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 Judge Peter Boshier Chief Ombudsman Presentation to: The Petone Citizens Advice Bureau 26 May 2016 Office of the Ombudsman Tari o te Kaitiaki Mana Tangata
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. Page: 2
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. Page: 3
Jurisdiction The Ombudsmen Act. The Official Information Act (OIA). The Protected Disclosures Act (PDA). The Crimes of Torture Act (COTA). The Land Transport Act. Page: 4
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. Page: 5
OIA own motion investigation Page: 6
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 Page: 7
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 Page: 8
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] Page: 9
Organisation structure & capability Page: 10
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. Page: 11
Policies, systems and resources Page: 12
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. Page: 13
Performance monitoring Page: 14
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. Page: 15
Current practices Page: 16
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. Page: 17
Other considerations Media environment. Political environment. No surprises policy. Page: 18
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. Page: 19
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. Page: 20
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. Page: 21
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. Page: 22
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. Page: 23
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% Page: 24
The Future 9-12 months: 5% 6-9 months: 10% 3-6 months: 15% 0-3 months: 70% Page: 25
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. Page: 26
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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 Page: 29
Not a game of hide and seek The Chief Ombudsman s perspective on how the OIA is operating and some new ideas Judge Peter Boshier Chief Ombudsman Presentation to: The Petone Citizens Advice Bureau 26 March 2016 Office of the Ombudsman Tari o te Kaitiaki Mana Tangata