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Yours sincerely

Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata

Phone 0800 802 602 (+64 4 473 9533)|Fax +64 4 471 2254
[Office of the Ombudsman request email] | www.ombudsman.parliament.nz
PO Box 10152, Level 7, SolNet House, 70 The Terrace, Wellington
IMPORTANT: The information contained in this email may be confidential or legally privileged. It is intended solely for the recipient or recipients named in this message. Please note that if you are not the intended recipient you are not authorised to use, copy or distribute the email or any information contained in it. If you have received this email in error, please advise the sender immediately and destroy the original message and any attachments.

Kia ora Mr Finnegan

 

Please see the below response to a request for information you made via
FYI.org.nz for:

             

When the ombudsman makes a recommendation to a govt agency and that agency
doesnt comply who can i complain to? And who enforces it?

 

Ombudsmen Act investigations and recommendations

 

After forming an opinion, the Ombudsman may make any recommendations they
‘think fit’, and may follow up with the agency about the implementation of
those recommendations (section 22(3) of the Ombudsmen Act 1975).

 

The Ombudsman may also report to the relevant Minister or Mayor, and if
adequate and appropriate action is not taken in the case of central
government, to the Prime Minister and House of Representatives (section
22(3) and (4) of the Ombudsmen Act).

 

The Ombudsman may also publish reports on the outcome of their
investigation activities (section 23 of the Ombudsmen Act, and Rule 2 of
the Ombudsmen Rules 1989).

 

An Ombudsman’s willingness to adopt informal, flexible processes permits
the Ombudsman to deal effectively with complaints from citizens who may be
ill-equipped or unable to explain their grievance in terms of legal
obligations, rights or responsibilities, but who nevertheless have a deep
sense that they have been wronged by a government act, decision, omission
or recommendation (please refer to section 18(7) of the Ombudsmen Act,
which states an Ombudsman ‘may regulate [their] procedure in such a manner
as [they think] fit’).

 

Unlike the courts, an Ombudsman makes recommendations. This is an
important part of the Ombudsman’s identity, as an impartial Officer of
Parliament exercising wide powers of inquiry, but balanced with using
moral suasion to achieve an outcome of good administrative practices
within executive government. The onus remains with the agency concerned to
respond to and implement an Ombudsman’s recommendations. Almost all
recommendations made under the Ombudsmen Act are accepted. However, if the
agency does not take steps to provide what the Ombudsman considers to be a
satisfactory remedy within a reasonable time, the Ombudsman may:

·       Decide to report the findings to the Prime Minister and then to
Parliament.

·       Initiate an own motion investigation into the omission of the
agency to remedy the matter.

·       Draw public attention to the matter.

 

By way of example, please see the Chief Ombudsman’s investigation into how
Department of Corrections has responded to repeated calls for reform and
improvements by oversight bodies, including the Ombudsmen, that was
announced on 18 May 2021 here:
[1]https://www.ombudsman.parliament.nz/news...

 

 

Official Information investigations and recommendations

 

If the Ombudsman forms the opinion that the agency’s decision was not
justified and recommends release of the information, a public duty to
observe that recommendation is imposed on the agency from the commencement
of the 21st working day after the day on which the recommendation is made
unless the Governor-General, by Order in Council, otherwise directs
(section 32(1) of the Official Information Act 1982). This is in contrast
to the veto under section 32(1) of the Local Government Official
Information and Meetings Act 1987, which may be exercised by resolution
made at a meeting of the local authority.  

 

This ‘Cabinet veto’, as it became known after its amendment from a
‘Ministerial veto’ in 1987, has never been exercised. The Acts provide
further rights of review and appeal to the courts in respect of the
‘veto’, which may be exercised by the requester at the agency’s expense
(sections 32B and 32C of the Official Information Act and sections 34 and
35 of the Local Government Official Information and Meetings Act refer).

 

On the rare occasions where an agency has been reluctant to meet the legal
duty arising out of an Ombudsman’s recommendation by releasing
information, successive Ombudsmen have referred the matter to the
Solicitor-General to ensure compliance.

 

Crimes of Torture Act inspections and recommendations - Nature of the
Optional Protocol to the Convention Against Torture (OPCAT) function

 

Under the Crimes of Torture Act the Ombudsman’s OPCAT functions are, under
section 27 of that Act to:  

·       examine the conditions of detention and treatment of detainees;

·       make recommendations for improving the conditions of detention,
treatment of detainees and to prevent torture and other cruel, inhuman or
degrading treatment or punishment; and

·        report to the House of Representatives.

Additionally, the Ombudsman is consulted by the Central National
Preventative Mechanism (NPM) when the Central NPM is crafting ‘any
recommendations to the Government that it considers appropriate on any
matter relating to the prevention of torture and other cruel, inhuman or
degrading treatment or punishment in places of detention in New Zealand’
under section 32 of Crimes of Torture Act.

Please let this Office know if you have any further queries.

Ngâ mihi

 

Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata

Phone 0800 802 602 | Phone 04 473 9533 | Fax 04 471 2254

Email [2][Office of the Ombudsman request email] | [3]www.ombudsman.parliament.nz

PO Box 10152, Level 7, SolNet House, 70 The Terrace, Wellington

 

 

IMPORTANT: The information contained in this email may be confidential or
legally privileged. It is intended solely for the recipient or recipients
named in this message. Please note that if you are not the intended
recipient you are not authorised to use, copy or distribute the email or
any information contained in it. If you have received this email in error,
please advise the sender immediately and destroy the original message and
any attachments.

References

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