Part 42. Australia’s “irrelevant” Crimes against Humanity. A redacted cover letter to the case officer handling an AAT appeal.

Australia’s “irrelevant” crimes against humanity are gaining more publicity as the Turnbull Government ruthlessly pushed the Tudge Fudge Fraud. The text in this posting is a redacted copy of a submission to a case officer in an upcoming Administrative Appeals Tribunal.

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Anyone sucked into challenging a Centrelink appeal on Centrelink’s terms needs to read every single word in this posting.

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To:      Mr. Mark Tange

Case Service Officer

AAT

GPO Box 9956

Sydney NSW 2001

Your ref: 201?/????

Dear Mr. Tange,

Attached is a copy of a letter of authority, a copy of which should already be in your files as I did request that Mr. ??????es forward a copy to the AAT when he signed the copy that he posted back to me.

I appreciate that in practical terms, your role in this appeal is to be a central point or conduit for collection and transmission of information and that your role does not involve making any judgements on the merits of the information that you receive. However, although you should have received from Mr. ??????es notification by both email and letter of my appointment as his representative in this tort action, I have not been officially advised as to the name and contact details for the person representing the Secretary of the DSS. I therefore write to you on the belief that my communications will be forwarded to the appropriate persons involved in this fraudulent Dickensian Bleak House farce of a tort action brought on by the Department of Human Services with the full endorsement of a Federal Parliament that has demonstrated scant regard for due process of in welfare torts actions.

“It seems, however, that even quite rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence.

Clear professional standards, appropriate training, credentialing and quality control for expert witnesses have the potential to address more directly the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts. Finally, the legal profession and the judiciary need to improve their scientific literacy.”

“THE CHALLENGES OF SCIENTIFIC EVIDENCE” The Honourable Thomas A. Cromwell, Scottish Council of Law Reporting. Macfadyen Lecture 2011 March 2011

One of the primary characteristics of the secretary’s tort action against Mr. ??????es is the fact that at no time as any person with appropriate scientific and technical expertise being involved in the decision-making process. Even worse, Mr. ??????es legal rights have been deliberately violated.

On 3 May 2012 the High Court handed down its decision in ASIC v Hellicar. Your attention is drawn to the following three paragraphs:

  1. The Court of Appeal recorded[128]that ASIC accepted that it had “an obligation to act fairly with respect to the conduct of the proceedings” but ASIC did not accept that its obligation to act fairly required it to call Mr Robb as its witness. The Court of Appeal concluded[129], however, that Mr Robb should have been called by ASIC. The Court said[130]:

“A body in the position of ASIC, owing the obligation of fairness to which it was subject, was obliged to call a witness of such central significance to critical issues that had arisen in the proceedings. The scope of its powers and the public interest dimensions of its functions, most relevantly with respect to ensuring proper internal governance of corporations and that the market for securities in shares was fully informed, was such that resolution of the civil penalty proceedings required it to call, if only with a view to showing (if it were the case) that he could not in fact recall anything on the factual issues and for cross examination by the [defendants], a witness of such potential importance.”

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[131]. And insofar as the duty was said[132] 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.

  1. 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”[133]. 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”[134]. Proceedings for declaration of contravention or pecuniary penalty order engage no more stringent requirements.

  1. 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.

Note that in paragraph 141 the court’s finding was that the determination of the primary facts of the matter in disputes between a regulator and another party is not within the jurisdiction of the regulator. At paragraph 143 the court was most emphatic with the statement that the proposition that public interest requires that the facts upon which a regulatory authority relies in order to make a decision requires that the facts as to what actually occurred must be adduced by a court. Once a decision is disputed, the Secretary has no jurisdiction to determine the facts of the matter. In 2002, the High Court ruled that paragraph 53 in the Bhardwaj decision that a decision involving jurisdictional error has no legal foundation and is to be properly regarded, in law, as no decision at all.

  1. 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[33]. 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.

  1. 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.”[34]

In the same case, his Lordship cited[35] 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”[36].

  1. 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.

As can be seen from the above Bhardwaj findings, the High Court further stated that if a decision is made in respect to a person rights but, because of jurisdictional error a decision that in law, is no decision at all, then, the duty to make the decision remains unperformed.

The first step any appeal process at all levels, from administrative review officer to the Federal Court starts with the question “what was the findings of fact adduced by a court upon which this decision was based?” If there is no court decision upon which the facts of the matter were used to make a decision, then, in law, no decision has been made and therefore the only decision any appeals tribunal can make is that there is no decision to be appealed.

In Mr. ???????es appeal, the failure of the Administrative Appeals Tribunal to personally verify that the original decision was in law, a legally valid decision, was disgraceful. The Hellicar decision may not be published on the AGS legal briefing paper’s website but details of this decision were made available to both the chief legal counsel for the Department of human services and the President of the AAT, Justice Duncan Kerr, in December 2015. You will note that that is at least three months prior to Mr. ??????es being deprived of his disability pension without any determination being made court.

Illegal Search: The competency issue of “ought to know”.

