ANZOA CONFERENCE 2010
The Ombudsman point of difference
in effective dispute resolution
Presentation by Leo Donnelly, Deputy Ombudsman
May 6 2010
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Introduction
The topic I was asked to speak on today was Resolution tools in the
Ombudsman tool box. Given the limited time available, I have decided to focus
on the second sub-heading – the Ombudsman point of difference in effective
dispute resolution.
This year will be my 25th anniversary of working at the New Zealand Office of
the Ombudsmen. In that time, the Office has considered over 130,000
complaints about the administrative acts and decisions of state sector
agencies that affected members of the public.
Since 1984, I have seen complaints dealt with in a variety of ways. The
difference can depend upon a number of factors, such as:
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the particular issue giving rise to the complaint;
the complainant’s views on what would be a satisfactory
resolution for them;
the attitude of the agency involved;
our Office’s capacity and resources;
the particular Ombudsman’s preferred policy or approach; and
what, if any, trends or systemic issues the complaint exposes.
Some issues or areas of complaint have remained constant throughout the
years. New issues and problems have also continued to emerge, often as a
result of changes in government policy or a shift in the way the state sector is
structured and operating.
While the facts of the case may change, the approach to achieving resolution
may differ and the remedies may vary, the ultimate outcome for the
Ombudsman has always remained the same throughout these 25 years - and
that is for the New Zealand public to have trust and confidence in a fair,
responsive and accountable government. The ability of the public to pursue an
issue or raise a concern they may have about a matter of administration
exercised by their Government is one way of ensuring this is so.
The Ombudsman is a very flexible, low cost mechanism that the public can
access to seek redress. It is my view, that the width of the Ombudsman’s
jurisdiction makes it particularly effective because it enables a “wrong to be put
right” in a number of ways, such as:
 investigating the individual complaint;
 investigating a suspected systemic problem; or
 providing advice and guidance to bring about a measure of culture
change.
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So how different is the Ombudsman from other dispute resolution
mechanisms? I think in the eyes of the public, the most recognisable role of
the Ombudsman is that of performing functions similar to those of the courts
and tribunals. When our Governor-General, Anand Satyanand, was New
Zealand’s Ombudsman he would often refer to his earlier experiences as a
District Court Judge in his speeches and presentations. In particular, I recall
that he would observe that:
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as a judge, he had wide powers but a limited jurisdiction; whereas
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as an Ombudsman, he had a wide jurisdiction but limited powers.
When handling an individual case, a Judge is at the centre of an adversarial
contest, generally between two parties. The Judge has a set jurisdiction, the
parameters of which are set by legislation, the rules of evidence and
procedure. Judges have the legal authority to wield power. They can order
sanctions such as sentences or fines or make certain orders if the grounds
are made out by one of the parties. The adversely affected party then,
generally, has a right of appeal. By comparison an Ombudsman has an
unlimited jurisdiction to search and find and confirm in an inquisitorial fashion,
what happened and why. Investigations are normally conducted in
correspondence, by face to face and telephone interviews, rather than in the
adversarial environment of a courtroom. They lack the formality and legalism
that characterises the legal process. Ombudsmen’s findings are not confined
to strict judicial precedent. Instead, the conclusions reached, are founded on
what an Ombudsman considers to be just and reasonable in the particular
circumstances of the case - informed by principle of course - but far less
legalistic than the judgment of a court or tribunal.
Statutory Ombudsmen have sometimes been described as ‘toothless tigers’
because they can only make non-binding recommendations and therefore
have to rely on their ability to persuade parties to accept and implement them.
It is true that the remedy recommended by an Ombudsman may not always
be enforceable against the agency by the complainant and I can certainly say
from my own experience, that this has provided us with a challenge to ensure
that the quality of our investigations and recommendations is such that the
parties will be persuaded to accept them as tolerable and workable, even if
they would not have been their preferred choice of outcome.
To increase our chances in this regard, we have included a provisional view
step in our investigation process. I am aware that in some jurisdictions,
provisional views are not given. As the head of professional practice in our
office, I consider this to be a key step in our ombudsman investigation
process. It ensures fairness and enables all parties to be confident that they
have had the opportunity to comment before the Ombudsman’s final view is
formed.
