Beckett and Tax Practitioners Board - [2021] AATA 1234

Beckett and Tax Practitioners Board [2021] AATA 1234 (30 April 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2017/7416
Re:Barbara Beckett
APPLICANT

AndTax Practitioners Board
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:30 April 2021
Place:Brisbane

The decision under review is affirmed.
...........................[sgd]..................................
Deputy President I R Molloy
CATCHWORDS
TAX AGENT REGISTRATION – Tax Practitioners Board – tax agent registration – whether applicant is a fit and proper person – applicant convicted of offences involving fraud and dishonesty – decision affirmed
LEGISLATION
Crimes Act 1900 (NSW)
Taxation Administration Act 1996 (NSW)
Tax Agent Services Act 2009 (Cth)
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Dahia v Tax Agents’ Board of Victoria [1997] AATA 265
Griffin v Pantzer (2004) 137 FCR 209

Harris and Tax Practitioners Board [2014] AATA 430
Houvardis v Tax Agents’ Board of New South Wales [1991] AATA 134
Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Mackay v Tax Agents’ Board of Tasmania [1994] AATA 113
Stasos v Tax Agents’ Board of New South Wales [1990] FCA 379
Su v Tax Agents’ Board of South Australia [1982] AATA 127
Toohey v Tax Agents’ Board of Victoria [2007] 171 FCR 291
Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796
Quick v Tax Agents’ Board of Victoria [2000] AATA 619
SECONDARY MATERIALS
Australian Government Tax Practitioners Board: Explanatory Paper TPB (EP) 02/2010
REASONS FOR DECISION
Deputy President Molloy

The applicant, Ms Beckett, applies for review of a decision of the Tax Practitioners Board (the respondent or the Board), made on 9 November 2017 to terminate her tax agent registration under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) (the TASA) to take effect from 27 December 2017. The respondent made its decision based on its finding that Ms Beckett was not a fit and proper person to be registered as a tax agent for the purposes of s 20-5(1)(a) of the TASA.
This is a second hearing of the application for review following an appeal to the Federal Court which ordered the matter be remitted to the Tribunal for rehearing.
STATUTORY PROVISIONS
It is convenient to set out the relevant statutory provisions in the TASA.
Subsection 40-5(1) of the TASA provides relevantly:
40‑5 Termination of registration—individuals
(1)If you are a * registered tax agent, BAS agent or tax (financial) adviser and an individual, the Board may terminate your registration if:
(a) an event affecting your continued registration, as described in section 20‑45, occurs; or
(b) you cease to meet one of the * tax practitioner registration requirements; …
Pursuant to s 90-1 of the TASA:
tax practitioner registration requirements means the matters about which the Board must, under Subdivision 20‑A, be satisfied before the Board is obliged to grant an application for registration under this Act.
Subdivision 20-A of the TASA includes ss 20-5(1) and 20-15 which provide relevantly:
20‑5 Eligibility for registration as registered tax agent, BAS agent or tax (financial) adviser
Individuals

(1)An individual, aged 18 years or more, is eligible for registration as a * registered tax agent, BAS agent or tax (financial) adviser if the Board is satisfied that:

(a)the individual is a fit and proper person; …
20‑15 Criteria for determining whether an individual is a fit and proper person
In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:

(a)whether the individual is of good fame, integrity and character; and
(b)without limiting paragraph (a):

(i)     whether an event described in section 20‑45 has occurred during the previous 5 years; and

