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Finance and Public Administration Legislation Committee - 17/10/2011 - Estimates - PRIME MINISTER AND CABINET - Office of the Commonwealth Ombudsman

Office of the Commonwealth Ombudsman

[21:46]

CHAIR: I welcome Mr Allan Asher, the Commonwealth Ombudsman. Mr Asher, do you have an opening statement?

Mr Asher : Yes, I do. Prior to my last appearance before this committee at the May budget estimates I provided some suggested questions to Senator Sarah Hanson-Young. This was an error of judgement and it was a mistake. I wish to, firstly, apologise to the committee for that. I wish to explain my actions in the context of, firstly, my concerns about the financial state of the Office of the Ombudsman and, secondly, the absence of any specialist parliamentary committee through which the Ombudsman's performance can be assessed or concerns heard.

The Ombudsman has responsibility for the oversight of around 250 Commonwealth agencies. Without the capacity in the current budget system to ensure that resources for my office are at an appropriate level, in my view the mechanisms that were available to me for drawing to the attention of the parliament, as opposed to the government, through this committee, which is the prime budget committee, our current financial situation were very limited. I was not called to appear before this committee in October last year. Earlier I had a brief conversation with John McMillan, the former Ombudsman. He thinks it might be two years since the Ombudsman was called to appear. And in February this year I attended but was dismissed without appearing.

The key point I would like to make is that one of the key priorities for the Office of the Ombudsman relates to complaint handling and oversight in the immigration detention network. My investigations over a period had revealed serious problems with the administration of the centres. There were improvements that could be made, and still could be made, to the lives of thousands of people—improvements that can be made through our office in conjunction with those of the department of immigration. But my office needs appropriate funds to be able to do that.

In 2010-11 the Ombudsman's office received 2,137 approaches and complaints about immigration matters. That was a 34 per cent increase on the previous year. Under statute my office is required to do a specific investigation of every individual who has been in immigration detention for more than two years. That report is also required to be tabled in parliament. In addition, we have an arrangement with the government to undertake similar reviews for detainees after six, 18 and 24 months. Funding provided to my office for the work in relation to irregular maritime arrivals was agreed back in 2008. At that time it was expected that there would be about 100 arrivals a year. Apparently, there are 4,762 irregular maritime arrivals in detention and more than 3,200 detainees who have been in immigration detention for more than six months. We have an agreement to do individual assessments of the circumstances of these people. I just have to say that it is an extremely expensive—even impossible—task. The resources that were planned initially were quite adequate for those much lower numbers but it has just become something that is using up vast proportions of our office resources.

It was in that context that I sought an invitation to speak at this budget committee of the parliament. When we were not invited in appear I approached Senator Hanson-Young and briefed her on some of these key issues. If I might say, all of the information that I provided were our public reports. There was no information relating to any cases that we were investigating and nothing that was of a confidential nature, but just that. I have to say that the briefing was neither partisan nor political. But, as I said, I did write the questions for her. They were not written in normal public service language. I accept that and that they were airing concerns I had already raised with the government. Without adequate funding the really good work that the department and our officers were doing together was in great danger. I have to say that that remains the case just now.

I would like to point out that across the whole of our office over the last five years there has been a year-on-year average increase in our workload—that is a crude measure taken by adding together formal in-jurisdiction complaints plus inquiries to us—by five per cent. So the work volume has gone up by 25 per cent in the last five years. In fact, the trend is accelerating. So for all of that underlying work we have never been able to attract extra resources. In fact, the resources that we have had—in common with all government agencies—is subject to the efficiency dividend.

