Why Pham’s Decisions Matter: Conflict of Interest in the Public Service

This is the fourth in a series, examining the actions of Tu Pham. The previous posts in order of publication are:

Tu Pham’s Prestidigitation, Self-Interest and Racism
Tu Pham and the Question She Could Not Answer
Marina and ACT Treasury: Documents from 2002 to 2005

Anyone recruited to the public service knows that there is a code of conduct. Those more senior may also know that there is a governing legislative act. In the ACT, it is the Public Sector Management Act 1994, a legislative document that has stood since the formation of the Territory and has been the subject of frequent review. Section 9 of the Act deals with the general obligations of public employees, matters that form the basis of integrity within the public service and by which the actions of individuals may be examined. The list of obligations is extensive, but not unreasonable, setting thresholds of behaviour for employees across 17 specific elements. This essay is concerned with Section 9(j), which states:

A public employee shall, in performing his or her duties: if the employee has an interest, pecuniary or otherwise, that could conflict, or appear to conflict, with the proper performance of his or her duties—
(i) disclose the interest to his or her supervisor; and
(ii) take reasonable action to avoid the conflict;
as soon as possible after the relevant facts come to the employee’s notice.[1]

Introduction

The argument of this essay is that Tu Pham, as Acting Chief Executive of Treasury, was in a conflict of interest, actual or at the very least apparent, when she made decisions about the employment of Mark Mullins in late 2003 and early 2004. She was herself the subject of his grievance as a result of removing Mullins for the position of Commissioner for ACT Revenue on 19 November 2003, and of foreshadowed legal proceedings as stated in a letter from Bradley Allen lawyers on 18 December 2003, and Section 9(j) required her to disclose that interest and step away from the decisions. She did neither. Her earlier role as Manager Rates and Land Taxes, the position held by Angel Marina’s successor in the area at the centre of the complaints, and the alleged personal connection between Pham and Marina, add weight to that conclusion, but the conflict does not depend on them. The author is one of the Blak and Black team who has been engaged since 2009 and considers Pham’s actions based upon the material available in the public domain or held by Blak and Black.

The Ethics of Decision-Making

Decisions in any society have a value base tied to the culture that considers those likely to be impacted directly or indirectly by the results of a decision. Ethical decisions are fair, balancing the wants of one against the rights of another. It is far more than following laws, and history has shown in no uncertain terms that laws can be bent to intent that may not have been foreseen, yet well drafted legislation remains the mainstay of ethical conduct in the public service. Laws that are unethical are instruments of power, not fairness.

Subjectivity and emotion can undermine intentions for fairness in decision-making. In particular, when difficult or unpleasant decisions must be made, feelings can cloud judgment. For this reason, anyone with a vested interest in the outcome, or who has a close relationship with someone who is invested, should be excluded from the decision-making process. Cultural practices and religious beliefs are not necessarily ethical; a good decision-maker is aware of their personal biases as well as those of others and is able to examine their thoughts before weighing into the discussions that will lead to a decision.

Viewing potential decisions through a series of lenses helps to choose the best path.^[2]

•     Rights – Maintaining the dignity of those who will be impacted by a decision. They are endpoints in themselves, where the impacts of a decision must be weighed. To place the rights of those individuals secondary to the desired outcome is unethical.

•     Justice – Has each person been treated fairly? This is not just about legal justice, but social, sharing in benefits and burdens, retributive and restorative justice and, most importantly, transformative justice, where people move beyond a harm to improve systems.

•     Utilitarian – How will a decision affect others? What are the likely downstream consequences and outcomes? How will stakeholders be affected, employees, trade partners, the environment? Decisions made without consideration for the long term are blunt instruments that can do far greater damage than good.

•     Common good – The pandemic challenged this for every society around the world. To mask or not, vaccinate or not, limit movement or not. It extends to the services that support community – sewerage, education, food supply, policing, health care. The mutual good is the focus.

•     Virtue – Asks questions of character. Is a decision honest and truthful? Is it courageous, compassionate, or generous? Or is it spiteful and unkind? Does the decision strengthen or undermine some aspect of character?

