor in any tort dispute.

Whether the total number is less than 1,000, or more than 100,000, these deaths are homicides caused by criminal misconduct, i.e. in law, they are probably murders under international, state, territory and federal laws.

GENOCIDE AND CRIMES AGAINST HUMANITY?

It is possible that under international law, the Federal Parliament has been committing crimes against humanity and genocide for decades. Check out the following provisions in the Rome Statute of the International Criminal Court:

THE ROME STATUTE: Article 6 – Genocide

[For ‘group’, read ‘welfare recipients’.]

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)     Killing members of the group;

(b)     Causing serious bodily or mental harm to members of the group;

(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

THE ROME STATUTE:  Provisions in Article 7 that may apply to the ‘No show, no pay’ breaching penalties include the following: [It is for a court to decide which provisions apply.]

Article 7 – Crimes against humanity

  1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a)     Murder;

(b)     Extermination;

(c)     Enslavement;

 (e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)     Torture;

 (h)    Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

 (k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. [The great ‘catch-all’.]

  1. For the purpose of paragraph 1:

(a)     “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b)     “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c)     “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d)     “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e)     “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(g)   “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h)     “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;  [Readers please note: Re“domination”, as in the lethal ‘No Show, No Pay’, No Survive law.]

  1. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.

Paragraph 51 of the constitution requires that the Federal parliament makes laws for the purpose of “good government”, which unfortunately can be easily interpreted by politicians as anything that they think is “good government”. However, there are international laws and conventions that also have principles that more impartially define “good government.”

The following information is from the Australian Human rights Commission, Briefing Paper No. 4,

 Lawful Limits on Fundamental Freedoms

Many fundamental freedoms are guaranteed by international human rights law. They include the freedoms of expression, movement and choice of residence, peaceful assembly and association, and the freedom to manifest one’s religion or belief.

All human rights and fundamental freedoms are subject to the general rule that no-one has the right to ‘engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms’ recognised elsewhere.

Some freedoms cannot be restricted by governments in the interests of balancing other competing interests. These ‘absolute freedoms’ include freedom from torture, freedom from arbitrary arrest and detention, freedom of thought, conscience and religion and freedom to hold opinions without interference.

Other freedoms, ‘limitable freedoms’, can be restricted by governments within defined boundaries with the aim of protecting competing interests. These restrictions or limitations are themselves constrained by international human rights law. A lawful limitation is one that satisfies at least five criteria.

  1. It must be provided by law or, in the case of limits on peaceful assembly, imposed in conformity with the law.

  2. The objective must be one or more from the following exhaustive list: protection of national security and/or public safety, protection of public order (ordre public), protection of public health or morals, protection of the rights and freedoms of others.

  3. It must be necessary to achieve its objective.

  4. It must operate without discrimination.

  5. It must be exceptional and not impair the essence of the freedom itself.

Australia’s GENOCIDE LAW IS SECTION 42C OF THE SOCIAL SECURITY (ADMINISTRATION) ACT.

On July 1st 2016, during the mass media black-out caused by the federal election, the Turnbull Government sought and received Royal Assent for this unconstitutional law. A crucial question that needs to be given very serious consideration by the United Nations Human Rights Commission, the International Criminal Court of Justice, all Australian Courts, and indeed, by all people who are opposed to the crime of Genocide, is why did the Australian Federal Parliament decide that this foreseeably lethal, human rights violating law, which may have triggered un-numbered thousands of fatalities, needed to be ‘strengthened’?

Subdivision B—No show no pay failures

Section 42C  No show no pay failures

            (1)  The Secretary may determine that a person commits a no show no pay failure on a day if:

                    (a)  the person commits any of the following failures:

                             (i)  the person fails to participate, on the day, in an activity that the person is required to undertake by an employment pathway plan that is in force in relation to the person;

                            (ii)  the person fails to comply, on the day, with a serious failure requirement imposed on the person;

This recklessly dangerous law, which arbitrarily deprives welfare recipients of the means to survive for periods of up to 2 months, is unconstitutional. As has been stated previously, any determination of the primary facts of the matter in an alleged ‘Breach of Contract’ or a ‘Compliance Failure’ is a matter for a court to determine. In addition, the penalty imposed is “cruel and inhumane”  and depriving a person of their means of subsistence violates both human rights treaty obligations and Australian statute laws dealing with criminal acts of reckless endangerment.

