Irrelevant Considerations

Judicial Review of Improper Purposes and Irrelevant Considerations

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G. D. S. Taylor*

Control of the abuse of discretion is arguably the central and most controversial part of judicial review of administrative action. Within abuse of discretion, review of improper purposes is probably the most difficult ground to define and expound. It is not seen easily as a separate and unique concept. There is no clear approach to it as a mechanism of review. On the other hand, review for the consideration of irrelevant factors appears to offer greater certainty. There has been, therefore, a tendency to bring both grounds together in terms of the latter. As a result, the line between improper purposes and irrelevant considerations has become blurred, and often they are seen as identical. A number of questions arise from this. Are the two grounds of review different? What is their content? How are they to be manipulated? Is the apparently expansive import of Padfield v. Minister of Agriculture, Fisheries and Food a significant development? If so, is it a shift in the right direction? Problems in review for abuse of discretion stem from several sources. The problems compound one another in a context of limited legal structures and judicial analysis. Abuse of discretion is too easily regarded as a “grab-bag” from which a ground of review can always be found to suit the conclusion sought to be reached on the merits. Judicial review is a flexible tool but each ground has a limited use. “Improper purposes” and “irrelevant factors” exist as distinct phrases because each represents a separate mode of analysis which is particularly useful in a given situation.

Footnotes

* LL.M. (Well.), Ph.D. (Cantab.); Barrister and solicitor of the Supreme Court of New Zealand; Senior Lecturer in Law at Monash University, Melbourne, Australia.

Terms	Definitions
Padfield's, or Padfield v Minister of Agriculture, Fisheries & Food	Per Lord Reid: "...[I]f the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."
Fiordland's, or Fiordland Venision Ltd. v Minister of Agriculture	Per Justice Richardson: "...[W]hile the decision on the facts is for the Minister alone, he must properly direct himself as to the test he is to apply, he must take all relevant considerations into account and he must exclude extraneous considerations."
Bate's, or Wahrliche v Bate	Per Justice McGechan: 'There is much to be said for a purposive approach. To adopt some phrases of Cooke P...in Northern Milk Ltd. v Northland Milk Vendors Association..."a very real problem has certainly not been expressly provided for and possibly not even foreseen." In the result "...the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function which rightly belongs to Parliament. The Courts can in a sense fill gaps in the Act but only in order to make the Act work as Parliament would have intended."'
On considerations in CREEDNZ's, or CREEDNZ v Governor-General	Per Justice Cooke: "...[I]t is only when a statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground...It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people including the Court itself, would have taken into account if they had to make the decision. "...[T]he more general and the more obviously important the consideration, the readier the Court must be to hold that Parliament must have meant it to be taken into account."
On public interest in CREEDNZ's, or CREEDNZ v Governor-General	Per Justice Cooke: "Under the Judicature Amendment Act 1972 and the administrative law principles developed in recent decades the Courts must be concerned from time to time, when governmental action is challenged, with issues of public interest extending beyond the interests of the two sides to the litigation."
Car Haulaways', or Attorney-General v Car Haulaways (NZ) Ltd.	Per Justice Haslam: 'The Legislature prescribed as the first factor a yardstick of indeterminate length, viz., "The interests of the public generally".'
Justice Cooke in Ashby's, or Ashby v Minister of Immigration	Justice Cooke noted "the difference between obligatory considerations (i.e. those which the Act expressly or impliedly requires the Minister to take into account) and permissible considerations (i.e. those which can properly be taken into account but do not have to be)."
Justice Richardson in Ashby's, or Ashby v Minister of Immigration	"The national interest does not readily lend itself to compartmentalisation of the amalgam of considerations involved, and the isolation of particular aspects of foreign and/or domestic policies as obligatory considerations which must be weighed in the balance as distinct from permissible considerations..."

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S120 / Undervalued transactions/ Bankruptcy

BANKRUPTCY ACT 1966 - SECT 120

Undervalued transactions

Transfers that are void against trustee

             (1)  A transfer of property by a person who later becomes a bankrupt (the transferor ) to another person (the transferee ) is void against the trustee in the transferor's bankruptcy if:

                     (a)  the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and

                     (b)  the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.

