Ombudsmen (Protection of Name) Amendment Bill

I move, That the Ombudsmen (Protection of Name) Amendment Bill be now read a second time.

This is a very simple bill. It does a very simple job, which is to protect the value—the mana, you might say—of the name of our Ombudsmen. It does so because even though there is a provision in the current legislation that allows others to apply for the use of the name “ombudsman”—and it tends to be in dispute resolution type of services—there was a recent Court of Appeal decision that, effectively, said that because permission has been granted to two outfits to use the name “ombudsman”, therefore any decisions by the Chief Ombudsman to allow the use of that name in the future have to take into account the market advantage the current licensees, if you like, of that name have. It is, in a sense, contradictory to the prima facie prohibition contained in the current legislation on the use of the name “ombudsman” without the permission of the Chief Ombudsman.

So this bill is about protecting the integrity of that name, and I’m going to come to, shortly, what that is actually about. But it is about recognising that the Office of the Ombudsman holds a very important and special place in our constitutional framework and our Public Service framework because they are the kind of go-to people when somebody has a complaint or an issue about the conduct or the service that they have or have not received from a Public Service.

The name goes back 200 or 300 years, apparently. It originates from Sweden, I understand. It means, in its original language, champion for the people or advocate for the people—which is what an ombudsman actually is. It is a person who you can go to for not necessarily low-level but reasonably good advice and a mediatory approach to resolve your problems.

Before I go any further, can I thank the members of the Governance and Administration Committee, who took the submissions on this bill. That select committee received 11 submissions, and six of the submitters spoke to their submission. The submitters engaged with the bill very well. I’m pleased to say that the committee has taken one consideration on board, and recommended a helpful change to the bill. In that respect, the select committee has recommended clarifying the scope of the savings provision of the bill, which allows two existing private sector entities—the Banking Ombudsman Scheme Ltd and Insurance and Financial Services Ombudsman Scheme Inc.—to continue to use the word “ombudsman” in their names; they were granted permission to use the name some time ago, and they will continue to use it. What the select committee has recommended is a form of words that means that if all those entities do is change their corporate structure, they continue to use the name, but if they sell themselves or, you know, they want to get out of the business, then they can’t transfer that name. It applies to the entities, in whatever corporate structure they feel, that currently have the rights to use the name.

As highlighted during the first reading, the bill makes important changes to uphold that public confidence in this very important public role. As I say, the name is meant to be protected, but as a result of two decisions taken by previous Chief Ombudsmen and now this Court of Appeal decision—that, in my view, has distorted the intention of the original provision in the Act and turned it into sort of a presumption that permission to use the name will be granted. Whereas, actually, the presumption is meant to be the other way, and it doesn’t matter if two have got it and other people apply for it and don’t get it—that should not be a relevant consideration.

The easiest way to deal with that is simply to say it’s not going to be used—the name is not going to be used—and it should not be left up to the Chief Ombudsman to be making that decision. So what it will do is, effectively, come back to the Minister of Justice, who is responsible for the ombudsmen legislation, to make any future decision about that. So the name is now restricted. It can only be used by a parliamentary Ombudsman appointed under the Ombudsmen Act, or a person appointed to a position established by the Chief Ombudsman, such as an assistant or deputy ombudsman, or a public sector department or organisation approved by the Minister of Justice. So it will retain its Public Service sort of ethos that goes round the role.

As mentioned, the bill includes a savings provision for two existing entities. They’ve got the name. They’ve used them for a while. We’re not going to take that away. But that is it—that will be it. In future, only public entities can use the name. It includes a savings provision in respect of the private sector entity Financial Services Complaints Ltd. That entity had an application to use the name. It had been knocked back once. They went to court. That led to the Court of Appeal decision. Their right to continue that application is allowed, but that is it. That is the right that is preserved for them, because up to that point, they, in fact, had not been granted permission to use the name, but the Chief Ombudsman must consider that application, in any event.

I’ve laid out the importance of the role, why it is important, and I just think it is important—the two private entities that use the name, the reality is that I get variable commentary about the quality of the service they get. They do not operate to the quality of our Ombudsmen—the genuine public Ombudsmen—and I think it is important, given the totemic role that that office plays as a safety valve, as a place where people can go when they are aggrieved by the conduct of anything in the public sector, that the status of that office and that role of Ombudsmen be maintained. That’s what this bill seeks to do.

So on that note, this bill will continue to signify the uniqueness of the parliamentary Ombudsmen and therefore uphold public confidence and understanding in it, and on that basis, I commend the bill to the House.

