Crikey has obtained the ATO document confirming the targets. This action would have severely disadvantaged thousands of small business taxpayers; it’s possible some could seek recourse through the ATO, the Inspector-General of Taxation, the Ombudsman and the courts due to this document now coming to light.
Claims David Diment interfered with the whistleblower complaint investigation?—?coupled with the alleged damage by Susanna Lombardi to Teffaha’s professional reputation and emotional and mental wellbeing, and Margot Rushton’s directions to Teffaha to attend a medical examination with a psychiatrist?—?will be the focus of the misfeasance in public office, breach of statutory duty and negligence actions outlined in the statement of claim.
Another area Teffaha’s lawyers will focus on is why ATO officers referred her to a psychiatrist?—?in documents also obtained by Crikey —?within two weeks of lodging her whistleblower complaint, without her knowledge. “Until I received the documents I requested under the Freedom Of Information Act I had absolutely no knowledge that they wanted to send me to a psychiatrist so soon after lodging my complaint,” Teffaha told Crikey.
JA James holds legal qualifications and specialises in public policy, and studied public sector whistleblowing and workplace bullying during her postgraduate studies last year before creating the website APSbullying.com. She told Crikey: “The compulsory medical referral powers under the Public Service Regulations have been abused by senior APS officials in an attempt to discredit whistleblowers’ mental state, undermine their whistleblowing complaint and inflict grave emotional distress. This pernicious practice is masked by the APS as a form of ‘compassion’. Such spin automatically puts whistleblowers on the backfoot.”
Crikey reported in September the ATO had offered Teffaha a $250,000 cash settlement to walk away from the litigation. She was prepared to accept the offer and release the commissioner of taxation from his vicarious liability as long as she was not barred from pursuing the senior public officials personally for their misconduct against her. The ATO refused to settle on that basis.
“My motivation is not money?—?just accountability,” she said. “It is perplexing the lengths the Commonwealth will go to, to protect the wrongdoers. Unfortunately for the Commonwealth, they are now risking a whole lot more than just money.”
Two recent court cases indicate D’Ascenzo (who will leave the role at the end of this year, to be replaced by Chris Jordon) and the government should be concerned about the latest development in the Teffaha case. The James Ashby and Peter Slipper affair provides a clear example that the courts are no longer willing to allow public officials to hide behind the Commonwealth and its agencies. Last month after Ashby settled with the Commonwealth, Slipper attempted to run the argument he had no case to answer given the release that Ashby was entering into with the Commonwealth. Justice Steven Rares said Slipper was mistaken if he believed the case would just go away as he could not dismiss the case against him:
“I can’t do that Mr Slipper?—?there’s a complaint against you that you s-xually harassed Mr Ashby and that is at the moment unresolved. I can’t dismiss that case that is unresolved. I can’t get rid of them just because Mr Ashby and the Commonwealth [may] settle. You are locked in this.”
The Commonwealth spent well over $770,000 in fighting Ashby and supporting Slipper. Ultimately they settled Ashby’s claims, but not without great expense to the taxpayer.
And the landmark decision of the New South Wales Supreme Court earlier this month in the Gillian Sneddon case provides another example of how courts may make the tax chief vicariously liable for the actions of his officers. Sneddon was the whistleblower in the former Labor minister Milton Orkopoulos child s-x case. The Court of Appeal ruled the government was liable for Orkopoulos’ conduct as it occurred while he was “in the service of the Crown”.
The ATO can’t comment on a case before court. Crikey put a number of questions to David Bradbury, the Assistant Treasurer with parliamentary responsibility for administrative matters relating to the ATO, on the objection targets that could disadvantage small business taxpayers and the use of public money to fund the legal fees for the alleged wrongdoers. A spokesperson said: “Administrative and operational matters within the ATO are a matter for the Commissioner.”
This story was first published on Crikey.