In this last year we have investigated 4,400 separate complaints. I will not go into all the details. I will table a statement that will point out that the huge numbers of changes—

CHAIR: Can I ask you to conclude your remarks because we have limited time tonight and I am sure there will be lots of questions. So if you could wind up your statement—

Mr Asher : I am sure there will. I would just like to go on to say that, having made a number of approaches over a number of years to the government through various channels for additional funding, typically we would, in the current budget arrangement, need to make some arrangement with another government department, whose work we were overseeing and invite them to give us the money to do it. That just does not happen anymore. So we are really stuck with no form of raising extra money. I will just conclude by saying that this issue has come up a number of times over the years, before this committee, and indeed the committee, a long 21 years ago, published an extensive report after an investigation, and it spoke of the desirability of establishing a special committee of parliament to deal with issues of concern to the Ombudsman in much the same way that the National Audit Office has a committee, ACLEI has a committee and some others have a committee—so that there is a performance review but also a forum where issues can be raised. Our office is statutorily independent from the executive and from the parliament, so we do not have a minister in the normal sense. There is a minister responsible for appointments, but he does not have any role in the work that we do or even in our accountability. So I would argue that perhaps this committee might consider that role or at least make a recommendation that such a committee be set up so that this issue that was raised then, by Professor Pearce and by several previous ombudsmen, can be addressed. I will leave it there, but if I could just return to my opening point—that it was an error of judgment.

CHAIR: Mr Asher, I will have to ask you to conclude your remarks.

Mr Asher : I have.

CHAIR: Thank you. Senator Faulkner.

Senator FAULKNER: Thank you for your opening statement, Mr Asher. You did indicate to the committee that you consider your actions to be an error of judgment and a mistake, and you have apologised to the committee for them. What has led you to the conclusion that they were an error of judgment and a mistake?

Mr Asher : There are two aspects to that. One is the reaction of, I guess, the media, which showed that, and the other is the reaction of members of parliament. I had a great deal of introspection since the publicity that came after the release of these documents—although, if I do get a chance, I would like to distinguish between the briefing of Senator Hanson-Young and the writing of questions.

Senator FAULKNER: Do you consider that your actions have impacted negatively the independence of the Ombudsman's office?

Mr Asher : No, I do not believe it affects the independence in any way. The information provided, and the questions, were clearly of an administrative character, about the funding and our continued capacity to undertake the work. In that way, I think that the questions were, in an independent sense, quite neutral.

Senator FAULKNER: Do you consider approaching one senator from one political party as opposed to all the membership of a parliamentary committee as something that might raise questions about, firstly, your impartiality and, secondly, the need for you to act in a manner that is unquestionably apolitical?

Mr Asher : I am apolitical, and our office is. I did approach an individual senator. If anything of that character was considered in future, I would consider writing to all senators. In fact, my preferred approach is that there be a committee that might look at our performance and be available for the raising of concerns so that such a thing would not be necessary.

Senator FAULKNER: But that option was available to you on this occasion, wasn't it?

Mr Asher : Yes, it was.

Senator FAULKNER: You could have written to all senators, but you decided not to—or you did not do that.

Mr Asher : Well, I did not.

Senator FAULKNER: You could have put your case to ministers.

Mr Asher : I certainly put the case to ministers.

Senator FAULKNER: When you say you put the case to ministers, did you raise the issues that you raised with Senator Hanson-Young with ministers?

Mr Asher : The issues that I raised were concerns about the funding of the office. The issues raised with Senator Hanson-Young were also conveyed to ministers and departmental officials through numerous reports.

Senator FAULKNER: You could have put the issues to ministers. Did you raise the issues with ministers that you raised with Senator Hanson-Young?

Mr Asher : Yes.

Senator FAULKNER: Do you believe that you could have issued a press release or made a speech about these matters instead of approaching an individual senator?

Mr Asher : Sure, and I have done those things as well. In February of this year, following the sending of eight separate reports to the department of immigration about visits to Christmas Island and our observations there, I compiled all of those together and submitted those to the minister and to the department secretary in September 2010. Then in February 2011 I released those publicly and made a series of speeches that were extensively covered in the media.

Senator FAULKNER: Minister Gray has formal responsibility for your office, I believe.

Mr Asher : That is correct.

