Tu Pham’s Prestidigitation, Self-Interest and Racism

Delegated power, a conflicted decision-maker, and two documents that were never meant to be read together

The Sleight of Hand

Most of what has been written about the treatment of Mark Mullins, the former Commissioner for ACT Revenue, has concentrated, rightly, on the documents that carry Angel Marina’s name and signature. They are extraordinary documents and they deserve the scrutiny they have received. But a conjuring trick works by drawing the audience’s eye to one hand while the other hand does the work, and there is a serious case to be made that the attention paid to Marina has obscured the person who stood to gain most from the way the matter was handled. That person is Tu Pham, who in late 2003 was the Acting Chief Executive of the ACT Department of Treasury and who made a series of decisions about Mullins that served her own interests at his expense.

This essay sets out that case. It rests on two documents that have been reproduced alongside it: a letter from Bradley Allen Lawyers dated 22 December 2003, and an email sent by Meredith Whitten, then Director of Corporate Services in the Chief Minister’s Department, to Pham on Monday, 15 December 2003. It also draws on my knowledge of the wider record. Throughout, the essay tries to distinguish between what the documents establish on their face and what remains my contention, inference or belief. That distinction matters. The argument is stronger, not weaker, for being honest about where the paper ends and the reasoning begins.

What the Lawyers Wrote

The first document is a three-page letter on the letterhead of Bradley Allen, signed by the solicitor Leonie Kennedy on behalf of Mullins, then an employee of the ACT Department of Treasury. It is dated 22 December 2003, bears the reference ML:1232/03, and was sent by facsimile to Mike Harris, Chief Executive of the Chief Minister’s Department. Harris is a significant figure in the story because he had earlier been Chief Executive of Treasury, and the letter reminds him, in terms, that in that role he had the responsibility for overseeing the investigation into the grievance complaints against Mullins. Handwritten annotations on the file copy record that it was received on 6 January 2004, that the original was to be kept for Harris’s return, and that someone was to check with the Government Solicitor’s Office that a response was being managed. Whatever else may be said about the letter, it was plainly treated inside government as a serious legal document.

Its substance is a formal challenge to Pham’s conduct as decision-maker. Mullins’s position, the letter says, is that Pham’s decision to remove him from acting as Commissioner for ACT Revenue was made without proper foundation and has caused significant damage to his professional reputation and future career prospects. It sets out why the investigation that preceded the decision was, in his view, seriously flawed: complaints made out of time were investigated, and material from complainants without standing was placed before the investigating officers; Mullins was asked to respond on an ad hoc basis to incomplete records of interview with witnesses whose allegations lacked sufficient particularity; and he was removed from an acting position he had held for nineteen months without the benefit of his views on the report, which the letter describes as denying him natural justice.

The second page is, if anything, more pointed. On the basis of the grievance report, the letter says, Pham concluded that Mullins had breached section 9 of the Public Sector Management Act 1994, a finding with the potential to exclude him from membership of professional bodies. Yet she had not identified which part of section 9 was breached, nor how. She repeated some of the complainants’ allegations in her minute of 12 December but did not explain how those allegations, if capable of investigation at all, amounted to a breach of the Act. The decision to remove him on 10 November 2003, before his comments on the report’s findings had been received, was said to be a denial of natural justice. Pham had also failed to respond to Mullins’s letter of 12 December asking her to explain the legal basis of her decision, and while she claimed to have reviewed her own decision, she had not disclosed how that review was conducted or what material she took into account. In particular, she had not explained how she weighed his objections to the investigation and the final report when she removed him and halted recruitment for the position.

The letter asks Harris to review the decision under clause 20.8 of the Chief Minister’s Department’s Certified Agreement 1999–2002, and warns that, depending on his response, Mullins may refer the matter to a Disciplinary Appeal Committee under section 191 of the Public Sector Management Act or seek other remedies against the Department. The final page is conciliatory in tone. The lawyers advise that their client is open to resolving the matter directly before any proceedings are initiated, and invite Harris or his legal representatives to make contact.

Two observations should be made about the letter, First, it is not, on its face, a letter about racial discrimination. It is a letter about procedural fairness, jurisdiction and the misuse of a disciplinary finding, and it is stronger for that. Second, the letter is addressed to Harris rather than to Pham, and is dated 22 December 2003 and is identical in every way apart for the addressee to the one sent to Pham four days prior on 18 December, that she has denied receiving, despite an email read receipt and a fax receipt that show otherwise; the receipt of Harris’s copy is not in dispute. The letter as reproduced establishes that Pham’s decisions were being formally challenged by 22 December; the fuller question of what she knew, and when, is answered more directly by the second document.