(ii)    whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and

(iii)   whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years.
Section 20-45 of the TASA provides:
20‑45 Certain events may affect your continued registration
The following events may affect your continued registration as a * registered tax agent, BAS agent or tax (financial) adviser:
(a)you are convicted of a * serious taxation offence;
(b)you are convicted of an offence involving fraud or dishonesty;
(c)you are penalised for being a * promoter of a * tax exploitation scheme;
(d)you are penalised for implementing a * scheme that has been promoted on the basis of conformity with a * product ruling in a way that is materially different from that described in the product ruling;
(e)you become an undischarged bankrupt or go into external administration;
(f)you are sentenced to a term of imprisonment.
Section 30-35 of the TASA provides relevantly:
Obligation to notify a change of circumstances
Individuals
(1) If you are a *registeredtax agent, BAS agent or tax (financial) adviser and an individual, you must notify the Board in writing whenever:
(a) you cease to meet one of the *tax practitioner registration requirements; or
(b) an event affecting your continued registration, as described in section 20- 45, occurs; …
ISSUE
The question for determination is whether Ms Beckett is a fit and proper person to be registered as a tax agent.
As the respondent points out, its finding that Ms Beckett was not a fit and proper person was made in circumstances where:
(a)Ms Beckett had been convicted of two offences under s 254 of the Crimes Act 1900 (NSW) in relation to the use of forged Westpac and ANZ bank cheques and sentenced to terms of imprisonment (of 20 months and 18 months to be served concurrently) each suspended upon Ms Beckett entering into a good behaviour bond;
(b)the offences referred to at (a) involved fraud or dishonesty and, accordingly, the relevant convictions constituted an event which may affect the applicant’s registration under s 20-45 of the TASA; and
(c)the Board found Ms Beckett was not a person of good fame, integrity or character having regard to:
(i)the conduct which led to her being sentenced to the said terms of imprisonment; and
(ii)Ms Beckett’s failure in an annual declaration lodged with the respondent, to disclose a disciplinary determination made by the Legal Profession Board of Tasmania on 16 February 2016.
The respondent also relies on Ms Beckett’s alleged failure to disclose the conduct which led to the said convictions when she completed applications to renew her registration as a tax agent in 2013 and 2016, or at any other time prior to the Board receiving an unrelated complaint in April 2016. This was described by the Board as a repeated and sustained failure on the part of the applicant to comply with s 30-35(1) of the TASA which further weighs in favour of affirming the decision that she is not a fit and proper person for the purposes of s 20-5(1)(a) of the TASA.
BACKGROUND
Ms Beckett has been a registered tax agent since 1987. She graduated with a Master of Business Administration from Macquarie University in 1990. She was a solicitor holding an unrestricted practising certificate in New South Wales from 1996.
Ms Beckett practised in her own name as a tax agent, solicitor, and accountant from 1988 to 2009. She commenced practice through a company, Barbara Beckett & Associates Pty Ltd, from 1 January 2010.[1]
[1] Exhibit 1, Joint Hearing Book (JHB), pages 1-11; Applicant’s Statement of Issues, Facts and Contentions dated 20 September 2019 (Applicant’s SIFC), [6].
In 2003, Ms Beckett became an approved person under the Electronic Duties Returns (EDR) scheme operated by the NSW Office of State Revenue (OSR) under the Taxation Administration Act 1996 (NSW).[2]
[2] Applicant’s SIFC, [7].
As part of the EDR scheme, Ms Beckett was approved to stamp transfers of real property upon receipt of a Notice of Assessment.
Persons approved under the EDR scheme must have the duty payable available to them prior to stamping a transfer except where the duty payable would be collected at settlement. The stamp duty was to be paid by the applicant “by return” to the OSR on a weekly basis.
Pasquale Lopresti was a client of the applicant. Mr Lopresti was a beneficiary of a family trust which in 1997 had acquired a property in Darling Point, NSW.[3]
[3] Applicant’s SIFC, [10].
In 2005, Ms Beckett became aware that Mr Lopresti was living in the property as his main residence and she advised him that it was not appropriate that the property be held by the trust. The other beneficiaries of the trust agreed that the property could be transferred from the trust to Mr Lopresti.
Commencing in about July 2009, Ms Beckett communicated with the OSR about the stamp duty payable on a transfer of the property from the trust to Mr Lopresti.[4] Ms Beckett contended that the transfer should be assessed for nominal duty only.
[4] Applicant’s SIFC, [12].
