Forty Year Ombudsman Tradition Trashed by Turnbull

Yesterday’s announcement that the vacant role of Commonwealth Ombudsman would be filled by the Deputy Secretary of the Department of Immigration and Border Protection (DIBP), Michael Manthorpe, brings to an end a forty year bipartisan tradition of appointments not being directly made from the ranks of frontline departmental management.

While the post was reportedly offered to several departmental heads in the early years of the Hawke Government, every previous appointee since the establishment of the Office in 1977 has held a post in academia, consumer advocacy, legal or judicial administration, or oversight and complaints handling immediately prior to appointment.

Since 2015, Manthorpe has been responsible for leading DIBP’s Visa and Citizenship Services Group, which is responsible for “service delivery and decision-making spanning the visa and citizenship life cycle, from pre-lodgement, application, visa grant or refusal, visa cancellation, and conferral and revocation of citizenship.”

Since 2005, the office of Commonwealth Ombudsman has held an adjunct role as Immigration Ombudsman. As recently as January 2017, the Ombudsman has issued reports critical of visa administration by DIBP.

The first Commonwealth Ombudsman, appointed by the Fraser Government in 1977, was Professor Jack Richardson. At the time of appointment, he was the Robert Garran Professor of Law at the Australian National University. He had been the Legal Secretary to the Constitution Review Committee of the Parliament from 1956 to 1959 and a Professor of Law at the ANU since 1960.

Richardson’s appointment was initially for a seven-year term, but in June 1984 his term was extended by the Hawke Government until September 1985, when he would reach the statutory retirement age of 65.

[An interesting survey of Richardson’s academic career and contribution to administrative law, including his term as Ombudsman, was the subject of a speech by Michael Kirby in 2012 . Thanks to Darren O’Donovan for the heads up and link.]

While a recruitment campaign was initiated in mid-1985, Richardson’s permanent successor would not be appointed until April 1986. With only Richardson’s appointment as precedent, the Hawke Government apparently offered the post to several Departmental secretaries, including the heads of Veterans Affairs and Social Security, who had turned down the invitation.

There was widespread speculation that the then Secretary of the Department of Sport, Recreation and Tourism, Bruce MacDonald, was being considered for the post. This was met with opposition from several quarters, including the public service union, which argued that “the Ombudsman’s Office was not the place to use public servants to catch public servants.” Similar objections were raised by John McMillan, the spokesman for a public interest advocacy group, who would himself be appointed to the post from academia in 2003.

Ultimately, Geoffrey Kolts was appointed to the post from the position of First Commonwealth Parliamentary Counsel which he had held since 1981. Kolts had worked in the Office of the Parliamentary Counsel (OPC), which is responsible for drafting and publishing legislation and gazettals, since 1962 after working as a Principal Legal Officer in the Attorney-General’s Department. He had been a Member of the Administrative Review Council (ARC) from 1976 to 1981.

Kolts’ appointment was apparently welcomed in administrative law circles, owing to his work on the ARC and involvement in the drafting of administrative appeals and judicial review legislation. However, he came to the post with a reputation as a “neo-Luddite”, having scrapped an expensive word processing system at the OPC and reverting to typewriters after complaints of strain injuries.

After 16 months, Kolts left the post in October 1987. Couched officially as a retirement, Kolts was reported in the Canberra Times as disliking the managerial aspects of the role, and wanting to return to the law.

Two months later, the Hawke Government announced the appointment of Professor Dennis Pearce. Like the original Ombudsman, Jack Richardson, at the time of appointment Pearce was a Professor of Law at the ANU, with a significant record and reputation in the field of administrative law. Pearce was appointed for a three-year term.

At the completion of his term, Pearce too apparently indicated a wish to return to the law, though reports towards the end of his term indicated a less than harmonious relationship with the Government, especially over questions of resources for the Office.

Pearce’s successor was named as Alan Cameron. Cameron came to the office from the private law firm of Blake Dawson Waldron (now Ashurst Australia), where he was National Executive Partner. Prior to appointment, he had been a judicial member of the NSW Equal Opportunity Tribunal for five years, and had earlier been Principal Solicitor at the NSW Aboriginal Legal Service.

Cameron was to leave the office the following year to take up the role of head of the Australian Securities Commission, which would become the Australian Securities and Investment Commission under his watch after significant reform to the corporate law.

Towards the end of Pearce’s term and running into the early period of Cameron’s term, the Senate Committee on Finance and Public Administration undertook a major review of the Ombudsman’s role and function. Noting the original vision for the office, where a background in law was considered useful but not essential, its first recommendation was that the Government give consideration to, all other merit considerations being equal, the appointment of a non-lawyer to the position. Interestingly, the next two appointments, by the Keating and Howard Governments respectively, were to people with non-legal backgrounds.

In 1993, the Keating Government appointed Philippa Smith for a five-year term. At the time of her appointment, she was a consultant on consumer advocacy issues, having had a high profile role as advocate at the Australian Consumers Association, and before that at the Australian Council of Social Services (ACOSS).