“No show, no pay” is an act of total deprivation, an action in 2010, the Queensland Supreme Court of Appeal determined was totally inappropriate when it overturned a decision by the Australian Tax Office.

DCT v Denlay [2010] QCA 217

Primary Facts of the Matter: The Commissioner of Taxation commenced enforcement proceedings against taxpayers, [Denlay], for the payment of assessments. The taxpayers sought an order from the court to stay the proceedings as they would be forced into liquidation. The Court ordered the stay of proceedings as there was relevant evidence, which should have been considered by the Commissioner, indicating that they would suffer hardship in having the judgement enforced.

Findings of the Queensland Court of Appeal

The Court stated: ‘[50] This leads to the appellant’s third point, that the loss of their property and consequent inability to prosecute their appeals does not constitute extreme personal hardship. The point may be answered shortly. It is preposterous to contend that the loss of the respondents’ entire estate, and with it any chance of demonstrating that the basis for the assessments was wrong so that they should not have lost their property, could not be a hardship rightly called extreme. It is not easy to imagine a greater hardship in this context. Certainly the primary judge cannot be criticised for so regarding it.’

 Broken down into bite sized sections, the Court ruled as follows:

  1. It is preposterous to contend that the loss of the respondents’ entire estate, and with it any chance of demonstrating that the basis for the assessments was wrong so that they should not have lost their property, could not be a hardship rightly called extreme.

  2. It is not easy to imagine a greater hardship in this context.

  3. Certainly the primary judge cannot be criticised for so regarding it.’

The power in the ‘No show, no pay’ law is its ability to unconstitutionally by-pass the courts and terrorize people with its unconstitutional and inhumane threat to deprive targeted victims of the ability to survive, i.e. the law is literally ‘An Act of State Terrorism’. Whilst the judge, on a substantial 6-figure salary may have stated It is not easy to imagine a greater hardship in this context, victims, and potential victims of the Section 42c “No show, no pay” statute, have no difficulty in imagining a greater hardship.

Regular readers of the Ronald’s space journal will be aware that a couple of years ago I represented a welfare recipient in the federal Administrative Appeals Tribunal. It was impossible to win this case because the Tribunal allowed Centrelink to withhold or destroy evidence, an act that violates the previously mentioned section 142.2 (b) (ii) of the Commonwealth Criminal Code. Had this case been held in a court of law as is required by the constitution, the following court judgement highlights how the court would have dealt with the withholding or the destruction of evidence:

R v Martens [2009] QCA 351

http://www.sclqld.org.au/caselaw/QCA/2009/351

Court of Appeal

R v Martens (No 2) [2009] QCA 351 ; (2010)262 ALR 106; [2011]1 Qd R 575 (09/0085) Muir JA Fraser JA Chesterman JA 13 November 2009

However the records are of the Cessna which on the evidence was only flown by Martens who, at the relevant times, flew no other aircraft – The evidence to this effect was not challenged – The Director of Public Prosecutions (Cth) submitted the records should be disregarded or discounted, because they are not fresh evidence – The submission does little credit to the DPP – The records are of critical importance – The prosecutor did not provide the records and instead told Martens that they did not exist – They were found after Martens’ conviction as a result of efforts made by his wife – It is a poor reflection upon the DPP and the Australian Federal Police that one should have failed to find them, and denied their existence, and the other object to their use in the reference on the ground that Martens should have obtained them earlier – The fresh evidence proves that GN did not fly with Martens from the small village to Port Moresby on any occasion which satisfies her depiction of the circumstances in which she was assaulted – The evidence also corroborates Martens’ evidence at his trial – Other evidence at the trial takes on new significance because the evidence of GN as to the second flight cannot be accepted.

HELD: Appeal allowed, conviction quashed and the order for imprisonment is set aside.

