As the Senate Inquiry into the quality of governance at Australian higher education providers continues, the Australian National University has once again been dragged into the fray, this time bringing with it the Commonwealth Ombudsman for its poor treatment of whistleblowers.
Musicologist Professor Peter Tregear describes in a recent submission to the Senate Inquiry how he was denied procedural fairness following a Public Interest Disclosure that he made regarding University maladministration in early 2017.
This submission follows a decade-long history of disputes between Tregear and ANU management, including a successful appeal to the then Administrative Appeal Tribunal in 2019.
Tregear, in his submission,s recounts how ANU initially delayed investigation of his Public Interest Disclosure for quite some time, until mid-2019 when it appointed the consultancy firm Deloitte as an external investigator under the PID Act.
Deloitte prepared a report which ultimately concluded that ANU was not accountable for the issues disclosed by Tregear, describing him in the report as “untrainable … a liar [and] a manipulator”.
Tregear was not provided with an opportunity to respond to these assertions.
Given the lack of procedural fairness, along with a lack of clarity in the investigation and report, Tregear referred the matter to the Commonwealth Ombudsman for a better look.
Although ANU provided the Ombudsman with a copy of the report made by Deloitte, and records of the witness interviews, the University refused to provide further information that would assist the Ombudsman in understanding the investigator’s processes.
This is despite numerous repeated requests for further information made by the Ombudsman to ANU between April and August 2020.
Rather than compelling the production of further information under section 9 of the Ombudsman Act 1976 (Cth), Cassandra Hodzic, the officer in charge of the matter, decided to proceed with the investigation based on the limited information provided by ANU.
This peculiar procedural choice stands at odds with the Office’s task to consider whether ANU’s actions and decisions were consistent with its obligations under the PID Act, and further begs the question – what is the point of having powers to compel information if the Ombudsman will elect not to use them?
Despite the scant information available for the inquiry, the Ombudsman ultimately concluded that the investigation report prepared by Deloitte did not adequately explain the basis for some of the investigator’s findings.
Further, as ANU did not provide the information requested, it was difficult to be satisfied that the investigator’s findings were reasonably open. These comments of the Ombudsman were made to ANU, which again, did not respond.
The Ombudsman additionally referred ANU to the procedural fairness requirements discussed in the Ombudsman’s Agency Guide to the PID Act, given that it was unclear whether Tregear had been given an opportunity to reply to the negative comments made about his character, to the extent the investigator intended to rely on them. Again, ANU did not respond.
Ultimately, ANU’s tactic of complete silence when faced with the Ombudsman communications appears to have been successful in deterring any further investigation.
On September 21, 2020 Tregear was informed that the Ombudsman had finalised the investigation of his complaint, on the basis that further investigation would be unlikely to result in a different outcome for him.
Whilst the Commonwealth Ombudsman has a broad discretion to decide to not investigate certain complaints, the decision to do so in these circumstances ultimately rewards ANU’s repeated non-compliance with the Ombudsman’s requests. This is in spite of ANU’s statutory obligation to assist with inquiries under s.61(2) of the PID Act.
What is further concerning is that despite the adverse findings made against ANU’s treatment of the disclosure, the Ombudsman failed to take any action beyond making comments under s.12(4) of the Ombudsman Act, comments which, given ANU’s failure to respond, evidently fell on deaf ears.
This disappointing outcome occurs in a context where the Commonwealth Ombudsman has already faced ample criticism due to its limited investigative and remedial powers, as was heard in the 2020 Royal Commission into the Robodebt Scheme.
In this earlier administrative blunder, the Ombudsman, despite making some eight recommendations in an initial inquiry, failed to compel the government to produce further documents, and ultimately did not address the underlying illegality of the scheme.
Thus, the scheme was allowed to continue for quite some time before the matter was finally heard in the Federal Court.
Although the flexibility of the Ombudsman is heralded as one of its strengths, in the present circumstances the failure to undertake a robust investigation can hardly be said to further its ultimate objective of “influencing enduring systemic improvement in public administration”.
The consequence of this decision is that the already limited powers of the Commonwealth Ombudsman are further corroded, not by the legislature, but by the Office itself, thus setting an unfortunate precedent.
Correspondence