Professional Documents
Culture Documents
Lecture 15 Ombudsman/OIA
Outline
Office of Ombudsmen History Role Responsibility Process
Examples
Questions
What is the Ombudsman? Why is the role not so well known? Why is an application to the Ombudsman not an option?
Administrative law
Administrative law promotes the ideal of government according to law through the processes of judicial review and is pre-eminently concerned with the legality of public decisionmaking. Joseph, p1 Judicial review Alternative avenues for complaint
Ombudsmen
Office
Chief Ombudsman Beverley Wakem Appointed by GG 5yr term Oversee investigation of complaints
Office
Ombudsman David McGee Independent officers
History
Ombudsman = grievance person Post established under the Parliamentary Commissioner (Ombudsman) Act 1962
Mandate = investigate complaints about the actions of government departments and other national public sector organisations.
History
In 1975 number of Ombudsmen expanded Jurisdiction extended some complaints reallocated
Ombudsman
to afford the ordinary citizen some kind of hearing and redress in a simple inexpensive and direct fashion when allegedly dealt with adversely by the actions of a large and remote government bureaucracy. The traditional means of redress raising matters through the local Member of Parliament or to obtain judgement through the Courts proved to be less than feasible than when originally envisaged A Satyanand 1999
Ombudsman
the role is clearly one of addressing citizens complaints about public sector administration, and looking at systemic issues which militate against good administrative practice. It is also one of promoting transparency and ensuring that citizens have adequate access to information B Wakem 2009
Legislation
Parliamentary Commissioner (Ombudsman) Act 1962 1968, the Ombudsmans jurisdiction was extended to include education, hospital boards, local government agencies Ombudsmen Act 1975 local govt agencies
Legislation
Local Government Official Information and Meetings Act 1987 Protected Disclosures Act 2000
Legislation
The powers and functions of the Ombudsmen are contained in five main pieces of legislation: Ombudsmen Act 1975;
Functions
Investigate and report on complaints made by members of the public Investigate and report (at their own initiative) any administrative decision, recommendation, act or omission of government department, related organisations Investigate and report on any petition before a Committee Investigate and report on any matter
Process
Letter of Complaint Reviewed No alternative remedies Yes investigated provisional view Department notified comments considered
Final opinion
Process
Recommendations not (generally) binding Has no power to compel an agency to accept a recommendation.
Process
Ombudsmen may conclude that a decision was unfair because:
Contrary to law Unreasonable, unjust, oppressive or discriminatory Made under a rule of law, statute, regulation, by law or practice that is unreasonable, unjust, oppressive or discriminatory Based on a mistake of law Wrong
Referral of Complaints
Complaint related to: Privacy Act Health and Disability Commissioner Act Inspector General of Intelligence and Security Act Consults with relevant Commissioner to determine appropriate process Complainant is then notified
Time Frames
as soon as reasonably practicable 20 working days Prioritising system 6 months
Recommendations
When an unfavourable view of a decision is reached they can recommend:
The matter should be considered further by the appropriate authority The decision should be cancelled or varied The practice on which the decision was based should be altered The law decision was based should be reconsidered Reasons should have been given for the decision Other steps should be taken
Recommendations
Non binding exception in respect of the OIA 1982 jurisdiction when recommendations create a public duty Status recommendations generally adopted Investigation often a catalyst to settle dispute particularly if the report is not favourable Settlements can include financial redress which may not have been achieved through judicial review or declaratory judgement
Process
After the investigation the Ombudsman
May require publication of any report Must advise the complainant of the outcome of the investigation, and where any recommendation is not acted upon within a reasonable time the Ombudsman must advise the complainant of the recommendation and can make such comments about the matter as he thinks fit
Proceedings before the Ombudsman cannot be challenged or reviewed except for lack of jurisdiction
Other Ombudsman
Police Complaints Authority Health Commissioner Bill Conciliation and mediation Privacy Commissioner Banking Ombudsman
Ombudsman
independence in decision making is reinforced by freedom from conflict of interest freedom from allegiance to executive government freedom from influence by special interest groups and freedom to impartially and independently assimilate facts and draw conclusions. Gilling Acts as a check on the power of government Provides independent scrutiny of government decisions by having full access to the relevant information and the ability to publicise incorrect decisions that affect individuals
Ombudsman
[The OIA] requires [the Chief Ombudsman] to exercise his judgment using experience and accumulated knowledge Parliament delegated to the Chief Ombudsman tasks the Courts will only intervene when the Chief Ombudsman is plainly and demonstrably wrong and not because he preferred one side against another. Gilling
Operational Ethos
NZ Ombudsmen have broadened their approach from concentrating on the investigation and redress of complaints against the administration to embrace the promotion of good public administration practice. They seek to engender an attitude of positive compliance (rather than the negativity associated with fault finding) encouraging better systems and procedures within organisations. Their reports and case notes comprise a body of ombudsman law which guides the work and attitudes of officials, a valuable protection against failure flawed decision making. They have tried to be responsive to the publics need by providing a process that is direct, informal, speedy and cheap Gilling
Critique?
The Ombudsmen are a much under-utilised resource, particularly by members of the legal profession who have clients experiencing difficulties with agencies of government. The ombudsmen are effective and cheap in dealing with wrongs, and settling wrongs to right yet still less than 10 per cent of complaints received come through lawyers. Still case numbers have remained relatively high, and their efficient and timely management has been an administrative priority Gilling
Critique?
The Ombudsmen has no power to alter decisions: they simply investigate and report on them. Nonetheless, the process of investigation itself, the power of the office, the capacity to report to Parliament, and the publicity given to the reports exert a considerable influence in righting administrative injustices and changing the way in which officials approach some tasks Palmer & Palmer Bridled Power
Round Up
Ombudsman Appointed as officers of Parliament under the Ombudsman Act 1975
Future
Ombudsman Law Commission Report findings Legislative change to reflect current environment? How would this affect the role of the Ombudsman? Binding recommendations? Greater funding? Power imbalance? role of the Courts?
Ombudsman - Examples
http://tvnz.co.nz/national-news/overstayers-givenbreak-after-being-unfairly-treated-video-4002555 http://tvnz.co.nz/breakfast-news/bullyingprogrammes-should-they-compulsory-9-00-video4391829/video http://tvnz.co.nz/business-news/amp-brief-maichen-video-4400679/video