Ombudsmen (Cost Recovery) Amendment Bill

I think what the National members opposite need to realise and acknowledge is that this bill put before the House this evening by the Hon Mr Parker is not just a cost recovery exercise. Yes, that is in the title, but the reality is that this is about disincentives and this is about internalising the cost of non-compliance to Government departments, and in particular the Government. They need to feel the pain, as it were, of not complying, not being responsive, and not being fully transparent. This, I remind the members, is a very small step in that direction. This is about non-compliance. It is about making those departments accountable, and we need to move on. I just want to ask the members opposite whether they could get with the programme. We need a Government that is accountable.

It is best to simply finish on commenting on the current state of the fourth estate, and say that it is undermanned, under-resourced, and it seems at the moment that the Government is—how do I put this politely—playing the situation. We, the members opposite, and the media are not getting the information that we want in a timely fashion. When we do get it, Mr Parker brought up several examples of redacted information well past the time that it was due.

I just want to conclude by saying that New Zealand First absolutely supports this bill. We do support it through the first reading. We would like to hear what the public has to say. We would like to hear what the experts have to say on the issue, and I would suggest to the members opposite that this would be a good conversation to have in a select committee. Thank you.

Getting with—what did you say? Getting with it? Getting on the same planet? Getting up to speed and on action? Mr Tabuteau, this bill was put in the ballot 5 years ago.

💬 Hon David Parker: No, it wasn’t.

OK, when was it put in the ballot, Mr Parker?

💬 Hon David Parker: 6 months ago.

Well, it was Mr Shane Jones’ member’s bill, and it is way out of date, way past its use-by date.

It is interesting coming into the latter part of the debate, you do learn a lot of stuff around the history of the ombudsmen—from Mr Paul Foster-Bell, for example. I did not realise we were one of the first countries to create that position. And, of course, we continue to lead the development of the Office of the Ombudsmen.

As I say, this bill has passed its useful date. I was a little bit surprised to see David Parker’s name on the bill because I thought it would not be a typical bill from Mr Parker. The last one that I saw from Mr Parker, at least, was the Minimum Wage (Contractor Remuneration) Amendment Bill, and that was an interesting bill. It had a bit of substance and there was good debate around that. But this—this is well past its use-by date.

There are two strands to the bill, that I can see. The first is around funding. It is called a cost recovery amendment bill. So the question is whether the Office of the Ombudsmen is underfunded. Does it need to cost recover in the first place? The statistics from the Office of the Ombudsmen tell us that 70 percent of new complaints are dealt with within 3 months. They have reduced their number of complaints on hand to under 1,400, and they are on track to halving the number of complaints by 30 June 2017. In fact: “It is clear that soon we will have no backlog.” So that does not look like an office that is underfunded. They are getting the job done efficiently and effectively.

The problem, also, with the idea that you go cost recovering from an independent agency is that the perceived independence of that agency must be lost.

💬 Hon David Parker: Why?

It is important—well, because if you are paid by a second party you are only interested in increasing the business with that second party, if you are going to get paid for it. If there is any transaction based on the volume of business then there is a perceived incentive to do more business, and that is what we cannot have in an independent Office of the Ombudsmen.

The second strand to this is that the fine, or the cost recovery fine, if you like, the cost to do business, should be, according to Mr Parker, an incentive for the agencies to behave—to behave more appropriately, quicker, faster, and more efficiently in getting their answers to the office. But, again, it is out of date.

We need only go to the Ombudsmen’s office’s website to see, only 5 days ago, 5 May 2017: “Inside the Office of the Ombudsman—An update on what’s going on in the Office of the Ombudsman to increase openness, accountability, and good administration.” This was a speech by the Chief Ombudsman—so only 5 days ago. The thing that has surpassed the notion of this bill is that there is a huge amount of transparency. The transparency is what I think David Parker is looking for in this bill, to get those agencies to act more quickly. It is not a fine, a compliance cost, or a cost of recovery that is going to motivate those agencies to behave. It is daylight, it is transparency, and that is what the Office of the Ombudsmen has been doing and will continue to do. It leads the world in transparency and lack of corruption, and I commend the office for doing the work that they do.

Tēnā koe, Mr Deputy Speaker. Thank you. I am very pleased to stand and support the Ombudsmen (Cost Recovery) Amendment Bill. I think that the speeches we have heard from Government members show a fundamental misunderstanding of the bill and what it will achieve.