Note:          For the application of this section where consideration is given to a third party rather than the transferor, see section 121A.

Exemptions

             (2)  Subsection (1) does not apply to:

                     (a)  a payment of tax payable under a law of the Commonwealth or of a State or Territory; or

                     (b)  a transfer to meet all or part of a liability under a maintenance agreement or a maintenance order; or

                     (c)  a transfer of property under a debt agreement; or

                     (d)  a transfer of property if the transfer is of a kind described in the regulations.

             (3)  Despite subsection (1), a transfer is not void against the trustee if:

                     (a)  in the case of a transfer to a related entity of the transferor:

                              (i)  the transfer took place more than 4 years before the commencement of the bankruptcy; and

                             (ii)  the transferee proves that, at the time of the transfer, the transferor was solvent; or

                     (b)  in any other case:

                              (i)  the transfer took place more than 2 years before the commencement of the bankruptcy; and

                             (ii)  the transferee proves that, at the time of the transfer, the transferor was solvent.

Rebuttable presumption of insolvency

          (3A)  For the purposes of subsection (3), a rebuttable presumption arises that the transferor was insolvent at the time of the transfer if it is established that the transferor:

                     (a)  had not, in respect of that time, kept such books, accounts and records as are usual and proper in relation to the business carried on by the transferor and as sufficiently disclose the transferor's business transactions and financial position; or

                     (b)  having kept such books, accounts and records, has not preserved them.

Refund of consideration

             (4)  The trustee must pay to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee.

What is not consideration

             (5)  For the purposes of subsections (1) and (4), the following have no value as consideration:

                     (a)  the fact that the transferee is related to the transferor;

                     (b)  if the transferee is the spouse or de facto partner of the transferor--the transferee making a deed in favour of the transferor;

                     (c)  the transferee's promise to marry, or to become the de facto partner of, the transferor;

                     (d)  the transferee's love or affection for the transferor;

                     (e)  if the transferee is the spouse, or a former spouse, of the transferor--the transferee granting the transferor a right to live at the transferred property, unless the grant relates to a transfer or settlement of property, or an agreement, under the Family Law Act 1975 ;

                      (f)  if the transferee is a former de facto partner of the transferor--the transferee granting the transferor a right to live at the transferred property, unless the grant relates to a transfer or settlement of property, or an agreement, under the Family Law Act 1975 .

Protection of successors in title

             (6)  This section does not affect the rights of a person who acquired property from the transferee in good faith and by giving consideration that was at least as valuable as the market value of the property.

Meaning of transfer of property and market value

             (7)  For the purposes of this section:

                     (a)  transfer of property includes a payment of money; and

                     (b)  a person who does something that results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person; and

                     (c)  the market value of property transferred is its market value at the time of the transfer.

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Justice Michael Adams sues Fairfax/ Colin Winchester

• Justice Michael Adams is suing Fairfax Media in relation to the Colin Winchester murder

• Julia Gillard / Bruce Wilson – AWU Fraud Page
• Comment Policy

Justice Michael Adams is suing Fairfax Media in relation to the Colin Winchester murder

