VISITING EXPERTS
THE ROLE OF OMBUDSMAN AND ITS CONNECTION WITH THE
CONTROL OF CORRUPTION

Judge Anand Satyanand *I. INTRODUCTION
New Zealand is a country which applies a number of tools of modern governance in its operation.
New Zealand s population is small (four million) and its Parliament comprises a single House ofRepresentatives without any written constitution. In its 160 year modern history it has followed a British
Westminster kind of government, but in the last 50 years has undertaken a number of adaptations to that.
For example, ten years ago, it changed to a mixed member proportional representation system ofelections, similar to Germany - where there are some members elected by citizens and others appointed
by political parties. Some 40 years ago in 1962 it became the first English speaking country to adopt
Ombudsman legislation calling for an independent officer of Parliament being able to inquire into
citizens complaints against the Government bureaucracy. Twenty years later in 1982 New Zealandenacted Freedom of Information legislation which now covers Government Ministries and Departments
and State-owned Enterprises as well as Local Government entities. In 2000 New Zealand passed
Whistle Blowing legislation to enable people to make disclosures about serious wrongdoing without
becoming endangered personally, in terms of their employment or otherwise.
So far as government administration is concerned, New Zealand has adopted modern means of public
sector management with a number of mechanisms available for redress of wrongs - the courts, recourse to
Ombudsmen for maladministration, freedom of information, and otherwise. New Zealand rates
consistently as among the least corrupt countries in the world. Each of the mechanisms referred to has
relevance in combating corruption.

II. DEFINITION OF TERM OMBUDSMAN
The term Ombudsman is Scandinavian, meaning something in the nature of entrusted person or
grievance representative . The part word man is taken directly from the Swedish (the old Norse word
was umbodhsmadr ) and does not connote any necessity that the holder be of the male gender. Indeed,
if one was to survey the present Ombudsman community worldwide, it would be seen that there are many
women Ombudsman. My tracing of the office will start with the Scandinavian grievance person since
this model is said to set a standard. I do acknowledge, however, that there are several precedents from
Asian (and other) settings of people, in former times, undertaking office to provide relief and redress tocitizens adversely affected by government action.
In earlier times it is also recorded that the Romans installed an officer called the tribune to protect
the interests and rights of the plebeians from the patricians. There are also writings in both China andIndia, which suggest that three thousand and more years ago, special officials were designated to functionin the manner of Ombudsmen. In China during the Yu and Sun dynasties it was the duty of theincumbent, who was called the control yuan , to report the voice of the people to the Emperor and toannounce the Emperor s decrees to the people . In India today there are Ombudsmen appointed in twelve* New Zealand Ombudsman.

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RESOURCE MATERIAL SERIES No. 65of the Indian states, though not at Federal level. The term for them is Lokayukta , an ancient word
revived so as to make it meaningful in a local sense in that country.
In 1809 Sweden appointed an official entitled the justitieombudsman to enquire into actions of thegovernment administration, including the military, and the courts. The establishment of this office wassaid to be a reaction to state absolutism and an assertion of individual rights and dignities of the citizen.
Nearly 100 years later, Finland appointed a similar person and Denmark followed likewise in 1954.
A. Essential Constituents of the Term Ombudsman
The Ombudsman Committee of the International Bar Association has described the office thus:
An Office provided for by the Constitution or by action of the Legislature or
Parliament and headed by an independent, high-level public official, who is
responsible to the Legislature or Parliament, who receives complaints from aggrieved
persons against Government agencies, officials and employees, or who acts on [his]own motion, and who has the power to investigate, recommend corrective action, andissue reports. 1
This contemporary definition of the term Ombudsman is not agreed to universally, but it does serve
as a starting point in defining the role.
B. Development of Concept
In the 1950s there was considerable discussion in many countries outside Scandinavia about
establishing a process to examine things undertaken by governmental administration. This was to bealongside and beyond the formal means of redress available through the courts or Parliament, or a freePress. The welfare state models in many countries had produced very large government bureaucracies.
There was concern in many quarters that a simple independent means of redress needed to be provided
for the individual citizen. The matter was neatly put in the following way by Professor D C Rowat in anarticle suggesting an Ombudsman Institution in Canada 2 :It is quite possible nowadays for a citizen s right to be accidentally crushed by thevast juggernaut of the government s administrative machine. In this age of the welfare
state, thousands of administrative decisions are made each year by governments ortheir agencies, many of them by lowly officials; and if some of these decisions arearbitrary or unjustified, there is no easy way for the ordinary citizen to gain redress.
In that country, and elsewhere, it was simply no longer possible to say that every person adversely
affected in an unfair manner by action of a governmental official, would have the resources or means toengage a lawyer. Court procedures could be both lengthy and expensive. The right of a person to consult
their individual Parliamentary representative, write to the newspaper, organise a petition or raise adeputation to see a Government Official or Minister, may have been no more effective. In England in the
1950s, a committee of the International Commission of Jurists, chaired by Lord Whyatt (a former Chief
Justice of Hong Kong) had suggested the establishment for the United Kingdom of some kind ofparliamentary commissioner.

