The Commissioner of Taxation's "absolute immunity" is fading

Absolute Immunity for Commissioner of Taxation relying on false evidence

A Federal Court of Australia case involved allegations that senior officers of the Australian Taxation Office relied on false and deceptive evidence in two earlier proceedings. 

Barristers briefed to defend the Commissioner of Taxation claimed that his senior officers, and his legal representatives had "absolute immunity" for anything said and done in those proceedings. There was NO denial of the alleged false and deceptive evidence used to deceive judges in the two earlier proceedings. 

A new application to set aside the decision in the above Federal Court of Australia on the grounds that it, too, was obtained by false and deceptive submissions by the Commissioner of Taxation's legal representatives has been marred already by new false evidence and submissions. 

No Absolute Immunity for Commissioner of Taxation

An crucial difference this time around is that the next use of false evidence is an alleged fact that is plainly not true. 

It also came just weeks after a Federal Court of Australia judgment that warns of "consequences" for parties that make allegations against another party with no evidence on which the allegations can be based. In the judgement Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339 (10 April 2025), Katzmann J stated at [100] – [104]: 

100    The applicants filed the 3FASOC on 7 May 2024 — almost six months after AGS informed their lawyers that none of the individual respondents approved the vaccines.  In these circumstances, the allegations of misfeasance in connection with the approvals are scandalous.  I fail to see how it was reasonably open to the applicants’ lawyers, consistent with their professional obligations, to make the allegations of misfeasance relating to the approvals.  It is no answer to point to the “asymmetry of information” or the availability of discovery as the applicants did both in correspondence and submissions.

101    The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) relevantly provide that “[a] barrister must not allege any matter of fact in … any court document settled by the barrister … unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so”:  see r 64.

102    Moreover, r 65 provides that:

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a)    available material by which the allegation could be supported provides a proper basis for it; and

(b)    the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out. 

103    Identical rules appear at rr 63 and 64 of the 2011 Barristers’ Rules (Qld) as amended, notified under s 225 of the Legal Profession Act 2007 (Qld).

104    Similar provisions appear in the Solicitors’ Conduct Rules:  see Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.4; Australian Solicitors Conduct Rules 2023 (Qld), r 21.4. 

This warning puts the sword to any suggestion of "absolute immunity". 

Even better, "consequences" for making baseless allegations against another person include one that is in the Legal Profession (Barristers) Rules 2021, Australian Capital Territory: 

87. A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

…
(e) the barrister has reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked in the case;  

To confirm that this consequence was very real, Colin Dunstan emailed Melanie McKean, a solicitor at Ashurst, representing the Commissioner of Taxation on 19 June 2025: 

"It is my understanding that rule 87 (e) requires your barristers to return the briefs they have accepted for this proceeding. 
Does Ashurst share this understanding?"

Having received no reply, Colin Dunstan sent a further email on 23 June 2025 to Melanie McKean proposing orders to be made by consent about the hearing of his Interlocutory Application. The first of those proposed orders was: 

1. This Court declares that counsels for the Respondents, Mr Parkinson and Mr Smyth are in breach of rule 87, Legal Profession (Barristers) Rules 2021, if they retain a brief or instructions to appear before this Court in this proceeding. 

Melanie McKean replied by email on 25 June 2025: 

"Having regard to the allegations advanced in your interlocutory application against them, the respondents' counsel have returned their briefs and will not appear for the respondents at the hearing."