Taxation commissioner Chris Jordan is standing his ground after being accused of abusing parliamentary privilege in Senate estimates by using the high-profile hearings to deny claims that whistleblowers Ron Shamir and Richard Boyle suffered reprisals for speaking up.
Several senators were taken aback by Jordan’s opening statement to the economics committee on Wednesday, in which he hit back at claims made by Boyle and Shamir and the way they have been reported in the media.
Jordan told the committee he wanted to “inject some balance into this conversation” and predicted his decision to go into detail about Shamir and Boyle would be controversial. “No doubt I will attract criticism for doing so and may be accused of being defensive,” he said. He was right.
“I note that both employees were subject to ongoing workplace performance or conduct issues that were close to finalisation and likely to result in their termination,” Jordan continued. “This was well before seeking these whistleblower-style protections. This is in stark contrast to the public portrayal that they were terminated as a result of whistleblowing.”
Greens senator Peter Whish-Wilson said there was “a general feeling of anger” among his fellow committee members and said Jordan had damaged the reputation of parliament itself. He asked if the statement could be expunged from the Hansard record because, in his view, it included new allegations that were not previously public knowledge, concerning legal and disciplinary proceedings involving the two former ATO employees, who did not have a right of reply.
That is unlikely to happen, the ABC reports, and Jordan is sticking to his guns. Senator Rex Patrick feels “it’s impossible to unhear what was heard” in any case, and the full statement has been published by the Australian Taxation Office.
Both whistleblowers were terminated and Boyle faces considerable jail time after being slapped with 66 charges related to information and communications, like disclosing protected government information to third parties and recording phone conversations without the other party’s consent. As the case is currently in court he is limited in what he can say publicly.
“These alleged offences were not as a result of any content reported in the Four Corners program, or any other reporting,” said Jordan.
“The commentary around this second issue has been at times deliberately sensationalist, with reports that the defendant is likely to face 161 years in jail. Now this is simply a blatant and knowing mischaracterisation of our current sentencing systems. Convention holds that sentences for similar related offences are usually imposed concurrently rather than consecutively, having regard to the overall circumstances.”
The commissioner said the ATO had been contacted by a taxpayer who had been asked by Four Corners if their tax affairs could be discussed in the report. “Just imagine, for a second, how you would feel, if any one of our employees could start shopping your private information around to media outlets,” he told the committee. “Imagine if you knew your data and records were subject to the individual discretion of some unknown tax officer.”
The two cases have been amplified through a separate Senate inquiry into the performance of the Inspector-General of Taxation.
Patrick had previously repeated claims made by Shamir in his submissions to that inquiry, which were directly contradicted by Jordan in the estimates hearing.
These include the claim that his sacking was a direct reprisal for his disclosure to the IGT, which would be a crime on the part of the ATO, except the IGT accepted that he was sacked for other administrative reasons. Jordan said the Fair Work Commission had rejected an unfair-dismissal claim from Shamir, in which he did not argue he was sacked as a reprisal for his disclosures.
Patrick said the commissioner’s opening statement was “highly irresponsible” and that he picked the wrong committee room on the wrong day. “Grandstanding the issues at Senate estimates, which are proceedings designed to deal with other matters, was inappropriate,” he said.
Jordan went into considerable detail in an effort to paint Shamir as a troublesome employee who “had a somewhat similar experience” in a previous job. The committee declined to let him table “a detailed timeline of Mr Shamir’s employment and the incidents that occurred, to underscore the extensive and serious nature of his behaviour and to emphasise that his termination was not any form of reprisal for his role in the IGT enquiry, but simply for refusing to perform any duties”.
As for Boyle, he said inaccurate media reporting could “undermine the community’s trust and confidence in the tax system, or deter genuine whistleblowers from coming forward” while Whish-Wilson said the commissioner’s decision to use Senate estimates as a bully pulpit could have a similar effect, deterring people from speaking to Senate inquiries.
Elsewhere in Senate estimates, the head of the Australian Cyber Security Centre, Rachel Noble, also cast aspersions on two individuals — researcher Suelette Dreyfus and US National Security Agency whistleblower Thomas Drake — when explaining why the agency controversially bumped them off the program for the recent conference, CyberCon 2019.
Noting they planned to appear on a panel with NSA whistleblower Edward Snowden, Noble said all three were “known public advocates for unauthorised disclosure or the leaking of classified information outside of legitimate whistleblowing or lawful whistleblowing schemes” and she worried the delegates might hear views “inconsistent with Australian government laws and our processes and our values”.