Below is the 2nd national interest letter to Justice Macaulay, the Victorian Supreme Court judge who was given the task of presiding in the Manus Island Class action against the Commonwealth of Australia. My viewpoint is that there should be a formal public inquiry into the human rights atrocities that the Manus Island concentration camp detainees endured.
NOTE: The shortlink URL for this web page is: http://wp.me/p1n8TZ-14F
Re: A public interest ‘Facts and Issues’ submission pertaining to the proposed $90 million settlement of the Manus Island class action.
Further to my previous email on 23rd June 2017 in which I point out that the proposed settlement in the Manus Island class action is not in the public interest and if you have not ratified that settlement, that you should not do so, I submit the following precedents and points of law for your consideration.
Case Law: Precedents from: The Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (HCA 54; 31st August 1920)
In paragraph 9 of his findings in this case, Justice Higgins stated:
In connection with this subject, much argument has been addressed to sec. V. of the Constitution Act—what we call the “covering sections” of the Constitution. It provides that that Act and all laws made under the Constitution “shall be binding on the Courts, Judges, and people of every State … notwithstanding anything in the laws of any State.” I take sec. 51 of the Constitution as defining subject matters for legislation, and covering sec. V. as defining the persons who are to obey the legislation. Once we find a valid Federal law—say, a law as to trade and commerce with other countries—the Courts and Judges and people of every State must obey it, whatever the State laws may say to the contrary. Organized bodies of persons, such as incorporated companies or municipal corporations or States, are not mentioned: for they always act through “people”—human beings: and these human beings have to obey the valid Federal Act, whatever the State law says. The State law is to have no efficacy for them as against the valid Federal law: they must obey the Federal law as if the State law did not exist, and whether they act for State or for corporation or company. Here, the Minister for Trading Concerns is, by the Trading Concerns Act W.A., constituted a corporation. The successive Ministers have the rights and duties conferred by the Act, and must obey the Act except so far as it is inconsistent with a valid Federal Act; but to the extent of the inconsistency the Minister has to obey the Federal Act, not the State Act (sec. 109 of Constitution).
There are a plethora of points of law in the above statement but I would draw your attention to three key points that I believe are relevant to the Manus Island class action settlement:
“I take sec. 51 of the Constitution as defining subject matters for legislation, and covering sec. V. as defining the persons who are to obey the legislation.”
Under section V of the constitution, the courts, judges and the people are all bound by valid commonwealth laws, i.e. no-one is exempt from the laws of the Commonwealth, including Members of Parliament, a point emphasized by the statement “but to the extent of the inconsistency the Minister has to obey the Federal Act.”
It is clearly evident from the statement “the Minister has to obey the Federal Act” that being a Federal Government Minister is not grounds for exemption in either administrative decisions or decisions where, whether intended or not, there may have been violations of criminal laws.
It is also logical that the obligation to obey the law extends to the Prime Minister and, jointly and severally to all members of the Federal Cabinet and all are accountable for violations of criminal laws in precisely the same manner as any other person within the jurisdiction of the Commonwealth of Australia.
“Organized bodies of persons, such as incorporated companies or municipal corporations or States, are not mentioned: for they always act through “people”—human beings: and these human beings have to obey the valid Federal Act, whatever the State law says.”
The above statement is inclusive of both Local government and State Government being bound by the laws of Commonwealth because these organizations act through people, a principle that also applies to the Federal Parliament itself. It is therefore logical that if members of Local Government or State government entities are bound by the laws of the Commonwealth, so also are the Federal Members of Parliament. Where Members acting in concert violate the law, for whatever reason, then they are accountable both individually and as a corporate entity.
It should be noted that Senator Edwards, a Senator for South Australia has used the statement “Liberal Senator for South Australia.” on his official stationary. By identifying himself as a Liberal Party member, Senator Edwards is assigning corporate responsibility for his conduct to the Liberal Party. Therefore, where conduct as a “Liberal Senator” violates Commonwealth or international laws, the Liberal Party has a degree of legal liability for any such unlawful conduct.
