The Council has written to the Speaker of the House of Representatives today, about the issues with the appointment of the next Ombudsman, and made an Official Information Act request to the Ministry of Justice. This blog post is to explain why, and the letter is reproduced at the end.

The position of Ombudsman is one of the most significant in Aotearoa New Zealand’s democracy. The first such role created outside of Scandinavian countries since the eighteenth century, it led the world in 1962 as a means for people to seek redress for complaints about mistakes or unreasonable decisions made by government officials.

The job title sounds sexist to modern ears, but derives from the Swedish for ‘representative’. The Ombudsman was the person to whom parliament outsourced the job of listening to ordinary people’s complaints about the state doing something wrong, and this is at the heart of our Ombudsman’s role. The Ombudsman is not a government official, but a parliamentary one – they are an Officer of Parliament. (The other Officers of Parliament are the Auditor-General and the Parliamentary Commissioner for the Environment.)

In 1975 the law that created the Ombudsmen was rewritten, to enable more than one Ombudsman to be appointed at once, and for there to be a Chief Ombudsman who was the chief executive of the Ombudsmen’s office.

In 1982, responsibility for investigating Official Information Act complaints was added to the Ombudsmen’s responsibilities. In 1987 the Ombudsmen gained a similar function in relation to the Local Government Official Information and Meetings Act.

The Ombudsman now also has responsibilities in relation to whistleblowing, Oranga Tamariki, the UN’s disability convention, and as an independent inspector of places of detention to enable New Zealand to comply with the UN Convention Against Torture.

In other words, the position of Ombudsman is not only central to our rights to participate in our democracy and hold ministers and officials to account under the OIA, but to people’s ability to get administrative justice from local and central government, and for vulnerable groups of people to have their rights protected.

Given how vital the Ombudsman is to the integrity of the country’s democracy and to the protection of people’s human rights, it is essential that the process for appointing Ombudsmen is completely above board and handled with great integrity.

Unfortunately, we have reason to doubt that this is happening at the moment.

The Ombudsman is appointed by the Governor-General on the recommendation of the House of Representatives. In practice, Parliament votes to recommend the appointment of the person chosen by the Officers of Parliament committee. There is an MP from every party in Parliament on the committee, and it is chaired by the Speaker of the House of Representatives. The committee instructs parliamentary officials to hire a recruitment firm, which publicly advertises the job, receives the applications and produces a shortlist for the committee to consider. It normally takes around six months for the recruitment process to run from start to finish.

People are appointed as an Ombudsman for a five year term, but they can be reappointed. An Ombudsman can resign at any time, but the law says they have to resign when they reach the age of 72. This was in line with the retirement age for judges, although that has since been lowered to 70 years old. The law also allows for a temporary Ombudsman to be appointed if the Chief Ombudsman certifies that this is necessary for the business of the Ombudsmen to be conducted. Here’s an example from 2007.

The current Ombudsman was first appointed in 2015. His term of office began on 10 December 2015 and was to expire on 10 December 2020. In April 2020, the Officers of Parliament Committee reported to MPs that

The Chief Ombudsman has indicated that another term of 3 years, until around April 2023, is his preference and that he would want to discuss and engage with the committee about future plans at that time.

In spite of this, the Ombudsman was reappointed for five years, until December 2025. This was strange, given the Ombudsman’s preference to only be reappointed for three years. Stranger still, since the Committee must have known that the Ombudsman would reach the statutory retirement age of 72 on 16 March 2024. Why reappoint someone for a duration past the age that the law says they must retire?

What would normally happen when a parliamentary committee is responsible for recruitment and appointment of an office holder is that an official in the Office of the Clerk would have a calendar in which they would make an entry saying something like, ‘Begin the process to recruit the next Ombudsman’. Since the officials would know that it takes about six months to run the recruitment process, and when the current Ombudsman would have to step down due to the legal requirement for retirement, the date they would have marked in their calendar should either have been around July 2022 (given the Ombudsman said he wanted to step down in April 2023) or by June 2023.

In spite of the fact that Parliament has been recruiting Ombudsmen for 60 years, this does not seem to have happened this time around.

The question no journalist seems to have asked the Speaker or the Clerk is:

Why didn’t you start the recruitment process in time, knowing what the law says about the Ombudsman’s retirement?

