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Criminality and “Code of Conduct” – The #casa version

The letter by  Richard Harding, emeritus professor of law in today’s Australian reminds us of a series of occurrences by #casa of movement from identified criminality to code of conduct breaches.

Richard Harding says: “….It should be remembered that the code of conduct cannot override the ordinary criminal law…..”

Examples include that of Richard Rudd, where accusations were made of an offence under the Civil Aviation Act and it’s regulations. These were supported by false statements by #casa employees.

A Wilga aircraft was involved in the accusations.

Wilga Aircraft with one-piece elevator

Richard said today he wrote to Acting CEO Shane Carmody, this month saying in part:

Prior to you signing off (and witnessed) on 15 May 2009, an “Authority to Obtain Information” for the contracted investigation into the activities of CAsA personnel by G. Birrell / ACkTiF Solutions you would have been aware that the statement in para. 1 of that document was untrue.

You were also a recipient 17 April 2009 of an answering email to me from then in-coming CEO McCormick following my letter to then CEO B. Byron stating quite clearly that for CAsA employees Larard Retski and Clark “… that I have lodged documents with the AFP with a view to criminal charges being laid…for perjury, conspiring to pervert the course of justice and misfeasance in public office.”

He asks Carmody:

On the basis of Sec. 3 (2) (a) relevant to the ‘alteration’, ie..the change from criminal to code; and Sec 4 (1) (a) applicable to myself as ’an affected party’ to that downgrade decision, I again request from you the reasoning’s for that decision under the ADJR Act 1977.

Richard has had a series of investigations undertaken by #casa, which lead to issues of criminality by #casa officers being identified.

Richard even went to the trouble of travelling from Cairns to Canberra to voice his concerns. #casa made un-founded allegations which have never been cleared up, at the time following an article in the Cairns Post.

But these were not “untruths” but discrepant statements a #casa senior staffer wrote in an e-mail.

Richard requested #casa deal with the matters of criminality identified in the independent investigations as identified by ICC Michael Hart and later by Investigator Birrell.

A letter to Richard, from the current acting #casa CEO Shane Carmody in May 2009, indicates an investigation to take place and advising of this:

Today’s letter to the Australian, from the Western Australian University Professor Richard Harding, emeritus professor of law , shows the degree to which the use of “Code of Conduct” vs. “Criminality offences” have been improperly used by #casa.

Richard’s “grenade letter” to CEO Byron in …. [produced below] demonstrates that the reply by “Shane Carmody” intended to “pervert the course of justice”.

This is the real base to the professor’s letter today, that a crime is a crime and cannot be negated by a decision to place it as a “Code of Conduct” violation. In the meantime, #casa continue the type of practice identified by Richard Rudd and with impunity.

I believe Shane Carmody does not deserve the position of “Acting CEO” of #casa and that immediate action is required by the #casa Board to stamp out this practice.

That a Code of Conduct is invoked, does not change real criminality.

Letter to the Editor in today’s Australian:

Whenever a question arises as to whether a minister has made an unjustified claim for expenses, it is usually characterised in terms of whether he or she has breached the ministerial code of conduct. This is the case with Health Minister Sussan Ley.

It should be remembered that the code of conduct cannot override the ordinary criminal law.

If the claimant either personally made a claim, or allowed one to be made on his or her behalf, aware that it was false and with intent to defraud, and as a consequence obtained payment of a sum of money, prima facie he or she has committed the offence of obtaining by false pretences.

In these circumstances, it is not enough for a prime minister to establish an inquiry. The more rigorous standards of the criminal law of the land should always be met in such cases, and any inquiry should address this question.

Richard Harding, emeritus professor of law, University of Western Australia

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