Tony,

Thanks for your email.

I do have something that veterans can do to help.

It may take me a day or two to put it together.

Basically it will be to ask veterans to write (as in “snail mail”) to the politicians for whom they vote and ask them to put a question to the PM.

Depending on their party it could be in “Question Time” or in “The Party Room”.

The important thing is that the issue gets a lot of publicity.

On matters of contempt any court can initiate proceedings themselves.

Obviously only the “High Court” can deal with contempt proceedings relating to the “High Court”.

The media seem reluctant to run with these issues unless they feel they have immunity from prosecution.

Having the issues mentioned in Parliament of a court gives them this immunity.

I’ve been pleasantly surprised by the strong, and positive, response to this issue.

Terry Fogarty

16 Mann Avenue

Northgate Qld 4013

Australia

Telephone: (07) 3266 6636

Mobile: 0419 668 197

Email: fogartyt@bigpond.net.au

Webs: Mortality Files; VESCA

SKYPE terry.fogarty

From: Paul Dignon [mailto:pauldignon@iprimus.com.au]
Sent: Tuesday, 15 May 2007 8:28 PM
To: Terry Fogarty
Cc: 'tony white'
Subject: RE: DVA BREACHES VEA, CRIMINAL CODE & CRIMES ACT..

Terry,

An offer of help from Tony (an ex-3 RAR Adjutant)!

Many Regards

P.M. DIGNON

National Coordinator

The Sea of Orange

United we Stand

Tel: (08) 8277 2069

-----Original Message-----
From: tony white [mailto:a_fwhite@bigpond.net.au]
Sent: Tuesday, 15 May 2007 6:33 PM
To: Paul Dignon
Subject: Re: DVA BREACHES VEA, CRIMINAL CODE & CRIMES ACT..

YWA, Paul, (Yeah Well Anyway - I use it a fair bit so pls remember this one if you would).as I was saying YWA...how do we/l,me, myselfus that is....help Terry Fogarty prosecute this business until it 'gets to a suitable court'??? 'Cos if we don't do it, DVA are bound to do it all again [particularly as there will now be a precedence]. IF 'one of us' has gone to all this trouble...we need to ensure it doesn't happen again- in say 2 decades time, (or further, much further down the track) when we will be out of this sort of stuff by then one hopes - I'm going sailing eventually; and there I will be SAFE. Chookkle, chookkle or LOL -heaps

Please advise if I can be of any assistance

Thanks Paul & regards

ynot

when you get the sig name avatchookkle! mate!!

----- Original Message -----

From: Paul Dignon

To: Undisclosed Group

Sent: Tuesday, May 15, 2007 6:11 PM

Subject: FW: DVA BREACHES VEA, CRIMINAL CODE & CRIMES ACT..

See below!

Terry has put in a lot of effort and time and is slowly but surely whittlinbg away at the red tape!

(Thanks Allen)!

P.S. There is a fair bit below but Terry has used simple language that is readily understandable. It’s truly worth a read!

-----Original Message-----
From: Allen Petersen [mailto:petersaj@bigpond.net.au]
Sent: Tuesday, 15 May 2007 4:36 PM
To: Undisclosed-Recipient:;
Subject: DVA BREACHES VEA, CRIMINAL CODE & CRIMES ACT..

TERRY

FOGARTY

TELEPHONE   0419 668 197

Email:          fogartyt@bigpond.net.au

Web: http://vesca.tripod.com

16 MANN AVENUE

NORTHGATE QLD 4013

AUSTRALIA

Saturday, 12 May 2007

Mr Alex Anderson

Assistant Secretary

Legal Policy Branch

Department of the Prime Minister and Cabinet

One National Circuit

Barton ACT 2600

Dear Sir,

Thank you for your letter dated 27^th April, 2007.

In October 2006, as a constituent of Senator Andrew Bartlett, I asked him to relay a letter from me to the Prime Minister. Whilst this was done I wasn’t advised of it and assumed he hadn’t sent the letter on my behalf.

In November 2006, as there are no Greens Senators from Queensland, I sent a similar letter to Senator Bob Brown.

As a precaution to the PM’s staff “losing” my request I sent copies to Mark Sullivan and the six Deputy Commissioners. I’ve received three replies from Mark Sullivan one of which was a PR blurb not related to what I wrote about.

Another was a denial of the matters about which I wrote. This letter was also used by Tony Smith. I’m happy to have it, and to have it sent to me again via Tony Smith as it could represent important evidence against Mark Sullivan in any future court case.

