Tu Pham, Part Two: The Paper Trail From April 2003 to January 2004
Where Part One Stopped
The first essay in this pair examined the conduct of Tu Pham, Acting Chief Executive of the ACT Department of Treasury in late 2003, as the decision-maker in the removal of Mark Mullins from the position of Commissioner for ACT Revenue. It rested on a small number of documents, chiefly a Bradley Allen letter and a departmental email, and a careful reader was entitled to ask what came before them, what came after them, and why the dates attached to the same letter did not always agree. This second part answers that request. It sets out the remaining paper in the order in which it was written and lets the sequence make its own argument.
A note on method, because the material deserves it. Three kinds of statement appear below and I have tried to keep them apart. The first is what a document says on its face, which I report and, where useful, quote briefly. The second is what Mullins or his lawyers say happened, which I attribute to them. The third is inference, which I label as inference. The distinction matters most where the stakes are highest, and in this story the stakes were a man’s career, his reputation and, according to a treating psychologist, his health.
Notice, in Writing, in April
The earliest document is a letter of 9 April 2003 from Michael Long, Director of Workplace Relations at Bradley Allen Lawyers, to Doug Jarvis of the ACT Government Solicitor’s office. It is marked confidential. Long confirms that his firm acts for Mullins in respect of “unspecified allegations made against him by unspecified persons.” Anyone who has read Kafka will recognise the posture: a man required to answer accusations that no one has yet put to him. Long records his understanding that the particulars and the names of the complainants would be sent to his client by 12 April.
He then records that on or about 18 March 2003 a meeting was chaired by Ms Louise Fitzgerald of the Chief Minister’s Department and attended by a number of Treasury staff, and that Mullins was the focus of the discussion. He asks, as a matter of urgency, for the minutes, on the ground that they are material to the allegations and are needed to enable his client to respond. It is an elementary request. A person cannot answer a case he has not seen, and the minutes of a meeting devoted to him were part of the case. It is worth noting that Fitzgerald claimed that she didn’t keep any minutes, and none have ever been provided.
The final paragraph is the one that matters most for present purposes. Long writes that he is instructed that Mullins “has been racially vilified by two of his subordinate staff in respect to his Aboriginal descent.” He says the firm is treating this as a separate issue and is putting the Territory on notice that it “will be pursued further in due course.”
Two things follow from the face of the letter. First, it was addressed to the Government Solicitor, so the Territory was on notice through its own lawyer, in writing, and not through rumour or informal complaint. Second, it is dated eight days after the conversation on or about 1 April in which, on Mullins’s account, Pham told him that the recruitment process for the permanent Commissioner position had been suspended so that grievance complaints against him could be investigated. The racial dimension was therefore raised almost as soon as the grievance process began. Whatever else may be said about the race allegation, it cannot be described as a tactic adopted after the event. It was on the Territory’s file before the investigation was complete, before the report was written and before the decision that the report was later used to justify.
The Chronology as Mullins Recorded It
The second group of documents that I want to discuss is a two-page letter from Mullins to Pham, bearing his own signature and the date 12 December 2003. It carries a circular date stamp reading 12 December 2003 and, besides Pham’s name in the address block, what appears to be a handwritten signature and the date 12/12/03. On its face, then, it was received and acknowledged the day it was written. The pages carry the folio numbers 10 and 9, which suggests the papers were part of a larger collection.
A word on dates, since they were queried. Bradley Allen’s later letter describes Mullins as having written on 9 December, and Mullins himself, in January 2004, refers to his letters of 9 and 11 December. The copy in my hands is dated and stamped 12 December, and its requests are the same ones Bradley Allen lists. The natural reading is a sequence of correspondence over several days in which the same demands were made more than once. Nothing that follows depends on which date one prefers, and the repetition is itself part of the story: Pham was asked, and asked again.
The letter opens by taking up Pham’s Minute of 19 November 2003 on recruitment to the Commissioner position. Pham had said recruitment was delayed by “unexpected circumstances.” Mullins asks what that means. She had noted that the Treasury Chief Executive, Mike Harris, had been seconded to lead the Chief Minister’s Department, and he asks how that is connected to the delay. She had said that Graeme Dowell had “accepted reassignment to the position for the long term,” and he asks on what basis, and whether Dowell had been permanently appointed.
