Part 42G. Australia’s “irrelevant” Crimes against Humanity. AAT 2016.5334 and the issue of Unreliable Evidence.

Australia’s “irrelevant” Crimes against Humanity. AAT 2016.5334 and the Centrelink non-disclosure issue of Systemic Unreliable Evidence. 

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UNRELIABLE EVIDENCE: Police v Butcher [2016]

The following text comes from Volume 3 of The Emcott Report, one of the Statement of facts & Issues documents submitted in the AAT 2016/5334 appeal. Any person who wishes to challenge a Centrelink claim can copy and submit this information as part of the process of legally refuting Centrelink’s alleged “You owe us money” claims.

the-advocate-cropped

The Police v. Butcher mentioned case highlights the need for anyone involved in a Centrelink “You owe us money” claim, to not just be [1] Authorized to make that claim to also be appropriately [2] Qualified AND [3] Currently Certified AND to comply with [4] Due Process of Law when making any such claim.

THE BURDEN OF PROOF:

In law, the reality is that the Burden of Proof is upon Centrelink, not welfare recipients, to prove to a court that any alleged over-payment claim is legally valid. However, as the list of issues below reveal, Centrelink has so many legal issues in validating a claim with the courts that unlawfully “skipping the courts” is Standard Operating Procedure.

Step 1 in fighting what I call the Tudge Fudge Fraud is point out Centrelink’s claim is a matter for the courts, as per the High Court’s 2102 Hellicar decision and that the matters of fact and issues of law raised by the applicant’s representative in AAT 2016/5334 were not contested by lawyers representing the Department of Social Services.

Step 2 in the process is to then copy and paste the text below into your letter and point out that these are issues for a court, not Centrelink officials to consider if Centrelink wishes to proceed with what may be a fraudulent abuse of power that violates section 142.2 of the Commonwealth Criminal Code Act (1995). You can point out that these issues make it ABSOLUTELY IMPERATIVE that any digital data output from Centrelink’s dysfunctional computer system be diligently checked by a currently accredited and appropriately certified person to ensure that Digital Data Fiction Fraud also known as 2D2F, is not occurring.

Police v. Butcher

[Source :] http://www.austlii.edu.au/au/cases/sa/SASC/2016/130.html

The lesson of Police v Butcher [2016] SASC 130 (17 August 2016) is that unreliable evidence is not acceptable to adequately informed courts. The following statements are verbatim extracts from the preamble in these findings:

“This is an appeal from the judgment of a magistrate who dismissed charges against the respondent that on 14 September 2012 he drove at a speed which was dangerous to the public contrary to s 46 of the Road Traffic Act 1961 (SA) (the RTA) and drove a vehicle at a speed 45 kms per hour in excess of the applicable speed limit contrary to r 20 of the Australian Road Rules and s 45A(1) of the RTA.”

“At trial evidence was called from Senior Constable Goldsmith who gave evidence that on 14 September 2012 he used an Ultralyte laser speed gun to record the speed of the vehicle driven by the respondent at Helps Road, Burton. He recorded the vehicle’s speed at 102 kms per hour. The applicable speed limit was 50 kms per hour.”

“He gave evidence that both before and after his shift on 14 September 2012 he conducted fixed distance tests on the device to ensure that it was working correctly.”

“The magistrate dismissed the proceedings on the basis that the respondent had proved on the balance of probabilities that the test conducted by Senior Constable Goldsmith on 14 September 2012 did not show the speed gun to be accurate within the specified margin of error. Accordingly he could not find proved beyond reasonable doubt the speed of the respondent’s vehicle.”

[41] Reasons of the magistrate

  1. The magistrate found that it was not possible for Chief Inspector Quinn to certify that the testing performed on 14 September 2012 was “accurate within a limit of error not exceeding plus 2 or minus 3 kph”.

[42] That the fixed distance zero velocity testing performed by SC Goldsmith does not reveal the accuracy in terms of limit of error not exceeding plus 2 or minus 3 kph. That his tests did not amount to the testing required in order to measure a target’s speed to the relevant set of accuracy criteria set out at Clause 2.6.1(a) and Appendix A of the Australian Standard.

[43] That Ex P2 could not be used to certify the level of accuracy of the Lidar device because the testing referred to therein was not testing that occurred either on the day of the charged offences or the day after. Further Ex P2 could not assume the status of a certificate as it was not signed by the Police Commissioner or any other police officer of or above the rank of Inspector.

[44] That in the light of CI Quinn’s admission that he would not have signed Ex P1 if the only information given to him had been the record of field testing conducted by SC Goldsmith because this did not show the test to be accurate within the limit of error not exceeding plus 2 or minus 3 kph, it must follow that CI Quinn signed Ex P1 on the erroneous basis that he considered that it was the calibration report Ex P2 that enabled him to make the certification.

[45] A certificate under s.175(3)(ba) can only be used to prove the accuracy of the Lidar device ‘to the extent indicate in the document’.

