Part 44 B. Australia’s “irrelevant” Crimes against Humanity. Work for the Dole, no show, no pay penalties, Robo-Debt, and the 20 Point Disability Assessment Score are collectively the worst system case of FRAUD in the history of the Commonwealth of Australia.

Deaths caused by  recklessly dangerous, unconstitutional laws that exploit the lack of knowledge of welfare recipients, and the general community, are MURDERS, and there have been a lot of them over the last 40 years or so.

The short link URL for this posting is: http://wp.me/p1n8TZ-14b

“If I am correct, over a time frame measured in decades, the Australian Federal Parliament has deliberately raped the civil rights of 4 – 5 million vulnerable Australians and as a direct consequence of this systematic rape of rights, the unreported, secretly classified, officially “irrelevant” death toll caused by this ravaging of civil rights may be close to, or even exceed, 100,000 in number. Theoretically, it could even be the unthinkable, i.e. close to 1,000,000 dead.”

Statement of Facts & Issues – Administrative Appeals Tribunal, Case# 2016/5334 – The Emcott Report, Volume 3: A Complaint to the UNHRC, page 3 – [Submitted to the AAT via email: 21st February 2017]

Complying with High Court decisions is not optional

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54; (1920) 28 CLR 129 (31 August 1920)

http://www.austlii.edu.au/au/cases/cth/HCA/1920/54.html

Citation: Justice Isaacs in 4th paragraph: It is therefore, in the circumstances… as the Commonwealth and State Parliaments and Executives are themselves bound by the declarations of this Court as to their powers inter se, our responsibility is so much the greater to give the true effect to the relevant constitutional provisions.

 Coco v R [1994] HCA 15; (1994) 179 CLR 427; (1994) 120 ALR 415; (1994)

Aust Torts Reports 81-270; (1994) 68 ALJR 401; (1994) 72 A Crim R 32

(13 April 1994)

http://www.austlii.edu.au/au/cases/cth/HCA/1994/15.html

Administrative inconvenience is not grounds for violating common law rights.

[By extension, it is also not grounds for violating constitutional rights.]

Citations: Justice Toohey at paragraph 8: “(I)nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights”.

Justice Toohey at paragraph 9: “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.): “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”. 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.”

At paragraph 10: “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 1 at 12 per Mason CJ).”

 HELLICAR – THE HIGH COURT’S ROBO-DEBT KILLER PRECEDENT.

http://www.austlii.edu.au/au/cases/cth/HCA/2012/17.html

Australian Securities and Investments Commission v Hellicar; Australian Securities and Investments Commission v Brown; Australian Securities and Investments Commission v Gillfillan; Australian Securities and Investments Commission v Koffel; Australian Securities and Investments Commission v Terry; Australian Securities and Investments Commission v O’Brien; Australian Securities and Investments Commission v Willcox; Australian Securities and Investments Commission v Shafron [2012] HCA 17 (3 May 2012)

 Bureaucrats have no jurisdiction to make legal findings of fact – courts do that.

Citation: {Full bench decision]

[141] The Court of Appeal recorded 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 however, that Mr Robb should have been called by ASIC. The Court said:

“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 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 requirements.

 [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.”

BHARDWAJ – THE 2ND DECISION THAT ALSO EXPOSES THE ROBO-DEBT FRAUD.

http://www.austlii.edu.au/au/cases/cth/HCA/2002/11.html

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002)

“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”  – No findings of fact by a court upon which to base a fair decision means that, in law, there has been no decision that can be enforced by Centrelink.

Citation:  Chief Justice Gleeson at 51 to 53: 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[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.

[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.”

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.

Hellicar – only the courts have jurisdiction to decide the facts once a decision is challenged. Bhardwaj A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. The proper function of the AAT is to review the “original decision”, which is based upon the findings of a court. If there is no court findings, any administrative decision is, in law, no decision at all, and THAT is the only decision an AAT registrar can make. Any other decision, e.g. the presiding AAT registrar substitutes themselves in place of a court and makes a decision that only a court can make is, in law, no decision at all.