In March 2024, the fact that the Ombudsman had written to the Speaker to resign was publicised, in articles on Radio New Zealand’s website.

These were peculiar as they didn’t ask that basic question to the Clerk or Speaker, and instead focused on the issue of statutory retirement ages and whether they were discriminatory.

Today, another article on the subject was published by Radio New Zealand. In this article the Ombudsman was reported as saying

he had received a report from the Offices of Parliament Select Committee on Wednesday, and advice from the Clerk and the Speaker.

The report said while his resignation had been accepted, there was the ability under Section 5 of the Ombudsmen Act for someone who had resigned to not cease carrying out their duties until a replacement is found.

The Council finds this interpretation of section 5 of the Ombudsmen Act peculiar. Here’s what section 5 of the Ombudsmen Act says:

5   Term of office of Ombudsmen

(1)  Except as otherwise provided in this Act, every Ombudsman shall hold office for a term of 5 years.

(2)  Unless his office sooner becomes vacant, every person appointed as an Ombudsman shall hold office until his successor is appointed. Every such person may from time to time be reappointed.

(3)  Any Ombudsman may at any time resign his office by writing addressed to the Speaker of the House of Representatives, or to the Prime Minister if there is no Speaker or the Speaker is absent from New Zealand, and (except in the case of an Ombudsman appointed under section 8) shall so resign his office on attaining the age of 72 years.

If the Ombudsman has resigned – as we are told he has in order to comply with section 5(3) – there is a vacancy for the role.

Since he has vacated the role, then the “person appointed as an Ombudsman” cannot “hold office until his successor is appointed” under section 5(2).

It is possible for the Governor-General to appoint a temporary Ombudsman, as we pointed out earlier. But under section 8 of the Ombudsmen Act, that can only happen if the Chief Ombudsman provides the Governor-General with a certificate they have signed “to the effect that, in his opinion, it is necessary for the due conduct of the business of the Ombudsman under this Act that an additional Ombudsman should be temporarily appointed.”

But for the current Chief Ombudsman to provide the Governor-General with a section 8 certificate, he must have done so before resigning the position. Also, since the section refers to “an additional Ombudsman”, this implies ‘in addition to the current Ombudsman’. But if the position is vacant due to a resignation, how can it be an “additional” Ombudsman?

We’ve asked the Speaker for the report and advice that the Ombudsman referred to in his comments reported by Radio New Zealand, and made an OIA request to the Ministry of Justice for any correspondence both about the appointments process and possible amendments to the Ombudsmen Act.

As we’ve outlined, given the vital importance of the role the Ombudsman plays in protecting our human rights and enabling our democratic participation, the process for appointing or re-appointing an Ombudsman must be squeaky-clean and above board. The current shambles looks like anything except that.

---

Rt Hon Gerry Brownlee
Speaker of the House of Representatives
Chairperson, Officers of Parliament Committee
Parliament Buildings
Wellington 6160

By email: Gerry.Brownlee@parliament.govt.nz
cc: op@parliament.govt.nz

11 April 2024

Dear Mr Brownlee,

Appointment of a new Chief Ombudsman

The Council has been monitoring with concern the media coverage regarding the position of the Chief Ombudsman, and the need to recruit his successor.

Radio New Zealand today published an article entitled ‘Chief Ombudsman Peter Boshier to stay, despite resigning over age rule’.

The article reports Mr Boshier as saying

he had received a report from the Offices of Parliament Select Committee on Wednesday, and advice from the Clerk and the Speaker.

The Council is concerned about the reported interpretation of section 5 of the Ombudsmen Act 1975 and would like to read the report, and the advice from both the Clerk and yourself. We are sure others who care about the integrity of one our constitution’s most senior positions would also like to read them, and there is a strong public interest in publishing the report and advice. Please could you provide us with copies of the report and both sets of advice, or publish them on Parliament’s website and send us the link.

The Council also notes that the Officers of Parliament Committee has initiated an Inquiry into the recruitment of the next Chief Ombudsman. The Council would like to appear before the Committee in relation to this Inquiry. Please can you send us details of how to do so.

Yours sincerely,

Thomas Beagle
Chairperson