27846v2a Teachers Guide

US 27846 v2a
Teacher’s Guide
LEGAL STUDIES
Unit Standard 27846

Version 2 | Level 3 | Credit 4
Evaluate litigation and

dispute resolution
processes in relation to
challenging state power
Licensed to:
Western Heights High School
2019 - 2a © ATC New Zealand
www.instant.org.nz
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NZQA Information
The information contained in this resource is relevant to assessment against the following NZQA
unit standard from the Legal Studies domain.
U/S LEVEL CREDIT TITLE
27846v2 3 4 Evaluate litigation and dispute resolution processes in

relation to challenging state power

The information covered in the resource may also relate to unit standards in other domains.
Level Descriptor: The unit standard is at level 3 of the NQF.
APPLICATION
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Some operational and Select and apply from a range Limited supervision.
theoretical knowledge in a field of known solutions to familiar
of work or study. problems. Requiring major responsibility
for own learning and
Apply a range of standard performance.
processes relevant to the field
of work or study. Adapting own behaviour when
interacting with others.
Contributing to group
performance.
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US27846v2a Teacher's Guide Licensed to Western Heights High School

Evaluate litigation and dispute resolution processes in 18032019-US27846-141396 INSTANT Education Solutions
relation to challenging state power 2a © ATC New Zealand www.instant.org.nz
ii
About this
Teacher’s Guide
Learning Purpose & Outcomes
In this guide, learners will learn how to evaluate litigation and dispute resolution processes in
relation to challenging the power of the state. The following dispute resolution processes will be
evaluated.
• The Waitangi Tribunal
• Judicial review
• The office of the Ombudsman
For each process described, learners will focus on:
• the reasons why the litigation or dispute resolution can be used
• the strengths and weaknesses of each method.
A number of different scenarios are studied in this guide. In addition, a research activity is also
included. Learners may use this activity to research a litigation or dispute resolution process of
their own choice.
A glossary containing difficult or technical terms has been included at the end of this guide. Words
are highlighted the first time they appear in the main text.
Licensed to Western Heights High School US27846v2a Teacher's Guide

18032019-US27846-141396 INSTANT Education Solutions Evaluate litigation and dispute resolution processes in
2a © ATC New Zealand www.instant.org.nz relation to challenging state power
iii
General Information
The teaching and learning guides are designed to prepare learners for
the assessment (of the identified NZQA standard). Teacher’s Note:
1. This Teacher’s Guide is provided for use by teachers only. It is not

intended that learners will have access to this document. However,
it is expected that, where relevant, teachers will provide learners with
suggested answers from this document.
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or self-directed study packages. Teachers should add their own for teachers. It is included
learning resources and activities as appropriate to ensure a robust throughout this guide to
learning pedagogy. The pedagogy engaged should be suitable to assist teachers to deliver
learning content.
the particular organisation or school the teacher is employed in.
This includes appropriate extension learning as required.
3. Learners may need additional literacy and numeracy support as
they work through this course. The teacher needs to ensure that
this support is in place for students.
4. Website content changes regularly. This may mean that changes
have been made to websites mentioned in the Learner’s Guide
and the Teacher’s Guide. It is important that links are previewed to
ensure they are active, before giving them to students.
5. Laws and compliance regulations are regularly amended and/or
repealed. Teachers should research and incorporate any recent
legislative or compliance changes where required.

1
Contents
Waitangi Tribunal 2
What is the Waitangi Tribunal? 3
The Wai 11 Te Reo Māori claim 5
The strengths and weaknesses of the Waitangi Tribunal 9
Developing your own opinion 12
Judicial review 14
What is judicial review? 15
Smoking in prisons 18
Strengths and weaknesses of judicial review 21
Complaints to the Ombudsman 26

What is the office of the Ombudsman? 27
Request from a prisoner unable to access information 30
Strengths and weaknesses of complaining to the Ombudsman 33
Optional research project 37

What is the litigation/dispute resolution process? 38
Case study 40
Strengths and weaknesses of the litigation/dispute resolution process 42
Glossary 44

2
LESSON 1:
Waitangi Tribunal
Learning Objectives
In this lesson, you will learn how the Waitangi Tribunal can be used A space has been left
on the right of every
to challenge state power. In particular, you will learn about:
page for you to make
what the Waitangi Tribunal is notes about what you
are learning.
the Wai 11 Te Reo Māori claim
strength and weaknesses of using the Waitangi Tribunal
developing your own opinion.

3
LESSON 1: Waitangi Tribunal
What is the Waitangi Tribunal?
It is agreed by both Māori and the New Zealand

WHAT government that the actions of the government
have often damaged Māori interests. The
What is it? promise made by the New Zealand government
to protect Māori has not always been kept.
The Waitangi Tribunal was set up to deal with
Māori concerns about breaches of the promises
made in the Treaty of Waitangi.
The Waitangi Tribunal is a permanent commission
of inquiry.
The Waitangi Tribunal was established in

WHEN 1975. However, from 1975–1985 it could only
investigate Crown actions from 1975.
When was it In 1985, the law was changed to enable the
established? Tribunal to hear claims from 1840.
The Waitangi Tribunal was established:

WHY ‘to make recommendations on claims relating
to the practical application of the principles of
Why was it the Treaty and, for that purpose, to determine
established? its meaning and effect and whether certain
matters are inconsistent with those principles’.
(Preamble of Treaty of Waitangi Act 1975).
In other words, the Tribunal was established to
help investigate and make recommendations
on possible past and present breaches of the
Treaty of Waitangi.
The Tribunal is able to listen to a claim from any

WHO Māori person or any group of Māori (such as iwi,
hapu, or whānau).
Who uses it? Māori is defined in the Act as:
‘a person of the Māori race of New Zealand;
and includes any descendant of such a person’
(section 2).

