TEL PRIME MINISTER]
TRANSCRIPT OF THlE PRIME MINISTER, THE HON P J7 KERTING, MP
PRESS CONFERENCE, 14 MAY 1992, CANBERRA, WA ROYAL COMMISSION
E Ot PROOF COPY
PM: Well thank you for coming. I have issued a statement
to you today saying that recent statements by Mr
Templeman, a Barrister servicing the West Australian
Royal Commission, and todays statement by the West
Australian Commission Chairman, Mr Kennedy, that the
Commonwealth Government has impeded the ability of the
Commission to obtain tax information. Both of those
statements are incorrect.
The Commonwealth Governent has been seriously and
wilfully maligned on this issue. Now today I have
received advice from the Commissioner of Taxation, or
the Treasurer has, and he has passed it on to me, that
a Western Australian Police Unit is working with the
Royal Commission, and that this Unit is empowered to
seek tax information from the Australian Tax Office.
And that minute which you have in front of you with the
number 4 at its top says, that en amendment to the act
in 1989, Section 3( e) was inserted to the taxation
amendmnent act to allow Controlled access for nominated
law enforcement agencies to tax information. Provision
authorises me, that's the Commissioner, to provide tax
information if I am satisfied the information is
relevant to establishing whether a serious offence has
been, or is being committed. And he goes on to say
over the page, " It's my understanding that the Western
Australian Police have a Unit working with, and
assisting the Royal Commission in that State. Section
3 allows us to provide tax information to that Unit for
the purpose of its investigation of a serious offence"
" In other words, as to serious matters there is
potential for us to assist the Royal Commission, says
the Commissioner. This facility was explained by my
office in Perth, to the Royal Commission staff erly in
the process, and we would have supplied available
information had the Police asked for it. In fact there
have been no Police requests for information". He goes
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have been no Police requests for information". He goes
on to say he understands hie Deputy Commissioner in
Western Australia and his staff are maintaining close
liaison with the Commission. And importantly in the
last paragraph, last sentence he says, the
Commissioner, Mr Boucher says " We stand ready to assist
the Royal Commission by supplying information to its
Police Unit, as authorised by Section Now the
fact is that was explained to the Western Australian
Royal Commission in February in 1991 and the Commission
has not availed itself of the use of that provision.
That provision was inserted after the Government agreed
to give tax information to the Fitzgerald Royal
Comnmision. Now what the West Australian Royal
Commission sought, was not the power of information
about of fences and the prosecution of of fences, or
information on specific of fences, serious of fences, but
a broader power to require of the Commissioner, that
any information requested be provided to the Royal
Commission. In other words, what the Commissioner calls a " fishing
licence", that is, to be asking for information
broadly. So any Western Australian, any Australian,
associated with, in any way, with any person under
investigation by the Commission can have their tax
returns made available to the bevy of Queens
Councillors and Commission staff, as the Commission so
decides. And the . Commonwealth has always taken the
view this is unwarranted invasion of the secrecy
provision to the Tax Act and the privacy of
Australians. And that for serious crime there were no
practical impediments to the Commission seeking
information. Now the Commissioner has made his position clear on
that point. Again in the minute number 4 he says,
" Again I indicated previously the type of access which
the Fitzgerald Commission enjoyed was a wide one. It
was to Information needed for the purposes of the
inquiry, if and when the Royal Commissioner asked for
tax files I was in no position to gain say his claim.
That release of the information was authorised by the
enabling provision". In other words, that is the broad
form of the provision will allow requests of even a
fishing kind.
In other words, the great phalanx of Tax Lawyers and
Barristers who fill up the first class compartments of
Ansett and Australian, from Melbourne, to Sydney, to
Perth every week and to go back with their brief cases
bloated with papers, can go back bloated with the tax
returns of West Australians and Australians generally.
And the Government quite correctly said no to that, no
to that. But we a1so said that we would facilitate
Information. Now it Is not just simply a matter of me
agreeing with a recommendation of the Commissioner, so
to did Mr Willis for the same reasons. And the
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Commissioner put his view again forcefully in the
minute headed 2, which I have given to you. on my
advice the Western Australian Commissions request for
access was rejected, he told Mr Willis. And he went on
to Say " I would like to reiterate my view that the
confidentially of income tax information is important
to the administration of the tax laws. I do not
consider this position should be further eroded by
giving access to the Western Australian Commission".
