The Ombudsman in New Zealand
Bryan Gilling
Dunmore Press (in association with the Historical Branch, Department of Internal Affairs), $29.95, ISBN 0 86469 336 2
Older readers of this journal will recall the office of Ombudsman as something of a Kiwi oddity in the 1960s, but one of which we were very proud. Irrevocably associated with the charming and dignified Sir Guy Powles, it was the institution with the funny name, the place for the “little man” to turn to when the bureaucracy became overwhelming. And it seemed to work. It was a bold experiment, untried anywhere else in the Commonwealth. It set a precedent, and has since been widely adopted elsewhere.
In its early days the Ombudsman stood largely alone as a check against bureaucratic excess. The courts were remote and costly. There was no freedom of information, and “process” had yet to acquire its modern, all-embracing usage. There were many appeal tribunals, but they were themselves something of a problem, as Sir Guy observed in 1964:
It is not surprising … that the ordinary citizen feels a little lost in this almost impenetrable jungle. Moreover there were still wide areas of administration where there was no effective form of review or redress.
The office of Ombudsman – and Sir Guy – quickly filled the vacuum.
Today it is a very different picture. We have a vast body of administrative law, a Bill of Rights, and a public sector immeasurably more attuned to “due process”. We also have the Official Information Act. Indeed the Ombudsmen (of which there are now two) seem to spend most of their time and energy exercising the review functions conferred on them by that legislation in 1982. And as for their original role, as the investigators of “maladministration”, they are now merely the general practitioners in a vast complaint industry. They share the stage with a host of specialist investigatory bodies (the Police Complaints Authority, for example), and struggle to retain visibility among the public.
The origins of the office have, therefore, passed into history. Sir Guy died in 1994, but much of the early institutional memory still exists. The story of the office, its formation and evolution, was therefore one waiting to be told.
This book tells it very well. It traces the origins of the office from its Scandinavian roots, through political de-bates in New Zealand in the late 1950s, to the passing of the first Ombudsman legislation in 1962. Successive chapters then examine the various stages of its working life. Parts of the subject-matter are of narrow interest – mainly to an audience of historians, lawyers, political scientists and public servants. But the book is also a social history, which gives it broader appeal. The author and publishers make the most of this with photographs, cartoons, and humour. The text is broken up with inset panels of case studies, anecdotes and biographical information. The book is worthy, therefore, of either a browse or a more in-depth read.
The early chapters are of greatest interest. Much is made of Powles’s humanity and vision, which were, after all, the greatest contributors towards the public success of the office:
Powles often went the extra mile to help, even if a complaint was not technically sustainable. He found one woman’s complaint against Treasury regulations unjustified, but arranged for her to be able to bring her own legal proceedings to resolve her problem in another way. Or he made personal, unofficial representations to department heads to resolve problems overlooked by existing provisions … Such actions were incidental to his actual position, but provided service with a smile that accorded with the spirit, rather than the letter, of his work.
Later chapters reveal echoes of these values in Powles’s successors. Gilling produces this anecdote from Sir John Robertson (Chief Ombudsman from 1986 to 1994) about the chief executive of a power board whom he thought should apologise to a small-town widow about her defective stove:
He was very subdued and said, “Do I have to go and apologise to her?” And I said, “Yes you do. You’ve got to do it.” About 15 days went by and I got a letter from this lady saying that she had just cooked for a bring-and-buy stall and her reputation was back in order, the stove was cooking beautifully and there was an example of her last sponge … about that thick, with cream in the middle.
Minor cases continue to make the Office’s reputation.
Powles’s influence was, however, far deeper. It is easy to overlook the conservative political and legal establishment into which the office was born in the early 1960s. It was he who had to make the office work, in the face not only of scepticism from many politicians but also of outright opposition from public servants and their union, the PSA. Success took some years to achieve.
Powles’s primary motivation, Gilling suggests, was to change attitudes rather than protect rights and freedoms. This must be true, to the extent that the office has only recommendatory powers. But it is easy to underestimate the office’s ability also to play a protective role. Ultimately that is where its constitutional significance lies.
The book ends on an ambivalent note. True to the 90s, the last chapters are illustrated by graphs of complaint statistics and tell a story of too much work and too little funding. The conclusion leaves the office at a crossroads, uncertain perhaps of its true role in the modern state and nervous at the risk of its work – especially that under the Official Information Act – being politicised and driven to legalism. Yet that only illustrates the unchanging nature of an Ombudsman’s most fundamental challenge: to establish and maintain credibility with the public, public servants, and politicians.
Robert Buchanan is a Wellington lawyer who worked for the Office of the Ombudsman in the 1980s.