4
1. Claimants (Māori iwi or hapu) raise a claim

HOW with the Tribunal.
2. The Tribunal decides whether or not the
How can claim can be heard.
the Tribunal 3. The Tribunal investigates the claim by
be used to collecting evidence and listening to the
challenge claimants.
state power? 4. The Tribunal then produces a report about
the claim. The report contains a number of
recommendations. The report is given to
the New Zealand government.
5. The New Zealand government decides
whether or not to apply the recommendations
of the Tribunal (by changing the law).
LAW The Waitangi Tribunal was established under the

Treaty of Waitangi Act 1975.
Legislation Section 4(1) of the Act says:
that created ‘There is hereby established a tribunal to be
the Waitangi known as the Waitangi Tribunal’.
Tribunal
READ MORE http://www.justice.govt.nz/tribunals/waitangi-tribunal

You can get more http://en.wikipedia.org/wiki/Waitangi_Tribunal
information from the http://www.nzhistory.net.nz/keyword/waitangi-tribunal
following websites.
Your friend wants to know what the Waitangi Tribunal

Try it for is and what it is used for. Write a short letter to your
Yourself friend (on separate paper) about the Tribunal. Use the
information in this section to help you.
When you have finished your letter, give it to your tutor

for feedback.
Teacher’s Note:
Answers will be specific to learners. Learner’s answers should highlight their
understanding of the Tribunal. Learners should be encouraged to read through
the website links provided in order to broaden their understanding.

5
The Wai 11 Te Reo Māori claim
In 1986, a claim was brought to the Waitangi Tribunal in relation to the

use of Te Reo Māori (the Māori language).
The claimants state that the Crown had failed

STEP 1 to uphold Article 2 of the Treaty of Waitangi in
relation to protecting the Māori language.
The claim There were a number of publicised situations
where Māori had not been permitted to use
the Māori language in court or in government
agencies. The claimants stated that the Māori
language should be recognised as an official
language in New Zealand. They also claimed that
people should have the right to use the Māori
language in court, government organisations
etc.
The claim was brought by Huirangi Waikerepuru
and Ngā Kaiwhakapūmau i te Reo; however, it
had widespread support from Māori and Pakeha
all over New Zealand.
The Waitangi Tribunal investigated the case in

STEP 2 detail and they agreed that the Māori language
was a taonga and that it should have official
The recognition in New Zealand.
investigation They agreed that a number of pieces of
by the legislation in New Zealand at the time, including
Waitangi the Broadcasting Act 1976 and the Education
Tribunal Act 1964, were prejudicial towards Māori as
they did not give Māori the option of speaking or
learning their own language.
Note: Section 6 of the Waitangi Act 1975 states
that Māori can raise claims in relation to any
law that has been made by the Crown that is
believed to have prejudicially affected Māori.

6
Have you heard the word taonga before? What does

What do it mean? If you do not know its meaning, do some
You Think? research online.
A taonga is a thing that is treasured by Māori people. It may be a tangible
item such as an area of land. It may be an intangible item, like a language,
or airwaves.
Some of the recommendations made by

STEP 3 the Tribunal include:
• legislation be introduced to allow the
Recommendations Māori language be used in the courts
made by the and in any dealings with government
Tribunal bodies
• an organisation be created to foster
and promote the Māori language
• broadcasting and education policy
be created to protect the Māori
language
Note: The Tribunal did not recommend
that Te Reo be made a compulsory
subject in schools or that all government
documents be published in Māori.
STEP 4 The government agreed with the Note: The Māori

recommendations of the Waitangi Language Act 1987
The government’s has since been
response Tribunal. In 1987, the Māori Language
replaced by the Māori
Act was created. The act: Language Act 2016.
• made Te Reo Māori an official Although there are
some major differences
language in New Zealand (meaning
between these laws,
that it could be used in courts and at both laws are focused
government agencies) on promoting the use
of the Māori Language
• established the Māori Language
in New Zealand.
Commission.

7
The government was under no obligation to make the

What do Māori Language Act. Why do you think the government
You Think? followed all the recommendations? Explain.
The government may have made the changes because:
they could genuinely see Māori had a right to have their language protected,
the changes were relatively easy to implement (they did not affect the
whole population), the changes were relatively inexpensive to implement
(compared to other Waitangi Tribunal recommendations).
In this activity you are going to access the Wai 11 Te Reo

Try it for
Māori claim document and select five interesting points
Yourself from it. To access the claim:
1. Go to the following website. https://forms.justice.govt.nz/search/WT/reports.html
2. In the Wai Number box, select 11.

3. Select the search button.
Continued on next page...

8
4. A pdf link to the Wai 11 claim will appear.

5. Read through the claim and write five interesting facts or quotes from the claim in
the space below.
1.
2.
3.
4.
5.
Teacher’s Note:
Answers will be specific to the learner. All
answers should come from the Wai 11 claim.
This task could be completed as a homework
activity if learners do not have internet access
in the classroom.