And at the bottom he goes on to say, " I again recommend
that the Government not support the Western Australian
Commissions request for access to Income tax
information". And he makes clear in ' the letter headed
2, that the granting of access to information for the
Gyles Royal Commission in NSW was also refused on the
same basis.
Now, can I just say a couple of other things about Mr
Templemn and his remarks the day before yesterday.
And I refer to the Transcript which I think we have
included in the papers I have given you, It is the
document headed 5. At the bottom of the page under
exhibit 3147, about 1/ 3 down the page, at the last
paragraph Mr Teinpieman says, " The Treasurer then
referred to the existing law, and concluded by saying
that in the present case any request for pacific
assistance could be made In the context of an
investigation, subsequent to the completion of the
Royal Commission, provided the information sought
relates to a particular offence by a specified person,
and there in of course, with respect, lies the
difficulty of identifying the particular offence or
specifying a person at this stage of the inquiry.
How could their be any difficulty at this stage of the
inquiry? At this stage the inquiry's reaching Its
final stages. And is Mr Templeman asserting that even
after 210 days of sittings, 497 witnesses, 31,000 pages
of transcripts, 3200 exhibits, a staff of 15 to 18 and
6 senior counsel, at a cost so far of $ 16 million, that
he couldn't even talk about a specified person, and
there in of course with respect he said, or a
particular offence or specifying a particular person at
this stage of the inquiry. I mean, doesn't it strike
you as strange that at this stage of the inquiry, that
this Commission having run this period, can't put a
request through its Police Unit to the Tax Commissioner
for information about a specified offence, concerning a
specified person. Because that's in fact, what is
being said.
Now as I said yesterday, I am not interested in the
apologia, or excuses by highly paid Barristers,
counsel, Servicing Commissions, in giving us some for
taste, or portending, the progress of the Commission.
I am interested only In the possibility of serious
crimes being dealt with, and being dealt with in a
conclusive way.
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And I refer you in that respect to Mr Hartnell, who on
3 may 1991, the AuStralian Financial Review, had this
to say, he said he did not think very kindly of Royal
Commissions at this time, " I am merely saying that the
public has to understand every time you have a Royal
Commission it delays trials. The Royal Commission are
ensuring that the bloodlust doesn't come to early
fruition. When there is an investigative force
professionally set up to Investigate an agreement and
charged with bringing actions under lawful
investigations, I am frankly not in favour of Royal
Commissions. At the present time obviously there are
huge criminal actions being brought which we are
bringing through the Office of the Crown Prosecutor in
Western Australia". And he went on to say that certain
trials could be deferred by up to two years because of
the Western Australian Royal Commission. Now Mr
Hartnell's Security Commission is one of the Parties
provided with access to tax information, and I might
add if you look again at minute 4, so is the NSW
Independent Commission against Corruption and the NSW
Crimes Commission.
So those elements of the media who yesterday published
or telecast Dr Hewson's mealy mouthed statement that
the Government had acted in a preferential way, So as
to protect so called " Labor Mates", might indicate to
the public that a commission which was set up
supposedly to investigate corruption under the former
NSW Labor Government, was given access to the Tax
Office explicitly by an Act of Parliament. So that
should at least demolish that argument.
Could I just make a couple of other points. In a note
for file by an Australian Tax Commission officer on 19
February 1991, he said this, I also outlined Section
3( e) of the Tax Administration Act as a possible
alternative means that the Commission could use to
pursue access to ATO Information. However,
reservations were expressed as to the many problems
that could be encountered", wicks stated that they
would not consider this option.
Now this is a very high handed approach by Mr Wicks.