The Chief Ombudsman Peter Boshier recently described the Official Information Act as the linchpin of openness and accountability. Yet, under this Government, we have seen a politicisation of the Act. We have seen the Prime Minister describing how his Ministers will help ensure that departments wait until the 20-day deadline for the release of official information just to slow down the whole system. We have seen large redactions in documents that are released. We have seen journalists and members of the Opposition routinely denied information. When the former Chief Ombudsman Dame Beverley Wakem did her report Not a game of hide and seek in December 2015, she concluded that there was nothing fundamentally wrong with the Official Information Act but that it was the way in which the Act was being executed that was the problem, that there was gaming of the Official Information Act going on, that departments were putting off releasing information until that 20-day period, and that information was not being provided in a timely way. While she concluded that there was no evidence of direct political interference, there was certainly an atmosphere of suspicion and distrust amongst those working with the Official Information Act, both inside and outside the Government. It is this problem that this bill will actually go some way to redress.

It has been quite surprising that the Government has rejected the notion of the Ombudsmen’s office being able to recover costs from Government agencies, because, of course, under the Resource Management Act (RMA), Nick Smith changed that Act so that councils have to discount the cost of processing resource consents to applicants if they exceed the 20-day processing time that is set out in the Act. Can I quote the Minister for the Environment: “I know some councils are uncomfortable with these financial penalties for lateness but if it is good enough for the goose it is good enough for the gander. Councils put penalties on rates if they are paid late so it is fair enough that when councils are late, they too face financial penalties.” So if this Government has put in place penalties on councils when they are late in processing resource consents under the RMA, why is it not supporting this bill, which would do something similar in allowing the Ombudsmen’s office to recover costs from Government agencies when they miss that 20-day deadline, which is in the Official Information Act, to ensure that information is provided in a timely way?

The presumption at the heart of the Official Information Act is that information should be released unless its release is prejudicial to New Zealand security, an individual’s personal privacy, a company’s commercial position, or those constitutional conventions that protect free and frank advice by officials to Ministers. But it is the Government that is undermining that presumption that information should be released by politicising the way in which the Act is implemented, by ensuring that chief executives and senior staff game the system, effectively, by delaying release and putting those big slabs of blackness through documents that are eventually released.

Yes, this is a small step; yes, the Ombudsmen’s office is making substantial progress in reducing its backlog of complaints; but this bill is about ensuring that Government agencies comply with the timelines in the Act. It is not, as members opposite have tried to suggest, dealing with the issue of how the Ombudsmen’s office is actually performing, because, with that extra funding that the Parliament voted, the office has been able to employ additional staff and has been able to get on top of the backlog.

But there are still problems. In terms of Government agencies, the statistics that were released for the first time earlier this year about compliance with the Act did show that at least a quarter of Government agencies were not able to provide official information on time, for at least 80 percent of the time. So that is a quarter of Government agencies that are not meeting the deadlines under the Act. This bill will go some way to encourage them to do that by their having to ensure that the Ombudsmen’s office can recover costs.

I rise in opposition to this, the Ombudsmen (Cost Recovery) Amendment Bill. There are three areas I will cover if time permits. The first is the issue of resourcing, because, of course, the bill claims very clearly in its explanatory note, despite what the previous speaker, Eugenie Sage, said, that this is all about resourcing the Ombudsmen’s office, which it claims is under-resourced. But, as the previous speaker did acknowledge, since 2012, when this bill was first in the ballot, funding has increased by over 67 percent, from $9 million to just over $15 million. More importantly than simply the money, it is acknowledged that the office is getting well on top of its workload and, in fact, was forecast to clear the backlog, I think, a year sooner than had been projected earlier.

Another point I would like to make around that resourcing is that it is a typical failing, I would argue, with Labour members—and it dates back to the previous Labour administration—that they claim that simply throwing more money at something is going to fix the problem.

💬 Hon David Parker: It doesn’t throw more money at it.

Well, it does, because if you are recovering costs, presumably, you are going to use that money to do something. It is, through another channel, throwing more money at a problem. They do not map out what they will do with it. They do not map out what that additional resource will deliver. They just say: “Give us more money; everything will be fine.” We saw that when we took office in 2008. The Labour administration had just thrown money at the Public Service, and, actually, it was more money for less delivery. So, actually, it does not give a lot of confidence: the way the bill claims to do something but not show how.

That is further reinforced by the lack of policy detail, something that is also endemic in Labour members’ bills in this term. So let us see what this is going to do. It is not necessarily going to charge an agency if it is late—no. We have got no idea what it is going to do, because what it says is that the Ombudsman will determine and specify what costs can be recovered and the conditions under which they can be recovered. So the member is asking Parliament to endorse something where we do not actually know what the conditions are and what costs could be recovered when, where—and we do, certainly, know from whom. That is typical them. That is typical of the way they approach their members’ bills.

The potential risk from that is that if the Ombudsman sets the bar a bit low, then we could, quite frankly, and I am certainly not going to accuse anyone of making spurious complaints to the Ombudsman, find a lot of situations where—because, presumably, if they undertake the investigations, they are going to want to recover the cost during the investigation, not afterwards—costs are being recovered from agencies where, ultimately, the investigation finds that there were no fundamental grounds to the complaint. That risks the Ombudsman then deciding that in order to help protect a potential unfairness, potentially, where agencies are being charged unreasonably, then they will actually toughen up the criteria for permitting those complaints to be investigated. Equally badly, they could even set the bar too high for the grounds to initiate the investigation. Equally, both of those risk, in effect, diminishing access to the services of the Ombudsmen and the power that the office can operate under.