9
The strengths and weaknesses of

the Waitangi Tribunal
STRENGTH
How the Tribunal is an effective
tool in challenging state power
One strength of the Waitangi Tribunal is that it investigates claims

in accordance with ngā tikanga Māori and Māori customs around
whakapapa and land ownership.
Hapu or iwi who raise claims with the Waitangi Tribunal are able to
give evidence in a way that suits their cultural needs.
They do not have to give evidence in an environment that is based on
English law.
With reference to the Te Reo Māori claim:
In this claim, Māori claimants were able to challenge the government’s
unwillingness to make te reo Māori an official language by using the
Waitangi Tribunal. The Tribunal was able to present a compelling
argument to the government and provide recommendations to get
the government to change their approach.
The Waitangi Tribunal process was inquisitorial (not adversarial). This
meant that the claimants could present their case without having to
‘prove’ that they were right.
WEAKNESS
How the Tribunal is limited in
One weakness of the Tribunal process is that it can only give

recommendations to the government. The government is under no
obligation to accept any of the recommendations of the Waitangi
Tribunal.
With reference to the Te Reo Māori claim:
This weakness did not really affect the Te Reo claim. In the Te Reo
claim, the government applied all the recommendations within a short
timeframe - this was largely due to public pressure and the arguments
put forward by the Waitangi Tribunal.

10
1. Based on the information provided in this lesson, what

Try it for are some other strengths of the process?
Yourself
Teacher’s Note:
Answers will be
specific to the
learner.
2. Based on the information provided, what are some other weaknesses?
Other situations
Not all cases investigated by the Waitangi Tribunal have successfully challenged state power.
There have been other instances where the recommendations of the Tribunal have been
ignored by the government, such as recommendations made by the Tribunal in relation to
asset sales/water rights. Even before the Waitangi Tribunal released its report in relation to
asset sales, Prime Minister John Key stated that, ‘The legal position is that governments
aren’t bound by the Waitangi Tribunal… It’s our view that no-one owns water, just in the
same way we don’t think that anyone owns the sea’.1 This effectively meant that although the
Waitangi Tribunal went to considerable expense and time to investigate water-rights claims,
the government would not change their position on the matter.
1 http://www.3news.co.nz/politics/government-can-ignore-waitangi-tribunal-on-asset-
sales-2012071010

11
Using the internet, investigate the Waitangi Tribunal 2358

Try it for claim (National Fresh Water and Geothermal Resources
Yourself Inquiry). This is the water rights claim that impacted on
asset sales.
Write some brief notes about the interim recommendations
that were made in relation to this claim and the government’s
response to these recommendations.
Teacher’s Note:
Answers will be
specific to the
learner.

12
Your opinion
What do you think about the Waitangi Tribunal? Is it an effective

process to challenge state power? Or is it not effective at challenging
the New Zealand government and getting the government to changes
its actions?
When you form your opinion about the Waitangi Tribunal, you
should consider:
1. The usefulness of the process.
• Can anyone use the process or is it only available to
certain groups?
• How likely is a change in law if the process is followed?
2. The steps that it takes to challenge state power.
• Is the investigation period long and drawn out?
• Is the process used fair and does it investigate accurately?
3. The strengths and weaknesses.
• Do the strengths outweigh the weaknesses? How?
When you give your position, it is important that you ‘back it up’ by
summarising your answers to the questions in the box above.
Example:
For example, if you believe that the Waitangi Tribunal is not a useful
process for challenging state power, you may write the following as
part of a statement of your position:
Although the Waitangi Tribunal was successful in challenging
state power in the Wai 11 Te Reo Māori case, I do not
believe that it is generally a useful process to challenge state
power. Firstly, it is only able to make recommendations to
the government, it cannot actually force a change in law.
Even if the Waitangi Tribunal has a number of compelling
reasons for a change in the law, if these reasons do not suit
the will of the government in power, they are likely to be
ignored. I only think the Wai 11 claim was supported by the
government because it supported their political goals.

13
A number of political parties have recently stated that they

Try it for would dissolve the Waitangi Tribunal if they were in power.
Yourself On a separate piece of paper, write a letter to the editor
of your local newspaper that either agrees or disagrees
with these political parties. Make sure your answer clearly
highlights your position in relation to the issue.
Once you have finished, hand your letter to your tutor for
review.
Note: You do not actually have to send your letter to the
editor of a newspaper!
Teacher’s Note:
Answers will be
specific to the
learner.

14
LESSON 2:
Judicial review
Learning Objectives
In this lesson, you will learn about judicial review as a process that
can be used to challenge state power. In particular, you will learn
about:
what judicial review is
the smoking ban in prisons
strength and weaknesses of using judicial review

15
LESSON 2: Judicial review
What is judicial review?
The term ‘judicial’ refers to the courts. ‘Judicial

WHAT review’ takes places when the High Court
reviews a governmental decision, action, or
What is it? proposed action.
The High Court will determine whether the
action or decision of a government organisation
is unauthorised or invalid.
Note: It is important to note that the courts do
not directly challenge the laws that Parliament
has made (because Parliament is sovereign).
Instead, judicial review investigates the decisions
that those involved in government have made in
relation to the law.
For example, the government may make a law
restricting the number of immigrants who can
enter New Zealand each year. The courts are not
permitted to challenge this law because Parliament
is sovereign. However, they may challenge how
the law has been implemented or interpreted by a
government organisation. They may come to the
conclusion that the implementation of the law is
invalid.
There is a long history of the courts having the

WHEN power to review the decisions of government or
public bodies.
When did In 1972, these rules were put into law as the
judicial Judicature Amendment Act 1972. This act outlines
review start? the process for judicial review in New Zealand.
Although common law can still be used in
situations that are not covered by the Judicature
Amendment Act 1972, most judicial reviews
come under this act.

