Ombudsmen (Cost Recovery) Amendment Bill

E Te Mana Whakawā Tuarua, tēnā koe. E ngā mema o Te Whare Pāremata o Aotearoa, tēnā koutou katoa. It is a pleasure to rise to take a call on the Ombudsmen (Cost Recovery) Amendment Bill in this first reading debate, and I want to begin by firstly congratulating the member David Parker on having his bill drawn and, actually, on the constructive and well-reasoned approach that he takes to all measures but to this bill in particular, which I am sure is a very, very well-intentioned piece of legislation.

I think it is important to reflect on the fact that New Zealand is well served by our Ombudsmen. It was a very positive innovation when it was brought into place here in 1975, well ahead of many equivalent jurisdictions. We took, I guess, some guidance from our friends in Scandinavia, which are also countries that are rated very, very highly in terms of good governance, a lack of corruption, and transparency of Government.

I think it was Denmark that first introduced an Ombudsman in 1955—so, 20 years before New Zealand introduced this. And, of other countries with which we might compare ourselves, for instance, Canada, another common law jurisdiction with Her Majesty the Queen as head of State—at the provincial level, it began to introduce ombudsmen, or officers equivalent to an Ombudsman, such as an inspector-general or a public advocate. The term parliamentary commissioner is also used and reflects a similar functionality. The provinces of Canada introduced ombudsmen throughout the late 1960s and early 1970s.

But we were certainly ahead of our Australian friends, who introduced them a year after us in 1976, the Austrians in 1977, and other countries such as Barbados, which waited until 1980. The Belgians did not introduce an Ombudsman until 1997.

💬 Matt Doocey: Only 170 more countries to go.

Ha, ha! Gibraltar was not until 1999. The EU, which, of course, purports to be a very well-run and transparent supranational organisation, did not introduce the function of an Ombudsman until 2013. So we were leaders in this, but, also, the service of the ombudsmen and the transparency that they provide—particularly in, as the member David Parker has referred to, the investigation and follow-up around Official Information Act (OIA) requests, particularly those where the person making the request is not satisfied with some element of the response—is very important, and it is something that we take seriously.

So we are committed to the Office of the Ombudsmen, but the reason that I will not be supporting the bill in this debate is that we actually have no reason to believe that the Office of the Ombudsmen is in any way underfunded. I think, when this bill was introduced, there may have been greater cause to believe that some closer look at the provision of funding for the office was required, but I suspect it has been overtaken by events, and I hope that some of the information that I hope to relate in this debate might convince members that that is indeed the case.

We believe that the office is not underfunded, and, actually, the imposition of a cost recovery scheme in and of itself would not be without risk, and it may actually undermine some aspects of the complaints process. In fact, we think that there are—

💬 Hon David Parker: How? How would it do that?

—several other mechanisms by which productivity of the Ombudsman’s office has been improved, and I will go into those, Mr Parker.

Since this bill was added to the ballot in 2012 the increase in funding for the Office of the Ombudsmen has been about two-thirds. The baseline funding back in 2012 was $9 million, and the Ombudsman received $15.2 million in the last year’s Budget. So that is an increase of two-thirds. From the numbers we have had a look at, the productivity rate of the office has similarly increased. We have seen a fall in the number of complaints on hand, which is now down to 1,339, and the figures that we have been provided with suggest that the backlog that the office is working through should be halved by June of this year—so we are talking next month—and completely cleared by the end of June 2018, which is a year earlier than had been initially planned by the office.

The figures to hand show that more than 70 percent of the complaints received since 1 July 2016 have been resolved within 3 months of receipt, and this rate is currently heading towards 90 percent. It is the view of the Office of the Ombudsmen that by the year 2020 no complaint will take more than 12 months to resolve. We have to bear in mind that we are dealing, in some cases, with complex complaints that maybe run to many, many pages, that are absolutely peppered with detail, and, as the member said, some official information that is released contains multiple redactions, and there may be multiple causes for complaint within any one release.