In the same manner, if the Executive of the Parliament violates Commonwealth or international criminal laws, then both the members of Executive, and the members of the Parliament for whom the Executive is acting, are jointly and severally accountable for any violations of the law. In paragraph 8 of his opening remarks in the Engineers Case, Justice Isaacs stated:
[In the words of a distinguished lawyer and statesman. Lord Haldane, when a member of the House of Commons, delivered on the motion for leave to introduce the bill for the Act which we are considering:—”The difference between the Constitution which this bill proposes to set up and the Constitution of the United States is enormous and fundamental. This bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire—I mean the institution of responsible government, a government under which the Executive is directly responsible to—nay, is almost the creature of—the Legislature.”
Note the statement, “a government under which the Executive is directly responsible to—nay, is almost the creature of—the Legislature.” The Executive is directly responsible to the Legislature and therefore, if the Executive engages in criminal abuses of power, which is an abuse of power, then the individual people who comprise the legal entity that is the Membership of Parliament, are legally liable for those criminal abuses of power.
Section 142.2 of the Commonwealth Criminal Code Act (1995) is as binding upon individuals who are Members of the Federal Parliament as it is binding upon all other persons within the Commonwealth’s jurisdiction.
(1) A Commonwealth public official is guilty of an offence if:
(a) the official:
(i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or
(ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or
(iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and
(b) the official does so with the intention of:
(i) dishonestly obtaining a benefit for himself or herself or for another person; or
(ii) dishonestly causing a detriment to another person.
Penalty: Imprisonment for 5 years
$90 million of public monies misused to buy exoneration for crimes under either Australian law or international law is a massive “detriment” to taxpayers and it is essential that, in accordance with the constitutional obligation to provide “good government” that a court be satisfied that neither the Prime Minister or the Executive, past and/or present, has not violated criminal laws when acting as a corporate entity, or entities, administering the governance of the Commonwealth. Iif criminal abuses of power occur and one of the consequences of that criminal activity is loss of life, then, in law, every Member of the Parliament must account for their conduct in accordance with due process of law.
For the Prime Minister, or the Federal Executive, to attempt to use public funds to literally buy their way out of accountability before the courts is an abuse of power that is totally unacceptable.
The integrity of the Members of the Federal Parliament should never at any time be assumed by a Court of Law.
There is a substantial body of evidence to support the argument that Members of the Federal parliament lack integrity.
“As elected officials holding public office, Parliamentarians are expected to act with integrity in accordance with the public trust placed in them.”
(Source: Page 12, Auditor-General’s Report No.3, 2009-10. Audit Report – Administration of Parliamentarians’ Entitlements by the Department of Finance and Regulation.)
In 2009, an audit of parliamentary entitlements claims by the Office of the Auditor-General revealed that 144 Members of the Federal Parliament had ‘double-dipped’ on printing costs of election material to the tune of $4.64 million in public monies. This just one of many examples of possible rorting of public funds by federal politicians who are quarantined from prosecution for criminal conduct by “government protocols’ that were identified in an email by Federal Agent Jeff Pearce that was transmitted to me on 14th September 2009.
“Both the Australian and Papua New Guinea governments shall forthwith take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on Manus Island and the continued breach of the asylum seekers or transferees constitutional and human rights.”
SC 1497 – 25th April 2016
Full Bench decision
Papua & New Guinea Supreme Court
Note the very clearly statement, “…the continued unconstitutional and illegal detention.”
After a careful scrutiny of the facts and issues of the matter, the Full Bench of the Papua & New Guinea Supreme Court was in no doubt that both the “Australian and Papua New Guinea governments” had acted illegally. It is therefore a vital matter of public interest that an Australian Court ascertain the facts of the matter pertaining to extent of the illegal conduct of the Australian Government, with the issue of precisely which government, or governments, acted illegally being determined.
At the moment, no politician or political party is accepting responsibility for illegal conduct that involved unintended fatalities, possibly because under Australian laws, illegal conduct that results in fatalities are culpable homicides, a fact of law evidenced by r v Finch in the South Australian Supreme Court in 2005 -06. Although many details of this case are not in the public domain, the following statement was made by the South Australian Director of Public Prosecutions:
“R v Finch – Josiah Finch was charged with the murder of Karim Morrison. Mr Morrison was shot once to the head in the carpark of the McDonalds restaurant on Anzac Highway at Morphettville before his body was dumped nearby in one of the entrances to the nearby racecourse. The prosecution case was that Mr Morrison was shot in the course of a drug rip-off gone wrong. Whilst it was not alleged that Mr Finch was the shooter, it was alleged that he was present when Mr Morrison was shot and was instrumental in the arrangements that led to Mr Morrison being in the carpark at the relevant time. The shooter remains unknown to the prosecution.”
