The Hon. R.I. LUCAS: I refer to the Ombudsman Act, which makes it quite clear that it is not lawful to appoint anyone over the age of 65 to the position of Ombudsman. Section 10(1) provides:
“The Ombudsman shall be appointed for a term expiring on the day on which he or she attains the age of 65 years.”
In addition, section 10(4)(b) provides:
“The office of Ombudsman becomes vacant if the Ombudsman attains the age of 65 years.”
It makes it quite clear that a person over the age of 65 cannot be appointed to the position of Ombudsman. I refer to the fact that evidently today the controversial former auditor general, Mr MacPherson, has been made Acting Ombudsman by the Rann government. It is clear that Mr MacPherson is over the age of 65 and, for that reason, the parliament repeated a view of previous parliaments that the Public Finance and Audit Act made it quite clear that he could no longer continue in the position of Auditor General. I am not a lawyer but on the surface it would seem quite clear that it is not lawful for an ombudsman to be over the age of 65. If the government has found some legal loophole then I think, at the very least, it could be argued that it would be contrary to the intention of the parliament and of the legislation to, in some way, appoint someone over the age of 65 to the position of Ombudsman.
I raise this issue because the powers of the Ombudsman are considerable and it would be a shame, if it were to be an improper or incorrect appointment, if any decision or action taken by the Ombudsman was subject to a legal challenge on the grounds that the Ombudsman had not been correctly appointed to that position. I believe the government should, at the very least, and to allay any public concern there might be, ask the Solicitor-General or the Crown Solicitor to advise on the situation (if they have not been asked already). That advice, regarding how it is possible to appoint someone over the age of 65 to the position of Ombudsman when looking at section 10 of the act, should then be made public.
The other point I would like to make refers to section 7—Ombudsman not to engage in any remunerative employ¬ment—which provides:
“The Ombudsman must not, without consent of the Minister, engage in any remunerative employment or undertaking outside official duties.”
I am not aware of the personal actions or behaviours of the former auditor general—indeed, I am not particularly concerned. However, certainly, there are stories doing the corridors of Parliament House that he—quite properly, if it is the case—has accepted consultancy positions with either governments or other private bodies. If he is a retired auditor general, that is a decision for him to take, and anyone who might offer him a particular consultancy. However, if that is the case, does section 7 of the legislation apply to the Acting Ombudsman? If it does, has the government or the minister given him dispensation or consent to continue with alternative appointments at the same time as he is in the position of Ombudsman? It is absolutely imperative that the position of Ombudsman not have any conflicts and it is, therefore, important that we know the circumstances.
The final point I make (and, again, I am not aware of the detail) is that I understand the former auditor general may well have been part of a process looking at the appointment of the next Ombudsman; that is, that in some way he might have been part of a group or body that was providing advice to the government about the next Ombudsman. If it is true that the former auditor general was in a position where he was providing advice to the government about a new position of Ombudsman, and he has now been appointed as the Acting Ombudsman, I think it raises some questions, which only the government can answer. As I said, I do not know the details of the involvement of the former auditor general in any process of advice to the government, but if he has been involved in any way the parliament should be advised as to what the extent of his involvement was and whether or not any potential conflict of interest exists.
