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Issue #1524      26 October 2011

Ombudsman forced to resign – for doing his job

Last week the Commonwealth Ombudsman Allan Asher resigned, after it was revealed that he had supplied Greens Senator Sarah Hanson-Young with a list of questions for her to ask him during a parliamentary estimates inquiry in May.

Commonwealth Ombudsman Allan Asher.

Asher was accused of improper conduct by members of the government, including government Senator John Faulkner, and opposition Senators Eric Abetz and Barnaby Joyce.

Greens Senator Lee Rhiannon agreed that public servants should not telegraph questions to senators, but that the incident should just be treated as a learning experience.

Greens leader Bob Brown described Asher as “feisty, intelligent and very public-minded”, and accused the government and opposition of having carried out a vendetta against him. He declared: “Mr Asher is a decent, hard-working ombudsman being persecuted for not taking the government and opposition line in selectively punishing asylum seekers who come to Australia by boat.”

So was Asher right in deciding to resign? He certainly didn’t have to. The Ombudsman is appointed as a statutory independent officer within the Department of Prime Minister and Cabinet. The office-holder can only be removed by a joint sitting of both houses of federal parliament. Ian Watt, head of the Department, reprimanded Asher but did not request his resignation.

Asher resigned because his relationship with the government had become toxic, as a result of his sending the email. However, the bitter reactions of the government and opposition to his actions were not prompted primarily by Asher’s clandestine tactics, but by other factors.

The real “offence”

The Ombudsman reviews the operations of the federal agencies, and investigates complaints made by people who feel they have suffered at the hands of government.

Asher took this job very seriously. In 2009-10 his office investigated 4,489 complaints. Last year the Ombudsman’s reports included a scathing review of Cenrelink’s work practices, as well as reports on defence, taxation and overseas students.

The ombudsman has a defined responsibility for reviewing the treatment of immigration detainees. His office produced a damning report on the Christmas Island detention centre, and he briefed concerned parliamentarians on the issue, including Senator Hanson-Young, a strong campaigner against the asylum seeker policies of the government and opposition.

Asher’s list of questions concerned the extra funding needed to deal with appeals by asylum seekers. The funding level for these appeals was set in 2008 when 100 asylum seekers arrived, but now almost 5,000 are being held in detention.

Asher complained openly that the only way he could raise matters of concern with the government was via the parliamentary estimates inquiry.

In notable contrast to other conservatives, Tony Abbott took Asher’s side in this respect. He commented: “... it says something about the dysfunction at the heart of the government that a senior statutory officer feels it necessary to get questions asked of himself in estimates, rather than simply being able to approach the government in the normal way.”

The government’s reluctance to listen was in part attributable to the failure of its proposal to forcibly transport asylum seekers to indefinite detention in Malaysia. The High Court decided the scheme was illegal under the current Migration Act because Malaysia is not a signatory to the UN Refugee Convention, so the government couldn’t guarantee the safety of the transported asylum seekers.

The government may now have to deal with legal action from asylum seekers who were transported to Nauru or Papua New Guinea’s Manus Island by the former Howard government, because neither of those two countries were signatories to the Convention either.

On top of this, the government found itself facing the demands of an ombudsman for extra funding, to enable more asylum seekers to make official complaints about their treatment. To add insult to injury, while formally replying to Senator Hanson-Young’s questions Asher gave a damning description of the conditions and prospects faced by detainees.

The Immigration Minister listened with sullen hostility. Asher had become a thorn in the government’s side. The subsequent revelation that he had scripted the questions enraged the government, but also gave it the perfect opportunity to get rid of him. Moreover, it allowed the government to score points off the Greens, whose coalition partnership the government accepts of necessity but bitterly resents.

Outrage and hypocrisy

There are some ironies in this saga of unwelcome questions. For a start, during covert operations of federal police, which the Ombudsman is required to review, a law officer may (within limits) “engage in conduct that might otherwise constitute an offence”, and get away with it. Asher, on the other hand, engaged in a minor subterfuge to the extent of breaking unwritten parliamentary etiquette, but lost his job because of it.

Moreover, what he did amounted to little more than organising some “Dorothy Dix” questions, a common practice of federal governments.

And finally, Asher appears to have fallen because he took the description of his role as “independent” at face value. Public servants are obliged to help the government implement its policies. The ombudsman’s responsibilities, on the other hand, involve defending the public against abuse of power by governments, so the Ombudsman must act independently of government.

Asher could have formally and openly briefed Senator Hanson-Young so she could write her own questions. However, just to make sure they hit the target, he wrote them himself and emailed them. It was this ill-advised tactic that allowed the government to force him out of office. He appears to have believed that because of his independent role he didn’t have to worry about his emails being intercepted.

While delivering his apology he expressed a willingness to brief MPs about the Ombudsman’s role and work. Senator Faulkner snarled in reply that Asher appeared not to have learnt the lessons of his actions.

The “lesson” seems to be that the Ombudsman should shut up and not make too many waves, even though that’s what the official job statement specifies. The thorough and outspoken Allan Asher didn’t lose his job because he did it badly, but because he did it too well.  

Next article – Truth and falsehood in Syria

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