On 30 March 2010, the OSR forwarded a letter to the applicant stating that the transfer was liable to ad valorem duty.[5]
[5] Applicant’s SIFC, [14].
In June 2010, it apparently became urgent that the transfer be completed by reason of a necessity to refinance the trust’s loans. On 10 June 2010, Ms Beckett utilised the EDR system to stamp the transfer of the property from the trust to Mr Lopresti.
The assessed duty was $29,240.00 together with $17,416.29 by way of penalty interest, a total of $46,656.29. At the time, the applicant did not have the duty or interest available to her, nor was either to be collected at settlement.
On 11 June 2010, the applicant processed the transfer of the property to Mr Lopresti. The applicant did not pay the duty or penalty interest when it was required to be paid under the EDR system.
During July and August 2010, Ms Beckett received communications from OSR seeking payment of the amounts due.
On 10 September 2010, Ms Beckett received a letter from the OSR notifying her of suspension of her approval under the EDR scheme by reason of failing to remit the payments due on the transfer of the property.
On 20 September 2010, the applicant received a telephone call from the OSR informing her that the OSR wished to inspect her conveyancing files for the transfer of the property.
On 21 September 2010, Ms Beckett received two notices under ss 72(1)(b) and 72(1)(a) and (c) of the Taxation Administration Act requiring her, respectively, to attend for an interview on 28 September 2010 and requiring her to produce the original purchaser’s file for the transaction relating to the property.[6]
[6] JHB, pages 119 & 120.
OFFENCES AND SENTENCING
According to the applicant’s Statement of Issues, Facts and Contentions:
30.At that stage the applicant was aware that she would need to be able to show that she had available funds to meet the stamp duty obligation on 10 June 2010.
31.The applicant obtained two bank cheques and created photocopy of the cheques which appeared to show the cheques having been issued on 26 September 2009 rather than 27 September 2010 when the applicant actually obtained the cheques.
32.The applicant did so in a panic and while not thinking clearly.
On 28 September 2010, the applicant attended the OSR interview. She was informed at the commencement of the interview that it was an offence to make a statement to a taxation officer knowing it to be false or misleading or to fail, without reasonable excuse, to answer questions relevant to the investigation. She was also cautioned that she did not have to say or do anything which may tend to incriminate her. Ms Beckett took an oath to tell the truth.[7]
[7] JHB, page 124.
In the course of the interview, Ms Beckett proffered the copies of the bank cheques as evidence that the funds for payment of the stamp duty and interest had been available to her at the time the transfer was stamped. In fact, she had purchased the bank cheques only a day earlier. She bought one, then cancelled it and bought the other bank cheque. She cancelled the second bank cheque a week or so later.[8]
[8] Transcript of Hearing on 8 February 2021, page 91 at lines 27-35.
Amongst other things, the applicant informed the OSR officers that the original bank cheques had been picked up and taken by a bank representative at the settlement of the purchase. The applicant acknowledged her liability to pay the stamp duty and penalty interest on the transfer. The outstanding stamp duty and penalty were paid shortly after 27 September 2010.[9]
[9] Applicant’s SIFC, [37].
In or about May 2012, a charge under s 319 of the Crimes Act 1900 (NSW) was brought against the applicant. The charge was conspiracy to pervert the course of justice. On 3 May 2012, the applicant’s then barrister wrote to the NSW Crown Solicitor seeking unsuccessfully to have the charge reduced. In March 2013, Ms Beckett was committed to stand trial.[10]
[10] JHB, District Court Sentencing Decision, page 442, [18].
The criminal process thereafter took a fairly convoluted course. Ms Beckett challenged the charge of conspiracy seeking a permanent stay. That application was dismissed by the District Court of NSW on 13 December 2013, but on 12 December 2014 she succeeded in obtaining a permanent stay in the NSW Court of Criminal Appeal. On appeal pursuant to the grant of special leave, the High Court, on 23 October 2014, set aside the orders of the Court of Criminal Appeal and remitted the matter back to the District Court.[11]
[11] Applicant’s SIFC, [43]-[45].
Ms Beckett’s trial commenced in the District Court in early September 2016. A day or two into the trial the Crown presented a new indictment, substituting other charges for the charge of conspiracy to pervert the course of justice, to which Ms Beckett promptly pleaded guilty.
On 24 February 2017, Ms Beckett came before Berman SC DCJ for sentencing. His Honour recounted the facts, including a description of Ms Beckett’s interview by officers of the OSR:

