Statement of Claim, Annexures and Footnotes.

(UPDATED Sun 7 Apr 2024 with para [cb]-[ch] on mens rea of omission 3(i). This is a statement in preparation, which is subjected to changes and updates until it is finalised)

1. I prepare this Statement of Claim to be submitted to the Australian Federal Police and Commonwealth Director of Public Prosecution on completion. I am not a lawyer and all pieces of evidence noted here are from publicly available sources.

3. Between 1 October 2013 and 31 December 2013 in Canberra in Australian Capital Territory, then holding public office as the Secretary of Department of Immigration and Border Protection, [ Mr Secretary ], had in the course of his public office commited the substantive offences of misconduct in suppressing the Christmas Island Medical Officer's Letter of Concern, the "Letter of Concern" . ^A(i) In so suppressing the Letter of Concern, [ Mr Secretary ], had himself committed two counts of misconduct by:
(i) wilfuly omitting to submit the Letter of Concern to the then Minister for Immigration, the Hon Scott Morrison;
(ii) intentionally acting to obstruct the path-ways that were in existence for which the Letter of Concern can [ (or) will ¹⁰² ] reach to the then Minister for Immigration, the Hon Scott Morrison, without reasonable cause or justification, where such misconduct are serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

4. The word "suppression" in (3) is used with ordinary meaning as "the act of preventing something from being seen or expressed or from operating". The accused [ Mr Secretary ] act of suppressing the Letter of Concern has two constituent conducts: 3(i) omission of duty and 3(ii) intentional obstruction in breach of the duty of the Secretary. Both 3(i) and 3(ii) are able to form as substantive offence of misconduct.

For the common law offence of misconduct in public office, I have taken the approach with formulation in elements of offence that preferred by the Court, as outlined in [2019] NSWCCA 32 at [67] and the Victorian Court of Appeal in R v Quach [2010] VSCA 106 at [46]. The elements of offence are:

(a) [ Mr Secretary ] is a public officer;
(b) [ Mr Secretary ] conducted impunged acts in the course of his public office;
(c) [ Mr Secretary ] had:
(i) wilfully misconduct himself by omitting to forward the Letter of Concern to Minister Morrison;
(ii) intentionally dismiss the members of Immigration Health Advisory Group and Minister's Council on Asylum Seeker and Detention;
(d) [ Mr Secretary ] has done (c)(i) and (c)(ii) without reasonable excuse or justification; and
(e) where such misconduct in (c)(i) and (c)(ii) are serious and both meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."

The contents in Statement of Claim are categorised and set out in paragraphs as follows.

• In [aa]-[az], the contents of the Letter of Concern;
• [ba]-[bz], the role and duties of Secretary;
• [ca]-[cz], the actus reus and mens rea of omission 3(i);
• [da]-[dz], the actus reus and mens rea of act 3(ii);
• [ea]-[ez], the seriousness of offence.

(the index [aa] etc.. will be replaced with numeric at the finalised submission)

Contents of the Letter of Concern

[aa]_ The paragraphs [aa-az] are the summary of the political and legal circumstances of the UMAs and issues of medical care at the Christmas Island Detention Centre at the relevant time. This submission focuses on the offence of misconduct in public office by the accused, Mr Secretary, in covering up the Letter of Concern signed by 15 medical practitioners. The aims of paragraphs [aa-az] are to demonstrate that the Letter of Concern contains sufficiently clear information about the breaches of legal duty by Commonwealth and IHMS with possible consequences of civil and criminal liabilities. In particular:

• The breaches of law by doctors, IHMS and DIBP are identifiable;
• the deviation from observable standards by IHMS are also recognisable and;
• The exemplary damages caused to the UMA patients are also recognisable.

Diary of PDD: Emerging issues in consideration of evidence

[ab]_ From 2012 to 2014, persons who entered Australia without valid visas by boat, the unauthorised maritime arrivals (UMAs), were being held by the Commonwealth at the Christmas Island Detention Centre before being sent to offshore regional processing centres. The Commonwealth has held the UMAs under its custody according to s. 189(1) of Migration Act (1958) Cth. Then, the Commonwealth is authorised under s. 198AD(2) to send the UMAs to regional processing centres, as soon as reasonably practicable (emphasis added). The Commonwealth also grants the Minister the power to intervene under s. 198AE in cases where the UMAs could not be sent to the regional processing centre because of personal circumstances.

[ac]_ On 18 September 2013, the new Coalition Government was sworn in and launched a military-led operation, Operation Sovereign Borders, "OSB". At the first media briefing of OSB on 23 September 2013, Immigration Minister Scott Morrison stated that the Government would be moving to transfer all unauthorised maritime arrivals to Manus Island or Nauru within 48 hours of their arrival¹⁰³.

[ad]_ The Commonwealth government has a contract with International Health and Medical Services Pty Ltd ("IHMS") to provide health screening and assessment services, i.e. the Health Induction Assessment ("HIA"), and health care for the UMAs at Christmas Island Detention Centre. IHMS has the contract to deliver primary healthcare broadly comparable to an Australian standard. As for the health screening and assessment of UMAs, "HIA", the IHMS must carried out according to Form 26, "Instructions for medical and radiological examination of Australia visa applicants". The IHMS, in turn, employ medical practitioners to do the HIA and the health care for UMAs at the Christmas Island Detention Centre.

[ae]+ In or around October 2013, the management of International Health and Medical Services (IHMS) requested the medical practitioners working at the Christmas Island Detention Centre to provide in writing about the concerns the practitioners had regarding standards and practices of medical care for UMA detainees. In response, the fifteen medical practitioners have organised, compiled and signed onto the 81-pages report with 12 pages attachments, i.e. the Letter of Concern ¹⁰⁴.

[af] The Letter of Concern addresses wide-ranging issues the practitioners encountered at the detention centre, such as difficulty using health informatics, work allocations, the facility, equipment and medical stock. The Letter of Concern also noted that in delivering HIA and health care for UMAs, there are unsafe practices and gross departures from generally accepted medical standards that pose significant risks to the UMA patients and have caused harm. The Letter of Concern lists the case examples that caused medical harm to UMA patients in Section 4.0, which are unavailable to the public.

[ag] Section 1.2 of the Letter of Concern describes the Commonwealth implementation of "rapid processing" for the health assessment and care of UMAs, understood to have arisen after the enactment of the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012. Under the rapid processing, the medical practitioners were required to complete the tasks of initial Health Induction Assessment for UMA patients within a brief and nominated time frame. Dr Grant Ferguson, one of the signatories to the Letter of Concern, had given testimony about the changed working environment at Christmas Island Detention Centre in July-August of 2013, as Commonwealth was hastening the transfer of UMAs to regional processing centres as follows:

[UMA] ... Kids would arrive very dehydrated, filthy, covered in vomit, human excrement, they’d be sleep deprived, terrified, sunburnt. They were in a pretty bad way often ...
Initially when I arrived in July(2013) that wasn’t the case. They would have been housing in the camp for several days and have tests followed up and things before they were sent. But with the introduction of rapid processing it was literally, probably the one and only time they were seen by a doctor before they were sent. Unfortunately those assessments were [inaudible] to mind by time pressures and corner cutting that they really didn’t have much clinical validity...

The IHMS authorises doctors to complete the initial health induction assessment for UMA patients at a rate of 5 minutes per person instead of the agreed 20 minutes per person. The doctors have also experienced the management of IHMS, or Commonwealth itself, downgrading the urgent referrals they've made for some UMA patients, causing medical damages.

[ah]_ Australian Medical practitioners have mandatory reporting obligations to the Australian Health Practitioners' Registration Authority ("AHPRA") when faced with a reasonable belief that departure from accepted professional standards is placing the patients at risk. There are also evident medical harm and possible liabilities arising from the treatment of UMA patients under the arrangements of the Commonwealth Department of Immigration and Border Protection ("DIBP") and IHMS. In Section 3.4 of the Letter of Concern, the medical practitioners had given notice to the authorities and IHMS:

3.4.3 Response Expected:
We the undersigned ask that IHMS provide us, as soon as possible (not more than 7 days) a response to the concerns detained in sections 1.1-1.3, 1.5-1.6, 2.1-2.4, 2.7.
We ask this due to concerns that continuing to practice under the current circumstance may constitute a breach in AHPRA's code of conduct and require mandatory reporting.

In Section 3.2.5 Key Recommendations, the Letter of Concern further advised that .... no third party can absolve medical practitioners of their duty of care. .... payment does not absolve the medical practitioners of their duty of care.

Ethical duty, Legal liability and HIA

[ai]+ It is well established that the Commonwealth has the duty of care for UMAs in its custody. The scope of such duty is comprehensive in the aspects of prisoner's safety and welfare. The duty includes "to exercise reasonable care for the safety of the [UMA] person during the detention". Commonwealth must also take reasonable care in exercising its power of control over UMAs "in order to avoide injury to inmate". The Commonwealth must also provide UMAs with the level of medical care to meet their health care needs ( SZRWS v Minister for Immigration [2022] FedFamC2G 447 at [110-113] ).

[aia]+ When the Commonwealth has a contract with IHMS to deliver medical care, such as the arrangements that made at Christmas Island Detention Centre, the overall duty of health care for the UMAs has been separated into two parts. First, the Commonwealth has the non-delegable duty of care to ensure that the IHMS provides the requisite level of medical care with reasonable care and skill to UMAs (S v Secretary [2005] FCA 549 at [218] ). It is the supervisory duty of the Commonwealth to see "the care is taken on UMAs" by its health care contractor, IHMS.

[aib]+ The second part of the Commonwealth's duty is to complement and facilitate the IHMS with requisite logistics, such as by arranging medical transfer in the health care for UMA patients. It is the Commonwealth's complementary duty of health care in the tasks where the contractor IHMS doesn't have the capacity to do. Such duty exists within the Commonwealth's overall duty of health care for UMA patients.

[aic]+ The Commonwealth has a legal duty to carry out the proper HIA for the UMAs. The purpose of conducting initial health screening, health induction assessment (HIA), is to ensure the UMAs have the right and appropriate fitness to withstand the detention conditions, i.e." safety of prisoner", and that the UMA does not impose health risks on others in detention, i.e. "avoid injury to inmate". In other words, the purposes for carrying out HIA are that the detention doesn't cause harm to UMA and that the UMA doesn't cause harm to other detainees ( Compare with SZRWS v Minister for Immigration [2022] FedFamC2G 447 at [111] and [112] ).

[aj]_ IHMS has been contracted to deliver primary healthcare broadly comparable to an Australian standard. As for initial health screening HIA for UMAs, the IHMS must provide the standards accorded in Form 26, "Instructions for medical and radiological examination of Australia visa applicants". Any failure or deviation from that standard by IHMS will attract legal liabilities.

[ak]_ The doctors and nurses employed by IHMS must follow the established ethical guidelines for medical practitioners. As such, the medical practitioners' legal duty to UMA patients are bound by common law contract and tort. A medical practitioner's ethical code violation is equivalent to a breach of legal duty imposed by common law contract or tort. The primary legal duties owed by a medical practitioner are essentially the same in both contract and tort ( Mules v Ferguson [2014] QSC 51 at [36-39], Breen v Williams [1996] 186 CLR 71, Roger v Whittaker [1992] 175 CLR 479).

The legal duty owed to UMA by the medical practitioner in the HIA process is not materially different from the general practitioner's routine consultation with patients, except for the additional diligence required to record patient's health data. On HIA, the medical practitioner has been called upon to provide a comprehensive assessment of the health of UMA patients. Therefore, the practitioner would be required "to exercise reasonable care and skill in the provision of professional advice and treatment". The ethical guidelines and common law require that medical practitioners make clinical decisions independently and in the patient's best interests -- i.e., must be loyal to the patient -- in the discharge of their duties.

[aka]+ The management of IHMS and the administrators of DIBP must not alter or remove any clinical decisions, such as medical transfer for UMA patient, that a medical practitioner independently makes. Doing so would breach the complementary duty of care that described in [aib] and that such actions can cause the UMA patients being held in continuing tort. In the following, I have extracted some of the incidents described in the Letter of Concern that are likely to attract legal liabilities for both Commonwealth and IHMS.

Specialist Referral and Medical Transfer of UMA Patients

[al]_ In Australian case laws, medical practitioners who fail to assess a patient with "reasonable skill and care" or fail to make a referral for the patient will breach their legal duty ( Mules v Ferguson [2014] QSC 51, Khan v Rathjen [2016] NSWDC 139 ). In the incidents listed in the following paragraphs, the DIBP and IHMS failed to follow up on patient referrals made by medical practitioners. As such, the Commonwealth (DIBP) breached the non-delegable duty of care, and IHMS breached contractual duties.

[am] In Sections 1.3.3 & 1.3.5 of the Letter of concern, prolonged delays of UMA patients took place due to the medical director of IHMS re-categorising and putting them back for re-triage. This practice had caused medical damages to (identified cases are in square brackets):

• a patient with an imminent risk of sepsis from surgical pathology [C10];
• complications of a pacemaker insertion in a child [C11] and;
• fevers in a patient with undifferentiated immune-compromise [C12].

The incidents described in 1.3.3 & 1.3.5 therefore indicate that:

=> The Medical Director of IHMS had personally breached the common law by re-writing (re-categorising & re-triage) the doctors' medical records without seeing the patients;
=> The contractor IHMS breached contractual obligations to observe Australian Standards of Medical Care on the UMA patients under its care. In the Letter of Concern Section 3.1 (p.66), the IHMS clinics on Christmas Island were accredited by RACGP. The RACGP Standards for General Practice Criterion 1.4.2 requires clinical autonomy to be given to treating doctors.

[an] In Section 1.3.6, Patients transferred to the mainland and then returned to Christmas Island without specialist review pp32 [C13].

=> This indicates the DIBP's failure and denial to provide a UMA patient with requisite medical care. This incident occurred on the mainland, where the Commonwealth has a non-delegable duty of care towards its UMA detainees. This incidence is a common law offence and also amenable to torture law.

[ana]+ In Sections 1.3.8, the prolonged delay in transfer of UMA patients causing medical damages appeared to have cited in [C14, C7, C15, C16, C13, C34, C36].

[ao] In Sections 1.2.7 & 1.2.8.1, the nurses and medical director are orchestrating unauthorised and unlawful discharge assessments for UMAs. The nurses had signed the discharge health assessment for UMA patients -- in the stead of doctors -- and then approved by the medical director, then the UMAs were sent offshore. The known cases of the damages had taken place:

• Patients referred to the mainland for urgent specialist attention [C6];
• Patients with visual impairment or other disabilities [C6], [C7];
• Pregnant women (including with suspected twins [C35]) and children under seven sent to Nauru [C7].

By signing off such discharge assessment, the nurses may be liable for breach of common law contract. The common law requires medical personnel (doctors, nurses or psychiatrists) to have "reasonable skill", i.e. requisite qualifications, to do any patient task.

