With the resignation of Allan Asher, a search for Australia's ninth Commonwealth ombudsman will soon begin, if it hasn't already.
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Asher represented one perceptible strand in the pattern of appointments: like all but two of his predecessors, he was a lawyer.
The two exceptions to this feature of ombudsman appointments have been Philippa Smith and Ron McLeod. Smith, like Asher, had something of a background in consumer affairs and advocacy among a diverse range of other activities; some of which, indeed, had brought her into touch with various (quasi) law bodies such as the Administrative Appeals Tribunal.
Smith's degree was in economics. McLeod, the other non-lawyer, was a bachelor of commerce. Among ombudsmen, he is distinguished as the only one with an extensive record in mainstream administration at senior levels. This included the Public Service Board and the Defence Department before his appointment as inspector-general for intelligence and security.
Another ombudsman, Geoffrey Kolts, had, however, been a veteran of the Attorney-General's Department and, thereafter, for many years at what became the Office of Parliamentary Counsel, where he was first parliamentary counsel at the time of his appointment as ombudsman.
Two of the three professors of law from the Australian National University who have been appointed to the post - Jack Richardson and Dennis Pearce - had likewise had time in Attorney-General's before making their way to the campus.
Richardson, the inaugural ombudsman, was an enterprising figure whose colourful ways did much to ensure that the public quickly learnt about this new institution that provided dispute-resolution services to citizens who found themselves at odds with government agencies. One of his more controversial initiatives was an advertisement on milk cartons offering the help of his office to anyone ''bamboozled by the bureaucracy''. At a time when the reputation of the public service was being more vigorously attacked than usual, this particular tactic excited considerable criticism from the higher levels of the Australian Public Service. (The advertisement can still be viewed on the ombudsman's website.)
On another occasion, the office spent a substantial period of time examining a complaint from an official, who claimed to have an important contribution to make to addressing economic issues then facing the nation and whose efforts had received scant acknowledgement from either the Treasury or the Finance Department. When Richardson eventually decided the aggrieved official did not really have a case, he wrote accordingly to the secretaries of the two departments. One simply filed Richardson's letter; the other sent a blistering reply querying why the ombudsman's office had taken so long to reach a conclusion that was ''blindingly obvious'' from the start. Richardson characteristically reproduced the correspondence in his annual report.
A third ombudsman from the ANU professoriate, John McMillan, is the only appointee to the post who had actually worked in the ombudsman's office (albeit briefly).
Alan Cameron, ombudsman, 1991-92, was a corporate lawyer with a strong interest in regulation and good practice. His curriculum vitae at the time of appointment included having been a principal solicitor in the NSW Aboriginal Legal Service and a judicial member of the NSW Equal Opportunity Tribunal. His time as ombudsman was relatively short; he soon returned to Sydney to head what became the Australian Securities and Investments Commission.
Two major features of Australian ombudsmen is that they mainly come from Canberra, and certainly, otherwise, had a fair measure of time there; if not, Sydney (Cameron and Smith). (Such geographical concentration is also evident, for example, in appointments of solicitors-general; in the modern incarnation of that office, almost all have been drawn from the Sydney bar; the main exception is DrGavan Griffith of Melbourne.)
There is no evidence of inter-jurisdictional mobility: not one state ombudsman has been translated to the national post. (A similar situation exists in relation to Commonwealth auditors-general: not one state auditor-general has been translated to the Commonwealth post; indeed, except at the very beginning, all Commonwealth auditors-general have been drawn from the APS, many from the Treasury or, now, Finance.)
In the other major Westminster jurisdictions that have ombudsmen, New Zealand, where the office was created in the early 1960s, and Britain, where it was established in the mid-1960s, it has been more likely historically that appointees will come from the upper ranks of the civil service.
Three of the seven ombudsmen in New Zealand have been department heads; and another, the foundation ombudsman, the illustrious Sir Guy Powles, was a leading diplomat who oversaw Samoa's path to independence.
The New Zealand ombudsman has a local government jurisdiction and, accordingly, one leading figure from that field of administration has filled the post. The present Ombudsman, Beverley Wakem, the first woman to be appointed, has backgrounds in broadcasting and consulting.
The British Ombudsman (often known as the Parliamentary Commissioner of Administration), Ann Abraham, is also the first woman to hold that post. She is scheduled to relinquish the job very soon and will be replaced by Dame Julie Mellor. Neither made her career in Whitehall.
Abraham was previously legal services ombudsman but, before that, she worked in housing before having half a decade as chief executive of the National Association of Citizens Advice Bureaux. Her successor's career has been in consulting and human resource management; she has also had a term as chairwoman of the Equal Opportunities Commission.