NSW Supreme Court judge Michael Adams is suing Fairfax Media and one of its most senior journalists, Jack Waterford of The Canberra Times, for defamation. It relates to comments made by Mr Waterford in an article that Michael Adams withheld evidence when he was a prosecutor in the 1995 trial of David Eastman who was found guilty of murdering Australian Federal Police Deputy Commissioner Colin Winchester in 1989.
It is not just a standalone defamation proceeding in relation to the claims. There is a judicial inquiry that will start in November headed by Acting Justice Kevin Duggan into the David Eastman murder conviction which will cover at least in part the same issues in the Michael Adams v Fairfax matter. So I do not believe it would be appropriate for the defamation proceeding to go forward until the judicial inquiry has handed down it’s findings.
For some unknown reason the defamation proceedings was first reported in The Australian on Friday (7/6/13) and to my knowledge has not been reported by any Fairfax Media journalists. (Click here to read more)
Background – The Colin Winchester murder
Colin Winchester was an Assistant Commissioner in the Australian Federal Police and commanded the ACT Police which is the community policing component of the AFP responsible for the Australian Capital Territory (Canberra). He was murdered in 1989 outside his house while getting out of his car.
Initially it was thought that the mafia had killed him as he was due to give evidence against a number of them. It was also thought by some that it was corrupt NSW police who might have killed him as corruption in the NSW police was notorious at the time which ultimately led to the 1995 Royal Commission into the New South Wales Police Service.
Some four years later David Eastman who was a former public servant with a history of mental illness was charged and then convicted of Winchester’s murder in 1995. The case against Eastman was a circumstantial one with no direct evidence linking him to the murder and the murder weapon was never found. A lot of the evidence is laid out on the AFP website (click here to read) which of course they do to make out their case as they see it.
An inquiry into David Eastman’s murder conviction will start in November 2013 and will cover his “conviction on 19 grounds, including fitness to plead, forensic evidence, and the  conduct of the prosecution and investigating police.” (Click here to read more)
This post is not about David Eastman’s guilt or innocence but there are a number of things that I find disturbing about David Eastman’s conviction which helps justify why the defamation proceeding should be stayed until the judicial report is handed down.
One is “senior officers and detectives failed to secure the crime scene and tramped all about it, this was an inadequate and seriously compromised case. That’s why so many entertain doubts about the safety of the conviction.” Securing the crime scene is policing 101 and the fact that it was not makes no sense. There would have been 10 or 20 police on the scene very quickly yet none of them thought to secure the crime scene? Unless of course they wanted to compromise any evidence at the scene then it makes sense.
One of the key pieces of evidence that helped convict Eastman was gunshot residue found in the boot of his car that matched that used in the murder. The expert who said this was “Robert Barnes, who had been in the Victorian Forensic Science unit. Barnes gave different evidence at different times, often without explaining how or why he had changed his mind. He changed his mind about the type of gun used, whether a silencer was used, whether the rifle barrel (if it was a rifle) was  shortened, and about what the residue tended to prove. Like detectives he has always assumed, without evidence, that cartridges found, trampled in mud near Winchester’s car a day or two after the murder, were from the murder weapon.”
“At trial, the jury and defence were not told that Barnes had been recently sacked after Victorian judges and his own scientific colleagues had raised serious concerns about his methodology, his tendency to overstate conclusions, and the fact that, in several critical cases, his overconfident and dogmatic evidence had been shown to be wrong.” (Click here to read more) In a case like this you would expect the prosecution to use the most credible expert available, not someone like Barnes who had been sacked because judges and his own colleagues thought he had no credibility. Why did the police use an expert who had no credibility?
On the face of it the prosecution and the investigating police in the Colin Winchester murder have plenty of questions they need to answer and that is why a judicial inquiry was ordered last year by Justice Marshall. The inquiry was meant to start in March this year but has been held up because of the scandalous conduct of the ACT Director of Public Prosecutions, Jon White, who objected to three barristers that were meant to represent David Eastman. Jon White left it until a couple of weeks before the inquiries scheduled start date of the 4th March 2013 to make the objections even though he had plenty of time beforehand and it was clearly designed to disrupt the inquiry and it’s ability to get to the truth. (Click here to read more)
Justice Steven Rares
Justice Rares is hearing the defamation matter in the Federal Court of Australia and I do not believe it is an accident. He seems to be the go to man when a dodgy judgement is needed. I question why he is even hearing the matter given he is already involved in the David Eastman matter.
David Eastman was given a life sentence without parole but can “apply to the Attorney-General for release on licence after serving 10 years” which he has done three times. The latest being last year which was rejected and Eastman appealed which was heard by ACT Supreme Court Acting Justice Steven Rares. Rares ordered the ACT government to review its decision which they have dragged their feet. After getting a hurry up in court a few weeks ago the ACT government have said they will do this by the 30th June this year. (Click here to read more) Justice Rares has listed the matter again for the 4th July this year, so even he has doubts about what the ACT government will or won’t do.
With Rares already involved in the Eastman matter, will he bring a fair and open mind to the defamation proceedings? I doubt it. The irony is not lost on me that this site has written many times about the criminal conduct of Justice Rares and he is the one hearing a defamation case instituted by a judge.
Defamation
Anyone and everyone could and should sue for defamation if they want to and have the capacity to including judges. In fact I believe judicial officers have an obligation to do so to protect their reputations as well as the courts reputations. Obviously if what people say about judges is true than the judges cannot sue for defamation and that is why I get away with writing what I do.
I make no judgement in the defamation matter, ACD39/2013 Michael Frederick Adams v Jack Waterford & Anor, but surely it has to be stayed until after the David Eastman / Colin Winchester inquiry has concluded. As it currently stands Justice Rares has ordered the respondents file and serve their defences on or before 3rd July 2013 and further directions are listed for the 12th July. Rares seems in a hurry to hear the case. It was only filed by Justice Adams on the 1st of May. Justice Rares should have stayed the matter on his own accord until after the inquiry has finished.
Something as simple as a defamation case has a lot more riding on it than someone’s reputation. The freedom of David Eastman could be influenced by any judgement of Justice Rares if he hears the case before Acting Justice Kevin Duggan hands down his inquiry findings.
We all know the quote “Not only must Justice be done; it must also be seen to be done” R v Sussex Justices, Ex parte McCarthy ([1924]. Maybe David Eastman is guilty but there is enough doubt to suggest that he is possibly not guilty and that it could be a huge travesty of justice that just keeps on going, being aided and abetted by the players involved who have a lot to lose. There is a lot more to come in this matter and I will keep a close eye on it.
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Assassination of Colin Winchester/ Federal Police/ David Eastman