The issue of illegal search is also a major legal area of contention in the actions of the Secretary in conducting tortious conduct against Mr. ??????es, and as yet un-numbered masses of unsuspecting victims of this criminal abuse of power.

In Boughey v R [1986] HCA 29; (1986) 161 CLR 10 (6 June 1986), paragraph 31 contains the following finding statement by Chief Justice Gibbs:

  1. After amendment of some typographical errors, the transcript record of the relevant passage in his Honour’s summing up reads as follows:

“The phrase to which I would like to direct your attention mainly here is ‘ought to have known’.

Here you consider what in your view the accused ought to have known in all his then relevant circumstances. All his then relevant circumstances would include many factors; (it) would include, for example, the fact that he is a medical practitioner, the nature of his medical practice over the years, his training, his sexual experiences, the extent to which, if any, his medical training and experience should have alerted him to the dangers of applying carotid artery pressure – assuming you accept the medical evidence – or the extent to which, if any, that experience, his experience, should have alerted him to the desirability of studying medical literature in order to acquaint himself with the dangers, if any, of such a practice and the physiological reactions involved and the like. All of those would seem to be relevant factors to the question of what he ought to have known about whether the act – applying the sort of pressure he applied – was likely to cause death in the circumstances. If it was, again an issue for you to decide. I have named only some of the relevant circumstances and it will be for you to consider all the circumstances which you consider relevant in order to decide what he ought to have known.

The phrase “ought to know” is used some 20 times in Boughey and this is a legal principle that applies to all persons, who engage in legal actions against welfare recipients, i.e. politicians, administrators and Officers of the Court, especially those who preside in AAT appeals. The risks of precipitating fatal hearts attacks or strokes, or of triggering suicides amongst vulnerable impoverished people with known high levels of potentially fatal health problems is known and the concepts of lawyers as weapons of murder, whilst it may seem bizarre, is an appalling reality in 2017 that is made even more appalling that those most responsible for these fatalities regard them as “irrelevant.” It is vital to note that during the Nuremberg War Crimes Tribunals hearings, the excuses “I was only doing my job” and/or “I was only following orders” were not acceptable excuses for killing people.

AAT case file 201?/???? was once example of a Senior AAT Member casually disregarding the risk to the life of the applicant posed by a manifestly fraudulent tort that was made glaringly obvious by the withholding of crucial evidence. Had the applicant dies, the presiding Member could have faced homicide charges under section 279(4) of the Western Australian Crimes Act.

However, the “ought to know” precedent also applies to all AAT personnel who are authorized to review appeals by welfare recipients, i.e. they “ought to know” about Hellicar, Bhardwaj, Coco and other court decisions, e.g. Police v Butcher, when reviewing appeals.

The first question that must be asked at any AAT hearing is, “What are the finding of fact as adduced by a court?”

The responsibility for the asking of this question rests not with the applicant, who may absolutely zero legal skills and knowledge pertaining to the AAT appeals process; it the foundation question for all AAT appeals and until it is asked and answered, the appeal proceeds no further. If there is no finding as to the primary matters of the facts as adduced by a court, the only option, as per Bhardwaj, is to declare that, in law, no decision has been made and therefore the AAT has no jurisdiction to proceed in the matter.

The directive given to Mr. ??????es on 23rd December 2016 is an unlawful search directive because there is no evidence that the original decision referred to by the Conference Registrar, Ms. Athena Ingall, is, in law, a legally valid decision and therefore, Ms. Ingall had no legal jurisdiction to order Mr. ??????es to provide medical information concerning the ‘in law, no decision’ decision.

The original decision to review Mr. ??????es disability status was another decision that, in law, was also a case of no decision at all, which was used to justify an illegal search for new medical evidence that could then be used to deprive Mr. ??????es of his constitutional right to a disability allowance. Since such an allowance is a constitutional right, the legal grounds for depriving Mr. ??????es of this right must be beyond reproach, but such is not the case.

Coco v R [1994] HCA 15 (13 April 1994)

Paragraph 8 of this case contains to important precedents that are directly relevant to the practice used by the Federal Government-of-the-day since 2011 to initiate tort computer generated tort actions:

 In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or
entitled to possession commits a trespass unless the entry or presence
on the premises is authorized or excused by law ((2) Halliday v.Nevill (1984) 155 CLR at 10 per Brennan J; Plenty v. Dillon (1991) 171 CLR at 639 per Mason CJ, Brennan and Toohey JJ, 647 per Gaudron and McHugh JJ).

Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.

Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct ((3) Plenty v. Dillon (1991) 171 CLR at 648 per Gaudron and McHugh JJ; Morris v. Beardmore (1981) AC 446 at 455, 463; Colet (1981) 119 DLR (3d) at 527-528.). But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.  However, as Gaudron and McHugh JJ observed in Plenty v. Dillon ((4) (1991) 171 CLR at 654.):

 

“(I)nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights”.