When a tax officer explained that an avenue of tax
information is available, they said well thank you for
the explanation and the offer, but thank you, but no
thanks. Thank you but no thanks. The Commissioner is
again repeating the offer today in his minute to Mr
Dawkin's where he says, the Tax Office stands ready to
assist the Royal Commission by supplying information to
its Police Unit as authorised under Section 3. And I
refer you also to the introductory note for the
legislation of Section 3( e) which says this: " broadly
proposed Section 3( e) provides the Commissioner of
Taxation with the discretion to disclose taxation
information to an authorised law enforcement agency
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officer. Such disclosure is conditional on the
Commissioner being satisfied that the information Is
relevant to the investigation of a serious Crime or
post convictions, confiscation and restraining order
proceedings. The information may be disclosed by the
Commissioner either on his own initiative or in
response to a request by a low enforcement agency
officer," m and it goes on but they're the main points.
" Such disclosures are conditional on the Commissioner
being satisfied that the information Is relevant to the
investigation or a serious offence". I should of
thought the whole point of the investigations In
Western Australia were the investigations of serious
of fences.
But if the notion is that the Commission only needed a
fishing licence approach to the tax system, to call up
tax files of all citizens in this country at the behest
of the Commission or councils before the Commission and
that the question of serious of fences was not an
important consideration in that request by the
Commission to the Government, but begs the question
what does a Commission see as its purpose.
I think I'll conclude on this point, the commissioner
of Taxation has deemed Section 3( e) available to the
Commission as an Investigation process or serious crime
that's the bottom line.
And I just want to make one final point, though not
related to this but related to the debate a Mr Bevan
Lawrence today on the radio program ' AM' criticised me,
I want to brand Mr Lawrence as a hypocrite and I do so
because he campaigned under a banner along St Georges'
Terrace in Western Australia against the Australia Card
on the base is it was incursion into the privacy of
Australians and is now arguing that peoples tax files
should flutter from the Tax Office at the request of a
Royal Commission or its Council even though it may not
be for a serious offence. Now that sort of hypocrisy
and humbug, I think, we can all do without.
J: Prime Minister, what do you think the priorities of the
Royal Commission..
Pm: I remind you again of these factors, Peter, the
Commission sat for 210 days, its issued 859 summonses,
and 497 witnesses have been called, its now taken
31,000 pages of transcripts in its proceedings and
3,200 exhibits, It has 6 senior council and 15-18 legal
staff and its cost to date $ 16 million. You've got to
ask the Western Australian Government what's Its
purpose was in establishing the Commission because
there's one thing that's entirely clear, in terms of at
least some serious of fences committed in Western
Australia or alleged serious of fences, the appropriate
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prosecuting agencies already had prosecutions In hand
as Mr Hartnell amongst others makes clear.
J: Mr Keating, why was it justified even though the
Fitzgerald..
PM: Well, you'll notice in the minute which is at Number I
that the Second Commissioner, Mr Nolan makes it Clear
that the amendmients should be seen as a one-off
relaxation of Section 16 because of the dividend in
uncovering tax evasion, that is it does not establish a
precedent for the disclosure of tax records. Now it
turns out, I think, that the Tax Of fice was itself
mounting prosecutions in this area independently of the
work of this Commission and this Commission could have
been seen to be helping in those prosecutions. In
other words, there was a revenue dividend from it, but
again that note which was written In 1987 made it quite
clear that it does not seek to establish a precedent.
J: ( inaudible)
PM: No but it's not convenience, the Tax Office has been
given a charter by the Parliament to collect the
revenue. I mean efficiency in the collection of
revenue and costs and prosecutorial processes matter,
it's part of the Commissioner's responsibilities to
Parliament.
3: Prime Minister, $ 500 million has disappeared from
Rothwells it's a very serious Investigation, it
goes to the very top of the list in Australian
Government and indeed the Tax Office tried to make it
out as asking for people to flutter bits of paper out
the Tax office window.
PM: if they are seeking a fishing licence that is for a
broad ambit capacity to seek tax information of
Australians, then that does not go to specific
individuals or particular cases.
3: You said for the purpose of the enquiry that it's the
same criteria for the
PM: No that's what you say, that's what you claim. No not
at all, that's not correct. It is as the Commissioner
says, he cannot gainsay. In other words, once you
provide this you can't say, oh look you can have this
and not that. It's a case of you can have what you've
asked for.
J: Do you regret the decision to grant Mr Fitzgerald a
fishing licence?