[46] The line of cases referred to leave open the proposition that the agreed facts in this case at Ex P11, particularly numbers 4, 5, 6 & 7, together with

Ex P10 can be used by defence as evidence to provide a basis for establishing ‘proof to the contrary’ for the purposes of s.175(3)(ba) RTA.

 [47] Indeed I am satisfied on the balance of probabilities that this evidence is sufficient to displace the presumption of the level of accuracy on the basis that it establishes

  1. That the fixed distance zero velocity testing cannot form a basis of certification of the extent of accuracy of the Lidar device in terms of a limit of error of plus 2 and minus 3 kph on the day of the charged offences or the following day, and

  2. That the calibration report Ex P2 cannot form such a basis, because the testing referred to therein was not testing that occurred either on the day of the charged offences or the day after. As well and in any event Ex P2 itself cannot assume the status of a certificate as it was not signed by the Police Commissioner or any other police officer of or above the rank of Inspector. [Validation is a process that requires Authorized, Qualified, Accredited Certification to official Standards],

[48] In other words I am satisfied that there is evidence which establishes that the testing did not show the Lidar device to be accurate within the stated limit of error.    [NO VALIDATION means no valid case and consequently, thousands of speeding fines were INVALIDATED.]

[49] I am further satisfied that in the absence of evidence of limit of error I cannot find proved beyond reasonable doubt the precise, or range of speed of the vehicle.   [NO VALIDATION: “in the absence of evidence”. Centrelink has to validate its claim to the same standard of proof.]

AAT2016/5334  issues raised:

“…on the balance of probabilities.”  

Centrelink’s self-arbitrated tort claims are a ‘landmark case” for the legal concept of Unreliable Evidence.

  1. A reported 50 million keystrokes (transactions) per day, with the potential for up to a million potential keystroke errors per day.

  2. Over-worked and under-trained, non-certified-data-entry staff.

  • 21 Billion Http calls per day in an operating system that contains 30 million lines of partially undocumented system code.

  1. Undocumented system code can result in a 3-month effort by a team of programmers just to change the date format on a form letter.

  2. Public discrediting of a key algorithm that uses inappropriate logic, e.g. ‘Income annualizing’ of income earned by casual and part-time workers with the subsequent false automated-assumption of the non-reporting of the annualized income when people were not working.

  3. Medically unqualified data entry operators making “If-Then-Else” decisions when entering medical data into the ISIS computer system.

  • Untested and therefore un-certified data entry operators

  • Like the LIDAR speed guns used by police, data entry operators need be re-tested and re-certified in accordance with Australian Standards 2708 to “certify the level of accuracy of the data entry operator.”

  1. Without ‘Current Competency’ certified testing to AS 2078/2015 so as to ensure the accuracy of data used in Centrelink initiated tort actions, it is impossible to adduce accuracy with any reasonable degree of certainty.

  2. In the absence of ‘Current competency certification’, the accuracy of data entered is, to quote from Dr. Chettock’s testimony at the USS Scorpion inquiry, a case of scratching our heads and coming up with our best guess.”

  3. Whilst UNIX and Solaris operating systems are very stable, their security is compromised by the Windows systems which are constantly being updated to ensure security.

  • Centrelink’s I.T. personnel have reported to the Community Affairs Legislation Committee that the ISIS computer system is subjected to virus attacks and therefore certification of each personal computer or terminal used by a data entry operator at the time of an alleged error by a welfare recipient is also essential in order to ensure that, on the balance of probability, as per Police v Butcher, the equipment used was unaffected by viruses and functioning as per design specification.

  • In order for ISIS input data to be used as evidence in a civil dispute, all data-entry staff must be appropriately certified as to their individual knowledge level of the relevant statute laws, regulations, policies and procedures at the time any data relevant to a dispute was entered in ISIS. [Current competency of accredited trainers, training programs, and relevance and accuracy of content.?

  • The endemic problem of bad advice being provided to Centrelink clients by inexperienced or unqualified Centrelink staff is known to be of such a broad scale that incorrect advice provided by a Centrelink officer over the telephone is not an uncommon compliant or circumstance of socials (Sic) 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”

  1. An unknown number of “Failure to Code to zero” data entry errors.

  • Manual data-matching so far behind real-time inputs that violations of federal and state ‘Menace’ and ‘Blackmail’ laws have been used for years as an ‘administrative convenience’ when attempting to data-match ATO reports to the real-time income reports of Centrelink clients.

  • A reported reduction in staffing levels of 5,000 staff by Ms. Nadine Fleet, the National Secretary of the Community & Public Sector Union, for the purported purpose of reducing operating costs, raises issues of workload stress and increased workload error rates that cannot reasonably be accurately determined. [What, professional assessment of stress on workload error rates exists?]

  • Frequent changes to legislation in what is some of the nation’s most complex and comprehensive legislation also raises questions as to the impact upon both workload stress and workload competence.