[ap] The medical practitioner who had to signed off HIA for UMAs with 5-minute interviews may be liable for breach of common law contract and tort. The IHMS that authorised such arrangement also violate its contractual duty. Doing HIA require reasonably comprehensive examination for UMA patients in accordance with Form 26. Therefore, the medical practitioner must "exercise reasonable care and skill in the provision of professional advice and treatment". It is prudent for medical practitioner to:

• Obtain a complete history from the patient;
• Perform adequate clinical examinations;
• Recognise (find out) any significant or outstanding clinical features.

Given that the doctor and the patient had to communicate through an interpreter, there was no possibility of finding out any outstanding illness the patient might have, even if the patient was ready to tell. When the medical practitioners are afforded only 5-minutes interviews for the UMA patients, it only suffice for the practitioner to record name, age and weight with a quick visual check. Plainly, the IHMS cannot meet requisite standard for health induction assessment under such arrangement.

Therefore, the Letter of Concern identifies various breaches of the law by nurses, doctors, administrators, IHMS and DIBP, claims backed up by cases with exemplary damages. That is the most likely reason the DIBP had covered up the Letter of Concern.

The relevant chronology regarding Letter of Concern

[aq] Following is an outline of the possible procedures and the estimated timeline for the Letter of Concern being composed, handed over to IHMS and then reaching the Secretary of DIBP. I can only provide possible procedures and estimated timelines as a general public member. The investigators of AFP/CDPP can exhaust the exact procedure that took place and also the timeline.

1. Around October 2013, the Medical Director of IHMS requested medical practitioners to provide in writing about the medical practitioners' concerns regarding healthcare and health assessment of UMA patients.
2. By the 3rd week of November 2013, the authors of the Letter of Concern finalised their report and handed it over to the management of IHMS.
3. Dr John-Paul Sanggaran, one of the signatories to the Letter of Concern, had given testimony to the Commissioner of Human Rights that the Letter of Concern had been handed over to the management of IHMS in November 2013¹⁰². At the November 2013 meeting between Dr Mark Parrish, the Regional Director of IHMS, and Dr Sanggaran, Dr Parrish did not provide definitive answers to Dr Sanggaran regarding with the Letter of Concern whether the IHMS will take charge of forwarding the Letter of Concern to DIBP.
4. In a further follow-up email from Dr Parrish to Dr Sanggaran, the IHMS did not provide satisfactory details on whether or how the IHMS had taken action on the Letter of Concern. The email only noted that the matters about Letter of Concern had been resolved.
5. It is probable that in early December 2013, the 15 doctors who are the signatories of the Letter of Concern may further forward matters to AHPRA and health authorities, including DeHAG/IHAG, as outlined in [ah] since the unsatisfactory response that given by the management of IHMS.
6. By 6 December 2013, the Letter of Concern reached the DIBP and Secretary. This fact is confirmed by Minister Morrison at the 14th press briefing of Operation Sovereign Borders on 20 December 2013 ^B(i)..
7. On 13 December 2013, the Secretary disbanded DeHAG/IHAG. MCASD member Ms Caz Colesman, who has a connection with DeHAG/IHAG, was also removed from the position, timed before meeting with the Minister on 16 December 2013.
8. On 20 December 2013, the authors of the Letter of Concern made it public through the Guardian ^B(ii).

[ar] The contents of reconstituted press briefing of OSB on 20 December 2013 ^B(i), along with the contents of video report by the Guardian journalist David Marr ^B(ii) have provided the contextual basis that Mr Secretary had suppressed the Letter of Concern. The evidence inferred from the above two documents are:

1. Minister Morrison accepted that his department received a Letter of Concern on 6 December 2013.
2. Minister Morrison was aware of the existence of the Letter of Concern since 6 December 2013, but he had not seen nor read the contents of that letter up to the time of the press briefing on 20 December 2013.
3. Minister Morrison was informed by his department that the DIBP and IHMS were looking into the veracity of the Letter of Concern.
4. In the period from 6 December 2013 receiving the Letter of Concern to 20 December 2013 press briefing, Mr Secretary:
   (a) did not inform the Minister of the legal liabilities arising out of implementing HIA with 48-hours rapid transfer;
   (b) did not inform the Minister with particulars of medical damages listed in [am] and [ao] and;
   (c) did not advise Minister Morrison to review government policy or existing practices on the Health Induction Assessment and 48-hour rapid transfer of UMAs offshore.
5. As of 20 December 2013, Minister Morrison said he is in no position to review the government policies on the Health Induction Assessment and 48-hour rapid transfer of UMAs to offshore regional processing centres.

I have therefore concluded Mr Secretary failed to communicate Minister Morrison about the particulars of the Letter of Concern described in [al] - [ap]. I characterised Mr Secretary's failure to communicate with the Minister as the conduct of wilful omission.

The role of IHMS on cover-up of Letter of Concern

[as] I take the Guardian journalist David Marr's statement, "We know that the International Health and Medical Services took the report of those doctors very seriously, indeed", as being credible ^B(ii). I have weighted Mr Marr's statement on two sets of circumstances: (a) the practical fact that the DIBP had had the Letter of Concern by about 6 December 2013 and; (b) despite the Regional Director of IHMS Dr Mark Parrish not telling Dr Sanggaran as to what the IHMS was going to do with Letter of Concern at the earlier meeting ([aq](3)), never the less, Dr Parrish later sent an email to Dr Sanggaran informing that unspecified measures had been taken in regards to the Letter of Concern ([aq](4)). The IHMS took the Letter of Concern with some seriousness, so it forwarded the Letter of Concern to DIBP.

[at] The IHMS and its management need to demonstrate that they have taken requisite seriousness on the Letter of Concern to exclude themselves from liabilities of suppressing and covering up the letter. By merely forwarding the Letter of Concern to DIBP, the IHMS cannot escape from legal liabilities. How the IHMS communicated with the Department and Mr Secretary about the Letter of Concern can inform us whether the IHMS took the letter with requisite seriousness. In particular, the management of IHMS should have taken measures to specifically communicate, in writing or verbally, in the most unambiguous terms to the Department and Mr Secretary that:

1. The 48-hrs rapid transfer had caused difficulty in carrying out Health Induction Assessment and health care for UMAs;
2. The legal liabilities had arisen for both IHMS and the medical practitioners under the rapid transfer arrangement, properly citing case examples as in [am]-[ao];
3. The IHMS cannot meet the required HIA and health care standards under the 48-hours rapid transfer arrangement.

The accessorial liabilities are available for the management of IHMS if these above measures were proven to have not been taken.

The role of Mr Secretary at DIBP

[ba] This section [ba-bz] aims to summarise the observations about Mr Secretary's skills, personal knowledge and expertise in management in the healthcare sector. I have also summed up the observations on him concerning the healthcare of UMAs and his relationship with the Detention Health Advisory Group. All the information in this section is of public knowledge and extracted from verifiable sources.

[bb] There is no dispute that Mr Secretary had been the secretary of DIBP at the relevant times, December 2011 to December 2013, and the material time, 1 November 2013 to 20 December 2013. On 28 September 2012, the then Prime Minister Julia Gillard appointed Mr Secretary for the role of secretary of the Department of Immigration and Border Protection for five years ¹⁰⁶ :

[Mr_Secretary] has been the Acting Secretary of the Department of Immigration and Citizenship since March 2012 while Mr Metcalfe has been on leave. He joined the department in December 2011. Prior to that, [Mr_Secretary] had been a Deputy Secretary at the Department of Climate Change and Energy Efficiency and at the Department of Defence. Before joining the Australian Public Service in 2006, [Mr_Secretary] held senior executive positions in the education and health portfolios in the New South Wales public sector. I look forward to [Mr_Secretary] continuing his contribution in this important role.
Having received a report from the Secretary of my Department, as required by the Public Service Act 1999, I have appointed Mr Metcalfe and [Mr_Secretary] for periods of five years from 29 January 2013.

Therefore, at the material time from 1 November 2013 to 20 December 2013, Mr Secretary was a public officer of the DIBP. The Commonwealth Government had re-assigned Mr Secretary to the Department of Health in October 2014.

[bc] Mr Secretary has a Bachelor of Business degree, a Graduate Certificate in Public Sector Management, and a Fellow of the Australian Society of Certified Practicing Accountants. He had more than ten years of experience working in administrative roles in the New South Wales public health sector, serving mostly in the role of Chief Executive Officer ¹⁰⁸ . Therefore, Mr Secretary has been in the position to appreciate the possibility of the legal liabilities arising from medical malpractices. At the 2014 Children in Detention Inquiry, Mr Secretary indicated to the counsel that he had the appropriate legal knowledge about the duty of care and non-delegable duty of care:

Ms Sharp: Mr Secretary, does the Department accept that it owes a non-delegable duty of care to children in immigration detention ?
Mr Secretary: That's the nature of the work we undertake.

[bd] Furthermore, Mr Secretary testified at that inquiry that in the events and circumstances encountering critical issues at his department, it is his role to inform the Minister:

Ms Sharp: But Mr Secretary, I might move on. One of your key roles as the Secretary of the Department is to keep the Minister fully informed of events and circumstances relating to immigration detention. Is that correct?
Mr Secretary: That's correct.

[be] Therefore, Mr Secretary has the requisite knowledge and experience to appreciate the possibility of legal liabilities for medical practitioners and healthcare service providers regarding medical malpractice. Mr Secretary is also aware that his role is to keep the Minister fully informed of events and circumstances relating to immigration detention.

Unreasonable Position on Healthcare of UMAs

[bf]+ Despite knowing the Commonwealth duty of care and non-delegable duty of care on UMAs, Mr Secretary had asserted an unreasonable position regarding the standard of health care for UMAs. At the last meeting in August 2013 with Immigration Health Advisory Group (IHAG/DeHAG) ¹¹¹ , Mr Secretary argued against IHAG/DeHAG and asserted the point that the Australian government is not obliged to provide Australian standards of health care to UMAs ¹¹⁰. Mr Secretary's assertion on the standard of health care for UMAs would not necessarily breach any substantive common laws. However, Mr Secretary's assertion of an unreasonable position regarding the standard of health care for UMAs informed us that that position influenced his subsequent actions.

Recklessness on the Healthcare of UMAs

[bfa] In paragraphs [bfa]-[bz], I give an outline of Mr Secretary's offence for recklessly implementing HIA with the 48-hour target turnaround of UMAs. I emphasise that the focus of this submission has been Mr Secretary commissioning of the offence of suppression of the Letter of Concern and not on the offence of recklessness. My intention for listing [bfa]-[bz] has been (a) to provide background evidence as to the events that took place at Christmas Island Detention Centre in the period of September 2013 to 20 December 2013 and (b) to inform that there are sufficient grounds assuming Mr Secretary had commissioned the offence of recklessly implementing HIA and healthcare of UMAs during the said period.

[bfb] The fact that Mr Secretary held an unreasonable position on the standard of healthcare for UMAs [bf]+ indicated that he had the intention to allow the compromised standard on HIA and to permit the reduced standards of healthcare for UMAs. Consequently, Mr Secretary had been subjectively reckless in discharging all the healthcare duties for UMAs and in implementing HIAs. The subjective recklessness in this context is "having actual knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur."(R v Martin [2007] NZCA 386 at (12); Soles v R [2015] NZCA 32 at (16); Kupec v R [2018] NZCA 377 at (23)).

To assist a more refined analysis on the men reas comopnent of Mr Secretary's offence of reckless conduct, I have divided the relevant time into two parts. The first part is from September 2013 to early December 2013, before Mr Secretary receives the Letter of Concern . The second part is from early December 2013 to 20 December 2013, after Mr Secretary had received the Letter of Concern from IHMS. I focus the analysis on the circumstances in which Mr Secretary had authorised the contractor IHMS to carry out HIA for UMA patients with the 48-hour targeted turnaround as directed by the Minister. For brevity, I confine the analysis to the circumstances and results of the contractor IHMS and the medical practitioners working at Christmas Island Detention Centre at that time.

[bg] On 23 September 2013, Minister Morrison gave the directive for the transfer of UMAs with a 48-hour target turnaround ([ac]), which Mr Secretary implemented. The impact of Mr Secretary implementing the Minister's directive of a 48-hour target turnaround for UMAs has been evidenced by a Christmas Island medical practitioner, Dr Grant Ferguson, in ([ag]) and will not be repeated here.

[bh] To identify Mr Secretary's reckless conduct, I utilise the four different types of recklessness that the authorities touched upon (Canada Square Operations Ltd v Potter [2023] UKSC 41 at (20)). The test shows that Mr Secretary's conduct meets at least two types of recklessness.

From September 2013 to November 2013, i.e. the time before receiving the Letter of Concern, Mr Secretary has subjective recklessness of the second type: "the subjective knowledge in a wider sense which included wilful blindness." ( [bi]-[bk])

From early December 2013 to 20 December 2013, i.e. the time after receiving the Letter of Concern, Mr Secretary has subjective recklessness of first type: "subjective knowledge or actual awareness that it was committing a wrongful act". ([bl])

[bi] The IHMS has a contract with the Commonwealth to complete initial health induction assessment (HIA) for UMAs in accordance with the standards set forth in Form 26 ([aj]). The IHMS would have breached these terms of the contract if it failed to carry out the HIA for UMAs to the requisite standards.

Mr Secretary, with his knowledge and experience [bb]-[bd], would have known that the IHMS cannot complete such a health assessment within 48 hours. Regardless, Mr Secretary went ahead and implemented the Minister's directive, requiring the IHMS to do HIA for UMAs with 48-hour target turnaround. As a consequence, the IHMS had abandoned requisite medical tests in HIA ¹⁰⁹ that created legal liabilities for IHMS.

[bj] Australian medical practitioners employed by IHMS who carried out compromised HIA processes would have personal liabilities. Australian medical practitioners have the duty to observe their respective ethical codes of conduct, which do not allow them to engage in compromised medical processes.

With his knowledge and experience [bb]—[bd], Mr Secretary would have known that the Australian medical practitioners involved in the compromised HIA process would breach Australian laws. Despite this knowledge, Mr Secretary continued authorising the IHMS to carry out the 48-hour target turnaround transfer of UMAs. The compromised HIA process created legal liabilities for the medical practitioners who worked under IHMS.

[bk] From September to early December 2013, whilst IHMS and its doctors were carrying out the compromised HIA process for UMAs at the Christmas Island Detention Centre, Mr Secretary and his department had effectively avoided contact with DeHAG/IHAG. The department had its last meeting with DeHAG/IHAG in August 2013, where the sudden cancellations of scheduled meetings were reported, followed by the dismissal of DeHAG/IHAG in December 2013 ¹¹⁰. Therefore, it is reasonable to conclude that Mr Secretary and his department had created a condition conducive to take place wilful blindness, about which Mr Secretary and his department can remain ignorant of the liabilities outlined in [bi] and [bj].

