admin lect 1415 - ombudsman
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Administrative Law
Lecture 15
Ombudsman/OIA
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Outline
Office of Ombudsmen
History
Role
Responsibility
Process
Examples
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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 attractappropriate 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 onhow effective are the provisions of the OIA?
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Administrative law
Administrative law promotes the ideal ofgovernment according to law through the
processes of judicial review and is pre-eminentlyconcerned with the legality of public decision-
making. Joseph, p1
Judicial review
Alternative avenues for complaint
Ombudsmen
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Complaints against
Administration
The administration of so many services and controlsunder the vast bureaucratic machinery of centralgovernment inevitably causes many grievances and
complaints. Ifsomething is illegal is doneadministrative law can supply a remedy, though theprocedure of the courts is too formal andexpensive to suit many complaints. But justifiedgrievances may equally arise from action which is
legal, or at any rate not clearly illegal, when agovernment department has acted inconsideratelyor unfairly or where it has misled the complainant ordelayed his case excessively ortreated him badlyWade 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
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Office
Ombudsman
David McGee
Independent officers
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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.
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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
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Ombudsman
to afford the ordinary citizen some kind ofhearing and redress in a simple inexpensive and
direct fashion when allegedly dealt withadversely by the actions of a large and remotegovernment bureaucracy. The traditionalmeans of redress raising matters throughthe local Member of Parliament or to obtain
judgement through the Courts proved to beless than feasible than when originally
envisaged A Satyanand 1999
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Ombudsman
the role is clearly one ofaddressing citizens
complaints about public sector administration,
and looking at systemic issues which militateagainst good administrative practice. It is also one
of promoting transparency and ensuring that
citizens have adequate access to information B
Wakem 2009
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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
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Legislation
Local Government Official Information and
Meetings Act 1987
Protected Disclosures Act 2000
Crown Entities Act 2004 complaints against
Privacy Commissioner
Expanding jurisdiction
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Legislation
The powers and functions of the Ombudsmen arecontained in five main pieces of legislation:
Ombudsmen Act 1975;
Official Information Act 1982;
Local Government Official Information and MeetingsAct 1987;
Crimes of Torture Act 1989; and
Protected Disclosures Act 2000.
http://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/1989/0106/latest/DLM192818.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.htmlhttp://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.htmlhttp://www.legislation.govt.nz/act/public/1975/0009/latest/DLM430984.html -
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Ombudsman Act 1975
it shall be a function of the Ombudsmen toinvestigate any decision or recommendation made, orany act done or omitted, whether before or after thepassing of this Act, relating to a matter of
administration and affecting any person or body ofpersons in his or its personal capacity, in or by any ofthe departments or organisations named or specified...or by any committee (other than a committee of thewhole) or subcommittee of any organisation named orspecified or by any officer, employee, or member of
any such department or organisation in his capacity assuch officer, employee, or member.
Complaints under Ombudsman Act comprise 60%workload
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Functions
Investigate and report on complaints made bymembers of the public
Investigate and report (at their own initiative) anyadministrative decision, recommendation, act oromission of government department, relatedorganisations
Investigate and report on any petition before aCommittee
Investigate and report on any matter
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Who can be investigated?
Government Departments Ministeries e.g.
Education
Organisations TVNZ, Civil Aviation
Local Authorities District Councils
First Schedule Ombudsmen Act 1975
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Process
Letter of Complaint
Reviewed
No alternative remedies
Yes investigated provisional view
Department notified comments considered
Final opinion
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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 Ombudsmanmay decide to report the matter to Parliament.