The Ombudsman’s style of enquiry and inability to make binding
recommendations means the final views and recommendations they make
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must be relevant, flexible and appropriate to the parties circumstances. Over
25 years, I have seen the New Zealand state sector agencies’ circumstances
change quite dramatically. And so too, have the approaches the Ombudsmen
have taken to achieve satisfactory resolution for complainants.
I will use our Freedom of Information legislation for example. It has a 20
working day time limit for an agency to respond to any request for official
information unless otherwise properly extended. The moment this legal
timeframe is breached our Act deems the request to have been refused by the
agency and it is open to the requester to complain to the Ombudsman.
We know that at the heart of these delay complaints we receive, is a desire by
the requester to actually receive an answer or decision from the agency,
(preferably in favour of access). So our approach to these complaints was
originally to take the informal route i.e. Investigators would:
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give the agency a call;
find out if a response was on its way;
obtain an undertaking from the agency as to when the response
could be expected;
and then cease enquiries to let agency get on with it.
That worked for a long time. And complainants were for the most part
satisfied. But there was a bigger problem brewing that no one was paying
any attention to our informal approach meant each complaint was considered
an individual anomaly within an agency’s system. Chief Executives were
never put on notice that their Department may have a key problem in their
process or system for dealing with official information requests. And if they
weren’t advised, then they couldn’t be expected to take steps to prevent
further problems occurring.
So everyone carried on none the wiser.
Individual complaints were dealt with individually. No one really paid much
attention to the bigger picture.
Also, because there was no incentive for the agency to make sure delays
didn’t happen again, we started to find that officials were becoming more and
more relaxed about processing requests for official information properly. As
a result, we found complaint numbers about delays were rising, agencies’
promises or undertakings were no longer being met and we weren’t being
effective in resolving these sorts of complaints anymore. Our informal
approach to resolving individual complaints was therefore no longer working.
We have now had to move to the formal option of resolving these types of
complaints. That means that if the Ombudsmen get a complaint about delay in
responding to a request for official information, they will conduct a full formal
investigation every time - and it’s done under urgency as a priority case
because access rights are at issue. If, as a result, they find that the agency
didn’t use the tools in the Act as they should have – (such as extending the
time limit or transferring the request to the right agency), the Chief Executive
will be advised that the Ombudsman has found that their Department has
acted contrary to law. The relevant Minister is also advised.
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The Ombudsman’s recommendations will usually be that:
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a decision should be made and communicated to the requester as a
priority;
the agencies’ policies and processes should be reviewed; and
staff should be reminded of their statutory obligations and trained
where necessary.
If individual complaints continue to be received about delays from the same
agency, this would indicate a systemic problem that is open to an
Ombudsman to investigate of their own motion.
This ability to change approaches from the informal to formal to achieve a
different, more effective resolution and address a bigger problem that may be
going on, is a key point of difference the Ombudsmen have to other dispute
(or grievance) resolution mechanisms such as a court or tribunal. While it can
be emotionally satisfying for both the investigator and complainant to resolve
the individual grievance and simply blame an individual official for what
happened, human error does happen and as James Reason said:
“we cannot change the human condition but we can change the
conditions in which humans work.”
You will note from this slide that the Ombudsman’s recommendations are not
limited to simply addressing the individual grievance.
They are also
attempting to affect a degree of future prevention by correcting the specific
maladministration that may have given rise to the particular complaint in the
first place.
The grievances that citizens bring to Ombudsmen put them on notice of
where things are going wrong and indicate where improvement is most
needed.
An Ombudsman’s recommendation for remedial action in a particular case
can, and in my view should wherever possible, include a prescription for a
change of behaviours and systems within an agency to reduce the likelihood
of repeated mistakes and promote good practices.
----------------------------------------------------------------Here’s another example of how the Ombudsman is able to “put right a wrong”
that caused a human tragedy to occur. This is Liam Ashley.
Some of you may have heard of him already. In 2006, when he was 17, his
parents pressed criminal charges against him after he used his mother's car
without permission. The parents denied bail so that he would be sent to
prison for 2 weeks “to understand and experience the serious effects of
breaking the law”
They thought this would be a way of correcting his
behaviour and preventing him from getting into more serious trouble in the
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future. A form of “tough love” if you will. Liam’s parents believed that the
prison system would be a reasonably safe place for him. Unfortunately he
never made it to the prison.
