Part 40 (D). Australia’s “irrelevant” crimes against humanity.

Australia’s “irrelevant” crimes against humanity are happening because Australian Government Service lawyers are not heeding the advice of Commissioner Ian Hanger and advising government Ministers of the “negative” aspects and ‘risks’ inherent in welfare policies and practices.

Note: The short link URL for this site is: http://wp.me/p1n8TZ-Kd

Below the line is the text of an updated email to Mr.Tim Begbie, is a Senior Legal Counsel for the Federal Government. Welfare recipients how get slugged with one of the Tudge Fudge Fraud demands should copy this email text and include it any rebuttal of Centrelink’s demands.

I also recommend copying the text below into an email and sending it to Mr. Begbie. At the top of the email just print 2 words: EXPLAIN PLEASE.

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To:    Tim Begbie
Senior General Counsel
T 02 6253 7521
tim.begbie@ags.gov.au

Re: Violation of the constitution – The horrific, real-world-impact of s.42C of the Social Security (Administration) Act (1991).

As a senior AGS lawyer, I should not have to remind you that the constitution is the ultimate law in Australia; even the High Court and the Parliament are bound by it. However, as the Parliament demonstrated on 4th August 2011, if politicians believe that they can get their own way and undermine the jurisdiction of the courts, they will give it a try. The High Court is well aware of this political reality and the rejection of the retrospective legislation put through the Parliament on 4th August 2011 was most emphatic as the following Extracts from the High Court’s Keating decision [HCA 20] on 8th May 2013, clearly reveals:

  1. On the Director’s construction, s. 66A creates a statutory fiction with the effect of attaching criminal liability to the defendant for her failure to advise the Department of an event within 14 days of its occurrence. This is so notwithstanding that at the time of the failure she was not required by law to inform the Department of the event (putting to one side receipt of any information notice) and that the duty is incapable of discharge.* [My comment; Pay slips may not be available for 3-4 weeks.]

  2. A clear statement of legislative intention is required before the courts will find that liability for a serious Commonwealth offence is imposed by means of a statutory fiction. The ascertainment of such an intention proceeds by the application of well-understood principles. In issue is proof of an offence under the Code. This directs attention to the law creating the offence and to the general principles of criminal responsibility under the Code. To observe that s 66A of the Administration Act operates with retrospective effect is not to conclude that the deemed duty it imposes engages with s 135.2(1)(a) and s 4.3 of the Code so as to render the latter nugatory in the case of an omission to inform the Department of an event or change in circumstances on and from 20 March 2000 to 4 August 2011, the date on which the Amendment Act received the Royal Assent.

  3. It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing. As explained in Poniatowska, s 4.3 of the Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way:

“A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly. [My Comment: This is a presumption masquerading as a fact, this is not supported by the facts of the matter; an issue that may have to considered by the International Criminal Court.]

The relevance of these findings in Keating to Section 42C of the Social Security (Administration) Act (1991) is significant for a number of reasons, starting with provisions contained within the Australian constitution.

Firstly, all the laws of the Commonwealth are binding on the courts, judges, and [the] people, which happens to include Members of Parliament:

  1. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first   port of clearance and whose port of destination are in the Commonwealth.

Secondly, in paragraph 51 (xxiiiA) of the constitution, the Parliament has a constitutional obligation to pay welfare benefit to those requiring them, and the payment of these benefits cannot be linked to “civil conscription” payments:

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

(xxiiiA)   The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:

It is not ‘good government’ to violate either the constitutional requirement that the parliament “shall” make “provision” for needy people who may have no other means of surviving without a subsistence allowance. It is also not ‘good government’ for the Parliament, over a period measured in decades, to deliberately violate the constitutional constraint that welfare payments cannot be linked to “any form of civil conscription, i.e. Work for the Dole.