7.When Ms Beckett did produce her file for the transfer it contained photocopies of two bank cheques, one from the Westpac Bank and the other from the ANZ Bank. They each bore the date 26 September 2009. She claimed to investigators that whilst the cheques were not in her physical possession at the relevant time the two cheques were available for the payment of the outstanding stamp duty and interest when she stamped the transfer on 11 June 2010.
8.Further investigation revealed that the dates on the photocopies of the two cheques were forged. Each was only issued on 27 September 2010, the day before the interview, and not as they purported on 26 September 2009. In fact, the offender had bought the two cheques in Hobart where she lived, photocopied them, and forged the dates on the copies of the two bank cheques. She redeposited the bank cheques soon afterwards.
9.Her intention in using the two false documents was for the Office of State Revenue to accept them as genuine, to explain why she has not remitted the stamp duty when it was due, and to get the Office of Stamp Revenue’s agreement to defer collection of the stamp duty thereby influencing the officers of the Office of State Revenue in the exercise of their duty to recover outstanding stamp duty.
10.She also told a number of lies in the interview to support her false statement that the forged bank cheques were available to her on 11 June 2010 to pay the stamp duty and interest on the transfer.
11.She has now pleaded guilty to two offences of using a false document to influence the exercise of a public duty. They are each offences under s 254(b)(ii) of the Crimes Act carrying a maximum penalty of 10 years imprisonment. …
His Honour also said:
28. It does not matter in which way this offence is categorised. What is important is that those who attempt to forge documents, those who attempt to cover up mistakes or wrongdoing by other offending, and those who attempt to wrongly influence an official performing a public duty must know that the Courts treat seriously such offending.
31. Certainly her motive was to avoid the consequences of an error or wrongdoing. She stamped the document when the money for the stamp duty was not available to her.
33.Why she did this is hard to determine. It all came about when a client of hers wished to transfer a home unit in Darling Point. A family trust was involved. It seems that Ms Beckett told her client that only nominal duty would be paid. Unfortunately she was wrong. She was told that stamp duty was payable, and rather than admit her mistake to her client she did what I have earlier described.
The Court also referred to the considerable time between the offending, Ms Beckett’s committal for trial, and her appearing for sentencing. His Honour referred to what he described as Ms Beckett’s underlying and otherwise good character, and considered it was most unlikely she would offend again in the future. As I have said, she was sentenced to two terms of imprisonment (20 months and 18 months to be served concurrently), each suspended.
I will return to the offences and their circumstances when considering whether Ms Beckett is a fit and proper person to be registered as a tax agent.
NON-DISCLOSURE OF OFFENCES
On 15 February 2013, the applicant applied to renew her registration as a tax agent.[12] The application form, under the heading “Fitness and propriety”, posed a number of questions.
[12] JHB, pages 873-6.
The final question was “Are there any matters or events that may affect your good fame, integrity and character? This may include …” followed by several matters or events, such as “– if you have ever had your registration as a tax agent a BAS agent or a nominee of a tax agent, refused, cancelled, terminated or suspended”. The applicant answered “No”.
The applicant applied for renewal of her registration three years later, on 22 February 2016, by completing substantially the same form. Again, she answered “No” to the same question.[13]
[13] JHB, pages 877-9.
In 2016, independently of the applicant, and following an unrelated complaint made in April of that year, the Board became aware that Ms Beckett was the subject of charges in respect of the matters which later led to her convictions and sentencing. Initially, by email dated 21 July 2016, a Board Investigator, Mr Ho, wrote to Ms Beckett seeking her comment in respect of an allegation of perverting the course of justice.[14] Apparently this email was not received. It was sent again on 15 August 2016.[15]
[14] JHB, page 398.
[15] JHB, pages 400-1.
On 16 September 2016, the Board wrote to the applicant referring to “your advice that you are currently involved in proceedings under section 330 of the NSW Crimes Act 1900”, and reminding the applicant of her obligation under s 30-35 of the TASA “to inform the Board of any adverse outcomes in relation to those proceedings.”[16]
[16] JHB, pages 402-3.
On 17 February 2017, the applicant advised the Board that the indictment had been amended and that she had pleaded guilty to two charges under s 254 of the Crimes Act which were to proceed to sentencing on 24 February 2017.[17] In March 2017, in an Annual Declaration, the applicant disclosed the convictions to the Board.[18] On 13 April 2017 the respondent received an email from the District Court attaching the decision on sentencing.[19]
[17] Applicant’s SIFC, [52].
[18] JHB, pages 458-460.
[19] Respondent’s Outline of Submissions, dated 4 February 2021 (Respondent’s Submissions), paragraph [14].
The respondent contends that the applicant is not a fit and proper person for present purposes, having regard to, inter alia, (i) her failure to disclose to Board, in the course of completing separate applications to renew her registration in 2013 and 2016, the conduct that resulted in the two convictions for offences under s 254 of the Crimes Act in February 2017 and subsequent sentencing which resulted in suspended terms of imprisonment, and (ii) her failure to notify the Board of the said conduct prior to the Board receiving the complaint in April 2016, including at any time prior to the commencement of the criminal proceedings that resulted in the relevant convictions.[20]
[20] Respondent’s Submissions, [34](c) & (d). See also Transcript, page 127, lines 29-40.