•     Care – For others and their relationships, with the understanding that others must be able to access what they need. It is extensively employed in health care, but is also seen in legal proceedings and should apply in matters where people are aggrieved. It is especially important when a person is unwell, physically or mentally. It may suspend normal rules to ensure that an individual is not unnecessarily and avoidably harmed.

What is included under each of the lenses is itself a point of contention, but once agreed their application provides a sound basis for decisions that are just and equitable and that promote harmony in the community.

Setting Boundaries

Public service has long placed a high degree of importance upon ethical decision-making. Perceptions of interference lead to allegations of cronyism or, worse yet, corruption. Legislative instruments are written with a clear distinction between the executive or legislative arm of government and the administrative, so as to prevent political influence in the administration of society and thereby any concerns about favouritism by the community. It is a key cornerstone of democracy intended to ensure that those who make the rules are not also the ones enforcing them, as would be the case in a kingdom. The separation of powers includes a third element – the judiciary. Each is intended to operate independently of the others, isolated from influence and protected by the Constitution. It is breaches of that independence that form the basis of the biggest scandals – a bottle of Grange gifted to New South Wales Premier Barry O’Farrell,^[3]  pork-barrelled grants to sporting clubs by Ros Kelly and Bridget McKenzie,^[4]  lying over a speeding fine by Marcus Einfeld.^[5]

Conflict of interest is a significant concern for the public service. The perception, potential or actual conflict^[6]  can leave an individual exposed to questions about their integrity and the probity of any process in which they have been involved, including procurement and recruitment. A conflict of interest opens when a person in a position of power may influence the outcome of a decision-making process. The conflict may be that there is a separate business involvement, a shareholding, or other financial benefit. Conflicts may also arise because of a personal negative bias, or political pressure may contribute to a decision that negatively impacts another person. Often there is a benefit as a result of the decision that flows to the empowered decision-maker; sometimes the benefit flows to a partner of the powerbroker; often it also comes at the expense of someone else. Former NSW Premier Gladys Berejiklian allowed benefits in the form of grant applications to flow to constituents of MP Daryl Maguire’s electorate, with whom she had a close personal relationship, and found herself answering to the Independent Commission Against Corruption (ICAC).^[7]

Whilst a person may have a conflict of interest, it does not automatically translate to corruption. Transparency is key to the avoidance of conflicts and it is through declaring such concerns that matters may be examined. Determining whether or not a declared conflict requires management or exclusion maintains the probity of the matter at hand. All conflicts should be declared; expectations can then be set and managed, guided by legislation, codes of conduct and internal working documents and processes.

Tu Pham’s Decisions and the Months Between

Having reviewed in brief the ethical constructs of decision-making, how to identify a conflict of interest that may impede ethics and the mechanisms by which those two are reconciled, we can examine the actions of the former Acting Chief Executive of Treasury Tu Pham with regard to the decisions she made regarding the employment of Mark Mullins.

Mullins was initially appointed as the Manager Tax, Policy and Legislation in Treasury in mid-2001. On 9 May 2002, he was appointed for a three-month term as the Commissioner for ACT Revenue and remained in the role on rolling contracts for almost 18 months. His predecessor, Graeme Dowell, had moved into another role and had expressly stated to Pham around July 2003 that he was not interested in resuming the role of Commissioner.

It is not uncommon for a person to act in a role for 6-12 months in public service before it is advertised. In March 2003, the vacancy was advertised and Mullins applied. Almost immediately following, the process was suspended to permit Mullins to respond to grievance complaints that had been raised against him. Pham’s decision in this regard gave consideration to due process and showed an awareness of his right not to be disadvantaged in the selection process. On the face of things, it was an ethical decision, especially considering that the grievances were being managed by a separate panel. It did not seem to disadvantage any applicant and it did not impact negatively on the Department. However, Pham’s actions favoured Marina with a legal right to pursue a grievance to which he was not entitled. In signing an Australian Workplace Agreement (AWA) with the ACT Government, Marina accepted that limitation.^{[8] [9]} Pham did not have the power to override the terms of that agreement. Combined with her knowledge of the racial animus with which Marina behaved, Pham’s actions stripped Mullins of his dignity and denied him justice. Her decision had a foreseeable long-term negative effect for Mullins, one in which she failed to show him the care to which he was entitled.