Senator FAULKNER: Did you raise these issues with him?

Mr Asher : I have certainly sent him copies of the same reports. On a number of occasions we have met to discuss aspects of our work in immigration.

Senator FAULKNER: Did you raise these issues with Mr Gray?

Mr Asher : I cannot say that I discussed in detail some of the points from those questions about the way in which we were dealing with the six-month, 12-month and 18-month detention individuals, but again through the budget processes I put cases a number of times across the field of our work.

Senator FAULKNER: Could you have made it clear to your clients that you were resource-constrained? People you were engaged with on these matters?

Mr Asher : That necessarily is the case. A lot of the individuals involved here are people in detention centres on Christmas Island and at the other detention centres around Australia. I regard it as a high priority for our work to help implement and administer the detention values agreed on by the government just three years ago.

Senator FAULKNER: Could you have raised these issues in your annual report?

Mr Asher : The context of this was the budget estimates in May, and our annual report for that period was more or less done. I am just about to table the next one, which covers that period as well, from July last year to June this year.

Senator FAULKNER: Do you think that an integrity agency such as the Ombudsman should set an example, should have the highest standards in government?

Mr Asher : Yes, it should.

Senator FAULKNER: Have you met those highest standards?

Mr Asher : I think this was clearly an error in judgment. It was clearly a mistake.

Senator FAULKNER: Do you think that engaging with an individual senator is meeting the highest standards possible?

Mr Asher : I do not believe that meeting an individual senator is any problem at all. The problem, in my view, occurred in the writing of the questions.

Senator FAULKNER: I did not say 'meeting', Mr Asher, I said 'engaging'. Let me make it more complete then: 'engaging with a senator in the manner which you engaged with Senator Hanson-Young', in this instance.

Mr Asher : I would just like to qualify that. I met with Senator Hanson-Young on a single occasion and sent by email some questions to her. The week after, she asked me two or three question at this committee. So there was no pattern of engagement there at all but a single meeting.

Senator FAULKNER: What has been the reaction of the staff in the Ombudsman's office to this publicity?

Mr Asher : Slightly mixed. A number are concerned that our relationships with some departments might be strained. Some others have asked how we might show people that we are able to continue doing our work and what they should do. I have said to them that what they should do is exactly what they have been doing—that is, working impartially and fairly to resolve individuals' complaints against the administration of Commonwealth policies.

Senator FAULKNER: If your office is to function properly, have the full confidence of citizens and the parliament, do you think it is essential that your office is seen to be above the political process and above politics?

Mr Asher : I think it certainly should be above politics and the political process and I argue that we are.

Senator FAULKNER: Do you see any irony in you as the Ombudsman, an official established by the parliament to enhance its scrutiny of the executive government and its accountability, engaging in behaviour which many see as absolutely at odds to the fundamental responsibilities of your office.

Mr Asher : Again I would like to separate the concept of meeting with a member of parliament and the admitted error of writing the questions. Our act quite expressly permits us to make statements and to deal with people on any matter of public interest. Even in these last few weeks I have met and spoken with half-a-dozen individual members of parliament from pretty well all parties. That is just something that we do all the time. I have attended 18 committee meetings—I will have to check that figure—in the last year and I am and my office is politically colourblind.

Senator FAULKNER: But you see what people inevitably will conclude is that if you are willing to act in the way you acted in relation to your engagement with an individual senator then with others whether they more broadly be the citizenry, members of parliament, the government or government agencies you might not bring the same sort of approach, to use the political terminology if you like, the same sorts of tactics to the consideration of complaints that are formally made to you. Isn't that a pretty fundamental problem for you now?

Mr Asher : I would agree that if there were a pattern of conduct, a pattern of dealing with a single political party, that would be a risk. However, the evidence quite plainly and we are very open about this is that—and I say this every time I am at a public speaking engagement—we remain ready, willing and able to work with anyone who wants to promote fair and open public administration.