At the completion of Smith’s term in early 1998, the Howard Government appointed Ron McLeod. McLeod was the first appointee to have extensive public service management experience outside the Attorney-General’s Department, with experience at the Public Service Board and the Department of Defence. In his time at the Public Service Board, McLeod held positions at the Branch and Division head level (1971-1984), before being promoted to become the Deputy Secretary Budget and Management, in the Department of Defence, a post he held from 1984 to 1995.

In 1994, McLeod had been seconded to head a major review of the Public Service Act 1922, which resulted in a major overhaul of the legislation underpinning the public service.

However, immediately prior to his appointment as Ombudsman, McLeod had served nearly three years in an oversight role as Inspector-General of Intelligence and Security.

Upon McLeod’s retirement in 2003, the Howard Government appointed Professor John McMillan. The Canberra Times reported his appointment as “a surprise choice by the Government – given his socially progressive background.” Rumoured to be in the running were former Liberal politicians including Kerry Chikarovski, Peter Reith and Michael Wooldridge.

Like Richardson and Pearce before him, McMillan came from the ANU, bringing a long and distinguished record in academia and administrative law. He had even worked for the Ombudsman’s Office in its early years as a principal investigation officer. Like his immediate predecessors, McMillan was appointed for a five-year term. In March 2008, he was appointed for a further five years by the incoming Rudd Government.

In 2010, McMillan was appointed as the first Information Commissioner. At the time of this appointment, the Government indicated that he would be taking leave from his appointment as Ombudsman, but he would later resign, resulting in the appointment of Allan Asher in July 2010 for a five-year term.

Like Smith before him, Asher had extensive experience in consumer advocacy. At the time of his appointment, he was the Chief Executive of the Australian Communications Consumer Action Network. Prior to that, he had been Chief Executive of EnergyWatch (UK), a Board Member of the UK’s Office of Fair Trading, and Deputy Chairperson and Consumer Protection Commissioner of the Australian Competition and Consumer Commission.

Asher’s term was to come to an ignominious end fourteen months after taking up the role when it was revealed that he and his office had briefed Greens Senator Sarah Hanson-Young on lines of questioning to take at Estimates to enable him to air concerns about the handling of immigration detention. Lacking the confidence of the Government, Asher resigned in October 2011.

In August 2012, Colin Neave was appointed as Ombudsman. At the time of his appointment he was President of the Administrative Review Council, Vice-Chair of the Australian Press Council, Chairperson of the Legal Services Board of Victoria and Chairman of the Commonwealth Consumer Affairs Advisory Council.

Previously Neave had served as the Chief Ombudsman of the Financial Ombudsman Service and as the Australian Banking Industry Ombudsman. He had held senior management positions in the public sectors of several jurisdictions including as Deputy Secretary of the Commonwealth Attorney-General’s Department, Managing Director of the Legal Aid Commission of NSW, Secretary of the Victorian Attorney-General’s Department and Director-General of the South Australian Department of Public and Consumer Affairs.

Again appointed for a five year term, Neave left the post early in December 2016, to take up a customer advocacy role with the ANZ Bank.




One thought on “Forty Year Ombudsman Tradition Trashed by Turnbull

  1. In my experience the Office of the Commonwealth Ombudsman-OCO, since the appointment of Prof. John McMillan AO, who is now the Acting NSW Ombudsman, has shown the signs that they are prepared to breach their own rules, their service charters, their stated values, their independence and impartiality, their time frames, their fairness, their integrity, their promise of careful consideration of complaints, their responsibility to hold the decision makers of their own office to account for the breaches of their own stated values when big names are involved in alleged wrongdoings with documented corruption and documented alleged criminal misbehavior. This office in my view removes their own officials when caught in wrongdoings and there are jobs waiting for them in the government agencies straight away. Mr Allan Asher left to protect the integrity of his office and that was not for the reason that was widely reported is my view.
    The money paid to the officials of this OCO comes from the tax payers. That money will be wasted if there is a culture of protecting people when they are all powerful and abuse their powers. A very powerful, honest, independent and impartial Federal ICAC, where the Commissioner of the Federal ICAC is not a former judge or a former government official, the people working in the OCO may behave better and will be fearful of engaging in any corruption themselves is my view.
    The new Ombudsman Mr Michael Manthrope appointed from 8 May 2017 needs to show to the nation that all the money that he will be paid to be independent and impartial is worth every cent paid to him and nobody in any federal jurisdiction that comes under the jurisdiction of OCO is above the law.
    If he can distance himself from his previous positions and show to the nation that this appointment that he has accepted will be used to make our country corruption free during his term in office he could become world famous is my view. If the Office of the Commonwealth Ombudsman becomes truly independent and impartial we may not need a Federal ICAC. At present this office is toothless and nobody has any fear if this office receives complaints against them. This could be the view of numerous other people as well.

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