Officers of Parliament are appointed by the governor-general on the recommendation of Parliament. They carry out inquiries and reviews on aspects of government activity. Officers of Parliament have existed in New Zealand since 1962, when the office of ombudsman was created. There are three officers of Parliament:
Officers of Parliament are directly responsible to Parliament rather than to the government of the day. For this reason, Parliament has decided that such positions should be created only rarely, when they can be truly justified.
Because of the need to safeguard officers’ independence, conventions have gradually developed over their establishment and methods of working. There is now a set of principles about when it is appropriate to create an officer, how officers are appointed and funded, and how they report to Parliament. New Zealand was the first country to develop comprehensive principles for its officers of Parliament.
The Officers of Parliament Committee, created in 1989, oversees the process of appointing an officer of Parliament. A parliamentary select committee, it is chaired by the Speaker, and all parliamentary parties are entitled to be represented on it. The committee appoints a person as an officer of Parliament only if all members are in agreement. This ensures that the officer has the confidence of the entire Parliament, not just one or two parties.
The Officers of Parliament Committee also approves the annual funding for officers of Parliament, after considering bids for funding from the officers themselves. Once the committee has agreed to the funding, the government automatically includes that amount in the Budget.
Like judges, officers of Parliament have security of tenure. They can only be removed from office following a resolution of Parliament. They cannot be dismissed by the government just because it disagrees with their decisions. An officer’s reports to Parliament are automatically referred to the relevant select committee for consideration.
The position of ombudsman was created in 1962, to mediate between citizens and the state. Growing government bureaucracy and a cumbersome public petitions process led influential people to promote the idea in the 1950s. Champions included National Party politicians John (Jack) Marshall and Ralph Hanan, Labour Party politician H. G. R. Mason and the Secretary for Justice, Dr John Robson.
The concept originated in Sweden in the early 19th century. The Swedish ombudsman had jurisdiction over almost all national and municipal officials, who could be disciplined and even prosecuted for incorrect behaviour. Ombudsmen were later established in Finland and Denmark. New Zealand followed the Danish example, which emphasised mediation rather than prosecution.
The word ombudsman is Swedish and, despite appearances, is gender-neutral, applying equally to men and women. There have been several female ombudsmen in New Zealand, the first of whom was Nadja Tollemache (1987–92).
The office of ombudsman in New Zealand was established under the Parliamentary Commissioner (Ombudsman) Act 1962 as an independent office protected by the authority of Parliament. This set an international precedent, as in other countries ombudsmen were appointed by government. The first ombudsman was Sir Guy Powles, a former lawyer, soldier and diplomat. He held the office from 1962 until 1977. His performance made the institution widely respected, and its authority and scope was extended. The Ombudsmen Act 1975 allowed the appointment of several ombudsmen, and their jurisdiction was extended to statutory boards and local government.
The success of the office of ombudsman in New Zealand has led to what is sometimes called ‘ombudsmania’. Many other countries throughout the world have established ombudsmen to ensure that the state is accountable to the people. In the 21st century, around 110 countries had ombudsmen at the national level of government.
The ombudsman stood outside government and the legal system, and had to achieve a fine balance between defending the rights of citizens against unfair acts of government, and preserving the rights of public servants to a fair hearing. Giving the ombudsman wide powers to investigate complaints provided a non-adversarial way of seeking truth and resolving disputes.
Each ombudsman is usually appointed for five years, and may be reappointed for another term. Whenever there is more than one ombudsman, one becomes chief ombudsman with responsibility for the Office of the Ombudsmen. In 2017 there were two ombudsmen.
Ombudsmen have four areas of responsibility:
Anyone affected by a government decision or other action may complain to the ombudsmen. The traditional role of the ombudsmen is to investigate ‘maladministration’ – a broad term that encompasses biased, neglectful, incompetent and unfair administration by government and other public organisations.
When Sir Guy Powles was first appointed ombudsman in 1962, he had jurisdiction over central government departments. In 1967 this was extended to education and hospital boards, and in 1975 to statutory boards and local government. When state-owned enterprises and Crown entities were created in the 1980s they also came under the jurisdiction of the ombudsman.