 The courts do not tolerate the withholding or destruction of evidence but there is at least one documented case where the federal Administrative Appeals Tribunal did just that, an action that is totally inconsistent with the fundamental responsibility of the solicitors [AAT ‘Members’] who preside in the AAT ‘Kangaroo Court’ hearings. The following statement comes straight from the 2015 Australian Law Society

 

AUSTRALIAN SOLICITORS CONDUCT RULES

[Source: http://www.lawsocietysa.asn.au/pdf/rules_of_professional_conduct.pdf ]

“Fundamental duties of Solicitors”:

 Section 3: “Paramount duty of the court and the administration of justice”.

Sub-section 3.1. states, “A solicitor’s duty of the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.”

Sub-section 4, Other fundamental ethical duties” specifies in 4.1.4 that a solicitor must “avoid any compromise to their integrity and professional independence.”

 It may be that I am biased, but I take the view that failing to ascertain all-of-the relevant-facts-of-the-matter in a hearing by allowing Centrelink to unlawfully withhold or even destroy what a court would probably consider to be the primary evidence in the appeal case totally consistent with the “paramount duty” of solicitors.

 The federal Administrative Appeals tribunal hearing determinations are published at http://www.austlii.edu.au/au/cases/cth/AATA/

 The very first case was heard in November 1976 with the Findings of the AAT published at: http://www.austlii.edu.au/au/cases/cth/AATA/1976/1.html

At the time of writing this journal entry, the most recent findings were published at: http://www.austlii.edu.au/au/cases/cth/AATA/2016/1085.html

 CHECK THIS OUT: http://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/AIALNSWSeminar27August2013.pdf

On August 28th 2013, the president of the AAT, Justice Duncan Kerr, gave a speech titled “Keeping the AAT from becoming a court.”

In that speech, Justice Kerr stated that

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.”

 “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.”XXXX“Where a primary decision is made by a public servant or minister and review power is conferred upon the AAT, the Tribunal’s task is to reach the correct and preferable decision. A useful short-hand statement to explain the role is to say that the AAT stands in the shoes of the person who made the decision.”

 WHAT DOES IT MEAN?

Paragraph 5 of the constitution states:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth .

Section 2A of the Administrative Appeals Tribunal Act 1975 (Compilation 103), states:

Tribunal’s objective: In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

As mentioned previously, paragraph 75 (iii) of the constitution prohibits the Parliament from making legal decisions for this the jurisdiction of the Courts and the AAT is not a court. However, as the title of Justice Kerr’s speech clearly indicates, all too often AAT hearings, which by Act of Parliament are supposed to be “informal”, are run like a court using practices and procedures that are common to courts.

 “DO YOU WANT COFFEE OR ‘T DOCUMENTS?”

The word ‘lawyer’ is not found in the AAT Act, however, the word representative is used 12 times. The absence of the word “lawyer” and the focus upon representative highlights the fact that the intention of the Parliament when this legislation was debated and passed was that the process should be, if possible, lawyer-free. However, AGS lawyers have now so usurped the AAT hearing process that it has become a defacto-court, a problem exacerbated by the fact that tribunal hearings are conducted in a manner that closely resembles court hearings.

One text book example of how Australian Government Service [AGS] lawyers working in the FOI & Litigation Branch of the Department of Human Services violate the civil rights of welfare recipients by violating constitutional rights, procedural fairness rights, and statute law obligations, is the issuing of documents that are known in the legal profession as ‘T-documents’.

‘T documents’ are FORMAL DOCUMENTS that are a core part of COURT PROCEEDINGS, i.e. they are required as part of due process in formal legal disputes in the courts, but are not required in INFORMAL HEARINGS in the AAT. ‘T-documents should never be presented to welfare recipients because most recipients lack the necessary professional legal expertise required to comprehend these documents; a matter of fact that may underpin the legislative requirement that AAT hearing be informal.

When an application is represented by a lawyer, i.e. another Officer-of-the-Court, this lawyer may formally request the presentation of such documents.

I would expect a lawyer representing a welfare recipient to do this only in circumstances where documents submitted on behalf of a government agency, e.g. the DHS or the DSS, do not contain the findings as to the primary matters of the fact as adduced by a court.

