Office of the Ombudsman (New Zealand)

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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".[1] 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.

History[edit]

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 from 1962 until his retirement in 1977.[2] At the time of his appointment, only three other counties had an Ombudsman - Sweden, Finland and Denmark.

The Ombudsmen Act came into force in 1975. This allowed for the appointment of additional Ombudsmen in addition to the chief Ombudsman and extended the role to include local government agencies.

In 1983, the Official Information Act required government agencies to respond to requests for information (known as OIA requests) and the Ombudsman was 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. In 1988 the Ombudsman's powers were extended to decisions made by local government agencies as well.

In 2001, the Protected Disclosures Act (commonly known as the “whistle-blower” legislation) was passed. This makes the Ombudsman responsible for "providing advice and guidance to any employee who has made, or is considering making, a disclosure about serious wrongdoing in their workplace (either public or private sector)".[3] In 2005 all crown entities were brought within the Ombudsman's jurisdiction under the Ombudsmen Act and Official Information Act.[1]

In 2007, the Office of the Ombudsman was designated as a National Preventive Mechanism (NPM) under the Crimes of Torture Act 1989 (COTA). This legislation establishes New Zealand’s human rights obligations under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“OPCAT”) to "prevent torture and other cruel, inhuman or degrading treatment or punishment" by establishing a system of regular and independent visits to prisons and other places of detention.

Ombudsmen[edit]

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 is assisted by others who have the title of Ombudsman.[4]

Responsibilities[edit]

The Ombudsman's role is described in its' Annual Report for 2012 as follows: "We investigate, review and inspect the administrative conduct of state sector agencies, and provide advice and guidance, in order to ensure people are treated fairly in New Zealand” and that “a high level of public trust in government is maintained”.[5]

Official Information Act[edit]

The guiding principle of the Official Information 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." Requests for information must be answered within 20 working days although the time limit can be extended. If a Government agency requires more time to answer a particular request, they have to provide the reason for any such extension.[6]

The Act allows Government agencies to deny requests for information under certain circumstances. These include: the national security or defence of New Zealand; the maintenance of law and order; trade secrets and commercial confidentiality; personal privacy; and legal professional privilege.[7] The Ombudsman's role is to ensure that government agencies provide information that is requested in accordance with the Act.

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.[8]

The number of OIA complaints has been steadily increasing ever since the Act was passed. In 2012, the Ombudsman received 1,236 OIA complaints, an increase of 25 percent on 2010/11 numbers, and the highest number since the 2000 to 2001 period.[9] Private individuals made approximately three-quarters of all OIA complaints; the media made about 12% while Members of Parliament and political party research units accounted for 4%.[10] 41% of OIA complaints were due to a partial or complete refusal to provide information.[11]

Increase in complaints[edit]

In 2011/12 the Ombudsman received 10,636 complaints, an increase of 22% on the previous year's numbers. Dame Beverley told Parliament the Office of the Ombudsman was "in crisis, with a bulging backlog of cases due to lack of investigators". Part of this was due to an 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.[12] Dame Margaret said her staff were underpaid, overworked and were leaving - and "in some cases were literally being worked to death". [13] She said her office was "sinking under the weight of the complaint burden" which was slowing down the resolution of complaints.

In 2013, the Ombudsman received 13,684 complaints, an increase of 29% on the previous year. The Ombudsman described this as "an unprecedented increase in demand for its services...for the second year in a row.[14] In response the Government provided extra funding in the budget in both 2013 and 2014. The increases enabled Dame Beverley to hire more investigators and she said her office should catch up on its backlog of complaints by 2015.[15]

Attempts to circumvent OIA[edit]

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'.[16]

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".[17]

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". Constitutional lawyer Mai Chen said reluctance by Government departments to answer OIA requests raised concerns "about how well public servants understood a law intended to give balance to the 'David and Goliath' inequality between citizen and government".[18] 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".[19]

The investigation began in December 2014 with over 63 state agencies required to participate. [20]

Protecting whistleblowers[edit]

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.[21]

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.[21]

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.[22]

Preventing inhumane treatment[edit]

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.[23]

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.[24]

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.[25]

Legislative advocacy[edit]

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.[26]

The Ombudsman also made a submission on the Corrections Amendment Bill. Dame Beverley opposed sections of the Bill which would remove responsibility for the health care of prisoners from prison doctors. She opposed sections which would allow Corrections to use mechanical restraints on prisoners for more than 24 hours and sections which would allow prison officers to conduct strip searches without authorisation from the prison manager. She also opposed sections which would make it an offence to drink water before a random drug test with the intention of diluting the resulting urine sample (known as waterloading). The Ombudsman said this section was potentially a breach of a prisoner’s right to access drinking water.[27]

See also[edit]

References[edit]

  1. ^ a b "History". Office of the Ombudsman. Retrieved 4 December 2012. 
  2. ^ "Past Ombudsmen". Office of the Ombudsman. Retrieved 4 December 2012. 
  3. ^ History, Ombudsman official website
  4. ^ "Who is the Ombudsman?". Office of the Ombudsman. Retrieved 8 June 2013. 
  5. ^ Ombudsman's Annual Report 2011/12, p 8.
  6. ^ Official information: Your right to know, Ministry of Justice website
  7. ^ Official information: Your right to know, Ministry of Justice website
  8. ^ FAQs, Official website of the Ombudsman
  9. ^ "Annual Report 2012" (PDF). Office of the Ombudsman. p. 40. Retrieved 4 December 2012. 
  10. ^ "Annual Report 2012" (PDF). Office of the Ombudsman. p. 40. Retrieved 4 December 2012. 
  11. ^ "Annual Report 2012" (PDF). Office of the Ombudsman. p. 42. Retrieved 4 December 2012. 
  12. ^ Bulging backlog creating a 'crisis' in Office of the Ombudsman, NZ Herald 15 February 2012
  13. ^ Budget 2014: Funding crucial as busy watchdogs feel the strain, NZ Herald 15 May 2014
  14. ^ Highest ever number of complaints for Ombudsman, Press release 15 October 2013
  15. ^ Budget 2014: Funding crucial as busy watchdogs feel the strain, NZ Herald 15 May 2014
  16. ^ Top-level alarm over secrecy trend, NZ Herald 28 September 2012
  17. ^ Ombudsman criticises Education Ministry over school closure requests, NZ Herald 18 December 2012
  18. ^ Ombudsman to investigate OIA response, NZ Herald 21 May 2013
  19. ^ Ombudsman to investigate OIA response
  20. ^ Government offices selected for OIA review, New Zealand Herald, 17 December 2014
  21. ^ a b Protected disclosures/whistle-blowing, Official website of the Ombudsman
  22. ^ Whistleblower law little known, Radio New Zealand 26 November 2012
  23. ^ Monitoring places of detention, Official website of the Ombudsman
  24. ^ Ombudsman's Annual Report 2012, p 6.
  25. ^ Ombudsman's Annual Report 2012, p 23-24.
  26. ^ Submission of the Ombudsmen on the Mixed Ownership Model Bill (13 April 2012), para 3
  27. ^ Corrections Amendment Bill, para 31 & 32

External links[edit]