Is this another case of an innocent man who has been set up?
It is common knowledge of Roseanne Catts who was set up by a policeman and then spent considerable amount of time in jail.
It is also common knowledge of the police in the Hunter Valley who were protecting pedophile priests!!!
Has the Federal Attorney Generals department been given information that David Eastman was innocent and instead of exposing this information has made a decision to cover this up and protect it???
Corrupt conduct in Federal Government Department is being protected by the Commonwealth Ombudsman and the Australian Public Service Commissioner Stephen Sedgwick.
What Government Department did David Eastman work for and was this department involved in any way in tipping off the federal Police and helped secure the guilty verdict?
The Insolvency Trustee service used the Federal Police to intimidate me to try to have me stopped from exposing atrocious corrupt conduct in Federal Government Departments... was this a similar occurrence?
Story from Today Tonight........................


The assassination of Australian Federal Police (AFP) assistant commissioner Colin Winchester in the driverway of his Canberra home in 1989 was one of the most high-profile murders in the country.
There were no witnesses and the murder weapon was never found but a disgruntled public servant David Eastman was convicted of Mr Winchester's assassination.
Having served 17 years behind bars, Mr Eastman has now won a judicial inquiry in a bid to clear his name, with the hearings set to begin in November later this year.
More stories from Today Tonight

• Mackay mystery
• Parole mistakes?
• Dawson 'murder mystery'

Veteran Canberra Times journalist Jack Waterford has been covering the Winchester case since the beginning.

