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Monday, 7 November 2011
Page: 8360


Senator FAULKNER (New South Wales) (16:57): The ministerial statement that the Senate is debating this afternoon is about the resignation of the Commonwealth Ombudsman, Mr Asher. One could be forgiven for thinking, listening to Senator Cash's speech, that this might have been a ministerial statement about the Greens political party. But this is an important issue. And I think that, frankly, it warranted a more serious and considered contribution than the intemperate one that we received from Senator Cash on this issue.

First of all, let me, as I have previously in this chamber—and also, of course, I have asked questions at the Senate's Finance and Public Administration Legislation Com­mittee—put on the record that I have absolutely no problem at all with any statutory officer of the Commonwealth, be it the Commonwealth Ombudsman or any other statutory office holder, making their concerns clear and public. There is no problem, in my mind, with a statutory officer questioning or criticising government policy, and there is certainly no problem with any statutory officer making a strong case for increased resources for their office. I have seen suggestions that the government has found the criticisms of the former Common­wealth Ombudsman, Mr Asher, as unaccept­able. I hope that is not the case. I have no reason to believe it is the case.

The fact of the matter is that, from time to time, statutory office holders are going to make statements that are critical of govern­ments, that are embarrassing to governments of the day and that give ministers and officials discomfort. That is life. I am one person who, in this chamber, will always defend the right of any Ombud­sman or other statutory office holder to report on concerns with frankness and, as I have described before, with unvarnished truth, how ever uncomfortable these concerns might make a government feel. This, of course, does not relate at all to the expectations that each and every one of us should have that a statutory office holder, particularly one holding an office as important as the Ombudsman, must always exhibit the highest standards of behaviour. It is absolutely true that the head of an integrity agency must set the highest example. I certainly asked Mr Asher quest­ions at a Senate estimates committee. It was not a fix by the government, but I did inform both the opposition and the Greens that I intended to ask Mr Asher questions. I asked Mr Asher:

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

He said in response to my question:

Yes, it should.

I then asked him:

Have you met those highest standards?

He said:

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

It is important that the public record here shows that Mr Asher said that he considered his actions in relation to the issue of the provision of questions to a senator to be an error of judgment. He considered his actions to be a mistake. He apologised to a Senate committee for his actions and he made it absolutely clear that it would not happen again.

Of course there is a question about whether this is a resigning offence. I have seen the comments that have been made, including by Senator Brown and Senator Hanson-Young, that the Ombudsman's resignation occurred as a result of a witch-hunt, conducted allegedly because he had caused the government discomfort. I reject that absolutely. Senator Brown has said, and I have quoted this previously in the chamber, that the Ombudsman was a decent man, working in the public interest and that he had been politically assassinated. I agree with all of what Senator Brown said about the decency of Mr Asher—he is a decent man; there is no question about that. He is a good man, but he made a serious mistake. He made a very serious mistake, in my mind, as the head of an integrity agency. The critical thing here is that he has to be able to justify that he is acting in an impartial way. He has to be able to defend the integrity of the Commonwealth Ombudsman's office. He has to be able to assure all of us, from every political party, and those who do not represent a political party in this parliament and beyond, that he is acting in an apolitical way. Integrity matters. Independence of the office matters. Impartiality matters. That is the problem that we face in this regard.

We are entitled to expect more from the head of an integrity agency than we expect from others. We are entitled to expect that the head of an integrity agency sets the highest of examples for us all to follow. I asked Mr Asher at Senate estimates:

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

He said:

Yes, it should.

I asked him:

Have you met those highest standards?

He said that he thought this was clearly an error of judgment, clearly a mistake. The issue is not that there is any lack of acknow­ledgement that an error was made; I suppose that, given the concerns about this affecting the impartiality, independence and integrity of the Ombudsman's office, the issue is: should the Ombudsman have resigned in this circumstance? That is a matter for him. I have made no judgment about that. I certainly did not ask at estimates whether he considered offering his resignation or not, though I have asked that at times of other Commonwealth officials. This is a serious point that all senators, regardless of their political party, ought to take account of. I do not accept what Senator Brown said when he asked, 'What if those questions had gone to an opposition senator?'. I do not care whether they go to an opposition senator, a Greens senator, a government senator or anyone else. I do not think it should have happened, because I personally believe there are more appropriate avenues available to an ombuds­man or statutory officer to raise genuinely held—very genuinely held—concerns. You can do it more formally to a Senate committee—by communicating not just to one senator but to the whole committee in an opening statement or in another formal communication—or with ministers, by press release, in an annual report or in a speech. There are plenty of opportunities, and I beli­eve that is what the Ombudsman should have done in this circumstance. (Time expired)

Question agreed to.