Then comes the background, and it is a useful chronology. Mullins began acting as Commissioner on 10 May 2002. Dowell, the previous incumbent, had accepted a permanent transfer before Mullins took up duties. In about July 2002, Mullins says, Pham told him Dowell would not be returning, advised him not to apply for one of three policy director positions then advertised at the same level, said he was performing satisfactorily as Commissioner, and said she would be happy to be his referee. The Commissioner position was advertised for permanent filling in March 2003 and attracted many applicants, Mullins among them. On or about 1 April 2003 she told him in person that the process had been suspended temporarily to allow grievance complaints against him to be investigated, and that the suspension was temporary “so as not to prejudice my application for the permanent position.” Mike Harris delivered the grievance report in late October 2003 and asked for a response by 21 November.
On 19 November, two days before that deadline, Pham’s Minute told Mullins the position would not be readvertised and that Dowell had been reassigned to it. Mullins delivered his response to the report on 21 November, the date he had been given, after the decision had been made. He describes the report as, at best, failing to make any findings against him and, at worst, repeating “unsubstantiated innuendo and rumour.” He says nothing in it required action against him.
One further detail belongs in the record. Angel Marina’s letter to Treasury Chief Executive Howard Ronaldson, which is overtly racist, is dated 9 May 2002. Mullins began acting as Commissioner the following day. That is a documented coincidence of dates, not an inference of motive, but it means the Department was in possession of that letter from the first day of Mullins’s tenure.
The Question With No Safe Answer
Having set out this history, Mullins asks for a written response on four things: the basis for removing him, the basis for halting the recruitment process, how those decisions were not discriminatory under section 65(1) and (2) of the Public Sector Management Act 1994, and how the grievance complaints against him were not racially motivated under the Racial Discrimination Act 1975. He also asks the Department to review its decisions, invoking clause 20.8 of the Chief Minister’s Department Certified Agreement 1999–2002.
The first two questions are administrative and could have been answered in a paragraph each. The last two are of a different order, and they are where the letter becomes dangerous to its recipient. To show that a grievance was not racially motivated, one has to say where it came from. One has to describe what the Department knew about the person or persons who initiated it, what those persons had already written, and whether the investigation had grappled with any of that. The document standing at the head of that history is Angel Marina’s letter of 9 May 2002. Mullins’s letter does not name it, but it did not need to. Nobody could answer the question honestly without walking through it.
That is why I think Pham did not answer, and I offer this as inference, not as documented fact. To this day there has been no reply on either the discrimination question or the Racial Discrimination Act question, and Bradley Allen’s letter of 18 December says so in terms: to date you have failed to respond. A public servant who says nothing is not necessarily concealing anything, and I should give the alternative its due. A Chief Executive who has just received a letter foreshadowing litigation might reasonably prefer to route her reply through the Government Solicitor, and lawyers habitually counsel silence in the interval. That is a genuine possibility. But there is a difference between deferring an answer and never giving one, and Pham chose the latter. Silence has a cost, and here it was paid by the person who had asked the question.
There is a deeper principle at work. Procedural fairness has two ancient limbs: that a person be heard before an adverse decision is made, and that the decision-maker be free of the appearance of prejudgment. Seneca’s Medea puts the first with a bluntness the common law has never improved upon: the ruler who decides a matter without hearing the other side has not acted justly, even if the decision happens to be right. The High Court adopted the modern form in Kioa v West (1985), and the apprehension of bias test in Ebner v Official Trustee in Bankruptcy (2000). Bradley Allen invoke both limbs in their letter, and the facts they allege fit them. The decision was made on 19 November, two days before the response was due. The investigating officers, they say, “may have been prejudiced as to the outcome.” The clock, in other words, ran the wrong way: the verdict preceded the hearing.
The Letter Nobody Received
On Thursday 18 December 2003, at 4:40 pm, Helen Mitchell of Bradley Allen sent Mullins an email at his government address. The body of the email says only that a letter to Ms Pham is attached. The attachment, a Word document of 33 KB, is named 162424.doc. The letter itself, dated the same day and over the name of Michael Long, carries the footer F:\Docs\123203\162424.doc. The file names match, so the email and the letter are indisputably the same communication.
The letter is headed “Without Prejudice,” which is the convention for settlement correspondence, though it is also the formal record of a position. It recites that Mullins wrote on 9 December asking for a written response on the four matters above and that Pham had failed to respond. It records that she had written to him on 12 December, and it takes issue with what she said. She had concluded that Mullins breached section 9 of the Public Sector Management Act without identifying which part of the section or how. She had also indicated that the Department would revise its policies and examine “the possibility of third party complaints being investigated by the Chief Executive in a manner consistent with the principles of natural justice and proper administration.”
