Source: New Zealand Parliament
Presentation by Dr the Right Honourable Lockwood Smith, Speaker of the House of Representatives, at a Reception in the Grand Hall, Parliament
2 October 2012
As Winston Churchill reminded us in 1947, “indeed it has been said that democracy is a form of government which may be rationally defended not as being good, but as being less bad than any other”. Governance is inevitably fraught with compromise, and its best exercise requires sufficient checks on its operation, so that it can be seen as fair and just when interacting with those affected by it.
The establishment of the Office of the Ombudsman in 1962 to provide such checks was a major constitutional innovation. New Zealand was the first English speaking country outside of Scandinavia to adopt the Ombudsman concept and this 50th anniversary offers an opportunity to reflect on how it has helped foster fairness and justice in the government’s dealings with its people.
The legislation which underpins the New Zealand Ombudsmen’s Office remains a model to which others aspire. Its success is widely recognised, and that success is evidenced in part by its rapid adoption throughout Australia, Britain, Canada and the Pacific.
The New Zealand ombudsmen are supported by their genuine independence: There is independence in the structure and functioning of the office and independence in its financing. That independence is confirmed by the office being an office of parliament, not an organ of executive government.
The fact that an Ombudsman can gain access to the inner workings of the government system and independently assess what has happened and why, has helped the public sector focus upon the manner in which it interacts with the people it’s designed to serve. The Office provides a vital ‘check’ within our democratic system.
And it’s not just whether government actions have been appropriate or not, the Ombudsman methodology is distinctive in that it seeks a conciliatory resolution of issues, in contrast to the legal system’s rather more adversarial edge.
Arguably, one of the keys to the office’s success has been the careful and thoughtful manner in which it has been developed since 1962.
What then is a modern ombudsman?
When the office was first established in 1962, the Ombudsman’s jurisdiction was limited to investigating complaints about central government departments and organisations.
In 1968, the Ombudsman’s jurisdiction was extended to include education and hospital boards.
And then in 1975, the legislation was consolidated in the Ombudsmen Act 1975. The appointment of additional Ombudsmen was permitted, and the Ombudsman’s jurisdiction was extended to include local government agencies.
In July 1983, the Official Information Act 1982 came into force. Under this Act, the Ombudsman was empowered to investigate and review complaints about decisions by Ministers and central government agencies on requests for information.
Then in March 1988, the Local Government Official Information and Meetings Act 1987 added complaints about decisions by local government agencies withholding information.
In January 2001, the Protected Disclosures Act 2000 came into force. This, commonly known as the “whistle-blower” legislation, made the Ombudsman responsible for providing advice and guidance to any employee, in the public or private sector, who was considering making a disclosure about serious wrongdoing in their workplace. The Ombudsman is in fact one of the “appropriate authorities” listed in the Act to whom a protected disclosure can be made.
Four years later, in January 2005, the Crown Entities Act 2004 finally brought all crown entities within the Ombudsman’s jurisdiction.
As if that wasn’t enough, in June 2007, the Ombudsman was designated a National Preventive Mechanism (NPM) under the Crimes of Torture Act 1989 (COTA). That Act gave effect to New Zealand’s obligations under Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“OPCAT”), making the Ombudsman responsible for visiting prisons, immigration detention facilities, health and disability places of detention, child care and protection residences, and youth justice residences, to ensure those nasty things didn’t happen here. The Ombudsman in fact monitors and makes recommendations to improve the conditions of detention and the treatment of detainees.
Finally, in October 2010, the Ombudsman, along with the Human Rights Commission, and the New Zealand Convention Coalition, took on the independent role of protecting and monitoring implementation of the United Nations Convention on the Rights of Persons with Disabilities.
One could say that over 50 years the role of the Office has expanded somewhat.
The New Zealand Ombudsman’s office has, however, not been immune from the need to deal with complaints more effectively and efficiently. In the 2011/2012 year 10,636 complaints and other contacts were received, up 22% on the previous year. Cases on hand at any time have grown from an average of 800 to over 1700.
New work flow structures allow the office to cope better with the unprecedented level of complaints and strategically the Office is putting more focus on encouraging better administrative practices in the state sector.
Despite Dame Beverley advising my office this afternoon, when we enquired after complaints of a lighter nature, that “it’s no fun palace over here you know”, they do get the odd, shall we say interesting complaint.
One such example was the inmate of a North Island prison who lodged a bitter complaint with the Ombudsmen’s Office when his Case Officer had refused to provide him with the prison building plans and the Prison Wardens’ Duty Roster for the next month.
But I think that was well topped by one of the first complaints Dame Beverley had to deal with when she first became an Ombudsman. It seems a bloke complained to the Ombudsman that his being failed a flying course was unjust. He had taken his hands off the controls of a light aircraft at 800ft in order to better argue with his instructor.
Our new Ombudsman, Dame Beverley, thought “I’ll get him in and explain carefully why I cannot uphold his complaint”.
Ten minutes into her carefully rehearsed speech, the complainant, a big man, upended the large glass topped table in her face and threw his papers after it. Dame Beverley, even if somewhat unsuccessful in convincing the complainant of the lack of merit in his case that day, is nothing if not astute in her employment strategy. The high level of karate skills that Deputy Ombudsman Leo Donnelly brings to his position, while fortunately not frequently needed, proved invaluable that day.
We are currently served by two outstanding Ombudsmen, Dame Beverley Wakem and David McGee. They are supported by the Deputy Ombudsman, Leo Donnelly, a General Counsel, John Pohl and General Manager – Corporate, Peter Brocklehurst, as well as a team of 65 staff in Auckland, Wellington and Christchurch.
Dame Beverley is also the President of the International Ombudsman Institute, established in 1978, the global organisation for the cooperation of more than 150 ombudsman institutions. All in all the Office can be justifiably proud of its first 50 years and I wish it every success for the next 50.