Thirdly, in paragraph 75 of the constitution, there is a clear separation of the powers of the Parliament and the Courts:

Original jurisdiction of High Court.   75. In all matters–

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

When it comes to issues such as an alleged “breach of contract”, the obligation on the Commonwealth is to have the facts of the matter determined by a court. Despite the impression that Alan Tudge, Christian Porter and the pseudo “Centrelink General Manager”, Hank Jongen, have been conveying to the general public in statements to the mass media, politicians or public servants, who may have a vested interest in tortious conduct disputes, have no jurisdiction to make decisions concerning fault until a court has determined the primary facts of the matter upon which a fair and just decision can be based. As you ought to be aware, this is validated by the High Court’s Hellicar decision [HCA 17] on May 3rd 2012 at 141 – 143:

(141) How this duty which the Court of Appeal identified ASIC as having differs in any relevant respect from the duty of a Crown prosecutor considered in Whitehorn and in Apostilides was not examined.. And insofar as the duty was said to stem from a proposition “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”, that premise is false for at least two reasons.

(142) First, the proposition ignores that even a criminal trial “is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence”. 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, of course, subject to the rules of evidence, fairness and admissibility. Proceedings for declaration of contravention or pecuniary penalty order engage no more stringent required. [My Comment: Whether a murder trial, or a Centrelink ‘Account payable’ demand, in law, the same principles apply when deciding the facts of the matter.]

(143) Second, 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. [My Comment: Whether the issue is an alleged compliance failure or an alleged overpayment, deciding the facts of the matter upon which a fair and just decision can be made is a matter for a court to determine, not Centrelink officials who may be concealing a $4.7 Billion “Commonwealth error”.]

The Hellicar decision was handed down on 3rd May 2012. 10 years earlier, on March 14th 2002, Chief justice Gleeson handed down the High Court’s decision in Bhardwaj, [HCA 11] on 14th March 2002.

 Decisions involving jurisdictional error: the general law

51 There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged*. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

[My Comment: *Once a Centrelink decision is challenged, e.g., “It’s not my fault”, in law, deciding the facts of the matter automatically becomes a matter for the courts, not Centrelink bureaucrats. This civil right should not be presented as a threat to welfare recipients, i.e. ”Pay up or we will take you to court” as that violates Federal “Menace” and State “Blackmail” laws.]

52 The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:

“As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances …

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.” [My Comment: Re “…the principle of functus offcio.” In far too many cases, in practice, this means “never minds the facts of the matter” because the legal process is more important. When this happens, “the Law” becomes more important than “Justice” and consequently, Justice is not done.]

In the same case, his Lordship cited with approval a statement by McLachlin J that:

“as a matter of logic and on the authorities … a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision”.

53 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. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.

The Act and jurisdictional error

54   There being no provision of the Act which, in terms, purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error, as did the September decision, it is necessary to consider whether, nevertheless, the Act should be construed as impliedly having that effect. The only provisions of the Act which might conceivably sustain that implication are s 476(1) which limits the grounds upon which the Federal Court may set aside a Tribunal decision, s 478(1) which requires that applications for judicial review be made within 28 days and ss 485(1) and (3) which expressly provide that the Federal Court has no jurisdiction with respect to judicially-reviewable decisions other than that conferred by Pt 8 of the Act.

On 1st July 2016, Her Majesty, Queen Elizabeth II, through the proxy agency of the Governor-General, Sir Peter Cosgrove, gave royal assent to a Bill passed by the Parliament that both exceeded the constitutional powers of the Parliament, which for the purpose of “good government” is required to make ‘provision’ for the payment of welfare benefits to needy people. In addition, the legislation infringed a constitutional prohibition, i.e. the payment of some welfare benefits have been linked to civil conscription, i.e. Work for the Dole. Above and beyond this, as per Hellicar at 141 and Bhardwaj at 51, when it comes to tortious conduct issues, the Parliament has no constitutional jurisdiction to grant authority to Australian Public Service decision-makers, e.g. the Secretary of the Department of Social Services. The High Court decisions are very clear, the power to determine the facts of the matter in any tortious conduct dispute is a matter for the courts, not the Secretary, nor agents of the Secretary.

The Amendment Bill dealt with the imposition of “no show no pay” welfare penalties in section 42A of the Social Security (Administration) Act (1991). Within this Bill are the following unconstitutional, procedural fairness violating provisions:

  • “The Secretary may determine that a person commits a no show no pay failure or a serious failure.”

  • “A person commits such a failure by failing to comply with his or her obligations in relation to a participation payment. The participation payments are Newstart allowance, and for some people, youth allowance, parenting payment, or special benefit.”

As was stated in Hellicar at 141 -143, when a tortious conduct situation arises:

  1. “…a proposition “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”, that premise is false.”

