The ombudsman and the Senator and the beatup

I don’t agree that an Ombudsman, concerned about the inadequate funding of his office, suggesting some “dorothy dixer” type questions he can be asked so that he can express the concerns of his office, is somehow “corrupt”. This is a political system where half of Parliament’s most prominent hour every day is taken up with “dorothy dixer” questions from the government to itself. And whilst an ombudsman isn’t supposed to be party-political, are they really supposed to be neutral on absolutely everything? Against the interests of the office they represent and the citizens it is supposed to protect? How else are they to get these concerns aired, if the big party politicians do not care?

THE Commonwealth Ombudsman has conceded he was unwise and compromised the independence of his office by actively colluding with the Greens, but said he had no other way to air his concerns about government policy.

Following revelations he scripted loaded questions on immigration, defence and taxation for the Greens to ask him during budget estimates hearings, Allan Asher called for a special parliamentary committee or some other mechanism so he could directly raise his concerns.

And until then, why shouldn’t he work within the system as much as he can? In the interests of the ordinary Australians on whose behalf he’s employed?

I don’t see that asking a Senator in a position to raise the office’s concerns to do so in the public forum of budget estimates is improper at all. Unless you define “holding the big parties to account” as “improper”. No wonder they’re united in smearing the Ombudsman and the Greens for daring to challenge them.

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24 responses to “The ombudsman and the Senator and the beatup

  1. jordanrastrick

    The Ombudsman’s actions undermined the integrity and independence of his office, and would have done so regardless of which political party had been involved. The Greens’ Senators should never have agreed to be a party to it. He could quite easily have called for a mechanism to raise his concerns prior to going through this subterfuge, and in fact his own statements reflect his awareness that this was a lapse in judgement on his part.

    There is a massive distinction between a Question Time Dorothy Dixer, which is openly directed to a Minister of the Crown by a fellow MP of the same party, and is a scripted part of partisan political exchange by a universally understood convention, and questions asked by a parliamentary committee of a statutorily independent civil servant. Which come with absolutely zero disclosure or possible expectation that those questions have in fact been written by said civil servant.

    Can you honestly say that, if these were LIberal senators and the Ombudsman was expressing concerns about the Carbon Tax or the NBN, you’d be equally nonchalant about this?

  2. “The Ombudsman’s actions undermined the integrity and independence of his office”

    How?

    “He could quite easily have called for a mechanism to raise his concerns prior to going through this subterfuge”

    That would’ve been more political, and more like damaging the impartiality of the office.

    “Which come with absolutely zero disclosure or possible expectation that those questions have in fact been written by said civil servant.”

    So what? They’re just questions. What difference does it make who wrote them?

    “Can you honestly say that, if these were LIberal senators and the Ombudsman was expressing concerns about the Carbon Tax or the NBN, you’d be equally nonchalant about this?”

    (a) which ombudsman? How’s that part of his brief?
    (b) those are highly political, highly contentious issues about questions of broad national policy, not questions about funding the Ombudsman’s office.

  3. jordanrastrick

    http://www.smh.com.au/national/question-ploy-unwise-ombudsman-20111013-1ln4f.html

    Four days later, they met and a week later, Mr Asher sent Senator Hanson-Young a series of questions to ask him when he appeared at a budget estimates hearing the next day.
    They were mostly about asylum seeker policy, including self-harm and suicides in detention centres, and the lack of funding for the Ombudsman’s immigration duties, all of which had the potential to embarrass the government.

    My emphasis.

    Care to explain what part about asylum seeker policy is not a highly political, highly contentious issue about a question of broad national policy?

    So what? They’re just questions. What difference does it make who wrote them?

    If Scott Morrison were to ask Chris Bowen something like “Isn’t it true that you received advice that letting boats sink at sea and not sending out search and rescue operations would completely halt illegal migration by sea”, and that question was given to him by a civil servant in the Immigration Department, do you think it makes no difference who wrote it? The civil servant giving that question to the Opposition isn’t compromised at all, right?

    I mean, the secretary of the Department of Prime Minister and Cabinet – another independent, non-partisan civil service role – has apparently given the Ombudsman an absolute hiding over this. Assuming that’s not an outright fabrication, I think it speaks pretty clearly to the notion that this is just a “beat up” of the Big Parties, and the Media, and everyone else who are all conspiring against the Greens, the meanies.

    That would’ve been more political, and more like damaging the impartiality of the office.

    Sure. Because he couldn’t, for instance, have sent a letter to the relevant Minister saying “I think there should be a parliamentary mechanism for me to raise concerns, in my capacity as the Ombudsman, about various issues – can we please discuss some options”. That would have been way political and damaging to the impartiality of the office.