1

International Bar Association.

2

DC Rowat, An Ombudsman Scheme for Canada

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journal of Economic and Political Science 1962 Vol. 28 No. 4 p. 543.

SIXTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROLVISITING EXPERTS PAPERSIn New Zealand, a similar debate was under way in a number of quarters - political, academic andamong those with the task of formulating policy. The debate quickened after the abolition of the Upper
House of Parliament in 1950. Consideration was being given to such things as an Administrative Court.
New Zealand observed with interest the establishment in 1954 of an Ombudsman responsible to theDanish Parliament or Folketing .
In 1962, New Zealand became the first English speaking Commonwealth (and indeed common-law)country to enact this kind of legislation, although there were a number of other jurisdictions in which
Bills had been introduced, or where the matter had been canvassed. The succeeding 35 years have seen
Ombudsmen installed in a great many countries. The international Ombudsman community now
numbers over 200 in about 100 countries or jurisdictions. As may be known, the office has been createdat both federal and provincial levels and it functions in a variety of constitutional settings.
C. Constitutional Position of the Ombudsman
To map the position of New Zealand s Ombudsmen in a constitutional sense, the New ZealandOmbudsmen are Officers of Parliament. They are appointed by the Governor-General on therecommendation of Parliament. Although it is not provided for in the law, there is a long standing
convention that all Members of Parliament (that is from all parties in the House) must agree unanimously
to the appointment. As a further mark of independence funding for the office is provided directly throughParliament. The Speaker of the House of Representatives is the person through whom the Ombudsmen
are accountable to Parliament. This independent accountability and financing arrangement ensures thatthe office has complete independence and cannot be pressured by any government department or Ministerof the Crown.
When the office was first established, the Ombudsman s jurisdiction was limited to the investigationof complaints from citizens about central government departments and organisations. In 1968 thejurisdiction was extended to education and hospital boards. In 1975, the legislation was amended andconsolidated into the Ombudsmen Act 1975. Under that Act, with effect from 1 April 1976, thejurisdiction of the Ombudsmen was extended to territorial local authorities (city, county and boroughcouncils) as well as to a variety of statutory boards (for example, catchment boards and electric powerboards). Additional offices to that in the capital city were established. The Ombudsmen Act 1975 also
contained provision for the appointment of more than one Ombudsman, one of whom would be appointed
Chief Ombudsman, with responsibility for the overall administration of the office and allocation of thework as between the Ombudsmen.
Professor Philip Joseph, in his textbook Constitutional and Administrative Law in New Zealand 2
ed 2002 Thomson has described the Ombudsman role as being that of a generalist with a disinclination
to intervene in specialist matters involving professional departmental judgment. When a policy is foundwanting, an Ombudsman may recommend departmental reconsideration or that a specific alternative
policy be adopted. But as he points out, Ombudsmen are, in general reluctant to second-guess actual