Of the seven previous ombudsmen, five had strong civil service backgrounds at very high levels; the other two came from the law.
In neither New Zealand nor Britain has an academic been appointed to the post.
In whatever jurisdiction, the ombudsman has often been seen, in varying degrees, as a pre-retirement posting. This is sometimes regarded as a safeguard for independent performance of the duties, without fear or favour.
Of Asher's seven predecessors, two - Pearce and Smith - essentially returned to the fields from which they came; Cameron, following his term at ASIC, had a number of appointments to company boards.
Richardson, Kolts and McLeod retired at the end of their time as ombudsman. Both Richardson and McLeod undertook important government assignments, as also subsequently did Pearce; Kolts took a consultancy with a leading law firm; in time, Pearce became special counsel to another.
Only Cameron and McMillan went to new full-time government posts after being ombudsman; Cameron to ASIC and McMillan became the Commonwealth's first Information Commissioner.
What are the implications of the Asher period as ombudsman, and especially the circumstances of his departure, is an interesting question. Greens leader Bob Brown, in a threatening TV grab, spoke darkly of apocalyptic consequences. One inevitably wonders.
The problem with the recent business is that, like an earlier famous case with which it has some affinity, the Bazeley case - where an official sought to raise the alarm when legislation with which he disagreed was before the Parliament - it was, in the words of Professor Robert Parker who wrote the definitive account of that case, ''too simple''.
It was curious, nevertheless, to find a number of assertions that there is nothing unusual about parliamentarians being briefed with suggested questions by officials. There have been strong denials by individuals well placed to know and it is unlikely, to the limited extent that it takes place, that those surreptitiously providing briefings include chief executives.
Public servants and other government employees might privately give some help to parliamentarians; it would be quite at odds with the conventions and practices of the profession (and, of course, the APS Values) were this aid to be rendered in matters relating to their duties, or relying on information gained in the course of their work.
A major reason for doubting the claims that the recent events are common fare and only unusual in that the ruse became public knowledge is the quality - the banal quality - of so many questions that form the essence of parliamentary scrutiny of government these days. It is tempting simply to say: surely they - the secret briefers - can concoct sharper interrogatories.
The case was enlivened by a defence that the ombudsman did not have other ready means of bringing his problems to the notice of the Parliament, apart from the stratagem employed whereby Greens senator Sarah Hanson-Young acted as intermediary, posing insightful questions to which revealing responses would be yielded. As nearly everyone who commented on the matter said, this was simply not the case. Ombudsmen have several means, formal and informal, of bringing concerns about the handling of their responsibilities to public and parliamentary notice. They have more opportunities than pretty well any other public officer.
It was inevitable that the bid for a parliamentary committee to oversee ombudsman activities would be given an outing. The relationship of the Public Accounts and Accountability Committee and the auditor-general is invariably invoked as a model.
But this is really lazy thinking. It may have had some force in earlier periods when committee activity was on a more reduced scale. But it has now been overtaken by the growth and diversification of parliamentary committees. There may, by contrast, be a strong case, even a very strong case, for some kind of systematic review of parliamentary arrangements for overseeing public bodies whose activities are critical for the integrity of government operations and ensuring that citizens are treated fairly. This is a question that warrants more serious investigation than it has thus far received and could well benefit from an independent look.
The case does raise the question of why the ombudsman had not routinely been listed to give evidence at the Senate estimates hearings in May. Given current ombudsman activity in the immigration field and the upcoming role regarding whistleblowing, it might be thought that regular, competent organisation of committee proceedings would automatically include the ombudsman, though apparently not. This is a matter that needs to be looked into before the grander changes so rapidly and predictably advocated by the Greens are taken up.
The choice of the new ombudsman will be watched unusually closely. It is certainly a demanding and not conspicuously comfortable post; one requiring a good deal of judgment as well as moral stamina. It calls for the courage to utilise public advocacy periodically, but also a sense of when and how often it can be used with productive effect. It is a currency that quickly loses its value.
It is not clear that the consumer advocacy background is an appropriate source. And whether today's responsive public service could provide an appointee of sufficient and acknowledged independence would be considered sceptically in many quarters.
A temptation will no doubt linger that a suitable appointee will be marked by some unorthodoxy as well as determination and fortitude. It should always be recalled that unorthodoxy is most telling when it has conspicuously orthodox foundations.
Many years ago, a new appointee with significant experience in the Commonwealth was advised, in taking up a top post, to put the shoe on softly. Given the events of recent months, this is advice that a new ombudsman, from whatever background, could usefully follow.
- J.R.Nethercote is an adjunct professor with the Public Policy Institute at the Australian Catholic University. john.nethercote@acu.edu.au