Secretary suppression of IHAG

19-May-2024
SECOND LIMB OF THE CLAIM AND POTENTIAL FOR EXTENSION OF CRIMINAL LIABILITY:

Friends, our investigation on the Secretary of DIBP(2011-2014) suppression of the CID Report, i.e. Christmas Island Medical Officer's "Letter of Concern" on Nov-Dec 2013, has now been completed the first limb of the claim [para. 3.(i)].

(3) ..... [ 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;

As noted in para. 3, a claim exhausted in the first part of the statement by itself can constitute a substantive offence. By this, I could have submitted the report in its present state to the AFP/CDPP so that they could reasonably take action. However, for a few good reasons, I am choosing the report to submit to AFP/CDPP only after the completion of the second part 3(ii).

SECRETARY ACTION ON DISMISSING DEHAG/IHAG

For part 3(ii), I draw direct evidence from the FOI-released document by the Department of Home Affairs, "FA13/12/00545"(link below). The scope of that document has three parts:

1. Immigration Health Advisory Group Minbrief (8pg)
2. Letter to Dr Paul Douglas (2pg)
3. Minute –Provisions of Independent Health Advice (3pg)

Looking within the contextual sense, I divided into three different areas we can focus on for evidence that Mr Secretary terminated DeHAG/IHAG serving non-public purposes.

I. The DIBP meeting minutes, ref: adf2013/2766, dated 1 Nov 2013.
II. Mr Secretary's submission to the Minister on 16/12/2013, file "ExecCorro Reg.number SM2013/03873", with respect to the Secretary's decision to terminate DeHAG/IHAG group.
III. The entirely redacted pages 5 and 6, which covered with big sign s.47F(1) of that submission.

DRAFT MEETING MINUTES ON "PROVISION OF INDEPENDENT HEALTH ADVICE"

In the minutes of the meeting ref: adf2013/2766, "PROVISION OF INDEPENDENT HEALTH ADVICE", para 6-9 spelled out the Department's rationale for removing DeHAG/IHAG. This unsigned minutes was, purportedly, drafted on 1 Nov 2013 by FAS John Cahill and forwarded through DAS Mark Cormack for Mr Secretary to be tabled at IHAG meeting on 29 Nov 2013. The scheduled IHAG meeting on 29 Nov 2013 had never eventuated (see [bk]).

Because no one has signed that meeting minutes, I shall be "alleging" that Mr Secretary himself had written that draft, ref: adf2013/2766 ("Do I sound like a lawyer? :-) :-)!!"). This will necessarily simplify the work for AFP/CDPP, avoid taking action against the First Assistant Secretary John Cahill and Deputy Assistant Secretary Mark Cormack as part of the guilty party. If the evidence is disclosed contrarily, the AFP/CDPP should inevitably be urged to take action on names appearing in the minutes.

ACCESSORIAL AND CONSPIRATORIAL LIABILITIES

Of course, there are additional tools available for the common law offence of misconduct in public office. In August 2013, the NSW ICAC referred DPP to former Labour minister Ian Macdonald and Union boss John Maitland for corruption charges. The Court charged Ian Macdonald with misconduct in public office, where Mr Maitland was an accessory to that charge. It later found, through appeal processes, by the Court that Mr Maitland was "an honest and upright Union Official", and he then had been exonerated. However, Ian Macdonald's corruption charge was being upheld. Therefore, an accessory to the crime of misconduct in public office can be made out at the Court in the cases of necessity.

Also, in the case of "R v Macdonald; R v Edward Obeid; R v Moses Obeid [2021] NSWSC 858", Edward Obeid and his son Moses Obeid were charged with "conspiring together" in the corruption of Ian Macdonald. Therefore, the conspiratorial charges are being available for the common law offence of misconduct in public office. These complicity and common purpose in the commission of an offence are detailed in Divison 2.4 Extensions of Criminal Liability, the Criminal Code Act 1995(Cth).

Friends, keep checking at updates on ( /node/102). And consider to join in making public evidence ( /node/113).

-- Cheers, NetIPR.

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12-May-2024
MAKING OF OWN EVIDENCE ON SECRETARY OF DIBP:

Friends, in these days, the computers with sophisticated Artificial Intelligence software are far too powerful that they can transcribe (mp3) audio files into related texts in few seconds. To reconstruct evidence for the 20 December 2013 OSB Briefing, I have divided the audio file provided by Guardian into 10 segments. I then used a freely available online AI app ( www.notta.ai/en/ ) to get raw texts. Thanks to notta.ai, which has given the public the free use of their facility, provided that users divide up their audio files in less than 5min. For any person, that step has been the hardest part in getting out some text from audio files, I suppose.

