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Annual Report 2006/2007

Dame Beverley Wakem,
John Belgrave,
Mel Smith
Issue date:

One of the key outcomes of their work sought by the Ombudsmen is ongoing improvement and better performance by Government agencies. We continue to encourage agencies to set up their own internal review systems, where possible independent from original decision makers. Where we receive for example a range of complaints against specific agencies the agency itself is encouraged to learn from these complaints.

We can report that this is happening in a number of agencies e.g. Inland Revenue Department (“IRD”), Ministry of Social Development (“MSD”) and the Accident Compensation Corporation (“ACC”). We understand also that at least one other major department is in the process of setting up as part of the chief executive’s office, an independent group that will among other functions, provide a more structured process whereby lessons learned from complaints to our office and elsewhere can be translated into better decision-making with a consequent reduction in complaints. 

Extending this analogy we would hope that as departmental performance continues to improve, the public, even where complaints against agencies are not sustained, will nevertheless be able to get clear explanations of the reasons for decisions which are of concern to them.

As agencies become more transparent and focussed in their decision-making it should be easier for the public to ask the right questions in order to get their concerns addressed. This is in the interests of better performance as a matter of course by government agencies.

We have spent some time this year with Immigration New Zealand (a business unit of the Department of Labour) about which we receive some 290 complaints discussing factors which we believe will help its performance with the objective of reducing the number of complaints that we receive as a consequence of better decision-making on its part. We can report a positive response from this agency. This is particularly encouraging given the complexity of issues it has to deal with and the considerable work pressures under which it operates. We have begun a similar exercise with MSD in respect of CYFS which also has to deal with complex situations under considerable pressure. As time permits it is our intention to extend this approach to other agencies offering suggestions from their performance based on complaints received by this office.  We would expect any such suggestions to be taken seriously.

At the other end of the spectrum it is unfortunate to have to report that even where agencies have a sophisticated complaint handling system we still find examples where citizens have not had satisfaction in relation to grievances about which they complain to us. Sometimes dissatisfaction is based on the fact that initial decisions taken some time back, in relation to an individual, were based on incomplete or false information. Unless this is addressed, problems can extend at length. Positions can become hardened and solutions become that much more difficult. 

We would simply urge agencies to consider, particularly in the case of so called “difficult complainants”, going back to the beginning to see if the original decisions on which subsequent action has been based were soundly made.

We will continue, in such circumstances, to investigate complaints made to us. However once we have arrived at a decision then it becomes the agency’s responsibility to pick up the issue and get it settled. The role of our Office does not extend to being an ongoing back stop for agencies of government or an institution to which agencies can parcel off their difficult complainants. We are here to identify, where possible, solutions to issues. Once that is achieved we expect the agency to settle the matter and enable the complainant to move on.

These comments can sometimes apply to a number of agencies but there are particular examples in our recent experiences with Accident Compensation Corporation and to a lesser degree the NZ Immigration Service and Ministry of Social Development, which can develop into long term problems.

In a wider sense, the experience of our overseas counterparts suggests that many complainants just want an agency to listen to, understand and respect their concerns, and to give them an explanation and apology. Conflicts can ensue or the parties become intransigent where these are not available. Recent events in New Zealand have highlighted this issue, raising the question of when it may be appropriate for officials and officers of publicly owned entities to apologise or to express regret for actions that leave affected parties aggrieved.

In some circumstances, a complaint may be resolved, or stopped from escalating, by making a clear, sincere and timely apology, and, in appropriate cases, by providing an explanation for the action complained about. However, a general apology unconnected to the particular conduct complained of is unlikely to be accepted as genuine or sufficient. On the other hand, an apology for specific conduct runs the risk of being seen as an admission of liability in any potential civil litigation that may ensue and this often acts as a disincentive to making any apology.

Some overseas jurisdictions, including Australia and Canada, have sought to overcome the potential risk of incurring civil liability through an apology by enacting legislation that protects the giving of apologies in an attempt to resolve a complaint. An example of such legislation is the Civil Liability Act 2002 of New South Wales.

We believe it would be useful to give consideration to the appropriateness of such legislation in New Zealand.

Quite apart from our core purpose of investigation of complaints about maladministration, we have also been involved in the exercise of our wider investigative functions. We undertook an investigation of our own motion into prisoner transport operated by, or on behalf of, the Department of Corrections. We had a matter referred to us for investigation by a Select Committee of Parliament pursuant to section 13(4) of the Ombudsmen Act; the first time this role has been requested of us. Ombudsman Mel Smith commenced an investigation, on referral from the Prime Minister pursuant to section 13(5) in the Ombudsmen Act, into aspects of the New Zealand Criminal Justice system. 