Since the establishment of the office, numbers of complaints have fluctuated from year to year, but overall have increased. The growing complexity of cases has also added to the ombudsman’s workload. Most complaints made under the Ombudsmen Act (OA) are made by individual members of the public, but complaints are also received from the media, corporate bodies, government agencies and Members of Parliament. Details about the number and type of complaints are made available in the annual reports of the Office of the Ombudsman.
The ombudsman is allowed to challenge decisions that are legal but wrong by other standards. One example was the case of a naval officer’s widow who was refused compensation by the navy after her husband was killed by explosives in an exercise in 1955. She asserted that he was untrained to handle explosives. The ombudsman’s investigation showed that the death had resulted from the bad administrative practice of making unqualified people do dangerous work. It also showed that the navy had been rigid and inconsiderate in its attitude towards the complainant. She was awarded compensation and costs.
The ombudsman is intended to be an office of last resort. Complainants are expected to try to resolve their dispute with the agency concerned before complaining to the ombudsmen. They must also follow any prescribed method of appealing against a decision or having it reviewed by a court or another body.
The ombudsman makes inquiries and then forms an opinion on whether the agency acted fairly and reasonably in its dealings with the complainant. If the ombudsman thinks it appropriate, he or she can recommend remedial action. Although the ombudsman cannot compel agencies to put matters right, it is expected that they will follow ombudsmen’s recommendations.
While the ombudsmen usually act after receiving complaints about government decisions or actions, they also have power to make investigations into government on their own initiative. They can then report their conclusions to Parliament.
Looking back over years of investigations into complaints, on his retirement Sir Guy Powles said: ‘I have as yet found in the New Zealand Public Service no evidence of corruption or moral obliquity – mistakes, carelessness, delay, rigidity, and perhaps heartlessness, but nothing really sinful.’1 The investigations carried out by the ombudsmen help to assure the public that there is no state corruption in New Zealand.
Before 1983 government information was automatically kept secret unless there was good reason to release it. Often the only option for those seeking information was to ask the ombudsman to approach a department on their behalf. After a review of official information between 1978 and 1981, it was widely accepted that the public had the democratic right to information. The principle behind the Official Information Act 1982 was that information should be released unless there was good reason not to. The act came into force on 1 July 1983, and an amendment act in 1987 tightened its provisions to make departments comply more readily.
Any official information held by central and local government (including ministers, mayors and councillors) can be requested by a member of the public. Unless a good case can be made for not releasing it, it must be made available. Requests for official information must be responded to promptly – generally within 20 working days. While charges can be imposed for providing official information, these must be reasonable.
An agency may refuse to provide information, or make deletions from it, only on certain grounds. These include prejudice to New Zealand’s international relations or security, the prevention, detection or investigation of crime, and the right to a fair trial.
Some information can be withheld, but only if there is no public interest that requires it to be released. Grounds for withholding may include privacy, commercial interests, confidentiality, free and frank advice and opinion, the carrying on of negotiations, and risk of harassment. Information may also be withheld if release is contrary to law, if compilation would be too onerous, if it is already or will soon be publicly available, or if it cannot be found.
When the Official Information Act was passed, Prime Minister Robert Muldoon dismissed it as ‘a nine day wonder’.1 Later assessments were more positive. One judge commented that it ‘significantly altered the balance between the citizen and the state’.2
The ombudsmen are responsible for reviewing any complaint about the provision of official information.
In any given year the majority of complaints received relate to refusals of government agencies to provide official information, or for unnecessarily long delays in doing so – referred to as a ‘delay deemed refusal’. An ombudsman decides whether the refusal to provide the information is justified. If the conclusion is that a refusal is not justified, a recommendation may be made to release the information, and this is legally binding. However, it can be vetoed by the executive council of central government (cabinet), or by a full council for local government. Cabinet has never vetoed an ombudsman’s recommendation and local authorities have done so very rarely.
Other types of complaints received include those concerned with deletions or corrections in the information provided, charges, extensions or other delays, conditions attached to the information and transfers of responsibility to different agencies.
Sir John Robertson, chief ombudsman in the mid-1980s, advocated legislation to protect whistleblowers – public servants who had revealed wrongdoing within their organisations. However, the 1990 public service code of conduct threatened disciplinary action for unauthorised release of any information, no matter what the motive. By the early 1990s ombudsmen had received several complaints of victimisation from whistleblowers.