"I don't think Eastman was proven guilty beyond any reasonable doubt. Some of the real evidence was before the court and some of the evidence put forward was not properly cross-examined or subject to proper scrutiny," Mr Waterford said.
"I have a real concern that we might have buggered it up."
Mr Waterford is not alone in his beliefs. Retired lawyer Terry O'Donnell, who represented Mr Eastman, says he doesn't believe his ex-client committed the assassination.
"I believe it was a professional hit," Mr O'Donnell said.
He says Mr Eastman was not in the right state-of-mind during his trial.
"There were times during his trail when he was quite clearly so stressed that he was psychotic. There's no doubt about that," he said.
Mr Waterford claims Mr Eastman's mental health should have been raised in court but Mr Eastman forbade his legal counsel from ever doing so. It's believed that his instability was exacerbated by police during the investigation.
More stories from reporter Clare Brady
Forensic expert Robert Barnes was the man who matched gunshot residue from the murder scene to Mr Eastman's blue sedan. It's believed Mr Barnes's findings put Mr Eastman in prison for life.
Mr Barnes's evidence is likely to be put under question in the November inquiry.
"There are some questions about the quality of the investigations done with Victorian expert Robert Barnes. He was put forward as a master in his field when at most he had a second year trade certificate in this field," Mr Waterford said.
In addition, Ben Smith, Mr Eastman's former flat-mate, will give evidence for the first time that he borrowed Mr Eastman's car to go rabbit shooting.
Mr O'Donnell says Mr Smith's evidence could be a game changer.
"Mr Smith has come forward and given a statement to the solicitor and the rifle is presently in the custody of the Supreme Court," he said.
Mr O'Donnell claims the people who killed Mr Winchester are responsible for other unsolved murders around Australia.
Mr Winchester had been double-crossing the mob and using a police informer to crack mafia dope growers while pretending to be on the take, investing in their protection.
Eleven mafia arrests are said to have been a motive to murder the police chief.
The mafia were also said to be responsible for the murder of anti-drugs campaigner Donald Mackay in Griffith in 1977.
Vincenzo Macri, a top Italian prosecutor responsible for putting many of the toughest mafia men behind bars, says the mafia wield power in Australia today.
He warns authorities that ignorance doesn't offer protection. He says there is no question mafia figures are responsible for the death of Mr Winchester.
"The codes of mafia provide for various types of punishment according to the severity of the violation of the codes," Mr Marci said.
"When there is betrayal, the punishment is death."

Whistleblower Protection/ Rob Oakshott/ Federal Parliament

Open and Shut (timminsp@ozemail.com.au)

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Rear guard rumbles over whistleblower protection Posted: 17 Jun 2013 05:52 PM PDT Rob Oakeshott sounded the alarm in Parliament late last night that the mix of years of enthusiasm and prevarication may come to nought unless the whistleblower protection bill progresses in these last two weeks of sittings. Will he be heard? I rise tonight to talk about the Public Interest Disclosure Bill 2013 and trying to progress it over these final two weeks as a matter of priority and urgency. I am increasingly worried that we may not get there, for all the wrong reasons, such as senior executives within government potentially worrying that this is somehow an attack on them, is somehow going to encourage employees in the APS to run some sort of public sector revolution by leaking every single issue that they deal with, and in some way will lead to poorer government. On the contrary, the reason I rise tonight is to say that nothing could be further from the truth and to try and put in place some reminders about the first principles of the importance of whistleblowing reform for best practice within the public sector.... Oakeshott reiterated-if anyone was still wondering-the case for whistleblower protection, noting in addition, revelations in the US about PRISM: That is of great concern and for that reason, as well as all the reasons of best standards within the public sector, we should not put ourselves in the position of just trusting government. We should invest in people as part of being government and by investing in people, through mechanisms like whistleblowing, we are doing the best that we can to minimise corruption and build a culture of a governance standard that taxpayers and Australian citizens quite rightly expect. My call tonight is to urge government to progress the public interest disclosure legislation. Do not let it lapse. This does matter. It is good practice. It sits well alongside existing reforms and it is a good opportunity to progress a long-lasting reform that really does matter

More funny propaganda from Veronique Ingram Adam Toma and ITSA.

Clearly Mark Findlay and Bankruptcy Regulations  are protecting the corrupt conduct at ITSA

 

ITSA's 2013 report on trustee conduct

by Michael Murray | May 31, 2013

ITSA has published its latest review of bankruptcy trustee conduct, saying that justified complaints against Australia's 203 trustees are continuing to fall.

ITSA's quarterly Personal Insolvency Regulator also includes important practice guidance for trustees - on sale of assets, lodging of objections, and dealing with employee entitlements. 

Review of trustee conduct

The number of justified complaints against trustee practitioners has fallen over the last three years.  In the relevant period, ITSA received 329 complaints, of which only 21 [6%] were found to be justified.

In the July 2012 – March 2013 period, a total of 233 registered trustee estates were reviewed/audited by ITSA, with 83 ‘errors’ found in total, the same as previous years (22%).

ITSA also reviewed 431 Part X and section 73 proposals, and attended 85 creditors’ meetings  

ITSA received 329 complaints about registered trustees, of which only 21 [6%] were found to be justified.