That last passage is worth pausing over. A department that announces it will examine how third-party complaints can be investigated consistently with natural justice has, at the least, conceded that the process it had just used was capable of improvement. Bradley Allen seize on it. Mullins, they say, has not been afforded natural justice, and they list the particulars: he was not given complete transcripts of the interviews, he was asked to respond to allegations in an ad hoc manner, he was removed on 19 November before he was due to comment on 21 November, and his letter had gone unanswered. They add that the final report makes no recommendation requiring his removal, that his career prospects and income have been damaged and will be damaged further, and that if the Department will not review its decision they will seek referral to a Disciplinary Appeal Committee under section 191 of the Act. They also say they hold instructions to approach the Department to resolve the matter before proceedings begin.
Pham denied receiving the letter, although Bradley Allen held both a read receipt for the emailed copy and a fax transmission report for the faxed copy. The read receipt and the fax transmission report makes the denial difficult to sustain, and Bradley Allen evidently thought so. On 22 December 2003 the same letter was sent to Mike Harris, Pham’s immediate superior, so that there could be no dispute that the Department’s leadership held it. That is why the letter carries two dates in the story. It was written on 18 December and it reached Harris on 22 December. Both dates are correct because they describe two different events.
It is also on 22 December, according to Mullins’s email of January 2004, that Bradley Allen lodged a grievance against Pham with the Department. The Department’s Acting Chief Executive had become the subject of a grievance arising from the way she handled the complaints against him.
Options for a SOG A Position
The last document I want to discuss is a short exchange of 16 January 2004. At 11:19 am Pham emailed Mullins, copying Meredith Whitten, under the subject “Staff in Confidence.” She referred to their meeting of 15 December 2003 and to “my decision today on the grievance matters,” and asked whether they could meet the following week “to further discuss options for a SOG A position within Treasury.” SOG A is a Senior Officer Grade A classification in the ACT Public Service, and the offer, read plainly, was a new job.
Sixty-seven minutes later, at 12:26 pm, Mullins replied, and it is one of the more revealing documents. He reminded her that his lawyers had lodged a grievance against her on 22 December, that his legal advice was not to meet without his lawyer present, and that there would be no meeting until she responded to the racism issues he had raised in his letters of 9 and 11 December. He then reported a conversation. On Friday 19 December, the day after the Bradley Allen letter, Pham had said words to this effect: “if you continue down the path of litigation, the department will use all of its resources against you. I fear for your reputation.” Followed by you have protected Angel Marina for nearly two years, since the 9 May 2002 letter, and your actions would eventually have to be explained before the Human Rights Commission, which in 2004 was still the Human Rights and Equal Opportunity Commission.
The threat is an allegation. It is Mullins’ recollection, recorded in an email a little under four weeks after the conversation and reported to his lawyers, and Pham to this day hasn’t responded. I do not present it as established. What can be said is that it was put to her in writing, contemporaneously, and in specific terms, and she did nothing to deny it.
What can also be said, and this time from the face of the documents, is the shape of the outcome. On the day a decision was made on the grievance matters, the Acting Chief Executive did not write to the man who had asked in April to be told what he was accused of, or to the man who had asked in December how her decision was not discriminatory. She wrote to offer him a different job. The institution’s answer to a complaint about racism was not a finding, not an explanation and not an apology. It was a transfer. The coupling of a decision on complaints with a conversation about alternative posts tells us what the Department envisaged, which was that Mullins would not be Commissioner again.
The Cost, in a Clinician’s Hand
The last document I want to discuss is of a different kind. It is a letter dated 12 February 2007 from Dr Jillian M. Fleming of Fleming Forensic and Clinical Psychology Services in Canberra to Robert Coen of Pamela Coward and Associates, Lawyers, replying to a letter of 15 December 2006 that asked for a medico-legal report on Mullins. It is marked Psychology-in-Confidence. It is a retrospective report prepared for legal proceedings more than three years after the events, and much of it records what a patient told his psychologist. Dr Fleming records when Mullins sought help because the racism he was being subjected to, and the lack of departmental support became a burden too heavy to be carried by himself alone. The letter offers something no other document I’ve discussed in this essay can: a dated, independent record, made by a clinician who saw him at the time, of what the process was doing to him. The precipitating reason for Mullins visit to his doctor and the cause of his stress can be deduced from a statutory declaration sworn by him in the presence of Commissioner for Declarations Joseph Tonna on 12 September. Mullins recounts returning from lunch to find that his assistant had found Angel Marina in the Commissioner’s office with the with door locked, and that Marina had left with several files. Subsequently, Mullins found numerous personal and department documents missing, including his application for his substantive position and information relating to the complaint from Allan Wylucki that had triggered the Acumen Alliance Audit into rates and tax collection.