  4. “Care to explain what part about asylum seeker policy is not a highly political, highly contentious issue about a question of broad national policy?”

    Fair enough. The test I suggested doesn’t work. Why is this Ombudsman in a position to make pronouncements about asylum seeker policy?

    I object to public servants making outrageously political statements like the one the other month who made that stupid, unsupported claim about onshore processing leading to London-style riots.

    “If Scott Morrison were to ask Chris Bowen something like “Isn’t it true that you received advice…”

    Those questions are obnoxious and misleading. Ministers receive advice covering all bases. But that question assumes that if they received advice from one side then that was the dominant and considered advice.

    “Sure. Because he couldn’t, for instance, have sent a letter to the relevant Minister saying “I think there should be a parliamentary mechanism for me to raise concerns, in my capacity as the Ombudsman, about various issues – can we please discuss some options”. That would have been way political and damaging to the impartiality of the office.”

    Didn’t he?

  5. Splatterbottom

    Yep. There is no better place for the Ombudsman to be than up Sarah Hanson-Young’s arse. Obtaining political favours from the Greens will guarantee his impartiality.

    Once again the Greens are involved in the debauching of our democratic system. Luckily, the people are wise to their ways and popularity of this refuge for ratbags is in decline.

  6. jordanrastrick

    I object to public servants making outrageously political statements like the one the other month who made that stupid, unsupported claim about onshore processing leading to London-style riots.

    Now there was a beat up. I think a bunch of the Greens pollies and other refugee advocates who savaged that poor bureaucrat (with the best of intentions, but still) were responding exclusively to the media headlines rather than what was actually said.

    I was not looking forward to having to dig up enough sources to explain why – so I’m very thankful that Crikey has already done so.

    http://www.crikey.com.au/2011/09/09/what-metcalfe-said-or-is-understood-to-have-said/

    I mean the idea a public servant should be sacked for giving frank and fearless advice that people didn’t like is bad enough, but it was advice he never even gave, outside of the imagination of some journalists.

    Those questions are obnoxious and misleading. Ministers receive advice covering all bases. But that question assumes that if they received advice from one side then that was the dominant and considered advice.

    Sure, that’s kind of the point.

    Look, to me, this is really simple. You’re a lawyer, and the issue has come up on threads here in the past about judges needing to avoid not just any actual bias but also grounds under which a reasonable person could perceive bias. And I think the importance and the reasoning behind this particular rule of the judiciary is probably as obvious to you as the sky being blue.

    The position of a civil servant, when acting in their official capacity, is analogous – particularly for critical roles like the Ombudsman, who in fact absolutely and essentially must be able to criticise government screw ups of a particular kind. For this criticism to be a useful and effective part of our system, it has be seen as independent of the constant shit slinging of partisan politics. Thus the Ombudsman must not merely avoid actual partisanship, but like a judge, any circumstances that could lead to a reasonable perception of partisanship. Or else he (or she) is compromised.

  7. Splatterbottom

    Jordan: “the Ombudsman must not merely avoid actual partisanship, but like a judge, any circumstances that could lead to a reasonable perception of partisanship. Or else he (or she) is compromised.”

    This is self-evidently true. The ombudsman should resign.

  8. Splatterbottom

    Looks like Asher will resign.

    Hanson-Young will no doubt stay since she is a mere politician and, as such, is not expected to act in a principled way. In this the Greens are no different to the rest of the maggots infesting our parliament.

  9. jordanrastrick

    Yeah, I expect him too – he seems to be a decent enough person, and his position is clearly untenable.

    I don’t think Hanson-Young is nearly as compromised by this as Asher. She’s misjudged akin to say Turnbull’s misjudgement on Godwin Gresh; but it is in a way her job to go after the government with any thing that comes her way, by fair means or foul.

  10. What drivel.

    There is no comparison between the ombudsman and a judge.

    And some seem to equate the senate hearings system with a court proceeding – nothing could be further from the truth. It is not an adverserial system, the idea is to canvass as much relevant information as possible on the issues being discussed.

    But there is one real and very significant issue raised – that the Ombudsman is open to reprisals from the government he is criticising.

  11. Splatterbottom

    ‘Gadj, you are missing the point. The Ombudsman should be impartial and seen to be so. He should not be secretly soliciting favours from politicians for any reason.

    Clearly the issue of government reprisal is a serious issue. The Omudsman would be much less susceptible to attack from politicians if he behaved in a principled way instead of secretly colluding with a Greens senator.