departmental decisions.
A descriptive passage from Bridled Power Oxford University Press 2 ed 1997 Oxford University
Press - authors Sir Geoffrey Palmer and Dr Matthew Palmer (the former a Prime Minister of New
Zealand in the late 1980s and the latter a Law Professor) sets out the following regarding Ombudsman
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The Ombudsmen may reach the conclusion that a decision was unfair on a number ofgrounds. It could be:・ contrary to law;・ unreasonable, unjust, oppressive, or improperly discriminatory;・ made under an act, regulation or by-law that was unreasonable, unjust, oppressive or
discriminatory;・ based on mistake of fact or law;・ made in the exercise of a discretionary power used for improper or irrelevant purpose;・ simply wrong .
Where the Ombudsmen reach an unfavourable view of a decision they can say that:・ the matter should be further considered by the appropriate authority;
・ the omission should be rectified;・ the decision should be cancelled or varied;・ the practice on which the decision was based should be altered;・ the act, regulation or by-law on which the decision was based should be reconsidered;・ reasons should have been given for the decision; and・ other steps should be taken.
D. Jurisdiction of the Ombudsmen
When describing the jurisdiction conferred upon the individual Ombudsman, the term Ombudsman
may itself be misleading in a comparative sense. Different countries give to the Ombudsman different
functions and procedures. For example, in many jurisdictions, including the United Kingdom, the citizen
may not approach the Ombudsman directly. In Australia and New Zealand however direct contact is thenorm. In the United Kingdom and Northern Ireland, a citizen approaches the local Member ofParliament, who in turn makes a case to the Ombudsman. In some jurisdictions, the Ombudsman is
responsible for redressing breaches of human rights. This is so in several Latin American countries suchas Mexico, whereas in New Zealand that function has been undertaken by a separate Human Rights
Commission. In a number of other countries (for example, Ghana and Papua New Guinea), theOmbudsman may be charged with a specific responsibility of inquiring into allegations of corruption.
Differences also arise regarding appointment and tenure. A New Zealand Ombudsman is appointed
by Parliament and receives funding from that source, but in other jurisdictions the appointment may be by
the erstwhile governing party and funding may become dependent upon a determination of theGovernment of the day. In unicameral States such as New Zealand, the Ombudsmen may be responsible
to Parliament, and in bicameral States such as the United Kingdom, they may be responsible to the Lower
House of Parliament (for example to the House of Commons in the United Kingdom).
From the classic state-Ombudsman role as just described, there have also developed, in many places,
different kinds of Ombudsmen , some of whom use similar investigative methodology, but whose role
may be limited by circumstances or area. If the essence of the Ombudsman role is defending citizens
against the unfair administrative actions of the State, Human Rights Commissioners can be seen as
undertaking a kind of Ombudsman role, but are restricted to investigating alleged breaches of humanrights. There are also specialist offices such as Commissioners for Children, Health and Disability and
Police Complaints Authorities who may be undertaking Ombudsman-like work, but whose work is
confined within a specific area.