[bl] After receiving the Letter of Concern from IHMS in early December 2013 to 20 December 2013, Mr Secretary have the definitive knowledge and actual awareness that the 48-hour target turnaround of the HIA process and compromised standards of medical care for UMAs are causing legal liabilities for IHMS and the medical damages for UMAs. Despite this awareness about liabilities, Mr Secretary did not put a stop to the 48-hour target turnaround of the HIA process ([ar] 3 & 4). In that period, Mr Secretary's conduct of refraining from putting a stop to the HIA process has been reckless with the first type (Canada Square Operations Ltd v Potter [2023] UKSC 41 at (20)), "subjective knowledge or actual awareness that it was committing a wrongful act".

[bm] If one takes the result as to the medical damages caused to UMAs as described in [al]-[ap], which would require further detailed evidence, Mr Secretary may prove to have acted with recklessness of third type where ( Canada Square Operations Ltd v Potter [2023] UKSC 41 at (20); R v G [2003] UKHL 50 at (41) ):
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

Therefore, Mr Secretary reasonably foresaw that the legal liabilities for IHMS and medical practitioners with possible damages to UMAs might be done, yet he had gone on to take the risk of implementing a 48-hour target turnaround to transfer UMAs.

Actus reus and mens rea for
the act of omission 3(i) and the act of commission 3(ii)

[ca]_ In analysing the actus reus and establishing mens rea for 3(i) and 3(ii), I followed the approach consistent with R v Quach [2010] VSCA 106 at ( [46]-[47] ) together with authorities cited therein. This submission looks to a unified method for establishing mens rea for 3(i) and 3(ii). In R v Boulanger [2006] 2 SCR 49 at ([11]-[29]), the Supreme Court of Canada reviewed the developments of the offence of misconduct in public office in other common law jurisdictions with an emphasis on the historical accounts of establishing mens rea, in particular, for the act of omission (nonfeasance) and that of commission (misfeasance). Their review started with an early precedent that there have been no particular needs, historically, to establish mens rea in the cases of an officer acting in omission: "[w]here an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable" (R. v. Wyat (1705), 1 Salk. 380, 91 E.R. 331 (K.B.); R v Boulanger [2006] 2 SCR 49 at ([19]).

Again, in Shum Kwok Sher v. HKSAR, [2002] 5 HKCFAR 381, Sir Anthony Mason determined that the offence of misconduct in public office comprised different types of conduct, each of which required a different mental element. He then went on to impose, in all instances, an overriding requirement of seriousness (R v Boulanger [2006] 2 SCR 49 at ([25])). This consideration for overriding requirement of seriousness of the offence has been adapted largely in R v Quach [2010] VSCA 106 at ([46]), but emphaises in para [47] also that "[A]ny charge must be tailored to the particular circumstances of the case."

A more unified approach, which included consideration for mens rea element in both nonfeasance and misfeasance, was given by the English Court of Appeal ( Attorney General's Reference (No. 3 of 2003), [2004] 3 W.L.R. 451, 2004 EWCA Crim 868 ). It follows that the offence must proven to have the element of "wilful misconduct" on the part of the officer, which is reflected in para. 27 of R v Boulanger [2006] 2 SCR 49:

27. After reviewing Bembridge, Borron, Llewellyn-Jones and Dytham, as well as Shum Kwok Sher, the [English] Court of Appeal held that misconduct in public office required a breach of duty by the officer, consisting either in an act of commission or one of omission, but that in either case, the conduct must be wilful. Wilful misconduct was held to mean "deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not" (para. 28), and recklessness to mean "an awareness of the duty to act or a subjective recklessness as to the existence of the duty" (para. 30). The recklessness test was said to apply to the determination of whether a duty arises in the circumstances, as well as to the conduct of the defendant if it does. The subjective test would apply both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission: para. 30. The result was a unified offence that incorporated both the former offences of public misfeasance and neglect of official duty. However, in keeping with the development in recent cases of the requirements of a criminal state of mind, simple neglect, in itself, would no longer suffice. At a minimum, reckless indifference was required. (citations as in original text)

Authorities from all known common law jurisdictions (Australia, Canada and UK) have cautioned any charges on this type of offence must be held at a high threshold and that an inadvertent mistake and neglect, or mere error in judgement by the officer cannot be held as a valid charge (Shum Kwok Sher quoted in R v Boulanger [2006] 2 SCR 49 at ([28]) :

[T]here must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder. A mistake, even a serious one, will not suffice.

The seriousness of the offence can also be taken from the consequence of a misconduct, in addition to breach of duty from an act or omission that is indictable. I have reflected on the above consideration and carried out the following tests in actus reus and mens rea for 3(i) and 3(ii).

1. Whether the conduct was serious as to having breached substantive criminal laws or statutory laws in Australia;
2. Whether that conduct has been so far below acceptable standards set forth by the Australian Public Service Act 1999(Cth);
3. Whether the conduct or the result of that conduct caused or is likely to have caused damages to the Office and Commonwealth.

The actus reus and mens rea of omission to inform
the contents of the Letter of Concern to Minister Morrison

[cb]_ Mr Secretary and the Department had received the Letter of Concern by early December 2013 ¹⁰⁷. The act of omission by Mr Secretary regarding the Letter of Concern from early (6th) December to 20 December 2013 has been listed in [ar]. The fact Mr Secretary had made a wilful omission can be established beyond a doubt from the following paragraphs [cc]-[ch]

(a) Firstly, whether Mr Secretary knows, or reasonably knows, that the occassioning of legal liabilities for Christmas Island medical practitioners and IHMS and whether Mr Secretary appreciated the seriousness of medical damages caused to UMAs [cc]-[ce].

(b) Whether the stated position of Mr Secretary and IHMS was looking into the veracity of claims of damages ¹¹⁸ in the Letter of Concern during early (6th) December to 20 December 2013 can be sustained in a court of law [cg]-[ch].

[cc] In reference ^B(ii) and [ar], I inferred the fact on the management of IHMS had taken seriously about the Letter of Concern. As such, the management of IHMS was likely to inform Mr Secretary of the requisite content of that letter, noting the legal liabilities arising for IHMS and the medical practitioners it employed. The management of IHMS was also likely to point out the first-hand written evidence attached to the Letter of Concern for medical damages caused to the UMAs. Therefore, Mr Secretary definitively would know, by early December 2013, the legal liabilities arising for medical practitioners and IHMS.

The management of IHMS has the legal duty to properly inform Mr Secretary and the Department about the Letter of Concern. On the evidence that IHMS did not inform Mr Secretary and the Department in the above manner, the management of IHMS may have taken an accessorial role in this offence (see also [at]).

[cd] There is no dispute that by early (6th) December 2013, Mr Secretary had received the Letter of Concern. Also, on public record, he informed Minister Morrison about receiving the letter at that time. Having extensive experience in management roles in the healthcare sector, [bc]-[be], Mr Secretary would have reasonably noticed and appreciated the legal liabilities and medical damages described in the Letter of Concern. Mr Secretary had more than two weeks to examine the Letter of Concern to know and appreciate its contents.

[ce] Therefore, Mr Secretary knows [cc] or reasonably knows [cd] and appreciates the contents of the Letter of Concern.

[cf] The second issue on which Mr Secretary's stated position was that his department and IHMS were looking into the veracity of claims made by Letter of Concern and, so therefore, Mr Secretary cannot officially make a reportage to Minister Morrison about the contents of the letter ¹¹⁸. Such position has given rise to the wilful blindness by Mr Secretary, and that it cannot be sustained in a court of law. I draw on the analogy of the situation to a case the New Zealand Court of Appeal has considered: R v Martin [2007] NZCA 386.

In R v Martin [2007], the accused, Linda Martin, a UK resident, brought a suitcase containing cocaine into New Zealand. At the court, the accused denied having knowledge of the drug in her suitcase and defended that she never checked the suitcase. In all circumstances, the accused deliberately closed her eyes to something which she knows or reasonably knows.

In such cases of a person wilfully taking blindness or shutting their eyes to the obvious, the court presumes the knowledge of guilt on the part of the person as is in R v Martin [2007] NZCA 386 at ( [9]-[11] ):

[10] We begin our response by stating the law. Mr King is wrong in suggesting wilful blindness will not suffice. In a case such as this, it will suffice if the Crown can prove beyond reasonable doubt that the accused (importer) had her suspicions aroused as to what she was carrying, but deliberately refrained from making further inquiries or confirming her suspicion because she wanted to remain in ignorance. If that is proved, the law presumes knowledge on the part of the accused. The fault lies in the deliberate failure to inquire when the accused knows there is reason for inquiry. (emphasis in original)

[cg] It follows that, from the Letter of Concern, Mr Secretary knows, or reasonably knows [ce], the legal liabilities had arisen for medical practitioners and IHMS and that Mr Secretary appreciated the seriousness of the medical damages that caused to the UMAs during the 48 hours target turnaround processing and transfer. By stating the position that he and IHMS were looking into the veracity of claims of Letter of Concern, Mr Secretary had been wilfully taking blindness and shutting his eyes to the obvious. Therefore, Mr Secretary cannot sustain such a position at the court.

[ch] After receiving the Letter of Concern from IHMS on early (6th) December 2013 until the 20 December 2013 press briefing, Mr Secretary had the definitive information that the medical damages to UMAs had eventuated and the legal liabilities for IHMS and medical practitioners had arisen. Despite having such information:

1. Mr Secretary did not halt the operation of 48 hours target turnaround and transfer of UMAs. Mr Secretary continued to implement the 48-hour transfer policy for UMAs. Mr Secretary's conduct in that period was subjectively reckless because he had actual knowledge and awareness that the occasioning of legal liabilities and the medical damages to UMAs had taken place in implementing the 48-hour target turnaround and transfer policy.
2. Mr Secretary did not inform Minister Morrison about the occasioning of legal liabilities and the medical damages to UMAs that had taken place in implementing the 48-hour rapid transfer policy.
3. Mr Secretary did not advise Minister Morrison to review the policy of 48 hours target turnaround and transfer of UMAs.

Mr Secretary has affirmed at [bd] that his role and duty is to inform Minister Morrison of the events and circumstances encountering critical issues in his department. Mr Secretary, therefore, has breached his duty and wilfully omitted to present the reportage on the Letter of Concern to Minister Morrison.

---

Footnotes

<sup>102. This wording should change in accordance with evidence disclosed. With current evidence available to the public, the Letter of Concern "can" reach to the Minister.  ↩
103. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parlia...

Transcript of joint press conference: Sydney: 23 September 2013: Operation Sovereign Borders
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id...  ↩
104 A copy of Letter of Concern with affidavit of Dr Grant Ferguson and Dr John-Paul Sanggaran was provided to the Commission of Human Rights on 31 July 2014. See Annexure A(ii).  ↩</sup>

^{105The authors of Letter of Concern contexually describe the DIBP and IHMS causing or hastening of the intial Health Induction Assessment for UMA within 48-hours with this word, "rapid processing". The UMAs are rapidly processed HIA, ostensibly within 48 hours, then transfer out of Christmas Island Detention Centres to the offshore detention centres to Manus Island and Nauru.  ↩}

^{10628 September 2013 Press Release by Julia Gillard, Prime Minister.
https://web.archive.org/web/20131219061003/http://pmtranscripts.dpmc.gov...  ↩}

^{107The audio transcript of press briefing on 20 December 2013, journalists from Guardian appeared to dispute with Minister Morrison about the exact date Letter of Concern reaching the Department. The transcripted conversation suggested that the Letter reached earlier than 6 December 2013 to the Department (Seg'008).
https://web.archive.org/web/20131219061003/http://pmtranscripts.dpmc.gov...  ↩}

^{108Web Archived Biography
https://web.archive.org/web/20131110122154/http://www.immi.gov.au/about/...  ↩}

^{109 Annexure A(i), Section 1.1.4.5 HIAs do not meet penal doctors standards.
  ↩}

^{111 111. After taking up the role in January 2013 as the secretary of department, Mr Secretary renamed the Detention Health Advisory Group (DeHAG) as Immigration Health Advisory Group (IHAG) in March 2013. Former chair person of DeHAG was replaced with Dr Paul Alexander, a military administrator, in the newly renamed IHAG.   ↩}

^{110 The Guardian, 5 Aug 2014 . In 2014, Dr Louise Newman, a psychiatric who worked at Immigration Detention Health Advisory Group (Ihag)told The Guardian about changing health care policy under LNP government. At the last meeting of Ihag in August 2013, the issue was debated at length. An impasse was reached, says Newman. “The department at a very high level from secretary down argues the Australian government is not obliged to provide our standard of care to these people[asylum-seekers]."   ↩}

^{117 At the 20 December 2013 press conference, the journalist asked Minister Morrison, "Minister, you conceded in this press conference that you've had this letter signed by 15 doctors ?" Minister replied, "No, I didn't concede that. I said I'd better advise that the letter exists." (See Seg'008 of Transcript)   ↩}

^{118 At the 20 December 2013 press conference, the Minister Morrison told the journalists, "The letter was written to the head of IHMS, to the IHMS organisation. That is a matter that has been being interrogated by IHMS, together with my department, to determine the veracity of the claims that have been made in that letter, whether there are issues within that letter that require attention, then naturally they will receive that attention, but .... " (See Seg'003 of Transcript)   ↩}

Annexure A

^{A (i). Christmas Island Medical Officer's Letter of Concern, November 2013.  ↩
A (ii). Testomony of Dr Grant Ferguson and Dr John-Paul Sanggaran before Commissioner of Human Rights, 31 July 2014.  ↩}

Annexure B

^{B (i). Reconstituted Transcript of 14th press briefing of Operation Sovereign Borders on 20 December 2013.  ↩
B (ii). Scott Morrison on asylum health claims: David Marr video report, The Guardian. 20 December 2013.  ↩}

  I. THE LEGAL ANALYSIS

The Secretary of DIBP's political cover-up action has been analysed in detail and tested against all the elements of crime of misconduct in public office.

  II. EVALUATION OF EVIDENCE
(LIVE-UPDATE)

The work-sheet of Political Detective Dog: Gather informational data; Analyse and Screened-in as evidence.

  III. STATEMENT OF CLAIM
( IN DRAFTING )

The statement of claim against the Secretary of DIBP on the offence of misconduct in public office. Will send finalised statement to Australian Federal Police and Commonwealth Director of Public Prosecution.

Print Content Legal Analysis

Part 8A. (18-12-2023)
SERIOUSNESS IN COVER-UP OF SECRETARY AND DPO'S LAW

Friends, in our discussions on Parts 8 & 9, I have exhausted the consequences of the Secretary's suppression of the CID Report in terms of the violations of the APS Code and infringements to the anti-corruption-laws. In Part 8, I have postulated the Secretary covering up the CID Report, i.e. his failure to forward the report to Minister Morrison, may be equivalent to "preventing the course of justice".

