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Administrative Law

Lecture 15 Ombudsman/OIA

Outline
Office of Ombudsmen History Role Responsibility Process

Examples

Questions
What is the Ombudsman? Why is the role not so well known? Why is an application to the Ombudsman not an option?

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 attract appropriate 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 on how effective are the provisions of the OIA?

Administrative law
Administrative law promotes the ideal of government according to law through the processes of judicial review and is pre-eminently concerned with the legality of public decisionmaking. Joseph, p1 Judicial review Alternative avenues for complaint
Ombudsmen

Complaints against Administration


The administration of so many services and controls under the vast bureaucratic machinery of central government inevitably causes many grievances and complaints. If something is illegal is done administrative law can supply a remedy, though the procedure of the courts is too formal and expensive to suit many complaints. But justified grievances may equally arise from action which is legal, or at any rate not clearly illegal, when a government department has acted inconsiderately or unfairly or where it has misled the complainant or delayed his case excessively or treated him badly Wade 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

Office
Ombudsman David McGee Independent officers

History
Ombudsman = grievance person Post established under the Parliamentary Commissioner (Ombudsman) Act 1962

Mandate = investigate complaints about the actions of government departments and other national public sector organisations.

History
In 1975 number of Ombudsmen expanded Jurisdiction extended some complaints reallocated

Redress and improve standards


Investigate when official information requests are denied Protected Disclosures Act 2000 Extended into Banking and Insurance

Ombudsman
to afford the ordinary citizen some kind of hearing and redress in a simple inexpensive and direct fashion when allegedly dealt with adversely by the actions of a large and remote government bureaucracy. The traditional means of redress raising matters through the local Member of Parliament or to obtain judgement through the Courts proved to be less than feasible than when originally envisaged A Satyanand 1999

Ombudsman
the role is clearly one of addressing citizens complaints about public sector administration, and looking at systemic issues which militate against good administrative practice. It is also one of promoting transparency and ensuring that citizens have adequate access to information B Wakem 2009

Legislation
Parliamentary Commissioner (Ombudsman) Act 1962 1968, the Ombudsmans jurisdiction was extended to include education, hospital boards, local government agencies Ombudsmen Act 1975 local govt agencies

Official Information Act 1982 - Ministers

Legislation
Local Government Official Information and Meetings Act 1987 Protected Disclosures Act 2000

Crown Entities Act 2004 complaints against Privacy Commissioner


Expanding jurisdiction

Legislation
The powers and functions of the Ombudsmen are contained in five main pieces of legislation: Ombudsmen Act 1975;

Official Information Act 1982;


Local Government Official Information and Meetings Act 1987; Crimes of Torture Act 1989; and Protected Disclosures Act 2000.

Ombudsman Act 1975


it shall be a function of the Ombudsmen to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the departments or organisations named or specified... or by any committee (other than a committee of the whole) or subcommittee of any organisation named or specified or by any officer, employee, or member of any such department or organisation in his capacity as such officer, employee, or member. Complaints under Ombudsman Act comprise 60% workload

Functions
Investigate and report on complaints made by members of the public Investigate and report (at their own initiative) any administrative decision, recommendation, act or omission of government department, related organisations Investigate and report on any petition before a Committee Investigate and report on any matter

Who can be investigated?


Government Departments Ministeries e.g. Education Organisations TVNZ, Civil Aviation

Local Authorities District Councils


First Schedule Ombudsmen Act 1975

Process
Letter of Complaint Reviewed No alternative remedies Yes investigated provisional view Department notified comments considered

Final opinion

Process
Recommendations not (generally) binding Has no power to compel an agency to accept a recommendation.

However, most recommendations are usually accepted by agencies.


If a recommendation is not accepted, an Ombudsman may decide to report the matter to Parliament. Costs - free

Process
Ombudsmen may conclude that a decision was unfair because:
Contrary to law Unreasonable, unjust, oppressive or discriminatory Made under a rule of law, statute, regulation, by law or practice that is unreasonable, unjust, oppressive or discriminatory Based on a mistake of law Wrong

Section 22 (1) Ombudsmen Act 1975

Referral of Complaints
Complaint related to: Privacy Act Health and Disability Commissioner Act Inspector General of Intelligence and Security Act Consults with relevant Commissioner to determine appropriate process Complainant is then notified

Time Frames
as soon as reasonably practicable 20 working days Prioritising system 6 months