  2. Proceedings for declaration of contravention or pecuniary penalty order engage no more stringent required.

  3. . Deciding the facts of the case is a court’s task, not a task for the regulatory authority.

I reiterate the point that these 3 statements are very clearly worded precedents that can be applied in conjunction with the following precedents in Bhardwaj:

  1. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

  2. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

  3. 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.

A Human Rights Issue: “Equality” requires “Equality of access” to taxpayer funded legal expertise.”

A finding within 54 of Bhardwaj that is inconsistent with the fundamental human right and procedural right to “Equality before the law” is found in this statement,

“… of the Tribunal which involve jurisdictional error, as did the September decision, it is necessary to consider whether, nevertheless, the Act should be construed as impliedly having that effect. The only provisions of the Act which might conceivably sustain that implication are s 476(1) which limits the grounds upon which the Federal Court may set aside a Tribunal decision, s 478(1) which requires that applications for judicial review be made within 28 days and ss 485(1) and (3) which expressly provide that the Federal Court has no jurisdiction with respect to judicially-reviewable decisions other than that conferred by Pt 8 of the Act.

For impoverished, functionally illiterate welfare recipients who may be struggling to cope with potentially lethal comorbidity problems, the timeframes and processes required to lodge a Federal court appeal constitute a Systemic denial of Justice. Applying for the resources needed to lodge an appeal is in itself a, process that is beyond the vast majority of welfare recipients.

KEY SOCIO-ECONOMIC BARRIERS TO JUSTICE:

Paragraph 47 of the 2002 Welfare Reform Paper states:

  • An adequate safety net:
    Assistance is targeted to those most in need. People with no other means of support are assisted with their basic costs of living. People with no capacity for work receive a package of assistance that reflects their need for long-term support. People with capacity for some paid work are assisted to earn an adequate income through work.

  1. Welfare recipients are impoverished, with welfare payments intended to meet “basic costs of living”.

  2. If a person has “…no capacity for work, it is self-evident that they also have no capacity to undertake a task that requires the professional skills of a legal expert, i.e. a lawyer. If they cannot afford a lawyer, or cannot find a legal aid lawyer able to comprehend and cope with their case, how do they apply for funding for legal assistance to lodge a federal court appeal?

  3. Further compounding this massive socio-economic barrier to accessing Justice is the absolutely massive issue of functional illiteracy that was identified in Australian Bureau of Statistics Adult Life Skills Survey Report in 1996 and which was updated in the 2006 survey, the results of which are summarized in ABS Summary report 4228. The following statement is from page 11 of the Summary Report:

Across all the scales, those employed had the highest proportion with scores of Level 3 or above (prose 60%, document 61%, numeracy 56%, problem solving 36% and health literacy 47%). Those not in the labour force had the highest proportion assessed at Level 1 or 2 for the prose (63%) and document (67%) scales, while for numeracy, the unemployed had the highest proportion attaining Level 1 or 2 (73%). For the health literacy and problem solving scales, the unemployed and those not in the labour force had the highest proportion assessed at Level 1 or 2 (75% and 84% respectively

What this report summary reveals is that “For the health literacy and problem solving scales, the unemployed and those not in the labour force had the highest proportion assessed at Level 1 or 2 (75% and 84% respectively.”

At Level one on the functional illiteracy “problem solving skills”, it means a lack of ability to comprehend instructions on how to bake a cake, or the inability to accurately read a train or bus timetable.

In Bushell & Secretary of State for the Environment [1981] AC75 (HL 97), Lord Dorling stated, “To over judicialise the enquiry by insisting on observance of the procedures of the court of Justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.”

Further underscoring this legal judgement, on August 28th 2013, when speaking at a seminar held by the News South Wales branch of the Australian Institute of Administrative Lawyers, Justice Duncan Kerr stated, “It is understandable that lawyers familiar with and expert in the way things are done in court, and arguably privileged by expertise in contrast to unrepresented litigants, might call for those rules to also apply in any tribunal in which they appear. It is equally understandable that such lawyers might, as does Rees, share the view expressed obiter dicta by Evatt J in R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256 that every departure from the rules of evidence will necessarily advantage one side and necessarily disadvantage the other. However, if that proposition was ever tenable, in my view, in the case of modern tribunals designed to permit access to unrepresented as well as represented parties, it conflicts with the statutory commands to the AAT referred to above. Tribunals must be equally open to the unrepresented as to those who can afford counsel.” [My Comment: Lawyers can unfairly manipulate the legal process and gain an unfair advantage that undermines the purpose of the appeal process. In theory, the appeal tribunal should intervene; in practice, in the AAT, this intervention may not always occur.]