On re-evaluation, the "preventing the course of justice" may not sit well with the common law courts' requirements. Although potentially "attributable elements" exist for action on the Secretary -- such as administrative sanctions or public opprobrium on medical neglect of asylum-seekers followed by potential legal actions, they may not be sufficient for the common law courts. Therefore, I have further delved into the requisite laws that directly address the Secretary's conduct of "omission" and "act". The provision of laws I've found for the cover-up (omission) and obstruction (act) are the type of laws that a district police officer (DPO) might have used to charge and make arrests of criminals.

-> For the "omission" that covers up crimes, Section. 316 of NSW Crime Act: "Concealing Serious Indictable Offence" [#32].
-> As for the "act" that destroys pathways of CID Report, Division 149 of Criminal Code Act 1995(Cth): "Obstruction of Commonwealth Officials" [#39].

The purpose of bringing up these two DPO laws has been to legally construct the offence of misconduct in public office, which requires the proof of seriousness by Element (5). However, I do not intend to use these two laws to file the complaint against the Secretary directly.

OMISSION AND COVER-UP

In Nov-Dec 2013, the Secretary misconducted himself in public office by (i) failing to forward the CID Report to the Minister for Immigration and (ii) wilfully taking action to destroy alternative pathways that the CID Report could reach to the Minister.

For (i) failing to forward the CID Report to the Minister, the Secretary concealed the medical-related crimes that were reported in the CID Report. Section 316 of NSW Crime Act:

"316(1) Concealing serious indictable offence
(a) knowing or believing a serious indictable offence has been committed by another person, and
(b) knowing or believing he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence
(c) fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority."

On receiving the CID Report signed by medical practitioners working at Christmas Island Detention Centre, the Secretary:

-> knows serious offence(s) had been committed by both IHMS and medical practitioners;
-> Knows the information contained in CID Report could secure the apprehension of the offender(s);
-> Failed without reasonable excuse to bring that information to the attention of the appropriate authority, i.e., Immigration Minister Scott Morrison.

Although the CID Report, i.e. "Letter of Concern", was addressed to be reviewed by IHMS Management and Executive, that must be understood as the etiquette of professional public communications. The person and body that can change the situation has been the Immigration Minister and DIBP. Therefore, the "appropriate authority", here, is the Immigration Minister Scott Morrison.

The broad guideline to "serious indictable offence" is for any crime sentenced to more than 5 years. Medical negligence infringes on the right to life of the patient and is always serious, even more so when the patient is a prisoner (i.e. asylum-seeker in detention).

ACTING IN OBSTRUCTION

The Secretary has also obstructed the CID Report reaching the Minister for (ii) wilfully taking action to destroy alternative pathways through DeHAG and MCASD.

Criminal Code Act 1995(Cth)
Division. 149(1) Obstruction of Commonwealth public officials
(1) A person commits an offence if:
(a) the person knows that another person is a public official; and
(b) the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official's functions; and
(c) the official is a Commonwealth public official; and
(d) the functions are functions as a Commonwealth public official.

The Secretary committed the offence against Div. 149 because:

-> The Secretary knows the members of DeHAG and MCASD are "public officials";
-> The Secretary obstructed and resisted the performance of MCASD (and also DeHAG);
-> The functions of MCASD and DeHAG include forwarding the CID Report to the Immigration Minister. Bringing a critical report before the Minister is a Commonwealth-authorised function for MCASD and DeHAG.

One can adduce the combined pieces of evidence to support above claim. Alternatively, the two entire pages redacted by S. 47F(1) in the FOI Document [#4] "might" also help provide direct evidence. I shall discuss more details on the evidence [#4] and [#5] and other possible implications.

Friends, the Xmas festive season is upon us. I wish you all would have a much-deserved break and needed recharge for New Year 2024. I'll be throughout Xmas/New Year updating the web, etc. Do check it out from time to time.

-- Cheers, NetIPR.

Part 9. (12-11-2023)
ELEMENT (5) SERIOUSNESS --DAMAGE TO THE OFFICE:

Friends, our discussions so far have been focusing on the conduct of the Secretary of DIBP(2011-2014), "the Secretary", in suppressing Christmas Island Doctor's Report, "CID Report", during November-December 2013. At the finalised communication to AFP/CDPP, I shall be alleging that the Secretary had committed the common law offence of misconduct in public office, (i) for his failure to forward CID Report to the Minister for Immigration and (ii) for his action to destroy alternative pathways that CID Report can reach to the Minister. The Secretary had carried out this omission and acted in contravention of other common laws and statutory law- the Public Service Act of 1999.

The actuating motive of the Secretary appears to be to support the existing scheme for the rapid processing of asylum-seekers, the directive laid down by the government. By suppressing the CID Report, the Minister can escape from the possible duty of reviewing the CID Report and making decisions upon the rapid processing. The Secretary, therefore, is said to have acted 'corruptly, partially and without integrity' in discharging his duty.

CORRUPTION AT COURT OF LAW

As we're going further into the analysis of the five elements of crime laid out in the judgment in "R v Quach[2010]" and analysing the types of corruption, I'll be referring to a few other pieces of legislation from State and Federal jurisdictions, including the Public Service Act 1999(Cth). Aside from such analysis, I am not interested in using these pieces of legislation to prosecute the Secretary.

Corruption is a broad topic, and, in a court of law, one cannot simply allege the Secretary had acted "corruptly, partially and without integrity" and then expect a common law judge to rule on it. For example, when the NSW ICAC referred a former member of Parliament, Mr Obeid, to the Court on an account of corruption to charge with misconduct in public office, the presiding judge Beech-Jones commented [#32]:

"1. The Parliament of New South Wales has enacted detailed statutory regimes for the detection, investigation and prevention of corrupt conduct by public officials including the Independent Commission against Corruption Act 1988 and the Police Integrity Commission Act 1996. However, for reasons best known to itself, the Parliament has not enacted legislation specifying whether and, if so, what improper or corrupt conduct by its own members constitutes a crime. It has left that topic to the vagaries and uncertainties of the common law."

Keeping that in mind, we now shall proceed with the definition of corruption given by the NSW Independent Commission Against Corruption Act 1988 [#33]:

"(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters--

(a) official misconduct
(including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition),
(g) perverting the course of justice,
(h) embezzlement,
(y) any conspiracy or attempt in relation to any of the above."

The main operational focus of the New South Wales ICAC Organisation, no doubt, has been to examine the potential cases of bribery ( pecuniary interest related ) or possible embezzlement by their members of Parliament and the officials. As we all know, The ICAC had referred Mr Obeid and Mr Macdonald to the Court for successful prosecutions of official misconduct. However, as some academics noted [#34], the ICAC cannot handle well the types of "political corruption", or the ICAC Act 1988(NSW) has failed to capture instances of corruption in the form of favour reciprocation or non-pecuniary benefits. In any examined cases thus far, ICAC referring to the DPP under the common law offence of official misconduct appears to be the final result.

For the conduct of the Secretary under our consideration, some parallels can be drawn with "political corruption", in which a person acts albeit in the form of favour reciprocation or non-pecuniary benefits. The difference here has been that the Secretary's conduct in question directly impacts the rights and interests of medical practitioners and, of course, the human rights of asylum-seekers.

CATEGORISING AND GRADING CORRUPTION OFFENCES

On reading the legislative texts of the NSW ICAC Act 1988 [#33], we can sense whether corrupt conduct may be attributed to mere pecuniary interests or would include rights violations. For example, "embezzlement", "theft", "breach of trust", "fraud", or "extortion" would belong to particular pecuniary interests. On the one hand, the words "oppression", "imposition", "breach of trust", or "perverting course of justice" could describe political corruption and likely belong to the right violations.

An officer is corrupt when they have substantially breached an applicable code of conduct (APS Code, for example). Depending on the seriousness, that corrupt conduct would attract a criminal offence, a disciplinary offence, or the grounds for dismissal. In the main, the lack of integrity by the officer in discharging their duty can cause all types of corruption.

With this awareness about the existing legislative environment on pecuniary-related and political corruption, we now continue to examine the latter part of Element (5);

"Element (5): where such misconduct is serious and merits criminal punishment;
-> having regard to the responsibilities of the office and the officeholder,
-> the importance of the public objects which they serve and;
-> the nature and extent of the departure from those objects."

The latter part of Element (5) is not a separate element that the prosecutor is required to prove. Rather, in some other circumstances ( not in this Secretary's case ), helping to make the qualitative assessment as to whether and how the impugned conduct had a departure from the public objects the office served (Para.[36-46] R v Quach [2010] #):

44. The Court of Appeal in Attorney General's Reference (No 3 of 2003) endorsed the condition that the 'serious departure from proper standards....must be so far below acceptable standards as to amount to an abuse of the public's trust in the office holder'. [53] I do not regard this to be part of the definition of the offence although it serves to emphasise the degree of departure from the proper standard that must be established.

In the following, I use the APS Code, i.e. Section 13 of the Public Service Act 1999(Cth), to establish the degree of departure from the proper standards. For a Commonwealth employee, this APS Code defines the duty of that officer. Of course, we are not interested in the Secretary's conduct to be re-examined by the Australian Public Service Commissioner. But, as I explained in the previous section, for all criminal violations of an officer, the result must be the prosecution under the common law misconduct in public office. Our task here is to use the APS Code to grade the conduct of the Secretary and to determine how that conduct deviated from proper standards.

ASSESSING DAMAGE CAUSED TO THE OFFICE

When we read statutory texts in Section 13 of PS Act 1999(Cth), there is no direct wording such as 'apolitical' or 'impartial', but it is linked into Sec 10 of APS Values. In approaching the common law courts, do avoid importing external words. Instead, use exact wordings found in statutory texts within the context of Section 13 PS Act 1999 (Cth).

In the previous note (Pt.8, 30/10/2023), I explained the difference between 'public purpose' and 'private purpose' of an officer's conduct. To be more inclusive of the right violations, I shall adopt 'private or other improper purposes' here. Any conduct falling outside the scope of 'public purpose', i.e., the conduct not in conformity with the APS Code, is considered to have been done with a 'private or other improper purpose'.

I shall draw out the two instances in which the Secretary breached the APS Code with varying severity.

(I) COMPROMISING HEALTHCARE STANDARDS FOR ASYLUM-SEEKERS

In August 2013, at the last meeting of DeHAG(IHAG) and DIBP, the Secretary down rank-and-file argued with DeHAG that the government is not obliged to provide Australian standards of care to unauthorised maritime arrivals (UMAs). Professor Louise Newman, Chair of DeHAG, reported that meeting through the Guardian [#7]. The Secretary and his team insisted on DIBP adopting compromised healthcare standards for these UMAs against the advice given by DeHAG. That was the breach of the APS Code by the Secretary (&his team).

The Detention Health Advisory Group (DeHAG) was formed in 2006, after the Palmer report [#27(a)], with the Commonwealth government decrees. DeHAG has the advisory group role in designing, implementing, and monitoring improvements in detention health care policy. DIBP, in 2006-2008, consulted with DeHAG and developed and implemented the detention health framework, which describes the range, level and standard of health and mental health care for people in immigration detention. These healthcare standards are those found in the wider Australian community [#34].

Therefore, the members of DeHAG are the Commonwealth government-appointed 'officials' to advise the detention policy. In addition, the Commonwealth government had long adapted the healthcare standards for asylum-seekers comparable to those in the wider Australian community. The Secretary not taking in the advice of DeHAG violated the APS Code, which states:

Ss. (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.

I'll take the meaning of the statutory text "authority" as "the power to determine, adjudicate, or otherwise settle issues or disputes". A slightly refined meaning for the everyday word "authority" has been used in this complex legal and political environment. Regarding selecting appropriate healthcare standards for UMAs, the DeHAG is the Commonwealth government-authorised body to determine and to give direction. The Secretary's discarding the advice from DeHAG and, consequently, DIBP's adopting the compromised healthcare standards has breached this APS Code. Therefore, the Secretary had adopted these compromised healthcare standards for DIBP for "private or improper purposes".

When DIBP adopted this ill-considered healthcare policy for UMAs, the Secretary definitely had breached the APS Code. However, in view of the law, neither DIBP nor the Secretary violated any substantive common laws.

Such status changed when DIBP started implementing this ill-considered policy. Assume the Minister ordered DIBP to carry out rapid processing for MUAs in accordance with that healthcare policy. Consequently, an asylum-seeker received compromised health care, say 5 min or an incomplete health check. The doctor giving such compromised medical treatment to a patient breached the common law doctor-patient contract [#3]. Then, the legal damage has occasioned under substantive common law. When the patient is a UMA -- a prisoner as recognised by law -- the detention authorities have breached torture law. The legal liabilities for the DIBP, Minister and Secretary had arisen only after this point of breaking the laws.

(II) SUPPRESSION, OMISSION AND COVER-UP ON NOV-DEC 2013

The Secretary has requisite qualifications and solid experience in the administration of the healthcare sector. As such, he was aware that the rapid processing would cause legal liabilities. Suppose the Secretary received the CID Report by mid-November 2013. There are two distinct possibilities the Secretary will notice the legal liabilities outlined in the CID Report.

(i) First, the Director(s) of IHMS directly communicates the salient contents of the report to the Secretary when handing over the CID Report. By observing the seriousness of the report and the fact that the IHMS Director(s) themselves are the organisers of the CID report, the Directors of IHMS were likely to communicate with the Secretary over the contents of the report. (This legal fact can be exhausted at the Court or by AFP/CDPP Solicitors).

(ii) Second, with prior experience and knowledge of the Secretary, he would have noticed the liabilities outlined in the CID Report. From the outset of the rapid processing of UMAs, the Secretary would have been aware of the possibility of civil and criminal liabilities for the doctors and IHMS. (This legal fact can be inferred from considering all relevant factors: the Secretary's intellectual, educational and employment backgrounds.)

The Secretary taking no action and not reporting to the Minister in regard to CID Report breached the APS Code:

"Ss. (10) An APS employee must not improperly use inside information or the employee's duties, status, power or authority: ... (b) to cause, or seek to cause, detriment to the employee's Agency, the Commonwealth or any other person."

(i) Therefore, before receiving the CID Report, the Secretary had improperly exercised his power to cause detriment to "any other person", i.e., the contractor IHMS and the doctors.

(ii) After receiving the CID Report, the Secretary had improperly carried out his duty to make an omission. The Secretary caused detriment to the doctor(s), UMA patients and the contractor IHMS.

(iii) The Secretary making omission on the CID Report breached substantive common law for covering up the crime(s), thereby also violating APS Code (4), which called "to comply with all Australian laws".

(III) RECKLESSNESS, SUBJECTIVE RECKLESSNESS

Considering the Secretary's overall intellectual, educational and employment backgrounds, he should be aware of civil and criminal liabilities arising from the rapid processing. The Secretary, therefore, had acted recklessly in carrying out rapid processing, showing indifference to the possible harm to doctors and the injury to UMAs. In common law, the recklessness is defined as [#35]:

..... Element of recklessness is made out if you are satisfied beyond reasonable doubt that [the accused] at the time of the infliction of the injury realised that [he/she] may possibly [cause/inflict] actual bodily harm to [the alleged victim] by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim .....

