The model litigant: A comment by Jen Trees

The Commonwealth and each of the States and Territories of Australia have an obligation to act as a model litigant in claims and litigation. This obligation is enshrined in legislation and form part of the ‘rule of law’, which governs the conduct of every Australian and visitor to our shores.

In essence, a model litigant is required to act honestly and fairly in handling claims and litigation. Honestly and fairly – what does this mean? Essentially, it means that the government is not to use its over-awing advantage against the average person to thwart legitimate litigation in which it is involved.

In my post titled Racism and Corporate Australia, I briefly discussed a situation where the ACT Government abused the process of justice to prevent the Commissioner for ACT Revenue from exposing systemic and entrenched racism and corruption within the public service in Canberra. The former Commissioner for Revenue is a Wiradjuri and member of the Stolen Generation(s) who holds a strong belief that the ‘rule of law’ must apply equally to white and black Australians.

The former Commissioner for Revenue had been subjected to a constant barrage of racist invective from a subordinate officer, from the time he commenced at ACT Treasury. Mrs Tu Pham, the current Auditor-General for the ACT, in giving evidence in associated legal matters in 2006 stated under cross-examination from Barrister Sean Grant that the former Commissioner for ACT Revenue first complained to her about being racially vilified by his subordinate shortly after his appointment. Mrs Pham did nothing about these complaints.

Shortly after the 2006 proceedings in which Mrs Pham gave this testimony, the former Commissioner’s ex-wife met with Dr Deb Foskey, a Green’s MLA in the ACT Assembly. During this meeting Dr. Foskey advised the former Commissioner’s ex-wife that she had questioned Mrs. Pham about her inaction on the racism issue, to which Mrs Pham responded that she was not required to act because the complaint was not made official.

Not made official! On 9^th April 2003 Michael Long of Bradley Allen Lawyers wrote to Mr. Mike Harris, the then Chief Executive of ACT Treasury, putting him on notice that the Commissioner for Revenue had been the subject of racist remarks from two employees of ACT Treasury. How much more official can you get than a strongly worded lawyer’s letter?

Following the aforementioned letter from Bradley Allen Lawyers, the former Commissioner for ACT Revenue wrote to Mr Jon Stanhope, the Chief Minister for the ACT, insisting among other things that he in his capacity as Attorney-General for the ACT ensure that the rule of law operates fairly and equally for white and black, alike!

The ‘missing’ Commissioner’s letter of 27^th June 2003 (one of the documents the ACT Government have refused to acknowledge exists) to the Chief Minister of the ACT raised a number of serious concerns he held regarding the extent of racism and corruption within the public service. This letter was received and actioned, or inactioned as it turned out!

The exchange of correspondence between the Commissioner for ACT Revenue, the Chief Minister of the ACT and the Chief Executive of ACT Treasury existed in ACT Treasury in 2005 when the ACT/Commonwealth Ombudsman was investigating a number of complaints made by the former Commissioner concerning his treatment while an employee of ACT Treasury.

In 2006, this correspondence was subpoenaed from ACT Treasury. By then it had disappeared and everyone in ACT Treasury seems to deny its existence! Why? Because if this correspondence comes to the surface, certain senior ACT Public Servants and ACT business identities would probably be facing lengthy periods of incarceration.

If a member of the public failed to comply with a subpoena and in so doing perverted the course of justice, they would be in jail. If ACT Treasury and the Australian Federal Police do it, it’s OK; because they hold themselves above the ‘rule of law’ they remain unaccountable to anyone or anything apart from their own greed and corruption.

The following statement was posted on Wiradjuri Warrior’s Facebook page, yesterday 11^th January 2011 by Jen Trees a Commonwealth Government employee and lawyer. It canvases some of the implications for you and me and every Australian arising from the ACT Government’s abuse of process, and total disregard for the ‘rule of law’. So much for the model litigant scheme!

Over to Jen

What this post is really about is that Ernst & Young and the ACT Government engaged in a serious case of fraud to stop the Commissioner for ACT Revenue from exposing certain individuals in the ACT Treasury for theft and fraud. In the process of engaging in a fit –up of the former Commissioner for ACT Revenue ACT Treasury purposefully hid documents that were essential to certain court proceedings and in so doing caused a serious miscarriage of justice to occur to a member of the stolen generation(s), someone who had already suffered untold indignities as a child because of racist policies. While I’m not indigenous I feel for all those who have suffered and continue to suffer because of the unbridled racism that is so prevalent within Australian society.

Instead of drivelling on about human rights, perhaps it would be better if Jon Stanhope showed some leadership and instructed the Australian Federal Police and the ACT department of Treasury to reinstate all the documents that have ‘gone missing’ since finding their way into their custody.

As a lawyer and a senior public servant I ask the ACT Government what was the legal basis they relied on when pursuing a member of the stolen generation(s) based on material that was obtained by fraud from Ernst & Young? What is worse the material that Ernst & Young supplied was not material that was supplied to them by the victim, a member of the stolen generation(s). As an open question to anyone reading this, do you believe that the ACT Department of Treasury should be allowed to get away with a racist attack on a member of the stolen generation(s) to protect their own personal interests?

Why can a government department refuse to comply with a subpoena when anyone else would be in jail for the same crime? Yes failure to comply with a subpoena is a crime!