On 27 June 2003, Mullins submitted a public interest disclosure (PID) setting out several concerns, not the least being the racial vilification he was being subjected to by one of his staff, Angel Marina. That PID was acknowledged by Chief Executive Mike Harris on 4 July, although the existence of the PID remains a point of contention. It was the subject of the ACAT hearing in 2013 that led to Bakchos’ charges, brought by ACT Policing following a complaint from the ACT Government, resulting in the subsequent acquittal of Bakchos by the ACT Supreme Court on all 16 charges in 2017.

Three days later, Marina wrote to ANZ seeking “all information” regarding Mullins, with specific reference to his qualifications.^[10] The letter repeated the racist invective used in the letter to Howard Ronaldson dated 9 May 2002.^[11]  ANZ provided no information. On 14 July, Marina also wrote to and called the Commonwealth Office of the Commissioner for Taxation seeking similar information, making no secret of his racism.^[12] The request was again denied, with advice that if he contacted the office again, Marina would be referred to the Australian Federal Police. As with the communication to ANZ, Marina was seeking this information with urgency, making direct reference to his belief that Mullins was unsuitable to be appointed Commissioner for ACT Revenue.

Around 24 September Harris advised that Katy Gallagher had directed him to remove Mullins from his position as Commissioner. In doing so, Gallagher overstepped her authority, breaching the separation of powers between the legislative and administrative arms of government. It was around this point that the mental load became apparent and Mullins sought care, first through his general practitioner and then a psychologist, whom he continued to see until the end of 2003, just after his resignation. In his resignation, Mullins raised concerns regarding how Pham handled the racism matters and questioned her integrity, asserting his contention of “a personal connection between Tu Pham and Mr. Marina.”^[13]

Sometime in late October 2003 Mike Harris provided to Mullins the report on the grievances and advised him that he needed to reply by 21 November. The date was academic – in what must have entailed discussion with the appointee, Pham closed the recruitment process and appointed Graeme Dowell to the role of Commissioner for ACT Revenue on 19 November, two days before the deadline for Mullins’ response to the grievance report. It was a glaring act of hypocrisy, in which Pham’s earlier statements, that the appointment would be delayed whilst the grievance process was ongoing and that Graeme Dowell was not interested in returning to the role, proved null. It was apparent that Harris’ warning that Gallagher wanted him removed as Commissioner had been carried out. At that point it was apparent that the separation of powers between the legislative and administrative arms of government was ineffective. Mullins realised that Pham’s statements could not be relied upon and that set them on a path to conflict. For the position to be advertised, Dowell would have had to advise Pham that he had relinquished the position. A change of mind would require him to apply anew and show that he was the best candidate against the selection criteria and at interview. If he did so, the record is silent and neither explains the reason for Dowell’s change of heart nor his re-appointment to the role of Commissioner.

Pham’s decision to deny Mullins the time to respond to the grievances shows a lack of virtue. She knew that Mullins was being subjected to workplace bullying, yet her earlier compassion seemed to run dry. One must wonder what the driver was for appointing to the role two days prior to the deadline for Mullins’ reply to the grievance report. From Wednesday 19 November to Friday 21 November is not a long time. The selection process had been stalled for 8 months – what was two more days? Who placed pressure on Pham to make the appointment and why? The lack of care in Pham’s actions so close to the finalisation of the grievances was inconsiderate and unethical.

It is worth noting that on 17 November Marina supposedly commenced his communications with Jo Thomas at the University of London, as detailed in his PID dated 19 December 2003. We know that the email sequence that forms part of the PID was altered as the penultimate email sent by Angel Marina on 18 December 2003 in Canberra sent 90 minutes after the reply received from Jo Thomas in London on even date.^[14]  Were the dates of other emails altered? Were names in the to-from fields changed or removed? Was the body of any of the emails in the chain altered in any way? Most concerningly, in an era when images could be attached to emails, why were the supposed qualifications that Marina described in that chain faxed, rather than attached to an email? Draw into question one part of the email chain and the veracity of the entire document comes under suspicion.

