Yesterday, Chris Seage, Former Australian Tax Office
auditor, wrote of his concerns regarding the failure of the Commonwealth DPP to
prosecute Robert Gerard. The Senate Committee evidence (27/02/06)
of the Director, Damian Bugg QC, paints a picture of bureaucratic blindness
and ineptitude.

Bugg says that the DPP first heard of the Gerard matter
from the media and that, personally, he first heard about it “on the
radio”. Despite the scandalous circumstances of Gerard’s conduct
(as well as the serious political implications), neither Bugg nor anyone else at
the DPP has yet spoken to the ATO about it. Nor, by the looks of it, do they intend
to.

Bugg was faced with a situation where a leading Liberal
businessman had possibly committed serious tax fraud. The matter had become a
major public scandal. Bugg was only person who could prosecute Gerard yet no brief had been provided by the ATO.

In my view, there is an obligation on the DPP in
circumstances such as this to contact the ATO and request a brief. The matter
could then be considered, any criminality evaluated and (if appropriate) a
prosecution launched.

What happened instead is that the bureaucratic failure
of the ATO to deliver a brief to the DPP has defeated any consideration of a
criminal prosecution by Federal legal authorities. Whilst Bugg is right to say he has no legal right to direct that a brief be
provided, he certainly can request it. This has not been done in the Gerard
case. It is unthinkable that the ATO would refuse such a
request.

So the end result is that there has been no evaluation of the
possible criminal conduct of Gerard because Bugg refuses to request a
brief form the ATO. Bugg speaks to the ATO frequently – it is difficult
to accept that this matter has never been discussed.

The Commonwealth DPP is an independent body which
prosecutes federal crime. It is the only protection the community has in this
area. The blatant bureaucratic failure of the DPP to request a brief in a
matter of public importance will lead some people to suspect that Bugg is
protecting the Government. To end those suspicions, Bugg must request a brief
from the DPP immediately.

If he fails to do that, then the Attorney-General (the
Minister ultimately responsible for the DPP) must make the request to the
Treasurer (the Minister responsible for the ATO). If Bugg, Ruddock and Costello fail to act, then the
public is entitled to draw its own conclusions.

Peter Fray

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