Fifteen December

The email from Meredith Whitten to Pham, sent at 8:38 on the morning of Monday, 15 December 2003, is marked Confidential, with the subject line “Staff-in-Confidence”. It predates the Bradley Allen letter by a week. The email itself was tendered in evidence in the Supreme Court of the ACT in March 2017 by the Australian Federal Police, who recovered it from the ACT Government’s own archives, and that it directly contradicts sworn testimony given by Pham in the same proceedings. Anyone wishing to test this should set the email beside the transcript of Pham’s evidence. What the email itself says, however, is clear enough.

Whitten reports a telephone call from Mullins at 7:07 that morning. He had received Pham’s letter of 12 December 2003. He had taken his own legal advice and it was considered that the letter amounted to constructive dismissal with effect from 10 March 2004, and he wanted to know what the Department proposed to do to support him until then. He had instructed his solicitor to take the investigation, and all the decisions leading to the letter of 12 December, to the Administrative Appeals Tribunal. And, in words that Whitten recorded and passed on, he said that he had been attacked racially and that those actions had been supported by the CPSU and the Stanhope Government.

The second numbered paragraph is the one that deserves the slowest reading. Whitten records that Mullins wanted to know what the Department would do about the racism issue, and that he considered these matters had never been investigated. Every time Marina walked past him, Mullins said, Marina would announce, “I won, ha, ha, ha – I told you that I would.” Marina had also told him three times, according to the email, that he had only got the job because he was indigenous. The email is unmistakable: it is recorded as one of the allegations that Mullins said had never been looked into. The third paragraph adds that Mullins had lodged a letter of complaint on 12 December seeking a review of the decision to move him from the position of Commissioner and to discontinue the selection process for it, and that he had also sought advice about the motivation of the original complainants under the Racial Discrimination Act 1975 (Cth).

Then comes the part that matters most. Whitten, a senior officer with no evident stake in the outcome, put three proposals to Pham, subject to her agreement. She would seek the advice of the Government Solicitor’s Office on the constructive dismissal issue. There might be value in commencing a separate investigation into the racism issues. And there might be value in seeking an independent review of the decision to move Mullins into a new short-term executive position. In other words, within days of the decision being made, Pham’s own Director of Corporate Services was advising her that the racism allegations had not been investigated, that they should be, and that the decision affecting Mullins should be independently reviewed. Pham did not follow that advice. Rather than investigating the racism allegations, she dismissed the man who had raised them.

The Conflict and the Calendar

By 15 December, therefore, Pham had been told in writing that Mullins was contemplating proceedings before the Administrative Appeals Tribunal, that he alleged racial abuse which the Department had not investigated, and that he was seeking advice under the Racial Discrimination Act about the motives of the people who had complained about him. Within a week the Bradley Allen letter confirmed in formal terms that her handling of the grievance was going to be examined by others. From that point at the latest, Pham was obliged to step aside from further decisions concerning Mullins.

The principle is not exotic. A decision-maker who is the subject of a pending challenge by the person affected, and who has a personal interest in how that challenge is resolved, should not continue to make decisions in the same matter. The test applied by Australian courts in cases of apprehended bias asks whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the question; the High Court articulated it in Ebner v Official Trustee in Bankruptcy (2000). An acting chief executive who has been told that she may be personally examined on her handling of a grievance, and who then goes on to terminate the employment of the officer who raised those concerns, sits squarely within the mischief the principle exists to prevent.

At the time, Pham was acting Chief Executive of Treasury and hoped to be appointed to the role permanently. This was the third occasion on which she had sought it and the third on which she had missed out. She would have known that if she were taken before the Human Rights Commission and adverse findings were made, her prospects of ever holding the position would end. Rather than being made Chief Executive of Treasury, there was a sideways move to Auditor General. My point is not that the appointment was corrupt. It is that the interests of the decision-maker and the interests of the officer she was dealing with were in direct collision, and that no one with authority appears to have insisted that she declare the conflict and step back.

The Report That Changed

Something else needs to be said about the report on which Pham relied. The grievances that ended in Mullins’s removal had been examined in a report prepared by the Commonwealth Public Service Commission. Mullins was given a copy of the final report by Pham. His lawyers at Bradley Allen, however, requested a copy directly from the Commission through the freedom of information process. When they received it, they were horrified to find significant differences between the report they had obtained from the Commission and the report that had originally been served on ACT Treasury in the person of Pham.