  1. In England, Lord Browne-Wilkinson has expressed the view that the
    presence of general words in a statute is insufficient to authorize
    interference with the basic immunities which are the foundation of
    our freedom; to constitute such authorization express words are
    required
    ((5) Wheeler v. Leicester City Council[1985] UKHL 6;(1985) AC 1054 at 1065; see also Marcel v. Commissioner of Police (1992) Ch 225 at 234;
    Lord Browne-Wilkinson, “The Infiltration of a Bill of Rights”, (1992) Public Law 397 at 404-408.). That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorization by statute of any abrogation or curtailment of the citizen’s common law rights or immunities. Thus, in Raymond v. Honey, Lord Bridge of Harwich stated that ((6) [1981] UKHL 8(1983) 1 AC 1 at 14.) :
    Thus, in Raymond v. Honey, Lord Bridge of Harwich stated that ((6) [1981] UKHL 8(1983) 1 AC 1 at 14.):

“a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”.

Hellicar emphatically endorsed this decision as does Bhardwaj.

And, in Morris v. Beardmore, Lord Scarman observed ((7) (1981) AC at
463.):
“When for the detection, prevention, or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation.”

  1. The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights ((8) See Chu Kheng Lim v. Minister for Immigration(1992) 176 CLR 1at 12 per Mason CJ).

In the Reasons for Judgement prepared by Justice Toohey, the High Court’s ruling that “Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.”  Therefore, unless there are very specific, very clear words are in the Social Security Act, or in the Social Security (Administration) Act that authorize a medical review of a disability pensioner on the extremely dubious grounds that a welfare recipient has submitted an inquiry requesting information from Centrelink, there was never any Reasonable Grounds that provided legally valid Probable Cause for the initiation of a medical review of Mr. ??????es medical status. The High Court’s Kioa decision also contains a number of points of law relevant to the principle that the law cannot be applied in a capricious manner by the Parliament of agents of the Parliament

In Kioa v West [HCA 81], (18 December 1985) at 38 of his findings, Justice Brennan stated that information that is “….credible, relevant and significant to the decision to be made” could not be withheld.

However, in determining “reasonable grounds” that may constitute “probable cause” for a ‘Request for information”, i.e. a search for information, the decision must be made by a competent, qualified, authorized person, and not a machine, and the “reasonable grounds” must be based upon facts or issues that are Credible, Relevant and Significant enough to justify such a search. If there are no “reasonable grounds”  that provide “probable cause” any requests for information constitute an abuse of power under section 142.2 of the Commonwealth Criminal Code Act (1995) and, as such, any and all requests, including subsequent requests are, as per Coco, tainted, i.e. “poisoned fruit” requests that are legally invalid.

In the absence of very clear specific wording within the Social Security Act or the Social Security (Administration) Act, that clearly authorizes these searches, the Secretary is thus treading on areas of legal rights where angels fear to tread. Paragraph 25 in Justice Brennan’s Kioa decision underscores this:

If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505).

When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.

Thus in Pearlberg v. Varty (1972) 1 WLR 534(1972) 2 All ER 6, when a commissioner gave leave ex parte to raise an assessment to tax, the taxpayer challenged the decision although his legal rights were unaffected by it. The decision was held to be valid. The text of the statute, the kind of limited interest that was affected and the statutory provision allowing the taxpayer a full opportunity to challenge his liability to tax at a later stage displaced the presumption.

Phrases or statements such as “the presumption may be displaced by the text of the statute”, again emphasize the need for very specific, very clear wording if a person’s constitutional or legal rights are at issue. If a presumed power or administrative “right” is not clearly specified in legislation, then the presumed power or administrative right is a non-existent administrative fiction.

Justice Brennan’s comments at 38 in Kioa are also extremely significant, not only to Mr. ??????es, but to the entire nation as the Department of Human Services has yet to disclose the death toll that may have been caused by it unconstitutional methods of engaging in tortious conduct.

“Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.

This well-known finding in Kioa raises the question as to what information can be withheld from an applicant appealing a decision. The High Court’s answer to that question is that if it is credible, relevant and significant to the matter under review, then the information cannot be withheld. How then can the findings in AATA XXX be justified given that the above precedent was violated, as was Article 11.1 of the Privacy Principles Act and sections 142.2 and 149.1 of the Commonwealth Criminal Code.

This dysfunctional justice for welfare recipients is textbook “Mushroom Tunnel Syndrome”, i.e. exploit ignore of the law and defecate on their civil rights.

ANOTHER DISCOVERY QUESTION SET:

  1. Since the first AAT decision in November 1976, how many times have presiding AAT Members handed down findings that were based upon ‘original decisions’ that are, in law, “no decision at all”?

  2. How many times have tort claims by the Secretary demonstrated scant regard for the “rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence?”

When it comes to the rigorous admissibility standards posed by scientific and technical evidence, as Justice Cromwell pointed out in his speech the challenges of scientific evidence clear professional standards, appropriate training, appropriate credentialing and quality control are absolutely vital in order to ensure that a fair and just decision is made.

However, the facts of the matter in the Secretary’s tort action against Mr. ??????es are that there is a total lack of appropriate expertise when it comes to the making of the original decision that is deprived Mr. ??????es of his constitutional right to a disability pension.

