Legal Challenge to the Legislation!

[lordbyron]

Good idea about this section, Banjo.

For those on this board who are likely to be the subject of Centrelink action, including Banjo and Ruddthedudd, a suggestion is to fight the Centrelink decision all the way. Move back to Australia if necessary, and rent an apartment or room for $130, entitling you to $60 rent assistance. And then spend all of your time and energy mounting legal battles with Centrelink and the Government, trying to overturn their decisions, and trying to expand the amount of time you can spend in Asia. You will get free Legal Aid because you are a pensioner, and there are "pro bono" lawyers who will act on your behalf for free. And you will be satisfying the requirement to "engage in social participation in Australia", enhancing your residency qualification status.

Banjo sent some emails to some "pro bono" lawyers at DLA Phillips Fox, about the "Shadow Report on Australia's implementation of the Convention on the Rights of Persons with Disabilities (CRPD). " Whatever happened to that, Banjo?

www.disabilityrightsnow.org.au/node/15

www.dlaphillipsfox.com/people/368/PatrickNicolas

I suggest Banjo and Ruddthedudd, and others who are interested, should get in touch with these lawyers at DLA Phillips Fox now, and take their cases through the courts, all the way to the top.

And when you get to the very top, the High Court, you can challenge the legislation on the grounds that it conflicts with the UN Charter on the Rights of People with Disabilities:

The United Nations Convention on the Rights of Persons with Disabilities, signed by Australia on 30th of March 2007, and ratified by the Australian Parliament on 17th of July 2008, which reads in part:

"Article 18: Liberty of movement and nationality
1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.."


I am not a legal expert, but if you look at the response of the Senate Committee, in their report, about the Human Rights Issues, it was a fairly weak response that said that the UN Charter does not apply because Australia's social security system is residence based rather than based on contributions, like in European countries.

I suggest that the witnesses at the Senate Committee Hearing who raised this issue of Human Rights, may also be able to help in the legal challenges:

Sibylle Kaczorek of the National Ethnic Disability Alliance

www.neda.org.au/

Kate Beaumont, National Welfare Rights Network

www.welfarerights.org.au/default.aspx


We are talking here about taking the entire Australian Government and Parliament to court, through the court system up to the High Court, and then onwards to the United Nations and the International Court of Justice.

Quite simply, if the Australian Government and Parliament did not want to respect the human rights of disabled people, including Article 18, then they should never have signed the UN Convention in the first place.

I believe Ms Michalina Stawyskyj (Branch Manager, International Branch) and Mr Philip Moufarrige (Section Manager, International Policy), who are known to read and monitor this discussion board, will be delighted to learn about this new opportunity for Disability Support Pensioners to engage in social participation.

[Banjo]

Thanks LB, banker was actually the instigator of the new board, a good member who does a lot of valuable work behind the scenes.

We must certainly be prepared for what happens next year but what has to be considered is:
i) Do we break the new regulations and then appeal any penalty?
ii) Do we request permission to leave then appeal the decision if it's denied?

The first is certainly more dramatic, I've been there, we lose our pension and are then forced to apply for NewStart (as an alternative to starving) which means we're committed to the work assessment system while we reapply for our pensions. And the law is quite specific about job seekers leaving the country.

The second is the easier path, we retain our pensions, get to leave the country under whatever restrictions come into force and have more control over the situation.

The CentrelinkLaw forum as well as the official Centrelink site itself explains the appeals process. I've been to the Administrative Appeals Tribunal years ago when my original DSP application was denied. I found it an informal and sympathetic process.
Years before I was involved in a complaint against Centrelink when they came to my work and demanded my work and tax records when they were investigating a woman I was in a relationship with.
For the life of me I can't remember who we took the complaint to, (memory retention problems along with other disabilities!) but I ended up receiving a grudging apology.