The breadth of an Ombudsman’s wider investigative powers was also reflected in the decision in June to formally designate Ombudsmen as a National Preventive Mechanism for the purposes of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“OPCAT”). New Zealand ratified OPCAT in March of this year. The objective of OPCAT is to establish a system of regular visits by international and national bodies (namely National Preventive Mechanisms) to places of detention in order to examine and monitor the treatment of detainees. The role of the Ombudsmen as a National Preventive Mechanism extends not only to prisons but also to premises approved or agreed under the Immigration Act 1987, health and disability places of detention, and youth justice residences established under the Children, Young Persons and Their Families Act 1989. 

We can report as a general comment that notwithstanding the increase in requests to this Office particularly from political party research units, to review decisions to withhold official information, responses by Ministers and core government departments show signs of improvement. In the year under review for example it was necessary in only three cases to make any formal recommendations under section 30 of the Official Information Act, imposing a public duty to release information. We regard this as encouraging.

However, on a less encouraging note, we have encountered several cases of agencies seeking to exclude the application of the OIA to certain types of information ostensibly because the OIA does not provide sufficient protection.

As discussed further at page 24 and 25, one of the purposes of the OIA set out in section 4(c) is to protect official information consistent with the public interest. It is somewhat bizarre to hear agencies argue that certain information is so sensitive that the only way to protect it is for the OIA not to apply. Consistent with section 4(c), the OIA identifies the interests that Parliament has accepted as needing protection. The OIA provides a mechanism to allow the need for protection to be identified with a degree of precision having regard to the circumstances of particular cases. Seeking to exclude the application of the OIA to a class of information or a particular agency is a blunt instrument that inherently risks allowing the withholding of information whether it needs protection or not. In practical terms, this risks negating the principle of availability in section 5 which requires information to be made available unless there is good reason for refusal. On a wider policy level, it could be seen as a means of avoiding the application of legislation that has been described by the Court of Appeal as a constitutional measure:

“… the permeating importance of the Act is such that it is entitled to be ranked as a constitutional measure.”

– Commissioner of Police v Ombudsman, 1 NZLR [1988] 385 at 391

If there is a concern that the withholding provisions of the OIA do not provide adequate protection the appropriate step is to seek amendment of the Act. That allows open and transparent debate and proper accountability to be taken before withholding provisions are strengthened.

Significant issues considered under the OIA included the withholding of advice to party leaders from the Clerk of the Executive Council at the time of Government formation; the withholding of information about MMP negotiations between support parties and the Government on individual pieces of legislation, and withholding information about negotiations between individual parties that have either coalition or other support arrangements with the Government. We supported the need to withhold information in these circumstances after considerable deliberation and consideration of all the issues involved. An overriding concern was the prime importance of the development and maintenance of stable government. Release of information that is likely to put government formation processes and ongoing government stability at risk is not in the public interest. 

These decisions demonstrate that as the MMP environment evolves the OIA has shown it is sufficiently flexible to permit party negotiations and advice from constitutional officials to be assessed in the context of the need to maintain stable government. This we regard as encouraging. The Act is 25 years old. However, the original drafters of the statute were conscious of the need for flexibility in its application as circumstances change even though they would be unlikely to have envisaged some of the outcomes of MMP particularly in relation to the structures of government that have evolved.

Legislation providing rights of access to official information is a subject which challenges the governing institutions of a rapidly increasing number of countries. In recent years the agencies around the world that enforce laws similar to the Official Information Act have met annually to share their knowledge and ideas. To celebrate the 25th anniversary of the enactment of the Official Information Act, and to look towards the future of access to official information, we have decided to host the 5th International Conference of Information Commissioners. The conference, which takes place in November this year, will provide an opportunity to see what can be learnt from our experience by other countries and taken forward into the next 25 years. It is recognised that New Zealand is at the leading edge of a number of freedom of information issues, in particular public access to government policy papers. Several leading academics from around the world will lend their perspective to Commissioners’ discussions. It is apparent that no matter how long-standing the rights of access are, new challenges always arise – from developments in technology to the evolution of governance arrangements and shifts in how public services are provided – and there are things we may learn from countries with newer access to information laws. 

In this context, we note that during the course of the reporting year a major research project on the OIA was completed by a Senior Research Fellow of the Institute of Policy Studies at Victoria University. The overall objective of the project was to improve administration of the OIA across the state sector. Subsidiary aims included the undertaking of in-depth research into the current operation of the OIA and policy analysis in light of the research findings. The Chief Ombudsman was a member of the steering group for the project. The final report on the project is likely to be published later this year and will contribute to ongoing debate on what works well with the OIA and other areas where, depending on one’s perspective as a holder or requester of official information, the Act may not work quite so well.

We continue to value the strong support that we receive from Parliament, the Speaker and the Officers of Parliament Committee. We also record our appreciation of the ongoing contribution from our dedicated and highly motivated staff. Without their strong support our office would not be able to function effectively. In particular, we note our appreciation of Joyce McEwan who retired in 2007 after 35 years of dedicated professional service in a number of roles in our office.

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