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
(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."
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.