I agree with the applicant’s submission that there is an element of unreality to the suggestion that Ms Beckett should have disclosed the offences to the Board when she was renewing her registration in 2013 (and in 2016).[21] More than that, in the absence of clear statutory provision, I do not accept that the Board could require or expect Ms Beckett to reveal facts, essentially her own misconduct, which were the subject of prospective or actual criminal charges brought against her. There is a fundamental common law principle that a person is not obliged to answer a question which may tend to incriminate himself or herself. A legislative intention to overcome this privilege must be expressed in clear language or by necessary implication.[22] I do not find any such legislative intention in the TASA in the circumstances under consideration.
[21] Applicant’s Outline of Submissions, dated 4 February 2021 (Applicant’s Submissions), paragraph [33].
[22] See, for example, Griffin v Pantzer (2004) 137 FCR 209, paragraph [46], and the cases there referred to.
Under s 30-45 of the TASA, an individual registered tax agent is required to notify the Board, relevantly, (a) if he or she ceases to meet one of the requirements, or an event affecting his or her registration, described in s 20-45 occurs. Section 20-45 includes relevantly (b) conviction of an offence involving fraud or dishonesty, and (f) being sentenced to a term of imprisonment. Similar specific questions are asked in the applications for renewal completed by the applicant in 2013 and 2016. In passing I note that the letter from the Board to Ms Beckett, dated 16 September 2016 reminded her of an obligation under s 30-35 of TASA “to inform the Board of any adverse outcomes” in relation to the criminal proceedings.
The Board referred to s 60-115(1) of the TASA pursuant to which a person is not excused from giving information or evidence, or producing a document or thing, under s 60-100 or 60-105 on the ground that doing so might tend to incriminate the person or expose the person to a penalty. Sections 60-100 and 60-105 concern investigations by the Board, and the power to request production of documents, and to require persons to give evidence on oath or affirmation. They have no relevance to the Board’s claims of non-disclosure against the applicant. Furthermore, s 60-115(2) of the TASA provides a protection in respect of evidence or information given under s 60-100, or the production of a document or thing under s 60-110. Such evidence is, generally speaking, not admissible in evidence against the individual. The obvious inference is that where the legislature, in the TASA, does intend that the privilege against self-incrimination is removed, it will be expressed in clear terms with appropriate safeguards.
Furthermore, as well as these provisions, the forms themselves which Ms Beckett was required to complete, do not indicate a clear requirement that she should disclose the information as the Board contends she should have. The forms contain specific questions posed by the Board, mirroring the TASA, including relevantly:
In the last 5 years, have you been sentenced to a term of imprisonment, in whole or in part?
In the last 5 years, have you been convicted of an offence involving fraud or dishonesty?
These questions indicate that the Board was not expecting disclosure of information that might tend to incriminate the applicant for renewal. I am not satisfied that Ms Beckett was required to disclose or notify to the Board, whether in her renewal applications or otherwise, of the facts which led to her being charged and subsequently convicted. In cross-examination, Ms Beckett made the concession that she should have revealed that information to the Board.[23] I am not satisfied that that admission was correctly made for the reasons stated and I am not prepared to act on it. These are not ordinary adversarial proceedings. The Tribunal’s duty is to reach what it considers to be the correct and preferable decision.
[23] Transcript of Hearing on 8 February 2021, page 79 at line 45 to page 80 at line 5, and page 84 at line 39 to page 85 at line 2.
The Board’s contention, as I have said, was that Ms Beckett breached her obligations under the TASA by failing to disclose to the Board her conduct which later led to her convictions and sentencing. I am not satisfied that Ms Beckett had any such obligation whether in applying for renewal of her tax agent registration in 2013 or 2016 or at all. For this reason, and given the specific questions, which preceded Ms Beckett’s answer “No” in the 2013 and 2016 applications to which I have referred, I am not satisfied that she breached any provision of the TASA, including under ss 20-45 or 30-45. Accordingly, it is not something I take into account in determining whether she is a fit a proper person to be registered as a tax agent.
NON-DISCLOSURE OF DISCIPLINARY DETERMINATION
The Board, in reaching its decision, relied on Ms Beckett’s failure in her annual declaration lodged with the Board, to disclose a disciplinary determination made by the Legal Profession Board of Tasmania on 16 February 2016.[24]
[24] JHB, pages 432-5.
Ms Beckett has explained why she did not refer to the determination in her declaration.[25] She did not interpret the form as requiring the disclosure of the determination which was a reprimand for unsatisfactory professional conduct.[26] The circumstances leading to the reprimand did not involve any findings of dishonesty. Ms Beckett did not consider the reprimand was a matter that could affect her good fame, integrity and character.[27] As the applicant submitted, the question does not expressly ask for disclosure of a reprimand. I agree with applicant’s submission that the form is “not unambiguous in this regard”.[28]
[25] JHB pages 29-30, applicant’s affidavit dated 2 February 2018, [65] to [71].
[26] Applicant’s SIFC, [79].
[27] JHB page 210, [7].
[28] Applicant’s SIFC, [80].
Ms Beckett was not cross-examined on these matters. This issue was not expressly relied on, or even mentioned, in the respondent’s written submissions.[29] So far as I can see it was not referred to in the respondent’s oral submissions in support of a finding that Ms Beckett is not a fit and proper person for present purposes. In any event, it is not matter that has had any influence on my decision.