Upon leaving court, the prison authorities handcuffed the 17 year old to an
adult prisoner, George Baker who was known to be dangerous and violent.
Once locked in the van and on his way to Auckland Central Remand Prison at
Mt Eden, Liam was attacked by Baker who strangled and stomped on him.
Liam subsequently died of brain injuries.
A number of inquiries took place (by the Police, the Department of Corrections
and the Coroner and by the security company contracted to transport
prisoners).
The Chief Ombudsman and Ombudsman at the time decided that rather than
investigate the incident itself as well, they would commence an investigation
of their own motion into prisoner transport to determine whether the conditions
were safe, secure and humane. In other words, the Ombudsmen reviewed the
Department’s system for prisoner transport
This included examining:
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the policies and procedures for transporting prisoners;
the contracts for doing so;
the vehicle fleet used; and
the drivers and their level of training.
They found many deficiencies and gaps throughout the system, which not
only allowed the Liam Ashley incident to happen in the first place but also
provided many opportunities for similar incidents to take place again in the
future.
The Ombudsman issued their findings and over 40 recommendations for
improvement. The Department accepted all the recommendations and
implementation of these is now underway.
This type of systemic inquiry is another distinguishing point of difference of the
Ombudsman’s grievance resolution process. An individual complaint, an
individual tragedy can form a very important basis for a wider investigation
into a particular system.
If Ombudsmen only confine themselves to investigating individual cases upon
receipt of a complaint (like a court or tribunal does), they often only achieve
an outcome just for that individual. But if they can see that there may be
many other individuals who could also suffer if the system does not change
and better practices aren’t put in place, they may be able to prevent those
grievances or disputes from even happening by commencing targeted
investigations into the system of their own motion, aimed at achieving longterm improvement and future prevention.
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Culture change
The final feature or point of difference I want to mention today in terms of the
Ombudsman as a mechanism for “putting right a wrong” is one which the
Victorian Ombudsman, George Brower, referred to in his speech at the
Inaugural ANZOA Conference in 2008. He said,
“if an Ombudsman only considers himself or herself primarily
concerned with …individual complaints handling…the office is not
realising its full potential. …
The Ombudsman has three levels of functioning—complaints handling,
achieving the systemic change, but even perhaps more radically, trying
to bring about a measure of cultural change.“
Culture change is about improving not only how an individual agency
operates, but extends to the functioning of the state sector as a whole so that
it operates consistent with core democratic principles such as transparency,
accountability and adequate public participation.
From my perspective of spending 25 years assisting 10 different Ombudsmen
in large and small investigations, there is no doubt in my mind that the
Ombudsman has the ability to bring about culture change in a way that other
dispute resolution mechanisms cannot.
Their wide jurisdiction provides them not only with a unique overview of an
individual agency and how it is operating but also of how the state sector as
whole is working.
In New Zealand, the shape of our government is changing radically at the
moment:
 Local government in Auckland is undergoing reorganisation - with the
eight current regional and territorial authorities now moving towards a
single, unitary council for the entire Auckland region;
 A number of smaller central government agencies are also about to
be abolished or amalgamated into larger ones;
 There is a marked increased in the use of public-private partnerships
and the private sector delivery of public services; and
 Multiple agencies are working together on developing policies and
programmes to support key government initiatives
All these changes will, one way or another, affect the New Zealand public.
Individuals will have expectations about:
 the level of service they are entitled to receive from these agencies;
 the degree of transparency and accountability that should exist in
respect of the policy and decision-making that is underway; and
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 the extent to which they should be able to have a say, and influence
the policy/decision-making processes involved.
If any of their expectations are not met, they are likely to complain to the
Ombudsmen.
If this was happening 25 years ago when I had first began at the Office, the
classical Ombudsman would stand back and wait, like the ambulance at the
bottom of the cliff for the complaints to come, wait until there was a need for
an own motion investigation into a systemic problem that had arisen.