Recommendations
When an unfavourable view of a decision is reached they can recommend:
The matter should be considered further by the appropriate authority The decision should be cancelled or varied The practice on which the decision was based should be altered The law decision was based should be reconsidered Reasons should have been given for the decision Other steps should be taken

Section 22(3) Ombudsmen Act 1975

Recommendations
Non binding exception in respect of the OIA 1982 jurisdiction when recommendations create a public duty Status recommendations generally adopted Investigation often a catalyst to settle dispute particularly if the report is not favourable Settlements can include financial redress which may not have been achieved through judicial review or declaratory judgement

Process
After the investigation the Ombudsman
May require publication of any report Must advise the complainant of the outcome of the investigation, and where any recommendation is not acted upon within a reasonable time the Ombudsman must advise the complainant of the recommendation and can make such comments about the matter as he thinks fit

Proceedings before the Ombudsman cannot be challenged or reviewed except for lack of jurisdiction

Ombudsman Act Issues


Prison Deaths self mutilation Physical conditions UN rules

Other Ombudsman
Police Complaints Authority Health Commissioner Bill Conciliation and mediation Privacy Commissioner Banking Ombudsman

Ombudsman
independence in decision making is reinforced by freedom from conflict of interest freedom from allegiance to executive government freedom from influence by special interest groups and freedom to impartially and independently assimilate facts and draw conclusions. Gilling Acts as a check on the power of government Provides independent scrutiny of government decisions by having full access to the relevant information and the ability to publicise incorrect decisions that affect individuals

Ombudsman
[The OIA] requires [the Chief Ombudsman] to exercise his judgment using experience and accumulated knowledge Parliament delegated to the Chief Ombudsman tasks the Courts will only intervene when the Chief Ombudsman is plainly and demonstrably wrong and not because he preferred one side against another. Gilling

Operational Ethos
NZ Ombudsmen have broadened their approach from concentrating on the investigation and redress of complaints against the administration to embrace the promotion of good public administration practice. They seek to engender an attitude of positive compliance (rather than the negativity associated with fault finding) encouraging better systems and procedures within organisations. Their reports and case notes comprise a body of ombudsman law which guides the work and attitudes of officials, a valuable protection against failure flawed decision making. They have tried to be responsive to the publics need by providing a process that is direct, informal, speedy and cheap Gilling

Critique?
The Ombudsmen are a much under-utilised resource, particularly by members of the legal profession who have clients experiencing difficulties with agencies of government. The ombudsmen are effective and cheap in dealing with wrongs, and settling wrongs to right yet still less than 10 per cent of complaints received come through lawyers. Still case numbers have remained relatively high, and their efficient and timely management has been an administrative priority Gilling

Critique?
The Ombudsmen has no power to alter decisions: they simply investigate and report on them. Nonetheless, the process of investigation itself, the power of the office, the capacity to report to Parliament, and the publicity given to the reports exert a considerable influence in righting administrative injustices and changing the way in which officials approach some tasks Palmer & Palmer Bridled Power

Who guards the Guardians?


The public issue at stake was the executives ability to control all other elements of government. The Ombudsmen were officers of Parliament, the legislatures watchdogs over executive actions. Yet their appointment process depended on the government of the day, which, if it wished, could readily engineer the removal of an inconvenience in this case by mere failure to act combined with a refusal to justify its decision Gilling

Who guards the Guardians?


If the present system of appointment is maintained, this must test the constitutional integrity of the government holding office for the time being. Should it take no action to nominate for reappointment it is inevitable that speculation will occur about the governments motives. It is likely to be accused of abusing its power to remove an Ombudsman who has displeased it in the regulation of complaints against it. Failure to explain its reasons for non reappointment will certainly give fuel to such speculation Report of the Ombudsmen for the Year

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 relevant information and the ability to publicise erroneous decisions that affect individuals

Future
Ombudsman Law Commission Report findings Legislative change to reflect current environment? How would this affect the role of the Ombudsman? Binding recommendations? Greater funding? Power imbalance? role of the Courts?

Ombudsman - Examples
http://tvnz.co.nz/national-news/overstayers-givenbreak-after-being-unfairly-treated-video-4002555 http://tvnz.co.nz/breakfast-news/bullyingprogrammes-should-they-compulsory-9-00-video4391829/video http://tvnz.co.nz/business-news/amp-brief-maichen-video-4400679/video