OMBUDSMAN

The office of Ombudsman was created in New Zealand in 1962. The name, like the office, originated in Sweden and literally means an attorney or representative. The usual, though less meaningful translation, is “Commissioner”. The Ombudsman is an officer of Parliament appointed by the Governor-General on the recommendation of the House of Representatives for a term equal to the life of a Parliament (usually three years). His principal function is to investigate complaints concerning administrative acts, decisions, and recommendations of Government Departments and certain other Government organisations. Decisions of Courts and administrative tribunals on the one hand and matters of policy on the other are outside his province. Nor has he any power in respect of the acts and decisions of local authorities, a fact that some have criticised.

In New Zealand, as elsewhere, there has been an increasing intervention by the State in the lives of its citizens. Few spheres of activity are unaffected by the exercise of administrative powers. Although this has brought benefits it has increased the opportunity for abuses, not necessarily deliberate, by the officials who wield these powers. Where administrative actions are illegal or without authority, recourse to the Courts gives an adequate remedy. Some decisions are made judicially by administrative tribunals, often with a right of appeal. In a few cases an administrative decision may be taken to Court on appeal, or to a special tribunal. There has hitherto been no adequate means, however, of reviewing on their merits most lawful acts or decisions in the ordinary course of administration. The only redress was political – to appeal to the Minister, seek the intervention of a member of Parliament, or petition Parliament. These were, and will continue to be, useful methods of redress, but for various reasons they are not always adequate.

Those seeking a solution to the problem turned to the law of some European countries which have machinery to remedy administrative errors and injustices. France has in the Conseil d' Etat something like an administrative Court to control the use of administrative powers. Sweden, since 1809, and Denmark, since 1954, have taken a different approach, and it was the Danish system that found favour in New Zealand. The new legislation resembles its Danish model in general approach and in many details.

The Ombudsman may investigate a matter on written complaint or on his own motion. A Parliamentary Committee may refer a petition to him for report. He cannot investigate a Minister's decision directly, but may investigate a Department's recommendation to its Minister. Certain acts and decisions, notably where the law already gives a right of appeal or review on the merits, are excluded. The Ombudsman has, moreover, a discretion in certain other cases not to investigate, for instance, if the complaint is delayed, trivial, or vexatious, or if the complainant has an insufficient personal interest in the matter.

Investigations are conducted in private. They are informal, but no adverse report may be made on anyone unless he has been heard. The Ombudsman may enter Government premises, examine files and papers, and obtain oral information on oath. Documents may be withheld only in exceptional cases, as, for example, where national security is involved. If the Ombudsman concludes that the act, decision, or recommendation in question was unlawful, unreasonable, or unfair, or was based on an unreasonable or unfair law or practice or on a mistake, or that a power has been used improperly, or that reasons for a decision should have been given, he will report to the Department or organisation concerned and recommend appropriate action. If his recommendation is not carried out, and he is still unsatisfied, he may report to Parliament. It is a principle of the legislation that the Ombudsman has no power himself to compel anything to be done or to alter a decision. His function is to recommend and report, leaving it to the Minister, if he wishes, to defend the act or decision in Parliament. The constitutional principle of ministerial responsibility is thus preserved.

It is too early to judge the success of this experiment in New Zealand. The standard of the Public Service is high. Already it is plain that, as in Denmark, most complaints are without foundation, but the correction of even a few injustices will be worth while. The Ombudsman's principal potential value, moreover, is the public's knowledge that a searching and impartial inquiry will be made into their grievances.

by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.