But the risks are already there to be seen:
 there are people and private companies working on these initiatives
who are new to public service delivery standards and transparency
and accountability frameworks;
 information is being created all the time, and then used and shared for
multiple purposes across many agencies;
 both the public and officials will need to come to grips with new
policies and processes; and
 transitional difficulties and disruptions to service are likely to occur.
Compounding this is the fact that it is all happening in a dynamic electronic
environment, where individual agencies are developing processes and
systems, creating and keeping records, making decisions on an ad hoc,
inconsistent basis.
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The modern Ombudsman however, does have the option to become involved
now and work with agencies to ensure the culture change is one which not
only:
 prevents the individual grievance from occurring wherever possible;
but also
 protects the bureaucracy;
 promotes a culture of integrity; and
 enhances the trust and confidence the public have in a fair and
responsive government.
As Western Australian Ombudsman Chris Field noted at the Asia Pacific
Ombudsmen Regional meeting I attended last month:
“creating a culture of integrity requires a range of different approaches
– governance frameworks, audits, oversight, investigation and
prosecution, cultural awareness, incentives, disincentives, regulation
and education are a few that come to mind.”
I agree. In New Zealand’s current dynamic environment, the Ombudsman
can:
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 advise agencies on keeping good quality records and data on the
policies and practices in development which is readily accessible;
 provide clear consistent guidelines; and
 encourage planning for the proactive disclosure of official information
about these government initiatives,
so that transparency, accountability, and fair and responsive government is
maintained. We are doing just that.
Conclusion
So in conclusion, the Ombudsman’s point of difference in dispute resolution is
manifold. It can be a mechanism for fast, flexible, low cost resolution of
individual complaints by way of an inquisitorial investigation.
These
investigations can result in remedying a specific problem, improving
processes and systems or changing a policy or piece of legislation. It is a
very flexible mechanism for “righting a particular wrong” that has occurred.
While the Ombudsman’s principal role is to receive and resolve individual
complaints, and occasionally examine systemic issues, the width of the
Ombudsmen’s jurisdiction provides it with a unique overview of the state
sector and how it is operating. In recent times, this has enabled the modern
New Zealand Ombudsman to exercise a proactive role, engaging with the
government to ensure that:
 a culture of integrity prevails;
 processes and decisions are open and transparent; and
 agencies are fair and responsive to the public.
Hopefully, as a result, future grievances and human tragedies will be
prevented. New Zealand’s first Ombudsman, Sir Guy Powles summed it up
best I think, when he said upon taking office in 1962,
“The Ombudsman is Parliament’s person - put there for the
protection of the individual, and if you protect the individual,
you protect society”.
Other quotes that have struck a note with me about the work of the
Ombudsman:
“An Ombudsman has a difficult job. [He] has to maintain [his]
independence and impartiality, not an easy task as many issues become
more and more politicised. And a good Ombudsman should always try to
strengthen the relationship between the public and the government. It is
only too easy to find fault in a way that will adversely affect the credibility
of the government and demoralise staff. It is all the more difficult to make
constructive criticisms that will enable civil servants to understand how
they can do their jobs better, thereby improving the standard of service to
the community, and at the same time enhance the public understanding of
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why a government takes the decision it does. An Ombudsman needs
courage, intelligence, determination and sensitivity to do [his] work
successfully.” The Hon Mrs Anson Chan, Deputy to the Governor of Hong
Kong, 1995
and
“The basic foundation of the institution of Ombudsman is to ensure that
citizens should not be the victims of actions of the bureaucracy or other
functionaries. The central feature of the institution is that the investigation
and association of administrative conduct would confirm the basis for
proposals as to future conduct of the bureaucrats. The purpose of
investigation is not only the redress of individual complaint, but prevention
of future ones. Thus an Ombudsman is able to make suggestions for
improving performance and better service to the citizens in the light of
experience gained while investigating into public grievances.
The
institution has to be quite alert to prevent maladministration. To put it
precisely, the institution of Ombudsman is a device by which the state
provides free service of an independent investigator for looking into
citizens’ complaints and submits its own decisions and suggestions for
remedial action.” Justice H H Kantharia, Ombudsman of the State of
Maharashtra, India, 1995
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