Please note the following points of matters of fact that have significant ramification in law:

  1. Although the Department of Human Services ‘ISIS’ computer system is not a legal entity and therefore is not able to mount a tort action against a legal entity as the statements made by Senator Brandis and Ms Slibersek on the ABC’s Q and A program revealed it has been used since 2011, for administrative convenience, to initiate unconstitutional, procedural fairness violating tort actions.

  • The question of law is, how many times has this systemic violation of civil rights occurred?

  1. In law, the ISIS computer system is ‘not a legal expert’ upon which are scientifically accurate medical decision can be based. It is in fact an extremely dysfunctional system that has been plagued with problems including, undocumented system code and unexpected outputs including 73,000 false debt claims on 1st January 2016..

  • How many times have these systemic deficiencies been made known to a court in tort actions?

  1. Data entry often entered by uncertified data entry operators who do not hold current competency AS 2708/20xx certification.

  • Was the data entry operator who entered Mr. ??????es unlawfully obtained, updated medical data into the ISIS computer system AS 2708 certified at 100% typing accuracy.

  1. As Thomas Cromwell stated, “…rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence.”

  2. The question of law in Mr. ??????es case is whether or not the data entry operator held appropriate qualifications and current competency certificate when inputting Mr. ??????es medical data into the ISIS system?

  3. No matter how “scientific” the 20 Point Scoring system may sound, it is simply the use of computer technology to bluff people into believing that it is a machine that can be pre-programmed to output anything that the programmers require, i.e. it is not an impartial medical expert.

  • In 2016, 44% in 213,000 tort claims issued by the ISIS computer system were erroneous. The question of law is, would a court rely upon the output of the ISIS computer system in a diminished responsibility appeal by a person accused of murder, e.g. if the psychiatric reports in the Cy Walsh case had been analyzed by ISIS system, would the South Australian Supreme Court have accepted the ISIS 20 Point Score as being legally valid?

  1. In 2015, the Secretary of the Department of Human Services, Ms. Kathryn Campbell, told a Senate oversight committee that the ISIS computer system could not be relied upon in new programs added to the system, i.e. It can talk across the system, but, because of those complex pathways, for want of a better term—that is what makes it quite tricky to build new applications within it new programs or changes to older programs.”

  • The question of law that requires answering is, how many times has the output of this obvious unreliable computer system been used as ‘in-house expert evidence’ in Department of Human Services tort actions?

  1. Quite clearly, it is farcical to rely upon such a flawed system to make a medical diagnosis and prognosis that supersedes any medical opinions made by qualified treating medical practitioners and certified diagnostics experts.

  2. The question of law is, why is an acknowledged antiquated, extremely unreliable computer system that “lacks integrity” being regarded as totally reliable in self-assessed tort actions that unconstitutionally by-pass the courts?

Thomas Cromwell’s statement “…rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence” was put to the test in Police v Butcher with the court rigorously applying technical standards when reviewing the technical evidence. At all levels of this case, current competency to conduct testing according to empirical national standards was scrutinized. When this rigorous scrutiny revealed procedural testing certification flaws, the Supreme Court ruled that the magistrate’s original decision had been correct, i.e. the accuracy of the testing process meant that balance of probability the accuracy of the Lidar speed gun could not be accurately determined and therefore its computer-generated output could not be relied upon.  For a legally valid decision in Mr. ??????es case, an impartial appeals tribunal or a court would need to be sure, that on the balance of probability, the ISIS output was 100% accurate but this is not possible because:

  1. Only data entered by a data entry operator with a current competency AS 2708 Keyboard Skills certificate that indicates 100% data entry accuracy, for a test period of 5 minutes, not 7hours and 30 minutes, is acceptable if, on the balance of probability, data errors are to be ruled out of consideration by a court.

  2. The empirical measurement of the degree of accuracy of keyboard skills on the date of entry is unknown and in the absence of video evidence of this data input, data entry accuracy cannot be determined.

  3. There is no evidence that the data entry operator possessed current any current competency accredited medical expertise needed to accurate input medical data into the ISIS 20 Point Assessment software.

  4. There is no evidence that the software actually works reliably 100% of the time because the ISIS system is itself so unreliable that a minor change such as changing a data field in a form letter can take a team of programmers 3 months to achieve, a task than on a reliable computer system can be achieved in minutes.

The requirements of the courts make it absolutely essential that only appropriately certified people .who have current competency to undertake the decision process which was used to determine whether or not Mr. ??????es was entitled to retain his disability pension is underscored by the South Australian Supreme Court decision in Police v Butcher.

As a result of inappropriate certification the Supreme Court ruled that it was not possible, on the balance of probability, to accurately determine the speed that Mr. Butcher had been driving at the time of the alleged speeding offence. It goes without saying that the shonky-dodge-the-court-at-all-costs processes used by the Secretary to recover alleged debts, whilst having the appearance of legal validity, are nothing more than a dangerous, deceptive fraudulent abuse of power that violates federal criminal statutes.