16
Although the government can make laws

WHY on a wide range of areas, they cannot make
laws for everything. Instead, they have to rely
Why use on government ministers and government
judicial employees as to how laws will be implemented
review? and operated.
From time to time, government ministers and
employees may make decisions that members
of the Parliament or other organisations disagree
with. These decisions or actions need to be
reviewed by knowledgeable and independent
organisations. In New Zealand, the High Court
takes this role.
1. The High Court conducts the judicial review.

WHO 2. They review the decisions of any government
minister, employee, or other related personnel.
Who is
3. Members of the public who have been
involved?
affected by a governmental decision may
apply for the judicial review.
1. A person who disagrees and is directly

HOW affected by government actions or decisions
may make an application for judicial review
How can with the High Court.
judicial 2. The High Court judge will decide whether
review be there is a bona fide case to be heard.
used to
3. The High Court will investigate the actions of
challenge
the government. They will gather information
state power?
from witnesses as well as look at documents
from relevant parties involved.
4. The High Court judge will then make a
statement about the case, including whether
the government decision or action was lawful
or not. The High Court can then require the
government to set their decision or actions
aside in relation to the specific issue.
5. Although the government must set the
decision aside (as they have been ordered
to by the courts), this does not mean that
they have to change their overall approach.

17
The government may propose that Parliament

change the law so that their actions are legal,
or they may slightly alter their protocol so
that the actions are considered to be legal.
Alternatively, the government may appeal the
review.
The main law that regulates judicial review

LAW is the Judicature Amendment Act 1972. The
following sections are important.
Legislation • Section 4 highlights how an application
that regulates is to be made
judicial review • Section 9 highlights the procedure that
is to be followed in the high court
• Section 8 highlights interim orders that
a judge can make while the case is
being investigated
READ MORE www.legislation.govt.nz search: Judicature Amendment Act 1972

https://www.courtsofnz.govt.nz/about/high/cases-to-court
You can get more
information from the
following websites.
Using the internet, search for cases of judicial review in

Try it for New Zealand. List some of the different topics that have
Yourself been covered and the outcome of these.
[Hint: Websites such as Stuff (www.stuff.co.nz) or New
Zealand Herald (www.nzherald.co.nz) may be useful.]
Examples include:
Review of a coroner’s decision, allocation of government funding,
matters relating to local government, the actions of various political parties
in office, the government’s release of documents to the media Teacher’s Note:

Answers will be
specific to the
learner.

18
Smoking in prisons
Under Section 33 of the Corrections Act 2004, the chief executive

of the Department of Corrections has the power to make rules for
the appropriate management of the prison and ‘safe custody of the
prisoners.’ Using these powers, the Department of Corrections made
all prisons in New Zealand smoke-free from 1 July 2011. This meant
that prisoners could not smoke at all while in prison. Many prisoners
opposed these rules. One prisoner in Auckland prison, Arthur Taylor,
applied for judicial review by the High Court.
Note: Arthur Taylor applied for judicial review in relation to the smoking
ban on two occasions. This section will focus on the first occasion.
A judicial review application was made by

STEP 1 Arthur Taylor in relation to the smoking ban. The
application challenged the ban on the grounds
The application that the prison manager had no right to do so
under the Corrections Act 2004.
The High Court heard the case in June 2012.

STEP 2 The court made the following points:
• common law indicated that prisoners were
The allowed common law freedoms unless these
investigation were specifically removed by statute (such
by the High as the right to vote for some prisoners)
Court
• smoking was an ingrained part of prison life
• the prison cell was equivalent to their home
(and normal citizens have the right to smoke
in their home).
They also noted that smoking in prisons has
already been addressed by the Smoke-free
Environments Act 1990 and it has been allowed.
In conclusion, they stated that the intent of
Parliament was for smoking to be allowed in
prisons.

19
It therefore means that the chief executive of

the Department of Corrections had not made
a decision that is compliant with the law (both
the Smoke-free Environments Act 1990 and the
Corrections Act 2004).
The High Court made an order declaring that the
rule was unlawful. They declared that the rule
was to have no effect.
In essence, the government ignored the outcome
STEP 3 of the judicial review so that the smoking ban

would remain in prisons. They took the following
steps to ensure that the ban remained in place.
How did the
government 1. Introduced an amendment that made
respond to tobacco an unauthorised item in prisons.
the decision? 2. Made emergency amendments to the
Corrections Act 2004 and the Smoke-free
Environments Act 1990. These laws were
changed to make smoking in prisons illegal.
3. Made the law retrospective (meaning that
the decision of the chief executive of the
Department of Corrections was legal).
There were a number of concerns about the

process the government followed to make the
new law.
1. The laws were made retrospectively.
Generally, laws should only cover the future
(not the past).
2. There was no select committee process,
so people (health experts, those working
in prisons, prisoners etc) could not express
their concerns about the law.
3. The Attorney General was not given the
opportunity to analyse whether the law
complied with the Bill of Rights Act 1990.