These regulatory trends were also identified:

• Requests received to review trustee decisions have decreased during the last three years.
• Requests received to review trustee remuneration increased by 73% during the past year.
• Registration applications received from prospective trustees are the highest since 2009-10, at 11.  An IPA nominee sits on all registration committees.

ITSA contact

ITSA invites trustees to contact ITSA’s Regulation and Enforcement Practice Manager by phone or email to discuss any practice related queries.

Offences

ITSA seems to be active in enforcing compliance with the Bankruptcy Act, dealing with 728 (62%) offences referred from the Official Receiver, 233 (20%) from registered trustees and the remainder from the Official Trustee (100 - 9%). Non-compliance with s 77C or section 77CA or s 139V where persons failed to file a statement of affairs or to provide information and/or produce books was the major ground for referral during the period (and same period last year). A breakdown of the types of referrals shows that 855 (73%) were compliance related offences and 255 (22%) were complex related offences. During the period 130 persons were prosecuted for 174 charges with a fraud value of $3,091,755.

Other practice issues

• Guidance is given on the proper use of the Form 7 statement of claim and proxy form
• Care is required on timing issues in lodging objections to discharge.  While regulation 16.02 allows a document to be filed with the Official Receiver by email, this does not apply to filing an objection to discharge with the Official Receiver.  Section 149G of the Bankruptcy Act provides a ‘contrary intention’ to regulation 16.02 in that the objection only takes effect on the beginning of the day it is entered into the NPII).
• a FEG receipt from DEEWR will continue to be exempt from the realisations charge, and IGPD 2 will be updated shortly to reflect this.

ATO whistleblower in court: ‘they sabotaged my complaints’

by Chris Seage, a tax consultant and former ATO audit manager

Federal

A senior lawyer in the Australian Taxation Office has sensationally claimed that high-ranking senior executive service officers within the bureaucracy sabotaged her whistleblower complaint and demanded she see a psychologist within five weeks of lodging the complaint.

Serene Teffaha, a senior tax technical specialist of 12 years standing, is suing the ATO in the Federal Magistrates Court under the Fair Work Act 2009, alleging eight adverse actions as a result of lodging a whistleblower complaint she was entitled to make under the Public Service Act. The allegations in the court writ, obtained byCrikey, calls into question whether amendments to the public service whistleblower protection laws currently before the parliament are strong enough to protect whistleblowers.

In 2011, Teffaha and four other senior colleagues lodged the whistleblower complaint with David Diment, a first Assistant Commissioner of Taxation, alleging various issues about the conduct of the ATO’s high-profile pursuit of high-wealth individual Australians worth between $100 million and $250 million a year. Some of the issues identified lack of resourcing in the area to handle the large volume of objections to the assessments as a result of audit action and the lack of technical knowledge held by ATO staff to properly deal with complex matters emanating from the audits.

The complainants believed that taxpayers were being disadvantaged by not having their issues dealt with in a fair and professional way. At risk were current and imminent objections her team was involved in where the tax in dispute was nearly half a billion dollars in revenue. After the whistleblower complaint was lodged, Teffaha and the other complainants allege they have been the subject of bullying by tax office big wigs. Teffaha has been on stress leave since last year and has not returned to work.

In a bizarre twist to the saga, Crikey understands that last month the ATO made an offer of $250,000 cash as a settlement offer to Teffaha on the condition she withdraw her court action. In an email from a senior officer to Teffaha, of which Crikey has a copy, he says:

“If you wanted to be put in the same financial position as you would have been had you drawn a salary for 3 years then my understanding is that would be the equivalent of around $250,000 ‘cash in hand’ today. The fact that I have worked closely with you and have seen first-hand the qualities you can bring to the workplace means that I am in a very good position to provide you with the statement/reference. Ultimately I think that statement may be of greater assistance to you in rejoining the workforce in a job you’re well-qualified for than the outcome of any court proceedings.

“Anyway, let’s keep the channels of communication open and continue our constructive discussions about this matter. I’m really glad we can talk about this because, frankly, I think it’s only the lawyers that would benefit if we keep going down the formal, legal path. And I think the sooner we can bring this to a mutually acceptable conclusion, the better it will be.”

