REPORTS OF COMMITTEES
| Date | 01 July 1978 |
| Published date | 01 July 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00811.x |
REPORTS
OF
COMMITTEES
OMBUDSMEN
IN
SEARCH
OF
A
ROLE
WHEN
Ombudsmen first arrived in the common law world, little
attempt
was
made to define their functions precisely. The generally
accepted image, derived from the Scandinavian prototypes,
was
that of
“
Citizen’s Defender
”
or
“
Complaints Man.” Yet the
legislation did not entirely reflect this image. The New Zealand
legislation provided laconically:
“
.
.
.
the principal function of the
Commissioner shall
be
to investigate..
.
any act done or omitted
relating to
a
matter of administration.” Much
was
therefore left
for the first holders of the office.
The time seems ripe for reassessment.
In
the first place, Sir Guy
Powles, the first New Zealand Ombudsman, who has done
so
much
in the course of his long and distinguished career to promote the
institution, has published his last report prior to retirement.3 Sec-
ondly, the Select Committee on the United Kingdom Parliamentary
Commissioner has announced that, on the advice of the Parliamen-
tary Commis~ioner,~ they will conduct an inquiry into jurisdiction
and access. In view of their decision, it
is
worth considering how
these two common law Ombudsmen carry out their functions and
what they consider these functions ought
to
be.
1.
New
Zealand
inquiries fell into two classes
6:
Sir
Guy
Powles recognised at an early stage that Ombudsmen
“
A
number of cases has established principles of general impor-
tance or of interest to particular departments.
A
greater number
has concerned matters whiich, while of no great public moment,
were nevertheless of very real importance to the individuals
concerned.
In
its concern for the latter, the office of Ombuds-
man is filling one of its important and basic functions.”
His choice of priority is significant. The New Zealand Ombuds-
man is to operate at two levels. First and foremost, he is to scruti-
nise the administrative process, recommending such changes as seem
appropriate; secondly he tries
to
alleviate individual injustices.
1
See
particularly the influential Whyatt Report,
“
The
Citizen and the Administra-
tion,”
JUSTICE,
1961.
2
s.
11
of
the Parliamentary Commissioner (Ombudsmen) Act 1962, now
s.
13
(1)
of
the Ombudsmen Act 1975.
S.
12
of
the Act empowered the House
of
Representa-
tives to make
rules
for
the guidance
of
the Ombudsman, but these powers were
not used to give detailed guidance.
3
Report
of
the Ombudsmen
for
the year ended March
31,
1977, Wellington, 1977.
Sir Guy retired in April 1977.
*
Second Special Report from the Select Committee,
Parliamentary Commissioner
for
Administration-Review
of
Access and Jurisdiction,
H.C. 296 (1977-78).
5
Annual Report 1977, H.C.
157
(1977-78). See also
“Our
Fettered Ombuds-
man,”
JUSTICE,
1977,
6
New Zealand
Report
1964,
p.
5.
446
July
19781
REPORTS
OF
COMMITTEES
447
The first task Sir Guy carries out in a characteristically forthright
manner. He has conducted
a
number of critical and searching
inquiries into the operation
of
the New Zealand prisons service.’
These have not inspired him with confidence,
as
he emphasises in his
final report
s:
“
Our whole penal policy requires
a
deep and searching study
and revision. Why do we have one of the highest rates
of
incar-
ceration in the western world? Why does such
a
dispropor-
tionately large number of our prison population consist of
Mamis and
of
young people? The Penal Institutions Act and its
regulations are long overdue for amendment, but this
I
now
believe would
be
only tinkering with the job. A thorough
revision
of
philosophy as well as practice
is
required.”
Again the
1969
report contains an uncomplimentary assessment
of the existing system of compensation in cases
of
loss due to public
works. This remains
“
almost unchanged from that developed
in
England over 100 years ago to meet the problems arising from the
demands
of
waterways development and the new and land-hungry
railway systems.” Sir Guy’s remarks led to the formation of
a
study
group to consider legislative change. The New Zealand Ombudsman
does not hesitate to recommend changes in the law even where these
are merely peripheral to an investigation. Recently an investiga-
tion
lo
into the death of
a
pedestrian in Auckland incidentally
revealed that safety by-laws did not bind the Crown. The Ombuds-
man recommended immediate legislative change, although the
deficiency was not shown to have caused the accident.
But the New Zealand Ombudsman operates also at the
individual
level,
a
task which is carried out in
a
very personal fashion. Sir
Guy’s aim is the humanisation of bureaucracy,
a
reduction in scale
to ensure that individual administrators bear in mind the individual
needs of individual members of the public. Although he may use
the techniques of the conciliator, he is never a
“
Mediator
”
in the
sense of one who intercedes between an impersonal superior (the
administratjon) and
a
subordinate citizen
(administre?
to plead for
exceptional favours.” Sir Guy is
a
powerful
“
Friend at Court
”
whose services are impartially available to any aggrieved individual.
The conception
is
characteristically Anglo-Saxon, but
is
nearer in
7
The most far reaching was an inquiry into Paremoremo Prison in 1971-72 (see
N.Z.
Report 1972, pp. 15-17). The New Zealand Ombudsman
is
not strikingly success-
ful in this area if one judges by the number of justified complaints.
Of
56
com-
pleints of the Justice Department in 1971, six were justified: of these, 17
(apparently) concerned prisons, and none was (apparently) justified. But see Case
No.
2920,
p.
50,
1967 Report; and Case
No.
7737, p. 32, 1974 Report. See also “Our
Fettered Ombudsman,” Chap.
VI.
8
N.Z. Report 1977, p. 9.
pp. 14-16.
10
N.Z. Report 1977, p. 13. Assistant Ombudsman
Mr.
Eaton Hurley (see n. 21
below) investigated.
11
See the
truuvuux priparutoires
for
the Law of January 3, 1973, establishing the
French
Midiateur,
discussed in Lmdon,
“A
props
du quutriPme rapport du
Midiateur,”
J.C.P.
(Semaine Juridique)
1978, no. 2883.
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