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disputes

The role of the Ombudsman in handling government disputes

Key Takeaway

The Ombudsman investigates complaints about the administrative actions of government agencies and local authorities in New Zealand. This service is free, focusing on whether decisions were fair, reasonable, and lawful, and can lead to recommendations for resolution. It differs from Disputes Tribunals, which handle private disputes.

The Role of the Ombudsman in Government Disputes

In New Zealand, the Ombudsman is an independent officer of Parliament who investigates complaints about the administrative acts and decisions of government agencies and local authorities. The Ombudsman's primary role is to ensure that government bodies act fairly, reasonably, and in accordance with the law [Source: Ombudsmen Act 1975, s 13(1)]. This service is free to complainants.

Jurisdiction: Who the Ombudsman Can Investigate

The Ombudsman has jurisdiction (the official power to make legal decisions and judgments) to investigate complaints against a wide range of public sector agencies, including:

  • Government departments [Source: Ombudsmen Act 1975, Schedule 1, Part 1]
  • Local authorities (such as city councils and regional councils) [Source: Ombudsmen Act 1975, Schedule 1, Part 2]
  • State-owned enterprises and Crown entities [Source: Ombudsmen Act 1975, Schedule 1, Parts 1 & 2]
  • Ministers of the Crown, in certain circumstances [Source: Ombudsmen Act 1975, s 13(7)]

The Ombudsman also investigates complaints about official information requests made under the Official Information Act 1982 (OIA) and the Local Government Official Information and Meetings Act 1987 (LGOIMA) [Source: Official Information Act 1982, s 28; Local Government Official Information and Meetings Act 1987, s 27].

Types of Decisions and Actions Investigated

The Ombudsman can investigate complaints about administrative decisions or actions that are:

  • Unreasonable, unjust, oppressive, or improperly discriminatory [Source: Ombudsmen Act 1975, s 22(1)(a)]
  • Based wholly or partly on a mistake of law or fact [Source: Ombudsmen Act 1975, s 22(1)(a)]
  • Wrong [Source: Ombudsmen Act 1975, s 22(1)(a)]

This can include complaints about delays, incorrect procedures, or unfair treatment by a government agency.

What the Ombudsman Cannot Investigate

The Ombudsman generally cannot investigate:

  • Matters where there is a right of appeal to a court or tribunal, unless there are special circumstances [Source: Ombudsmen Act 1975, s 17(1)]
  • Complaints against private individuals or companies (unless they are acting on behalf of a government agency) [Source: Ombudsmen Act 1975, s 13(1)]
  • Employment matters concerning state sector employees, except in specific cases [Source: Ombudsmen Act 1975, s 13(8)]
  • Decisions of courts or tribunals [Source: Ombudsmen Act 1975, s 13(7)]

The Complaint Process

  1. Making a Complaint: A person can make a complaint to the Ombudsman by completing an online form, sending an email, or writing a letter. Complaints should clearly describe the issue, the agency involved, and the desired outcome. It is generally advisable to try to resolve the matter directly with the agency first [Source: Ombudsmen Act 1975, s 15(1)].
  2. Initial Assessment: The Ombudsman's office assesses the complaint to determine if it falls within their jurisdiction and whether there are grounds for an investigation [Source: Ombudsmen Act 1975, s 17(1)].
  3. Investigation: If an investigation proceeds, the Ombudsman will typically contact the agency concerned to gather information and documents. The investigation is conducted privately [Source: Ombudsmen Act 1975, s 18]. The Ombudsman has significant powers to require information and evidence [Source: Ombudsmen Act 1975, s 19].
  4. Outcome: After the investigation, the Ombudsman will form an opinion. If the complaint is upheld, the Ombudsman can make recommendations (suggestions for action) to the agency to rectify the matter [Source: Ombudsmen Act 1975, s 22(3)]. These recommendations are not legally binding, but agencies usually comply with them.

Costs of Making a Complaint

There are no fees associated with making a complaint to the Ombudsman [Source: Ombudsmen Act 1975, s 15(3)]. The service is designed to be accessible to all members of the public.

What to Expect from an Ombudsman Investigation

Complainants can expect a thorough and impartial investigation. The process is typically informal and non-adversarial, meaning it does not involve court hearings. The Ombudsman aims to resolve complaints efficiently and fairly. The outcome may be a recommendation for the agency to change a decision, apologise, or take other corrective action. If the Ombudsman finds no fault, the complaint will be closed [Source: Ombudsmen Act 1975, s 22].

Ombudsman vs. Disputes Tribunal

It is important to distinguish between the role of the Ombudsman and a Disputes Tribunal. The Ombudsman investigates complaints against government agencies and local authorities. In contrast, Disputes Tribunals hear and determine disputes between private individuals or between an individual and a private business (or, in some cases, certain public bodies not covered by the Ombudsman's jurisdiction) [Source: Disputes Tribunals Act 1988, s 17]. The Disputes Tribunals Act 1988 governs the operation of these tribunals, which can make legally binding orders for claims typically up to $30,000 [Source: Disputes Tribunals Act 1988, s 13]. Therefore, if a dispute is with a private entity or involves a consumer issue, a Disputes Tribunal is typically the appropriate forum, not the Ombudsman.

When to Seek Independent Legal Advice

Individuals navigating disputes with government agencies, or seeking to understand the specific legal avenues available for their particular situation, may find it beneficial to seek independent legal advice. This can include advice on the strength of a complaint, alternative resolution pathways, or assistance with complex legal matters. Community Law Centres offer free legal advice to those who qualify and can provide guidance on these issues. For official information and assistance with the Ombudsman process, contacting the Office of the Ombudsman directly is recommended.

Key Resources