Senator FAULKNER: Is there any example in the history of the Australian Public Service of an agency or departmental head behaving in this way?

Mr Asher : I do not know of others. I have not made inquiries.

Senator FAULKNER: I might come back if there is time.

Senator ABETZ: I want to commence my questioning by asking specifically whether you asked Mr Gray for more funding?

Mr Asher : Yes, on a number of occasions, but that is through the budget processes. I would have to seek guidance from the minister as to how much one can speak about the NPP process and things.

Senator ABETZ: You released a statement on 13 October, which, if I have read it correctly, does not include an acknowledgement of error of judgment or an apology. Is that correct?

Mr Asher : I do not recall. I think the statement that I released was one that responded to a series of questions put to me by a number of journalists. I wrote out all of the answers to the questions that the journalists had sent, compiled those and released those as a statement.

Senator ABETZ: It is headed 'Media release' and is dated 13 October.

Mr Asher : I certainly accept that we put one out. I thought I noted in that that it was an unwise thing to do.

Senator ABETZ: Possibly you did. I cannot and I have not—

Mr Asher : Nonetheless, I think it—

Senator ABETZ: I think you said it was an 'unorthodox approach' and 'not a wise route to take'.

Mr Asher : And it was a very unwise thing to do.

Senator ABETZ: Which is stronger language than that which was employed on Thursday, 13 October. So is it fair to say that on further reflection you have now seen and acknowledged that your actions were less than unwise but substantially unwise?

Mr Asher : They were an error of judgment and a mistake that occurred once and will not occur again. I really am deeply sorry in so many ways.

Senator ABETZ: The purpose of the question was clearly to gain more funds for an agency that was under financial stress.

Mr Asher : That is correct.

Senator ABETZ: And by making a direct appeal to the minister you had not been successful.

Mr Asher : I wonder if I could seek guidance.

Senator Chris Evans: I am not sure that Senator Abetz wants you to take him through the NPPs—that is not my decision as a minister but just because of the time. I think it is fair for you to make the general point if you want about you sought funding through the normal budgetary process.

Mr Asher : Over several years we put forward four or even five what you might call applications for funding for various parts of our work, all of which were not supported by the minister and the department.

Senator ABETZ: So the purpose of these questions was not benign; it was basically to embarrass the government into providing you—

Mr Asher : No.

Senator ABETZ: The idea of the exercise was to get more money for the agency. A direct approach had not worked. Why this indirect approach, other than to embarrass?

Mr Asher : Because our agency does not really have a minister in the way that most departments do. The Special Minister of State if ever asked about our work will always say, quite properly, that we are a statutory authority independent of the executive and independent of the parliament. That is the design, but there is a flaw in that design because in the budget process you need a minister to take forward proposals for you. Where you do not have that relationship with the minister—and in our case in the Department of the Prime Minister and Cabinet—it means we have no substantial voice to put those things forward. It seemed to me that this very budget committee was one where there could be an airing of those issues.

Senator ABETZ: You started with an apology and acknowledging it was unwise. You then went on, with great respect, for some considerable time justifying your actions, as you seem to have done in the media release of 13 October, so I am still in some dilemma as to what the Ombudsman's position is in relation to this. Do you characterise it as a misjudgment and ill-advised and say it should not have occurred or was it justified because you are an agency under pressure et cetera requiring more support and funding?

Mr Asher : It was not justified. It will not occur again and it should not have occurred then.

Senator ABETZ: In your evidence earlier this evening you indicated that you had spoken with about six parliamentarians in the last week or fortnight. Is that right?

Mr Asher : Yes, I would say so.

Senator ABETZ: In this statement, four paragraphs down, you said, 'I have only infrequent and limited opportunities to engage with the parliament,' yet here in the past week you have had six parliamentarians with whom you could have raised, 'I've got some financial limitations.' So I suggest to you that you did have opportunities.