I’ve recently had replies to both letters from the PM’s Office:

·   The Hon Tony Smith MP, Parliamentary Secretary to the Prime Minister – Dated 10^th April, 2007

·   Alex Anderson Assistant Secretary Legal Policy Branch, Department of the Prime minister and Cabinet – Dated 27^th April, 2007

Both replies suggested referring these issues to the Ombudsman. Section 6 of the “Ombudsman Act 1976” prevents the Ombudsman dealing with matters that are the province of the courts. The Ombudsman’s enquiry staff are well aware of this. Apparently neither of my letter writers are aware of this.

Alex Anderson also suggested referring the matter to the Australian Federal Police. The AFP use their “Case Categorisation and Prioritisation Model (CCPM) to avoid investigating these types of issues. They appear to frequently rely on the following which is included in their examples:

  Economic crime (including money laundering) affecting the whole of government agency, or valued at more than $5 million or corruption by a public official

The result is that one of the fundamental democratic freedoms is circumvented. That freedom is the Doctrine of the Separation of Powers.

Tony Smith relied on the advice of Mark Sullivan. This is analogous to the judge in a criminal trial allowing the accused to decide the case.

My ongoing research since sending that original material allowed me to develop the material associated with the “Triple Whammy” matter.

The precedents from the Bushell/Byrnes/Deledio cases are still current. The critical precedents they provide are:

1.     It is incorrect to prefer one doctor’s opinion over another.

2.     The benefit of the doubt applies to all aspects relating to entitlement.

Both of the above are “High Court” precedents and in terms of the “legal hierarchy” cannot be countermanded by “Federal Court” precedents. The only way they can be countermanded is by legislation and 1992 attempts to do this failed.

Not only are these rules not generally applied by the Repatriation Commission (including DVA) but they are not generally applied by either the Veterans’ Review Board or the Administrative Appeals Tribunal. Both of these bodies are supposedly “independent”.

There is a publicly available facility to verify these matters – the published court reports of the AAT cases. There are approximately 4,000 cases involving the Repatriation Commission.

Whilst it may not be a traditional view of “contempt” these approaches by the Repatriation Commission provide evidence of a contempt of the High Court’s decisions. The “second opinion” protocol provides evidence of this. If second opinions can’t legally overturn the original doctor’s opinion what is the purpose of obtaining them?

Additionally these second opinion protocols are requiring veterans to prove matters. This of course is contrary to VEA Section 120 (6).

It is quite obvious that government agencies are not going to facilitate bringing criminal charges against Repatriation Commission staff. AFP and CDPP policies actively prevent this.

Despite the unconventional approach, a “Contempt of the High Court” action, by the High Court itself, is most likely to produce the desired result. It is for the High Court to determine what constitutes “contempt”.

The integrity of the High Court is beyond any doubt.

The High Court has been the greatest protector of Veterans’ rights over many decades.

Another matter uncovered since my original letter concerns instructions issued by senior Repatriation Commission personnel instructing claims assessors to act illegally.

Department of Veterans’ Affairs’ Departmental Instruction C11/2005 of 12^th April 2005 instructs DVA staff to act in breach of the VEA Act, the Criminal Code and the Crimes Act, and to suppress evidence of breaches of the Privacy Act. It replaced C12/2000 of 3^rd March 2000 which carried the same instructions.

These Departmental Instructions order staff to not include relevant information on veterans’ files. The consequence of these actions is that this information is not taken into account when determining the veterans’ applications for war pensions. They also instruct staff to not accept external reports until they are happy with them.

Some of this suppressed information could contain evidence of breaches of the Privacy Act.

It is possible that 3,000 veterans could be affected Australia wide. With the TPI at almost $35,000 pa this represents a potential loss of $105 million pa to veterans.

More substantial information is available from the following hyperlink:

http://vesca.tripod.com/Veterans/Scenarios.htm

The following hyperlink has hyperlinks to a lot of the relevant material, including the relevant case law:

http://vesca.tripod.com/Perth.htm

Tony Smith is correct when he says there are some very serious issues here.

Regrettably Politicians cannot be prosecuted in relation to these matters because of their “Parliamentary Privilege”. However the bureaucrats enjoy no such protection.

In fact it would seem Section 11.2 of the Criminal Code imposes a legal obligation on bureaucrats to report these matters.

Criminal Code Act 1995

11.2 Complicity and common purpose

             (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

             (2) For the person to be guilty:

                     (a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

                     (b) the offence must have been committed by the other person.

             (3) For the person to be guilty, the person must have intended that:

                     (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

                     (b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

          (3A) Subsection (3) has effect subject to subsection (6).

             (4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

                     (a) terminated his or her involvement; and

                     (b) took all reasonable steps to prevent the commission of the offence.

             (5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

             (6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

Yours faithfully,

TERRY FOGARTY.

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