The cover page of the enclosed document, THE ADVOCATE, clearly sets the High Court’s views on the proper conduct of tort actions by “regulatory authorities’. However, the devil really is in the details, especially Senator Brandis’ insightful comment on the ABC’s Q and A program about the “terrible human consequences” of what the Turnbull Government has been doing, and made quite clear that there is no intention of ceasing to do.

The acknowledgement of fatalities whilst refusing to cease engaging in the actions that are causing fatalities can possibly be put into an appropriate legal context by this statement from Ratten v R [1974] HCA 35; (25 September 1974):

“The act was cold blooded in the sense that it was deliberate and planned but there is little comfort to the appellant in the fact that he was distressed, even hysterical, when the dreadful act had been done.

Senator Brandis was not hysterical about the deaths caused by the Turnbull Government’s unconstitutional ‘Tudge Fudge Fraud’ methods of ‘alleged-debt’ recovery. Neither Senator Brandis nor Ms. Slibersek displayed any real remorse or genuine contrition for the deaths caused by the fraudulent dodge-the-court-at-all-costs Tudge Fudge Fraud debt recovery methods currently being used to claw back a reported $4.7 billion.

Instead, Senator Brandis and Ms. Slibersek engaged in a bout of political- points-scoring-bickering about these methods that basically amounted to Senator Brandis saying ‘You did it first’, with Ms. Slibersek responding, with ‘Yes George, but you stuffed it up’, i.e. a tacit acknowledgement that when it came to using the ISIS system to defraud and murder welfare recipients, the Gillard and Rudd Governments ‘did it better’ than the Turnbull Government!

Once constitutional obligations and a  plethora of court decisions such as Hellicar, Bhardwaj, Coco, Butcher, Faure and Boughey are factored into that televised spat, what Senator Brandis and Ms. Slibersek were unintentionally doing was confessing that they have been defrauding and murdering welfare recipients in a fast-track, never-mind-the-legalities-of-the-issue attempt to recover ALLEGED overpayments to welfare recipients, that if the consequence of Commonwealth errors, the government-of-the-day has had no legal right to recover.

These are issues that need to be referred, yet again, to law enforcement agencies that have, until now, declined to acknowledge this system fraud and murder, possibly because of the “gravity/sensitivity” of these crimes.

I have written a number of reports that will form part of Mr. ??????es “Facts not yet in evidence” submission if the Secretary of the DSS does not agree to respect Hellicar and Bhardwaj and attempts to use the AAT to rubber-stamp a ‘no jurisdiction’ decision that is, if the High Court is to be believed, “no decision at all.”

The following publicly available information is provided as a basis for discussion concerning the validity of the process that Mr. ??????es has been forced to unlawfully endure because of the Secretary’s ‘no jurisdiction – no decision’ decision.

  1. Hellicar, Bhardwaj, Kioa and Coco are High Court precedents that are more honoured in the breach than the observance and the mounting suicide driven death toll is now finally becoming evident to the general public.

  2. The legal implication of Federal Attorney-General Brandis describing the deaths caused by Centrelink debt recovery methods as “…terrible human consequences” has profound legal implications.

  3. Cutting corners, e.g. deliberately ignoring the High Court’s Hellicar and Bhardwaj, Coco and other decisions has ‘opened the door’ to legitimate discovery of the unreported death toll caused by tortious conduct against vulnerable welfare recipients over the last 40 years or so.

  4. There is no such thing as an “un-terrible murder”, and it is most definitely in Mr. ??????es interest, that the following information about these fatalities be provided as a matter of extreme urgency.

  5. As this statute from the South Australian criminal code reveals, crime driven suicides are murder; every state and territory has similar laws

  6. Section 13 (7) Murder by Suicide: A person who, by fraud, duress or undue influence, procures the suicide of another or an attempt by another to commit suicide shall (whether or not he was a party to a suicide pact with the other person) be guilty of murder or attempted murder, as the case may require.

  7. Paragraph 51(xxiiiA) prohibits the links of welfare payments to “civil conscription”, i.e. Work for the Dole. This means that Work for Dole is unconstitutional forced labour, i.e. coercive slavery, which is a crime against humanity under the Rome Statute of the International Court.

  8. Last week a 41-year-old man who had been coerced into a Work for the Dole program being conducted in the City of Playford suffered a near fatal heart attack. Although he has survived, the medical prognosis of the treating cardiac specialist is that he will never work again and will have to survive on a disability support pension.

  9. Unemployment is known to be stressful and stress is known to damage heart muscles, thus increasing the risk of a heart attack when placed under strain.

  10. Unconstitutionally coercing people to engage in forced labour by threatening to deprive them of their constitutional right to a welfare payment is a major crime.

  11. If this coercive activity results in a fatality, then, in law, that death is a murder in South Australia.

  12. Paragraph 51 of the constitution requires “good government” and neither coercive slave labour programs nor systemic fraudulent tort claims programs that by-pass the courts and ignore due process of law when seeking to recover alleged debts qualify as “good government.”