Of course, the raw text generated by notta.ai still could not distinguish between speakers. A few mispelled words or small dropouts are here and there. When comparing the raw AI-generated text with the OSB-released transcript, the most important difference is the appearance of crucial questions asked by journalists. I did reconstruct the evidence for the 9th segment of audio, of which two important matters are coming up.

DATE DEPARTMENT RECEIVED THE CID REPORT

Let's look at the extract of seg009.txt:
=>
SCOTT MORRISON: What has that relate to operation sovereign borders?
JOURNALIST: Because you've been aware of this Report for three weeks and you've said you've made 'no me ups'.
SCOTT MORRISON: Sixth of December is when the Department received letter.
SUPPORT STAFF: Okay we're going to have to wrap it up.
Here, the journalist and Minister Morrison argued the date the CID Report arrived at the office of DIBP. The ( Guardian ) journalist is insisting the CID Report has been with the Department for 3 weeks. Minister Morrison arguing his Department had the Report on (6th) December 2013. The AFP/CDPP had to finally establish that fact. There is no material difference in terms of law, however, whether the Report arrived earlier than (6th) December 2013. I'll keep this notation (6th) throughout the Statement of Claim to indicate there is a dispute of this fact.

Then, why was Minister Morrison insisting the CID Report reach the Department on 6 December at that time? My guess is that if the Department and Minister had not taken any action on the Report in two weeks, that might have been more acceptable to the public as an excuse.

WHO'S BEHIND THE CID REPORT

I think, in seg009.txt, another journalist raised very notable question:

=>
SUPPORT STAFF: Okay we're going to have to wrap it up.
JOURNALIST: I'm just going to take question. Did you take the decision to do disband the independent advisory group, you know, it might have been put through Report to the government?

We all know the CID Report has been very thorough and professional in respect of human rights and medical rights. How is it possible that Dr Sanggaran would have been able to collect data, analyse them, and compile that Report within two months? Other doctors like Grant Ferguson at Christmas Island, whilst able to supply some data, would have been too busy taking care of UMAs.

My guess is that DeHAG/IHAG, together with other capable hands, may also have been involved in compiling that Report, where Dr Sanggaran would have been central and the envoy roles as data collector. Remember, the Christmas Island Detention Centre was closed to outsiders, especially human rights and law groups. I suppose those who had lent their hands in compiling the Report deserved to be recognised as heroes. I hope that one day, I'll have the honour to see them and be able to shake hands with those heroes.

As for the moment, though, in so far as the Statement of Claim ( /node/102 ) is concerned, our hero Dr Sanggaran, who had compiled the CID Report, i.e. in accordance with the publicly disclosed evidence.

ANY BRAVE SOULS?

I am inviting those brave souls to join in reconstructing this crucial public evidence at ( /node/113 ) and become the "official" ICC Witnesses :-) :-) :-).
--Cheers, NetIPR.

THE SEGMENT 009.
https://www.facebook.com/netipr.netipr/posts/pfbid027Guzap8AZmdc973wWu47GpWi6ELDJoD4ZMnzZfE8Ttxj15GvNAShXaWFhASpzQz1l

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4-May-2024
REINSTATING S.319 ON SECRETARY CASE

Friends, as of today, I updated paras [ci-cm] regarding the seriousness of Mr Secretary's omission to forward the CID Report (Letter of Concern) to Minister Morrison. The proposed submission reinstates s.319 of Crime Act 1900 NSW, "preventing or intention to prevent and defeat the course of justice," in addition to s.316, "concealing indictable offence."

The reintroduction of s.319 is a significant development, as it is based on the new finding of a 'recklessness' offence that was committed by Mr Secretary. This offence, which I have detailed in [bfa]-[bm], is a serious violation of the law. By omitting to forward the CID Report, Mr Secretary has not only breached s.316 but also s.319 of the Crime Act 1900 NSW. These two codified laws, which are descendants of the common law' perversion of justice', carry significant legal implications.

I have been struggling to find proper words to describe the extent and nature of "recklessness" that is explained in [bfa]-[bm]. The intentionally negligent medical care provided for UMAs is across the rank-n-files of the Abbott LNP Government (2013-2015). Tony Abbott suggested a 48-hour quick medical assessment for UMAs when he was the Opposition leader. As such, that recklessness is "entrenched" ( politically entrenched ) within the Abbott/Morrison LNP government. Obviously, I cannot address that "entrenched recklessness" in this report, but I identified it as such.

