Tuesday, 14 November 2017

Ombudsman and the Statutory Protection

New Zealand was one of the first countries to introduce the office of the ombudsman after the Scandinavian countries. Our ombudsman scheme was established in 1964 under the Parliamentary Commissioner (Ombudsman) Act 1962 but it was not until the 1975 Ombudsman Act as amended in 1991 that the word "ombudsman" was protected by statute.

What changed since the origin of the office was a considerable expansion of the use of the term outside of the original use for the Parliamentary ombudsman scheme. In the United States, the term began to be used extensively for people appointed as an ombudsman to universities and similar tertiary institutions. There is a specific professional body where most affiliate, called the International Ombudsman Association, which operates an annual conference, a professional journal and training.

The New Zealand ombudsman became concerned about protection of the term and so arranged for an amendment to the act in 1991 restricting the use unless there was specific consent from their office. There are a number of statutory or industry bodies which were granted permission, including the Insurance Ombudsman (now called the Insurance and Savings Ombudsman) and the Banking Ombudsman. The only other permission was granted specifically to the office of the ICANN Ombudsman, where permission was given in 2011. That was of course an application which I made and which was granted subject to conditions that I not use the term in New Zealand because of the restrictions.

That was not a difficult condition because my office was global within the ICANN community. There were only ever a small number of referrals to my office from New Zealand, and the complaint handling software was based in Los Angeles, California. On a practical level I did a lot of the work online, but sitting at my office in Wellington, New Zealand, although I also travelled extensively to the ICANN meetings around the world.

This issue has now been the subject of an application for judicial review by Financial Services Complaints Limited, which runs an industry based service and wanted to use the term ombudsman. They considered that since other similar bodies have been granted permission, this restricted them in their marketing of the services. Their application was ultimately declined in an interesting decision from Justice Simon France issued in March of this year. The reference is Financial Services Complaints Limited v Chief Ombudsman [2017] NZHC 525.

In his decision he refers to some of the history of the term and the reason why the term became restricted. Interestingly, there was some resistance to the restriction from officials and also from the Minister of Consumer Affairs, although because of the passage of time the details are somewhat murky. The then ombudsman Sir John Robertson managed to persuade Parliament to introduce the restriction however. The history was outlined in a paper which he presented to the International Ombudsman Institute, which is an international body of mainly Parliamentary ombudsman. Citing from the decision and from his paper it is interesting to note:-

"While I have not achieved the total prohibition sought in the first place, the statutory power which I now have to control the use of the term “Ombudsman” is a practicable and sensible solution to the problems which I foresaw in 1985, at least insofar as New Zealand is concerned. We are a small country population-wise, where the Parliamentary Ombudsman is a well-established and, relatively speaking, well-known and understood concept. It was, therefore, important not to allow the positive influence which the office has been able to bring over the past thirty years, to the understandably at times contentious edge between the authority of the state and the rights of the citizen, to be diminished unnecessarily by the word “Ombudsman” becoming trivialized. I think there is some magic in the name “Ombudsman” which needs to be nurtured and protected in the public interest."

Ultimately the decision rested on issues of statutory interpretation and Justice France concluded by saying:-

"The application fails. The Chief Ombudsman’s policy is not inconsistent with the statutory purpose. Although it is legitimate to ask when a consent will ever be given under s 28A of the Act, the restrictive policy cannot be said at this point to have closed the door to any successful application in the future. The decision was not unreasonable."

What attracted my attention however was not the argument which was raised and the basis on which the application was refused. There was considerable emphasis on the need to protect the term, but no discussion at all on the use of the term outside of New Zealand. I mention this because of the very extensive use in the United States and Canada and also now Europe for university and industry ombudsman. The current membership of the International Ombudsman Association as cited from their annual report in 2016 was 744 – including a number of members from New Zealand. The judge's attention was not brought to the existence of this organisation and the fact that if there is concern about use of the term, then it does not take into account the very extensive use overseas.

But further than this, the judge was obviously not told about more recent research on the use of the term. There have been a number of learned papers written by authors from Queen Margaret University in Scotland where there has been a centre for research on ombudsman, although they use the term ombuds. This aspect was not discussed either in the decision, because the judge was not referred to this research from what I can read from the decision. This research introduces a new angle to the use of the term because the authors consider that the term "ombudsman" is gendered and therefore can be abbreviated to ombuds. In a paper on the University website they talk about an attempt to introduce the gender neutral term to Northern Ireland, which was rejected, in the words of Varda Bondy and Margaret Doyle, stating that the attempt failed when the legislature were deemed arguments about brand recognition were more persuasive than arguments about equality. See https://ombudsresearch.org.uk/2017/04/25/how-an-attempt-to-introduce-a-gender-neutral-title-was-rejected-by-the-legislature/ for the full article. There is forthright comment about the failure to recognise inappropriate use of gender specific terms.

The purpose of my note is to consider whether some of the larger issues about the extensive use overseas and about the gender of the term should have been considered in this argument. I raise it because I wonder whether this needs to be looked at in a bigger sense. I speculate whether the term ombuds could be freely used in New Zealand, because of the specific and now perhaps old-fashioned term ombudsman does not recognise gender diversity. The last word will be from the Court of Appeal as I understand the matter is set down there for argument later this year.

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