Costs - free
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Process
Ombudsmen may conclude that a decision wasunfair because:
Contrary to law
Unreasonable, unjust, oppressive or discriminatory
Made under a rule of law, statute, regulation, by lawor practice that is unreasonable, unjust, oppressiveor discriminatory
Based on a mistake of law Wrong
Section 22 (1) Ombudsmen Act 1975
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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
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Time Frames
as soon as reasonably practicable
20 working days
Prioritising system
6 months
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Recommendations
When an unfavourable view of a decision is reachedthey 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 bealtered
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
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Recommendations
Non binding exception in respect of the OIA1982 jurisdiction when recommendations createa public duty
Status recommendations generally adopted
Investigation often a catalyst to settle disputeparticularly if the report is not favourable
Settlements can include financial redress whichmay not have been achieved through judicialreview or declaratory judgement
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Process
After the investigation the Ombudsman
May require publication of any report
Must advise the complainant of the outcome of theinvestigation, and where any recommendation is notacted upon within a reasonable time theOmbudsman must advise the complainant of therecommendation and can make such commentsabout the matter as he thinks fit
Proceedings before the Ombudsman cannot bechallenged or reviewed except for lack of
jurisdiction
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Ombudsman Act Issues
Prison
Deaths self mutilation
Physical conditions
UN rules
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Other Ombudsman
Police Complaints Authority
Health Commissioner Bill
Conciliation and mediation
Privacy Commissioner
Banking Ombudsman
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Ombudsman
independence in decision making is reinforced byfreedom from conflict of interest freedom fromallegiance to executive government freedom from
influence by special interest groups and freedom toimpartially and independently assimilate facts anddraw conclusions. Gilling
Acts as a check on the power of government
Provides independent scrutiny of governmentdecisions by having full access to the relevantinformation and the ability to publicise incorrectdecisions that affect individuals
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Ombudsman
[The OIA] requires [the Chief Ombudsman] to
exercise his judgment using experience and
accumulated knowledge Parliament delegatedto the Chief Ombudsman tasks the Courts willonly intervene when the Chief Ombudsman isplainly and demonstrably wrong and not becausehe preferred one side against another. Gilling
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Operational Ethos
NZ Ombudsmen have broadened their approach fromconcentrating on the investigation and redress ofcomplaints against the administration to embrace thepromotion of good public administration practice. Theyseek to engender an attitude of positive compliance(rather than the negativity associated with fault finding)encouraging better systems and procedures withinorganisations. Their reports and case notes comprisea body ofombudsman lawwhich guides the workand attitudes of officials, a valuable protection againstfailure flawed decision making. They have tried to beresponsive to the publics need by providing aprocess that is direct, informal, speedy and cheapGilling
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Critique?
The Ombudsmen are a much under-utilisedresource, particularly by members of the legal
profession who have clients experiencingdifficulties with agencies of government. Theombudsmen are effective and cheap indealing with wrongs, and settling wrongs to right
yet still less than 10 per cent of complaints
received come through lawyers. Still casenumbers have remained relatively high, and their
efficient and timely management has been an
administrative priority Gilling
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Critique?
The Ombudsmen has no power to alterdecisions: they simply investigate and report on
them. Nonetheless, the process of investigationitself, 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
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Who guards the Guardians?
The public issue at stake was the executives
ability to control all other elements of
government. The Ombudsmen were officers ofParliament, the legislatures watchdogs overexecutive actions. Yet their appointmentprocess depended on the government of theday, which, if it wished, could readily engineer
the removal of an inconvenience in this case bymere failure to act combined with a refusal to
justify its decision Gilling
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Who guards the Guardians?
If the present system of appointment is maintained,
this must test the constitutional integrity of thegovernment holding office for the time being. Should it
take no action to nominate for reappointment it isinevitable that speculation will occur about the
governments motives. It is likely to be accused ofabusing its power to remove an Ombudsman whohas displeased it in the regulation of complaintsagainst it. Failure to explain its reasons for nonreappointment will certainly give fuel to such
speculation Report of the Ombudsmen for the Year
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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 relevantinformation and the ability to publicise erroneous
decisions that affect individuals
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Future
Ombudsman
Law Commission Report findings
Legislative change to reflect current environment?
How would this affect the role of theOmbudsman?
Binding recommendations?
Greater funding?
Power imbalance? role of the Courts?
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Ombudsman - Examples
http://tvnz.co.nz/national-news/overstayers-given-
break-after-being-unfairly-treated-video-4002555
http://tvnz.co.nz/breakfast-news/bullying-programmes-should-they-compulsory-9-00-video-
4391829/video
http://tvnz.co.nz/business-news/amp-brief-mai-
chen-video-4400679/video
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