The use of taxpayer funded privileged expertise, i.e. professional lawyers …competent to operate effectively in the interests of their clients, i.e. the Commonwealth, against unrepresented litigants who are often  impoverished and who may have serious functional literacy problems is anything but “equality before the law.”

It is in point of fact a gross travesty of justice, i.e. token ‘Justice’, that is totally inconsistent with the Commonwealth’s treaty obligations to provide “Equality before the law” e.g. Article 26 of the International convention of Civil and political rights states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The phrase other status” includes socio-economic status, i.e. it is a denial of human rights for a national government, or an agency of a national government, e.g… the Department of Human Services, to undertake legal action using taxpayers funds whilst depriving an impoverished person of the same taxpayer funded access to professional legal advice. Equality means exactly that; in FY 2014 -2015, the Department of Human Services, (the Commonwealth), spent at least $565,000 in a tort dispute against a welfare recipient who could not afford legal representation and had to self-represent. However, in order to comply with Article 26 human rights treaty obligations, equal legal representation using taxpayer funding, should have been provided in this tortious conduct dispute.

WHY LAWYERS CAN BE LETHAL WEAPONS.

The legal issue of Equality before the law is even further compounded by the identified high levels of potentially lethal health problems, e.g. the mental health risks identified in the 1998 Health Priority Areas report – mental Health and the more recent 2006 Senate Select Committee Report on Mental Health. The identified potentially fatal risks to people with mental health problems who may commit suicide is a clearly foreseeable health risk that is addressed by state and territory criminal codes, e.g. s. 13 (7) in South Australia, s. 296 in Queensland and s.18. in New South Wales.

When used against impoverished, functionally illiterate welfare recipients who may be potentially suicidal, AGS or contracted lawyers may become lethal weapons when ‘deployed’, at taxpayers’ expense, against at-risk welfare recipients who, may be so stupefied and overwhelmed emotionally, that whether intended or not, an easily foreseeable fatal outcome results from the actions of the lawyers who ‘were only doing as they were told.

Justice Kerr’s statement that every departure from the rules of evidence will necessarily advantage one side and necessarily disadvantage the other” needs to re-appraised in terms of the easily foreseeable potentially fatal “disadvantage” of a vulnerable, traumatized person suffering a fatal heart attack, stroke, or committing suicide. As Commissioner Ian Hanger QC made very clear in 14.6.7 of the Report into Home Insulation Program, risk assessment needs to consider all possible negative impact issues; not just those most directly associated with departmental or government policy. For example, why have a senate select committee examine the nation’s mental health problems and then ignore the committee’s finding in the pursuit of tortious conduct to recover alleged overpayment?

HIDING THE DEAD – POST BREACHING TERMINAL OUTCOMES.

Professional organizations and bureaucracies have their own language, e.g. the previously mentioned “functus officio”. In the mid-1990s when I was managing a CES funded job club, breaching triggered fatalities were referred to as “Post breaching terminal outcomes”, a euphemism that concealed the death toll caused by breaching policies and practices. In 14.8.3 to 14.8.6 Commissioner Hanger was highly critical of the practice of using euphemisms to avoid controversial or complex issues, or to hide issues that needed to be kept out of the public arena:

14.8.3 The misuse of language, as Don Watson has shown in his work, although at first glance a question of semantics, can be so gross as to affect the substance of what is to be achieved …The choice of words reflects also the associated mental process. A public servant who says something is “challenging” has, as a matter of cognitive function, not directed him or her herself to the nature of the problem and its seriousness. They have simply formed a view that something will not be easy. But to think that this constitutes any form of sophisticated analysis is, of course, folly.

14.8.4 Worse still is the use of cypher or euphemism in place of clear communication—where an officer has in fact directed him or herself to the nature of the problem, yet is not sufficiently fearless to provide the Minister with frank advice that is set out in very clear terms, for fear of limiting future career prospects.

