admin lect 1415 - ombudsman

7/31/2019 Admin Lect 1415 - Ombudsman

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Administrative Law

Lecture 15

Ombudsman/OIA


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Outline

Office of Ombudsmen

History

Role

Responsibility

Process

Examples


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Questions

What is the Ombudsman?

Why is the role not so well known?

Why is an application to the Ombudsman not an option?

Do we still need the Ombudsman?

Is there an overlap of roles? Or is the role distinct?

If the Ombudsman is successful then why does it not attractappropriate funding?

Does the office provide an adequate check?

If the role is effective should it be publicised wider?

Since the legislation has been passed technology has moved onhow effective are the provisions of the OIA?


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Administrative law

Administrative law promotes the ideal ofgovernment according to law through the

processes of judicial review and is pre-eminentlyconcerned with the legality of public decision-

making. Joseph, p1

Judicial review

Alternative avenues for complaint

Ombudsmen

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Complaints against

Administration

The administration of so many services and controlsunder the vast bureaucratic machinery of centralgovernment inevitably causes many grievances and

complaints. Ifsomething is illegal is doneadministrative law can supply a remedy, though theprocedure of the courts is too formal andexpensive to suit many complaints. But justifiedgrievances may equally arise from action which is

legal, or at any rate not clearly illegal, when agovernment department has acted inconsideratelyor unfairly or where it has misled the complainant ordelayed his case excessively ortreated him badlyWade and Forsyth Administrative Law(2004)

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Office

Chief Ombudsman

Beverley Wakem

Appointed by GG 5yr term

Oversee investigation of

complaints

Report with recommendations


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Office

Ombudsman

David McGee

Independent officers


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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.


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History

In 1975 number of Ombudsmen expanded

Jurisdiction extended some complaints

reallocated

Redress and improve standards

Investigate when official information requests are

denied

Protected Disclosures Act 2000

Extended into Banking and Insurance


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Ombudsman

to afford the ordinary citizen some kind ofhearing and redress in a simple inexpensive and

direct fashion when allegedly dealt withadversely by the actions of a large and remotegovernment bureaucracy. The traditionalmeans of redress raising matters throughthe local Member of Parliament or to obtain

judgement through the Courts proved to beless than feasible than when originally

envisaged A Satyanand 1999


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Ombudsman

the role is clearly one ofaddressing citizens

complaints about public sector administration,

and looking at systemic issues which militateagainst good administrative practice. It is also one

of promoting transparency and ensuring that

citizens have adequate access to information B

Wakem 2009


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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

Official Information Act 1982 - Ministers


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Legislation

Local Government Official Information and

Meetings Act 1987

Protected Disclosures Act 2000

Crown Entities Act 2004 complaints against

Privacy Commissioner

Expanding jurisdiction


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Legislation

The powers and functions of the Ombudsmen arecontained in five main pieces of legislation:

Ombudsmen Act 1975;

Official Information Act 1982;

Local Government Official Information and MeetingsAct 1987;

Crimes of Torture Act 1989; and

Protected Disclosures Act 2000.
http://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.htmlhttp://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.html


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Ombudsman Act 1975

it shall be a function of the Ombudsmen toinvestigate any decision or recommendation made, orany act done or omitted, whether before or after thepassing of this Act, relating to a matter of

administration and affecting any person or body ofpersons in his or its personal capacity, in or by any ofthe departments or organisations named or specified...or by any committee (other than a committee of thewhole) or subcommittee of any organisation named orspecified or by any officer, employee, or member of

any such department or organisation in his capacity assuch officer, employee, or member.

Complaints under Ombudsman Act comprise 60%workload


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Functions

Investigate and report on complaints made bymembers of the public

Investigate and report (at their own initiative) anyadministrative decision, recommendation, act oromission of government department, relatedorganisations

Investigate and report on any petition before aCommittee

Investigate and report on any matter


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Who can be investigated?

Government Departments Ministeries e.g.

Education

Organisations TVNZ, Civil Aviation

Local Authorities District Councils

First Schedule Ombudsmen Act 1975


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Process

Letter of Complaint

Reviewed

No alternative remedies

Yes investigated provisional view

Department notified comments considered

Final opinion


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Process

Recommendations not (generally) binding

Has no power to compel an agency to accept a

recommendation.

However, most recommendations are usually accepted

by agencies.

If a recommendation is not accepted, an Ombudsmanmay decide to report the matter to Parliament.