20
What do you think of the government’s actions in this

What do situation? Explain.
You Think? [Consider: It is proven by health experts that smoking
is harmful to health. However, does this give the
government the right to ignore judicial decisions and
change the law without following standard procedure?]
Although I think it is good that the government is taking steps to reduce
smoking in New Zealand, I think they have taken the wrong steps to impose
this ban. The government did not take the legitimate concerns raised in the
judicial review into account. Instead of rushing a law through that directly
opposed the concerns of the High Court, the government should have
addressed the court’s concerns, and then changed the law in a way that was
agreeable to all concerned.

21
Strengths and weaknesses of

judicial review
STRENGTH
How judicial review is an effective
One strength of judicial review is that judges can declare that a

government decision or action was unlawful. They can then require
that the government stop their actions. In some cases, the High Court
can even order the government to pay compensation to people who
have been effected by actions of the government.
With reference to the prison smoking ban review:
In this claim, the judge declared that the actions of the government
were unlawful. It was also declared that the regulations that prohibited
smoking should have no effect. This sent a clear message to the
government that their actions were wrong and that they did not follow
the laws that they have enacted.
WEAKNESS
How judicial review is limited in
One weakness of the judicial review process is that the government

can simply bypass the judge’s decision.
The government can enact new laws that specifically overrule the
concerns that were raised by the judge in his or her decision. This
is specifically concerning when proper Parliamentary process is not
followed.
With reference to the prison smoking ban review:
The government made amendments to laws to specifically overrule
the concerns raised by the judge. For example, the judge declared
that smoking was not prohibited by the Smoke-free Environments Act
1990, the government, therefore, made retrospective amendments to
include prisons in this law.

22
Try it for 1. Based on the information provided in this lesson,

Yourself what are some other strengths of the process?
Teacher’s Note:
Answers will be
specific to the
learner.
2. Based on the information provided, what are some other weaknesses?
Other situations
Not all cases of judicial review result in the government changing the law to bypass the
decision made by the High Court judge. In many cases, the decisions made by the High Court
have been upheld and followed through by the government.
For example, in 2013 a high school student was expelled from his school due to behavioural
issues. His parents sought judicial review on this decision. The High Court ruled that the
student was legally entitled to be at the school and that the expulsion was unlawful. The
school was therefore compelled to find a way to accommodate the student.
Note: A school’s board is considered to be a government organisation and is therefore subject
to judicial review.

23
Using the internet, investigate another case of judicial

Try it for review. You can do this by typing the following search
Yourself terms into an internet search engine.
• judicial review
• New Zealand
• recent cases
Write some brief notes about the situation and the
decision that was made by the High Court. Make sure
you include some details about the government’s
response in relation to the case.
Teacher’s Note:
Answers will be
specific to the
learner.

24
Your opinion
What do you think about judicial review? Is it an effective process to

challenge state power? Or is judicial review not effective at challenging
the New Zealand government and getting the government to change
its laws and operations?
When you form your opinion about judicial review, you should
consider:
• Can the judicial review process be used for any issues
that arise, or is it just for certain issues?
• How likely is a change in government action if the judicial
review process is followed?
2. The steps in the process that are followed to challenge state power.
• Is the process easy for the public to access?
• Are the steps in the process long and drawn out?
When you give your position it is important that you ‘back it up’ by
Example:
If you believe that judicial review is a useful process for challenging
state power, you may write the following as part of a statement of
your position:
I think judicial review is an effective tool in challenging
state power, provided that the government follows correct
procedures to deal with any judgements made by the courts.
One key strength of judicial review is that it can force the
government to stop those actions that they were taking. The
government is then given a chance to create new law so that
their actions are legal.

25
You are required to prepare for a class debate. The topic is:
Try it for • Is judicial review an effective tool to challenge state
Yourself power in New Zealand?
Follow the instructions from your teacher about how to
prepare for the debate. If you do not have a teacher or a
class to complete the debate with, choose one position
and write some notes to argue your position.
Teacher’s Note:
Teacher’s should allocate affirmative and
negative positions to learners in relation to the
topic. They should then be given specific time to
research and prepare their debates in teams.
Teachers should follow proper debating

protocol, although this can be altered to suit the
dynamics of the class.

26
LESSON 3:
Complaints to the
Ombudsman
Learning Objectives
In this lesson, you will learn about complaints to the ombudsman as
a process that can be used to challenge state power. In particular,
you will learn about:
what the office of the Ombudsman is
complaints to the Ombudsman in relation to immigration
approvals
strengths and weaknesses of complaining to the Ombudsman

27
LESSON 3: Complaints to the Ombudsman
What is the office of

the Ombudsman?
The office of the Ombudsman is an independent
WHAT organisation that helps members of the
community deal with government agencies.
What is it?
The Ombudsman handles complaints and
investigate the way government officials have
administered certain laws.
In particular, the Ombudsman can investigate:

• government ministries and departments
• state-owned enterprises
• school boards of trustees
• district health boards.
The word Ombudsman is Swedish. It means

‘grievance person’. We use the Swedish term
because it was Sweden who first created
the office of an independent investigator of
grievances back in 1809.
There are other offices of Ombudsman operating

independently in New Zealand (such as the
Banking Ombudsman). This lesson only focuses
on the Ombudsman who are able to challenge
state power.
The office of the Ombudsman was first created

WHEN in New Zealand in 1962. The law that created
the Ombudsman was the Parliamentary
When were Commissioner Ombudsman Act 1962.
complaints
to the There have been changes made to the
Ombudsman Ombudsman’s powers over time. For example,
first made from 1968, the Ombudsman’s office was able to
possible? deal with education and hospital boards. They
were not able to do this before 1968.
In 1975, the law that gives the Ombudsman power

was updated and changed to the Ombudsman
Act 1975. Since this time, there have been
numerous changes to the investigative powers
of the Ombudsman.

