Office of the Ombudsman (New Zealand)
|This article relies on references to primary sources. (August 2014)|
|This article needs additional citations for verification. (August 2014)|
The Office of the Ombudsman (in Māori: Tari o te Kaitiaki Mana Tangata) was established in 1962 under the Parliamentary Commissioner (Ombudsman) Act 1962. The term "Ombudsman" is Swedish and basically means "grievance person". The primary role of the Ombudsman in New Zealand is to investigate complaints against government agencies. In 1983 the responsibilities were extended to include investigation of agencies that fail to provide information requested in accordance with the Official Information Act. The Ombudsman also has responsibility to protect whistleblowers and investigate the administration of prisons and other places of detention.
The first Ombudsman in New Zealand was Guy Powles who had a previous background as a lawyer, soldier, administrator and diplomat. He held the position of Ombudsman until his retirement in 1977. At the time of his appointment, only three other counties had an Ombudsman - Sweden, Finland and Denmark.
New Zealand's Chief Ombudsman (Nga Kaitiaki Mana Tangata in Māori) is appointed by the Governor-General of New Zealand on recommendation of the House of Representatives. The Chief Ombudsman oversees investigation of complaints against government departments, and reports, with recommendations, to Parliament.
- Dame Beverley Wakem, DNZM CBE - 2008–present
- John Belgrave, DCNZM - 2003–2007
- Sir Brian Elwood, CBE - 1994–2003
- Sir John Robertson, KCMG CBE - 1986–1994
- Lester Castle, CMG - 1984–1986
- Sir George Laking, KCMG - 1977–1984
- Sir Guy Powles, ONZ KBE CMG ED (Official title was simply "Ombudsman" until 1975) - 1962–1977
In addition to the Chief Ombudsman, Professor Ron Paterson was appointed on 4 June 2013 as an Ombudsman.
Powers and duties
Initially, the New Zealand Ombudsman was limited to investigating complaints about central government departments and organisations. In 1968, his jurisdiction was extended to include education and hospital boards. The Ombudsmen Act 1975 expanded the service and extended its reach to include local government agencies as well.
Official Information Act
In 1983, the Official Information Act required government agencies to respond to requests for information (known as OIA requests). The guiding principle of the Act is that "information must be made available unless a good reason exists under the Acts for withholding it." The underlying purpose is "to increase the availability of official information to promote more effective public participation in the making and administration of laws and policies; to promote the accountability of Ministers of the Crown and government officials; and to protect sensitive information where necessary in the public interest or to preserve personal privacy."
The Ombudsman has been given the task of investigating complaints against Ministers of the Crown and central government agencies when requested information was not supplied in a timely manner as required by the Act. In 1988 this power was extended to the review of decisions made by local government agencies as well. In 2005, all Crown entities were brought within the Ombudsman's jurisdiction under the Ombudsmen Act and Official Information Act.
In 2011/12 the Ombudsman received 10,636 complaints, an increase of 22% on the previous year's numbers. The agencies generating the most complaints tend to be ones that interact with and impact upon large numbers of New Zealanders. In 2011/12, these agencies were the Department of Corrections, the Earthquake Commission, the Ministry of Social Development, the Department of Labour (Immigration New Zealand), the Accident Compensation Corporation, and Inland Revenue Department. In that year, 97% of complaints came from individual members of the public. 34% were from prisoners or prisoner advocates (not all against the Department of Corrections), and 63% were from other members of the public. Only 3% of complaints were made by corporate entities and special interest groups.
In 2012, Dame Beverley told Parliament the Office of the Ombudsman was "in crisis, with a bulging backlog of cases due to lack of investigators". She said existing staff were underpaid and overworked. There has been a big increase in complaints about the Earthquake Commission and the Canterbury Earthquake Recovery Authority and by 2011, the total number of complaints being received was double that provided for by the baseline funding. Dame Margaret said her office was "sinking under the weight of the complaint burden" slowing down the resolution of complaints.
Response by Government Departments
In 2012 Dame Beverley expressed concern at attempts by Government agencies to keep information secret by drafting laws to avoid the Official Information Act, referring in particular to new legislation on partial state asset sales, charter schools and changes to mining permits. The Ombudsman's Office argued at a select committee hearing that state assets associated with the Mixed Ownership Model Act would still be 51 per cent owned by the public and should remain subject to the Official Information Act (OIA). Dame Beverley said there was an increasing number of officials in government who fail to understand the constitutional importance of the legislation and that this trend was 'reprehensible' and 'extremely dangerous'.
In December 2012, the Ombudsman criticised the Ministry of Education over its response to requests for information about school closures in Christchurch. David McGee found the Ministry misled the Christchurch City Council by advising two school principals to withdraw their official requests "in order to receive a better response." McGee said: "Schools and parents should not have to ferret out information by making official information requests." The Ombudsman also expressed concerns that there may be a perception within the public sector that "some requests for information can only be processed efficiently by somehow removing them from the OIA context".
In March 2013 the Office of the Ombudsman announced it would conduct an own-motion investigation into the way the public service responds to requests made under the Official Information Act. It said it was receiving an increasing number of complaints by members of the public who felt "shut out". Labour's Claire Curren agreed on the need for an investigation saying: "There is an emerging crisis with our watchdog agencies", and this is contributing to a "paralysis of democracy".