[29] Respondent’s Outline of Submissions dated 4 February 2021, Part D, especially [34].
FITNESS AND PROPRIETY
In the well-known case of Hughes and Vale Pty Ltd v State of NSW,[30] the High Court said that the words “fit and proper” have generally been used in relation to persons holding vocations or offices:
But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”—Coke.
[30] (1955) 93 CLR 127, page 156.
In Australian Broadcasting Tribunal v Bond,[31] Toohey and Gaudron JJ said:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[31] (1990) 170 CLR 321, page 380.
In Su v Tax Agents’ Board of South Australia,[32] Davies J stated:
The function of a tax agent is to prepare and lodge income tax returns for other persons. A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. he should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.
There are certain convictions which, in themselves, may be inconsistent with the holding of a tax agent's registration. If a lawyer is convicted of fraud, his name may be struck from the roll of practitioners, for fraud is inconsistent with the practice of the law. If a doctor is convicted of a serious offence relating to illegal drugs, his name may be struck from the register because the offence is inconsistent with the task which medical practitioners perform. If a tax agent is convicted of an offence of tax evasion, his name may be taken from the register, for tax evasion is inconsistent with the role which tax agents are called upon to perform.
If offences for which a tax agent is convicted are not of that character, they may nevertheless justify the removal of his name from the register if, of themselves, or in combination with other factors, they indicate that the tax agent is not a person of such integrity and competence that clients' affairs should be entrusted to him or that he is not of such integrity and competence that officers of the Taxation Department may place reliance upon returns prepared and lodged by him.
[32] [1982] AATA 127.
In Stasos v Tax Agents’ Board,[33] Hill J set out the first paragraph of the above passage from Su v Tax Agents’ Board of South Australia and expressed agreement “subject to the qualification that his Honour stated too narrowly the functions of a tax agent by limiting these to the preparation of returns.” Hill J said at [50]-[51]:
In addition to the tax agent dealing with his client, he will, almost invariably have dealings with officers of the Australian Taxation Office and perhaps the boards or tribunals to which I have already referred. Those dealings must be able to be carried on in an atmosphere of mutual trust. The Commissioner and his officers must be able to accept that, to the best of the ability of the tax agent, returns have been prepared which are true and accurate. This is particularly so now that the Commissioner has proceeded to a system of self assessment, with inaccuracies only coming to light in case of random audit or, presumably, other information coming to the hands of the Commissioner.
The Commissioner and his officers must be able, also, to accept the word of a tax agent when acting for a taxpayer in negotiations, and a fortiori in matters proceeding in a Board, the Administrative Appeals Tribunal or indeed a court it is imperative that the honesty and integrity of the tax agent not be called into doubt. So it is that it is a requirement, not only of initial registration, but of remaining on the register that a tax agent be a fit and proper person to perform the duties of a tax agent and bear the responsibilities that come with those duties.
[33] [1990] FCA 379.
The offences for which Ms Beckett has been convicted are serious. She forged bank cheques and lied under oath in an interview with officers from the OSR. The offences are particularly serious when considered in the context of her registration as a tax agent.
The respondent referred to its explanatory paper “TPB (EP) 02/2010: Fit and proper person” (Explanatory Paper) which mentions factors that may be considered in determining whether a person is a fit and proper person within the meaning of the TASA.[34]
[34] JHB, page 833.
By reference to the Explanatory Paper, the respondent submitted, relevantly:
(a)in general, conduct (including convictions) involving fraud and/or dishonesty may bear greater weight in the determination of fitness and propriety for tax practitioner registration than other considerations;[35]
(b)considerations going to the personal circumstances of an individual cannot override this primary consideration, which must not be considered in isolation from the public interest in ensuring proper and competent provision of tax agent services.[36]
[35] JHB, page 844.
[36] JHB, page 842.
The question is whether the applicant is a fit and proper person to be registered as a tax agent to be determined at the time of the hearing of the review.[37] The applicant points out that authorities are clear that persons who have committed offences of dishonesty may redeem themselves and be fit and proper persons notwithstanding the offences.[38] And as was pointed out, the exercise of the discretion to disqualify a person from being a tax agent is not to be used in punishment of that person. The purpose of the power to disqualify is to protect the public.[39]
[37] Toohey v Tax Agents’ Board of Victoria [2007] 171 FCR 291, [12]-[13]; cited in Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796, [3]; Harris & Tax Practitioners Board [2014] AATA 430, [41].
[38] Stasos v Tax Agents’ Board (supra) paragraphs [56]-[57]; Mackay v Tax Agents’ Board of Tasmania [1994] AATA 113; Quick v Tax Agents’ Board of Victoria [2000] AATA 619.
[39] Dahia v Tax Agents’ Board of Victoria [1997] AATA 265 at [15]; Houvardis v Tax Agents’ Board of New South Wales [1991] AATA 134 at [26]; Su v Tax Agents’ Board of South Australia [1982] AATA 127.
