From today’s piece for Crikey:
First a declaration of interest. I’ve known Allan Asher, thought only really to say ‘hello’ to, since the mid 1990s. I liked him and, at least from my limited vantage point think he was shaping up to be a good Commonwealth Ombudsman. He’d also invited me to the Ombudsman’s annual conference which had been thoughtfully put together, but has now been shelved in the light of his resignation yesterday.
It was certainly a highly embarrassing and a stupid thing for Asher to have been caught scripting self-interested questions for the Greens to ask him in a Senate Committee. Yet, without wishing to criticise those who urged his resignation or his decision to offer it, it’s worth noting that in some ways (apart from his breach of the Eleventh Commandment) this is standard operating procedure in Canberra – and has been for generations.
And that’s not necessarily a tawdry truth. It often been a noble one. Alf Rattigan – one of Australia’s great countercultural bureaucrats helped build the institutions of micro-economic policy transparency – today represented by the Productivity Commission – by cultivating sympathetic politicians within the partisan politics of the day.
Senior officials in the Tariff Board in the late 1960s and early 70s may not have scripted questions for the likes of Bert Kelly, but they were running talking points to the opponents of government policy, often meeting discretely (I know of, but can’t vouch for the accuracy of a story of one of Rattigan’s deputies passing a dossier to a politician through the hedges in the rose garden of the old Parliament House). Had Bert Kelly asked for help writing a parliamentary question it’s hard to imagine some of Alf’s deputies refusing.
Stephen Bartos disagrees, and perhaps he is right, stressing the role of the Ombudsman as an integrity organisation and also pointing out – quite rightly – that Asher had plenty of other options. Indeed, given Asher’s ability, indeed duty to publish his views and findings via reports, speeches, and media appearances, and particularly given that these avenues had not been tried, his actual choice in the circumstances does seem particularly ill-judged – indeed frivolous.
Finally in his contrite media release (pdf) on the matter Asher sincerely apologises for his mistake. For me there’s a kind of post-mo0dern twist in it all. The media release is not a direct statement by Asher. As has become commonplace, it is in the third person form of a pre-written media story.
Mr Asher said he was especially proud of his office’s investigations into systemic issues, citing as examples the school chaplaincy program, the use of interpreters for Indigenous Australians, tax file number compromises, how agencies engage with people suffering from a mental illness, and review rights for people under income management.
But Mr Asher didn’t actually “say” any of it. And he is being criticised by people almost all of whom are complicit in the system which has developed similar and in some ways even more bizarre daily duplicities such as ‘doors duty’ where politicians pretend to arrive at Parliament House in order to offer some carefully scripted one liner to awaiting media hoping to tempt some of them to run it as a ‘grab’ on the nightly news.
Is it any wonder that people sometimes make what they end up conceding are “errors of judgement” in an environment such as this.
Why the idiosyncratic spelling of the former ombudsman’s name?
Asches to ashes.
Alf did ‘assist ‘those in the cause mostly covertly but sometimes it was overt.
Sorry billie – always suspect a stuff up – though I can imagine you wondering how stupid can a person be – to get both first and second names wrong.
Corrected now. (for the record I’d systematically spelled ‘Asher’ as ‘Ascher’ and ‘Allan’ as ‘Alan’). I’d even kind of checked the surname previously, and thought I’d seen the spelling of the first name. But somehow managed to mess it all up rather comprehensively). Apologies.
Asher’s decision to brief a Greens senator was not the most inspired in his career. Nevertheless, much of what followed is because the legislation governing the federal ombudsman lags a long way behind the legislation that governs ombudsmen in the states, territories and other countries, and even the legislation governing other federal watchdogs like the auditor-general.
Historically the Commonwealth ombudsman has delivered reports bitterly critical of the administration of federal programs, particularly immigration. Neither Labor nor the Coalition has been eager to give the Commonwealth ombudsman the proper powers or independence.
The Commonwealth auditor-general has the right to put concerns directly to parliament. It’s not obvious at all why the Commonwealth ombudsman shouldn’t have the same right. The NSW Ombudsman is an independent officer of the parliament, can make special reports of their own motion, has a fixed term and the appointment is subject to a selection process and a parliamentary veto. Ditto Canada. Ditto New Zealand. Ditto South Africa.