When Conflict of Interest Becomes Corrupt

On 12 December 2003, Mullins wrote to Pham seeking explanation for her decision to remove him from the Commissioner’s job. She refused to respond. The same day, he wrote another PID addressed to Pham, outlining corruption in the Belconnen Pool tender process. Nothing has ever been heard of it since.

On Monday, 15 December 2003, Mullins spoke to Meredith Whitten in the early morning, before immediately emailing his resignation, setting out his reasons and disappointment in the Department’s handling of the racism to which he had been continually subjected. On 18 December, Bradley Allen lawyers emailed a letter to Tu Pham following up on the explanation for the removal of Mullins from the Commissioner’s role and an explanation as to why he was not afforded due process in allowing the specified time for his response before a decision was made. Mullins’ contention was that the grievance process was racially motivated. The letter requested that she review her decision and respond to the issues that had been raised. Failing that, she was advised that her decision would be appealed to the Disciplinary Appeals Tribunal.

Pham denied receiving the letter from Bradley Allen, although a read receipt was returned to the legal firm showing that the email had been opened in a mail client without indicating the identity of that person. It is however proof that the communication was received by the ACT Government, if not the intended recipient. Pham never replied. As a consequence, a similar letter was emailed to Mike Harris on 22 December 2003. There could be no doubt that the Department knew full well at that point that the matters were going to be challenged and that Pham’s actions in particular would be subject to scrutiny.

There has been extensive discussion of this period, including the Marina PID dated 19 December 2003 that Blak and Black contends could not have been submitted at that time because the material was unavailable. On 30 January 2004, Mullins was stood down and in a final insult to Mullins dignity whilst he was on sick leave, Pham terminated his employment on 12 February 2004.  He was not in the office – he found out third hand. Dismissing an employee whilst on sick leave is a breach of their rights^[15] and demonstrates a callousness at odds with the duty of care to which he was entitled, especially given his stated mental ill health. Pham’s self-serving actions whilst she was subject to a grievance and foreshadowed legal proceedings was an actual conflict of interest. She should not have been making decisions about Mullins, she should not have been chairing meetings about them, and she should not have been advising other staff of the termination. Her actions were prejudiced, exposing Mullins to extreme psychological stress, denying him natural justice and harming his employment options in the future.

After Mullins had been terminated, the Acumen Alliance Audit Report was amended to remove concerns regarding Rates and Land Taxes. The official version shows no problems in Marina’s area. It bears a final reminder – Tu Pham was the Manager Rates and Land Taxes prior to Marina. The original grievance report would have resulted in disciplinary action against Angel Marina, but that never eventuated. The personnel annual review completed by Mullins found Marina unsatisfactory, which was the only rating that he could be in the face of the audit report.

The Disease

Corruption is a disease that, if not treated, spreads throughout an organisation, festering in dark corners resistant to all efforts at exposure and infecting other organs. The ACT Government has spent the past two and a half decades pretending that it did not cover up the actions of a racist employee, that their actions did not lack integrity and that it has nothing for which to apologise. Angel Marina’s letter of 9 May 2002 was clearly racist and the only reason he wanted Mullins removed from his job was because he was Aboriginal. Tu Pham was advised via email, on the same day Ronaldson received Marina’s letter, which Pham acknowledged, by signing a printed copy and returning it to Mullins. Tu Pham went on to become Auditor-General and to teach at Canberra University. Many of the people who worked in Treasury at the time Mullins was facing the most excoriating phase of his life went on to more senior roles both within and outside of Treasury. Mullins was not afforded that opportunity.