Costs - free


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Process

Ombudsmen may conclude that a decision wasunfair because:

Contrary to law

Unreasonable, unjust, oppressive or discriminatory

Made under a rule of law, statute, regulation, by lawor practice that is unreasonable, unjust, oppressiveor discriminatory

Based on a mistake of law Wrong

Section 22 (1) Ombudsmen Act 1975


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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


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Time Frames

as soon as reasonably practicable

20 working days

Prioritising system

6 months


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Recommendations

When an unfavourable view of a decision is reachedthey 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 bealtered

The law decision was based should be reconsidered

Reasons should have been given for the decision

Other steps should be taken

Section 22(3) Ombudsmen Act 1975


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Recommendations

Non binding exception in respect of the OIA1982 jurisdiction when recommendations createa public duty

Status recommendations generally adopted

Investigation often a catalyst to settle disputeparticularly if the report is not favourable

Settlements can include financial redress whichmay not have been achieved through judicialreview or declaratory judgement


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Process

After the investigation the Ombudsman

May require publication of any report

Must advise the complainant of the outcome of theinvestigation, and where any recommendation is notacted upon within a reasonable time theOmbudsman must advise the complainant of therecommendation and can make such commentsabout the matter as he thinks fit

Proceedings before the Ombudsman cannot bechallenged or reviewed except for lack of

jurisdiction


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Ombudsman Act Issues

Prison

Deaths self mutilation

Physical conditions

UN rules


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Other Ombudsman

Police Complaints Authority

Health Commissioner Bill

Conciliation and mediation

Privacy Commissioner

Banking Ombudsman


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Ombudsman

independence in decision making is reinforced byfreedom from conflict of interest freedom fromallegiance to executive government freedom from

influence by special interest groups and freedom toimpartially and independently assimilate facts anddraw conclusions. Gilling

Acts as a check on the power of government

Provides independent scrutiny of governmentdecisions by having full access to the relevantinformation and the ability to publicise incorrectdecisions that affect individuals


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Ombudsman

[The OIA] requires [the Chief Ombudsman] to

exercise his judgment using experience and

accumulated knowledge Parliament delegatedto the Chief Ombudsman tasks the Courts willonly intervene when the Chief Ombudsman isplainly and demonstrably wrong and not becausehe preferred one side against another. Gilling


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Operational Ethos

NZ Ombudsmen have broadened their approach fromconcentrating on the investigation and redress ofcomplaints against the administration to embrace thepromotion of good public administration practice. Theyseek to engender an attitude of positive compliance(rather than the negativity associated with fault finding)encouraging better systems and procedures withinorganisations. Their reports and case notes comprisea body ofombudsman lawwhich guides the workand attitudes of officials, a valuable protection againstfailure flawed decision making. They have tried to beresponsive to the publics need by providing aprocess that is direct, informal, speedy and cheapGilling


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Critique?

The Ombudsmen are a much under-utilisedresource, particularly by members of the legal

profession who have clients experiencingdifficulties with agencies of government. Theombudsmen are effective and cheap indealing with wrongs, and settling wrongs to right

yet still less than 10 per cent of complaints

received come through lawyers. Still casenumbers have remained relatively high, and their

efficient and timely management has been an

administrative priority Gilling


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Critique?

The Ombudsmen has no power to alterdecisions: they simply investigate and report on

them. Nonetheless, the process of investigationitself, 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


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Who guards the Guardians?

The public issue at stake was the executives

ability to control all other elements of

government. The Ombudsmen were officers ofParliament, the legislatures watchdogs overexecutive actions. Yet their appointmentprocess depended on the government of theday, which, if it wished, could readily engineer

the removal of an inconvenience in this case bymere failure to act combined with a refusal to

justify its decision Gilling


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Who guards the Guardians?

If the present system of appointment is maintained,

this must test the constitutional integrity of thegovernment holding office for the time being. Should it

take no action to nominate for reappointment it isinevitable that speculation will occur about the

governments motives. It is likely to be accused ofabusing its power to remove an Ombudsman whohas displeased it in the regulation of complaintsagainst it. Failure to explain its reasons for nonreappointment will certainly give fuel to such

speculation Report of the Ombudsmen for the Year


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Round Up

Ombudsman

Appointed as officers of Parliament under the

Ombudsman Act 1975

Act as a check on the power of government

Provide independent scrutiny of government

decisions by having full access to the relevantinformation and the ability to publicise erroneous

decisions that affect individuals


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Future

Ombudsman

Law Commission Report findings

Legislative change to reflect current environment?

How would this affect the role of theOmbudsman?

Binding recommendations?

Greater funding?

Power imbalance? role of the Courts?


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Ombudsman - Examples

http://tvnz.co.nz/national-news/overstayers-given-

break-after-being-unfairly-treated-video-4002555

http://tvnz.co.nz/breakfast-news/bullying-programmes-should-they-compulsory-9-00-video-

4391829/video

http://tvnz.co.nz/business-news/amp-brief-mai-

chen-video-4400679/video

admin lect 1415 - ombudsman

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