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The role of the Ombudsman, as a person who investigates complaints, has also led to the developmentof industry Ombudsmen , for example in banking and insurance. An Ombudsman for Northern Irelandin the 1990s, Dr Maurice Hayes, observed that the Ombudsman concept is one of the few to have passed
from the public sector to the private sector at a time when the tide of ideas is flowing in the opposite
direction . There has also developed, the notion of organisation Ombudsmen . In some countries, suchas the United States, if one has a dispute with a department store, university or a local authority, theperson designated to deal with that complaint, may be termed an Ombudsman .
Even that brief summary is not complete, because there may be other anomalies. In Australia, forexample, some Ombudsmen may deal with complaints about behaviour of the Police and others not
because of there being in place a separate stand-alone Police Complaints Authority. In Sweden and
Finland, complaints about the conduct of the courts are dealt with by Ombudsmen, whilst in mostcountries where there is a separation of powers - legislative, executive and judicial - the Ombudsman has
jurisdiction only over actions of the executive.
Owing to the threat of proliferation in New Zealand, it was thought important that the term
Ombudsman should not be seen to lose its currency. Legislation was passed in 1993 restricting use of
the term Ombudsman unless the particular industry which uses the term gains the approval of theerstwhile Chief Ombudsman and is able to guarantee certain kinds of delivery of service.
E. Relationship of Ombudsman Role to Courts and Ordinary Legal Processes
By undertaking a task which affects rights and involves examinations of organisations powers andresponsibilities, a question arises as to whether the Ombudsman office itself should be subject to judicial
scrutiny if its investigation and recommendation breaches appropriate procedural or jurisdictional limits.
In most jurisdictions the answer is yes . This susceptibility of the Ombudsmen to judicial review, whichsome would say is a discipline of its own, has led to a number of contemporary statements about thenature and efficacy of the role. The following examples suffice.
In 1984 in Canada, Justice Dickson delivering the unanimous decision of the Supreme Court of
Canada in British Columbia Development Corporation and another v Friedmann [1984] 2RCS 447 at
460,463. There he said:
The limitations of Courts are also well known. Litigation can be costly and slow.
Only the most serious cases of administrative abuse are therefore likely to find theirway into the courts. More importantly, there is simply no remedy at law available in agreat many cases...
Read as a whole, the Ombudsmen Act of British Columbia provides an efficient
procedure through which complaints may be investigated, bureaucratic errors andabuses brought to light and corrective action initiated. It represents the paradigm ofremedial legislation. It should therefore receive a broad purposive interpretationconsistent with the unique role the Ombudsman is intended to fulfil.
The judgment is also authority on the meaning and application of the phrase matter ofadministration . This phrase frames the Ombudsman s area of jurisdiction, is to be construed widely
encompassing everything done by governmental authorities in the implementation of government
policy . The Court held that only the activities of the legislature and the Courts should be excluded fromthe Ombudsman s scrutiny.

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The role of the Ombudsman in that country was also challenged in Re Ombudsman Act, decided in1970 (1970) 72 WWR 176. The Chief Justice of Alberta stated:... the basic purpose of an Ombudsman is provision of a watchdog designed to look
into the entire workings of administrative cases. ...[He] can bring the lamp of scrutiny
to otherwise dark places even over the resistance of those who would draw the blinds.
If [his] scrutiny and reservations are well founded, corrective measure can be taken indue democratic process, if not no harm can be done in looking at that which is good.
In Australia, the judgment of the Federal Court Aboriginal and Torres Strait Islander Commission v
Commonwealth Ombudsman (1995) 134 ALR 238 undertook a thorough review of the actions of the
Ombudsman and contains a number of statements distinguishing between the judicial function and the
Ombudsman function. The former was for making determinations on identified issues, the latter forinvestigating, reporting and making suggestions . Several other Australian authorities have alsodelineated the Ombudsman role. In Ainsworth v Ombudsman (1988) 17 NSWLR 276 at 283 JusticeEnderby of the New South Wales Supreme Court said:
It has always been considered that the efficacy of the [the Ombudsman] Office andfunction comes largely from the light [he] is able to throw on areas where there isalleged to be administrative injustice and where other remedies of the Courts and thegood offices of Members of Parliament have proved inadequate. Goodwill is essential.
When intervention by an Ombudsman is successful, remedial steps are taken, notbecause orders are made that they may be taken, but because the weight of its findings
and the prestige of the office demands that they be taken.
In Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 363, the then President of the New
South Wales Court of Appeal, Justice Michael Kirby also traversed the difference between judicial andOmbudsman function:[The] Ombudsman lacks the powers to make orders as a Court may do. But the
sanction of the provision of a report to the responsible minister and to Parliament andthe requirement upon the Minister to respond promptly to any such report also affords
significant sanctions. These have proved effective in all jurisdictions in which the
Office of the Ombudsman has been created, to obtain reconsideration of administrative
action found by the Ombudsman to be unlawful, unreasonable, mistaken or wrong...
The Ombudsman s authority has also been challenged in Courts in other countries, including New
Zealand, although principally in recent times in regard to the freedom of information legislation
jurisdiction.
F. Official Information Act Role of Ombudsmen
The Official Information Act was added to the Ombudsman role in 1982. This second aspect is
responsible for much of the comment about the role in contemporary politics and in contemporary Press
coverage. Often one sees in the newspaper or in electronic media the words obtained under the Official
Information Act . This is a shorthand reference to a number of procedures which might have been
actioned before publication has taken place.
New Zealand is one of many countries where Parliament has determined that there should in general
be freedom of access to information so that people can play an informed role in the democracy. This218

SIXTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROLVISITING EXPERTS PAPERS
means, from a legal standpoint, that information is to be made available unless there is some withholding
ground able to be invoked. It is the Ombudsmen who determine whether the withholding tests have been
met. The position was different prior to the Official Information Act, when the Official Secrets Act 1951
was in force. This statute was modelled on United Kingdom legislation under which it was said, either
literally or notionally, that governmental or official information was the property of the Queen and heradvisers .
The drawbacks in this situation led to discussion in academic and political circles that there needed to
be a better way. In the civil service itself, there was a prevailing climate of change. A 1964 Circularfrom the State Services Commission to Permanent Heads of Government departments said that
information should be withheld only if there is a good reason . An Ombudsman investigation into the
Security Intelligence Service in 1976 highlighted the need for information access. In 1980, a committee
of senior civil servants chaired by a University academic produced a well-regarded report in favour of amore open approach with regard to information. This was the Danks Committee Report - Committee on
Official Information Towards Open Government Vol 1 General Report December 1980, which theauthors of Bridled Power (mentioned and cited above) described as follows:
The Danks Committee report, from which the 1982 legislation sprang, was adocument of high quality and considerable liberality. Titled Towards Open
Government, the report came in two parts. The reasons the committee articulated formore open access to official information could be summarised as follows:
・ a better informed public can better participate in the democratic process;・ secrecy is an important impediment to accountability when Parliament, press, and public cannot
properly follow and scrutinise the actions of government;
・ public servants make many important decisions that affect people and the permanent administration
should also be accountable through greater flows of information about what they are doing;・ better information flows will produce more effective government and help towards the more
flexible development of policy. With more information available, it is easier to prepare for change;
・ if more information is available, public co-operation with government will be enhanced.
The Danks Committee concluded:
The case for more openness in government is compelling. It rests on the democratic
principles of encouraging participation in public affairs and ensuring theaccountability of those in office; it also derives from concern for the interest of
individuals. A no less important consideration is that the Government requires public
understanding and support to get its policies carried out. This can come only from an
informed public.
To the surprise of some, legislation incorporating the committee s recommendations was passed
quickly and came into force in 1983. The Official Information Act provides for people to have access to
official and personal information held by Ministers of the Crown, government departments and local
authorities. If a particular request for information to one of these organisations is declined, the requester
has the right to ask an Ombudsman to investigate and review the decision.
The only reasons for refusing requests for information are those as set out in the Act. Upon taking up
a complaint, an Ombudsman must review the information at issue and assess it against the withholding
provisions set out. Some withholding grounds are conclusive: for example prejudice to the security or
defence of New Zealand, or serious damage to the New Zealand economy, or prejudice to maintenance of219