  • 30% call-blocking to protect infra-structure from overload failures.

  1. People required to report told they are not required to report income and automatically shut out of the ISIS system when trying to report.

  • The On-line income reporting system icon was deleted so that there was no way for welfare recipients to report income via the Internet.

  • Unlike ATO accredited receipts, on-line income reporting ‘receipts’ do not include reported details when using the default print-out option.

  • The system can hang or crash at random times. [N.B. Video recorded]

  • Icons on the Income reporting screen do not comply with appropriate standards for people who may be ‘visually challenged.’

  • There is no consumer standard on-screen ‘Save’ or “Save as” option for welfare recipients to locally save data files of income reports.

  • Some welfare recipients reporting by phone told they “ARE “NOT ELIGIBLE TO REPORT”. Any attempt to then report by phone then fails.

  • ANAO Report #37 contains details systemic faults, e.g. people phoning in to ask questions about benefits or to report income spent a total of 811 years on hold. [I have a video of being on hold for 50 minutes.]

  • Many Department of Human Service public accountability reports mislead both the Parliament and the public.

  • No accurate data on clients who have been dead for 20-years or more.

  • No data on the real-world human impact of welfare penalties, e.g. loss of essential services, inability to purchase essentials of life such as food, clothes or medicine, evictions and unreported post-breaching fatalities.

  • In February 2015, Senator Payne stated that the system needed to be replaced with a Billion-dollar system that will provide integrity” to payment systems. [*Note: “will provide integrity” is future tense.]

  • 20% of 170,000 tort claims since June 2016 have been acknowledged as erroneous with 73,000 erroneous alleged debt notices issued on 1st January 2016.

  • The publicly acknowledged total of 107,000 erroneous claims out of 243,000 is a massive error rate of 44.03%.

MY LAY-ADVOCATE COMMENT

If the Butcher decision is a reasonable guide as to how a court would deal with the litany of systemic problems within Centrelink that make the adducing of a correct, fair and just decision impossible, I believe that, on the balance of probability, any court appraised of these systemic problems would be unlikely to consider upholding a Centrelink tort claim. As the precedent below reveals, in the highly unlikely event that this should occur, the decision might be overturned on appeal when an appellate court conducts “…a real review of the evidence.”  

Approach on appeal         [Extract from Police v Butcher at 10]

  1. The appeal is by way of re-hearing. The nature of such an appeal was considered in Martin v Department of Transport, Energy and Infrastructure. ]White J said:

 In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn. [Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 (13 May 2010) at 38.]

UNRELIABLE EVIDENCE?:  Uncertified, over-worked, data entry operators, a dysfunctional computer system that lacks “integrity” due to undocumented system code, a database that may contain 8 billion data errors and bad advice by Centrelink staff is nothing “markedly different from the usual run of cases.”

BY-PASSING THE COURTS: THE GOVERNMENT’S APPEAL SYSTEM

Given the known systemic problems within Centrelink and the ISIS computer system’s lack of functional “integrity”, it is unlikely that a court would validate Centrelink’s claims. However, the federal Administrative Appeals Tribunal decision below, which was made in the absence of any findings as to the primary facts of the matter by a court, produced this ‘Dickensian Bleak House Farce’. The “finding” brazenly ignored s 1,237A of the Social Security Act, i.e. the waiver of a debt if it is solely due to a Commonwealth error:

  1.  <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” for the purpose of s 1237AAD(b) of the SSA. [The case file details are withheld to protect the victim.]

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

 Ought to know of, and ignores, both Hellicar and Bhardwaj;

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

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

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

  2. Ought to know that AAT Members have no jurisdiction to make “findings of fact”, especially ‘findings’ that deliberately ignore s 1,237A of the SSA.

It is even harder hard to win an appeal when the Ombudsman’s Office also ignores all of the above and upholds the decision by ignoring a comprehensive appeal submission that outlined many of the above procedural fairness violations.

AT WHAT COST? It is should be of grave public concern that a very significant proportion of suicide and heart attack victims in Australia are Centrelink clients. An as yet unknown number may be victims of highly questionable tort actions that ignored Hellicar and by-passed the courts when Centrelink ‘recovered’ overpayments that it may have had no legitimate right to reclaim.

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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.

2 Responses to Part 42G. Australia’s “irrelevant” Crimes against Humanity. AAT 2016.5334 and the issue of Unreliable Evidence.

  1. leslie3319@aol.com says:

    thank you,

    Les-zek Shyman-Szymanski, Ph.D. Author, historian, journalist, editor Ph.D. History (PUNO=London), M. Political Science (California State University), B.A. General (London University)

    Australia/USA

    • yadnarie48 says:

      Hi Leslie, i have just cleared out a backlog of abo9ut 600 emails. Whilst I have published a few WordPress articles, they have been prepared mainly whilst away from home and so I am way, way behind in responding to issues. I shall contact you as soon as is possible. in thje meantime, keep reading Ronald’s space. Ron M.

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