Office of the Ombudsman

Tari o te Kaitiaki Mana Tangata

Not a game of hide and seek The Chief Ombudsman’s perspective on our areas of jurisdiction including Immigration, and our ideas for the future and for change

Presentation to: The Petone Citizens Advice Bureau

Judge Peter Boshier Chief Ombudsman

26 May 2016

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Today’s Session

1. Jurisdiction.

2. Official Information Act and our “Own Motion Report”.

3. Ombudsmen Act: our ability to investigate.

4. Protected Disclosures Act and the Crimes of Torture Act.

5. The present problem and changes afoot.

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About us

• We are currently funded for 82 staff and that number is shortly to be increased to 91.

• Our staff work over three offices, in Auckland, Wellington and Christchurch.

• In the 2014/15 financial year, we received 12,151 complaints and other work.

• This included 2,304 complaints and 7231 inquiries about administrative actions under the Ombudsmen Act, 1090 OIA complaints and 240 Local Government Official Information and Meetings Act (LGOIMA) complaints.

• In the last 5 years there has been a steady increase of approximately 40% of complaints and other work.

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Jurisdiction

• The Ombudsmen Act.

• The Official Information Act (OIA).

• The Protected Disclosures Act (PDA).

• The Crimes of Torture Act (COTA).

• The Land Transport Act.

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Official Information Act

• The principle underlying the OIA is that the official information held by an agency must be made available to the requester unless there is good reason for withholding it.

• The Act sets out timeframes.

• Reasons for refusing include administrative (section 18), conclusive (section 6), and other reasons (section 9).

• A request must be directed to agency in the first instance.

• Our involvement is generally triggered by a complaint.

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OIA own motion investigation

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Public sector agencies assisting the Ombudsman

• Accident Compensation Corporation • Department of Corrections • Ministry of Education • Ministry of Foreign Affairs and Trade • Ministry of Health • Ministry of Justice • New Zealand Customs Service • New Zealand Defence Force • New Zealand Transport Agency • Ministry of Social Development • Ministry of Transport • State Services Commission

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Key areas the OIA review considered

1. Leadership and culture

2. Organisation structure and capability

3. Policies, systems and resources

4. Performance monitoring and learning

5. Current practices

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Leadership and culture

To increase progressively the availability of official information to the people of New Zealand in order to enable their

more effective participation and to promote the accountability of Ministers and officials... And to promote the good

government of New Zealand. [Section 4]

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Organisation structure & capability

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Organisation structures and capability

• OIAs were sometimes considered a poor cousin.

• There are often multiple gateways for accessing information.

• Media responses were often processed and responded to in a diverse way.

• Many agencies were not recognising and counting requests.

• The level of the OIA unit within an agency often impacted on the quality of responses.

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Policies, systems and resources

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Policies, systems and resources

• The Ombudsmen encourage agencies to develop policies and resources to assist staff to meet the requirements of the OIA consistently.

• However it is also important that an agency’s policies and procedures are not so complicated or so risk adverse that they impact detrimentally on its ability to comply with the OIA.

• A number of the 12 agencies had comprehensive but user friendly policies, with a common gap being ensuring responses to media inquiries

managed to comms teams complied with the OIA.

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Performance monitoring

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Performance monitoring and learning

• ensure consistent decision making on requests;

• understand what the public and key stakeholders are

really interested in (and where proactive release could

be used to reduce an agency’s workload);

• identify any compliance issues and gaps in any policies

and procedures before an Ombudsman (or the media or

a minister) does.

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Current practices

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Current practices

• Volume is clearly and issue.

• Charging is rarely used.

• Consultation with the requester is also sporadic.

• Refusal on the basis of substantial collation and

research seems to be reluctantly applied.

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Other considerations

• Media environment.

• Political environment.

• No surprises policy.

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Conclusion: OIA report

• If the OIA is to achieve its purpose and continue

to be effective, it needs to be used properly by

everyone – agencies, politicians, the media,

special interest groups, and the public.

• As part of the follow up to this investigation, we

will be publicising league tables ranking agency

compliance with the OIA.

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Ombudsmen Act

• We can investigate the actions and omissions of state sector

agencies affecting people in their personal capacity.

• It is a wide jurisdiction and applies to Government Departments,

Councils, Crown entities, School Boards of Trustees and their

employees.

• Our jurisdiction is either triggered by a complaint or an “own

motion”.

• Our process is inquisitorial.

• In some instances we are jurisdictionally barred.

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Examples: Immigration

The complainant was not informed of his right to

contact a lawyer when he was served with a

removal order and detained by the Police under

the Immigration Act. The then Chief Ombudsman

Dame Beverley Wakem formed the opinion that

INZ was required to take reasonable steps to

ensure that the complainant was aware of his

rights to representation with respect to his

immigration matters.

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Incorrect exclusion of complainant for eligibility for visa

The complainant applied for a residence class visa

under the partnership category. His application

was declined on the basis that he was ‘likely to

commit an offence in New Zealand that is

punishable by imprisonment’ for the purposes of

section 16(1)(a)(i) of the Immigration Act. This

rendered him an ‘excluded person’ under the

Immigration Act, with no right to appeal to the IPT.

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Protected Disclosures and Crimes of Torture

• Protected disclosures (PDA) provides protections for

persons who disclose serious wrongdoing in their

workplace.

• Ombudsmen are designated as ‘national preventive

mechanism’ under the Crimes of Torture Act.

• We monitor detainees in 18 prisons, 79 health and

disability places of detention, 1 immigration detention

facility, 4 child care and protection residences, 5 youth

justice residences.

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Management: the Current Situation

Over 12 months: 696 - 39%

9-12 months: 220 - 12%

6-9 months: 273 - 15%

3-6 months: 181 - 10%

0-3 months: 429 - 24%

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The Future

9-12 months: 5%

6-9 months: 10%

3-6 months: 15%

0-3 months: 70%

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Key points for our changes

• Emphasis on frontline assistance and dispute resolution.

• Establishment of a Backlog Team.

• Establishment of Agency Outreach Team.

• More modern systems particularly operating electronically.

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Resources Available

The Ombudsman produce a number of resources to assist agencies in dealing with OIA requests:

Website: www.ombudsman.parliament.nz • Guides • Opinions • Case notes • Annual Reports • OIA working day calendar • Trouble-shooters guide • FAQs

Free-phone: 0800 802 602

Ombudsman’s Policy & Professional Practice Advisory Group

Office of the Ombudsman

Tari o te Kaitiaki Mana Tangata

Not a game of hide and seek The Chief Ombudsman’s perspective on how the OIA is operating and some new ideas

Presentation to: The Petone Citizens Advice Bureau

Judge Peter Boshier Chief Ombudsman

26 March 2016