Friends, please keep visiting the Crimes of Secretary page ( /node/102 ) now and then. Also, please help build public evidence on ( /node/113).
--Cheers, NetIPR

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13-Apr-2024
TIGHTROPE-WALK FOR MR MORRISON

Friends, on evaluating the analysis and pieces of evidence so far at "Crimes of Secretary of DIBP", the first part of the allegation, "wilfully omitted to inform/forward CID Report (Letter of Concern) to Minister Morrison", has come into its form. As we all know, Australian criminal law requires proof beyond a doubt of two elements, i.e. physical (actus reus) and fault (mens rea), for a successful prosecution of criminal conduct. We now have met both requirements in paragraph [ar] for actus reus and [ch] the mens rea. The Immigration Department received the CID Report on (6th) December 2013, which the Minister publicly stated. The fact that the Minister's office didn't receive a copy, nor the Minister did not "know" any details of the CID Report, has also been in public statements. (Listen to the Segment 008 of Audio/Text transcript at node/113).

==>
MJOURNALIST: [Inaudible => Minister, you conceded in this press conference that you've had this letter signed by 15 doctors.]

SCOTT MORRISON: No I didn't concede that. I said I'd been advised that the letter existed.

MJOURNALIST: [Inaudible => Nonetheless, I contacted your office yesterday afternoon, and I put in multiple phone calls, emails, and text messages to your media advisor, and you have not yet commented on it until this afternoon.]

SCOTT MORRISON: No, what you were told last night is that we hadn't received the letter. And we had not received the letter. The Minister's office was not provided with a copy of the letter because…

MINISTER MORRISON ON TIGHTROPE WALKING

But how ? How would such serious medical damages to UMA, the first-hand written report made by doctors, have to be "re-examined"? And the Minister would not "know"? We—the general public—can immediately suspect the Minister and Mr Secretary staging up a planned
cover-up." But I would rather not adduce any such suspicion to the evidence to put in the Statement of Claim. I must stick to publicly available statements as confirmed, publicly disclosed pieces of evidence.

At the court of law, however, Mr Secretary and Minister Morrison will have been questioned on "how much or which way" the Minister knows about CID Report. The lawyers always love to do gritty and in-depth questionings -- especially on intriguing ones like this -- and Minister Morrison's position would be on the tightrope. For any answer deviating from the publicly stated position, Minister Morrison will fall into being the accomplice of that crime.

EVIDENCE ON THIS CASE: ROLE OF PUBLIC

The press release by OSB on 20 December 2013, the video report by Guardian David Marr, and their copy of the entire audio record have been very important to this case. At the moment, I am planning for the opportunity for all activists and the general public to be meaningfully engaged in this action. Do keep watch on this space.

-- Cheers, NetIPR

CRIMES OF SECRETARY OF DIBP
https://www.aus4iccwitness.org/node/102

RECONSTITUTED TRANSCRIPT OF OSB PRESS-BRIEFING ON 20-DEC-2013
https://www.aus4iccwitness.org/node/113

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8-Apr-2024
HOW THE LAW WILL CATCH THE CHEAT-CRIMES OF SECRETARY:

Friends, at the OSB Press Briefing on 20-Dec-2013, Minister Morrison told reporters that the DIBP and IHMS were looking into "veracity" of claims made by CID Report (Letter of Concern) that signed by 15 doctors. The exact words from the Minister is as follows:

"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)

We've got to remember that it was on 20th December, just a week before Christmas, and the LNP knows, and the Minister knows, that this issue of "CID Report" will not be raised by anybody ever again.

Then again, the CID Report has been in the hands of Mr Secretary and DIBP for about two to three weeks. Why ??--i.e. official position! :-) :-) -- Mr Secretary didn't inform Minister Morrison about the serious medical issues? The official reply would be that Mr Secretary and IHMS personnel were "looking into" the veracity of damage and liabilities claims in the CID Report. The press cannot question Mr Secretary, the public servant, and the IHMS, a private company, on this "looking into" matter. But, we've all suspected that that has been an excuse by the LNP government for taking no meaningful action regarding the CID Report.

LAW WILL NOT TOLERATE THE CHEAT

Friends, I have updated the "Crimes of Secretary of DIBP" page today, and at paras [cf]-[cg], how the law may deal with such a cheat.

->[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.