  12. jordanrastrick

    This was by no means some underhanded or inappropriate reprisal. The government simply made it clear it had lost confidence in him, in which it was quite justified. He could quite easily have stood his ground – a less principled person might have, in the same position – but he would have surely been removed by a parliamentary vote in that case. Indeed, despite the government’s lack of a majority in either house, it would likely have been one of the most clear cut votes of this term, with the backing of all MPs from the Government and Opposition, and probably most of the cross benches outside of the Greens as well.

    Hopefully at least some good might come of the incident, if the new Ombudsman gets the parliamentary committee Mr Asher belatedly asked for, and the increased funding to review cases of asylum seekers in detention that was the start of it all.

  13. Anyone suggesting “collusion” in Senate hearings doesn’t have a clue.

  14. But Gadj – what about the next time Hansen-Young needs a favour from the Ombudsman? Can he be trusted to be impartial, given his special relationship with her?

    This is a separation of powers issue from what I can see. It’s a bedrock principle of democracy and breaches should not be excused merely because the commentator happens to support the Greens.

  15. narcoticmusing

    This is not a separation of powers issue. The ombudsman is in no way close to being a judge. Not only does the position not hold any of the characteristics or power from the Constitution but the Ombudsman is required to take instructions from the leading Minister (for example, things to investigate). There is requirement of impartiality yes, but it is not judicial. The ombudsman is really just part of the executive or the legislature (depending on the role) much like the Auditor General.

  16. Splatterbottom

    Narcotic, I agree with you on the impartiality point, but how is the ombudsman part of the legislature?

  17. jordanrastrick

    Its certainly not a separation of powers issue in the classic sense; the ombudsman is not part of the judiciary (although frankly, the only real difference is the passage of time – the separation of these civil service institutions from the core of the executive government has happened relatively recently. Judges and so forth were once merely representatives of the King.)

    But similar concerns as those regarding judicial independence motivate the need for statutory independent civil servants to maintain an appropriate distance from partisan politics.

  18. It’s been a while since I studied law but I believe that the separation of powers doctrine refers to all three branches of government, i.e. the judiciary, the executive and the legislative.

    All three are supposed to be separate from each other. The Ombudsman, as a member of the executive, should therefore remain separate from legislators like Hansen-Young.

  19. Seperation of powers?? – FFS!

    No. Not even close.

    Senate hearings are not adversarial. Those appearing before it are not being questioned in the courtroom sense. The whole idea is to bring matters into the public sphere for consideration.

    Seeing the pollies getting all sanctimonius over a trifle when they have been subject to harsh criticism from the target has me calling bullshit on this.

  20. jordanrastrick

    OK, while its a little tempting to engage in this completely tangential (and increasingly silly) argument about separation of powers theory, I am instead just going to repost the relevant part of my original comment that brought up the judiciary in the fist place, with the analogy removed.

    The position of a civil servant, when acting in their official capacity, [...] needs to be apolitical – particularly for critical roles like the Ombudsman, who in fact absolutely and essentially must be able to criticise government screw ups of a particular kind. For this criticism to be a useful and effective part of our system, it has be seen as independent of the constant shit slinging of partisan politics. Thus the Ombudsman must not merely avoid actual partisanship, but [...] any circumstances that could lead to a reasonable perception of partisanship. Or else he (or she) is compromised

    There, fixed.

    Oh look! The argument is still completely frigging valid!

  21. Come on Jordan – you don’t think that feeding scripted questions to an ideologically friendly politician to influence a supposedly impartial political process could “lead to a reasonable perception of partisanship”? Really?

    And surely this question is centrally relevant to the issue and not a silly tangent?

  22. Another observation: it’s interesting that the ombudsman went to a Greens senator to get these questions asked instead of a Labor one. Assuming he was merely trying to gain sufficient funds/resources to implement asylum seeker policy, i.e. Government policy, why did he go to the Greens for support?

    It’s almost as though he couldn’t trust Labor to back it’s own policy and could only count on support from the Greens.

  23. Sorry Jordan, but no.

    The ombudsmans role is to conduct impartial investigations. People are conflating this with ‘apolitcal’ and then further confusing ‘political’ with talking to a politician.

    I thougt this was pretty obvious but maybe it needs to be said – Asher was at the hearing specifically to be asked questions by politicians.

    Mondo – surely the answer is obvious? Said Labor MP would be getting a furious call from Bowen staffer along the lines of ‘what the fuck are doing giving this guy a free kick at us?? Haven’t you read those $&!$?!$& reports of his??

  24. You’re probably right about that Part Gadj.

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