  13. Parliament and government lawyers who dismiss the deaths caused by unconstitutional, foreseeably dangerous welfare policies and practices are not demonstrating “good government” because;

  14. “It is the exposing life to peril that constitutes the crime”

 Commissioners’ 4th report, contained in (1839) 19 Parliamentary Papers, pp.23-25

Section 42C is a politically popular but unconstitutional, recklessly dangerous law that violates the genocide provisions in Section 6 (a), 6(b) and 6(c) of the Rome Statute. This law, which is unconstitutional, states:

Subdivision B—No show no pay failures

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;

It also violates state laws that prohibit placing life in peril. All fatalities caused by this law are murders under Article 7(1)(a) of the Rome Statute and are also either murder or manslaughter due to criminal negligence under state and territory laws. The “Awesome Foursome questions are therefore asks critical questions that the public needs to have answered and so I reiterate them:

The Awesome Foursome questions that need to be answered:

  1. How many times has the Department of Human Services deprived a person of a welfare benefit, e.g. applied a ‘breach’ penalty, a ‘non-compliance failure penalty’, or a ‘No show, no pay’ penalty?

  2. How many victims of this violation of constitutional, legal and human rights were dead when the penalty period expired?

  • How many times has the Department of Human Services issued letters of demand, emails, SMS notifications, and phones calls for alleged debts and failed to have the primary matters of fact adduced by a court as per the Hellicar decision at paragraph 141 – 143?

  1. How many people issued with such arbitrary demands have died, either before payments commenced, or before payments were completed.

Three (not so) bonus questions:

  1. Why are these fatalities unreported by the Department of Human Services in annual reports and public accountability reports, are classified as “secret” by LEG-Con, and have dismissed as “irrelevant” by both the EWRE committee and an AGS lawyer, Ms. S????? ??k L???, who was representing the Secretary of the DSS in AAT case file 201?/?????

  2. Phone 13 32 76 and you will hear a pre-recorded voice state, “For your security, this call will be recorded.” This begs the question as why, in violation of Principle 11 of the Privacy Act, over a period of 2-years, Centrelink could not find the audio recording at the Centre of the AAT 201?/???? case. The failure to do so is totally inconsistent with data security standards such as ISO 15489 and the PROS 11/07 S1 Digitisation Specification and leaves Centrelink open to a fine of $1,200,000 if the missing audio file is not located?

  • In the findings from AAT 201?/????, the basic reason, other than ignoring Hellicar and the concealment of evidence, why Mrs ????e lost her appeal was Senior Member Walsh’s unlawful and unconstitutional findings:

  • That <the applicant’s. “…contention that (s)he 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.”

The utter absurdity of that unconstitutional finding, which was not based upon court adduced facts but the Tribunal’s own judgement of the facts of the matter, sans the withheld phone call recording, is perhaps best made clear by breaking it down to it component statements of logic.

<the applicant’s “…contention that (s)he acted in reliance of incorrect advice provided by a Centrelink officer over the telephone:

  1. “…is not an uncommon compliant or circumstance of socials security recipients.”

  2. This circumstance is not so unusual,

  3. uncommon,

  4. exceptional,

  5. markedly different from the usual run of cases

  6. or out of the ordinary so as to render it a “special circumstance.” 

Would an impartial court that was fully conversant with the primary facts of the matter, including the above facts, have rendered such an adverse  judgment of the applicant’s appeal?

Making that judgment even more bizarre is the conflict between Ms. Ingall’s Unlawful Search request for medical information dating from the time of the original decision in March 2016 and this statement from the AATA XXX:

  1. The Tribunal’s power to stand in the shoes of the decision-maker, in this case the Secretary, is exercisable only in relation to the decision under review, in this case the SSAT Decision. The Tribunal has no general review or decision-making power and it cannot substitute for the decision-maker generally. As Brennan J said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175: “The AAT is not the primary administrator. It is not the original repository of powers and discretions under an enactment”. The Tribunal’s inability to exercise powers other than those available to the decision-maker can lead to injustice in some cases. For example, where a strict application of the law results in unfairness to an applicant.

The statement “The Tribunal’s power to stand in the shoes of the decision-maker, in this case the Secretary, is exercisable only in relation to the decision under review, in this case the SSAT Decision” raises the question as to why the Conference Registrar, Ms. Ingall, ordered Mr. ??????es to make available medical data relating to the original 2016 decision if the AAT’s jurisdiction is limited to reviewing the Social Security Appeals Tribunal [SSAT] decision.

It is very hard to win an AAT appeal when the presiding AAT Member:

  1. Ought to know of, but ignores, both Hellicar and Bhardwaj;

  2. Ought to know that the withholding of evidence is unlawful;

  • Ought to know that conspiring to hold a ‘trial’ is unlawful;

  • Ought to know that the AAT has no jurisdiction to set aside the Commonwealth’s human rights obligations under 5 international treaties;

  • Ought to know that AAT Members have no jurisdiction to make “findings of fact”, especially ‘findings’ that studiously ignore section 1,237A of the Social Security Act, i.e. the requirement to waive 100% of an alleged debt if it is ‘solely’ a Commonwealth error

A Courtroom Comparison: Superficially, the idea of the AAT “standing in the shoes of the original decision-maker” sounds quite reasonable. However, if that concept were to be applied in a murder trial, how well would it go down with the defendant, defence counsel, and the jury, if the presiding judge had made the following statement:

“I can assure the defendant and jurors that this will be a fair trial because I’m standing in the shoes of the arresting officer”?

