Friday, 9 March 2018

Update On Ombudsman

In November I posted on the High Court decision relating to the use of the term ombudsman in New Zealand. The Court of Appeal has now considered the issue and overturned the earlier decision. The decision is here 

The Court of Appeal looked at the historical development and use of the term. They comment in paragraph 8 of the judgment, that the need for legislative protection of the term ombudsman was driven by a concern that the use of the term outside the Parliamentary context had become increasingly widespread. Sir John Robertson apparently wanted a complete prohibition although this met with some opposition, when the then Minister of Consumer Affairs considered that the term had passed into common usage. Of course since this discussion in 1990 and thereafter, the term has become far more widely used particularly in universities, not just in North America but extensively in Europe and other places. This particular barn door has not only been open but destroyed in the following 30 years. But this factor did not loom large in the decision of the Court of Appeal.

It appears that the successor to Sir John Robertson, Sir Brian Elwood, issued criteria for considering applications for use of the name. He devised a two-stage test, the first of which was to balance the public interest in the use of the name against the undesirability of proliferation. The second test was a more elaborate examination of the use of the term, although the eight tests would look familiar to any ombudsman under the International Ombudsman Association criteria. Sir Brian opined that applications would be rarely granted, and only three have apparently been allowed. The most recent was of course my own application in 2011, described by Justice Simon France as an outlier. The Court of Appeal commented that my approval did not in fact shed any light on the use of the statutory discretion to use the term.

It is unfortunate that the Court of Appeal may not have been made aware of the criteria of the International Ombudsman Association, because the eight tests outlined by Sir Brian Elwood, are very similar to the criteria adopted by the IOA. There does not seem to have been any analysis of the very considerable amount of research and analysis over the many years since his decision, and the academic and other research from IOA members, found among other places, on their website and in the peer-reviewed journal published by the IOA.

But in any event the organisation Complaints Limited, the applicant in the High Court and appellant in the Court of Appeal pressed their case based on alleged invalidity of the Elwood policy. The Court of Appeal considered the categories of discretionary powers from previous authorities and found that the particular use was based on (paragraph 47)

 "Powers that by dint of the nature of the subject matter justify the establishment of a carefully articulated policy, but always with the reservation that no case is to be automatically rejected because it does not fit the policy"

They considered that the effect of the stage 2 factors is that the policy effectively amounted to a complete ban on the use, which was not what Parliament intended nor was it consistent with section 14 of the New Zealand Bill Of Rights Act 1990 (freedom of expression). They considered that the policy unduly restricted the scope of the discretion to a degree not contemplated by Parliament and precluded the decision-maker from taking into account other relevant considerations, in addition to proliferation and the risk of confusion.

It is regrettable that no consideration appears to have been made of the criteria in the IOA standards to set up an ombudsman office. Both the New Zealand Parliamentary Ombudsman and Complaints Limited do not appear to have considered the use and the large body of research from the IOA. This may have cut short the need for judicial review to the Court of Appeal in my view.

A consideration of the IOA standards would have supported the Court of Appeal's view about the unduly restrictive policy. So it will be interesting to see if the term can now be used more widely as a result. My thoughts are that use of the IOA standards would be of assistance in creating any new policy about the use of the term.

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