One of my pet issues on Blak and Black is what befell the former Commissioner for ACT Revenue (“the Commissioner”), a Wiradjuri and member of the Stolen Generation(s), which made him a person without any legal protections in Australia. What rot I hear you say. Well if so, I ask readers to consider the following events, which I have put together in chronological order, and consider whether what happened sounds ethical, just or even legal.
In a nutshell, the Commissioner was stood down from his position on 30 January 2004, before being sacked on 12 February 2004 by Mrs Tu Pham, then acting Chief Executive of the ACT Department of Treasury (“ACT Treasury”) and subsequently ACT Auditor General. Mrs Pham carried out both of these seemingly retaliatory acts against the Commissioner while she was subject to a grievance lodged on 22 December 2003 by the Commissioner’s former lawyers, Bradley Allen, alleging that she had failed to deal with, among other things, a campaign of racial hatred that was being conducted within ACT Treasury by a number of his subordinate officers who resented working for an Aborigine.
9 May 2002
The Commissioner is appointed Commissioner for ACT Revenue and Acting Director Revenue Management Branch ACT Treasury. On the same day another officer from within ACT Treasury who missed out on the promotion wrote a letter (“the letter of 9 May”) requesting that the Commissioner be sacked from his position because of, in the writers own words, “…the general disposition of Aborigines to lie…”. This letter also discusses the Commissioner’s academic credentials, which the writer claims to have accessed from the personnel section of ACT Treasury. It is worth noting that the letter of 9 May, whilst referencing the Commissioner’s academic credentials, makes no mention of any University of London academic qualifications.
While being cross examined by Barrister Mr Sean Grant on 9 March 2006, Mrs Pham made the following concessions:
SG Now did [the Commissioner] ever make a complaint to you at any time during his employment about racist comments made by [named ACT Treasury employee] to him?
TP Yes, he did.
SG On how many occasions did [the Commissioner] complain to you about racist comments made by [named ACT Treasury employee] to him?
TP He made once after – soon after he was acting in the position and maybe once or twice in passing.
The timing of the first complaint of racist comments made by the Commissioner to his immediate superior in ACT Treasury, Mrs Pham, was “… soon after he was acting in the position …” to which he was appointed to on 9 May 2002, the same date on the aforementioned letter. What Mrs Pham is referring to in her evidence is the complaint the Commissioner made to her about the letter of 9 May 2002. In the five years since Mrs Pham’s testimony, ACT Treasury and the Australian Federal Police (“AFP”) have conveniently ‘forgotten’ this detail and are now trying to argue that they had no knowledge of the letter of 9 May 2002. It doesn’t fit with their arguments on why they ripped the Commissioner’s life apart in preference to dealing with the culture of systemic and entrenched racism that pervades both organisations.
The racist attacks on the Commissioner continued unabated until March 2003 when the Commissioner made a formal complaint to Ms Louise Fitzgerald, then Manager Human Resources ACT Treasury.
24 March 2003
On 19 June 2003, Ms Fitzgerald wrote an addendum to a file note she wrote on 8 April 2003. In that addendum Ms Fitzgerald noted, “…in advising [named ACT Treasury employee] of the discrimination claim [made by the Commissioner], I thought that I was acting in the best interests of the situation/parties…given the possible repercussions and disrepute to the department…”
2 April 2003
During a formal meeting between the Commissioner, Mrs Pham and Mr Mike Harris, then Chief Executive ACT Treasury, to discuss the systemic racism within ACT Treasury and the [named ACT Treasury employee] identified by Mrs Pham in the evidence she gave on 9 May 2006, the Commissioner stated that, “…the racism issue was a systemic problem in ACT Treasury…”. This is recorded in the official minutes of that meeting.
What came of this meeting? Nothing!
9 April 2003
The Commissioner’s Lawyers, Bradley Allen, formally wrote to the ACT Governments Solicitor’s Office in the person of Mr Doug Jarvis lodging a formal complaint for racial vilification with the ACT Government on behalf of the Commissioner stating that, “…I am also instructed that our client has been racially vilified by two of his subordinate staff in respect of his Aboriginal descent…”.
How did ACT Treasury respond? It did nothing, because in the jurisdiction that enacted one of the first human rights bills in Australia, Aborigines still have no rights!
27 June 2003
The Commissioner wrote to the ACT Chief Minister, Mr Jon Stanhope, bringing to his attention the systemic racism within ACT Treasury. On 4 July 2003, the Chief Executive of ACT Treasury, Mr Mike Harris, responded on behalf of the Chief Minister. What did Mr Stanhope do about the issue? Well actually he did nothing. The man who spent his political career grandstanding on issues of racism and human rights was shown to be all rhetoric and no action. What is worse is that on 21 June 2005 the Commonwealth Ombudsman wrote to the Commissioner confirming that the aforementioned correspondence between the Commissioner, Mr Stanhope and Mr Harris was on file within ACT Treasury. By April 2006 when it was subpoenaed, it had vanished.
What did the ACT judicial system do about this blatant case of perjury by omission? Nothing! Why? Because in the ACT, indeed in Australia, Aborigines have no rights, being denied even the most basic and fundamental legal protections that are afforded other Australians by Australia’s overtly racist legal system.