PM: I think, in the out-turn of it all, no and I didn't
regret it then, but we made amendments subsequently
which have been appropriate and which have obviously
worked and we have similarly denied, as we have the
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West Australian Royal Commission, access to the Gyles
Commission in NSW, but the agencies are there and the
Police Units are attached to this Commission.
Apparently the Commission doesn't which to use the
Police Unit.
Why didn't we know this yesterday?
PM: Why didn't you?
3: Yes.
PM: Because one doesn't know what's been said in the course
of the day or what one should be responding to.
3: How do you respond to the request by the Premier of
Western Australia to release information and the Deputy
Speaker Ron Edwards?
PM; I reject them, I reject those requests for the same
reason that the Commission has recommended now to a
succession of Treasurers that they reject the request
to the Commission generally.
3: ( inaudible)
PM: There most be a vote of confidence by the Government in
the secrecy provisions of the Tax Act. That
Australians do have a right to privacy and that if
Commissions which to pursue particular investigations
with some specificity the avenues are available as a
Commissioner of Research for those investigations to
take place. But the notion that the tax office is
going to be ripped open with a can opener, like a can
with a can opener so that anybody can request
information about any particular persons without the
Commissioner having a discretion is, of course, not
acceptable.
J: Couldn't the Commissioner use his discretion, couldn't
he just make sure that it's not a complete fishing
exercise, so that the Commissioner can ensure that it
applies in terms of reference?
PM: The only way we believe that was possible, was-an
amendment to the Act in relation to the Fitzgerald
Commission and that amendment was made, but as the
Commissioner said in the terms of that amendment he
didn't believe he could gain say his claim that the
release, that he could then make judgements.
J: Couldn't he pass an amendment for this Commission to
make it a little bit tighter than the Fitzgerald one so
that the Commissioner could ensure that it was within
the West Australians Terms of Reference?
PM: I think the fact Is that the prosecuting agencies are
established under legislation and one of those happens
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to be the Western Australian Police Force and they are
attached to the Commission.
J: Mr Keating, do you agree with Mr Hartnell that the
Royal Commission is simply getting in the way of the
real issue?
PM: I'm not in Mr Hartnell's position and that's a
judgement he has made. Royal Commissions hays produced
findings of value but as to prosecutions I think that's
a matter for judgement in Mr Hartnell's terms
obviously.
J; Mr Keating, the Commission has been prominent up
until now in protecting these of fences and individuals
and that the reason for them seeking this wider power
Is because it has been incompetent up until now.
PM: I don't think, if the implications of Mr Templeman's
remarks are that after all this time and expense that
he's trying to establish some apologia or foretelling
the Commissions progress or its processes on the basis
that a succession of Treasurers in the Commonwealth
Government and the Tax Office have not allowed them tax
information that in floating that notion, as I said
yesterday, I think that is disingenuous.
J: ( inaudible)
PM: Well that was 8 conclusion I drew yesterday.
3: Costigan and Fitzgerald proved that you have to follow
the money trail and following the money trail has
people showing income and that's the whole point.
PM: The powers this Commission has enjoyed, its terms of
reference and those who've been brought before it are
very, very extensive.
J: Mr Keating, with the nature of this advice from the Tax
Office was pressure put on the Tax Office in the
Fitzgerald case which was commenting obviously
fairly late in the piece on the proposal the next
day by the Attorney-General looks as though it would be
more reluctantly whereas the later advice is much
more robust.
PM: If you look at the minute it says, ' we retain our
concern that the widespread availability of taxation
information for non-tax purposes may lead to a reading
down of our information gathering and access powers by
the judiciary'.
J; In other words, is it going along with government
reluctantly for good reasons.
PM: No, I think it recommended this advice, this is a note
to me I was then Treasurer, from Mr Nolan
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3: ( inaudible)
PM: The Tax Office has never been full bloodedly accepting
of the notion that its resources should be available to
all law enforcement agencies or Royal Commissions.
3: What about the case of Fitzgerald?
PM: No, because in Fitzgerald's case, I think, for the
reasons they say in the minute, they saw sufficient
reason to agree.
3: Surely, there is much more money available from
potential tax evasion from this Commission than the
Fitzgerald Commission, I mean that's more time compared
to the West Australian Commission.