The dates are the firmest part. Dr Fleming records that Mullins was referred by his general practitioner for help with stress and first attended on 18 September 2003, then attended seven further sessions on 2, 9 and 21 October, 3 and 26 November, and 11 and 22 December. Set those beside the chronology already assembled and they fall into place. He was seeking help five months after the recruitment process was suspended in April, and about five weeks before the grievance report reached him. The 26 November session came a week after he was removed and five days after his response to the report was lodged. The session of 11 December falls between his letters of 9 and 12 December. The last recorded session, on 22 December, is the day Bradley Allen lodged the grievance against Pham and the letter of 18 December was put before Mike Harris. The first appointment predates the removal decision by two months, which suggests that the strain came from the grievance process itself and did not begin with its outcome.
The letter summarises what Mullins reported across the course of treatment. He described stress arising from harassment, bullying and racial attacks by a work colleague, which the letter puts at the previous six months in one place and at eight months in another, a discrepancy it does not explain and which may simply reflect different points in the treatment. He said the process had damaged his reputation within Treasury, that he had lost his position as Commissioner for Revenue, that he feared this would keep him from similar work, and that he felt he had been denied natural justice and had lost faith in a system he had once believed in. Dr Fleming records sleep disturbance, rumination and excessive worry, lowered self-esteem, loss of interest in things he had enjoyed, and feelings of hopelessness and dread about the future, together with difficulty concentrating on the rest of his life and on his duties as a father and husband. She treated him with counselling, cognitive restructuring, relaxation and stress management, and concluded that his symptoms were consistent with a recognised depressive illness of the kind often linked to stressful events in a person’s life. I have kept the clinical detail to what the argument requires.
The report cannot verify the underlying allegations and I do not use it for that. It is written years afterwards for a legal purpose, and its language about natural justice and due process echoes the language of Bradley Allen’s letters, which is exactly what one would expect of an account given to a psychologist by a man in the middle of a dispute. But the letter shows two things the other papers cannot. It fixes, by date, that Mullins was in treatment throughout the period in which the Department was deciding what to do with him. And it puts a human measure on what procedural unfairness costs. It is easy to discuss natural justice as a doctrine, a right to be heard before a decision is made. It is harder to picture the man in a consulting room in Phillip on 26 November 2003, a week after being removed from his position, and again on 22 December, still waiting for an answer to a question he had put in writing. On his account, and now on a clinician’s, he was harmed twice: once by the words directed at him and again by the machinery that was supposed to answer them.
What the Paper Shows
Put the documents in a row and the pattern is plain. In April 2003 the Territory’s own solicitor was told in writing that Mullins had been racially vilified by two subordinates. In November the Department removed him and closed the recruitment process before he could comment on the report that supposedly justified it. In December he asked, twice and in writing, how those decisions were not discriminatory and how the complaints against him were not racially motivated, and the Department did not answer. When his lawyers put the same demands in a formal letter it was said not to have been received, and it was sent again to Mike Harris, her immediate superior. When a decision on the grievances finally arrived in January, it came with an invitation to consider a different post. Throughout those months, on the evidence of his treating psychologist, he was attending regular appointments for the strain of it.
None of this requires a theory of malice. It requires only that we read what the documents say and notice what they do not. A public service that receives an allegation of racism has three honest responses available: investigate it, answer it, or explain why it will not. What the record shows is a fourth: to treat the question as an inconvenience to be managed, by delay, by silence and by relocation. Seneca’s sentence about the ruler who decides without hearing the other side was written about a king, but it applies with equal force to every officer who holds the power to end someone’s work. The test of a decision is not only whether it was right but whether it was reached by a process in which the person affected could be heard. These papers show that Mullins was not heard, and the one question that would have forced the Department to explain itself was the one it chose not to answer.
That is the question Tu Pham could not answer. It was not an obscure question or a difficult one. It was simply a question whose honest answer led straight back to a letter dated 9 May 2002, and to everything the Department had done, and not done, in the twenty months since.
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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, October 2026
This Tu Pham woman sounds like a vile, disgusting person.