14.8.5 The use of euphemisms to avoid precise thinking or frank communication is a problem that has proved difficult to fix and has in recent years only become worse. To my   mind, it is a sign of a lack of mental discipline, a laziness that favours use of the meaningless and familiar. All this comes at the cost of precision and reduces the clarity of communication—and the thought behind it—to ineffectual and pointless activities.

14.8.6 The solution turns upon the selection of good, well-trained and experienced people, familiar with difficult tasks and able to demonstrate their past achievements. It is not a matter of simply re-training people who have fallen into poor habits.

The latter point may apply to Justice Kerr, who upon being appraised of the irregularities in the AAT appeal that I was involved in did nothing. Was should have been the appropriate response to this statement, made during the hearing, which was based upon an official ABS report and documents tendered in evidence?

In the 10-year period from 1st January 1997 until the 31st December 2006, there were 20,914 suicides[1]; 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”.

In addition to that statement, Justice Kerr had a copy of an audio file of a senior AGS lawyer and a Senior AAT Member discussing an appeal going “to trial”, along with a copy of an email from an AGS lawyer indicating that evidence was withheld. Justice Kerr should have acted to ensure that a fair hearing with a just decision was made. Instead, he did nothing. Any consideration of this failure to act is purely speculative; however, this happening in the AAT under his leadership; however and when confronted with irrefutable evidence of a “departure from the rules of evidence”, Justice Kerr did nothing to remedy this injustice.

Justice Kerr’s failure to take action when action was required, as per Bhardwaj at 53 and 54, was inexplicable, especially since the withholding or destruction of evidence may involve breaches of the Commonwealth Criminal Code Act. Justice Kerr was also aware that the unreported fatalities were also ignored by the Federal Ombudsman’s Office and the Federal Police The failure of Justice Kerr to address these issues opens the door to the possibility of a criminal conspiracy.

That it is possible to even raise such a seemingly inconceivable allegation is in itself cause for grave concern.

Given the well-documented and reported vulnerabilities of welfare recipients, and the questionable advisability of engaging in litigation that has the potential to fatal outcomes, it is the height of arrogant hubris for the Parliament to presume that it is ‘good government’ to allow 28 days or even 31 days for welfare recipients to lodge a Federal Court appeal, especially when the courts have been by-passed in the first place up until that stage of the appeal process.

Although my GPA 4.0/4.0 post-graduate research skills may be extremely rusty, they are far ahead of the Level 1 and Level 2 functional illiteracy skills of many unemployed people who may be forced to appeal in the AAT. It took me 414 days to find the Hellicar Decision. The task not made any easier by the fact that this extremely significant decision appears to be conspicuously absent from AGS Legal Briefing papers website. This apparent omission from the AGS Legal Briefing Papers websites fosters the not unreasonable belief that this was, and still is, an intentional omission for the express purpose of minimizing the chance that it will be discovered and used in appeals. If that was/is the case, then every public official involved in the concealment of the Hellicar decision may have to account for their actions to a criminal court.

The High Court’s use of the phrase “a statutory fiction” in paragraphs 46 and 47 of the Keating decision underscores the fact that the Parliament’s actions may not always be acts of honesty and integrity The statement, “The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing” was in itself inconsistent with the right of a wrongly accused person to be compensated if wrongly convicted. Rather than own up to a legislated blunder, the Parliament attempted a ‘statutory fiction’ in order to avoid the consequences of its blunder. In 14.7.3.2.1 of the HIP report, Commissioner Hanger stated, “The Australian government should not seek to abrogate responsibility for identified risk”, a legal principle that appears to be more honoured in the breach that the observance by the Federal Parliament.

Commissioner Hanger had previously stated in 14.7.3.2, “Government must recognize that as much as it might seek to do so, risk cannot be abrogated. The responsibility of Government is to care for its citizens and to exercise care and diligence to do everything reasonable to ensure that its citizens are not placed in danger by its actions, particularly risk of death and serious injury.”

Work for the Dole is “civil conscription”, a statutory “obligation” that violates a constitutional prohibition specified in s. 51 (xxiiiA) of the constitution. It therefore follows that any legislation that imposes a penalty upon a constitution prohibition is yet another “statutory fiction”. Since the only penalty that the Parliament applies to alleged non-compliance with an unconstitutional “obligation” is the recklessly dangerous, unconstitutional, and completely inhumane “No show, no pay” penalty, i.e. the removal of the only means of meeting “basic living costs”, the Parliament is deliberately exceeding its lawful authority by placing lives at risk, possibly for financial and/or political gain, or equally possibly, simply because the power to this is something that is considered to be “acceptable”.

