Who Set the Trap for Allan Asher?

With his last day as Commonwealth Ombudsman out of the way, Allan Asher is now free to speak his mind on the circumstances of his departure. This freedom not only applies to his dealings with Greens Senator Sarah Hanson-Young, but also the substantive issues surrounding the immigration and asylum responsibilities of his office.

In the weeks leading to his last day, it was clear Asher was taking the line that it was an error of judgement to deal with Hanson-Young in the way he had, but that it was not an offence that merited his removal or resignation. However, the prospect of dealings with Government encumbered by his actions was not a sustainable proposition.

With his new found freedom, however, Asher seems to be lining up with the more malevolent explanations for his removal; consistent with The Greens line that his resignation was a “political assassination”.

On the ABC’s Q and A last night, Asher referred to an article in that morning’s Canberra Times as the basis for his suspicion that there had been a deliberate move to undermine him by asking for then leaking of the emails that set out his dealings with Hanson-Young.

The article he referred to made clear its stance from the get go: “The ombudsman should not have had to resign”.

The authors take the view that:

It appears to us that the attack on Asher was carefully managed by members of the executive including Special Minister of State Gary Gray.

Who wrote the question for Asher that Senator Trish Crossin put on notice for the committee considering the proposed Malaysian agreement, for example? Perhaps it was Crossin herself.

Well, given the evidence, there is no reason to believe that she did not write it herself. In fact, an examination of the relevant  Hansard should demolish any theory that Asher was set up by anyone other than himself.

On September 23, a sub-committee of the Senate Legal and Constitutional Affairs Committee conducted a hearing into the “Malaysia Solution”. Asher and two senior officers from his Office appeared alongside a representative of the Refugee Council of Australia (odd in itself, but nothing to do with Asher and obviously a decision of the sub-committee given that it was a one day hearing).

In the course of Asher’s evidence, Crossin asked a series of questions about how the Ombudsman’s submission had been prepared.

There is no doubt that Crossin had an agenda, and in all likelihood developed and informed by the Minister’s Office (the Ombudsman’s submission was on the public record). Given that Crossin is a Government senator sitting on a committee examining a Government policy, the input of the Minister’s Office would be unexceptional.

To this end, Crossin had around 15 or so questions on sources, rattled off as if a checklist. It was clear that Crossin wanted to establish that Asher hadn’t spoken to key players in the debate, such as the UNHCR, but had instead relied on a pastiche of academic papers and newspaper articles.

Half way through her questioning, Crossin asked Asher: “Did you consult any MPs or senators in the development of your submission?” Asher replied “No, we did not”.

There was nothing to indicate she knew or thought anything different. She moved on immediately to ask: ”Did you consult Customs, the AFP or any part of Border Protection Command to discuss matters arising in relation to this inquiry?”

Questioning carried on in that vein, with references to other agencies. It was only at the very end of the Asher’s appearance that he was asked:

You were asked before whether you consulted with members or senators before making this submission. Would it be the normal practice of the Ombudsman’s Office to consult with members of before the making a—

Crossin did not ask this of Asher; nor was it asked by any other Government Senator.

In fact, it was asked by the Committee Chair, Liberal Senator Gary Humphries. One theory behind his question might be that he thought Crossin’s original question indicated a Government view that MPs should be consulted.

Asher answered as follows:

In relation to making a specific submission usually not. It is a hard question in that we are frequently interacting with members of parliaments and often on issues of this sort. For example, I have had conversations with Senator Hanson-Young on other aspects of this, although nothing in respect of the Malaysian agreement in particular.

So it was Asher himself who raised the matter of his dealings with Hanson-Young, even if only in the broadest of terms.

Crossin’s Question on Notice directly refers to this exchange, and sought records of any contact with MPs over evidence given to Senate Committees.

Now unless, there is a suspicion that the Government and Opposition operated as a tag team, the suggestion that the Government set Asher up, when it was he who volunteered the dealings with Hanson-Young, lacks credibility.

The piece then goes on to raise other questions as to how journalists knew about the QON reply, and similar matters. These are the issues that Asher said on Q and A that he had only seen raised for the first time in that morning’s Canberra Times piece.

However, he had raised the very same matters on the day before in the Radio National’s “Sunday Profile”, with Julia Baird. Whether he knew of the forthcoming article, or had discussed it with its authors, it’s not known.

Incidentally, during the Sunday Profile interview he said he thought his relationship with Bowen was “formal but frosty”. When asked why, Asher thought it was because his approach was to “highlight” that the Government had breached its own “values”. He went on to say “I hope [the Government] had a bit of a sense of embarrassment”.

It is simply astonishing that an Ombudsman would think that it was his role to cause embarrassment to a Government on the question of its values.

The Canberra Times article says:

Subsequent commentators included observers who were much better informed on the special role of the ombudsman and a much more balanced analysis emerged.

Well, its a serious worry if better informed observers with much more balanced analysis was applied to a former Director of Investigations at the Commonwealth Ombudsman, who wrote:

If the Senate Committee system worked in the way it is intended to work … then the Ombudsman could have provided questions to any or all members of the committee without attracting criticism.

Consider that: a self described expert on governance and administrative justice feels an accountability system works best when the witness supplies the questions.

A saddening aspect of Asher’s self destruction is that he had legitimate concerns that should have been raised in a public forum for debate and subsequent action

We do need a serious debate as to how we view the role of an Ombudsman when they are given the role of looking after the interests of vulnerable people at risk. We have moved well beyond the original conception of an Ombudsman simply handling complaints, arbitrating on disputes between individuals and Government.

Over the past decade, in response to systemic failures in child protection and community services, the NSW Ombudsman is now responsible for overseeing these functions. From reviewing child deaths to the welfare of young people in care to the needs and interests of the disabled, the Ombudsman has a systemic role that requires a degree of advocacy to improve outcomes at even the most fundamental, the survival of children in family or care settings.

There should be question that while individual matters should be handled according to the established principles of that role, the Ombudsman should have a broad advocacy role beyond ensuring that proper processes are observed and applied.

This is a debate that should be had with the function of the Commonwealth Ombudsman regarding the refugee and asylum function: not only resolving complaints, investigating systems, but lending voice to the needs and interests of a vulnerable section of the community. However, Asher’s actions, in seeking to manipulate this debate from backstage, will have shut this debate down for the foreseeable future.

Asher also sought a Parliamentary Oversight Committee with which to raise such matters as the straitened budget allocated to his Office. On Q and A last night he expressed the view that it was the existence of such committees for peer agencies like the Australian National Audit Office that resulted in better budgets for them. If he believes this then, along with his misjudgement in the Hanson-Young affair, he is clueless about the influence of committees over Governments.

In any event, be careful with what you wish for. One question that would stand out for any oversight committee comes from the 2010-11 Annual Report of the Department of Prime Minister and Cabinet.

In the five years to 2011-12, the Ombudsman’s Office has had a budget increase of 23% but has increased its average staffing level (ASL) by only three officers (2.1%) in that time.

By comparison, the ANAO has had a 25% increase in budget, and a 15.6% increase in its ASL.

Such organisations are by their nature heavily dependent on a staffing capacity, and for the most minimal staffing increases to have occurred within the Ombudsman, when its range of responsibilities had increased dramatically with a significant budget increase, is a question that should be pursued.

Was there politics behind the eventual ouster of Asher? Of course there was. But it was a political question of being able to deal with an office charged with accountability and impartial assessments arising from its functions. The Government was quite right to feel that Asher had cross a bridge too far and could not remain as Ombudsman. Asher should not succed in persuading that it was down to anything else.

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