Fit and Proper

“Follow the Ombudsman on Twitter”, chirps the website of the Commonwealth Ombudsman; you’ll be a smart cookie if you can, because Allan Asher, about one year into his five-year appointment, has just vanished with a loud “Poof!” It resembled Don Juan’s abrupt banishment to the nether regions: one day, there he is, large as life on television, giving testimony before a Senate committee; a week later … where?

This shameful explosion should not be allowed to fade from view, as though it were some inconsequential slip, forgotten by the next election. It bears strongly on matters of basic and enduring importance: the integrity and competence of government; the authority and dignity of Parliament; the ordinary honesty of high officials to whom the public pays high salaries.

When this Labor government—Gillard? Rudd? Some dark horse?—next faces the electors (How long, O Lord?) the perch for its chickens flying home to roost will be a long one, bearing as it does already such bedraggled fowls as pink batts, education revolution, blatant lies of “no carbon tax”, hopeless failure on border protection and on defence generally. But the perch will have to accommodate at least one more specimen of unappetising poultry—the Ombudsman scandal of October 2011.

The office of Ombudsman (whether federal or state) is today a central, load-bearing pillar of our structure of administrative law. Through the Ombudsman, even the humblest citizen now enjoys some right of appeal and redress against unjust treatment by the vast apparatus of government. Note especially: the Ombudsman does not report to the government of the day. He (or she) reports over the head of government, directly to Parliament.

“Ombudsman” (the very shape of the word itself shouts its Scandinavian origin) means simply “a lawful representative”. The first one was appointed in Sweden in 1808. Australia followed this valuable enlargement of our civil rights, though with no sign of unseemly haste; indeed, 168 years passed before the Commonwealth opened an Ombudsman’s office, in 1977. (New Zealand and several of our states had moved a little earlier.) Clearly, the spark of the idea had not caught hold and spread like bushfire in Australia. Indeed, when I joined Melbourne University Press in 1962, I knew little more about it than the word itself.

Happily, one of the Press’s long-established authors, law professor Geoffrey Sawer, suggested that the idea of an Ombudsman could be a coming notion; why didn’t MUP hop in promptly, and take a lead in the debate? He was persuaded (without noticeable reluctance) to write a little book on the subject, and with his characteristic promptitude, the manuscript of Ombudsmen fell upon my desk. It was the first general and well-informed discussion of the idea in an Australian context. In plain, clear language, as accessible to ordinary readers as to lawyers, it sold well. A seed had been planted.

A digression, perhaps, but a warm tribute to the public life of the remarkable Geoffrey Sawer would not here come amiss. As an ex-serviceman student I met him in 1946 at Melbourne University, where he was senior lecturer in Law. A mentor whose leaning was mildly leftish but far from loony, he had spent the years of the Pacific War with Macmahon Ball’s super-secret radio “listening post” directing Australian propaganda to Asian countries.

My friendship with Sawer endured some forty years, until his death as Emeritus Professor of Law at the Australian National University, and for twenty-six years I had the honour and pleasure of being his publisher. We shared a passion for growing vegetables; our letters sometimes raised such questions as why the beans this year seemed to be so late in setting flowers.

There was in Sawer’s cast of mind a natural bent towards the practical. He was an early chairman of the Australian Press Council, and a Special Magistrate in the Australian Capital Territory. He frequently contributed newspaper articles on current matters which were equally of service to laymen as to lawyers. His little textbook, Australian Government Today, went through fourteen editions with MUP; for young people and for immigrants it was in itself a preparation for informed citizenship. 

Unlike so many of the obscurities which emerge from the academy, Sawer’s labours were (in Gibbon’s apt phrase) “designed for use, rather than for ostentation”. When preparation began for the third edition of his Guide to Australian Law for Journalists, Sawer suggested changes to its physical format. It had been a trusted reference since the 1940s; quite apart from easing some tensions for cub reporters facing their early court assignments, many an editor-in-chief retained a copy on his desk. We reduced the page size, and bound it as a sturdy, slim paperback, with round corners. The idea of a reporter actually taking a learned reference into court in his jacket side-pocket may today raise a smile; in 1984 it was appreciated.

There were wide suggestions and many hopes that some wise government would for once depart from the convention of choosing only active barristers as judges of the High Court, and would appoint Geoff Sawer. Alas! For me, even Whitlam’s elevation to the bench of his scaly cabinet colleague, Lionel Murphy, seemed an insufficient consolation.

But to return—sigh—to the case of our vanished Ombudsman: it must be pursued and not forgotten, because it is a stain, and it is of the nature of stains to spread. This one is no exception. It began with an almost unbelievably naive plot to cook the proceedings of a Senate committee. The Ombudsman himself prepared his own wish-list of increased financial support for his office, and then in secret gained approval of it from a member of the committee, Senator Hanson-Young of the Greens.

My own acquaintance with the senator is limited to her seldom-shrinking appearances on television and the other media. It is no doubt my own fault that my perception is of a bossy-boots head girl from a “good school”, quite untrammelled by any special gift for silence. I have discerned small sign of the maturity which should distinguish a senator—not even that “el cheapo” level of maturity which can warn: “Don’t do it—you might get caught.” She put the committee through what was later exposed as a bogus series of questions, purporting to elicit evidence (was Asher sworn?) but in reality covertly pushing a partial interest. Has any move been made by the Senate to discipline its wayward member? If she has even quietly been stood in the naughty corner, I have not heard of it.

The Greens leader, Bob Brown, has done a genius-job of smearing the stain all over his own party, by his heated representation of Asher’s departure as “an assassination”. What credit is left in the Greens’ frequent sanctimonious professions of “transparency”?

Surely the Ombudsmen of other jurisdictions feel the taint all over the very name of their office?

This may be the most important question of all raised by this odorous matter: Asher is a barrister of long standing in the High Court of Australia. Does the court believe that he retains the status of a “fit and proper person” to practise before it? I remember the great Owen Dixon saying: “No one can define ‘fit and proper’ precisely, but it doesn’t matter, because everyone knows what it means.” With its concern for the purity of the profession that practises before it, the court will doubtless in due time give its consideration to the matter of whether “fit and proper” is still an appropriate designation for Allan Asher.