3 September 2003
The Commissioner swore a Statutory Declaration witnessed by Mr Robert Lewis, Chartered Accountant, in which he detailed a racially motivated physical assault on him that was perpetuated during work hours on ACT Treasury premises. Mr Lewis has subsequently confirmed having witnessed this Statutory Declaration as at the aforementioned date. This assault was and remains a criminal offence and was attached as an annexure to a letter of complaint to Detective Sergeant 4626 Melissa Ward of the AFP with AFR reference: PROMIS 3464270 Log 120. What was done about this complaint? Nothing! Why? Because the AFP don’t investigate complaints made by Indigenous Australians against non-Indigenous Australians.
13 October 2003
Ms Meredith Whitten wrote a letter to the Commissioner in response to a complaint he made about two named ACT Treasury officials gaining unauthorised access to his personnel file. As part of her response to the Commissioner, Ms Whitten advised the Commissioner that his personnel file contained the following information: police records check form, copy of his birth certificate, confirmation of his appointment to the ACT Public Service. Ms Whitten’s letter made no mention of any University of London, or indeed any academic qualifications being held on the Commissioner’s personnel file. This position is confirmed by the Commissioner’s Induction Form, which also makes no mention of academic qualifications.
When asked by Constable Maguire of the AFP about whether or not she wrote the aforementioned letter, she confirmed that she had.
22 December 2003
The Commissioner’s Lawyers, Bradley Allen, wrote to Mr Mike Harris who was then Acting Chief Executive ACT Chief Minister’s Department and therefore Mrs Pham’s immediate superior, lodging a formal grievance against Mrs Tu Pham for not addressing the Commissioner’s allegations about the racial vilification he was subjected to in ACT Treasury as outlined above.
30 January 2004
While subject to the grievance that was lodged by Bradley Allen Lawyers on behalf of the Commissioner on 22 December 2003, Mrs Pham suspended the Commissioner alleging that he had lied about his academic qualifications in order to gain employment with ACT Treasury and that a copy of these qualifications were held on his ACT Treasury personnel file. This is rather concerning given that as at 13 October 2003 according to the Whitten letter, there were no copies of any academic qualifications held on the Commissioner’s ACT Treasury personnel file. As mentioned above the Whitten letter of 13 October 2003 is supported by the Commissioners ACT Treasury Induction Form which also recorded him as not having supplied any qualifications to ACT Treasury personnel when he commenced there.
12 February 2004
Mrs Pham formally terminates the Commissioner’s employment with the ACT Public Service even though she is still subject to the grievance lodged against her by the Commissioner’s lawyers on 22 December 2003.
Referral of the Commissioner to the AFP
Ms Louise Fitzgerald, one of the officers complained about by the Commissioner as being involved in improperly giving other staff access to his personnel file and who was mentioned in the Whitten letter of 13 October 2003 as being the subject of a complaint by the Commissioner for what could have amounted to a criminal act if proven, was the same officer who recommended to Mr Glen Gaskell, then Executive Director Fraud ACT Treasury, that the Commissioner be referred to the AFP for investigation following the termination of his employment by Mrs Pham on 12 February 2004. As at the date of his referral to the AFP on the recommendation of Ms Fitzgerald she had not yet responded to the allegations against her and to the best of the writers knowledge still has not.
The Whitten letter was marked for identification in committal proceedings in the ACT Magistrates Court on 9 March 2006.
Denial of Aboriginality
Even though the Commissioner is a member of the Stolen Generation(s) and a Wiradjuri, AFP Agent Rowena Penfold made numerous attempts to deny the Commissioner his heritage. On 17 June 2004, she received a letter in response to an enquiry she made to the NSW Office of Fair Trading. In that response signed by I.W. Feathers, is the following comment, “…as regards [the Commissioner’s] Aboriginality you will probably have already contacted ATSIC or Births, Deaths and Marriages for advice…”.
This seemingly benign comment is the crux of the whole attack on the Commissioner. He was sacked to prevent him from filing a complaint in the Australian Human Rights and Equal Opportunities Commission alleging racial discrimination and harassment against both ACT Treasury and Ernst and Young. The role of Ernst and Young in all this is discussed in an earlier post, Ernst & Young: A vehicle for hiding corruption in Canberra.
Pursuant to the provisions of section 25 of the Australian Capital Territory Public Interest Disclosure Act it is an offence punishable by up to one year imprisonment for retaliating against a person for lodging a Public Interest Disclosure naming you!
Faustus: Tell me where is this place that men call Hell?
Mephistopheles: Under the Heavens.
Faustus: Within the bowls of these elements, where we are tortured and remain for ever. Hell has no limits nor is circumscribed in one self place, for where we are is Hell, and where Hell is there must we ever be: and to conclude, when all the world dissolves, and every creature shall be purified, all places shall be Hell that is not Heaven.
(Fragment of a dialogue from Dr Faustus)
Hell readers, is where we as Indigenous Australians find ourselves everyday, tortured physically and psychologically by the white man as he attempts to airbrush away the stains on Australia’s post invasion history. The actions of the AFP in attempting to deny the Commissioner his birthright, indeed deny him the very fabric of his existence all in the name of ‘just-us’ and protecting the pillow case wearing gutless wonders at ACT Treasury is hard core racism. This hard core racism is what defines the Australian Public Service and the AFP. Australia is not a just country, it is a racist, xenophobic nation unwilling to face up to the reality of its past and current transgressions against its Indigenous populations. To quote again from Kate Grenville, mentioned in an earlier post, “Australia has airbrushed much of its history to leave only the nice bits.”
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