Still, my point is on neither occasion did I use a lawyer, the first time I took a social worker I knew personally and the second a girl from Welfare Rights.
I personally distrust lawyers, (I never heard back from DLA-PF) and will only go near them as a last resort. I would need to talk to one with a genuine feeling of compassion for the underdog, and believe me they are few and far between.

I'd be pleased to hear Michalina and Phil were reading the board although I'll admit I'm sceptical.
To be on the safe side though I've never allowed personal abuse of Centrelink staff or unfounded allegations of unfairness to be published here.
I've never agreed with that being done from the safety and anonymity of behind a keyboard, if people have that sort of thing to say it should be face to face.

(Do you see that Michelina? Look upon poor old banjo kindly next year if you're judging us all individually re leaving the country). ;D

[Banjo]

"Letting us do that would be centrelink contradicting itself?"

And why should they change at this stage of the game?
We'd probably be placed in a complex process of having to reapply to become Australians again while receiving some sort of refugee or immigrant allowance.
And regardless of those vile, racist emails doing the rounds, it ain't no $57,000 a year mate.

[Banjo]

What are the women like?

[Banjo]

I've had a re think regarding DLA Phillips Fox and will attempt to get in touch with them again.

[Banker]

Nov 28, 2010 8:52:55 GMT 7 Banjo said:

What are the women like?

FU@$%%^&G Ugly. ;D

[slick]

I used to work at Social Security and when people went mad on the piss or whatever,they got an Australian Public Service Pension at 85% of full time wage and that was payable overseas

[Banjo]

Welcome to the board slick.
Yeah, I worked for the government (state) back in the day and they do get nice pensions.
People with superannuation keep pointing out to me that they can't get Centrelink pensions but don't like being reminded of the tax breaks and taxpayer funded top up they received that allows them to enjoy THEIR retirement anywhere they like.

[rodcourt49]

Nov 28, 2010 8:24:58 GMT 7 @ruddthedudd said:

Now, just a thought here but, if centrelink suspend our pensions for being non-resident then how can we sign up for newstart as that is also residence based. Letting us do that would be centrelink contradicting itself?

..and to take it another step further..in my case I have a Worker's Compensation Case pending and Centrelink are kindly supporting me in the interim. Once the case has been finalised I have been told I must repay up to 75% of the funds they have paid me from the beginning to when the court awards me whatever amount.
I have no real idea when my case will be heard nor finalised, but saying for instance it is sometime late in 2011 and let's say the legislation has been passed and enacted and we must all return or be cut..what then are the legal percussions with Centrelink recovering their money? Bearing in mind I am unable to return as I will not have the funds to do so and my country has virtually cut me off and left me stranded.
Interesting scenario developing in my case as once the benefit ceases does my legal obligation to repay cease too?
PS. I hope all you fellow DSPoverseas have an enjoyable Christmas and New Year. ROD.

[Banjo]

Sorry, I missed Ruddy's post, let me explain how it works....
You're not suspended for being a non-resident, you're cut off.
The difference means you are not a pensioner under suspension, you are NOT a pensioner.
You cannot apply for a resident based allowance like NewStart until you become a resident again.
Now THAT procedure will be interesting.

I suspect that C'link will be watching your case carefully Rod, they may even have first bite of the money before you even see it.
My suggestion would be to come with some sort of long term repayment with them rather than in one lump sum.
They can hunt you down for ever and ever, regardless of whether your on the pension or not. see my topic on debt repayment.

[Banker]

I have been down this road.
Your Lawyer will advise you best.

Once you have settlement C/L will have contacted your Lawyer and any money owing to C/L will be taken out before you ever get your hands on it, same with Medicare all medical if any that has been caused by your accident will be paid back to Medicare.

So before you agree on a settlement ask your Lawyer what cost will be coming out of your claim and How Much you will get in your hands.

Cheers.
Banker

[Banjo]

Watch out for tax as well, loss of future earnings is taxable, pain and suffering isn't. (Or it wasn't 12 years ago).

[rodcourt49]

thanks fellas for the good advice..i will bear it in mind