So I would argue that Parliament should be determining that policy, or, at least, Parliament should have a very clear idea about what is in the scope, really, of what the Ombudsman might be determining, or, in fact, maybe even Parliament should make the determination. But the detail is not there. It is simply not there. I do not believe that we, in good conscience, could support that.

The third point that I would make—I think this is something that any member putting forward a member’s bill is subject to—is how the public might perceive the motivations behind it. I watched and listened to the sponsoring member’s speech to introduce this bill, and, with no pun intended, he laboured the agri-hub situation repeatedly through that 10 minutes. I have to wonder whether the public, viewing that speech and looking at this bill, may well form an opinion of their own that perhaps the member is a little unhappy with the results of that investigation—the findings that, fundamentally, showed no deep wrongdoing or corruption. The member was unhappy with the findings of the investigation and believes that, with just a little bit more money, the Ombudsman could have uncovered the wrongdoing and corruption that he is so certain was there. All he needed was a bit more money to prove it. I reject this bill and call on other members to do likewise.

I do not have to defend my conduct in respect of the Saudi sheep saga. I think the Auditor-General’s report is public record of that disgraceful piece of history in New Zealand. The point I was making is that we could not get to the bottom of it through the Official Information Act. It took the Auditor-General to do it because we could not get there under the Official Information Act. We did get there, through the Auditor-General.

I want to deal with some of the points that have been made. The last contribution by this man, Brett Hudson—I do not know; the lack of logic in that. He stood up and said we do not need this legislation because since 2012 there has been a 66 percent increase in the funding of the Office of the Ombudsmen, in order for the Ombudsman to do his or her job—66 percent. Why, Mr Hudson, do you think they needed a 66 percent increase in budget to do their job? Because Government departments are not meeting their obligations, and therefore people are complaining to the Ombudsman, and the Office of the Ombudsmen is having to spend 66 percent more than they used to in order to make Government departments do what they should do.

That is proof that there is need of another intervention. Instead of, as the member would have it, just chucking another 66 percent budget into the Office of the Ombudsmen and spending an extra many millions of dollars every year to make Government departments do what they ought to do, why do we not create an incentive for them to do it, without having to spend all of that extra money through the Ombudsmen’s office? That is what this bill would do.

I heard that there would be unintended consequences, and someone else said that that was going to increase the business of the Ombudsman, or something like that. The Ombudsman does not control the flow of complaints. The Ombudsman has to act on complaints. It is only when they receive a complaint from members of the public that they can act upon it. It is the public who makes complaints, not the Ombudsman. The Ombudsman has to respond to complaints. I think that deals with that particular issue. I do want to thank Paul Foster-Bell for correcting the name of Sheik Al Khalaf; I am sorry I got that wrong.

There is no doubt in my mind that we do have a slowly degrading compliance with the Official Information Act. We do have the no-surprises policy being taken too far, and I think if you talk to any journalist or Opposition MP they will say that, more often than not, they are taken to the end of the period under the Official Information Act if it is embarrassing to the Government, and then they are often refused documents. And then, if they get them, they are subject to redactions that are unjustified. And some of this is driven by the desire of departments to please their Minister, rather than just independently, as they have a duty to do by law, abiding by the terms of the Official Information Act. I know that concerns the Ombudsman.

In respect of the backlog of complaints: that is true. I agree that backlog is being worked through well by the Ombudsman. And I am not criticising the Ombudsman. What I am doing is trying to create an incentive. I think the most powerful part of this incentive would be that if Government departments were often recalcitrant, then it would actually come up in financial reviews. I know that I, as an Opposition member, would have as one of the questions on the annual review of the Government department: “How often were you pinged by the Ombudsman?”. And, actually, if someone was pinged frequently I would be asking the chief executive and I would be raising it in the report back to Parliament to say that it looks like this department, according to the Ombudsman, is not doing this properly.

The Ombudsman can be trusted to exercise their discretion appropriately as to when they ping a Government department, but I can tell you, in some of these cases that I have had experience with I have got no doubt—absolutely no doubt—that there was wilful obstruction on the part of the Government departments in disclosing what legally ought to have been done.

And what was the consequence for them? None. What was the effect of it? Delay. What was the political effect of delay? The Government got off the hook. That is why they were delaying in the first place, and that is why they were making the redactions. I would hope that this bill does get the support of sufficient members in the House. It is clear that the National members are not going to vote for it, but we will see whether some of these other parties—like the ACT Party, which says that it believes in appropriate incentives—whether their vote comes through. Thank you.