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Essential public safeguards to democracy

The offices of the Ombudsman and the Controller and Auditor-General are two important independent statutory agencies charged with protecting aspects of the public interest against excessive or unnecessarily coercive actions by the government and its departments. By Peter Dunne.

The Ombudsman’s office has the power to investigate approximately 4000 public sector agencies across New Zealand. It does not have executive authority, but Ombudsman’s recommendations are normally taken very seriously by the government and rarely ignored.

The Controller and Auditor-General’s role is two-fold – responsibility for the annual financial audit of about 3500 public bodies, including schools and other public bodies, and ensuring that government funding is both spent for the purposes for which it was appropriated, and in the best possible way.

Like the Ombudsman, the Controller and Auditor-General is an officer of Parliament, meaning they report directly to Parliament, rather than the government of the day.

Just before Christmas (2022) both offices released separate highly critical reports on unrelated aspects of the government’s response to the pandemic.

The Ombudsman’s report on the way the controversial MIQ system operated was extremely scathing. He said; “I acknowledge that another type of system, which provided for consideration of individual circumstances would have been more complex, time-consuming, and costly to implement … But I do not consider these challenges provided sufficient rationale for MBIE not to advise and recommend to decision-makers options for such a system – the impact on people was too severe. A fundamental human right was being limited and people’s lives were being significantly impacted.”

Following an investigation into the initial all-of-government response to the pandemic in 2020, the Controller and Auditor-General concluded that “no system or plan could have fully prepared New Zealand for Covid 19’s impact” but that “there were shortcomings in our national security, emergency management, and health systems that could have affected the effectiveness and efficiency of the response.”

The report concluded that the need for action to resolve these issues was urgent and should not await the findings of theRoyal Commission, due to report in 2024.

These are substantial reports which deserve a response from the government. But, so far, there has been no response at all from the government to the Auditor-General’s report.

MBIE’s response to the Ombudsman’s inquiry was grudging at best. While it “welcomed” the report, it quickly defended the MIQ system because it enabled “almost 230,000 travellers to safely return home and cared for over 5000 community cases.

“It was responsible for stopping more than 4600 cases of Covid 19 at the border.” Later in its statement it did offer a passing acknowledgement that; “the allocation system was not perfect and that some people were unable to secure a place in MIQ whilst in extremely challenging circumstances”.

However, MBIE simply ignored the Ombudsman’s conclusion that its actions had “failed New Zealanders” and his recommendation that it should apologise to those who had been adversely and unfairly affected.

In media interviews and in Parliament (the week 12-16 December 2022) the Prime Minister also ignored the apology calls, and reiterated instead that, while not perfect, MIQ had played a valuable role in securing the country’s borders from Covid.

Two important issues arise from these responses or, more correctly, non-responses.

First, the cavalier and dismissive way both reports have been treated goes against the convention of how recommendations from these two independent Officers of Parliament are usually treated. Successive governments have placed much weight on Ombudsman’s and Auditor-General findings, even if they have been politically inconvenient, and have worked to address the points of concern.

However, the implicitly defiant tone of the response from both the Prime Minister and MBIE to the Ombudsman’s report suggest that may now be changing, and the government may be feeling less inclined to heed what the Ombudsman has to say.

Second, the public will be the loser from any move to downgrade the weight attached to reports from the Ombudsman and the Controller and Auditor-General.

While, like governments, the Ombudsman, and the Controller and Auditor-General will not always get it right, they are an important independent public safeguard against a government’s coercive powers being used excessively and public funds being spent inappropriately.

Therefore, any attempts to downgrade their significance, or the worth of their findings, should be strongly resisted.

As it stands, New Zealanders do not have too many protections against the excesses of government. Our Bill of Rights is not entrenched, and its provisions can be easily bypassed by a simple majority in Parliament.

The Courts can issue declaratory judgements about government actions, but they have no authority to “strike down” legislation passed by Parliament. The offices of the Ombudsman and the Controller and Auditor-General are therefore at the forefront of the safeguards available to individual citizens seeking redress, and traditionally been strong performers in that regard.

That system has worked to date because successive governments have been responsive to their findings. For the sake of our democracy, that needs to continue, which is why the government’s off-hand reactions to their latest reports are that much more worrying. One hopes it was just a case of pre-Christmas oversight but – fears otherwise.



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