Do browse on pages of Crimes of Secretary of DIBP(2011-2014) from time to time.
--Cheers, NetIPR.

https://www.aus4iccwitness.org/node/113

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22-Feb-2024
LEGAL ROPE TIGHTENING AROUND MR MORRISON

Friends, I have added new paragraphs [aq] to [at] in the draft statement of claim aiming to submit to AFP/CDPP at completion. Paragraph [aq] is the chronology of events related to the CID Report in November-December 2013. From the reconstituted transcript of the OSB press briefing and other Guardian reports, I listed out 5-points on publicly available evidence supporting Mr Secretary covered up the CID Report (Letter of Concern):

(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.

Any submission sent to the court must be based on factual evidence. Myself as a member of the public who has no means and no right to extract any evidence in some other ways, I rely on the factual evidence that is disclosed to the public. Facts (1-5) served for that purpose.

MR MORRISON IN TIGHT LEGAL SPOT

These facts (1-5) will inevitably put former Minister Morrison in a tight legal spot. Minister Morrison cannot alter nor retract what he had said on 20 December 2013. Doing so would bring him down to having the accomplice role in the covering up crime of Mr Secretary.

There's a saying, "A politician can talk out a dead-fish swim". Certainly, but not in this instance, so to speak!

Friends, do visit the draft page from time to time.
-- Cheers, NetIPR.

CRIMES OF SECRETARY OF DIBP (2011-2014)
https://www.aus4iccwitness.org/node/102

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27-Jan-2024
CID REPORT--MINIATURE OF MONSTER OFFSHORE CRIME

Friends, as a legal layperson, I would never be as good as a professional criminal lawyer in assessing crimes. That is because we -- the laypersons -- think a crime and breach of law must have physical (visible) damage. Take the crime of common assault, for example. To our ordinary thinking, a person threatens you with loud words; he approaches in an aggressive manner towards you, and then he raises his fists. Then he punches you in your face, and you have a broken nose, needing to attend the clinics. To me, only at the last stage of having a broken nose and needing to attend the clinics did the crime of common assault happen to occur. Of course, not quite so for professional lawyers. For experienced lawyers, these incidents can also be claimed as valid assault charges:

-> Spitting on a person;
-> Threatening to harm;
-> Hitting, punching or kicking another person (without causing) bodily harm.

For ordinary persons like us, when a breach of law causes damage, such damage must be "visible" and "exemplary". In other words, we ordinary people see laws and crimes in a clear black-and-white form. That'd be the underlying reason I was starting to look into offshore deaths in 2019 as possible crimes.

BLATANT BREACHES AND EXEMPLARY DAMAGES

Anyway, my approach with "some incompetence in detailed laws" may have advantages in focusing on blatant breaches of law that caused exemplary damages. Let's say, for example, the case of Faysal Ishak Ahmed. Therefore, I'd reckon that if a case can be made out at the Court, all the proofs of breach and damages are already at high thresholds, and the conviction is assured. Let us hope this is the case for the Secretary. Now, to the listing of the pieces of evidence in the CID Report.

If we look at the CID Report in detail, it reflects what happened at the offshore detention centres in the next 5-years. The detention administrators are over-writing doctors' referrals, delays, and refusals of medical care for UMAs. Do note here because all UMAs on the mainland are under detention by law ( Migration Act, Sect 189(1)), all those delays and refusals that take place at Christmas Island Detention Centre will attract Division 274 Torture Law of Criminal Code Act 1995 (Cth).

Also note that in examining the Secretary's misconduct in public office, our focus is on the cover-up of crimes -- not the crimes themselves -- that took place at Christmas Island. I shall, therefore, highlight this point in the Statement of Claim in the CID Report:

-> 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.

ON CASES OF MEDICAL TRANSFER

In Sections 1.3.3 & 1.3.5 of the CID Report, 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 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 CID Report 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.

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 prisoners. This incidence is a common law offence and also attracts torture law.

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.

The doctors who had to sign off patients with 5-minute interviews may also be liable for breach of common law contract/tort. The doctors and IHMS are required to examine the UMA patients according to "HIA Form 26, `Instructions for medical and radiological examination of Australia visa applicants`". As we have seen in the previous posting, to avoid common law contract/tort liabilities, the examining doctor should:

-> 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.

Therefore, the CID Report 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 CID Report.

-- Cheers, NetIPR.

