Reputation in Ashes: Why the Ombudsman Should Go.

How the Commonwealth Ombudsman, Allan Asher, can remain in his position, after revelations that he met and corresponded with Greens Senator, Sarah Hanson Young, to get her to ask him a series of questions at an Estimates Committee, is beyond me.

Make no mistake: this is about as serious as it gets regarding the integrity and reputation of a statutory oversight agency like the Ombudsman.

In my time with the NSW Ombudsman and the ICAC, and I have no doubt since, to come up with a work around to feed questions to an MP would simply have been unthinkable. It would have been rightly regarded and condemned as a breach of the independence and impartiality of the organisation.

In fact, I am not aware of any dealings with any MP on an oversight committee during that time, other than the formalities between the head of the organisation and the chair of the committee. Any issues from the members of a committee would be dealt with by the Committee’s support staff liaising with the likes of me, on logistics and follow up of information provided to the Committee.

Of course oversight bodies operate in a political environment. They are called on to assess conduct by Ministers and public officials; often on high profile and controversial matters. On legislative, budgetary and like matters they deal with their “responsible” Minister (which in most cases will be the Prime Minister or the Premier in each of the states). These require what might be seen as acutely sensitive judgments: not partisan, but “politically aware”.

Finely tuned arguments and sharp elbows are often required to obtain necessary legislative amendments and budget enhancements, where there might be a less than enthusiastic response from senior officials and political advisers.

As the Australian Public Service Code of Conduct says in respect of public officials (which applies to the Commonwealth Ombudsman): you are to be apolitical but not naive.

Of course Bob Brown and Christine Milne have defended Asher and Hanson-Young. But surely they must be seething that it is The Greens who are (rightly) seen to have compromised the integrity and independence of an oversight agency. But they’ll move on, leaving Asher to cop the (justified) fallout.

But what perplexes me, is that Asher thought it was at all necessary to conduct himself in this fashion. He says he is denied an opportunity to canvas issues about his organisation. In his Media Release, yesterday, he said:

“I have only infrequent and limited opportunities to engage with the Parliament”

Well, he sure as hell could have used his infrequent opportunity here a whole lot better.

To start with, as with all agency heads, Asher was invited to make an opening statement to the Estimates Committee. Instead of flagging his concerns about budgetary concerns, the sum total of his opening was:

“I am delighted to appear before the committee. We see our role as in the main providing assurance to members and senators and members of the public that Commonwealth services are delivered in a fair, just and transparent way, and welcome any questions that the committee may wish to direct.”

Then Asher got his 17 soft balls from Hanson-Young. No-one else asked a question.

Can you imagine the fall out if the Ombudsman had gone to a senior Government backbencher with an interest in public administration, and said:

“Here’s some stuff on good governance I’d like to get on the public record, and I’ve taken the liberty of drafting a few questions for you to ask me at Estimates”.

The outrage and uproar upon exposure of such an arrangement would be deafening (not least from those guardians of political virtues, The Greens).

What is astonishing is that all this was in connection with asylum seekers, and in particular, their detention on Christmas Island. That Asher couldn’t see the risks of engaging in covert political action on this issue of all issues demonstrates an almost incredulous lack of judgment and acumen. That alone should make Asher’s position untenable.

Asher says he didn’t have the platform of his own Parliamentary Committee to make these points. Let me tell you,  they don’t hold ballots for tickets to get into hearings of Parliamentary oversight committees. They’re hardly a megaphone to make your point. (And I can bet you that Asher would be quite happy not having a Parliamentary Committee just right  now, as this is the very conduct it would examine).

What he did have was a Commitee with some of the more active and engaged Senators from all sides of politics. But of all the Committees to try to game, he chose Estimates (and the Prime Minister’s estimates at that): the most politically charged? Dumb. Dumb. Dumb.

Asher had a platform wherever he wanted it. Speeches, special reports to Parliament, media releases. He has the security of his office and tenure to put any of his concerns on to the public record. In fact, he has a form of strategic advantage, in that no government wants to get into a public brawl with a watchdog if they can help it. He would have had relatively clear air to mount his argument for additional funding.

In recent years the NSW Ombudsman has used special reports to Parliament to draw attention to issues that directly impact on the operation on the organisation, and where there was seemingly intractable resistance from within Government to resolve these.

It is worrying that Asher felt he could not use of any of these options, but that it had to appear that he was merely responding to questions, rather than acting on his own initiative. Fearlessness is an essential attribute of an oversight body – that is why there is security of tenure. But that fearlessness appeared to be lacking here.

The very subject of his concerns – responsibility and funding for oversight of the asylum issue – would have seen him get coverage in every mainstream media outlet up hill and down dale.

While the bulk of Asher’s career has been in non-government consumer advocacy, which may have been well served with such tactics of briefing MPs on committee tactics, he was once a senior office holder at the Australian Competition and Consumer Commission for 10 years. Either they play by different rules there, or Asher took an unfortunate time to start making up his own.

But any delusion on his part that they were an appropriate way to exercise his office as Ombudsman clearly establishes his lack of fitness for it.

Whether any future individual report or statement deserves it or not, the work of the Ombudsman is now going to be examined for evidence of political calculation. That is, perhaps, the most compelling reason for Asher to go.

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