“Mr Finch was found guilty by a jury. He was sentenced to life imprisonment with a non-parole period of 14 years. The basis upon which he was sentenced was felony murder. That is, the learned sentencing judge, who presided at the trial, was satisfied beyond reasonable doubt that the murder was not intended or foreseen by Mr Finch, but that it occurred in the course of the commission of a major indictable offence to which he was party”. (“14 years”: The minimum parole period is 15 years, but time on-remand was take into account.)
Annual report 2005-06, Page 3: Trials:
Office of the Director of Public Prosecutions (South Australia)
The PNG Supreme Court has found that the Australian Government had conspired with the PNG government to engage in unlawful conduct and fatalities had occurred. For any Australian court to endorse a taxpayer funded settlement that would have the practical effect of allowing the Australian Government to avoid accountability is unconscionable, especially in the light of this statement by Scott Morrison: ‘This parliament should decide what our obligations are under these conventions – not those who seek to direct us otherwise from places outside this country, such as foreign courts or the United Nations’
Scott Morrison: Migration & Maritime Powers Legislation Amendment (Resolving the Asylums Legacy caseload) Bill 2014 – Debate 25-9-2014
Commenting on that statement, Professor Ben Saul, the Emeritus Professor of International Law, Sydney University stated:
“The Minister assured us that Australia would comply with its international obligations – which is presumably not difficult if international law is now simply what the government says it is.”
‘The light of human rights is fading in Australia.’ ABC – ‘The DRUM’ 7-10- 2014
The findings of the PNG Supreme Court clearly indicate that the actions, as defined by the Australian Parliament in regard to at least one of its solutions was an illegal violation of human rights under international law. On March 26th 2016, a tribunal at the International criminal Court at the Hague in the Netherlands handed down the findings of a 5-year-long trial into Bosnian war crimes that had resulted in an estimated 100,000 deaths:
“Karadzic was the only person with the power to intervene and protect those being killed. Far from that, the accused ordered Bosnian male detainees to be transferred elsewhere to be killed. With full knowledge of the on-going killing, Karadzic declared a state of war in Srebrenica.”
Trial of Radovan Karadzic for alleged Crimes against Humanity. O-Gon Kwon – Presiding judge: International Criminal Court of Justice.
Within Australia, the integrity of members of the Federal Parliament in respecting the constitutional and civil rights of vulnerable people is subject to question, a fact evidenced by the High Court’s Poniatowska and Keating decisions.
The Poniatowska Decision – HCA 43 (26th October 2011.)
“The Poniatowska Blunder”: On 20th March 2000, , the Federal Parliament unintentionally extinguished a law that required welfare recipients to report income to Centrelink. In 2009, Ms. Malgorzata Poniatowska was one of some 15,000 welfare recipients who were convicted of what was literally a non-existent crime. Ms. Poniatiwska appealed her conviction all the way up to the High Court which upheld her appeal. On the 26th October 2011, the High Court upheld Ms. Malgorzata Poniatowska’s argument that she could not be prosecuted for a non-existent law. The Poniatowska Decision draws attention to the shameful fact that 15,000 times, people had been convicted of a non-existent crime! It is an absolute disgrace that in each of these cases, investigators, prosecutors, counsel for the defendant and the presiding judges in this Dickensian Bleak House farce further added insult to injury by all failing to notice that people were being prosecuted for a non-existent law. The ultimate ‘injury’, in the legal sense of the word, occurred on the 4th August 2011 when the Federal Parliament included a retrospective provision a Bill that intended to rectify the error made in March 2000. This retrospective legislation was intended to legitimize convictions made under the extinguished legislation.
The Keating Decision – HCA 20 (8th May 2013.)