Telling the Commonwealth ombudsman to resign because he had lost the confidence of the government was wildly inappropriate. I’m not even sure that enjoying the confidence of the government is something an ombudsman should want or need.
Good point Nicholas. Strange environments do create strange responses and behaviours. People go with the flow. I think he had to resign, but there are lessons all round.
Losing the confidence of the govt is not the reason for the resignation surely, it is losing our confidence that he is not a player. I guess the ombudsman role might be another type of sausage.
Thanks Pedro – yes, there are lots of sausages in Government. And thanks Alan – I agree that the idea of the Ombudsman requiring the confidence of the government he’s supposed to be a watchdog of is pretty ridiculous.
I would have thought an Ombudsman’s role is to respond to complaints by members of the public, who are having particular problems with bureaucratic interpretation of the Law governing them. In that respect he’s not there to pass judgement on the Law per se, as that is the prerogative of elected representatives. At best he might point out how the implementation of particular legislation impacts unfairly or harshly on particular individuals/groups and their circumstances (ie the law of unintended consequences).
In this case Asher clearly demeaned the independent role completely and became just another political hack. That doesn’t apply to general PS Depts, albeit you want them to give opinions on policy without fear or favour. Sadly they increasingly get stacked with political stooges or are clearly paid political hack Depts like the Dept of Climate Change, where it’s fanciful to imagine anything emanating that’s critical of the IPCC ‘science’ or resultant lunar Green policy prescriptions. Sweet Jesus they can even make curbing camel farts sound like serious policy- http://www.businessspectator.com.au/bs.nsf/Article/Camel-cull-could-limit-climate-change-MQFEF?OpenDocument&src=hp14
It’s a charming nineteenth century concept to think that elected members are the sole makers of law but it is not obvious why they should be restricted to what information the Executive and its agencies provide them. Strong parliaments develop their own sources of information like committee systems and independent officers who report to the parliament, not the executive. Weak parliaments live quietly in the dark and taste a less desirable diet.
Sorry for being slow, but I don’t quite get the problem with the Greens being provided with questions (other than laziness on the Senator’s part for not bothering to do the research on her own bat). It seems to me that the Greens had a chance to review the questions and were under no particular obligation, therefore by asking they are confirming that these questions are pertinent. If the pertinent questions get asked then that’s good for the nation, right? I mean, that’s the general objective of these committees, to get the information out to the public.
Does it matter where the questions came from?
If this is part of the old civil service code of silence, where only a handful of executive are allowed to know what’s going on, then as a good citizen of this country, that code of silence does nothing for me.
observa, yes I agree that elements of politics were at play regarding Asher’s questions, but if anything the thing that brought him unstuck was merely that he was an irritant for the incumbent government (i.e. he was not sufficiently docile and obedient). You are going to get political appointments from top to bottom, and it’s inevitable in any system… you can add the ABC, and the NBN, and the CSIRO to that list, as well as whatever grants committee you care to name. We have already seen that the NBN is willing to be soft on their wholesale pricing plans, because of public complaints that their new fiber connections will be more expensive than their old copper. OK, this just proves that everyone likes the idea of better facilities but no one wants to pay for them, and now the NBN business plan (which never intended to pay back the entire cost of the project anyhow) is shot through with lack of revenue and the taxpayer is holding the baby (but by the time this becomes blatantly evident, it will be Turnbull’s problem to figure out where the money will come from).
The whole premise of Democracy is that the parliament is ultimately answerable to the people at election time, but this premise presumes that the people have visibility into what goes on. I think we can tolerate political appointments, but we can’t tolerate secrecy. The opposition parties must be given some form of investigative powers, but beyond that, there is absolutely no reason why the various civil service decision making processes cannot just be documented and published as a standard order of business. Modern technology makes the cost of such publication very close to zero, and google will index it for you.
Thing is, any executive that has the power to keep secrets, will do so for their own convenience. Only by widespread popular demand can we generate enough force to make them work against their own natural instincts and start working for good governance instead.