After receiving the CID report, a point at which the Secretary had definitive (beyond a reasonable doubt) awareness about the civil and criminal liabilities arising from rapid processing, the Secretary failed to halt the operation. Therefore, the Secretary acted out with subjective recklessness towards the harm caused to doctors and the injuries caused to UMAs.

Therefore, the Secretary (1) has acted recklessly, and (2) has acted with subjective recklessness towards doctors and UMAs, violating substantive common laws. The consequent cover-up of crime has also violated common laws.

It is important to note even if the Act or Legislation does not give specific directions to observe common laws, government employees, like everybody else, must obey common law. However, Ss (4), Section 13 of the Public Service Act 1999(Cth) does give proper direction in this regard.

MEDICAL PEAK-BODIES PROHIBITION OF EMPLOYMENT ON OFFSHORE DETENTION

After noticing the legal liabilities that arose for doctors and realising the DIBP's failure to take proper action to prevent such liabilities, Australia's peak medical authorities, such as AMA, instructed their members not to engage in employment in offshore immigration detention. The Secretary (1) exercising his power to cover up crimes and (2) improperly carrying out his duties (making omissions) have caused detriments to the public standing of his Office and the Commonwealth. The Secretary, therefore, breached APS Code (10). The misconduct by the Secretary has directly impacted upon all the subsequent qualifications in Element (5):

-> having regard to the responsibilities of the office and the officeholder,
-> the importance of the public objects which they serve and;
-> the nature and extent of the departure from those objects."

SUMMARY

Friends, this concludes our long and arduous deliberations of the common law "misconduct in public office" as in the Secretary's case. Through discussion, we have gained some understanding of the work of NSW ICAC and the practical application of the APS Code. I hope you all find these discussions rewarding. Next, I'll look into details of evidence [#4] & [#5]. -- Cheers, NetIPR.

Part 8. (30-10-2023)
ELEMENT (5) SERIOUSNESS --OMISSION AND COVER-UP :

Friends, in the previous note, I shared the plan as to how we might approach the AFP/CDPP at the completion of this report. I also share, as regards offshore-related crimes, the purview of available avenues for seeking legal remedies using international and domestic laws. In this context, we've seen how the law of "misconduct in public office" has sat in the laws for larger agenda crimes: The crime against humanity enslavement and torture.

On the law of misconduct in public office, there have been many developments that have taken place in the State of New South Wales after the judgment of "R v Quach [2010]". Since 2014, the NSW Independent Commission Against Corruption has referred several high-profile cases, such as Eddie Obeid [#25] and Ian Macdonald [#24], to the DPP under the criminal offence of misconduct in public office. In those proceedings, the lawyers on both sides debated the contexts and meanings of nearly every word in the elements of crime written in "R v Quach [2010]". As such, there is much less chance for the users of this law to get misdirected.

As for offshore detention, we -- the general public -- are concerned firstly about the inhumane treatment given to the refugees. Secondly, we are also disturbed by our government officials flouting the rules of law in handling those refugees. In seeking legal redress for the injustices, the laws of torture and enslavement are traditionally considered legal tools. Now, with our newly acquired knowledge about the law of misconduct in public office, we can utilise it as an additional legal tool to redress those injustices.

OFFICE OF PUBLIC TRUST, FIDUCIARY DUTY

In part 4 of the discussion, I've introduced the rationales for the crime of misconduct in public office. Recent judgments that entered NSW caselaws have given us a more refined view of those concepts. Quoting Lord Millett of NPJ, the NSW Court of Criminal Appeals has adapted the rationale for the crime of misconduct in public office [#30, [2019] NSWCCA 32]:

70. .... Every such power, duty, discretion or responsibility is granted for the benefit of the public and for a public purpose. For the person having such a power, duty or responsibility to exercise it or refrain from exercising it for his or her own private purposes, whether out of malice, revenge, friendship or hostility, or for pecuniary advantage is an abuse of power and amounts to the offence of misconduct in public office.

Therefore, an officer is entrusted with power (discretionary power), duty or responsibility for the benefit of the public and only for the 'public purpose'. When such an officer 'exercises power' or 'makes omission' for his or her own 'private purpose', it will amount to an abuse of power and be considered as committing the crime of misconduct in public office. Once again, such 'private purpose' may arise from the friendship or hostility held by that officer. I will discuss more in later paragraphs on the essential concepts of the private and public purposes for an officer entrusted with power, such as government civil servants.

SERIOUSNESS OF THE CONDUCT

Once again, an officer is a human being, and the exercise of power can be prone to errors and occasional misjudgements. Therefore, in elements (3, 4), the requirements for wilful (intentional) exercise without a reasonable excuse have been included as a safeguard in the law. In addition, element (5) requires that the conduct of the officer must be serious;

"Element (5): where such misconduct is serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."

This requirement of conduct in question needed to be serious and meriting criminal punishment has been considered in detail in recent NSW Supreme Court judgment [Para-(47-59) #31, [2021] NSWSC 858]. In para 51:

The qualification is consistent with the concept of abuse of office and it is appropriate that the offence should be so qualified in the light of the creation of a range of disciplinary offences that now apply in the case of public sector employees. The qualification is not to be taken as a dividing line between the offence of misconduct in public office and disciplinary offences. There is no doubt a borderland in which the common law offence and disciplinary offences overlap.

Therefore, to be considered by the common law court, the conduct must be serious and also distinct from the occasions of an officer accidentally failing to perform his or her duty.

APS CODE, PUBLIC AND PRIVATE PURPOSES

The government employees (officers), including Agency Heads, are required to comply with the Australian Public Service Code of Conduct ( APS Code ), i.e. Section 13 of the Public Service Act 1999 [#26]. This APS Code binds the power granted to an officer. Therefore, any action done for public purposes must be in accordance with this APS Code. The APS Code directs all government employees to 'behave honestly with integrity' and 'must act with care and diligence' in carrying out their duties. Most importantly, the APS Code requires the lawful discharge of the duty [#26]:

PUBLIC SERVICE ACT 1999 - SECT 13
(4) An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
(a) any Act (including this Act), or any instrument made under an Act; or
(b) any law of a State or Territory, including any instrument made under such a law.

In the case of the Secretary, Head of Agency DIBP, he must be obedient to the executive government and must comply with any lawful and reasonable direction [Para (5), #26]. The Secretary must, therefore, be receptive to the government policies, and he must implement the government directives in accordance with the APS Code. For him and his office, these tasks are within the scope of the officer's duty for the public purpose.

When the implementation of a government directive has fallen outside the legal norms, such as issues arising with the CID Report from rapid processing, the Secretary has the duty to halt operation and reasonably seek remedial actions in accordance APS Code, i.e. "acting with due care and diligence" [Para (2), #26]. For him and his office, these tasks are also within the scope of the officer's duty for the public purpose.

In part 4, I compared the fiduciary duty of a school principal to the Secretary's responsibility toward Christmas Island Doctors and the contractor IHMS. The Secretary has the responsibility to look out for dangers that may befall all those working under him. When criminal liabilities have arisen under rapid processing, the Secretary has the duty to halt the operation and bring forward the CID Report to the attention of the Immigration Minister for consideration. The Secretary must take this responsibility and perform his duty in accordance with the APS Code.

Once the Secretary failed to halt the operation and failed to bring forward the CID Report to the Minister, his conduct is no longer under the public purpose. Whatever the Secretary acting outside the prescriptions of the APS Code has done for his private purpose. In this case, the Secretary has made a "wilful omission" to further offshore detention policy in favour of the incumbent LNP Government (i.e. partiality). When an officer 'makes omission' for his own 'private purpose', it becomes an abuse of power and commits the crime of misconduct in public office.

COVERING-UP OF CRIME IS SERIOUS

In part 6, I've outlined the seriousness of the Secretary making omissions to cover-up crime:

"(c) the omission to forward the CID Report to the Immigration Minister constituted a covering-up of the medical-related crime that took place at Christmas Island Detention Centre. Covering crime is a crime in itself, in addition to the "misconduct in public office". Therefore, the conduct of omission is serious and culpable."

Such cover-up of crime itself is an indictable offence under common law. Under Section 319 of Crime Act 1900 [#32], the Secretary can be indicted with "preventing the course of justice". At the time of making the omission, the Secretary intended to obstruct, prevent and defeat the course of justice. It is irrelevant whether the asylum-seekers (aliens) have real capacity to raise up legal challenges for the shortcomings in DIBP medical care at the Australian courts. It is also immaterial whether such a crime has been under active consideration of a court. The liability for the offence hinges on the "intention to pervert the course of justice" and not upon the perversion of a course of justice that is already in existence [#33, R v Beckett [2015] HCA 38].

POTENTIAL SERIOUSNESS

There has also been potential seriousness if we are looking at conduct of omission within the context of Div. 274 torture law. Under the rapid processing, the asylum-seeker patients, who will be accorded as prisoners under the law, have not been given adequate medical care. For example, the asylum-seekers have gone through 5-minute medical tests. Detention authorities did not allow the doctors to complete proper medical check-up sequences for the patients. For example, the detention authorities took away asylum-seekers offshore before the test results came back. These incidents are considered a material violation of Div. 274 torture law. Severely ill asylum-seeker patients -- such as Salim Kyawnaing, an epileptic sufferer and Dr Rohani, who had a bipolar, manic-depressive psychological disorder -- were known to have pushed through offshore sites during 2011-2014. These incidents may fall under Div. 274 also.

In the next posting, we shall look at the damages caused to the reputation of the office.
Keep up with updates:

Part 10. (22-10-2023)
COMPLAINT HANDLING OF AFP AND CDPP :

Friends, when I send to the Australian Federal Police a completed report for the misconduct of Secretary of DIBP(2011-2014), the Commonwealth Dept. of Public Prosecutors (CDPP) will be the final destination. Our discussion is still halfway through the report: Completing 3 out 5 elements of crime. By working through the common law analysis on the crime of misconduct, I hope to hasten the report's voyage through CDPP. Although the AFP has a good reputation for handling properly formed complaints, I, as a person in the general public, must take precautions when sending a potentially sensitive report. When I submit the completed report, I shall invite all refugee activists and Australian citizens to join in calling for the AFP organisation to act on this matter.

There are three layers of crime that amenable to differing laws of which the conducts relating to the offshore detention.

FIRST LAYER OF CRIME: SLAVERY

As you all know, I identified the government's offshore detention as a form of slavery in June 2017. That determination was based mainly on the "Bellagio-Harvard Guidelines on the Legal Parameters of Slavery", an international guideline prepared in 2012 by a group of eminent legal scholars for identifying slavery [#35]. In 2017, as a legal layperson, my knowledge of slavery has been minimal, but my observation of the situation on the ground and the Guidelines showed that offshore detention indeed is a form of slavery:

Guidelines (2): In cases of slavery, the exercise of 'the powers attaching to the right of ownership' should be understood as constituting control over a person in such a way as to significantly deprive that person of his or her individual liberty, with the intent of exploitation through the use, management, profit, transfer or disposal of that person. Usually this exercise will be supported by and obtained through means such as violent force, deception and/or coercion.

Slavery law appears to be unique, and there have been diverse views on what may 'legally' constitute slavery. Nevertheless, following the Guidelines has given enough grounds for the investigation, especially on the offshore detention. The Commonwealth Government and authorities had failed to start that investigation despite providing sufficient warnings on offshore slavery since 2017. I now have characterised Australia's offshore detention as the novel-new form of slavery, "Detention Slavery"[#36].

Internationally, the prevention from and protection of slavery has been considered a priority. Slavery has attained the level of a jus cogens norm: a peremptory norm of international law, which means that when violations have taken place, they carry with them what in domestic law might be termed strict liability. No justification could preclude State Responsibility for a breach of an obligation tied to slavery. We, of course, still have yet to see this international legal weight being applied to Australia's "Detention Slavery".

SECOND LAYER OF CRIME: TORTURE

Slavery ostensibly had taken place only at offshore jurisdictions, i.e. on Nauru and Manus Island. However, the crime of torture, in particular medical-related torture, had taken place in both offshore and onshore places. Our recent examination of the Christmas Island Doctor's report indicated that medical-related torture occurred at the Christmas Island detention centre during 2012-2014 [#5].

In 2010, the Australian government revamped its domestic torture law, Div. 274 of the Criminal Code Act 1995(Cth), to accommodate some provisions of the UN Convention Against Torture. That revamped torture law wasn't still readily applicable to users. In early 2023, I discussed bridging the legal gaps between the Div. 274 torture law and traditional common law [#16]. Therefore, the Div. 274 torture law is now directly applicable to the offshore situation.

THIRD LAYER OF CRIME: OFFICIAL MISFEASANCE

As a generalised rule, the lower the layers of crime, the more they are amenable to domestic laws. Within the contexts of crimes against humanity of torture and enslavement, the common law "misconduct in public office" discussed in "Crimes of Secretary of DIBP(2011-2014)" may be considered as the lowest layer. At this layer of crime, the Australian Federal Police can be called up to investigate the complaint [#17] and forward the legal findings to the Commonwealth Department of Public Prosecution [#37].

CONCERNING OUTSIDE INFLUENCE ON THE PROCESS

When approaching AFP, I will be supplying the preliminary evidence that is publicly available. In addition, I shall also supply current analysis concerning the elements of crime on the Secretary's misconduct in public office. There are no foreseeable logistical or legal difficulties for the AFP to carry out such an investigation. Despite that process seeming straightforward on paper, we must not underestimate the interference by perpetrators. Therefore, I shall put forward the proposal to the Commissioner of AFP to be more transparent about how his organisation might handle the investigation. (As you all know, we -- the general public -- are having difficulty of tracing progress on Faysal's Coronial Inquest)

1. First, request that the AFP Legal team handle the submitted complaint file directly, Then hand it over to CDPP straightaway.
This request is appropriate and necessary. The finalised complaint file from this end, though I am not a lawyer, would be close to the form of a legal indictment. The evidence disclosed to the public is already sufficient to make out a case. In other words, the complaint report file in final form -- at bare minimum -- ready to be used in a court of law. The role of AFP Legal team, the way I see it, is to verify the evidence supplied to the form usable in the court.

2. Secondly, whilst handling the complaint prior to handing it over to CDPP, the AFP should internally record all handovers within their organisation. It is desirable to arrange for the AFP investigator, Case Officer and Disclosure Coordinator within the organisation to work without any disruptions. We know that the AFP organisation does have such an internal procedure to record case-file handling procedures. It will benefit the public if AFP can assign an external liaison officer to trace the progress of individual complaint files.

3. Thirdly, to expedite the investigation of the complaint file, the AFP organisation should narrow the agenda and focus only on matters related to the submitted complaint file. This is because the AFP may already have received other complaints on the DIBP Secretary (2011-2014), such as undisclosed pecuniary interests. Combining it with other types of complaints could cause the possibility of unspecified delays.