 Australian Government Service

Legal Briefing – Number 67, 15 August 2003

‘Don’t Think Twice – Can Administrative Decision Makers Change Their Mind?’

http://ags.gov.au/publications/legal-briefing/br67.htm

The Solicitor-General’s advice to all government agencies in regard to the Bhardwaj decision was set out in Legal Briefing Paper #67. In the absence of any finding of the primary facts of the matter being made by a court, as per Hellicar at 141 – 143, this advice is even more relevant. The following advice in Briefing Paper #67 sets out the appropriate response of all Federal Government agencies, including the Administrative Appeals Tribunal, when welfare recipients appeal and the original decision-maker, i.e. a Centrelink official, or its dysfunctional computer, “skips the court” and makes an arbitrary decision that is, in law, “no decision at all.”

Agreement of the parties

This is one important factor which the majority Justices do not directly comment on. The Tribunal, at least impliedly, thought that the September decision was invalid. Mr Bhardwaj also, at least impliedly, thought the decision was invalid. There is a line of thought that where the relevant parties agree that a decision is invalid they can treat it as such. 26 This thinking was expounded in particular in the decision of the Full Court of the Federal Court in Comptroller-General of Customs v Kawasaki Motors Pty Ltd. 27 It is a line of thought which resonates with the practical issues which arise in relation to variation or revocation of administrative decisions.

On one view the decision in Bhardwaj may therefore stand for the unarticulated proposition that if the parties to a decision agree that a court would set aside the decision as invalid, then they can treat it as invalid and ignore it.

As the High Court ruled in Bhardwaj, any {challenged) decision not based upon finding adduced by a court is, in law, no decision at all.” The advice of the Australian Solicitor-General’s Office is that if the parties to a decision agree that a court would set the decision aside, they can treat it as invalid.

The key to ensuring the AAT, or the AGS representing the DSS, to agree that a decision is legally invalid is to request the findings of fact adduced by a court. If there are no such findings, then as far as the High Court is concerned, in law, there is no decision and it still has too be made. Since that is the High Court’s ruling, it is binding on the government and all government agencies, e.g. the DSS and the AAT as per Justice Isaacs statement at paragraph 4 in ‘The Engineers Case in 1920.

AAT 2016/5334 – A Legal Time Bomb.

The speedy settlement of AAT 2016/5334 appeal is an example of how Coco Hellicar, Bhardwaj and the Solicitor-General’s advice in Legal Briefing Paper #67 coalesced to result in a just outcome for the applicant whilst leaving a legal time bomb ticking away that could wreak absolute havoc on Australia’s legal and political systems. One of the issues raised in a 2016/5334 Statement of Facts & Issues lodged with the New South Wales branch of the AAT via email on 21st February 2017 was the statement:

“If I am correct, over a time frame measured in decades, the Australian Federal Parliament has deliberately raped the civil rights of 4 – 5 million vulnerable Australians and as a direct consequence of this systematic rape of rights, the unreported, secretly classified, officially “irrelevant” death toll caused by this ravaging of civil rights may be close to, or even exceed, 100,000 in number. Theoretically, it could even be the unthinkable, i.e. close to 1,000,000 dead.”

That statement, accusing the Federal Parliament of decades of fraud and murder, should have been vigorously challenged by Ms. Elizabeth Ulrick, the AGS lawyer representing the Secretary of the Department of Social Security. Instead, in a Nolle contendere response that directly parallels, and pre-dates, the Turnbull Government’s nolle contendere response to the Manus Island class action, Ms. Ulrick responded with a ‘Without prejudice’ Void ab initio proffer that restored the appellant’s pension and paid withheld monies. Function officio on the accepted proffer occurred on 6th March 2017 when the Deputy President of the AAT, J W Constance, signed off on this agreement. Whether-or-not Deputy President Constance realized it, the performing of Functus officio on the AAT 2016/5334 settlement was effectively a tacit endorsement of the ‘officially “irrelevant” death toll – 100,000’ statement that the Australian Federal Parliament has been committing Crimes against Humanity for decades and that “…the unreported, secretly classified, officially “irrelevant” death toll caused by this ravaging of civil rights may be close to, or even exceed, 100,000 in number.