I would want to point out to the House that the redactions that are made in information released from Government departments are often made for incredibly good reasons and for important reasons, and, as a former official, during my 10 years with the Ministry of Foreign Affairs and Trade—I had no responsibility, I should comment, on redacting any of the live sheep export information. The gentleman is actually Sheikh Hamood Al Khalaf, not Mr Ali Al Hamood as the member says. But I did not deal with that particular case in terms of redactions. But in redacting information, most of the officials whom I have seen in practice take their job very, very seriously and, under section 6 of the Official Information Act, redactions are made for important reasons. So section 6(a), for instance, removes information that prejudices the national security of New Zealand and the defence of the Realm. This is a very important point. This is the first responsibility of any Government, to ensure that information being released will not prejudice the security of our country.

Section 6(b) includes information that is entrusted to us from other countries and that we have accepted on the promise that we will not release it. The maintenance of law is covered by section 6(c). And we go on—the safety of people, so information pertaining, for instance, to the operations of New Zealand personnel abroad would often be covered under section 6(d), or the economy of New Zealand—information that may be damaging or injurious during trade negotiations. There are some very good reasons why that information is not released publicly at the time, and it may be 20 or 30 years down the track. I would note that many departments are now taking a proactive approach to going through information that can be released publicly, even before any period of time has expired when it might otherwise have been looked at. They are proactively working through their archives. But my point is that there are often good reasons why information should be withheld, and the information that we have seen, including comments from the Office of the Ombudsmen, is that the processes that it has are working well.

So some of the changes in its practices that have improved the performance of the office and are delivering much better results are changing the focus on an early resolution and adopting more flexible practices in its office. This includes, for instance, transitioning to working almost entirely electronically and undertaking much more of its interaction with Government departments by phone calls rather than—telephone interviews, which can be documented and duly recorded, minuted, and used to form a proper record. But, of course, it is much quicker and easier, not to mention cheaper in terms of travel, than necessarily going to the offices of the Government departments and agencies in question.

It has also employed some specialised staff who have a degree of expertise in the area that they are working on. This is not merely a legal and administrative role; sometimes a specific subject matter knowledge is advantageous in terms of resolving the complaint or the query in a more timely but also, hopefully, more accurate fashion. It works very closely now with the State Services Commission, and it has been proactively improving the general understanding of how the Official Information Act works throughout the public sector.

The member mentioned journalists—the media who often rely on the OIA as a means to, quite rightly, hold the Government to account but also to gather information that might be the source for newsworthy publication or it might, in fact, corroborate other people whom they have interviewed in their processes. I think the general understanding of how the OIA works is good among Government departments, and there may be even further gains that can be had by ensuring that others also understand how it should work. And they have produced guides and moved material—

Order! The member’s time has expired.

Well, I have to say it has been quite disturbing to hear the member opposite me, Paul Foster-Bell, just get up and give a defence of the increasingly disturbing practices of the withholding of information, which this Government has taken us down the road of, and which is, ultimately, the complete opposite of transparency. It exposes what I consider to be a really disturbing factor—that the transparency index, which is held up as being the great measure of New Zealand, is actually very shallow and does not get under the surface of the real issues and the real practices where democracy is being undermined.

I am hoping that all of you in the House have been listening to Radio New Zealand’s 9th Floor series, which are the interviews with previous Prime Ministers. I want to refer specifically to the interview with Geoffrey Palmer, where not only did he say that Government is like theatre but he expressed huge concerns about what he described as the great failure of the democratic system in New Zealand. I think we need to pay attention to that and look at what are the measures, the levers, of democracy that we have and how well they are functioning and how they could be improved. This is a bill. It is a small bill. It is a small measure. But it is a bill that is intended to strengthen democracy, not to undermine it. I am afraid that what the member has just done is give a defence of the undermining of democracy in our country.

