Why The Ombudsman Is Being Punished


Allan Asher is, at least as I write this article, still the Commonwealth Ombudsman. But he won’t be for much longer. A man under severe pressure, he appears to be about to resign over a gaffe in which he scripted Senate Estimates questions for Greens Senator Sarah Hanson-Young.

Why is Asher under pressure? The reason everyone is giving is that he made an error of judgment that diminished the integrity of his office. But the real reason for the assault on Asher is the poisonous politics of immigration.

But first, some background. The role of the Commonwealth Ombudsman is to act as a watchdog on government abuses and bureaucratic bungles. To quote the Ombudsman’s website, "the Ombudsman’s office handles complaints, conducts investigations, performs audits and inspections, encourages good administration, and carries out specialist oversight tasks."

The Commonwealth Ombudsman has a particular jurisdiction over some of the government’s most trouble-prone bureaucracies. The ambit includes the Australian Defence Force, Centrelink, the Immigration Department, the Australian Federal Police, the ATO, Australia Post and overseas students. When you consider how much can and has gone wrong in Defence alone in recent years, you can see why the Ombudsman has been busy. Very busy.

According to the latest available Annual Report, for 2009-10, the Ombudsman’s office received 37,468 complaints and investigated 4489 of them. The Ombudsman also issues a series of investigative reports on major systemic issues within the public service. In March this year, it released a report into Centrelink’s handling of its complaints and internal review procedures. The report was scathing. It found systemic flaws in the way Centrelink handles complaints and reviews, some of them as simple as reviews being terminated because forms went missing, letters got lost in the mail or a fax did not go through.

The Ombudsman has also been highly critical of other aspects of the bureaucracy’s service delivery. One of the most politically sensitive was its investigation into the Christmas Island immigration detention facilities in February this year.

Given the strident criticism Asher and his office meted out, it’s not surprising he hasn’t won many friends in the government or wider public service. But Asher is a statutory office holder, legally independent from the executive proper, and was recently appointed for a five-year term. If anyone has the ability to speak openly and freely about the matters under his purview, it should be the Commonwealth Ombudsman.

And open and free he was — with Senator Sarah-Hanson Young of the Greens. And that is the source of the Ombudsman’s current discomfort. Lacking the resources required to do his job properly, Asher decided to do something that was rather unusual. Instead of going through channels to ask for more money, or even just issuing a media release, Asher decided to brief Hanson-Young on the Ombudsman’s resourcing issues. Not only did he suggest a line of questioning that Hanson-Young might pursue at Senate Estimates, he apparently even emailed her a script.

And so on 24 May, Hansard records this exchange between Hanson-Young and the Commonwealth Ombudsman.

Senator HANSON-YOUNG: So, despite the increase in the number of cases you are being requested to review, with no additional funding you are still going to have to be able to manage that. What kind of impact do you think that will have on the transparency and accountability of not just individual cases but the overall conditions within detention centres?

Mr Asher: I am thinking that we will have to just redefine the way that we do that and perhaps instead of doing individual reviews we might have to do batch reviews-all of the detainees from a particular boat or something like that-and then try to rely more on the department’s work with mental health provision and so on … I am reminded from the Australian this morning that it is just on a number of years since they first published the Cornelia Rau story, and we are very conscious of the impact that has had and we do not want to see the department slip back to those bad old days.

Senator HANSON-YOUNG: You would not want to see vulnerable people slipping through the cracks simply because you have not been able to look at their individual case.

Mr Asher: Indeed.

The exchange continued for several minutes. Hanson-Young asked Asher a series of questions that allowed him to discuss the problems of Australia’s mandatory detention system in detail.

All in all, he painted a depressing and familiar picture of repression, violence, mental health issues, self-harm and desperation. He accused the Gillard Government of not living up to its stated values on not detaining asylum seekers for any longer than was necessary. He spoke of "unsustainable tensions" within the immigration detention system. And he said all of it while sitting next to the then immigration minister, Labor’s Chris Evans.

You can see why the government was less than impressed.

And so, when it emerged that Asher had prompted and scripted the exchange with Hanson-Young, you can also see why the Government reacted so rapidly and savagely.

There was some strident reporting on the affair in many newspapers, none of it hosed down by the government. Evans told The Australian’s Matthew Franklin that "it’s a very serious matter and has the potential to undermine confidence in the office". His Senate colleague John Faulkner, who has a fearsome reputation for his forensic investigative skills, gave Asher a thorough going-over on Monday night. For their part, the Opposition, usually so happy to make light of the Government’s failures, have also sensed an opportunity to attack a public servant who would undoubtedly be a critic of future Coalition immigration policy.

And then, of course there is the issue of Hanson-Young’s involvement. The young Senator from South Australia has a high media profile and has been a tireless campaigner on immigration issues. She is far and away the most vocal critic of both major parties’ asylum seeker policies. So she makes an appealing target for Labor and the Coalition alike. Barnaby Joyce yesterday said that the Greens’ role in the affair was "belligerent and sometimes nefarious". Eric Abetz has attacked Hanson-Young for hypocrisy.

The upshot is that it seems that Allan Asher will resign, having lost the confidence of the Government.

The tragedy of the case is that a good man has been impugned simply for calling attention to the huge workload required of his office. The Commonwealth Ombudsman is a critical and necessary safeguard on the federal executive: a key check-and-balance on administrative abuses, and a last resort for desperate citizens caught in the coils of Australia’s huge and error-prone bureaucracy. The Ombudsman’s office clearly needs more funding and more support. It has received little of either in the current debate.

Instead, the integrity of the Ombudsman’s office has been called into question, and the Ombudsman himself has become embroiled in a political controversy. Some of that blame must indeed attach to Asher. At the very least, he has been politically naïve. On some analyses, like that advanced in this penetrating article by Stephen Bartos, Asher’s behaviour has been improper. After all, Bartos writes, "If anyone in government ought to reject leaking, lobbying and backstabbing it is the integrity agencies".

Blame must also attach to Sarah Hanson-Young, who made a tactical error in the legitimate pursuit of an important public policy issue. There were a number of other ways the issue of the Ombudsman’s resources could have been called to the public’s attention which would have been completely above board and would not have given any impression of impropriety.

But the bulk of the blame must attach collectively to the Government and to the Opposition, who have cynically taken the opportunity presented by the scandal to bring a good man down. The real collusion in the Asher affair is between the two major parties, who are acting together to silence a prominent critic of their cruel race to the bottom on asylum seekers.

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Ben Eltham is New Matilda's National Affairs Correspondent.