10 Jun 2018

From 'ponytail-gate' to alleged cover-ups: inside the role of government watchdogs

From The House, 7:30 am on 10 June 2018

The term ‘independent government watchdog’ doesn’t normally evoke an enormous amount of passion, even from the most tragic political junkies.

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Actual government watchdog may differ from that pictured. Photo: 123RF

But when New Zealanders need answers on pressing domestic issues, such as an alleged Defence Force cover-up in Afghanistan, whether restrained prisoners were treated inhumanely, or if a government employee had swindled the Transport Ministry, they begin to fulfil a vital role.

Information from governments and government agencies can be requested under the Official Information Act 1982 (OIA) and can include internal policies used by an agency, minutes of a meeting, or your personal information, like the reasons why the Ministry of Justice made a particular decision about you.

But if you’re unhappy with the response then a complaint can be made to the Ombudsman; a Swedish word which loosely translated means 'grievance person' or someone who represents and investigates on behalf of the public.

 Chief Ombudsman Judge Peter Boshier (center), Deputy Ombudsman Compliance  and Practice Emma Leach (left) and Chief Inspector OPCAT Jacki Jones, (right) speak to the Law and Order Committee about the illegal restraint of at risk prisoners.

Chief Ombudsman Peter Boshier (middle) speaks to the Law and Order select committee about the illegal restraint of at-risk prisoners. Deputy Ombudsman Compliance and Practice Emma Leach (left) and Chief Inspector OPCAT Jacki Jones, (right). Photo: VNP / Phil Smith

The Chief Ombudsman is Peter Boshier, a former Principal Family Court Judge. He's affable and considered.

But most of all, he’s keen to demystify his role to show why it’s crucial to a democracy like New Zealand.

“We can be fearless,” says Mr Boshier. “We can do what’s fair to the person and not worry about consequence, and for people to know that that’s where we’re coming from, means a lot in terms of the outcome.”

Sharing secrets  

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Photo: 123RF

Official Information can be almost anything. It has included text messages sent to and from former Prime Minister John Key’s cell phone about ‘ponytail-gate’ to an Auckland Council report on a proposed downtown stadium.

“We are independent of the Government, which is [our] single greatest asset,” Mr Boshier says.

“We have an overarching duty to promote democracy and what is best for Parliament, and therefore, what is best for the New Zealanders who elect the Parliament.”

New Zealand was the fourth country in the world, and the first outside of Europe, to establish an Ombudsman when it appointed Sir Guy Powles to the position fifty-six years ago. Back then, the office only received about 140 complaints a year.

Today, the office boasts a staff over 100 and around 4,000  government bodies fall within the Ombudsman’s capacious jurisdiction.

Official information and correspondence were once closely guarded secrets. They came under the Official Secrets Act of 1951, a piece of legislation that essentially barred the public release of government information. Loose lips sink ships was the catch cry and penalties could be harsh. 

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Photo: VNP / Daniela Maoate-Cox

But that changed dramatically in the 1980s with the introduction of the Official Information Act. New Zealanders were now able to freely request government information, reversing the tight-lipped policy.

“It was a huge shift of mindset,” he says. “[Parliament] wanted to promote the increasing availability of official information for two reasons. One, to make public officials and ministers accountable. And secondly, to encourage the participation of people in democracy”.

Simply put, the argument is that the country is inherently healthier when this information is available to everyone.

“There comes a point in policy where good law-making is enhanced by informed public debate,” Mr Boshier says.

Under the Official Information Act, those who have been denied information by the Government can lodge a complaint with the Ombudsman (so long as the complainant has exhausted every option to obtain it themselves).

The Ombudsman then decides whether to investigate and assess if the decision to withhold the information was warranted.

Protecting the underdog

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Government whistle-blowers can complain to the Ombudsman under the Protected Disclosures Act. Photo: 123rf

The Ombudsman's work isn’t limited to dealing with official information complaints. An ever-increasing portion of their time is fulfilling their obligations as a designated independent mechanism under both a United Nations protocol against torture and a convention supporting rights for the disabled.

It's an expanding mandate. A role inspecting private dementia care units has just been added.  

‘We’re here to protect the underdog,” Mr Boshier says.

“Pragmatism could mean that [people are] just locked away and treated inhumanely. It’s cheaper, and if you don’t allow them access to much, well, who’s to know?... That’s not the way New Zealand is. We’ve always believed in a fair go, and that if you’re vulnerable, you’ll be treated in this country better than you might be in some others.”

Armed with the authority to enter a facility without warning, the Ombudsman produces reports on whether or not the Government is flouting international conventions and violating detainees’ human rights.

The 2017 ‘Question of Restraint’ report admonished Corrections for “inhumane” use of restraints on mentally ill prisoners. The resulting public outcry essentially forced the relevant minister to implement a change in policy.

“I think the repulsion that people had once they knew, meant that it became inappropriate from a Corrections standards point of view,” Boshier says. “People change if, on the public stage, things are seen as wrong.”

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The Question of Restraint report details five cases where restraints were used for long periods, including one inmate in Auckland Prison who was tied down to a bed for 16 hours at a time, 37 nights in a row. Photo: 123RF

So-called government ‘whistle-blowers’, who want to report corruption or other inappropriate conduct, can also make complaints to the Ombudsman under the Protected Disclosures Act. Under the Act, government employees can make a confidential disclosure to the office without fear of punishment.

This is still a newish thing, but Mr Boshier can see the workload in this area increasing, stressing that it is important for “people in agencies who see conduct occurring, usually fraud or misbehaviour… to be able to report it in a safe context in which they won’t have retribution hanging over their head.”

Interestingly, despite all the powers the Ombudsman possesses, Parliament hasn’t given them the power to enforce their recommendations.

“I sense they [Parliament] didn’t want the Ombudsman to replace the Executive …for us to be able to demand change, coercively, might have been seen by some as overstepping the constitutional mark… I think they wanted us to go right to the hilt, but not over it.” 

The office holds a powerful gravitas however, so it’s not often that governments ignore the Ombudsman’s advice.

“There’s a public duty to abide by and implement my recommendations… they’re more than just an ‘I’d like you to’… there’s pretty much an expectation to do what we’ve suggested. Very seldom does that not happen.”

New Zealand’s public sector is now regarded as the least corrupt in the world, and the Chief Ombudsman believes that success can be attributed to independent watchdogs like the Ombudsman.

“Because we have a rigorous Auditor-General and a rigorous Ombudsman, if we detect things which aren’t right, we can fearlessly say so.”

Mr Boshier says New Zealand’s parliament has continued to reinforce their independence and he believes that the relationship is one of the best in the world.

“We have this constitutional setup that is one of the best, and one of the most valuable, I would venture to suggest, there is anywhere.” 

One comment the Ombudsman makes powerfully underlines the importance of the role, and the necessity of having an external, public 'prompt' to improve official behaviour...

“Because people will keep doing what they’re doing until we challenge them,” he says.