 If Cardinal Pell, or any other person accused of a serious crime, e.g. Ms. Lisa Barrett, should succeed in serving a Duces tecum search order on the Department of Human Services that requires full disclosure of the unreported, secretly classified, officially “irrelevant” death toll caused by the unconstitutional violations of constitutional and other civil rights, the consequences for Australia’s political and legal systems will be ‘significant’, i.e. beyond belief. High profile federal agencies involved in the concealment of these murders includes the Australian Federal Police, the Australian Crime Commission, the Office of Commonwealth Director of Public Prosecutions and the Office of the Commonwealth Ombudsman.

The $90 Million Manus Island settlement only involved 1 culpable homicide, a matter of fact that raises the question as to just how concerned is the Turnbull Government to avoid having the unreported, classified, “officially irrelevant” death toll kept under wraps. In point-of-fact, due to the AAT 2016/5334 settlement, that is now an unachievable goal.

However, until the death toll is disclosed to a court, from a legal negotiating perspective, it is a powerful negotiating bargaining point for victims of the Robo-Debt fraud who may want to resolve their own situation without involving the police. If all else fails, welfare recipients can “call the cops” and cite the following federal statute, which just happens to be “binding” on every police force in the nation:

142.2  Abuse of public office: A Commonwealth public official is guilty of an offence if the official exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and the official does so with the intention of dishonestly obtaining a benefit for himself or herself or for another person; or dishonestly causing a detriment to another person.

NOTE: The penalty is imprisonment for 5 years.

Plus the penalty for any deaths that occur, e.g. 25-years in South Australia for a Robo-Dent triggered suicide. (Section 13.7 of the SA criminal code.)

Therefore, the very public endorsements of the Robo-Debt fraud by Malcolm Turnbull and Barnaby Joyce, Senator George Brandis foot-in-mouth comments about the ‘terrible human consequences’ of Robo-Debt, i.e. the suicides, when combined with Hank Jongen’s “phone Lifeline” comments are explosive statements that collectively add fuel to a smouldering legal conflagration.

 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)

http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html

In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

Justice Dixon at paragraph 11 of his findings:Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Justice Dixon’s finding makes a farce out the Turnbull Government’s ‘Guilty until proven innocent” policy, i.e. the arbitrary requirement that welfare recipients must prove within 21 days that Centrelink did not make a mistake. That is an exploitive abuse of power as per section 142.2 of the criminal code Act, for it is a bullying, unlawful demand that neither does not prove who was at fault when overpayments were made, a point of law that all members of the Federal Parliament with law degrees, including Malcolm Turnbull and Bill Shorten, “ought to know”.

Scottish Council of Law Reporting

“THE CHALLENGES OF SCIENTIFIC EVIDENCE”  [2nd March 2011]

The Honourable Thomas A. Cromwell (Canadian Supreme Court Judge)

http://www.scottishlawreports.org.uk/publications/macfadyen-2011.html

Justice Cromwell’s speech reviewed technical evidence issues and principles such as The Ontario Protocol, the Canadian National Judicial Institute specialized programs designed to assist judges in understanding the fundamental principles of scientific investigation as well as the basics of some commonly encountered problem areas of scientific evidence. Issues related to defining “scientific evidence” and “expert opinion” that are directly  relevant to Centrelink tort 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.  To that end, training and resource materials have the potential to help the Bar and the bench to understand the science underlying proposed testimony and to be aware of potential pitfalls and signs of danger in that evidence.  As Justice Breyer of the Supreme Court of the United States put it in his Introduction to the Reference Manual on Scientific Evidence, “we must build legal foundations that are sound in science as well as in law. … [through] a joint scientific-legal effort that will further the interests of truth and justice alike.