28
The Ombudsman are able to deal with problems

WHY that people have with government agencies
without the need to go to court. They can look
Why use the at the problem in general as opposed to just one
Ombudsman incident where the problem occurred.
to make a
complaint? The Ombudsman were created in order to give
advice to different government organisations.
They are able to conduct a full investigation and
then give their opinion in relation to what went
wrong and what should happen to fix the wrong.
1. There are currently two Ombudsman who

WHO investigate issues in New Zealand.
2. Any person in New Zealand who has a

Who is
complaint with a government agency (or
involved?
other area that the Ombudsman has the
power to investigate) is able to make a
complaint to the Ombudsman.
3. The public is also able to get information

from the Ombudsman about their general
rights in relation to dealings with government
agencies.
HOW 1. A person with a complaint can fill out an

online complaints form or get a form sent to
How can their home.
making a
2. The Ombudsman will acknowledge their
complaint
complaint and will assess it. They will inform
to the
the complainant if they are able to take
Ombudsman
action in relation to the issue or not.
be used to
challenge 3. If an investigation is necessary, the
state power? Ombudsman will collect information from
both the complainant and the government
organisation involved.
4. The Ombudsman will then give their decision

about the situation. It is important to note that
the Ombudsman does not have any power to
make the government change their actions,
they can only give recommendations about
what should happen.

29
The main law that regulates the office of the

LAW Ombudsman is the Ombudsman Act 1975.
The following laws also regulate the actions of
Legislation the Ombudsman.
that regulates • The Official Information Act 1982
the office of • The Local Government Official
Ombudsman. Information and Meetings Act 1987
• The Crimes of Torture Act 1989
• The Protected Disclosures Act 2000
READ MORE www.legislation.govt.nz search: Judicature Ombudsman Act 1975

http://www.ombudsman.parliament.nz/
You can get more http://en.wikipedia.org/wiki/Office_of_the_Ombudsman_(New_
information from the Zealand)
following websites.
Using the internet, search for publicised cases where the

Try it for Ombudsman has been complained to in New Zealand.
Yourself List some of the different topics that have been covered.
[Hint: Websites such as Stuff (www.stuff.co.nz) or New
Zealand Herald (www.nzherald.co.nz) may be useful.]
Examples include:
Decisions by district councils in relation to animal control.
Access to official documents relating to the Prime Minister’s actions.
Complaints related to decisions made by school boards. Teacher’s Note:

Complaints about actions taken by district health boards. Answers will be
specific to the
learner.

30
Request from a prisoner unable to

access publicly available information
In July 2017, the Ombudsman dealt with a complaint from a prisoner.

The prisoner stated that they requested information from the New
Zealand Police. The Police refused to provide the information stating
that the information was available online, even though prisoners do
not have access to online sources.
The complainant requested information from the

STEP 1 New Zealand Police.
The Police refused to provide this information

The application
stating that it was available online. The Police
referred to section 18(d) of the Official Information
Act 1982 which states that information does
not have to be provided by a government
organisation if it is already publicly available.
However, the complainant argued that they
could not access the internet, as they were in
prison, therefore they had no way of accessing
the information.
An investigation was conducted by the

STEP 2 Ombudsman at the start of 2017. The
investigation included:
The • collecting information from the prisoner
investigation
• getting the New Zealand Police’s opinion on
by the
the specific case
Ombudsman
• checking relevant legislation such as the
Official Information Act 1982 and the Bill of
Rights Act 1993
• any additional specific information from the
complainant.
The Ombudsman came to the conclusion that the
New Zealand Police had incorrectly interpreted
the legislation.
The report from the Ombudsman stated that
although section 18(d) of the Act states that a
request for publicly available may be refused,

31
it does not have to be refused. In addition, the

Ombudsman stated that under section 30 (1)(b)
of the Official Information Act, the Ombudsman
has the ability to state that a government
agency’s decision to refuse information is
unreasonable and therefore make the agency
provide the required information.
Based on the situation of the prisoner and
the information that was requested, the
Ombudsman’s opinion was that the Police’s
decision to not provide the information was
unreasonable.
The New Zealand Police accepted the

STEP 3 Ombudsman’s opinion and released the
information that was initially refused.
How did the Because the Police accepted the initial opinion
government of the Ombudsman, the Ombudsman did not
(New Zealand have to issue an official recommendation.
Police)
respond to
the decision?