PM: Is that a qualitative judgement by you?
J: .0 projection of revenue issues involved with WA shows
( inaudible)
PM: There may well be, but I'm not aware of them.
3: Surely that's a very relevant piece of policy because
that was a key turning point in criteria on which you
madees
PM: It was a turning point, but since then we've had those
amendments. That's what I'm saying to you in Section
3( s).
J: 3( e) is useful if you are positive this is en
investigative thing prosecuting agency, WA Royal
Commission is not a prosecution..
PM: No you don't. For a start it's got it's own
investigative powers,. its power to call witnesses and
to question to them and they have been extensive have
they not? And beyond that If they are focussing, where
Mr Templeman talks about a number of players in Western
Australia, surely they are not that extensive the
numbers of players that they can't In specific terms
ask the Australian Tax office through their Police Unit
for assistance and advice.
3; Does the saying about a stringent protections of the
privacy imply to Royal Commissions set up by the
Commonwealth Government as implied to ones set up under
the States?
PM: I think it depends upon the letters patent and the
terms.
3: Mr Keating, inaudible At what stage does it
have to get before it can actually require from the Tax
office specific information, does it have to have a
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specific charge in front of it? In other words from
the Royal Commission?
PM: No, it's got to be relating to an offence which Is
serious.
J: How do you establish the offence?
PM: It's described in the legislation it Says anld I'll find
it " it can be punished by imprisonment of up to 12
months or more".
J: MY point is who establishes the offence, does the Royal
Comm~ ission have to establish the offence before the
enforcement agency can ask for Tax Office information?
PM: It's a matter of the qualitative thing whether it's
serious or not.
J: Well is an alleged offence, possible offence or
whatever
PM: obviously where the consequences of the offence are
serious and if they're not serious one would wonder why
they would want information.
J: What's the onus of proof, who establishes that it is a
serious offence?
PM: I think that would be fairly apparent, would it not,
from both the police agency and the Deputy Commissioner
of Taxation.
J: Doesn't that extra situation apply. If the
Commissioner suspects something but can't prove the
PM: Yes, but this is on the notion that you think an
offence is only visible within the information provided
on the Australian Tax Office's computers. This
Commission has been able to follow the transactions at
their source legally and by inquisitorial process of
witnesses.
J: Mr Keating have you met Greg Symons?
PM: I'm not here to discuss the Symons issue, Senator
Richardson or any matters associated with it. I've got
a report coming from Senator Richardson and Senator
Sibra and I'll deal with that when I receive it.
That's it, have you got any more questions on the
Commission?
J: WA Inc inquiry may not be used to capacity. The
minute says there is a friction between the Police Unit
and others associated with the Commission as some have
suggested, who suggested that?
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PM: Well I'm reasonably, reliably informed that there Is
some antipathy between the Police Unit and the other
bureaucrats in the Commission.
3: Mr Keating, I sorry I'm still not clear on the answer
to Glenn's question. Can you give us some more
information please on the question of how far the
allegations go before it's able to..
PM: It has to be, I think, demonstrably an allegation that
there is a demonstrable serious offence.
J: There only has to be a reasonable allegation?
PM; Absolutely.
3: Mr Keating, how much damage will your refusal of Carmen
Lawrence's approach today do her politically and to
Labor?
PM: Frankly, with all due respect to Premier Lawrence and
anybody else, politicians asking plaintively by press
release for broad access to the Tax Office and its
resources are not to be taken seriously by the
Commonwealth.
J: Should her promise then to the West Australian people
not to leave a stone unturned when the Commission began
also hold as much weight as that then?
PM: I think in terms of the serious underlying issues
involved there, I think that that promise can be made
good and it's important that It is.
J: With this friction between the Police Unit and the
Commission is stopping the Police Unit
PM: Well that's part of your occupation, why don't you try
and find out. These are the things which journalists
should enquiry about.
3: Mr Keating, are you entirely satisfied form of
bankrupt.
PM: I told you I'm not answering, Tom don't play silly
games with me, I'm not answering questions on it. Have
you got any further questions on the West Australian
issue?
J: Mr Keating the two reports on the Symons issue will
they be publicly received?
PM: Wait until I get the reports. Thank you
ends