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21-Jan-2024
TRACING CID REPORT, DOCTOR-PATIENT CONTRACT/TORT

Friends, I am now examining the details of the Christmas Island Medical Officer's Letter of Concern, "CID Report", dated November 2013 [#5]. The first important piece of information is the exact date for the completion of the CID report, which I assumed (remember, I cannot ask the author, but AFP/CDPP would) to be the 3rd or 4th week of November 2013. It follows that by early December 2013, through the management of IHMS, that report would have reached the Secretary of DIBP.

The question of how the IHMS management communicated the CID Report to the Secretary is legally charged. We noted that the management of IHMS asked the Christmas Island doctors to provide a report outlining the concerns regarding UMAs' healthcare. Having received that report, the onus is on the management of IHMS to properly communicate to the Secretary, reflecting the seriousness of the content. Failure to do so will cause the management of IHMS to be liable for breach of DIBP/IHMS contractual duty, the accessory, or even cover-up of the crime. The precise dates, the personnel involved and the manner in which the report reached the Secretary of DIBP will be important, and we must ask AFP/CDPP to exhaust these.

As for what happened after the CID Report was handed to the management of IHMS? For that, we can only guess from the report. In fact, the report stated:

"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."

Therefore, by 1st week of December 2013 -- when no response came back from IHMS management -- the doctors would have reported matters to the AHPRA, and the contents of the CID Report likely to reach the members of DeHAG/IHAG. AHPRA stands for Australian Health Practitioner Registration Authority.

DOCTOR'S ETHICAL RESPONSIBILITY, THE LEGAL DUTY
AND CONTRACT/TORT LIABILITIES

When we look as far back as May-2021 [#6], we were trying to understand the linkage and inter-connections between a prvider-doctor's ethical code of conduct, the provider-IHMS's contractual duty and Commonwealth's non-delegable duty of care as regards UMA patients. Based on that understanding, we examined further in June-2022 [#7] the nature and contents of a doctor's legal duty that arises from treating a patient in a Doctor-Patient Contract in the common law. We now know that a doctor's legal duty has arisen from common law, for which any breach of that duty can create both civil and criminal liabilities across all levels of providers (Commonwealth, IHMS and doctors). Such medical-related legal duty cannot be over-written by commercial contract (i.e. IHMS employment contract) or government regulations (e.g. DIBP/IHMS directives ).

In Australia, as in the UK, people are much more familiar with medico-legal tort cases that arise from doctors' medical negligence. When considering medical negligence, the contract and tort are the same in defining a doctor's legal duty. In "Mules v Ferguson [2014] QSC 51", the presiding judge Henry said:

"[36] The duty owed to the plaintiff by her doctor was effectively the same in contract and tort."

The contents of duty, as in that case, were listed in some detail in [41] as:

"By way of particulars thereof it was pleaded the defendant
(a) Failed to obtain a complete history from the plaintiff;
(b) Failed to perform any or any adequate clinical examinations;
(c) Failed to recognise the significance of the plaintiff's deteriorating clinical features;
(d) Failed to recognise that the plaintiff's clinical features were deviating from those of a persistent [illness] condition;
(e) Failed to refer the plaintiff for further assessment in circumstances where the result of the CT scan ... did not sufficiently explain why the plaintiff was suffering from the symptoms reported;
(f) Failed to appropriately refer the plaintiff either to a private neurologist or general physician or to a hospital emergency department for urgent assessment."

In fact, there can be numerous possibilities for the contents of such duty, which depend on practical circumstances. We can see from above (a) & (b) that a doctor failing to obtain a complete health history from a patient and perform adequate clinical examination on the patient created legal liability.

Now, under rapid processing with a 48-hour turn-around target, the doctors at Christmas Island were forced to examine (do a Health Induction Assessment) the UMA patients at the rate of 5-min per person. The Christmas Island Doctor's concern about legal liabilities is not without foundation.

Friends, I started uploading the "Statement of Claim" for the Secretary. Do keep checking up on updates at this site.
--Cheers, NetIPR.

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4-Jan-2024
"RAPID PROCESSING" IN CONTEXTUAL DESCRIPTIONS

Friends, as I start looking into the evidence regarding the common law offence of misconduct in public office by the Secretary of DIBP(2011-2014), the word "rapid processing" frequently come up in our discussions. This word, "rapid processing", has been used in the CID Report [#5] primarily to describe the DIBP and IHMS pressured doctors at Christmas Island Detention Centre to speed up the initial health assessment for UMAs. At some point, the DIBP/IHMS pushed the doctors to complete the initial health induction assessment for UMAs with a 48-hour turnaround target. The authors of the CID Report used the word "rapid processing" in medico-legal contexts. Following the CID Report, I have also used the word "rapid processing" in my discussion re: Crimes of Secretary of DIBP. I have also seen the use of "rapid processing" in public media and government reports in broader political contexts. As I am preparing to submit the analysis report (completed) and statement (in preparation) to the Australian Federal Police and Commonwealth Director of Public Prosecutions, it is now appropriate to refine the language used in the communications.

