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Fix double standards: re-fang the Ombudsman

Fix double standards: re-fang the Ombudsman

The Ombudsman should not have had to resign: as many questions hang over the behaviour of Ministers and their minders as over that of Allan Asher. The Executive has effectively de-fanged the Ombudsman’s office ‘it is in the interests of the Australian people, whom that office represents, that parliament moves to ‘rebuild confidence with a suite of genuine reforms’, Robin Brown and Professor John Braithwaite say.

Fixing double standards: re-fanging the Ombudsman

By Robin Brown and John Braithwaite*

As the media cycle moves on from the demise of Ombudsman Allan Asher, the Parliament must now repair the institution its members have damaged. Many MPs say Asher had to be pressured until he jumped to preserve the integrity of his office. We take the opposite view.

It is senior politicians and public servants who have now damaged the office by leaving the public asking the question: “Will the next Ombudsman be their patsy?” Will persons of integrity want the job? Will whistleblowers lose confidence in baring their soul to the next Ombudsman?

Asher’s error was to push too hard on defending the rights of those in immigration detention centres. His email of questions to a Green Senator was the pretext for his demise. It was not the reason. We have countless friends in the public service who have written questions for MPs. We have both done so ourselves while on the public payroll. Whether this is inappropriate or not depends on context; sometimes it is the stuff of building bipartisan support for good government that all sides look back on approvingly.

What is clear is that it is not actually a breach of the Ombudsman’s legislation for him to do so. While public servants are bound to their minister, the Ombudsman is bound by a responsibility under the Ombudsman Act to provide information to “any person” in circumstances the Ombudsman judges to be “in the public interest”.

The problem here was that neither the Government nor the Opposition liked Asher’s interpretation of the public interest on immigration detention. The Government announced that he was getting extra funds to do the reviews of detainees required of him, but there was sleight of hand here as his budget was cut elsewhere by the same amount. The office was – and is – not able to cope with the backlog of thousands of cases.

It is easily within the power of the parliament to repair the office of the Commonwealth Ombudsman. All parties need to reach consensus to preserve an institution with a proud history. A joint parliamentary oversight committee for the Ombudsman with the power to make recommendations on the budget for the office could and should be quickly established.

If the politicians fail to do this and instead rub their hands with glee at having tamed the troublemaker, civil society can still fight for their right for an independent advocate. The media can start to enquire into the double standards in Asher’s punishment. What about unethical leaks by the offices of the politicians who assassinated Asher? Who wrote the question for Asher that Senator Crossin put on notice for the committee considering the proposed Malaysian agreement, for example? Perhaps it was Senator Crossin herself.

It appears to us that the attack on Asher was carefully managed by members of the Executive including Minister Gary Gray. If the question for Senator Crossin to put to Asher came from his office or from the office of Immigration Minister Bowen, this would be a significant compromise of the independent relationship that should exist between the Executive and the Ombudsman. All communication between the Executive and the Ombudsman should be direct.

Further compromise would have occurred if Ministers’ offices had provided details of communications between Asher and MPs to selected journalists before the Senate Committee had formally considered accepting the question on notice and releasing the Ombudsman’s response.  It seems likely that this happened.  Our inquiries suggest that Nick Butterly of the West Australian was aware of the detail of the question on notice five days before the Committee met. Matthew Franklin of The Australian also seemed to have the jump on other journalists as his story appeared immediately after the Committee met.

Media reports were initially limited in analysis and largely hostile to the Ombudsman. Subsequent commentators included observers who were much better informed on the special role of the Ombudsman and a much more balanced analysis emerged. If all the material the Ombudsman gave to Crossin and Gray had been made freely available to the public, the more balanced analysis would have emerged earlier and the misguided calls for the Ombudsman to resign would have had less impact. The Ombudsman may well have been able explain himself; resignation would have seemed the overreaction it was.

Our point is there was fault on both sides. Only one side was punished; and punishment was a less appropriate response than fixing the root cause of the problem. The real victim is the people of Australia who are left wondering whether the Ombudsman has been de-fanged.

Another ‘fightback’ option would be to gauge the immigration detention reports of the Ombudsman’s office in future against those of the outgoing Ombudsman; a splendid topic for a political science thesis in one of our universities.

There are actually many ways citizens can refuse to take an Executive coup meekly. Yet the best path would be for parliamentarians to rebuild confidence with a suite of reforms to secure genuine independence.


Robin Brown is a Canberra consultant in effective governance and market regulation. Prof John Braithwaite is an Australian Research Council Fellow, founder of RegNet. the Regulatory Institutions Network, at ANU, and a CLA member. This article appeared first in the Canberra Times.

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