Thank you, Madam Speaker, for this opportunity to speak on the Ombudsmen (Protection of Name) Amendment Bill from the National Party perspective. There’s not a lot that is objectionable about what we’ve just heard from the Minister, except to say that on this side of the House, we don’t regard the need for this legislation in the same way that, clearly, the Government does. We regard it as something of a solution in search of a problem. Notwithstanding that there are situations in which, at least theoretically, there might be a problem arising, I think it might be one of those classic cases where we say, sure, a thing works in practice, but does it work in theory?

It seems to us that there’s not a lot of danger of real, genuine confusion between different offices of the Ombudsmen, official versus unofficial, and so forth, such that there would be a harm that needs to be corrected on the statute book. I note various remedies existing in our law—passing off and fraud, as well, is, as the Minister’s already referred to, in statute already—that prescribe ways that the usage can already be limited. So I think it’s probably sufficient, simply, that we rely on those.

I think as well that it’s worth considering a broader approach to the protections of names if this is an interest that the Government has in terms of law reform. For example, one can have judges of competitions. One could be asked to judge any manner of different things without being a judge with a capital “J” who sits in a courtroom wearing a wig and so forth—at least in the way that we popularly conceive such characters. So it doesn’t seem to be part of a coherent framework of law reform, and, in any case, it would be a relatively minor example of something that would need changing. For all those reasons, we’re not proposing to support its passage and any more use of the House’s time accordingly.

Thank you, Madam Speaker. It’s a pleasure to take some time to talk about this, the Ombudsmen (Protection of Name) Amendment Bill. It was brought through the hard-working Governance and Administration Committee, which I am a member of.

💬 Fletcher Tabuteau: Cry me a river.

A proud member, of course, Mr Tabuteau. But I want to just say that I think the heart of this was around public confidence, and I guess that whilst we may have been led to believe that this was maybe time-wasting or going down a track where we were simply filling up time, it’s important to get this right.

It’s interesting that the term “judge” was used as a comparison, because that’s exactly why we wanted to clarify it, in terms of making sure that for anyone hoping to attach such a name to their operation—entity, or an individual—there was some clarity around that. Certainly, I remember during the submissions process we had several people come in and just talk about their views. We had people who referred to different terms, even around the gender aspect of the name “ombudsmen/man”. So even that was debated, where we were able just to get some clarity on that as a word, have a look at the global context for that term, and then also pick apart the context of those who are using it in Aotearoa New Zealand. So that term, and particularly being led by those, obviously, that are holding the name now, came through. Then we were able to make a decision on saying, “Look, here’s what we have now.”

So we heard the Minister, the Hon Andrew Little, talk about that in terms of keeping those who have it now, let’s keep that, and they gave some very good reasons why. But anyone new or anyone wishing to tag it on—and if I just reflect globally, again, there were several, some humorous, additions for different sectors where people had put the name “ombudsmen” on to the name of the individual or given it some credibility and, therefore, led the public to believe that that entity or that role had probably more, I don’t know, jurisdiction, maybe, or more status, more mana, than the role really should have had. That’s why I think—going back to what I said at the start, in terms of upholding public confidence and why the Governance and Administration Committee spent some time looking at that and the formation of this bill.

We also look at it in terms of the coalition Government’s position. We look at the prohibition—and just to reinforce that, it is to prevent the risk of proliferation. So I’m glad that that was debated, teased out, and sorted. Also, in terms of setting precedent—and the example was the term “Anzac” and, again, public confidence and trust in what the word is attached to. We clarified that. Also, we talked about the uniqueness of the constitutional role in New Zealand that Ombudsmen hold—

💬 Hon David Bennett: Mate, you’re going to do a speech on this?

—that’s right—and we need to ensure that the significance of that is not undermined by the confusion. So I’m certainly proud that that was talked to, too.

We amend the 1975 Act that’s in place and sort that out, and we went through that on the select committee too. Of course, I’ve mentioned, too, around those who have got the existing—the name that’s been tagged to, now, the Banking Ombudsman’s one. She certainly does a great job and came in and talked through her reasons, and the Insurance and Financial Services Ombudsman, too. So, currently permitted, and they will continue to be used by those two entities. Finally, just the protection of the right of the Financial Services Complaints Ltd [Interruption]—I commend this bill to the House. Kia ora.

Thank you, Madam Speaker. I thought that the time had nearly elapsed, but this is completely a bill that is of no necessary need and the people of Hamilton won’t want to see this bill progressed at all.

Debate interrupted.

The House adjourned at 6 p.m.