Such a statement would trigger a wave of public outrage and yet this systemic bias apparently is endorsed by acts of omission by Australia’s legal profession. Indeed, when Senator Brandis made his “terrible human consequences” statement, Julian Burnside QC, a member of the Q and A panel, failed to comment on that impromptu, unintentional confession that welfare recipients were being killed, i.e. murdered by the Turnbull Government’s debt recovery process.

It is even harder hard to win an appeal when both the President of the AAT, Justice Duncan Kerr, and the Ombudsman’s Office also ignore all of the above and uphold the AATA 904 decision by ignoring a comprehensive appeal submission that outlined many of the above breaches of law and procedural fairness violations, e.g. the withholding of evidence, no jurisdiction, et cetera.

A supposedly ‘fair and just’ legal system that works like that highlights the basic fact that Centrelink’s “debt” claims are bogus, which explains why Centrelink never seeks a court determination of the primary facts of the matter as per Hellicar.

It is imperative that court orders the Department of Human Services to audit and disclose the answers to the “Awesome Foursome” questions, if those responsible for the on-going murders of welfare recipients are to be reined in.

Last week, a fellow school teacher sought out my advice re a former spouse who had tried to commit suicide and had been on a disability pension for years. This spouse recently received an alleged debt claim of several thousands of dollars and is now gravely concerned that Centrelink’s demand could precipitate a successful suicide attempt.

Two weeks ago, whilst explaining yet another Tudge Fudge Fraud victim how to rebutt Centrelink’s fraudulent claim, I was informed by this person that they were aware of another person who had committed suicide after receiving a huge alleged debt claim. The death toll is mounting and the casual acceptance of this is totally at odds with Justice Brookings statements in R v Faure that it is the placing of life in peril that constitutes the crime.

The casual attitude of both Senator Brandis and Tanya Slibersek, and the majority of Australia’s legal professional, who also “ought to have known” that these deaths are unlawful homicides, is compatible with the “Mindset of Murder” definition in 7.2.1.1 of the Justice College of Victoria Bench Notes:

Forms of Murder

  1. There are three ways in which murder can be committed:

    1. The accused can cause the victim’s death while intending to kill or cause really serious injury, or being reckless as to that result; [1]

    2. The accused can unintentionally cause the victim’s death in the course or furtherance of certain violent crimes; and

    3. The accused can unintentionally cause the victim’s death in order to escape arrest.

  2. These notes address the first category of murder outlined above. See Overview of Elements

  3. Murder is a crime at common law. It has the following four elements, each of which the prosecution must prove beyond reasonable doubt:

    1. The accused committed acts which caused the victim’s death;

    2. The accused committed those acts voluntarily;

    3. The accused committed those acts while:

      1. intending to kill someone or cause them really serious injury; or

      2. [if reckless murder has been left to the jury] knowing that it was probable that death or really serious injury would result.

    4. The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency).

It is difficult to argue that there was “intent” to engage in an activity knowing that it was probable that death or really serious injury would result given that the death toll now causing growing public concern, is still unreported, secretly classified as “confidential” and officially dismissed as “irrelevant”.

These deaths are extremely foreseeable, e.g. the table in Box 2.2 of the 1998 National Health Priority Areas, Mental health report and more recent reports which detail the scale of Australia’s suicide problem. To these fatalities can be added the huge heart attack and stoke fatalities numbers. Whilst the precise number that can be attributed to DHS tort actions and welfare penalties is as yet unknown, any Federal Court order, which is now highly likely in the wake of Senator Brandis recent comment, is not going to good news for the politicians and public servants responsible for those fatalities.

In addition to requiring details of the death toll caused by “skipping the courts”, I require copies of any emails and other documents that contain references to the Hellicar decision that either the DSS or the DHS may have. Since I was the author of some of those documents, I expect to have true and accurate copies made available to me.

In the HIP Report, Commissioner Hanger was scathing in his criticism of those responsible.

  • Mr Arbib’s recollection was that DEWHA had not done a lot of work about ‘risk to government but his concern was mainly on fraud and malfeasance at that He denies receiving the risk assessment document at this time and said he did not see it prior to 12 February 2010 and referred to an email of 22 February 2010 in support of this contention. It would not have been sufficient, even if the OCG had told Mr Arbib that DEWHA was now taking matters more seriously (which is what he offered), to quell the concern that Mr Arbib earlier had that DEWHA had done insufficient work on risk.