The ACT Government has spent two and a half decades enabling a racist employee to decimate the life of the only Indigenous employee in the ACT Revenue Office at the time. Tu Pham may have left, but she was part of a broader ACT Government that has shown that it suffers from a systemic issues of intolerance toward Aboriginal people. The record shows that things have not improved. In 2013, the Legislative Assembly held an inquiry into ACT public service Aboriginal and Torres Strait Islander employment, during which several people discussed experiences of racism.^[16] The government response included training measures to manage racism and bullying.^{[17] [18]} More recently in March 2026 Brendan Moyle, formerly the head of the Office of Aboriginal and Torres Strait Islander Affairs (OATSIA), stated that those in his office had been experiencing declining mental health and no support.^[19] There has been little apparent improvement in attitudes toward Indigenous employees in the ACT since Angel Marina and Tu Pham’s actions in 2003-04. Both have moved on, but the ongoing reports from Indigenous employees of all levels indicate a systemic and seemingly intractable sick culture.

The ACT Government has protected Tu Pham from accountability for her actions. Her actions in failing to uphold Mullins’ rights, in particular her disregard for his strained mental health and blatant conflict of interest in ending his career, warrant detailed investigation.

Notes and Sources

^[1] Public Sector Management Act 1994 No 37. ACT Legislation Register. Accessed 6 October 2026.  The Act progressed through four versions, from 17 September 2002 to 12 April 2004. All were in force for a portion of the year 2003. Republication No. 6 dated 17 September 2002, Republication No. 7 dated 1 July 2003, Republication No. 8 dated 12 December 2003 and Republication No. 9 dated 19 December 2003. Section 9(j) remains unaltered through all four versions.

^[2] A Framework for Ethical Decision Making. Santa Clara Markkula Center for Applied Ethics. 8 November 2021. Accessed 4 October 2026.

^[3] NSW Premier Barry O’Farrell to resign over ‘massive’ memory fail at ICAC. ABC News, 16 April 2014.

^[4] Sports Rorts II – A case of very bad politics not good policy. Australian Sport Reflections, 26 April 2020.

^[5] The little white lie that grew. BBC News. 27 March 2009.

^[6] The Long Shadow of Conflicts of Interest. Board Matters. Accessed 4 October 2026.

^[7] The key findings from ICAC’s report into the conduct of Gladys Berejiklian and Daryl Maguire. ABC News, 29 June 2023.

^[8] Letter, Mark Mullins to Louise Fitzgerald, 24 March 2003. Mullins advised Fitzgerald that those employed under an Australian Workplace Agreement in the ACT Public Service had contracted out of grievance provisions.

^[9] Email Mark Mullins to Meredith Whitten, 12 August 2003. Mullins placed the department on notice that investigation into grievances lodged by employees under an Australian Workplace Agreement lacked authority and asked on why they were continuing.

^[10] Letter, Angel Marina to The Regional Manager ANZ Bank, Canberra. 7 July 2003.

^[11] Letter, Angel Marina to Howard Ronaldson. 9 May 2002.

^[12] Letter, Veronique Ingram, Chief Adviser (International) Commonwealth Treasury to Mark Mullins, Commissioner for Taxation ACT. 14 July 2003.

^[13] Letter of resignation, Mark Mullins to Meredith Whitten. 15 December 2003.

^[14] Report on Questioned E-mail Chain, prepared on behalf of Mr. Mark Mullins.6 June 2014. Angel Marina’s Public Interest Disclosure dated 19 December 2003 included a hard-copy chain of emails purportedly between himself and Jo Thomas of the University of London. Forensic analysis found that the final two emails in the sequence could not have been sent in the order presented as the date and time stamps meant that the last email would have had to have been sent 90 minutes prior to the second last.

^[15] Advice provided to Mark Mullins by Bradley Allen lawyers, 2004.

^[16] Inquiry into ACT Public Service ATSI Employment, December 12, 2013. Youtube.

^[17] Inquiry into ACT Public Service Aboriginal and Torres Strait Islander Employment: Report Number 2. Standing Committee on Health, Ageing, Community and Social Services, March 2014.

^[18] Report on the Inquiry into ACT Public Service Aboriginal and Torres Strait Islander Employment: Government Response to the Standing Committee on Health, Ageing, Community and Social Services Report No 2.  The Legislative Assembly for the Australian Capital Territory, 2014.

^[19] Allegations of discrimination against First Nations staff in ACT Public Service referred to independent watchdog. ABC News, 10 March 2026.

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© Watershedd, October 2026

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