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Wednesday, 2 November 2011
Page: 12533


Mr GRAY (BrandSpecial Minister of State for the Public Service and Integrity and Special Minister of State) (16:53): by leave—I rise today to make this ministerial statement to the House in order to put before the House information relating to the recent resignation of the Commonwealth Ombudsman, Mr Allan Asher, and to reaffirm the government's continuing strong support for the office of the Commonwealth Ombudsman. Indeed, following discussions I have had with members opposite and on the crossbenches, I can reaffirm the continuing strong support of the parliament as a whole for that office.

The office of the Ombudsman is vitally important for the executive, the parliament and the community, and this has been the case since the first Commonwealth Ombudsman, the late Jack Richardson, was appointed in 1977. The Ombudsman's primary function is to investigate complaints about matters of administration and to conduct own-motion investigations that relate to matters of administration. The importance of the position of Ombudsman is recognised in the Ombudsman Act 1976. The Ombudsman can only be removed from office with the agreement of both houses of parliament. Where the Ombudsman considers that a government department's response to a report is inadequate or not appropriate, he or she can raise the matter with the Prime Minister and can report the matter directly to the parliament. In addition the Ombudsman is able to provide a report to the minister for tabling in the parliament on any matter relating to or arising in connection with the exercise of the powers and functions of the office. Former Attorney-General Ellicott in his second reading speech to the Ombudsman Bill in 1976 summed it up this way:

… the important element is that the citizen who considered that he had a legitimate complaint about official action, or who was doubtful about what was done in his case, has available an external and impartial investigator to inquire into the matter. The strength of the Ombudsman's work lies in the independence and impartiality of his investigation.

To be effective in that role of investigating government action and seeking redress for members of the community the holder of the office of the Ombudsman needs to have the confidence of the complainant, the public servants whose actions are investigated and the parliament which relies on the work of the Ombudsman as a key part of our system of government accountability. That confidence rests on the belief or expectation that the Ombudsman will be independent, impartial and transparent in their dealings with all stakeholders.

It is of course inevitable and right that there will be times when the Ombudsman will be critical of government administration. There will be times when the Ombudsman needs to say things that will make ministers or the Public Service feel uncomfortable. The capacity to say what needs to be said, even if it makes a government uncomfortable, is a good thing, made more powerful through the impartiality of the Ombudsman. During his time as Ombudsman Mr Asher was critical of the government in a range of areas. Some of that criticism was made to parliamentary committees, in submissions and in evidence. It is important that parliament hears the views of the Ombudsman when he or she has concerns about the way government policies and programs are administered. But to be meaningful, the criticism needs to be factually based and the opinion needs to be impartial. And it is the complainants, the community, the government and the parliament who should have the benefit of the considered views of the Ombudsman, not individual members or senators.

The documents that were provided by the Commonwealth Ombudsman to the Senate Legal and Constitutional Affairs References Committee inquiry into Australia's agreement with Malaysia in relation to asylum seekers, which are available from the records of that committee, reveal that Mr Asher sought a meeting with Senator Hanson-Young prior to the budget estimates hearings in May, and that a meeting occurred. The documents and Mr Asher's statements reveal that following the meeting Mr Asher provided Senator Hanson-Young with a set of suggested questions, and offered to brief her on a range of other matters. I table document 9 from the response provided by the office of the Commonwealth Ombudsman to the Senate Legal and Constitutional Affairs References Committee, in the form published by that committee.

In offering briefings to Senator Hanson-Young, and providing her with questions in the way he did and expressed as they were, Mr Asher may have felt that he was acting in the interests of his office and its stakeholders. However, Mr Asher of his own volition provided an individual senator with proposed questions to ask of him in a parliamentary committee. He framed those proposed questions in far from neutral terms and he ensured that those questions were not on the public record or otherwise apparent to other members of the parliamentary committee. Mr Asher also offered briefing on legislation that has not been introduced and on other matters that would not have been appropriate and would have been of interest to all members and senators.

This behaviour inevitably led to concerns that the Ombudsman had become compromised and his impartiality impaired. An office such as that of the Ombudsman, a key part of our system of government and parliamentary accountability, cannot function effectively in such a compromised environment. In particular, the Ombudsman needs to maintain constructive and proper relationships with the Defence Force, the Australian Taxation Office and the Department of Immigration and Citizenship if the Ombudsman is to effectively carry out the particular statutory roles of Defence Force Ombudsman, Taxation Ombudsman and Immigration Ombudsman—but the wording of the questions provided in private to Senator Hanson-Young were not consistent with an impartial approach to those agencies. Mr Asher in announcing his decision to resign recognised that 'the Office of the Commonwealth Ombudsman's enduring strength lies in community confidence in its integrity' and he also considered that his actions had caused many in the community and the parliament to call into question his impartiality. It was clear that the parliament was concerned by his actions and by the damage being done to the office. That concern was evident in the Senate estimates committee process and was conveyed to me from across the parliament. Importantly, it was Mr Asher's own decision to resign, and I thank him for that.

I can inform the House that the Department of the Prime Minister and Cabinet has commenced the process for filling the position of Ombudsman. The position will be advertised in accordance with the government's policy on transparency and merit in the selection of agency heads. I thank Ms Alison Larkins for agreeing to act as Ombudsman while that process takes place. No doubt the events of recent weeks have been distressing for the staff of the office but I want to assure them of the government's support and appreciation of the difficult work that they do. I am confident that the parliament would join me in supporting this important work.

I want to stress that the government has consistently supported independent statutory office holders and supported integrity officers in undertaking their responsibilities, including in their accountability to the parliament. As the Special Minister of State for the Public Service and Integrity, I personally support these important functions and I look forward to working with the new Ombudsman and the office. I thank the House and I present a copy of my ministerial statement. I ask leave of the House to move a motion to enable the member for Goldstein to speak for eight minutes.

Leave granted.

Mr GRAY: I move:

That so much of the standing and sessional orders be suspended as would prevent the member for Goldstein speaking in reply to the ministerial statement for a period not exceeding eight minutes.

Question agreed to.