Those wretched BASs … A barrister drowning in tax, tax and more tax … Drinking … Health issues … General disorganisation … The full nine yards … Peta Leigh reports
Barnett was hauled before one of the bar’s professional conduct committee because in 2010 he’d failed to comply with five of the nine conditions imposed on his practicing certificate.
He was admitted to the bar ‘n grill in 1987 and first came to the attention of the Phillip Street stipes when it became apparent that he had failed to lodge seven tax returns between 1992 and 1998. He was convicted in 2000 in St James Local Court (a well known venue for tax malingerers), and fined $556.
He told the bar authorities that he had brought his tax returns up-to-date and that he was making arrangements to have his ATO debt liquidated.
One of the professional conduct committees recommended that he was not fit and proper and should be suspended until such time as he got a grip on things.
The bar council rejected this recommendation, instead opting for an arrangement whereby conditions were imposed on Barnett’s ticket.
He was required to arrange expert help for his financial affairs, report to the ATO and to the bar council, and have his personal and health problems managed through BarCare and his doctor.
By 2003, the condition in relation to medical reporting was removed, and between 2005 and 2010, Barnett had an unrestricted ticket.
However, on March 25, 2010, nine new conditions were tethered to his trading licence. This followed Barnett’s plea of guilty to 15 new taxation offences, giving rise to a “show cause event”.
These new conditions required compliance with a regime of meeting taxation obligations under the supervision of an appointed financial overseer, Lachlan Partners.
Barnett subsequently breached condition one by failing to lodge BAS and income tax returns in a timely fashion, taking in some cases up to a year to comply.
Condition two fell by the wayside when he failed to set aside a specific account to hold sufficient funds to make adequate provisions for tax liabilities from previous financial years.
Condition four was breached because Barnett didn’t furnish Lachlan Partners with appropriate information in order to lodge BAS returns.
Similarly, he didn’t comply with conditions six and seven because he failed to arrange for his financial expert to provide quarterly reports to the bar association.
NCAT decided Barnett was no longer fit and proper, and in doing so turned to one of the Stephen Archer cases for inspiration, where it was said that “a barrister’s sustained failure to meet the civic obligation to pay income tax involved impropriety,” whether or not any elements of criminality or dishonesty were present.
The difference in this case, was that Barnett was not a self-indulgent grasper like Archer or Gus Cummins. He was a public defender and did legal aid work in regional areas including for the Aboriginal Legal Aid Service. The tribunal said:
“The respondent readily acknowledges his failure to comply with the conditions. He states that he was aware of his obligations that due to his disorganisation he could not bring himself to address his financial matters.
He did not consult any psychiatrist or psychologist and first discussed the matter with his medical practitioner in 2014. He sought assistance from BarCare and as a result was referred to a psychologist in Macquarie Street. However, he found that he was spending most of his time with his legal practice rather than addressing his obligations under the conditions.
The respondent believes that with the assistance which he is now receiving of a medical nature to control his alcohol addiction, and of his desire to resume practice, that he will be able to strictly adhere to any regime applied to him in respect of his obligations.”
It didn’t wash with the flint-hearted tribunal. In reaching its decision it noted that Barnett had earlier managed to successfully conduct his practice in accordance with ATO requirements for at least a decade.
To his credit, NCAT noted that he had been historically “contrite”, having agreed to stabilise his finances with the assistance of a bookkeeper, and his alcohol consumption with the assistance of BarCare and medical practitioners.
However, NCAT said his intentions were “hollow”, and cited a number of reports from psychologists which failed to evidence a medical condition that might have actually contributed to the breaches of conditions.
As a subsidiary issue, the CAT drew attention to Barnett’s 2007 application to renew his practicing certificate. Part 4 of the application, titled “Fitness and Propriety”, asks:
“Are you aware of any facts or circumstances that you have not previously disclosed to the bar council which might affect your fitness to remain a legal practitioner, including non-compliance with the any obligation under the Income Tax Assessment Act 1936?”
By answering “no”, Barnett had failed to disclose that he had not lodged a number of BAS returns, leading the professional conduct committee to issue a “show cause” notice.
No further action was taken in relation to this specific omission, but it was nonetheless advanced as further evidence of the barrister’s “general disorganisation”.
To cap it off there were a couple of drink driving convictions. These not factors in relation to his fitness and propriety, but demonstrated “at best, irresponsibility”.
The tribunal was unmoved by Barnett’s reasons for his failure to comply, which it summarised as …
“the pressures of his practice, disorganisation, inability to apply his mind to the detail required to satisfy the requirements, personal matters including some family issues and also to an alcohol problem and associated depression.”
As such, Barnett was unsuccessful in establishing a “reasonable excuse” for his failure to comply with the conditions attached to his ticket, leading to the decision that he had engaged in professional misconduct.
This is just one more step down the long and winding road towards an application for removal from the jam roll. In a sense, it’s all a bit academic because Barnett hasn’t had a ticket since 2014, when the bar council executive refused to grant him one because it was satisfied he was not fit and proper.