  • I find that Mr Arbib did receive the risk assessment shortly after his request for it and reject his denial of having done so. I do so for these reasons:

    • it is not a request likely, in any event to have been refused given Mr Arbib’s position and seniority;

    • In the weekly update 20 to 26 March 2009 it is recorded that a risk identification workshop was held on 23 Mar It is then recorded: ‘First draft being presented to executives Friday 27 March. Presentation to Senator Arbib on Tuesday 31 March’;

Attorney-General Brandis’ remarks about the “terrible human consequences” highlights and underscores the life-threading danger to Mr. ??????es posed by the failure of the Secretary to comply with Hellicar and Bhardwaj. As the above extract from 7.11.89 – 7.11-90.2 of the Hanger Royal Commission Report indicates, under the Rules of Discovery, internal communications dealing with any prior knowledge that DHS, DSS, and AAT administrators may have had, of the Hellicar decision are documents that can be legitimately be requested and I so request the provision of such documents.  As I am sure that you are aware, the value of these documents, when combined with Senator Brandis’ hasty and impromptu acknowledgement that deaths are occurring is credible, relevant information that provides significant insight into the mindset of those who chose to disregard High Court decisions and conceal any fatalities that may subsequently occur as a consequence of this abuse of power.

[MORE DISCOVERY QUESTIONS]

  1. The number of times that the pseudo Centrelink General Manager, Hank Jongen, has conducted media interviews since first ebbing appointed as the General Manager of the DHS media unit?

  2. The number of times that he has mentioned the Waiver of Debt and Exceptional circumstances laws in media interviews/sessions?

  3. The number of times that Mr. Jongen has explained the High Court’s Hellicar and Bhardwaj decisions to the public is also requested.

  4. The number of times that Mr. Jongen, a senior public servant, has acted in the public interest rather than the interest of the federal government of the day.

In Section 14.7.3.2 of the Home Improvement Program Report, Commission Hanger addressed the issue of Risk in government programs. The recommendations are particularly relevant to the as yet unreported fatal impact of the unconstitutional, human rights violating welfare penalties.

 14.7.3.2 RISK CANNOT BE ABROGATED    [Emphasis added.]

  • 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.

  • 7.3.2.1 The Australian government should not seek to abrogate responsibility for identified risk.

The risk with Australia’s actuarial focussed welfare policies is that the Department of Human Services, acting on the instructions of a federal government that is committed to saving taxpayers money, regardless of the “irrelevant” death toll, is that taxpayers will have to fund a compensation bill that could bankrupt the nation. That is not “good government.”

Neither is placing Mr. ??????o ??????es life in peril by pursuing a fraudulent tort action that has so far ignored his legal right to have the primary facts of the matter determined by a court before any decision is made.

The paradox of this tort action is that, because there has been no findings as to the primary matters of the fact by a court, there is, in law, no decision. As a consequence, the only decision that the AAT can make is that there is, in law, no decision. Common sense and Bhardwaj dictate that the matter be resolved expediently by agreement between the Secretary and Mr. ??????es.

The alternative is to allow the AAT to either render the correct decision, i.e. in law, there has been no decision and the Secretary must comply with Hellicar and seek a finding as to the facts of the matter from a court before a valid decision can be made.

With an unreported death toll from unconstitutional welfare policies and fraudulent torts that may be close to or even in excess of 100,000 fatalities, allowing the ??????es appeal anywhere near a court is in the public interest for Australia’s 7.3 million welfare recipients. However, whether the actual death toll is 100 or 100,000, the disclosure of that death toll, along with the current Tudge Fudge Fraud death toll is a contingency issue that those directly responsible for these fatalities need to seriously consider.

2 FINAL POINTS OF LAW:

Point #1:

  • As stated previously, in Coco at 8 the High Court that “Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.”

  • Paragraph 5 of the constitution states that the laws of the Commonwealth shall be binding on the courts, judges and the people.

  • Paragraph 2 of the Administrative Appeals Tribunal Act clearly states that the processes of the AAT must be “informal”.

  • ‘T’ documents are formal documents that must be served in the initial court case; by Act of Parliament, they have no place in an AAT appeal unless both parties agree to their use.

Point # 2:

The clearly worded legislative imperative “informal”, imposes upon AAT case managers, presiding Members and all other federal government employees involved  in AAT appeals to negotiate rather than demand as Ms, Ingall’s did with her Unlawful Search directive dated 23rd December 2016. That demand demonstrated Ms. Ingall’s lack of awareness of what Edward De Bono and commissioner Ian Hanger QC would classify as the “big picture.

On the 1st December 2016, i.e. 22 days BEFORE Ms. Ingall’s directive, the Australian Institute of Health & Welfare issues Elective surgery waiting times (removals data) NMDS 2015-1. This superseded the previously issued data set released on 19/11/2015.

As of 1st June 2016, the absolute minimum waiting time for public patients to see a specialist was in the range of 39 – 260 days. Public patients do not have the right or the power to demand medical reports within 21 days and impose an un-achievable time frame that can then be used to deprive a person of a constitutional benefit is, at best, grossly unprofessional; at worst, it is a criminal abuse of power, for this is a mission-critical “ought-to-know” matter of fact that is sourced from an non-vested-interest federal agency.

Ronald Medlicott

Volunteer Christian lay-advocate representing Mr. ??????o ??????es.

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

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