Since they are formal documents prepared by AGS lawyers, they MUST contain the primary matters of fact as adduced by a court. If these documents do not contain this information, then the government agency has no claim and the AAT, which only has the administrative jurisdiction to make and AN ADMINISTRATIVE DECISION that is, by Act of parliament, “FAIR” and “JUST”, can only make one legally valid “CORRECT” decision.

 MANIFEST OSTENSIBLE BIAS IN THE AAT SYSTEM

Welfare recipients should note the legislative built-in bias that underpins the operation of the AAT hearing system as identified. In his speech, Justice Kerr stated that “…the AAT stands in the shoes of the person who made the decision.”

This can be likened to a murder trial where the presiding judge tells the defendant and the jury, “Of course this will be a fair trial because I’m standing in the shoes of the arresting police officer.

Anyone really care for that sort of justice? As bad as that is, it gets worse.

As stated previous, in Hellicar ay 141, in legal disputes, the primary facts of the matter upon which a merits-based administrative decision can be made, must firstly be determined by a court. However, if you randomly check out the AAT findings in the hearings over the last 40-years, the one vital thing missing in most, if not, of these hearings is the “primary facts of the matter” as adduced by a court.

Although they have no constitutional right to do so, for 40-years AAT Members having being usurping the jurisdiction of the courts by adducing the primary facts of the matter.

 The Bhardwaj finding that “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 al” may apply to every AAT in which the AAT rather than a court determined the primary facts of the matter.

 BLACKMAIL IS STANDARD OPERATING PROCEDURE

I cannot emphasize too strongly, if Centrelink hits you with a breaching penalty, a claim for repayment of alleged overpayments, or tries to shift you to a lower paying welfare benefit IT IS A MATTER FOR THE COURTS.

A very common blackmail tactic used by public servants when trying to coerce welfare recipients into agreeing to repay an ALLEGED DEBT that Centrelink probably should have waived, is to threaten welfare recipients with a criminal prosecution if they do not agree to repay the ALLEGED overpayments.

Such tactics are a major crime, i.e. BLACKMAIL, and in my home state of South Australia, public servants who engage in such tactics face a penalty of 15-years in jail for making such a threat and 20-years in jail for enforcing such a threat.

I am sure that criminal laws in every state and territory in Australia contain similar laws that deal with INTIMIDATION, BLACKMAI, AND COERSION.

 THE BOTTOM LINE:

In Australia, welfare recipients have a broad range of civil rights and statutory protections that are routinely ignored by politicians, public servants, AGS lawyers, appeals tribunals, and even the police. Both ‘Work for the Dole’ and the “No show, no pay” provisions in Section 42C of the Social Security (Administration) Act are unconstitutional and the secretly classified fatalities caused by these constitutionally invalid laws are MURDER under Article 7 (1) (a) of the Rome Statute of the International Criminal Court.

However, in the end, the standard of justice that welfare recipients receive is the standard that each individual accepts.

The more knowledge and understanding welfare recipients have of their rights, the more likely they are to are to fight for those rights. This in turn means that there is a higher-degree of probability that those rights will be respected and complied with.

Until this happens, or until people with the responsibility, and the willingness, to intercede on behalf of Australia’s oppressed citizens, injustice in Australia will continue to prevail and the Australian Parliament, aided and abetted by some sections of the mass media and an indifferent “I don’t want to know” public, will continue to engage in the commission of acts of GENOCIDE and other inhumane CRIMES AGAINST HUMANITY.

The constitutional statement that “…the laws of the Commonwealth shall be BINDING on the Courts, judges and the people” imposes a common obligation on every person in Australia that is very clearly expressed in this biblical passage:

“Speak up for the people who cannot speak up for themselves. Protect the rights of all who are helpless. Speak for them and be a righteous judge. Protect the rights of the poor and needy.” [Proverbs, chapter 31 verses 8 & 9]

 WHATEVER YOUR RELIGIOUS BELIEFS, IT IS UN-AUSTRALIAN AND INHUMANE to allow the persecution, intimidation and murder of Australia’s most vulnerable citizens.

Ronald Medlicott.

A Christian volunteer lay advocate for Justice in Australia.

 

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This entry was posted in Human Rights violations, News and politics, Political, Uncategorized, Welfare rights and tagged , , , , , , , , . Bookmark the permalink.

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