The changes were not cosmetic. They moved findings that had been made against Marina and Will Hogan so that they appeared as findings against Mullins, findings which did not appear in the real report. The effect was to supply the very basis on which Pham could remove him. The Bradley Allen letter is consistent with that account in one respect: it contends that the final report on the grievance complaints provides no basis for Mullins’s removal from the position of Commissioner, or for reverting him to his normal position once he completed the review of the ACT Rating System in March 2004. It does not itself allege that the report was altered, and I do not suggest that it does. But a lawyer’s protest that the report cannot bear the weight put upon it is precisely what one would expect to read if the version relied upon differed materially from the original.

This is the most serious allegation in the entire matter, and the one that can be tested most simply. There are two versions of one report. Either they differ or they do not. If they differ, someone is in a position to say who made the changes, when, and on whose instruction. When Pham removed Mullins, she said she had been directed to do so by Ted Quinlan because of the outcome of the grievance report. The author has no way of knowing whether Quinlan gave any such direction and leaves that question where it lies. What can be said is that a direction, if given, would not relieve Pham of responsibility for the accuracy of the report she used, or for the decision to act upon it.

Power Used for Self

What followed is that Pham terminated Mullins’s employment on the strength of a public interest disclosure lodged with her by Angel Marina, the veracity of which has always been in dispute. She then sent an email to the entire ACT public service announcing that Mullins had been sacked. This was deliberate, and it made any return to the public service practically impossible regardless of how the underlying issues were eventually resolved.

About a week later Mullins was the subject of an ABC Sunday evening program on the public service. The following day Quinlan directed Pham to find out who had tipped off the ABC, and she was unable to identify anyone. I was subsequently told by a friend who worked at the ABC that Pham herself was the source. That is a serious claim and it needs to be handled with corresponding care. It rests on what I was told, it is not documented, and it is offered here as my belief and not as established fact. If it were true, it would mean that an officer instructed to find the source of a leak was the source, and that the resulting public attention damaged Mullins’s name across the Territory while leaving the government in a position where it was pushed to defend Pham in order to defend itself. That, too, is inference, and it is labelled as such.

The legal point can be put more firmly. Pham was at all relevant times exercising delegated powers. Delegated powers carry obvious limits: they are conferred for the purposes of the office and cannot properly be exercised to advance the personal interests of the delegate. I contend that using them in that way is an abuse of process, and that retaliating against an officer for lodging a grievance or complaint against you is a criminal act under ACT law. Whether the conduct described could satisfy the elements of a particular offence is a question that requires careful legal analysis of the provisions in force at the time, and this essay does not attempt it. What can be said is that I am not aware of any inquiry, disciplinary process or prosecution that has ever examined whether it did.

There is one further element that compounds the difficulty. Pham herself had been the subject of several complaints of racism previously lodged by Mullins. If it is correct, then in deciding the fate of Mullins, Pham was deciding the fate of a man who had complained about her, which would make the failure to step aside not just a lapse of prudence but a plain conflict.

What Remains Unanswered

The value of the two documents lies in what they permit anyone to check. Whitten’s email shows what Pham had been told, and by whom, on 15 December 2003, and what she had been advised to do about it. The Bradley Allen letter shows, in formal legal terms, that by 22 December her decision-making was under challenge and that the person to whom the matter had been referred was being asked to intervene. Together they establish a timeline in which the decision-maker had notice of unexamined allegations of racism, was advised to investigate them and to seek independent review, was placed on formal notice that her decisions were contested, and appears to have carried on as before.

The questions that follow are not difficult to state. Why did Pham not act on Whitten’s advice? Why did she not recuse herself once her conduct was in question? Did the version of the Public Service Commission report that reached Treasury match the version that the Commission itself held, and if not, who was responsible for the differences? Who directed the public announcement of the termination, and why was it sent to the entire service? None of these questions turns on Marina’s letters, terrible as they are. They turn on the exercise of public power by a person who had every reason to want the matter to end in one way, and who was in a position to make sure that it did.

That is the sleight of hand this essay has tried to describe. It is easy to look at the man who wrote the letters. It is harder, and more useful, to ask who had the authority to act, who had the motive to act badly, and who was supposed to stop them. The documents reproduced here are offered so that readers can ask those questions for themselves, and so that the institutions responsible for accountability in the Territory might finally be asked to answer them.

Epilogue

Tu Pham made a number of other decisions after Mullins left ACT Treasury that impacted adversely on him, but to the potential benefit of Pham herself.

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Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.

© Bakchos, September 2026

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