4. Fourthly, we must have to imagine the unimaginable. There is the possibility of visible and invisible political pressures exerted upon AFP legal team or the organisation by the perpetrators, through the government and ministers, for example. In such a case, the rank-and-files of the AFP to allowed to speak out publicly on such incidents. Traditionally, there are common law provisions for obstruction of justice available. For the [would be] submitted complaint file, additional protection laws within Division 268, in accordance with the ICC Consequential Amendments of 2002, are available.

PEOPLE LIVING IN GLASS HOUSES

People who exercise power have to behave like people living in glass houses. This is especially true for politicians and high-ranking civil servants. They all are vulnerable to pressures that may possibly be exerted by the perpetrators. For example, a politician cannot overtly go out supporting the AFP investigation on the former DIBP Secretary. This is true for all Labour and LNP politicians. The independent members may have been different; we'll still have to see.

For their part, the government has the attitude of projecting positive image enforcing laws if an entity other than itself had been the violator. However, Crime Against Humanity changed all those norms. The Labour government is not likely to take any initiatives on current action. This is because, firstly, it is inappropriate to be involved in the legal process. Secondly, governments, in general, are much more interested in maintaining the status quo: which means more content to do "nothing". All we should ask from the Labour Commonwealth Government is to stay away from the AFP/CDPP investigations.
-- Cheers, NetIPR.

Part 7. (8-10-2023)
MOTIVES AND TIMING ON THE REMOVAL OF DeHAG/IHAG :

Friends, in the note posted last week (Pt-6), we look into the details of the Secretary wilfully omitting his duty to forward the CID Report to the Minister to suppress the CID Report. The Secretary has deployed a two-pronged method to prevent the CID Report from officially reaching the Minister. First, the Secretary omitted his duty to forward the report. Second, the Secretary had acted to destroy the path-way created by DeHAG/IHAG and MCASD, of which the report can reach out to the Minister. I characterise the Secretary's conduct of suppressing the CID Report as partial and politically corrupt conduct. In this note, we look into details of the Secretary's action in disbanding DeHAG/IHAG.

THE IMPORTANT ROLE OF DeHAG/IHAG IN ASYLUM-SEEKER DETENTION

Since late 2006, the Government separated health services from general detention services to allow direct engagement of health providers. At the same time, the independent health advisory group, DeHAG, is coming into existence. Notably, the source of power for DeHAG -- i.e. if any -- had been from the government inquiry held on the detention of two Australian women Cornelia Raw and Vivian Solon [#27a, #27b]. However, the less visible legal authority behind DeHAG came from the 2005 legal case of S v Secretary [#28]. In the judgment entered, His Honour PD Finn said this kind of litigation, i.e. asylum-seeker taking civil lawsuit on Government, has been "one of first impression" and noted:

212. ... that it [Government] ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves: cf Spicer v Williamson 132 SE 291 (1926) at 293. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care: see e.g. Brooks v Home Office (1999) 48 BMLR 109 at 114; cf also, although in a setting affected by constitutional considerations, Bowring v Goodwin 551 F 2d 44 (1977) at 47.

The latter legal case from the United States referred to by His Honour, "Bowring v Goodwin [1977]", is about the detention authorities had fallen into torture crime by denying medical treatment to a prisoner. On purview, whilst factual evidence has been obscured, the State polity has necessitated the existence and service of DeHAG so as to prevent the contracted-out detention system from falling into torture. Of course, we've witnessed now that without the service of DeHAG, the detention system indeed had fallen into torture.

Therefore, the individuals who voluntarily participated in DeHAG must be accorded the status of "government officials" by law.

DIBP JUSTIFICATION FOR DISBANDING DeHAG/IHAG

In 4/4/2014 Children In Detention inquiry [#29] , DIBP First Assistant Secretary John Cahill and Deputy Secretary Mark Cormack both gave evidence. Their [civil servants] initial position has been that they are required to follow the "policy" and "legislation" of the Government of the day. Without a doubt, the civil servants must follow the legislation of the Government. However, the civil servants cannot follow the policies of the Government of the day without questioning. The APS Code of Conduct advised [#26]:

-> when acting in connection with APS employment, comply with all applicable Australian laws;
-> behave honestly and with integrity in connection with APS employment;
-> comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction;

In the minutes of the meeting ref: adf2013/2766, "PROVISION OF INDEPENDENT HEALTH ADVICE" stated the Department's rationale for removing DeHAG/IHAG (see paras 6-9). The focus of DIBP has been " ... new policy parameters ... rapid transfer arrangements .. expanding offshore processing centres ...". The government directive for rapid transfer arrangements has been unlawful, as evidenced by the CID Report. Such adaptation of unlawful government directive had flowed from the DIBP's erroneous position held earlier, against the advice given by DeHAG [#7], that the IMAs are not entitled to Australian standards of health care [AE_001, #20].

In para 9, there were incoherent arguments made for the members of DeHAG in having the "conflict of interests", which we must dismiss the argument. This unsigned record was purportedly drafted by FAS John Cahill and DAS Mark Cormack on 1 Nov 2013. The Secretary of DIBP(2011-2014) used these arguments from the minutes ref: adf2013/2766 to disband DeHAG/IHAG on 13 Dec 2013.

IMPROPER MOTIVE WITH UNDOUBTED TIMING

Because the stated reasons for disbanding DeHAG/IHAG cannot stand up to scrutiny, the Secretary can only have other disclosed or undisclosed improper motives. Therefore, in conclusion, the Secretary has improperly exercised his discretionary power to disband DeHAG/IHAG. The timing for exercising such discretionary power on DeHAG/IHAG, with the removal of member MCASD in addition, had informed us beyond a doubt of the Secretary's intention to suppress the CID Report. Recapping the timeline of the events:

(a) By 6-Dec-2013, the Secretary has the CID Report. The Secretary must be aware of the report's salient contents, especially legal liabilities for Christmas Island medical practitioners. This fact can be ascertained through the Director of IHMS and also can be inferred from the extensive administrative knowledge that the Secretary had.

(b) On 13-Dec-2013, the Secretary disbanded DeHAG/IHAG. MCASD member Ms Caz Colesman, who has a connection with DeHAG/IHAG was also removed from the position, timed before meeting with Minister on 16-Dec-2013. The DeHAG/IHAG meeting scheduled for 29-Nov-2013 has never taken place.

(c) On 20-Dec-2013, realising all internal avenues to the Minister had been closed, the authors of the CID Report made the report public through the Guardian.

BOTH OMISSION AND THE ACT

In summing up our findings in Part-6 and Part-7, we have the proof of the third element of misconduct in public office, i.e.

(3) wilfully misconduct himself by act or omission;

In this case, the Secretary had misconducted himself by both making the omission and doing the act so that the CID Report did not reach the Minister. I describe the Secretary's entire conduct as the suppression of CID Report.

ALL THE REST ON QUESTIONS OF FACTS AND LAW

In communicating with AFP, I shall try my best not to expand the request for inquiry other than the misconduct in public office by the Secretary of DIBP (2011-2014). However, the legal situation for those within DIBP can be fluid, as indicated in the unsigned minute ref: adf2013/2766. The proximity of the meeting minutes -- by the way unsigned -- dated 1 Nov 2013 suggests whether other civil service identities may have been involved in removing-out DeHAG/IHAG from DIBP operations. This question of accessorial liabilities is rather broad, and I am inclined to leave it to the facts and the law. Noted in Lusty's paper [#14]:

"In accordance with general principles of accessorial and conspiratorial liability, a person who is incapable of committing the offence of misconduct in public office as a principal because he or she is not a public officer (or is not acting as such) may nevertheless be convicted of conspiring to commit, or being an accessory (aiding, abetting, counselling or procuring) to the commission of, the offence by a person who is a public officer"

Friends, we are getting firm grips on the misconduct in public office of the Secretary. Do keep track of the developments here at the forums and be prepared to give a hand, in the form of a petition letter to AFP, to investigate the matter. -- Cheers, NetIPR.

Part 6. (2-10-2023)
THE CHARACTERISTIC OF POLITICAL CORRUPTION:

Friends, we are continuing analysis of the detailed elements of the crime of misconduct in public office. Our investigation here focuses on the conduct of the Secretary of DIBP (2011-2014), who failed to bring forward the critical CID Report signed by 15 doctors. The CID Report highlighted the impacts of 48-hour rapid processing where the doctors could not discharge their duties to patients, creating legal liabilities for doctors. The Report specifically request that the rapid processing be abolished. In Part 4, we discussed the Secretary omitting his duty to bring forward the CID Report to the Minister. In Part 5, we discussed the Secretary improperly exercising his discretionary power to dismiss the members of DeHAG/IHAG and MCASD. The Secretary was omitting with one hand and acting with the other to prevent the CID Report from officially reaching the Minister. For this conduct, R v Quach [2010] quoting on Mason NJP, the Secretary misconducted himself:

22. ... A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he subject by virtue of his office or employment without reasonable excuse or justification.
A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. ..

CHARACTERISTIC OF POLITICAL CORRUPTION

Recently, there have been commotions in the public media about the Department of Home Affairs Secretary Mike Pezzullo's encrypted phone message exchanges with the Liberal Party headquarters. Of course, in critical legal considerations, such physical evidence could used to prove of the political partiality. (By the way, the Albanese Government has been swift in putting this uprising under the carpet :-) :-) [#23]!! )

As for the Secretary of DIBP(2011-2014), the general public has yet to be afforded such physical evidence to prove his political partiality. However, on the subject of political partiality, the conduct of the Secretary will speak for itself. The political partiality of the Secretary can also be inferred from other collated pieces of evidence.

(i) At the last meeting of DeHAG/IHAG in August 2013, the Secretary of DIBP(2011-2014) strongly argued that the Government is not obliged to provide an Australian standard of care to the asylum-seekers who come by boat [AE_001, #20, #7]. The Secretary was asserting this policy position without proper legal consultations.

(ii) In August-September 2013, the Abbott LNP Government gave a directive for fast-tracked health screening for boat arrivals, i.e. rapid processing, with a 48-hour turn-around time [#11]. This directive was based solely on the LNP Government's political priorities and was done without proper legal consultations.

(iii) The CID Report highlights the illegality in providing a reduced standard of healthcare in rapid processing that directly impacts doctors deployed at Christmas Island Detention Centre. The situation called for the reversing of the directive for rapid processing, of which only the Minister can do so.

(iv) If the CID Report officially reaches the Minister, it will be untenable for the LNP Government to continue with rapid processing. Therefore, The Secretary had made the omission and the act to suppress the CID Report. Such suppression has now been realized fully because the DIBP and Government have never acknowledged the existence of the CID Report.

FEAR AND PASSION AS MOTIVES FOR CORRUPTION

Under the term corruption, the conduct mostly involves motives or purposes that are described as "corrupt", "partial", "dishonest", "malicious", "oppressive" including "fear" and "favour". As we can see, these types of conduct are neither exhaustive nor mutually exclusive, but all indicate "corruption" in its general sense.

In recent days, I have disseminated the stories of two NSW politicians, Ian Macdonald [#25] and Eddie Obeid [#24], who had misconducted themselves in public office. Both men are convicted of the crime of misconduct in public office related to corrupt activities for pecuniary (financial) gains.

To the general public's knowledge, the Secretary's conduct under our consideration has no overt nor proven pecuniary interest for him. These are within the types of partiality and political corruption, of which the law of misconduct in public office has taken no distinction from other forms of corruption for pecuniary gain. The partiality is defined as "unfair bias in favour of one thing … compared with another". The Secretary acting in partiality has caused the corrupt exercise of his office's normal functions.

In some marginal cases where a public officer acts with mixed motives, involving proper and improper considerations, it will be sufficient to constitute misconduct in public office if he or she was "motivated to a significant degree" by improper considerations. On the Secretary's suppressing CID Report, I cannot find any reason that may have constituted as "proper".

We can, therefore, conclude when the Secretary omits to forward the CID Report to the Minister:

(a) the Secretary had shown dishonesty, not giving due attention to the civil and criminal liabilities that may befall upon doctors. It is improbable that the Secretary, who had extensive experience in administering healthcare sectors, did not know or noticed in the CID Report about these liabilities.

(b) the Code of Conduct for Australian Public Service requires all officers to "comply with all applicable Australian laws" [#26]. It is unlawful to ignore the medical-related crimes that have taken place under rapid processing.

(c) the omission to forward the CID Report to the Immigration Minister constituted a covering-up of the medical-related crime that took place at Christmas Island Detention Centre. Covering crime is a crime in itself, in addition to the "misconduct in public office". Therefore, the conduct of omission is serious and culpable.

(d) by making such an omission, the Secretary had shown partiality in maintaining the rapid processing in favour of LNP Government's directions at the expense of the civil and criminal liabilities that may befall the medical practitioners working at the Christmas Island Detention Centre.

We shall next look at the "act" of the Secretary in dismantling of DeHAG/IHAG and MCASD.

-- Cheers, NetIPR.

Part 5. (11-9-2023)
THE ELEMENTS OF CRIME (3) -- WILFUL ACT:

Friends, we are in the middle of investigating a possible criminal incident by the Secretary of DIBP (2011-2014), "the Secretary", who suppressed the report by Christmas Island medical practitioners, "the CID Report", in late 2013. The Secretary had suppressed the CID Report so that the report would not reach the Immigration Minister officially. The CID Report also includes the clear and unmistakable other incidents of medical-related crime occasioned at the Christmas Island detention centre. The medical practitioners working there were implicated in these crimes. The CID Report requested abolishing the rapid processing with 48 hours turnaround time [#18]. For this request and the gravity of the crime situation, the Immigration Minister must consider the CID Report.

On the previous note (Part 4, 4/9/2023 ), we focused on the Secretary's omission of his duty to bring the CID Report before the Immigration Minister. The Guardian's short (5-min) video has given a good summary of the developing situation at that time [#10].

1st-> The Department has received the CID Report for a fortnight;
2nd-> The DIBP and IHMS are examining the veracity of the claims;
3rd-> The Immigration Minister had not read ("assess") nor held ("received") the CID Report as of 20-Dec-2013.

The Immigration Minister made 2nd point to avoid his responsibility to examine the CID Report promptly. Consequently, the Minister's avoidance has caused the delay in abolishing rapid processing. Since there are serious implications for Christmas Island medical practitioners regarding criminal liabilities, by virtue of his employment and office, the Secretary himself must also make an immediate assessment and bring forward the CID Report to the Minister. The Secretary misconducted himself by wilfully and intentionally omitted to perform that duty.

MENS REA - THE GUILTY MIND

The offence of misconduct in public office is not one of 'strict liability'. It requires proof of a guilty mind, the precise nature of which will vary according to the particular type of alleged misconduct [#14]. In criminal law, the mens rea or guilty mind is inferred from the circumstances. The legally required proof for the Secretary 'wilfully' and 'intentionally' omitting to perform his duty might run into some difficulty in other circumstances. Factual references like the Secretary attempting to conceal problems (cover-up) occurring on rapid processing, along with his reckless indifference to the liabilities that may befall medical practitioners, all of which would have provided evidence for the Secretary having an improper intent suppressing the CID Report. These two factual points in law are entirely possible to prove.