Of course, protection of the public is not limited to protection of those who may engage Ms Beckett as her tax agent, or protection of the revenue, although those are of course important considerations. Protection of the public is also closely linked with public confidence in the system. The public is entitled to know and expect that persons who occupy the position of a tax agent are of high integrity.
The applicant relied on a report of Ms Anne Lucas, forensic psychologist, dated 19 February 2017.[40] Ms Lucas provided her report for the purposes of the District Court proceedings. Her report included:
[40] JHB, pages 373-379.
Current Offences and Attitudes
44. In providing account of the present offences, Ms Beckett reported that she had been intending to pay the amount owed to the Office of State Revenue at the time it was eventually due but had been ‘overreached’ trying to balance competing financial, work and family demands.
45. She described trying to balance these competing demands by ‘working harder’. Whilst believing at the time she was being occupied and efficient she advised in hindsight she had been making errors, had difficulty focussing fully on one issue or attending to a sufficient degree and had been distracting herself with activity in an attempt not to think about the circumstances leading up to the ending of her marriage which had included family violence, financial and emotional strain.
46. She advised that when it came to light that she had not made the required payments within the time frame expected she had attempted to correct and cover up her error and in the process had “made matters worse’.
…
55. Ms Beckett reported that during the offence period she had been experiencing a range of psychological symptoms which appear to have been a response to the environmental stressors she was experiencing at the time. Her description of these symptoms suggested mild-moderate impairment in her normal function rather than a more severe impairment which would generally be considered a requirement to meet the threshold of a diagnosable psychological disorder. Ms Beckett did not describe having experienced significant emotional distress which would generally be considered out of proportion to the circumstances she found herself in. Although suffering some impairment in cognitive/attentional functioning she did not describe severe impairment in social and other areas of function. She continued to attend work and maintains that in the main she performed adequately, most of the time.
…
60. In discussing her offence behaviour Ms Beckett expressed remorse for her actions. She advised she was aware of the breach of trust committed. She also provided account (sic) which indicated that she had some developing awareness of the psychological processes behind her offending behaviour.
I have taken this report into account, including what is said of Ms Beckett’s expression of remorse.
The applicant also relied on a report of Dr Richard Furst, forensic psychiatrist, dated 15 August 2019.[41] Dr Furst also gave oral evidence. His report was obtained for the purpose of these proceedings, following a single consultation.[42] Dr Furst was instructed, amongst other things, that Ms Beckett’s offending conduct was not designed to enrich her personally, but was motivated by efforts to “save face” over the beleaguered transaction.
[41] JHB, pages 356-364.
[42] Transcript of Hearing on 5 February 2021, page 44 at lines 11-12.
Dr Furst’s report refers to the “Transactional-related Issues” and includes the following:
Ms Beckett stated the issue for her at the when falsifying the dates on the bank cheques in October 2012 (sic) was her belief that she was acting as an advocate for her clients, rather than an ‘agent’ for the Government.
“She said she ‘panicked’ at the time, stating, ‘I had not ability to think more than one or two steps ahead … I responded to the immediate issue, then had to cover up … I did not have the professional distance and resources to take a step back and engage with the issue … I was in reactive mode’. She also described believing that it was her obligation to ‘create a coherent narrative’ for her client, a belief that was erroneous/misplaced and apparently out of keeping with the relevant legislation.
Her other actions of dishonesty were in relation to covering her actions.
In my opinion there was no relevant psychiatric or psychological explanation for her actions. Ms Beckett being a competent professional who apparently believed she was acting in the interests of her client/s at the time, having full awareness of her actions.
…
Ms Beckett is now aware of the relevant legislation, which says she should be an agent of the government. She now understands she had no right to ‘hedge’ or ‘manipulate’. She now understands she has no right to present ‘alternative facts’. She understand (sic) that the legislation says it has to be based on ‘objective facts’.
Ms Beckett said, ‘I understand the law now … I had been conscious of advocating for my clients.’
When asked how she would handle things should a similar situation occur in the future, Ms Beckett said, ‘Rather than creating a narrative, I would say it is up to the party involved to provide their narrative. I am an agent of authority [i.e. an agent of the Government].
Given her expressed attitudes, knowledge and understanding in this respect, would regard it as highly unlikely for Ms Beckett to act in such manner in the future. Furthermore, she has no indications of mental disorder, personality disorder and has no other criminal offending or other dishonesty issues, suggesting that it is highly unlikely she will reoffend in the future.
I must say that this evidence, in my view, does not assist Ms Beckett. For Ms Beckett to say, as she apparently did, amongst other things, that she was acting in the interests of her client/s instead of on behalf of the authority, that she was creating a “narrative” for her client/s, that she now understands she has no right to create “alternative facts”, and that she is now aware of the relevant legislation, hardly explains or shows any real appreciation or insight as to what occurred. I did not think these matters, such as the reference to “alternative facts”, were explained or clarified by Mr Beckett in cross-examination.[43]
[43] Transcript of Hearing on 5 February 2021, page 58 at line 25 to page 60 at line 10.

