Helen Clark Address to Ombudsmen's Conference
Rt. Hon Helen Clark: Address to the 22nd Australasian and Pacific Region Ombudsmen's Conference
Address to the 22nd Australasian and Pacific Region Ombudsmen's Conference
This conference is an excellent opportunity for Ombudsmen from around the region to meet, to exchange experiences and ideas, and to build relationships.
Thank you for inviting me to address this conference today. It is a pleasure to have you in New Zealand for the 22nd Australasian and Pacific Region Conference of Ombudsmen. On behalf of the New Zealand Government I extend a warm welcome to all visitors.
This conference, of which three have been held in New Zealand previously, is an excellent opportunity for Ombudsmen from around the region to meet, to exchange experiences and ideas, and to build relationships. I am pleased to note that there is representation not only from Australia and the Pacific, but also from Asia, Africa, the Middle East, Latin America and the Caribbean.
This diverse attendance reflects the international reach of the institution of the Ombudsman. All representatives here today have one theme in common. They provide an avenue for citizens to seek redress for what they believe are unreasonable or unfair decisions of government agencies.
The main focus of this conference is "The Small Ombudsman Office". The programme is designed to provide a forum for people to learn from one another. It will be of particular value to those Ombudsmen who have limited resources and wish to know more about the best practice of others.
The Office of the Ombudsmen
New Zealand has had relatively long experience of the office of the Ombudsman. The Parliamentary Commissioner (Ombudsman) Act 1962 established the office of the Ombudsman in this country. We were the fourth country in the world to do so, coming after Sweden, which first established a "grievance person" in 1809, and Finland and Denmark. Thus we were the first English speaking, common law jurisdiction to have an Ombudsman.
Our model of the Parliamentary Ombudsman has since become a precedent for many of the Commonwealth countries which have established the office, and also for many non-Commonwealth and non-English speaking countries. Today, there are approximately 200 Ombudsmen serving in 100 or more jurisdictions and territories.
Former New Zealand Prime Minister and constitutional lawyer, Sir Geoffrey Palmer has observed that:
"The introduction of Ombudsmen has had a healthy effect on decision-making in [the New Zealand] government. They provide the check of independent scrutiny with full access to the relevant information and the possibility of publicity about erroneous government decisions that affect individuals."
Justice Michael Kirby, the well known Australian jurist, has also noted that:
"The Ombudsman lacks the powers to make orders as a Court may do. But the sanction of the provision of a report to the responsible minister and to Parliament and the requirement upon the Minister to respond promptly to any such report also affords significant sanctions. These have proved effective in all jurisdictions in which the Office of the Ombudsman has been created, to obtain reconsideration of administrative action found by the Ombudsman to be unlawful, unreasonable, mistaken or wrong .."
Given this position at the intersection point between the individual citizen and the agencies of the state, it is essential that the office of the Ombudsman is independent of the Government. A citizen must have confidence in the impartiality of investigations by the Ombudsman into government departments and organisations.
It is for this reason that the Ombudsmen in New Zealand are appointed by the Governor-General on the recommendation of the House of Representatives. They report annually and are accountable to Parliament rather than to the Government of the day. As Officers of Parliament, the Ombudsmen are accountable to Parliament and are independent of any direction from the executive. This independence is something which needs to be cherished and staunchly defended.
The Ombudsmen in New Zealand
The Ombudsmen in New Zealand fulfil three roles.
First, under the Ombudsmen Act 1975 they investigate complaints received from members of the public who feel that they have been treated unfairly by some act, omission, decision, or recommendation of a central or local government organisation.
Specifically the Ombudsman forms an opinion on whether the act, omission, or decision complained of appears to have been contrary to law; was unreasonable, unjust, oppressive or improperly discriminatory; was in accordance with a rule of law or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; was based on a mistake of law or fact; or was wrong.
The Ombudsman can also consider whether a discretionary power has been exercised for an improper purpose, or on irrelevant grounds, or after taking account of irrelevant considerations, or whether reasons should have been given for the decision or recommendation.
Under the Act, the Ombudsman has wide powers. They include the ability:to hear or obtain information,to make inquiries,to require any person who is able to provide information relating to an investigation to supply that information,to summon and examine under oath an employee of an agency specified in the Act or any other person with the prior approval of the Attorney-General; andto enter and inspect any premises occupied by any agencies specified in the Act.
Penal institutions are subject to the Ombudsman's jurisdiction. The Ombudsman provides an external and independent review process for both individual prison inmates' grievances and the system as a whole. If a complaint is investigated and substantiated, the Ombudsman may record a formal recommendation for remedial action, and the complainant must be informed of the result of the investigations.
The Ombudsman may also investigate, report, and recommend action on his or her own initiative. This function, while not undertaken frequently, provides an important avenue for specific areas of concern to be investigated without the need to be driven by individual complaints.
Where an Ombudsman forms the opinion that a complaint has merit, he or she can recommend that the department or organisation concerned take action to remedy the complaint. Although an Ombudsman has no power to force a department or organisation to accept a recommendation, most recommendations are accepted.
This in itself illustrates an important characteristic of how an Ombudsman operates in New Zealand. Recommendations must stand on the robustness of the investigation and the reasonableness of the decision. While government agencies and other bodies may not agree wholly with an Ombudsman's recommendation, the fact that it is reasonable in the particular circumstances, and often amounts to common sense, is respected.