Under the Protected Disclosures Act 2000, public-sector employees can reveal serious wrongdoing and claim legal protections against liability or adverse treatment. Types of misconduct which may justify disclosure include:
An employee is expected to raise a concern with the head of the organisation first, unless there is reason to believe that person is involved in the serious misconduct. If this is the case, or if the employee speaks out but no action is taken within a reasonable time, the matter can be referred to the ombudsmen, one of a number of senior officials or a cabinet minister.
In 1994 Neil Pugmire, then a nurse at Lake Alice Hospital, expressed concern to management about the release of dangerous psychiatric patients into the community. One such patient kidnapped and attempted to sexually violate a young boy, and indecently assaulted two other children. When Pugmire’s complaints were not taken seriously, he went public, gaining considerable sympathy. He was suspended and then dismissed from his job, but later reinstated by the Employment Court.
A person to whom a disclosure is made must take all appropriate steps to have the allegation addressed. In the case of the ombudsman, this may mean using their investigatory powers to ascertain the facts. The ombudsman must also give guidance to public-sector organisations on how they should deal with whistleblowers’ disclosures.
A person to whom a disclosure is made must try to keep the whistleblower’s identity confidential unless the whistleblower consents to have it released. An employer cannot retaliate against a whistleblower who has made a disclosure to an authorised person. A disclosure made in good faith is immune from legal liability under the Protected Disclosures Act 2000.
From early days the ombudsman was concerned with issues relating to treatment of people in detention. From the 1970s a growing number of complaints came from prisoners. These complaints were often about conditions, such as being locked into cells for long hours, inadequate sanitation and general overcrowding. Prisoners often found it safer to complain to the ombudsman than to visiting justices, which might result in a charge of laying a false complaint and punishment. After 1995 the number of investigators dealing with prison complaints had to be increased. Prisoner complaints are still a significant aspect of the ombudsmen’s work.
In 2006 New Zealand became a party to the Optional Protocol to the Convention Against Torture, and Other Cruel, Inhuman Degrading Treatment or Punishment 2002. This set out principles for the treatment of anyone deprived of his or her liberty in a place of detention. All prisoners (whether sentenced or on remand) and other persons detained compulsorily, whether as patients, children or immigrants, were covered by the principles.
To fulfil New Zealand’s obligations under this agreement, a number of national preventive mechanisms (NPMs) were designated. These were coordinated by a central NPM, the Human Rights Commission, which included the ombudsmen, the children’s commissioner, and the Independent Police Conduct Authority.
In 1970 Sir Guy Powles took part in two major investigations into complaints from Pāremoremo maximum-security prison, north of Auckland. He observed then that society generally did not care how prisoners were treated, and that one role for the ombudsman was to ‘flagellate the public conscience’ on this issue.1
NPMs are responsible for making regular inspections of places of detention to ensure that the conditions under which people are detained are humane and that detainees are treated appropriately. Issues examined include physical conditions, activities allowed and medical services. As well as ensuring that minimum standards are observed, NPMs are expected to make recommendations for improving conditions and treatment of detainees.
NPMs report at least annually on their work. In the case of the ombudsmen this report is made to Parliament.
The Office of the Controller and Auditor-General originated as a government function in 1840. After restructuring in the early 1990s, which separated the operational and parliamentary reporting functions of the office, there were calls to make the controller and auditor general independent of executive government. The auditor-general became an officer of Parliament under the Public Audit Act 2001.
The auditor-general is appointed for a single seven-year term. The deputy auditor-general is appointed for a five-year term, with the possibility of reappointment.
The auditor-general has three main areas of responsibility:
The auditor-general’s staff are organised into two business units. The Office of the Auditor General is responsible for planning, policy development, quality assurance activities and reporting to Parliament. Audit New Zealand carries out annual audits and provides other assurance services to public entities.
The auditor-general is the auditor of all central and local public entities. Around 4,000 entities are audited annually by Audit New Zealand, or contracted auditors from the private sector. This work accounts for most of the auditor-general’s expenditure – 87% in 2009/10. Audits are conducted to set standards, and the audited entities are charged fees.