As the respondent submits, there was no misunderstanding of the law so far as Ms Beckett’s offending conduct was concerned, and there was no change in the law. Notwithstanding her expressions of contrition, I was left with the impression, from both Dr Furst’s report and Ms Beckett’s oral evidence and her demeanour when questioned on these matters, that she did not properly appreciate the gravity of her behaviour or fully accept responsibility for it. These matters do not lead me to share Dr Furst’s view that Ms Beckett is “highly unlikely” to act in the same manner in the future. This also bears on the weight I can give to character references referred to below.
The applicant submitted “the offences were neither premeditated nor committed for reward”.[44] In oral submissions the contention was the conduct was not “carefully premeditated” and was “not fully thought out.”[45] There was clearly, however, some planning which went into obtaining the bank cheques and then creating the forgeries. Ms Beckett says she did not commit the offences in an attempt to defraud the OSR. By this I understand her to mean she did not expect to avoid the obligation to pay the stamp duty and penalty. All she was hoping to do was to buy a little time to sort out the payments.[46] She did, however, intend to mislead the OSR officers, and she did so under oath, knowing what she was doing was criminal.
[44] Applicant’s SIFC, [65]-[66], and Applicant’s Submissions, [50].
[45] Transcript of Hearing on 8 February 2021, page 101, at lines 32-3.
[46] JHB, page 275, [28].
It was accepted by the applicant that a reason for her conduct was to avoid disclosing what she had done.[47] She was in part motivated to protect her own position although this, it was submitted, was not a prime motivation.[48] For the Board it was submitted the applicant’s conduct which resulted in her convictions was layered and calculated. It was pointed out that it directly encroached on the exercise of statutory powers by a revenue authority. I agree it was designed, whatever the motivation, to undermine the efforts of the revenue authority to ascertain the truth.
[47] Transcript of Hearing on 8 February 2021, page 122 at lines 17-18.
[48] Transcript of Hearing on 8 February 2021, page 137 at lines 20-25.
A number of extenuating or mitigating factors have been referred to. In September or October 2006 Ms Beckett became aware that her husband had been gambling heavily. From 2005 to 2010, the applicant’s husband lost over $750,000 through gambling. In 2007 the applicant and her husband separated although they continued to live under the same roof. In early 2009, the applicant and her husband ceased to live under the same roof, and he ceased to have any involvement with her business. In 2009, there was an incidence of violence in consequence of which a police family violence order protecting the applicant against assault by her husband was obtained.[49] The applicant commenced dissolution proceedings in 2008 and the dissolution became absolute on 20 September 2010.[50] Ms Beckett was responsible for six children for whom she was not receiving any financial support. She had staffing problems.[51] Her then fourteen-year-old daughter was using drugs and drinking alcohol.[52]
[49] Applicant’s SIFC, [16]-[21].
[50] Applicant’s SIFC, [19].
[51] Transcript of Hearing on 8 February 2021, page 88 at lines 24-38.
[52] Applicant’s SIFC, [59].
The applicant submits that the circumstances in which she came to commit the offences of which she was convicted were unique and unprecedented and had imposed immense stress upon her. It is said that Ms Beckett is also unlikely to be subject to equivalent levels of stress and pressure in the future, by reason, inter alia, of the absence of ongoing involvement with her former husband, and her children now being considerably older.[53] I take all of these submissions into account.
[53] Applicant’s SIFC, [16].
I have also taken into account Judge Berman’s remarks on sentencing, including where his Honour said, at [25], “I have got no doubt that Ms Beckett is most unlikely to offend again.”[54] To give this remark its proper context, his Honour prefaced it by acknowledging “the unlikelihood that Ms Beckett will ever be in a position to commit this type of offence in the future”, but then, more fundamentally, to what he was given to understand to be “Ms Beckett’s underlying character, namely [that] she has no prior convictions and is a woman of otherwise good character.”
[54] JHB, page 443 [25].
Ms Beckett’s otherwise good character and reputation are attested to by a number of witnesses. The dishonest conduct in September 2010 is said to have been out of character.[55] I have considered that evidence, including references from Ms Laura Carr[56]; Judith McGrath[57]; Keryl Egan[58]; Ngaire Watson[59]; Andrea Goldrick[60]; James Beatty[61]; and Alan Bailey.[62]
[55] Applicant’s SIFC, [64].
[56] JHB, pages 385-6.
[57] JHB, pages 384.
[58] JHB, pages 387-390.
[59] JHB, pages 391-2.
[60] JHB, pages 393-4.
[61] JHB, pages 365-9.
[62] JHB, pages 1-11.
More specifically, Allan Bailey, a long-term client (since 1993) says he was surprised to hear of her dishonest conduct and thought “it is completely out of character for her.” Judith Maree McGrath (a friend, past work associate, and client) is “absolutely positive that Barbara will never re-offend in the future”. Laura Carr dated 2 February 2018, who worked for the applicant as full-time employee since 2011, said “this was most unlike her and entirely uncharacteristic.”
Keryl Egan, clinical psychologist, a client for 8 years, says her “behaviour seems to be so out of character”.[63] Ngaire Watson, barrister, a client since 2013, was “very surprised and concerned” and impressed by her “candour”.[64] Andrea Goldrick, a solicitor practising in family law, and a client for at least 14 years, considers her a person of good character. There is also evidence Ms Beckett has engaged in charitable work.[65]
[63] JHB, pages 387-9.
[64] JHB, page 391-2.
[65] JHB, page 31, [74].
On behalf of the applicant it was also submitted that the Board had not adduced any evidence to cast doubt on Ms Beckett’s competence. Ms Beckett’s referees, who are also clients, also attest to her competence, particularly Ms Egan, Ms Watson, Ms Goldrick, Mr Beatty and Mr Bailey. The applicant says that to the best of her knowledge none of her clients have been prosecuted for anything in connection with the provision of her advice.
That said, it is necessary that the public is protected against those who, although they have the appropriate professional skills, do not have the character and integrity appropriate to the privileges that registration gives them. The public interest includes ensuring that tax agents comply with high standards of integrity. Public confidence cannot be established or maintained without professional regulation and enforcement.
The Board’s decision has been the subject of a stay. Ms Beckett has complied with the conditions of the stay. She has continued to practise. There is no suggestion that she has not met her obligations under the TASA in that time or that she has been the subject of any disciplinary action or complaint.
I have taken into account all that has been said by or on behalf of Ms Beckett including, without attempting to be exhaustive, the time which has passed since the commission of the offences; the absence of and unlikelihood of the return of the influences which were affecting her at the time of the commission of the offences; Judge Berman’s remarks on sentencing; and Ms Beckett’s compliance with the conditions imposed upon her pursuant to the stay.
I have also had regard to the authorities referred to above and, of course, to the nature, seriousness and circumstances of the offences for which Ms Beckett was convicted and sentenced. In the result I am satisfied that Ms Beckett does not meet the requirement under s 20(5)(1)(a) of the TASA that she is a fit and proper person to be registered as a tax agent.
CONCLUSION
The Board’s decision on 19 November 2017 terminating the applicant’s registration as a tax agent under s 40-5(1)(b) of the Tax Agent Services Act 2009 (Cth) is affirmed.
The decision is to take effect from 15 June 2021 to the intent that until then Ms Beckett is permitted to practise under the terms of the stay order which has been in place.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

..............................[sgd]...................................
Associate
Dated: 30 April 2021

Date(s) of hearing: 5 and 8 February 2021

Counsel for the Applicant: Mr D Robertson

Solicitors for the Applicant: Mr D Cleverley, Hammond Nguyen Turnbull Legal

Counsel for the Respondent: Mr G O'Mahoney

Solicitors for the Respondent: Mr Lie, Tax Practitioners Board

Date(s) of hearing:	5 and 8 February 2021
Counsel for the Applicant:	Mr D Robertson
Solicitors for the Applicant:	Mr D Cleverley, Hammond Nguyen Turnbull Legal
Counsel for the Respondent:	Mr G O'Mahoney
Solicitors for the Respondent:	Mr Lie, Tax Practitioners Board