Second, under the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 (which govern New Zealand's Freedom of Information legislation), the Ombudsman's role is to investigate and review decisions made by central or local government organisations, including ministers and local authorities, related to a request for official information. The types of decision an Ombudsman can investigate are:a refusal to provide official information requested,a delay in responding to a request for information,an extension of time limits for a reply to a request,deletion of part of the information requested,any charge levied to provide the information,a release of information on conditions,a release of information in a manner other than that requested, or an inadequate statement of reasons for a decision or recommendation. The purpose of an investigation under the official information legislation is to enable an Ombudsman to form an independent view as to whether or not the decision to withhold any information was made in accordance with the requirements of the relevant statute. Where information has not been released and an Ombudsman thinks it should not have been withheld, the Ombudsman may recommend that it be released.
Such a recommendation generally becomes binding on the 21st day after it has been made, unless there has been an Order in Council brought about by a decision of Cabinet against it. A recommendation for action by a Minister of the Crown or a central government department or organisation may only be overcome by Order in Council. A recommendation to a local government organisation may only be overcome by a resolution of the full governing body of that organisation. I cannot recall a case where a recommendation has been overturned. This must attest to the quality of Ombudsmen's recommendations under this constitutionally important legislation.
Third, under the Protected Disclosures Act 2000, the so called "Whistleblower" legislation, the Ombudsman provides information and guidance to those who have made or are considering making a protected disclosure. The Ombudsman is also an appropriate authority to which disclosures may be made pursuant to the Act. The purpose of the Act is to promote the public interest, by facilitating the disclosure and investigation of matters of serious wrongdoing in or by an organisation. It also protects employees who, in accordance with the terms of the Act, make disclosures of information about serious wrongdoing in or about the organisation by which they are employed. This legislation applies to employees in the public and private sectors.
Challenges facing Ombudsmen
Like any institution, Ombudsmen face many challenges. As the nature of society changes, both culturally and demographically, so must the Ombudsmen ensure they are able to work in a way which is responsive to new needs and challenges.
In New Zealand, the Ombudsmen are now having information about their services translated into and promulgated in a number of languages, so that they can respond effectively to New Zealand's fast changing multicultural society.
More focus is being placed on how to maintain and develop further relationships with citizens outside the main centres. Even if physically remote, the Ombudsman's office needs to be highly accessible. Modern information and communications technologies make this easier than in the past.
Other forms of complaint mechanisms have also emerged, with implications for the Office of the Ombudsman.
I hope your deliberations are able to focus on these and other challenges that face you today.
The Ombudsman and Good Governance
As a country which strives for good governance at home, we have long been willing to help out when requested in improving governance in the Asia-Pacific region. Based on our own experience, we have no doubt that the institution of the Ombudsman can be a crucial part of any good governance framework.
Our regional neighbours often seek support from New Zealand in helping them to build their institutional capability in the good governance area. This can take the form of sharing of experiences, mentoring, and capacity building between our governance institutions and those of our neighbours. It can also take the form of directly supporting efforts to strengthen governance institutions.
In 2001, for example, we provided assistance and advice to the National Ombudsman Commission of Indonesia through participation in seminars in Jakarta and Surabaya. This enabled us to share our experience of the role and functions of an Ombudsman's office, and to build awareness of the potential for further practical assistance through the operation of a case management system. In that year we also provided funding for a study tour by the Office of the Ombudsman in Thailand.
To take another example, in 2003 Timor Leste, with the assistance of UNMISET and UNDP, convened an international conference on transparency and accountability in the public administration. Mel Smith, a New Zealand Ombudsman, spoke on the topic of "Transparency and Accountability in the Public Administration". I note also that a senior Timor Leste representative is attending this year's Conference. Also as part of your conference you will be briefed by the Australian Federal Ombudsman on a Pacific Ombudsman initiative by AusAID.
Lastly, New Zealand has supported the resolve of the Commonwealth to encourage the establishment and development of Ombudsman offices throughout the world. Several of the delegates to this conference have been part of the Commonwealth Secretariat training programme, to which New Zealand has contributed in each year since 1998.
A functioning society which provides its citizens with liberty and dignity needs to be built on the values of political accountability, reliable and equitable legal frameworks, respect for the rule of law, judicial independence, bureaucratic transparency, effective and efficient public sector management, participatory development, and the promotion and protection of human rights.
Ultimately, good governance is about creating safe and just societies. When this responsibility is recognised, and met, through the provision of education, health, law and justice, and sound economic policies, then citizens can grow up embracing the values which underpin a well-governed, democratic society. They then become the best defenders of those values, and advocates for good governance.
The office of the Ombudsmen is crucial both in defending these values, and in building a sense of expectation and commitment in favour of honesty, openness, respect, tolerance, and good governance. I honour the role that each one of you here today plays in your own countries.
Before I conclude I hope you will have some opportunity to see and learn a little about our country. The powhiri, the formal Mâori welcome, provides an insight into Mâori culture and New Zealand's pride in it. Some of you will also meet with New Zealand officials and Ombudsman counterparts to discuss matters somewhat broader than the conference agenda, which is one of the benefits of a gathering like this.
Once again I welcome you most warmly to our country and I wish you all the best for your conference.