32
Answer the following questions in relation to the case

Try it for studied in this section.
Yourself 1. Why did the person lay a complaint with the
Ombudsman?
A complaint was laid because information was requested from the Police
under the Official Information Act and the Police refused to provide this
information.
2. What was the Ombudsman’s opinion in relation to the case?
The Ombudsman agreed with the complainant. They came to the conclusion
that the information should have been provided to the prisoner due to the
fact that it was unreasonable for the Police not to provide it.
3. What was the government’s response?
The Police agreed with the recommendations of the Ombudsman and
decided to provide the information. It is assumed that the Police will do this
in similar situations in the future.

33
Strengths and weaknesses of

complaining to the Ombudsman
STRENGTH
How complaining to the
Ombudsman is an effective
One strength of complaining to the Ombudsman is that the complaint

process is very easy. The process of complaining is as simple as
filling out a form online (or a paper application form). When compared
to other forms of challenging state power (such as judicial review),
complaining to the Ombudsman is less daunting and more accessible.
In many cases, the applicant does not need to be present at any
hearing or interview.
With reference to the access to information case:
In this case, a man who was living in prison was able to apply to the
Ombudsman. He did not need to have the assistance of a lawyer or
other representative. The application could be made from prison.
WEAKNESS
How complaining to the
Ombudsman is limited in
One weakness of complaining to the Ombudsman is that only

recommendations can be made, not binding orders. This means
that the government agency can ignore the conclusions of the
Ombudsman if they want to.
The Ombudsman has the option of taking the case to the Prime
Minister (House of Representatives) for review if the agency ignores
recommendations. However, the Prime Minister also does not have to
comply with the recommendations of the Ombudsman.
It is important to note, however, that because the office of the
Ombudsman is respected by the New Zealand government and public,
it is rare for their recommendations to be disregarded completely.
With reference to the access to information case:
This weakness did not affect the case directly as the Police stated
that they would apply the opinion of the Ombudsman.
If the Police refused to apply the opinion of the Ombudsman, the
Ombudsman could take the case to the Prime Minister (House of
Representatives) for a decision. This step was not necessary in this
case.

34
Based on the information provided in this lesson, can

Try it for you think of any other strengths or weaknesses of the
Yourself process?
Teacher’s Note:
Answers will be
specific to the
learner.

35
Your opinion
It is important that you look at other cases so that you can form
an opinion about whether the Ombudsman is an effective tool in
challenging state power.
STEP 1: Go to the following website and read through

Try it for a selection of reports based on complaints to the
Yourself Ombudsman.
http://www.ombudsman.parliament.nz/resources-and-publications/latest-reports
STEP 2: Write some brief notes for at least two reports. Remember to include:
• what the complaint was about
• the Ombudsman recommendations
• the government’s response to the recommendations (you may need to do
some additional research to find information about this).
Case 1
Teacher’s Note:
Answers will be
specific to the
learner.
Case 2
Continued on next page...

36
STEP 3: With reference to all the information you have about the Ombudsman, do
you think it is an effective tool to challenge state power? Include specific examples
from the immigration case studied as well as any other cases that you investigated.

37
LESSON 4:
Optional research
project
Learning Objectives
In this lesson, you will research one litigation/dispute resolution Teacher’s Note:
process. In particular, you will research: This research project
what the process is and how it works does not contain any
sample answers. It is
a real situation where the process was used important that tutors
strengths and weaknesses of using the process check all evidence
collected by learners
your own opinion in relation to the process. if learners intend to
There are a number of litigation and/or dispute resolution processes use this topic for their
assessment.
in addition to the ones that you have already studied. These include
the following.
administrative the court

review process
habeas
an international corpus
law process
complaints to
complaints the Independent
to the Human Police Conduct
Rights Authority
complaints to
Commission the Privacy
Commission
In this lesson, you will research one litigation/dispute resolution

process. Use the internet, public library, or any other resources to
find the information that you need.

38
LESSON 4: Research project
What is the litigation/dispute

resolution process?
WHAT In this section, explain what the process is. Give some general information about it
as well as some specific information that you think is relevant.
What is it?
WHEN In this section, explain when the process originated. Is it a new process that has
been developed by the government? Or is it a process that was established in
common law?
When did the
litigation/
dispute
resolution
process
start?
WHY In this section, explain why the process exists. What are the aims of the process?
How is it a useful way to challenge state power?
Why use
the process
to make a
complaint?

39
WHO In this section, explain who is involved in the process and what their roles are.
Who is
involved?
HOW In this section, explain the steps that are taken in the process. Also, describe
the different outcomes of the process.
How can the

litigation/
dispute
resolution
process
be used to
challenge
state power?
LAW In this section, identify the laws that regulate the litigation/dispute resolution
process.
Legislation
that
regulates the
litigation/
dispute
resolution
process.

40
Case study
In this section, you are going to find a real situation where the litigation/
dispute resolution process was applied. You can find situations
through research on the internet.
Note: If you are having trouble finding a suitable situation, ask your
teacher to help you.
STEP 1 Who brought the case to the litigation/dispute resolution process?

Why did they do this? What was the situation about?
The situation
STEP 2 What did the organisation do with the case? How did they investigate it?
What conclusions did they come to?
The investigation

41
STEP 3 How did the government respond to the decision? What actions did they take?
Did the litigation/dispute resolution process effectively restrain state power?
Government
response

42
Strengths and weaknesses of the

litigation/dispute resolution process
Based on your research, describe a strength and weakness of the
litigation/dispute resolution process.
STRENGTH
How the litigation/dispute
resolution process is an effective
A general strength of the litigation/dispute resolution process.
With reference to the real situation.
WEAKNESS
How the litigation/dispute
resolution process is limited
in challenging state power
A general weakness of the litigation/dispute resolution process.
With reference to the real situation.