Further compounding this recklessly dangerous injustice is the High Court’s previously mentioned rulings in Hellicar, “Deciding the facts of the case is a court’s task, not a task for the regulatory authority”, and the Bhardwaj decision thatA decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”. Very few welfare recipients have the legal skills or other resources needed to successfully make applications for judicial review. This is a complex process that require skills “which professional lawyers alone are competent to operate effectively.” It is axiomatic that lawyers [are] familiar with and expert in the way things are done in court, and arguably privileged by expertise. Based upon the ABS 2006 Adult Life Skills Survey results, only a minute percentage of welfare recipients who are forced to argue an appeal in the AAT have the necessary capabilities to do so.

However, the very need to so only occurs because the Federal Government, i.e. Centrelink, does not uphold the civil rights of welfare recipients by ensuring that a court determine the facts of the matter, could reasonably understand this professional jargon?

“the principle of functus officio applies” 

[In law, the principle which prevents the re-opening of a matter before the same court, tribunal or other statutory authority which rendered the final decision in the absence of statutory authority to do so. Both Lord Dorling and Justice Kerr are quite correct in defining lawyers as people with professional, privileged expertise. Lord Dorling was, and still is, also quite correct in his determination that “To over judicialise …would not be fair.”

THE RAPE OF RIGHTS IS SHEER MURDER.

Unconstitutional laws, unlawfully applied millions of times over a period of decades to an exceedingly vulnerable targeted minority that is exceedingly prone to suicide, heart attacks, strokes and other easily triggered fatal “natural causes” events, e.g. exposure due to eviction when deprived of a subsistence allowance or deaths due to asthma because no money was available to buy an Asthma ‘puffer’ to prevent or treat an attack.

In Australia, statistically, a person dies of a heart attack every 9 minutes. This is 160 deaths per day and just under 40% of those people are welfare recipients, i.e. approximately 60 per day. When you do the maths on 60 welfare recipient fatal heart attacks per day, i.e. 365 x 60, you have 21,900 fatal heart attacks per year or 219,000 in 10 years, or over 650,000 over the last 30 – 40s.

Add in fatalities from Strokes suicides and other natural causes and the number soars to approximately 1 million fatalities. With potential numbers like that, is it any wonder that even in the middle of a Senate Select Committee Inquiry into the home Insulation Program disaster, Assistant Secretary Neil Skill was unwilling to “collect” and report on the number of fatalities that might have been caused by breaching legislation?

It is therefore easy to comprehend why both the Senate’s ECA Committee, and an AGS lawyer in the AAT appeal that I previously participated in, tried to downplay these fatalities as “irrelevant”.

Whatever else these fatalities are, they are not “irrelevant”. Under Article 7 (1) (a) of the Rome Statute, these deaths are systemic murders on a holocaust scale. They are also unlawful homicides in every state and territory in Australia, a fact of law that means there is no statute of limitations on these deaths. Once there is official recognition of even one fatality as an unlawful homicide, the flood-gate will open and a review of all fatalities will be deemed necessary.

Once that happens, those responsible for the recklessly dangerous laws, and the enforcement of those laws, will have to answer for their actions in accordance with Due process of law…

The Rape of Rights of Australia’s most vulnerable people, i.e. the persecution, intimidation, coercive enslavement, the “irrelevant” murders of welfare recipients will all have to cease. So also will the rampaging rape of procedural fairness rights by Alan Tudge, Christian Porter, and the pseudo “Centrelink General Manager”, Hank Jongen*,  [*For the record Mr. Jongen’s official title is ‘Department of Human Services General Manager, Communication Division’.]

Whilst the phrase “rampaging rape of procedural fairness rights” may at first reading appear to be gross hyperbole, the matter of fact is to be found in paragraph 51 of Chief Justice Gleeson’s comments in Bhardwaj, Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.

Note the 3 underlined statements:

  1. the rights of the individual to whom the decision relates

  2. are deemed to be other than as recognised by the law

  3. if and when the decision is challenged.