These annual audits provide independent assurance of the disclosure of both financial and non-financial information in an entity’s annual report. They examine the legal authority for expenditure, the propriety of actions taken by the entity, the efficiency of its operations and how open disclosure of its operations has been. Where necessary, the auditor-general makes recommendations for improvements to address any deficiencies that are identified. The auditor-general also advises local-authority councillors on legislation relating to conflicts of interest.
The controller function gives Parliament assurance that public expenditure has been incurred for lawful and approved purposes. The auditor-general performs the controller function by conducting annual audits of the entities and by reviewing monthly expenditure reports from Treasury. Each year the auditor-general reports to Parliament on any significant issues arising out of performance of the controller function.
The auditor-general supports the accountability of public-sector entities by providing reports and advice to Parliament and parliamentary select committees, and to ministers. Reports to Parliament identify major issues arising from the annual audits of central and local government. Reports and advice to select committees help them when approving the government’s annual spending proposals, and conducting a financial review of the performance of each central government department in the previous year. Reports to ministers advise them on the results of the audits of departments and entities for which they are responsible.
The spending of political parties prior to the 2005 election led to a highly controversial inquiry by Auditor-General Kevin Brady. He found that most parties, especially the governing Labour Party, had unlawfully used Parliamentary Service funds for election advertising. Although politicians pressured him to alter his findings, he stood firm, earning public confidence as an independent watchdog. The Labour Party subsequently repaid public money spent on its election ‘pledge card’.
The auditor-general also has authority to carry out performance audits and other inquiries to examine any public entity’s use of resources. These can look at whether an entity acted effectively and efficiently as well as lawfully and properly.
Each year the auditor-general prepares an annual work programme after consulting with select committees and other stakeholders. However, additional, unanticipated audits may also be undertaken when necessary.
The office of parliamentary commissioner for the environment (PCE), established under the Environment Act 1986, came into existence on 1 January 1987. It was set up during reforms of environmental administration in the 1980s, which also resulted in the establishment of the Ministry for the Environment and the Department of Conservation.
The PCE is appointed for a five-year term, and may be reappointed. The PCE aims to maintain or improve the quality of the natural environment by providing independent advice to influence decisions made by public authorities.
The PCE has investigative powers to review systems and processes for the management, allocation, use and preservation of natural resources. The commissioner can inquire into the effectiveness of central and local government’s environmental planning and management.
Any matter that adversely affects the environment, whether this results from natural causes or human activity, can be investigated. The PCE also has a mandate to encourage preventive and remedial measures, and may recommend or advocate for policies or operational practices that safeguard the environment.
The PCE makes submissions to government when policies are being developed and to select committees when legislation with environmental implications is being considered. The PCE may act as an adviser when select committees and other bodies are carrying out inquiries or reviews.
One of the most influential reports produced by the PCE was Growing for good (2004). It tackled environmental issues relating to farming and suggested ways that it could become more sustainable. Published in the midst of growing controversy over farming methods such as industrial-style dairying, the report helped inform debate, especially in the rural sector.
The PCE may identify an issue of environmental significance that warrants an investigation. Alternatively, the office may respond to an inquiry being carried out by another body by making a submission or assisting in some other way. A select committee, an organisation, or a member of the public may also alert the PCE to an environmental issue.
The PCE reports the results of investigations to Parliament and the public. There have been reports on environmental stewardship of the South Island high country, the environmental benefits of smart electricity meters and mining regulation. In 2011 work was under way on climate-change policy, transport fuels, the management of fresh water, soil conservation and aquaculture.
Bührs, Tom. ‘Barking up which tree? The role of New Zealand’s environmental watchdog.’ Political Science 48, no. 1 (1996): 1–28.
Gilling, Bryan. The ombudsman in New Zealand. Palmerston North: Dunmore Press; Wellington: Historical Branch, Dept of Internal Affairs, 1998.
Green, David, and John Singleton. The watchdog: New Zealand’s Audit Office, 1840 to 2008. Dunedin: Otago University Press, 2009.
Young, David. Keeper of the long view: sustainability and the PCE. Wellington: Parliamentary Commissioner for the Environment, 2007.