In December 2012, the High Court agreed to hear an appeal from Ms. Kelly Keating who was appealing a conviction made under the 4th August 2011 retrospective law. In its findings, the High Court ruled that the retrospective law was a “statutory fiction:”
The Director observes that ignorance of the content of a law affecting the scope or operation of an offence does not relieve a person of criminal responsibility. He notes that proof of the element stated in s 135.2(1)(a) requires the prosecution to establish (i) as a matter of fact, a person intentionally does not perform an act, and (ii) as a matter of law, there is a duty to perform the act. His point is that the prosecution is not required to prove an intention to breach a legal duty. These considerations support his principal contention, which is that s 4.3(b) is silent as to the point in time at which the duty to act is imposed.
On the Director’s construction, s 66A creates a statutory fiction with the effect of attaching criminal liability to the defendant for her failure to advise the Department of an event within 14 days of its occurrence. This is so notwithstanding that at the time of the failure she was not required by law to inform the Department of the event (putting to one side receipt of any information notice) and that the duty is incapable of discharge.
A clear statement of legislative intention is required before the courts will find that liability for a serious Commonwealth offence is imposed by means of a statutory fiction. The ascertainment of such an intention proceeds by the application of well-understood principles. In issue is proof of an offence under the Code. This directs attention to the law creating the offence and to the general principles of criminal responsibility under the Code. To observe that s 66A of the Administration Act operates with retrospective effect is not to conclude that the deemed duty it imposes engages with s 135.2(1)(a) and s 4.3 of the Code so as to render the latter nugatory in the case of an omission to inform the Department of an event or change in circumstances on and from 20 March 2000 to 4 August 2011, the date on which the Amendment Act received the Royal Assent.
It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing. As explained in Poniatowska, s 4.3 of the Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way:”
Poniatowska and Keating were un-necessary High Court decisions caused by the Federal Parliament’s deliberate violation of welfare recipients rights.
Australian Securities and Investments Commission v Hellicar (& Ors) [HACA 17 on May 3rd 2012]
This decision was a ‘Millionaires Row’ decision in which the constitutional constraint that in tortious conduct between the Commonwealth of Australia and other legal entities, the determination of the primary facts of the matter upon which a fair and reason decision can be based must be adduced by a court.
There is widespread community concern over what is being called ‘Robo-Debt’, the automated process of determining that an overpayment has been made to a welfare recipients and then automatically assigning fault for the ALLEGED overpayment.
In my previous communication, emailed on 23rd June 2017, I pointed out that during an Australian Broadcasting Commission program called Q & A, the federal Attorney-general and Ms. Tanya Slibersek, the Deputy Leader of the Australian Labour Party, quibbled over which government, the Turnbull Government of the Gillard Government was most efficient in implementing the automated process of debt recovery.
This process totally ignored the following findings in Hellicar:
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.
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 the bold highlighted text in the 3 paragraphs above:
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.
” Each side in a criminal trial “is free to decide the ground on which it or he will contest the issue, …Proceedings for declaration of contravention or pecuniary penalty order engage no more stringent requirements.
Deciding the facts of the case is a court’s task, not a task for the regulatory authority.
Since the Office of the Solicitor-General publishes legal briefing papers on High Court decisions, both the Attorney-General and Ms. Slibersek, “ought to have known about these decisions. Prime Minster Turnbull and Deputy Prime Minister Barnaby Joyce are on the public record with statements supporting Robo-Debt collection methods despite the acknowledged “20% error” in arbitrarily determining that if welfare recipients cannot Centrelink officials within 21 days that Centrelink has made a mistake, then Centrelink’s decision will be upheld.
The Turnbull Government’s current Robo-Debt practices and the policy of automatically assuming that a welfare recipient is at fault is totally inconsistent with the High Court’s Hellicar decision at 141 – 143.
In December 2015, I provided copies of the above Hellicar determinations along with the High Court’s Bhardwaj decision in correspondence related to AAT case file 2014/<Redacted>. In a letter dated 7th February 2016, the Acting Chief Legal Counsel of the Department of Human Services, Alice Linacre.
In her response to my communications, Ms. Linacre arbitrarily ignored the High Court’s decisions in Hellicar and Bhardwaj and rejected my argument that the applicant in AAT case file 2014/<Redacted> was the victim of serious abuses of power and procedural error, e.g. the withholding of crucial evidence and no adducing of the facts by a court upon which any fair and just decision could be made.