  • The statement “rights of the individual” in the first statement1 addresses the fact of law that in tort disputes brought on by the Commonwealth, people have rights that must be respected by the Commonwealth..

  • Statement #2 is also very clear, these rights are deemed to be other than as recognised by the law, e. they are deemed too other than what the law requires.

  • The statement if and when the decision is challenged” means that these rights apply from the instant that a Commonwealth decision-maker’s decision is challenged by a person, e.g. a welfare recipients who Centrelink alleges has been overpaid.

Once a decision by the Secretary of the department of Human Services or the Department of Social Services is challenged, the constitutional right of the individual is to have the primary facts of the matter adduced by a court. Since the Commonwealth is the applicant, the onus is on the Commonwealth, not the respondent, i.e. the welfare recipient, to prove that a Commonwealth error has not occurred.

By making public statements claiming that welfare recipients must provide proof to Centrelink, within 21 days, that Centrelink was at fault, Alan Tudge, Christian Porter and Hank Jongen are creating a false belief that is inconsistent with the civil rights of welfare recipients who are the respondents in Centrelink tort actions.

That is a criminal abuse of public office as no Public Servant, be they a Government Minister, or a senior ‘Spin Doctor’, has the legal right to mislead people for the purpose of recovering alleged overpayments.

As Justice Gleeson further pointed out in Bhardwaj at 51, “A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.” Alan Tudge, Christian Porter and Hank Jongen have no legal right to set aside the constitutional or procedural fairness rights of welfare recipients for the apparent purpose of recovering alleged overpayments, if Commonwealth errors more than 6-weeks old, the Commonwealth has no legal right to attempt to recover.

There are two other real-world examples of this rape of civil rights.

Firstly, there is this statement: “I am all in favour of rights. I am also in favour of the rights of taxpayers not to have their money abused. I am in favour of the rights of taxpayers to say that young people should be doing the right thing by themselves and by our society.”

Tony Abbott: Question Time, 30th September 2014, [Hansard – page 10,755.]

Secondly, during the AAT hearing that I participated in as a lay advocate assisting a welfare recipient in an appeal, in my opening remarks I emphasized the point that the welfare recipient had rights that must be respected. This was a reference to the fact that one such right was a fair hearing in which evidence was not withheld.

It is a matter of record, as recorded by the Legal Shorthand typist, and also on both audio and audio-visual recordings, that the AGS lawyer representing Finn Pratt, the Secretary of the Department of Social Services, responded on behalf of Mr. Pratt by requesting that the issue of human rights be set aside for “other courts” to consider.

  1. Neither Mr. Pratt, nor the AGS lawyer representing him, had the authority to make that request.

  2. Incredibly, as the record reveals, that request was not rejected by the Presiding Member who had no lawful authority to accede to that request.

  3. The rape of the rights is systemic and flows from the top down.

  4. This is evidenced by the need for the Keating decision, a totally unnecessary decision if the Parliament had respected the civil rights of the 15,000 welfare recipients who had been convicted of a non-existent crime.

  5. It is evidenced by the attempt by the Abbott Government to enact a recklessly dangerous, unconstitutional and human rights violating law that would have deprived deprive young unemployed people of a subsistence allowance for a period of 6-months.

  6. It is evidenced by Her Majesty giving royal assent on 1st July 2016 to a Bill that contained unconstitutional provisions that place the lives of Her Majesty’s loyal subjects in life threatening peril.

  7. The ultimate evidence of the rape of rights is the failure to disclose fatalities that may have been triggered by unconstitutional tortious conduct when I requested this information on more than one occasion.

  8. This concealment of fatalities extents to the Quarterly Public Accountability Reports and annual reports to the Federal parliament, i.e. none of these public reports include and details concerning these fatalities

  9. This failure to be transparent about tortious conduct fatalities is compounded by Australian Senate Select Committees of Inquiry secretly classifying the fatalities as “confidential” and “irrelevant”.

At this point in time, the precise death toll is unknown; however, a conservative analysis of published heath report statistics indicates that the death toll may be around the 100,000 mark.

THIS RAPE OF CIVIL RIGHTS NEEDS TO END NOW.

Ronald Medlicott – Australian citizen, registered teacher, genocide survivor, and a Christian lay advocate for justice.

 

[1]  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.  –

 

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One Response to Part 40 (D). Australia’s “irrelevant” crimes against humanity.

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