However, the Secretary also misconducted himself by disbanding the independent group IHAG/DeHAG and MCASD on 13-Dec-2013. That action has exposed plain and bare the Secretary's intention to suppress the CID Report and to prevent the CID Report from reaching to the Minister. We again look at "R v Quach [2010]", quoted in Mason NJP:

Para. 22. ........ A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. ....

The Secretary improperly exercised his discretionary power to dismiss members of IHAG/DeHAG on 13-Dec-2013. The Secretary also replaced an IHAG-associated member of MCASD before a meeting could take place with the Immigration Minister on 16-Dec-2013. The proposition for the removal of IHAG/DeHAG members was made, reportedly, before 29-Nov-2013, according to File Ref. "adf2013/2766" with the Meeting Minutes titled "Provision of Independent Health Advise" [#4]. That unsigned document is questionable as to the source or origin. Nevertheless, corroborating with ABC News Item [#22] and resources from The Guardian [#7], the Abbott LNP Government has been planning to remove the members of IHAG/DeHAG from their roles since it came into power. We can, therefore conclude that:

-> The Secretary has improperly exercised his discretionary power to remove the members of IHAG/DeHAG on 13-Dec-2013;
-> the Secretary has replaced Ms Caz Colman of MCASD on 13-Dec-2013, with the intention to destroy the path-way for the CID Report to be officially received by the Immigration Minister;
-> The Secretary has acted above tasks in a politically corrupt manner;

Our discussion now have covered the first three elements of the crime for misconduct in public office (see Part 4. of discussion). We are now left with two more elements:

(4) without reasonable excuse or justification; and
(5) where such misconduct is serious and merits criminal punishment .....

Regarding the Secretary's justification that might be provided by File Ref. "adf2013/2766", the contents there are not convincing, and we cannot draw points on facts. I plan to discuss elements (4) and (5) more in the subsequent postings.

Friends, I am carrying out this legal analysis with the view to submitting a request to Australian Federal Police to investigate this matter. I think I'd be better to approach AFP, in combination with the public petition and (Independent) Parliamentary Members supports. People's power always work, and I shall call upon you for such support when appropriate. -- Cheers, NetIPR.

Do keep up with updates.
UPDATES: Crimes of Secretary of DIBP (2011-2014)
http://www.aus4iccwitness.org/node/102

Part 4. (4-9-2023)
THE ELEMENTS OF CRIME (3) -- WILFUL OMISSION:

Friends, on the note (Part.3, 20.8.2023), I introduced two documents that are central to understanding the crime of misconduct in public office: First, a judgment by the Victorian Court of Appeal, "R v Quach [2010]" [#12]. Second, the 2014 article by Mr David Lusty, "Revival of Common Law Offence ... " [#14]. That article seems directed toward a general audience because it is readable (to me) and has detailed references. Therefore, I will be using that article as a guide.

As for "R v Quach [2010]", it is a question on law judgment entered by Victorian Supreme Court judge Redlich JA, which was agreed to by other judges, Ashley J and Hensen J. The trial judge made a referral for this judgment regarding the law of misconduct in public office, seeking clarification in regards to an off-duty police officer engaging in a certain activity. Because of evident clarity and legal preciseness, the "R v Quach [2010]" became a landmark judgment frequently referred to by other courts. I'll align my discussion to this judgment as closely as possible. As a legal layperson (I am not a Lawyer), I aim to check whether the conduct of the Secretary of DIBP will fall under common law misconduct in public office. First, we must look at the detailed elements of crime for misconduct in public office.

WHAT THIS LAW SEEKS TO PUNISH

In view of common law, an officer appointed to the public office has a fiduciary duty of loyalty to the public. The general nature of the offence of misconduct in public office is described as [#14]:

The offence can be committed only by a public official. It cannot be committed by an ordinary member of the general public. But it does not discriminate against government employees. The reason it does not do so is that the core concept is abuse of official power. It can, therefore, be committed only by persons who are invested with powers, duties, responsibilities or discretions which they are obliged to exercise or discharge for the benefit of the general public.

For the person having such a power, duty or responsibility to exercise it or refrain from exercising it for his or her own private purposes, whether out of malice, revenge, friendship or hostility, or for pecuniary advantage is an abuse of power and amounts to the offence of misconduct in public office.

Further clarification of this offence is found in [#12]:

21. .... the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office, which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. (citations omitted)

Therefore, the law is targeted to the corrupt officers who abuse the power entrusted to them by the public office.

ELEMENTS OF CRIME FOR MISCONDUCT IN PUBLIC OFFICE

A simple statement of 'corrupt conduct' and 'abuse of power' at a common law court will not be sufficient for consideration. A precise granular definition is required; therefore, we must directly look at the detailed elements of crime. The Para. 46 of "R v Quach [2010]" has listed elements as [#12]:

"Para. 46.
So amended, the elements of the offence are:
(1) a public official;
(2) in the course of or connected to his public office;
(3) wilfully misconduct himself by act or omission, for example, by
wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) where such misconduct is serious and merits criminal
punishment having regard to the responsibilities of the office and the
officeholder, the importance of the public objects which they serve
and the nature and extent of the departure from those objects."

We can verify that elements (1) and (2) have satisfied. The Secretary of DIBP, "the Secretary", is a Commonwealth Government employee and a public officer. The Secretary's misconduct of suppression of the CID Report occurred while performing his official duty. To assist the analysis, as suggested in [#14], has been to look (construe) broadly the misconduct in terms of "abuse", "power", "duty" and "responsibility".

THE ROLE OF DIBP SECRETARY

The Secretary's misconduct in regard to the CID Report has already been summarised in Part 2 (13-8-2023) of this discussion. Here, we look again at the omission part from the evidence derived from two resources provided by the Guardian [#10, #18].

The so-called 'rapid processing' or 'enhanced screening' for asylum-seekers with a turn-around time of 24 to 48 hours was proposed by LNP Prime Minister Tony Abbott from the time he was an opposition leader. After the LNP took power in August 2013, all the critical tests -- blood tests, sugar levels and urinalysis -- were abandoned. The health assessment tests were carried out at a rate of 5-min instead of 20-min per person as would normally required. The CID Report attributed the pressure from DIBP to the doctors abandoning normal test procedures.

It has been in the public record that the Secretary is opposed to providing the asylum-seekers with Australian standards of health care [AE_001, #20]. In view of law and rights, a person of asylum-seeker may choose, within their rights, to take the boat regardless of health condition. Once the Commonwealth detained that person and became a prisoner, the detaining authorities must ensure the detainee (prisoner) is fit to travel. The rapid processing of which the doctors cannot perform their medical procedure to the requisite standard violated the torture law. Because of the scale and systemic manner in which the Secretary, Minister and the DIBP planned and carried out this rapid processing, this may constitute a crime against humanity [#16]. (NB: I must file this specific finding directly to ICC. For the purpose of AFP, and for this communication, it would be suffice to say the rapid processing violates laws and may connect to larger-scale crimes.)

The CID Report also includes the clear and unmistakable other incidents of medical-related crime occasioned at the Christmas Island detention centre. The medical practitioners working there were implicated in these crimes. The CID Report requested that the rapid processing with 48 hours turnaround time be abolished [#18]. For this request and the gravity of the crime situation, the Immigration Minister must consider the CID Report.

RESPONSIBILITY AND DUTY OF PUBLIC OFFICER

We can understand the fiduciary duty of a public officer by looking at the example of a school principal. A school principal has the responsibility (duty of care) to provide a safe learning environment to all students and the classroom teachers working under him. Likewise, the Secretary of DIBP is responsible for contractor IHMS and all medical practitioners and staff working under his department. He is responsible for looking out dangers that may befall all those working under him. As the holder of public office, the Secretary has a duty to act if there are any signs of danger for those working with his department. The emerging danger for the medical practitioners here has been the criminal liability arising from rapid processing. In this instance, the standard procedure for the Secretary has been to bring forward the request and CID Report to the attention of the Immigration Minister for consideration. The Secretary needs to perform this duty.

Citing Mason NJP, "R v Quach [2010]" describes omission of duty as [#12]:

22. ....... A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification.

I conclude the first part of elements of the crime (3) that the Secretary misconducted himself by omitting his duty. The Secretary also has wilfully acted out on this incident and misconduct himself, which will be the topic of the next posting.

Friends, please keep up with updates at "www.aus4iccwitness.org".
-- NetIPR.

Part 3. (20-8-2023)
CRIME AGAINST COMMONWEALTH BY
THE SECRETARY OF DIBP (2011-2014)

Friends, in the previous two notes on (13.8.23) & (18.7.23), I have outlined how DIBP Secretary had suppressed in late 2013 the CID Report organised by contractor IHMS and signed by the 15 medical practitioners who were working at the Christmas Island Detention Centre. Based on the evidence, I note that the DIBP Secretary may have committed the common law offence of "misconduct in public office". On this note, we will briefly examine the circumstances surrounding that event and check whether we can report this crime incident to the Australian Federal Police.

POLITICAL AND LEGAL ENVIRONMENT IN 2013

After LNP took over the government in September 2013, under Operation Sovereign Borders, the initial health screening for boat arrivals (asylum-seekers) was fast-tracked to send them to Manus Island and Nauru. There are questions on the underlying motives of the government for fast-tracked health screening of asylum-seekers. In late 2013, especially after August 2013, the Australia-Indonesia bilateral boat turn-back agreement was in operation [#15]. Therefore, the LNP government was not pressured, at least by large-scale new boat arrivals, to perform such fast-tracked health screening.

The fast-tracked health screening violates the doctor-patient contracts and is likely to violate Convention Against Torture [#16]. Although the LNP Government can claim everything being done under its Operation Sovereign Border -- by ways of alluding or albeit implying the Commonwealth Emergency Powers -- legally will make no difference. Under the Australian Constitution, the Executive Branch with emergency powers -- like any other entity including private citizens -- cannot 'unlawfully' interfere with the legal rights of others, including aliens. Clearly, when the Executive cannot have the excuse to legally "detain aliens", so would it apply to "torture aliens".

WHAT'S UNDER S.47F(1) DECISION

There is also a question of who initially requested the IHMS to undertake the CID Report. To my way of thinking, the DIBP itself might have initially asked IHMS to undertake such a report. Also possible is the IHMS acting upon its own internal legal advice. In any case, such a question is a matter of my curiosity and will have no bearing on the legal weight of the report.

A more intriguing question is the two entire pages redacted under s. 47F(1) provisions. The DIBP's FOI Officer Mel Heggart, taken-off that two pages citing the third party's information that may relate to:

-> that the documents contain third party personal information;
-> whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

One thing sure, therefore, is that two redacted pages are related to persons and issues connected with DeHAG/IHAG and MCASD. One possibility is that the two pages may be a "private letter" from one of the members of DeHAG/IHAG, drawing the attention of the Minister and Department to the situation in Christmas Island relating to the CID Report. The other possibility could be the "Minutes or Agenda Items" of MCASD, that tabled in advance for meeting with the Minister at 16-Dec-2013. Of course, the members of the public cannot request full disclosure of that document; But the Court and AFP can do it.

THE AFP'S CASE CATEGORISATION AND PRIORITISATION MODEL (CCPM)

The Australian Federal Police encourages those who wish to report the crime incident to first look at their CCPM. The 2020 Version is available here [#17]. I check-up against this particular crime incident as follows:

AFP considers the requests based on four criteria.

1. the incident/crime type
2. the impact of the matter on Australian society;
3. the importance of the matter to both the client and the AFP;
4. the resources required by the AFP to undertake the matter.

All factors, such as Incident Types, Priority (Essential, Special Reason), Impact (Very High and High), and Impact to Client (Significant & Others) seems to be within the parameters of AFP CCPM.

AVAILABLE CASE LAW

The two legal resources in [#12] and [#14] will be sufficient to determine this crime. This case's law consideration is a bit off-track from offshore torture and slavery crimes. However, it is worth the effort because the crime consideration for "misconduct in public office" will have even more profound implications and can have broader applications. I plan to carry out that task in the next few weeks. Do keep up with updates.

-- Cheers, NetIPR.

Part 2. (13-8-2023)
SCOPE OF CRIMES OF THE SECRETARY OF DIBP (2011-2014):

Friends, in the previous note (18/7/2023), I informed discovery on a particular type of common law that would apply only to the officers carrying out public duty -- the misfeasance in public office. In that note, we were looking at the specific crime incident in December 2013 about the DIBP Secretary suppressing the Christmas Island Medical Officer's Letter of Concern [#5], "the CID Report", so the report did not reach the Immigration Minister, Hon. Scott Morrison.

THE OBJECT OF SUPPRESSION

In September 2013, LNP took the role of government, and it managed the processing of unauthorised maritime arrivals (UMAs) under Operation Sovereign Borders. For unspecified reasons, the DIBP decided to fast-track the health screening process, the Health Induction Assessment, of asylum-seekers to send to Manus Island and Nauru. The Health Induction Assessment for asylum-seekers has not been done at the requisite Australian standards under fast-tracked processing. The CID Report highlighted minor infractions and major violations of asylum-seekers' legal health rights. As things stand, the DIBP policy and practices in healthcare arrangements will have the consequent civil and criminal liabilities for the medical practitioners, the IHMS and, ultimately, the Commonwealth Government. To redress these issues, the Immigration Minister must first consider the CID Report.

The LNP and Immigration Minister, most likely, did not want to handle the CID Report and the complaints regarding asylum-seeker healthcare arrangements. Despite such political imperatives, the Secretary of DIBP, as a public servant and government officer, must bring forward the CID Report to the Minister. An officer of the government department must be politically impartial in discharging his/her duties. When an officer has acted partially, i.e. politically corrupt manners, that officer committed the common law crime of "misconduct in public office" [#12]:

20. …official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him."

For Australia, the Commonwealth Government of the day will have the responsibility to bring such officers to account for the criminality [#12]:

12. …if a man accepts an office of trust and confidence, concerning the public, especially when it is attended with profit, he is answerable to the King for his execution of that office; and he can only answer to the King in a criminal prosecution, for the King cannot otherwise punish his misbehaviour, in acting contrary to the duty of his office… (reference omitted)

THE EXTENT OF SUPPRESSION

On suppression of the CID Report, the Secretary of DIBP (2011-2014) used a two-pronged strategy. Firstly, he made the omission of duty to bring forward the CID Report to the Minister. Secondly, he wilfully acted to destroy the existing avenue, i.e. DeHAG/IHAG & MCASD, that the CID Report could reach the Minister. Most importantly, in the aftermath of such unlawful conduct, no mitigating actions have been taken regarding the CID Report either by the Secretary himself or by the Department. Therefore, the DIBP's intention to suppress the CID Report and cover up the issues has now been clear. Since the Secretary had already left the post of the public servant, internal disciplinary measures were not available, and the common law remedy was the only option available.

