Politicians, public service mandarins and journalists will all be on the cast of Paul Hogan’s next blockbuster; his $80 million dollar lawsuit against the federal government, writes tax consultant and former ATO audit manager Chris Seage.
Politicians, public service mandarins and journalists will all be on the cast of Paul Hogan’s next blockbuster; his $80 million dollar lawsuit against the federal government.
Crikey understands that Hogan intends to call a vast array of characters to testify in the court action including former Justice Minister Chris Ellison, former assistant treasurer Peter Dutton, tax commissioner Michael D’Ascenzo, Australian Crime Commission (ACC) CEO John Lawler and former ACC CEO Alastair Milroy.
Hogan is suing the government over the failed five-year tax investigation by the Australian Crime Commission (ACC) into alleged tax evasion. The ACC spent $10 million chasing Hogan and his mate John “Strop” Cornell. The entertainment duo has spent an equal amount in legal fees to defend themselves in what was the biggest tax investigation case in Australia’s history.
Hogan believes he has incurred lost earnings between $10 million-$15 million per year because no one in business would touch him with a barge pole after his name was tarnished with accusations of being a tax cheat and a tax criminal. Hogan’s legal team have already secured a film producer and financier who are prepared to testify Hogan’s loss of income during the period of the investigation.
So why is Hoges suing the government? He believes as most Australians do that tax investigations should be conducted in private as is required by law to protect the privacy of individuals and others. What happened in his case was that government agencies leaked information to the media about his tax investigation. This resulted in a worldwide media frenzy that gave the impression he was a dodgy character who cheated on his taxes and could go to jail. Had there been no leaks Hogan would not be pursuing a record $80 million in compensation from the government.
Others to be called as witnesses will be frontline Wickenby investigators including plod Ian Andrews, who led the ACC investigation, and ATO Assistant Commissioner Michael O’Neill, who led the tax side of the investigation. The former Wickenby Head of Secrecy Jennifer Game, who raised concerns about breaches of secrecy between Wickenby investigators will be a crucial witness for Hogan.
She allegedly went straight to D’Ascenzo with allegations ATO officers illegally shared sensitive and highly secret information with the ACC and Australian Federal Police to help secure the high-profile scalps of Glenn Wheatley and Paul Hogan. Four other tax officers also complained and supported Game in trying desperately to protect the ATO’s sacred secrecy provisions and they also are expected to be called as witnesses. Game was later treated as persona-non-grata by the ATO.
Journalists John Garnaut of The Sydney Morning Herald and News Ltd’s Jennifer Sexton will also get an invite. In 2006 they were the two principal leakees of Wickenby information and battled it out like two gunslingers from the old west vying for front page stories on the best leak. Garnaut once confided in me he was worried the feds were tapping his phone. Not long after he accepted a position as the SMH’s China correspondent and has been there ever since.
In the latest development Hogan’s lawyer Andrew Robinson has lodged a formal written complaint with ACC CEO John Lawler about a leak to the US media regarding the ACC decision to drop charges against Hogan last November. Lawler has referred the complaint to the Australian Commission for Law Enforcement Integrity.
Robinson was informed of the ACC decision by letter personally delivered to his office by a process server on November 23 last year. He was made to open it, read it and date/time stamp the letter in front of the process server. However, a couple of hours earlier he was contacted by News Ltd New York journalists asking him whether he was aware the ACC had dropped the charges against his client.
“I’ve lodged a complaint with compelling evidence from three US-based journalists that they knew of the ACC decision before 7am AEST on the day in question. The ACC investigation finished the same way it started — by a leak,” Robinson told Crikey today.
Senior ATO investigators who breached the secrecy provisions of the tax office will not be prosecuted, thanks to the Boucher Review’s terms of reference, writes Chris Seage.
Last month the AFR revealed how the tax office had unlawfully provided sensitive tax information to their colleagues in the Australian Federal Police and the Australian Crime Commission as part of the Operation Wickenby investigation.
In April 2008, the ATO commissioned lawyer Dale Boucher to conduct an inquiry into serious allegations by ATO officers of secrecy breaches within Operation Wickenby. One of the officers was Jennifer Game, Wickenby’s Director of Secrecy. Boucher is the brother of former tax commissioner Trevor Boucher.
Crikey has since discovered that senior ATO investigators who breached the sacred secrecy provisions of the tax office will not be prosecuted because the ATO included in the terms of reference for Boucher’s review that there was to be no focus in respect of the Australian Public Service (APS) Code of Conduct.
Game told Crikey:
The Commissioner had the opportunity to fix the problem but when he agreed to a term of reference Number 3, which said something like no focus to be given to conduct in respect of the APS code of conduct, I knew that no one would be held accountable and that in effect a kind of protection was being provided to some senior officers including one I believe you know.
The relevant part of the APS Code of Conduct not to be reviewed by Boucher basically says when acting in the course of APS employment, an officer must comply with all applicable Australian laws. For this purpose, Australian law means:
(a) any Act (including this Act), or any instrument made under an Act, or(b) any law of a State or Territory, including any instrument made under such a law.
Former Assistant Commissioner of Taxation John Passant told Crikey of his concerns about the inclusion of this term of reference, “Why remove this from the ambit of the review? … I would have thought the usual processes would apply — referral to the appropriate authorities for investigation. I assume that is the AFP. Maybe an independent investigation is needed to see if there have been breaches.”
Game, who retired from the ATO in 2007, says she was devastated by the ATO response to her concerns. Instead of being praised as a hero for bringing the matter to tax management’s attention she became a pariah and was treated as persona-non-grata.
Game wants a more robust inquiry into the ATO’s breaches of secrecy. She told Crikey, “I somehow expected this Commissioner to act in a different way but instead he has chosen to look the other way in respect of wrong doers by not holding them accountable. This means the problem won’t be fixed by him because he has become, in my view, part of the problem.”
Assistant Treasurer Chris Bowen told Crikey, “The Tax Commissioner has kept me updated on progress of the Boucher Review — a review that he initiated. The Tax Commissioner has informed me that he will be accepting all of the Boucher Review’s recommendations.”
Crikey sent the following questions to the ATO:
- Why did the ATO include in the Boucher Review’s terms of reference a term of reference that precluded Boucher from addressing issues under the Australian Public Service Act Code of Conduct?
- Has the ATO investigated breaches of secrecy by ATO officers as alleged by Jennifer Game and four other tax officers?
- What were the results of those investigations?
- Has any officer been sacked, suspended or any other disciplinary action taken against those officers involved?
- Will the ATO still take action against those officers that broke the secrecy provisions irrespective of whether Mr Boucher addressed this issue in his review?
The ATO did not respond before deadline.
Chris Seage is a tax consultant and former tax office audit manager.