43
Your opinion
What do you think about the litigation/dispute resolution process that

you researched? Is it an effective process to challenge state power?
Or is it not effective at challenging the New Zealand government and
getting it to change the way it operates?
When you form your opinion about the litigation/dispute resolution

process, you should consider:
• Can the process be used for any issues that arise or is it
just for certain issues?
• How likely is a change in government action if the process
is followed?
2. The steps that are to challenge state power.
• Is the process easy for the public to access?
• Are the steps in the process long and drawn out?
When you give your position it is important that you ‘back it up’ by
Create a poster that promotes the litigation/dispute

Try it for resolution process that you have researched. Make sure
Yourself you include general information about the process as well
as specific information about the case studied.

44
Glossary
adversarial A court process in which the parties in a dispute have the responsibility
for finding and presenting evidence.
binding order A decision by an authority that must be followed.
bona fide Real or genuine.
bypass To go past or ignore something.
claimants A person or organisation who has a grievance.
compel To force or oblige (someone) to do something.
compliant Following set rules or laws.
discretionary The freedom to decide what should be done in a particular situation.
grievances A complaint.
inquisitorial A court or tribunal process where the decision maker is actively involved
in investigating facts.
interim orders An order passed by a court while waiting on the outcome of another
decision.
overrule To reject the decision or opinion of another.
permanent A permanent organisation that investigates grievances.
commission of
inquiry
prejudicial Something that is harmful or detrimental to a person or thing.
protocol An agreed upon method or way of doing something.
retrospective Looking back on or dealing with past events or situations.
taonga An object or natural resource which is highly prized. (Te Reo Māori)
tikanga Māori law, customs, way of doing things. (Te Reo Māori)
whakapapa Genealogy. (Te Reo Māori)

45

46

47

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Hamilton 3216
Phone: 0800 864 863
E-mail: instant@atc.org.nz
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US 27846 v2a

Unit Standard 27846

Evaluate litigation and

U/S LEVEL CREDIT TITLE

27846v2 3 4 Evaluate litigation and dispute resolution processes in

Level Descriptor: The unit standard is at level 3 of the NQF.

US27846v2a Teacher's Guide Licensed to Western Heights High School

Licensed to Western Heights High School US27846v2a Teacher's Guide

1. This Teacher’s Guide is provided for use by teachers only. It is not

US27846v2a Teacher's Guide Licensed to Western Heights High School

Complaints to the Ombudsman 26

Optional research project 37

Licensed to Western Heights High School US27846v2a Teacher's Guide

US27846v2a Teacher's Guide Licensed to Western Heights High School

LESSON 1: Waitangi Tribunal

What is the Waitangi Tribunal?

It is agreed by both Māori and the New Zealand

The Waitangi Tribunal was established in

The Waitangi Tribunal was established:

The Tribunal is able to listen to a claim from any

Licensed to Western Heights High School US27846v2a Teacher's Guide

LESSON 1: Waitangi Tribunal

1. Claimants (Māori iwi or hapu) raise a claim

LAW The Waitangi Tribunal was established under the

READ MORE http://www.justice.govt.nz/tribunals/waitangi-tribunal

Your friend wants to know what the Waitangi Tribunal

When you have finished your letter, give it to your tutor

US27846v2a Teacher's Guide Licensed to Western Heights High School

LESSON 1: Waitangi Tribunal

The Wai 11 Te Reo Māori claim

In 1986, a claim was brought to the Waitangi Tribunal in relation to the

The claimants state that the Crown had failed

The Waitangi Tribunal investigated the case in

Licensed to Western Heights High School US27846v2a Teacher's Guide

LESSON 1: Waitangi Tribunal

Have you heard the word taonga before? What does

A taonga is a thing that is treasured by Māori people. It may be a tangible

item such as an area of land. It may be an intangible item, like a language,

Some of the recommendations made by

STEP 4 The government agreed with the Note: The Māori

US27846v2a Teacher's Guide Licensed to Western Heights High School

LESSON 1: Waitangi Tribunal

The government was under no obligation to make the

The government may have made the changes because:

whole population), the changes were relatively inexpensive to implement

(compared to other Waitangi Tribunal recommendations).

In this activity you are going to access the Wai 11 Te Reo

1. Go to the following website. https://forms.justice.govt.nz/search/WT/reports.html

2. In the Wai Number box, select 11.

Licensed to Western Heights High School US27846v2a Teacher's Guide

LESSON 1: Waitangi Tribunal

4. A pdf link to the Wai 11 claim will appear.

US27846v2a Teacher's Guide Licensed to Western Heights High School

LESSON 1: Waitangi Tribunal

The strengths and weaknesses of

One strength of the Waitangi Tribunal is that it investigates claims

One weakness of the Tribunal process is that it can only give

Licensed to Western Heights High School US27846v2a Teacher's Guide

LESSON 1: Waitangi Tribunal

1. Based on the information provided in this lesson, what

2. Based on the information provided, what are some other weaknesses?

US27846v2a Teacher's Guide Licensed to Western Heights High School

LESSON 1: Waitangi Tribunal