Teffaha rejected the offer as she did not consent to the ATO condition barring her from taking personal litigation against ATO senior officials including David Diment. Teffaha told Crikey: ”The Commonwealth and its agencies are entering into confidentiality and release agreements designed to exonerate senior public officials from their unlawful conduct using taxpayers’ funds. This is a serious breach of the Commonwealth Model Litigant Rules.”

Within five weeks of lodging the complaint, the ATO wanted to refer her to a psychologist and within eight weeks she was referred to a psychiatrist due to the belief she was suicidal. In April 2011 Assistant Commissioner Toni Balik met with Teffaha and the other complainants and expressed the view she was suicidal, according to the court document. Teffaha denies the allegation that she made any threat of self-harm then or at any other time. She told Crikey that four other complainants at the meeting would dispute the claim.

The court document alleges that Diment:

ATO whistleblower in court: ‘they sabotaged my complaints’

by Chris Seage, a tax consultant and former ATO audit manager

Federal

• Has seriously breached the relevant laws, policies and procedures in handling a whistleblower  investigation by carving out significant points from the complaint and commissioned a formal external investigation into the substance of the allegations
• Assigned Margot Rushton, Assistant Commissioner, from the same area of the alleged wrongdoers to handle the WB complaint without Teffaha’s consent
• Conspired with others to fix the outcome of the whistleblower complaint before investigation (the pre-determined decision that there was no substance to the allegations was handed down on September 8, 2011)
• Singled her out from the other complainants and told her not to enter ATO work premises while the investigation was taking place.
• Bruce Quigley, a second Commissioner of Taxation and the second-highest ranked officer in the ATO, promised Teffaha a permanent transfer out of the problem area but Deputy Commissioner Greg Williams, assistant Deputy Commissioner Richard Collis and Rushton sought to deny Teffaha this permanent transfer and insisted she remain in her position, reporting to them, while she was experiencing hostility and bullying from them.

Teffaha says the public interest disclosures made in the whistleblower complaint have since been validated by the Inspector General of Taxation’s review into the ATO’s compliance approach to small business released on April 24 this year.

When confronted with bullying and being victimised, Teffaha turned to the Tax Commissioner Michael D’Ascenzo for help. In May 2012 she wrote an impassioned letter telling him:

“As a committed public servant, when I saw issues that undermine the integrity and work practices of the ATO, I tried to do my part to flag and improve the issues. As a result, the ugly, abusive managerial style currently entrenched in the ATO culture was laid bare for all to see …

“In an attempt to resolve the various issues that confronted me, I reached out to a number of external scrutineer agencies including the Australian Public Service Commission, Comcare and the Fair Work Ombudsman. Unfortunately, I discovered that they are part of this process of abuse and have collaborated in protecting the perpetrators. Whistleblowers need scrutineer agencies with meaningful powers to intervene and make authoritative decisions, when necessary.”

D’Ascenzo has never responded. Shane Reardon, the acting-second Commissioner of Taxation, told Crikey:

“The ATO cannot comment on individual employee matters or circumstances. In particular it is not appropriate in this case as the matters detailed in the complaint are currently the subject of proceedings before the Federal Magistrates Court. We have a detailed guide for our staff (a Corporate Management Practice Statement) which sets out how the ATO manages whistleblowing.”

Protection for whistleblowers is covered under section 16 of the Public Service Act. It states that an employer must not victimise, or discriminate against, employees because they have reported breaches (or alleged breaches) of the code of conduct to them. Amendments currently before Parliament increase the powers of the Australian Public Service Commissioner to determine complaints, other than whistleblower complaints, which ironically continue to be determined by agencies. Effectively, whistleblower protections remain unchanged.

Teffaha today remains on stress leave without pay. She says the ATO refuses to suspend or sack her, nor make any finding of misconduct against her. She is surviving on savings and with the help of her family while she waits for the commencement of her court action.

“The whistleblower laws are a joke,” she said. “If someone had told me the truth back then, I wouldn’t have lodged the darn thing. But I don’t regret what has happened. The community has a right to expect that public service agencies that serve them don’t sweep information under the carpet and don’t engage in conduct of this type against dedicated and professional employees. I am committed to realising this expectation.”

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