I also just want to touch on the important role of media as our fourth estate to hold the executive of our Government to account. Also, I want to touch on the role of Opposition, no matter who is on the Opposition benches, in being able to access information from the executive to hold the executive Government to account. These are critical parts of democracy. We must be constantly scrutinising them and asking whether they are fit for purpose and whether they can be improved. This is a small measure in this bill that goes towards doing that.

The Ombudsman has an extremely important role to play in our democracy. I note that the Chief Ombudsman—he is not so new now—Peter Boshier, referenced, in a recent speech, a visit he had made to Vienna to a meeting of the International Ombudsmen’s Institute, where there are 90 ombudsmen’s offices—and I am not going to list them—around the world. They describe their role as being “to protect the people against violation of rights, abuse of powers, unfair decisions and maladministration … to improve public administration while making the government’s actions more open and its administration more accountable to the public.”

Yet what we have here is an administration where there are nearly 2,000 complaints that are the result of Government not making information available. There are complaints of which many are years old. I have four such complaints currently before the Ombudsman that go back to 2012, and I am just one person. All of the members of the Opposition parties would have complaints sitting with the Ombudsman. Almost every journalist in the country would have had problems getting information from the Government, and will have complaints before the Ombudsman that go back years.

I think that the member across there does not understand what this bill is about. It is not trying to address an underfunding issue; it is addressing an issue of providing an incentive to Government departments to do what they are supposed to do under the Act, and to provide information. If they do not provide information, they are fined, and that matter goes before Parliament. That is accountability.

I rise to take my call in opposition to the Ombudsmen (Cost Recovery) Amendment Bill. I must disagree with the last speaker, Clare Curran. I in no way found Paul Foster-Bell’s contribution disturbing. I felt the contribution of giving us a background of the evolution of ombudsmen’s offices through a range of countries was very enlightening. I think when you take a look at history, it gives us great comfort as we step forward and think about new ways of working. So I would like to thank Mr Foster-Bell for that contribution and for his contribution tonight.

There is a great game of rugby this weekend. The Hurricanes are playing the Crusaders, and in any game of rugby, players have got to be nimble and show dexterity. I do not know whether the Hon David Parker has ever been compared to a nimble rugby player before, but I must say, he was—

💬 Hon David Parker: I was one. I was one.

Well, there you go. He was one. So he was a nimble rugby player, and I think that shows through. Did you notice how he was on his feet—how he was able to shift from one narrative to another? Let us be honest, this bill has been in the ballot for about 5 years, and it was probably put in there in the days when the Ombudsman’s office was perceived as being underfunded. So cost recovery was about how we fund the Ombudsman’s office. Well, the perception of it is it sits on the ballot for 5 years and then it gets pulled, and then he starts to do his research, and he starts to think: “Well, actually, when I see that the Ombudsman’s office, since 2012, has had a funding increase of 70 percent—

💬 Hon David Parker: Why did they need that? For non-compliance.

—from $9 million to $12.5 million—[Interruption] I will give him this: he is a smart man, so he has obviously thought to himself: “How do I reframe this bill? How do I get the narrative right? OK. All right, let’s pitch cost recovery as a financial punishment. Let’s take that approach.” But one of these things—and I must quote David Shearer, whom I always felt was impressive on a members’ night when he used to say: “This is typical of the Government; it’s a policy solution waiting for the problem.” And I think—in the words of David Shearer—that is exactly what this is. This is not about cost recovery in this sense. I mean, let us look: if we are going to throw policy ideas around like this, what are the unintended consequences?

So if this is a financial punishment for an agency that is not complying, does that mean an agency that is pretty well resourced can just pay its way out of not complying? Let us think this through. Why do we not think of other ways? In the end this is about the complaints process. We are hearing a lot about the Official Information Act, and, really, probably, this is fundamentally what it is about. But, overall, if you were to look at the metrics of the Ombudsman’s office, from 1 July 2016, 70 percent of complaints were resolved in 3 months. I would have thought that was pretty good. Currently, the rate is that 90 percent of complaints are resolved in 3 months. We are working towards 2020—by 2020 there will be no complaints lasting longer than 12 months.

