LUDWIG – We will go to more specifics, but we will bear
in mind what you can and cannot say. Given what you said about it being unusual
that the truck would turn up without someone phoning you beforehand, is the
Gerard case one where they would talk to you beforehand?
Mr Bugg – No, I think the then
commissioner made a public statement. The matter was never referred to my office, so that did
not ever come our way. If I could just pause to make a
comment about that, it is quite interesting how, in a sense, I think some
commentators believe that we are the gatekeeper on what gets prosecuted and what
does not. That is certainly true on the application of the prosecution policy of
the Commonwealth, which I was outlining earlier. We are totally dependent on what is referred to us by the
40-odd agencies who refer matters to us following their investigation or
examination of matters over which they have regulatory
LUDWIG – But you
could ask for a brief if you wanted
Mr Bugg – I have no power to direct an agency to refer a matter to
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LUDWIG – To take an extreme position, say everybody knew
there was a major case and it had not got to you. It was common knowledge that
there was a major investigation under way, there was an outcome and that was
aired in public, I guess, or you read it in the paper. Do you just continue on?
You would not take cognisance of that and ask a couple of questions like, ‘Where
is the brief?’
Mr Bugg – I guess it would depend on
LUDWIG – But in terms of it being legally possible, you
do not have –
Mr Bugg – Isuppose it is possible for me, or someone in the region,
to ring up and say: “Is this matter coming our way? There’s been a fair amount
of publicity in the press.”
LUDWIG – “We want to get our resources ready, because
it’s a large matter” or –
Mr Bugg – Yes. But if the agency says no then I have no power to
direct it to send something to me.
LUDWIG – Yes, that is the additional point: you do not
have any power to then say, “I demand that you send me a
Mr Bugg – There will be some matters
where there might be an arrest. Not all Commonwealth matters work up to the
laying of charges after consultation and advice from my office. There may be
concern that someone is about to flee the jurisdiction. In those circumstances,
the agency will arrest and lay charges and then the matter comes to us. I would
not classify that as a file that we have not been forewarned about and that has
been dropped on us with no notice. However, that can impact fairly significantly
on how we would then allocate resources to deal with the matter, because, once
an arrest has taken place and someone is brought before the court, there are
varying regimes of management of cases in the states and territories, and the
clock starts ticking. You then have so many days for disclosure in some
jurisdictions. You have to give particulars of charges, and the matter starts
running into the court system.
Then, obviously, if you have, say, an arrest in a
serious tax fraud and you have other people who are working on fairly detailed
tax briefs where there is no charge yet laid then you will drag them off that
and say, “This matter is urgent.” As I say, that is the sort of process where we
just cannot have people standing by waiting for that sort of thing to happen.
You have to prioritise, and that means that then maybe the brief assessment of
the other matter will be held up until that officer or officers are free to deal
LUDWIG – I think we established earlier that
you did not receive a brief from the ATO relating to a case against Mr Gerard,
or other persons involved in his company, for tax evasion or any other form of
Mr Bugg – I confine
that to Mr Gerard. It is a pretty big company; there may be someone in there who
has failed to lodge a return or something. I just do not know about that. But,
certainly, the publicised –
LUDWIG – I think we could confine it to the
more publicised issue. We will forgive you if there has been a breach of a
regulatory tax file return.
Mr Bugg – Yes. No
file was referred to us specifically.
LUDWIG – When you say “specifically”, is
there a condition or did you seek –
Mr Bugg – No.
LUDWIG – Did you talk to the ATO about the Gerard
Mr Bugg – We heard about it in the same way that I guess most
LUDWIG – You read it in the
Mr Bugg – Yes. I heard about it on the
LUDWIG – Maybe listened to it on the
Mr Bugg – Then I read
about it in the newspaper, yes.
CHAIR – Through the
generally available public media.
LUDWIG – I use the news aggregator RSS feed.
It is quicker.
Mr Bugg – Certainly, we did not ever get a brief on the matter.
Whether there was any comment about it at a liaison meeting – I could clarify
LUDWIG – Yes, that would be helpful. Thank