In September 2014, former Customs lawyer, Curtis Gregorash, said "he was told by senior Customs executives to refuse Official Information Act and Privacy Act requests." Chief Ombudsman Dame Beverley Wakem said she was "appalled" by Gregorash's claim. She said an inquiry would be held after the September election to compel evidence to be given under oath if she found Government agencies were holding back information without good reason.
The Ombudsman is one of a number of agencies responsible for protecting 'whistleblowers' – employees who report serious wrongdoing in their workplace under the Protected Disclosures Act, which came into force in 2001. The Act applies to both public and private sector workplaces. 'Serious wrongdoing' includes unlawful, corrupt or irregular use of public money or resources; conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law; any criminal offence; and gross negligence or mismanagement by public officials.
The Act states that employers cannot take legal or disciplinary proceedings against an employee who makes a 'protected disclosure', or brings their concerns to an 'appropriate authority'. The Act also states that if an employer takes retaliatory action, the employee can initiate a personal grievance case under the Employment Relations Act. The Human Rights Act may also be available to anyone who is victimised as a result of protected disclosures.
Chief Ombudsman Dame Beverley Wakem says only 10 to 12 people a year ring her office about the Act and even fewer have used it to reveal information. She says the law could have been used to prevent the collapse of so many finance companies - which covers employees in such companies. She also can't understand why nobody used the legislation to raise concerns about safety practices at the Pike River mine. Dame Beverley says she wants to find out how the Protected Disclosures Act could be used more effectively in such cases.
Preventing inhumane treatment
The Ombudsman is also part of "National Preventive Mechanisms" which administer The Crimes of Torture Act which establishes New Zealand’s international obligations under the United Nations Optional Protocol to the Convention against Torture (OPCAT). OPCAT was established to ensure a system of regular visits by independent international and national bodies to prisons, police cells and mental health hospitals in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. Countries that have signed up to OPCAT allow their performance to be monitored by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Ombudsman appoints Prison Investigators to visit prisons and other places of detention in New Zealand and to conduct investigations after complaints. The inspectors are entitled to interview anyone they choose, including prisoners and staff, who may be in a position to provide relevant information about the treatment of detainees, their access to health care and other conditions of detention. In 2012, the inspectors visited 70 places of detention, and made 24 formal inspections.
From time to time, the Ombudsman also looks at systemic issues through “own motion” investigations. In 2011/12 the Ombudsmen completed a major investigation into the Provision, Access and Availability of Prisoner Health Services. The main issues identified in this report were deficiencies in the management of mentally unwell prisoners; concerns with the management of at risk (potentially suicidal) prisoners; inadequate resourcing of dental services; inadequate recording of requests to access health services, waiting times and health related complaints; and no process in place for external accreditation of any of the prison health services. Following the investigation, the Ombudsmen made 21 suggestions for Corrections to consider, and 31 specific recommendations for improvement.
From time to time the Ombudsman makes submissions to Parliament on proposed pieces of legislation. In 2010 a submission was made on the Law Commission's Issues Paper 18 "The Public’s Right to Know" in which the Ombudsman supported the Law Commission’s view that it would not be desirable to exclude certain classes or categories of information from the Ombudsman's jurisdiction. In 2012 the Ombudsman made submissions on the Mixed Ownership Model Bill. Clauses 6 and 7 of the Bill would remove Mixed Ownership companies from being subject to the Ombudsman Act (OA) and Official Information Act (OIA). The Ombudsman's submission said Mixed Ownership companies will still perform the same functions they currently perform, and the Crown as majority shareholder, would continue to have the determinative voice on all decisions - so it was 'highly desirable' that the OA and OIA should continue to apply to them.
- "History". Office of the Ombudsman. Retrieved 4 December 2012.
- "Past Ombudsmen". Office of the Ombudsman. Retrieved 4 December 2012.
- "Who is the Ombudsman?". Office of the Ombudsman. Retrieved 8 June 2013.
- Official information: Your right to know, Ministry of Justice website
- FAQs, Official website of the Ombudsman
- Bulging backlog creating a 'crisis' in Office of the Ombudsman, NZ Herald 15 February 2012
- Top-level alarm over secrecy trend, NZ Herald 28 September 2012
- Ombudsman criticises Education Ministry over school closure requests, NZ Herald 18 December 2012
- Ombudsman to investigate OIA response
- Listen to audio interview: Ex-govt lawyer's 'bury bad news' claim, New Zealand Herald, 19 Septemebr 2014
- Ombudsman 'appalled' by ex-Customs lawyer's OIA allegations, NZ Herald, 19 December 2014
- Protected disclosures/whistle-blowing, Official website of the Ombudsman
- Whistleblower law little known, Radio New Zealand 26 November 2012
- Monitoring places of detention, Official website of the Ombudsman
- Ombudsman's Annual Report 2012, p 6.
- Ombudsman's Annual Report 2012, p 23-24.
- Submission of the Ombudsmen on the Mixed Ownership Model Bill (13 April 2012), para 3