There will be plenty of people in this House who have managed complaints processes. And when you look at that, time is not necessarily the definitive factor. We all know that in a complaints process there is the variable of complexity. So sometimes taking time is not a problem. Taking time is the ability of the person to investigate it to its fullest and come out with a finding. It is not only about the finding and the investigation; it is also the learning—the learning and understanding. A good complaints process should have a good feedback loop on how that learning and knowledge will then go back into the institution to improve it.

So I think we need to look at a range of issues, but, unfortunately, this bill will not get to select committee. There is some thought of putting a bill through to the select committee stage, to get it kicked around a bit and to see where it will end up, but, fundamentally, I think this bill is flawed, and that is why I oppose it. Thank you.

The Green Party supports this bill because the Official Information Act (OIA) is a critical part of our democracy, and that has been discussed in New Zealand political and legal circles now for a very long time. The issue is the cost. The cost of investigation and the cost of the office should not hinder the transparency that we value as part of our democracy. It should not hinder good governance, and if it does, we need to address that. And I think this bill is one small step towards helping to address the concern that cost constraints hinder our democracy and reduce the transparency of our Government, and citizens deserve much better than that.

In recent times various ombudsmen over the years have raised very serious concerns with Parliament and with MPs about a failure by Government departments, in particular, driven largely by the political will, if you like, or the political intentions of the Ministers at the head of those departments. They have raised concerns that those departments have not responded to the Official Information Act in a way that is in line with the spirit of the law, or, indeed, with the letter of the law. That is a real concern, when Government departments are refusing to engage with the OIA, as it was designed to provide information to citizens. We have had one Ombudsman describe it as a paralysis of democracy, the hindrance that Government departments put in place and the barriers that Government departments put in place for citizens accessing information to which they are entitled. The delays have operated as a paralysis of democracy.

We have had concerns in more recent times, when the Chief Ombudsman, Beverley—

💬 Hon David Parker: Wakem.

—Wakem, described the lack of funding and the inability for the office to be able to deal with the level of complaints that it gets as appalling. There was one description by an Ombudsman that we may as well kiss democracy goodbye if the OIA does not work properly. I mean, these are very serious concerns from those who are running these offices and who are responsible for protecting the rights of citizens to information from the Government about the decisions that their Governments make.

We have had the previous Prime Minister of the National Government admit that he knows of Government departments that deliberately delay the release of information to citizens, contrary to the letter of the law. I mean, it is not even a breach of the spirit of the law; it is contrary to the letter of the law. That Prime Minister had no problems with the idea that Government departments are breaching the law in order to provide political protection to the Ministers who are making decisions. Colleagues from National have painted quite a rosy picture of the situation with the Official Information Act, but in fact the picture is much worse when you are talking to the people who are engaged in the process. The Prime Minister in question, John Key, who admitted to accepting that Government departments would deliberately delay information in order to protect the political interests of the National Government Ministers, used to also say: “Nothing to fear, nothing to hide.” So on the one hand, you know, he argued that if they had nothing to fear, they had nothing to hide, and on the other hand he celebrated the fact that Government departments deliberately delay information.

So this bill is simply a means to ensure that Government departments have an incentive to follow the law, because they do not want to be suffering financial penalties as a result, or having to bear the costs of those investigations—an incentive to work with the office to make sure that the investigations that the office is engaged in proceed quickly and openly and transparently, as they are required to do under law. It is actually very much a kind of National kind of corporate, neo-liberal approach to make those departments pay for the costs. Actually, I am surprised that National is opposing it. It is very much within the value set of the National Party—I am kind of surprised by that. But it is actually quite a small measure to provide that incentive for Government departments to meet the requirements of the law and act in service to the New Zealand public, who deserve information that they are entitled to in a timely and reasonable way that is not being withheld—

Sorry, the member’s time has expired.