Mr Asher : Yes. The comment you were referring to was 'engaging with the parliament' with the committees of the parliament not just individuals. I need to correct the impression that they were all in the last week. It was over, say, the last two weeks—since the tax forum and things like that.

Senator ABETZ: Two weeks, all right.

Mr Asher : Those contacts are in relation to particular issues—Mr Oakeshott, for example, in relation to the tax forum. I have spoken to Mr Wilkie in relation to proposed public interest disclosure laws and a range of MPs on areas of interest—some that they have initiated and some that I have—but they are all quite open and I think it is perfectly justified for us to do that. What is not justified and what would never happen again is the writing of questions for a committee.

Senator FAULKNER: But you have never written to a parliamentary committee, have you?

Mr Asher : I have not written a letter saying 'Can I appear to speak about problem matters?'

Senator FAULKNER: No.

Mr Asher : But I have written—

Senator FAULKNER: You have never raised these issues with a parliamentary committee.

Mr Asher : I would have to check our submissions but yes, I have, in relation to at least several committees. There is the joint public accounts committee. I have given evidence twice there about the Australian tax office and I have pointed out that our tax complaints have gone up 83 per cent over just the last three years and that we are finding it really hard to deal with that. I raised with that committee the recommendation of the Henry committee that the funding provided to both the Ombudsman's office and the inspector-general be made adequate.

Senator FAULKNER: Yes, but not the matters you have raised with Senator Hanson-Young.

CHAIR: I am afraid we have run our course of time for tonight. As you did tonight, Mr Asher, each time you appear before the Senate estimates you have the opportunity to make an opening statement, which you did not take up on 24 May, according to Hansard. If there are any further questions, they will have to be placed on notice. We thank you for appearing before us tonight.

Mr Asher : Thank you. I wonder if I could invite any individual senators who would like to pursue any of these questions further to make them.

CHAIR: The process is, Mr Asher—for your benefit and for the Hansard record—is that if there are any outstanding questions from tonight they will be placed on notice to you.

Senator FAULKNER: I think if you did that, Mr Asher, people would think you had not learnt very many lessons. I will ask some questions on notice, which is appropriate, so everyone can see them—the questions I ask, and your responses to them. That would be a better way for us to act in relation to these matters.

Mr Asher : Okay.

Senator BOB BROWN: If I may—

CHAIR: I am sorry, we have run out of time. If you want to put—

Senator BOB BROWN: It is part of the committee's business that you cannot run out of.

CHAIR: You can put it on notice.

Senator BOB BROWN: The Ombudsman has asked if he may table a document. That request has not been taken up by you but I think it should be dealt with by you.

CHAIR: Could you say that again?

Senator BOB BROWN: At the outset, the Ombudsman indicated that he may wish to table a document. Are you going to ask him if that is the case?

CHAIR: He said he was going to table his opening statement.

Senator BOB BROWN: Yes. May he do that?

CHAIR: We will make a decision when he presents that to us as to whether or not the committee will accept that.

Senator BOB BROWN: It is just a courtesy.

CHAIR: Any other further questions will be placed on notice and we thank you—

Senator BOB BROWN: Are we going to or not?

Senator ABETZ: It has been read into the Hansard.

Senator BOB BROWN: No, he did not finish it.

Senator Chris Evans: I think the Ombudsman had some more material that he might have used but for shortness of time, but also, looking over there, it is a bit rough-and-ready hand notes so perhaps the officer might like to ask to table the documents later tonight or tomorrow for the committee.

CHAIR: The process is: opening statements. As you would be aware, Minister, they are normally short opening statements to allow the fullness of questioning by the committee to the witnesses.

Senator BOB BROWN: But it is not a normal situation, Chair.

CHAIR: The process of estimates is well documented.

Senator BOB BROWN: It requires flexibility.

CHAIR: Unfortunately, we are running out of time. I thank the officers very much for appearing before us. I now invite the Office of the Australian Information Commissioner to come forward.