Police v Butcher [2016] SASC 130 (17 August 2016)

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

The findings in this case highlight the very deficiencies mentioned in Justice Cromwell’s speech, i.e. the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts are the very issues that plague Centrelink’s fraudulent claims and make it absolutely essential that Due Process of Law be avoided, i.e. claims be referred to the courts, with welfare recipients being diverted into an unconstitutional appeals system that “derives its powers from the authority of the Governor-General’. When it comes to “we must build legal foundations that are sound in science as well as in law. … [through] a joint scientific-legal effort that will further the interests of truth and justice alike”, whilst the Turnbull Government and government agencies “skip the courts” that standard of justice will not apply at the lowest socio-economic levels of Australian society, if Robo-Debt policies and practices or the Dickensian Bleak House travesties of justice implicit in following case study are applied.

<Appellant> and Secretary, Department of Social Services; AATA 904 (5 December 2014)

http://www.austlii.edu.au/au/cases/cth/AATA/2014/904.html

When it comes to a Dickensian Bleak House Travesty of Justice, also known as ‘The Principle of Necessity’, it may be very difficult to top this statement in paragraph 42 of this AAT decision:

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

The Turnbull Government’s clearly stated policy is that welfare recipients have 21 days in which to prove that Centrelink made a mistake, I believe that the above Statement of Findings is what is known as Probable Cause for Reasonable Doubt” about the validity of ALL Centrelink claims. The problem with the above finding, apart from the very clear statement that Commonwealth errors are “…not so unusual, uncommon, exceptional, markedly different from the usual run of cases or out of the ordinary, is that it does what a court would not do, i.e. totally ignore Section 1217A of the Social Security Act, which clearly states that if the sole cause of the error is a Commonwealth error, the alleged debt MUST BE WAIVED. This finding was a decision of “necessity”, i.e. what legal logic can be applied that can be used to compel the applicant to repay the alleged debt? The problem with decisions of “necessity” is that the High Court dismissed them as invalid in 1920, i.e. 96 years BEFORE this decision was handed down by the presiding AAT Member.

‘The High Court and the ‘Principle of Necessity’: In the previously-mentioned “Engineers Case” [HCA 54, 31st August 1920], when Justice Isaacs presented the Majority decision in this case, in his opening comments His honour stated: The more the decisions are examined, and compared with each other and with the Constitution itself, the more evident it becomes that no clear principle can account for them. They are sometimes at variance with the natural meaning of the text of the Constitution; some are irreconcilable with others, and some are individually rested on reasons not founded on the words of the Constitution or on any recognized principle of the common law underlying the expressed terms of the Constitution, but on implication drawn from what is called the principle of “necessity,” that being itself referable to no more definite standard than the personal opinion of the Judge who declares it. The attempt to deduce any consistent rule from them has not only failed, but has disclosed an increasing entanglement and uncertainty, and a conflict both with the text of the Constitution and with distinct and clear declarations of law by the Privy Council. Justice Isaacs further stated, The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.” A so-called ‘administrative appeals system’ that serves the political purpose of the government-of-the-day, whilst exceeding both constitutional and statutory jurisdiction and making decisions based up perceived legal “necessity” rather than statute law as it applies to the facts of the matter, has no place in Australia’s legal or administrative systems. Every AAT pecuniary decision that is not based upon the findings of fact adduced by a court is, in law, no decision at all, and, consistent with Bhardwaj at 53, legally valid decisions in many thousands of appeals that have come before the AAT have yet to be made.

Readers please note: The Justice Macaulay Letters are long-winded and difficult to understand – if you cannot understand the points of law above, you will have problems with The Macaulay Letters. Hopefully, I will find the time to publish letter #2 on Thursday or Friday.

Ron Medlicott – Australian citizen and a Christian volunteer lay-advocate

 

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This entry was posted in abuse of power, Case law, crimes against humanity, genocide, Human Rights violations, murder, News and politics, Political, Uncategorized, Welfare rights, White Collar Crime and tagged , , , , . Bookmark the permalink.

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