At this point in time I am convinced that the applicant is the victim of the previously stated section 142.2 of the Commonwealth Criminal Code Act, i.e. section 142.2 (1)(b) (ii) “dishonestly causing a detriment to another person.”
It should be noted that in November 2014, just days before the AAT hearing, a number of issues where taken up with the then Human Services Minister, Kevin Andrews.
An audio-recording of the Directions hearing was provided in which a senior AGS lawyer and the presiding AAT member discussing ‘the matter going to trial on that date.”
A copy of an email from the AGS lawyer who would represent the Secretary of the DSS at that “trial”, which stated that Centrelink had no recording of the disputed conversation. What makes this statement so outrageous is that when anyone contacts Centrelink via telephone, they are told that “For your security this call will be recorded.”
I am of the opinion that no court would have accepted such a cavalier disregard for procedural fairness or section 142.2 of the Commonwealth Criminal Code. Since Kevin Andrews was a former barrister, I had expected that he would have immediately known that the Secretary’s claim was a procedural fairness disaster and withdrawn the claim. This did not occur.
In February 2015, I wrote to the Minister for Social Services, Scott Morrison, and provided the same information. In addition, in my correspondence I pointed out that when I raised the issue of the applicant having human rights that needed to be respected, the AGS lawyer representing the Secretary of the DSS responded with the rebuttal, “Let’s leave the issue of human rights for other courts to decide.”
I would draw your attention to the phrase “other courts”, a statement that clearly inferred that the AAT hearing was a court hearing. As you are probably well aware, the AAT has no jurisdiction to hold trials; however, as I pointed out in my previous email, this is standard operating procedure.
Although Scott Morrison has a law degree and therefore “ought to have known” that the applicant was the subject of very serious procedural errors, e.g. no jurisdiction to hold a trial and adduce the primary facts of the matter upon which a legally vaid decision could be based, Scott Morrison responded in precisely the same way as Kevin Andrews, i.e. he ignored the legally invalid decision and took no action to have it overturned.
Once bitten, twice shy. [Kioa v West HCA 81; 18th December1985]
“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. (Justice Brennan’s determination at paragraph 38, of the Kioa v West HCA 81; 18th December1985.)
In AAT 2016/5334, under the applicant’s Right of Discovery, as per Justice Brennan’s determination at paragraph 38, I requested the findings of fact as adduced by a court. In doing so, I was requesting information that did not exist because there had been no court hearing.
It is totally beyond the bounds of credibility that since the High Court handed down the Hellicar decision on 3rd May 2013, not one Attorney-General or Solicitor-General, federal or state, has learnt about this decision.
It is also beyond the bounds of reasonable belief that no person who has held the portfolio of Minister of Human Services, Minister for Social Services, Minister for Employment and Minister for Home Affairs, has not known about the Hellicar decision.
There are several AGS lawyers that know about the Hellicar decision because I have provided them with copies of Hellicar and Bhardwaj.
At this point in time there is no legally valid excuse for the Turnbull government to be ignoring Hellicar and Bhardwaj and yet, if reports in the media and on the Internet are accurate, this is occurring at a rate of up to 20,000 per week!
In closing I repeat my viewpoint that it is not in the public interest to ratify the settlement between the Manus Island detainees involved in the class action against the Commonwealth of Australia. It would be a gross travesty of justice to allow any taxpayer-funded settlement that may obstruct and pervert the course of justice to the extent that the Australian politicians and other persons involved in the illegal violation of the human rights of almost 2,000 people who were unlawfully detained at the Manus Island concentration camp are not called to account for their actions before the courts. There have been deaths, and regardless of the cause of death, since they occurred during, or as a consequence of a crime, the manner of death is Homicide.
You and I both know this, and thanks to the Internet, many others, some of who may be facing criminal charges, will soon know this as well. If Australia’s criminal justice is to avoid descending to the levels of a Dickensian Bleak House farce, it is imperative that the people who govern our nation are held fully and transparently accountable for possible violations of criminal laws and unlawful violations of human rights. As Justice Higgins stated in 1920, “I take sec. 51 of the Constitution as defining subject matters for legislation, and covering sec. V. as defining the persons who are to obey the legislation.”
Ronald Medlicott – An Australian citizen and a Christian volunteer lay-advocate.