I rise to take a short call to speak against the Ombudsmen (Cost Recovery) Amendment Bill. I am not one of these MPs who rush every time it is member’s bill draw time to see the biscuit tin being shaken, but I know a number of my colleagues do, on both sides of the House. What I can assure the House is that when the particular tin was shaken a few weeks ago, and this particular bill fell out, my learned colleague David Parker was not watching the tin, waiting with bated breath, to see whether his opportunity to make a difference in the New Zealand political situation was going to appear. In fact, he was sitting right beside me, and I do not know who was more shocked when he got the email—

💬 Hon David Parker: More pleased.

Sorry, more pleased, or shocked, or both. He had to recall: “Did I have something in there? What was it? When did I put in there?”, and so on. I could see some scurrying of papers as he sort of got his head around the fact that 5 years ago he was motivated to take—

💬 Hon David Parker: No, that’s not right. I had one out that you voted down recently.

Well, it seemed a long time ago, anyway—2012, according to these notes, which come from our communications team, so I am sure they are 100 percent accurate.

The point is that here we are having a conversation about a potential resolution that I think most of us would agree is trying to find a solution to a problem that arguably might have existed 5 years ago, when the Office of the Ombudsmen was under, arguably, a bit of pressure in terms of funding. But I think one can cogently argue that events and budget investment have subsequently taken this particular issue over and resolved many of the concerns my honourable colleague Mr Parker had when he took to his pen all those years ago.

In particular, there was the increase in spending that we have already discussed here—it was lifted by 67 percent from $9 million to $15 million. And particularly, I think, and we heard it discussed by my colleague Paul Foster-Bell, not only has there been an increase in funding that has resulted in the backlog, which was real, being addressed, largely—and certainly it will be largely cleared, I understand, by June 2018, which is year faster than planned—but, as often is the case, it is not just the money and the increased funding that have gone into the office that have made a difference. It has been the change in both people and process that has lifted the productivity of the Ombudsman’s office. My colleague Paul Foster-Bell stepped us through that, but, for completeness, I think the focus on early resolution and more flexible practices makes a whole lot of sense, and particularly the drive to have electronic and phone engagement, as opposed to, necessarily, always having to pack up and go and visit people face to face. The specialised staff that has come on board, which Paul Foster-Bell spoke so eloquently to, I think, has certainly assisted, and so has making the process more visible to the public by putting it out on the website and creating a greater understanding amongst agencies in respect of the guides and the role of the Ombudsman and how it progresses.

The other area that I have been impressed with was the statistic that now 70 percent of complaints are resolved within 3 months of receipt. That does not talk to an office that is critically underfunded. Indeed, it talks to an office that was under pressure, has had significant increase in funds relative to its initial budget, employed more appropriate and specialised people, rationalised and improved its processes, and is delivering a result that I think by any measure is effective. We have got a good outcome. So I think the intent had merit all those years ago, Mr Parker, but now, in my view, events and funding have overtaken this as an issue. Therefore, I do not see any reason to support the bill. Thank you.

I rise on behalf of New Zealand First to, I do not know, argue the point with people on the other side of the House who cannot be bothered making cogent arguments. They seem to imply, Mr Muller and Mr Doocey, et al., that more spending on this implies greater transparency, compliance, and accountability. That is the premise of their entire argument, and I do not know whether they have noticed, but for us on this side of the House, and for the media, it is getting harder and harder to get timely and meaningful information out of Government departments—more and more every day. I have to commend Mr Foster-Bell, before we go to the dinner break, for a beautifully irrelevant contribution.

Sitting suspended from 6 p.m. to 7.30 p.m.

Debate interrupted.