CONNECTION WITH TORTURE AND SLAVERY

So far, the evidence disclosed to the public has indicated that this incident is legally actionable as a stand-alone crime. However, this crime incident had taken place under the shadows of the crimes against humanity of torture and of offshore enslavement. It is also hard to believe the Secretary would have acted alone and there must, at least, be tacit approval from the Minister (no evidence as yet). Therefore, on undertaking due processes as a stand-alone crime, such legal action cannot foreclose on other crimes.

TORT OF MISFEASANCE AT PUBLIC OFFICE

The common law tort of misfeasance in public office does have a long and interesting legal history. First cited case dating back to 1703 [#13]:

The tort of misfeasance in public office claims a history that dates back to Ashby v White (1703), in which Holt CJ had awarded a very large sum in damages against a public official who had maliciously prevented the plaintiff from casting his vote at a general election. The plaintiff had, in fact, sustained no material loss, his preferred candidate was elected, and the damages award was explained in much the same terms that might apply to a criminal penalty. Indeed, Holt CJ said that in order to avoid a multiplicity of actions, a criminal prosecution would have been the only remedy if the official had maliciously denied the vote to a large number of electors.

The present-day "Misconduct in Public Office" -- a form of "victimless" public crime -- has been the criminalised part of the misfeasance of public officials [#14]. In our case of the Secretary of DIBP suppressing the CID Report, the legal remedy in the form of civil tort action might also be available to a wide range of persons and entities, e.g. the Christmas Island Medical Practitioners or the associated public organisations [#13]. In any case, I shall closely follow the track of criminal misconduct in public office [#14], which is said to have a concrete legal precedent within Australia [#12].

Friends, do keep check upon updates at aus4iccwitness.org
-- Cheers, NetIPR

Part 1. (18-7-2023)
DeHAG/IHAG 2013 SACKING--DIBP CRIME EXPOSED:

Friends, We've been examining the history of DeHAG and trying to gauge how Labour and LNP have contributed to the demise of DeHAG/IHAG. As a by-product of this examination, certain political cover-up crime committed by DIBP in 2013 has been revealed. To understand this finding, you would need to access the following two crucial documents:

1. FOI Document released by the Department of Home Affairs on 11/2/2014 [#4] regarding the decision to disband IHAG (need to sift through all 14 pages!);
2. The Christmas Island Doctor's (CID) Letter of Concern dated November 2013 [#5] ( total 80 pages, will be making specific references );

Based on the above two documents, I concluded DIBP Secretary Martin Bowles and his associates had obstructed the CID's Letter of Concerns reaching up to the Minister of Immigration, the Hon. Scott Morrison. As such, Mr Martin Bowles may have committed the common law tort of misfeasance in a public office. He may therefore have committed a crime against the Commonwealth. Because of the nature of CID's Letter of Concern, he may also be liable for the covering up crime. I shall first outline the contents of CID's Letter.

THE CHRISTMAS ISLAND DOCTOR'S LETTER OF CONCERNS

The CID's Letter of Concerns was prepared at the request of the Medical Director of the IHMS and signed by 15 medical practitioners. The letter addresses, among other things, the DIBP's "rapid processing" in health screening procedure was not at the requisite Australian standards. The letter said, "... resulted in the abandonment of previously established standards to ensure unsuitable patients were not transferred to medically risky offshore facilities. Patients are ... cleared .. without pathology". The DIBP, through IHMS, forced the doctors to expedite the health screening process at a rate of 5 minutes per person, against the 20 minutes which would normally required. Section 4.0 (not made available to the public) listed individual cases that medical damages may have already occurred.

The doctors who performed medical assessments under rapid processing could not examine their patients using "reasonable skill and care" as prescribed by the law. The doctor who performed under rapid processing will violate the doctor-patient contract [#3] and, therefore, the doctor will be personally liable. The CID's Letter clearly states (See 3.2.5 Key recommendation(P) of [#5]):

=> .. no third party can absolve medical practitioners of their duty of care
[i.e. doctors are personally liable].
=> .. payment does not absolve medical practitioners of their duty of care
[i.e. doctors or IHMS cannot escape punishment by paying compensation if and when medical damages occur].

Therefore, the CID's Letter of Concerns is a report of crimes that have already occurred and also conveys warnings that such crimes will continue to occur. Both the administrators of IHMS and the authors of the Letter of Concerns have the legal rights and specific interests that the letter be reached to the Minister of Immigration for proper consideration.

MR. BOWLES ACTIONS TO SUPPRESS CID'S LETTER OF CONCERNS

The decision to disband IHAG, with former DeHAG members, was outlined in two departmental communications [#4]. The "Immigration Health Advisory Group Minbrief", released with exemptions, was authored and signed by Secretary Martin Bowles. The communication was approved and signed by the Minister on 19 December 2013. In that communication, Mr Bowles advised the Minister of timing "Please action by 15 December 2013, prior to your meeting with the Minister's Council for Asylum Seekers and Detention scheduled for 16 December 2013". That action aimed to exclude any advice from all former DeHAG members and effectively shut down the communication line created by Minister's Council for Asylum Seekers and Detention (MCASD). Ms Caz Coleman appeared not reinstated in the next phase of MCASD, as Dr Paul Alexander would replace the position:

"5. There is some crossover of relationships between IHAG members and the membership of your Council for Asylum Seekers and Detention (MCASD) ... [redacted] ... It would be valuable to continue to maintain a linkage between the independent health advice to the department and MCASD. Accordingly, you may wish to appoint Dr Alexander to the Council .."

There had been continued postponements for the quarterly IHAG meeting scheduled for 29 November 2013. These were signs of avoidance by DIBP [#7] and shut down communication from all IHAG members.

The second unsigned communication to Martin Bowles for decision, "Minutes -- Provision of Independent Health Advise", was dated 1 November 2013. That communication, reportedly, was consulted with Dr Paul Alexander, Dr Paul Douglas, and the FAS CCR (name not exhausted). First Assistant Secretary John Cahill signed and sent through Deputy Secretary Mark Cormack. It is not clear who authored that Minutes or whether any consultative meeting took place. But those names that appeared on the document would be able to tell about the source of that Minutes.

THE CID'S POTENTIAL FOR REACHING OUT

The tense relationship that's forming between DIBP and DeHAG/IHAG members has been fully described in this 2014 article by The Guardian [#7]. The relationship was even more tense after the August 2013 disagreement between IHAG members and the DIBP Secretary [#7] about the standard of healthcare required for asylum-seekers. After LNP Government came into power in August/September 2013, the next quarterly meeting for IHAG on 29 November 2013 was postponed. Regardless of these circumstances, if there were any opportunity, the IHAG members will certainly raise CID's Letter of Concerns to the DIBP most forthrightly.

The Ministerial Council for Asylum Seeker in Detention (MCASD) was in IHAG formal structure. Despite the name suggested, the MCASD wasn't within the inner circle of the Minister. MCASD doesn't have a close working relationship with either Minister or Departmental Secretary. Mr Paris Aristotle, the Chair of MCASD, disclosed this evidence at the 22-Aug-2014 Australian Human Rights Commission (AHRC) Inquiry in Canberra [#8]. Nevertheless, any critical information, such as CID's Letter of Concerns, that comes into the hands of the members of DeHAG/IHAG will likely be raised through MCASD.

Given the seriousness of the issues, the authors of the Letter of Concerns were likely to reach out to the members of IHAG. When IHAG visited Christmas Island Detention Centres in October 2013, none of the doctors working there could see IHAG. At 31/7/2014 AHRC Inquiry in Sydney, Dr Sanggaran gave evidence that:

.... whilst I was there, IHAG, ..., conducted a tour of Christmas Island detention centres. Now they came by after [inaudible], well after all the other doctors had gone home, they didn't speak to a single doctor in a clinical role, and I don't think it was IHAG's decision to do it that way. They were just kind of managed that way and at the time I was there, Grant was there, there were plenty of doctors there that had serious concerns about the health care at the time, but we only find out after they'd left that they'd been there at all.

Also to note, it is lawful for the CID to communicate to the members of IHAG in regard to the contents of the Letter of Concerns. Therefore, it is likely that by the time early December 2013, the members of IHAG became aware of the CID's Letter of Concerns.

ISSUES BUBBLED AND MEDIA HOT-AIRED

After disbanding IHAG on 13 December, the DIBP kept silent on the Letter of Concerns until the Guardian newspaper published the contents on 20 December 2013 [#10]. The Minister conceded DIBP had received -- probably through IHMS -- the Letter of Concerns on 6 December 2013 [#11]. Minister also suggested DIBP and IHMS were looking at the claims and the veracity of content and that the IHMS was 'expected' to resolve matters raised.

The IHMS, for its part, held a meeting with the signatories, and Dr Sanggaran was able to visit IHMS headquarters in Sydney. Otherwise, none of the issues has been resolved, as evidenced by Dr Sanggaran [#8]:

"So look, they [IHMS] called everybody that had signed the letter. We had a discussion with them about what they thought was significant. They made an invitation to come down to Sydney. I took that invitation, ..... I was able to discuss things with Dr Parrish and several others at the head office there. But in the end, there was no real resolution at all to any of the points that we had put forward."

Obviously, the Minister, DIBP and the LNP government were, in fact, ill-equipped to handle such serious and substantive issues. Failing to appreciate these are substantive legal issues, the LNP rank and file were expecting the matters to withered away with time.

MISFEASANCE OF PUBLIC OFFICIAL

The origin of this particular tort is punitive in rationale, with the government standing behind individual officers who may be sued. Its rationale has always centred on protecting the subject from government officers abusing power, but it doesn't prohibit the government from making a claim against its own public officials. The crime has the following elements:

(a) an act or omission by a public officer done:
(i) with intent to harm; or (ii) knowingly in excess of his or her authority; and
(b) involving a foreseeable risk of harm; and
(c) causing loss or damage.

In this case of DIBP Secretary suppressing CID's Letter of Concerns, the conduct is of both the 'act' and 'omission'. On the 'act' of removing members of IHAG, the Secretary has publicly admitted to his own decision [#12]. There's also Secretary and DIBP omission to "receive", "process" and "taken into account" of the CID's Letter of Concerns. The objectives of this 'act' and 'omission' were the Letter of Concerns not reaching the Minister, which is 'the damage'.

Friends, this is the specific area of common law that we haven't seen before. Its applicability might even extend to the recent Robodebt Scandals, where the Centrelink officers recklessly asked the unemployed to repay the debts that actually do not owe. On this note, I shall have to take a break from this offshore enslavement research and must attend my household DIY flooring chore for about 2-3 weeks.
-- Cheers, NetIPR.

REFERENCES

[#3] http://www.aus4iccwitness.org/node/98
[#4] https://www.homeaffairs.gov.au/foi/files/2011-2014/FA131200545.pdf
[#5] http://www.aus4iccwitness.org/evidence/20131101_d4r-ci-letter.pdf
[#7] https://www.theguardian.com/world/2014/aug/05/-sp-australias-detention-r...
[#8] https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/transcri...
[#9] https://www.sbs.com.au/news/article/asylum-seeker-health-panel-sacking-s...
[#10] https://www.theguardian.com/world/video/2013/dec/20/david-marr-scott-mor...
[#11] https://www.theguardian.com/world/2013/dec/24/morrison-christmas-island-...
[#12] Regina v Huy Vinh Quach [2010] VSCA 106 (PDF-Download)
https://jade.io/article/147354
[#13] Misfeasance in public office: Peculiar Tort
https://law.unimelb.edu.au/__data/assets/pdf_file/0006/1703517/35_1_1.pdf
[#14] Lusty-Revival-of-the-Common-Law-Offence-of-Misconduct-in-Public-Office-2014-38-Crim-LJ-337.pdf (PDF-Download)
[#15] OSB, Turnbacks and Political cover-ups
https://www.aus4iccwitness.org/node/30
[#16] STATE OF TORTURE LAW IN AUSTRALIA
https://www.aus4iccwitness.org/node/96
[#17] AFP CASE CATEGORISATION & PRIORITISATION MODEL
https://www.afp.gov.au/sites/default/files/PDF/ccpm-dec-2020.pdf
[#18] https://www.theguardian.com/world/2013/dec/20/rush-to-send-asylum-seeker...
[#19] https://www.theguardian.com/world/2013/sep/30/morrison-doctors-fears-abo...
[#20] http://www.aus4iccwitness.org/evidence/
[#22] https://www.abc.net.au/news/2013-12-16/coalition-disbands-immigration-he...
[#23] https://www.apsc.gov.au/about-us/working-commission/who-we-are/media-rel...
[#24] MISCONDUCT IN PUBLIC OFFICE--APPEAL REFUSED; EDDIE OBEID.
https://www.facebook.com/groups/1648810632007956/posts/3515111572044510/
[#25] MISCONDUCT IN PUBLIC OFFICE; MINISTER IAN MACDONALD.
https://www.facebook.com/groups/1648810632007956/posts/3513669652188702/
[#26] APS CODE OF CONDUCT/PUBLIC SERVICE ACT 1999 - SECT 13
http://classic.austlii.edu.au/au/legis/cth/consol_act/psa1999152/s13.html
https://www.apsc.gov.au/working-aps/integrity/integrity-resources/code-o...
[#27]
(a) "Cornelia Rau" https://www.youtube.com/watch?v=VG_SP42h8Fc
https://www.homeaffairs.gov.au/reports-and-pubs/files/palmer-report.pdf
(b) "Vivian Solon" https://en.wikipedia.org/wiki/Vivian_Solon
https://www.homeaffairs.gov.au/reports-and-pubs/files/alvarez_report03.pdf
[#28] S v Secretary, Dept. of Immigration (2005)
https://pinpoint.cch.com.au/document/legauUio390238sl10609811/s-v-secret...
[#29] https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/transcri...
[#30] R v Maitland; R v Macdonald [2019] NSWCCA 32
[#31] R v Macdonald; R v Obeid [2021] NSWSC 858
[#32] Conceal Serious Indictable Offence, s. 316 (NSW) Crime Act.
https://www.publicdefenders.nsw.gov.au/Documents/s316-crimes-act-conceal...
[#33] https://www.hcourt.gov.au/assets/publications/judgment-summaries/2015/hc...
[#34] https://www.homeaffairs.gov.au/reports-and-pubs/files/detention-reforms.pdf
[#35] COMMONLAW RECKLESSNESS
https://www.judcom.nsw.gov.au/publications/benchbks/criminal/recklessnes...
[#35] https://www.aus4iccwitness.org/legal-resources/20120303_bellagio-harvard...
[#36] http://www.aus4iccwitness.org/docs/20220220_sr-slavery-submission.pdf
[#37] https://www.cdpp.gov.au/prosecution-policy
[#39] Division 149. Obstruction of Commonwealth public officials
http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html/>