The fact that "rapid processing" is being used loosely in broader political discussions raised a question as to what exactly that word referred to. Are the words "rapid processing", "accelerated processing", "48 hours turnaround target", "fast-track assessment", and "enhanced screening/processing" have the same meaning? How did these concepts and practices originate? Are all these types of asylum-processing being lawful or approved by the Parliament? I'll attempt to answer these questions. Surely, this is the task of a political detective dog; one needs to trace clues as far back as the 2009-2012 era.

MYTHS ABOUT "RAPID PROCESSING"

The CID Report pointed to the emergence of "rapid processing" as:

"1.2.1. Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 has led to the development of 'rapid processing' of new arrivals to CI within brief, nominated time frames to allow for expedited transfer to offshore facilities at Manus Island and Nauru."

The Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2011 [#1], i.e. the "2012 Offshore Processing Bill", was first introduced in September 2011 by Rudd/Gillard Labour Government. The Rudd/Gillard Labour government, at that time, was facing an unprecedented large number of asylum boat arrivals. At the same time, the government was constantly facing legal challenges from refugee lawyers at the High Court. There was a rigorous year-long debate in the Parliament about this bill, which finally became a law in August 2012 [#1].

The purpose of this bill is for the Parliament to grant the Executive sufficient powers to implement offshore processing arrangements (See detailed explanatory memorandum). Some salient features of the Offshore Processing Bill 2012:

=> Item 12 Subsection 189(3)
57. This amendment omits 'may detain' and substitutes it with 'must detain' in subsection 189(3);

=> Section 198AB Offshore processing country
118.New subsection 198AB(3) provides that in considering the national interest for the purposes of subsection 198AB(2), the Minister:·must have regard to whether or not the country has given Australia assurances to the effect that: the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol ;

=> Section 198AD Taking offshore entry persons to an offshore processing country
140. New subsection 198AD(2) provides that an officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to an offshore processing country.
141. If it is not appropriate to take an offshore entry person to an offshore processing country, having regard to their personal circumstances, the person's case would be referred to the Minister for consideration of the exercise of his or her personal power under section 198AE;

=> Not in immigration detention
155. New subsection 198AD(11) provides that an offshore entry person who is being dealt with under subsection 198AD(3) is taken not to be in immigration detention (as defined in subsection 5(1) of the Migration Act).

According to the 2012 Offshore Processing Bill, an Officer must (no exception) detain the UMA. Then, as soon as reasonably practicable, the officer must take the UMA to an offshore processing country (exceptions are allowed).

There are no such provisions in the 2012 Offshore Processing Bill for an officer (Executive Government) to take a UMA to an offshore processing country within a specified time frame. The DIBP setting out the 48-hour target to complete health induction assessment for UMA is outside the scope of the 2012 Offshore Processing Bill. In other words, the DIBP's directive to IHMS and the doctors to complete health induction assessments within 48 hours has not been authorised by the 2012 Offshore Processing Bill. As such, there will be criminal attributions directed at the executive level. (I shall not be raising this matter within the current case of the Secretary of DIBP under consideration, though).

In sum, in the CID Report and also in my discussions, the word "rapid processing" is used in medico-legal contexts. It referred to the unlawful practice of DIBP/IHMS, forcing the doctors to complete health induction assessments for UMAs in 48 hours.

On the one hand, statutory provisions exist for an expedited transfer of UMAs within the 2012 Offshore Processing Bill. That "expedited transfer" might as well be referred to as "rapid processing", which has been a lawful exercise of the Executive powers.

Friends, the year 2023 had been a significant year for us as we -- refugee activists in Australia -- were able to encroached into the common law territory. It is the highlight of the year, perhaps. Looks like another hectic year of 2024 has been greeting us. Happy New Year to you all. -- Cheers, NetIPR.

REFERENCES

[#1] https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Se...
[#5] The Christmas Island Medical Officers Letter of Concern (CID Report)
http://www.aus4iccwitness.org/evidence/20131101_d4r-ci-letter.pdf