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the law. The Ombudsman sights the information to ascertain that the claim may be made and then makesa recommendation. Other withholding grounds are defensible by the public interest in freedom of
information. These include protection of trade secrets, or protection of legal professional privilege. The
Ombudsman sights the information and undertakes a balancing test, expressing the public interest in theparticular situation and making a recommendation. Those recommendations are then considered by thewithholding organisation and acted upon. There is a potential right of veto of an Ombudsman s
recommendation by the Cabinet. There has however been no occasion of use of the veto to date, which isa measure of the efficacy of the Ombudsman process. The Ombudsmen must also consider in each casewhether the right to preserve personal privacy constitutes a factor in deciding if information should beprotected or released. The Ombudsman must then determine whether or not the decision to withhold theinformation was made in accordance with the provisions of the official information legislation.
At the conclusion of an investigation, an Ombudsman may make a recommendation for release of theinformation at issue. In certain circumstances, this recommendation imposes a public duty upon theorganisation concerned to release the information. When undertaking investigations, the Ombudsmen
always keep in mind that the purposes of the legislation:
・ enable citizens to effectively participate in the making and administration of laws and policies;
・ promote the accountability of Ministers and officials;
・ provide for proper access by each person to information about that person; and・ protect official information to the extent consistent with the public interest in the preservation of
personal privacy.
In recent years the Ombudsmen have considered requests for:・ the level of salaries paid to chief executives and other Council officers;
・ the redundancy packages given to officers whose positions have been terminated;・ discussion papers presented to Ministers or committees for consideration;
・ detailed financial information;
・ employment related information, such as references provided in confidence;・ information about building permits and planning applications;・ the identities of informants.
It can be seen that there is a wide range of requests. There were approximately 1149 official
information request cases dealt with by the Ombudsmen s Office during this past year to June 2003.
Several well known cases have involved the Official Information Act including Police V Ombudsman[1988] 1 NZLR 385, TVNZ v Ombudsman [1992] 1 NZLR 106, Queenstown-Lakes District Council v
Wyatt Co NZ Ltd [1991] 2 NZLR 180 and Attorney General v Davidson [1994] 3 NZLR 143 and others,
all of which in some way have referred to the constitutional kind of situation now pertaining to freedomof information in New Zealand.

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III. DEFINITION OF CORRUPTION
The question of definition of corruption will clearly be covered in many other contributions to thisconference and in more detail than here. From a New Zealand perspective the head of its civil service,
the State Services Commissioner, Michael Wintringham, has said 3 that in his view Corruption is notinefficiency, poor management or even theft as a servant or fraud but rather the use of public office for
personal gain, usually involving bribery with at least two people involved, a buyer and a seller. This kindof definition is orthodox and can be compared readily with other contemporary sources. The AsianDevelopment Bank Anticorruption Policy says it is the misuse of public or private office for personal
gain .4 The Oxford Unabridged Dictionary has corruption as the perversion or destruction of integrityin the discharge of public duties by bribery or favour . Webster s Collegiate Dictionary on the other handsays corruption is inducement to wrong by improper or unlawful means (as bribery) . In some contexts
it is considered important and useful to distinguish between graft when the illicit act is proposed by theofficial and where corruption (so called) is limited to when the illicit act is proposed by the malefactor
citizen. The OECD has it in a 1996 publication as follows In examining conduct it is useful to make a
distinction between behaviours: illegal, i.e. that is against the law which covers criminal offences to
misdemeanours; unethical, i.e. against ethical guidelines, principles and values and inappropriate i.e.
against normal convention and practice. Corruption may fall under any of these headings. Its defining
characteristics are the misuse of public office roles or resources for private benefit, material orotherwise .5
A. Challenges Wrought by Presence of Corruption - [General]
At all events, the most notorious kinds of corruption can easily be recognised and described. So
whether the corruption be of large or small scale it is the questions of identification and eradication thatare important. In the context of India, then President Narayanan said in 1997 Corruption is one of thegreatest challenges now confronting [the country] .6 In another Asia Pacific state, Papua New Guinea,
Simon Pentanu Chief Ombudsman of that country in a speech called Dealing with Corruption given in
Canberra Australia in 1998, but published in June 2000, said ... the answer to corruption is becoming
clear and plain. It is by and large about leadership. Honest creative competent leadership throughout allarms of government. This type of leadership is all about self-empowerment, which is the only viable
antidote. ... We have to salvage ourselves and our ship of state .7
It can thus be stated that agreement will be reached without difficulty, that corruption is somethingwhich needs attention, even where in New Zealand for example, the number of cases may be small.
Corruption is not confined to any country or continent because a small amount of reflection will bring tomind for example the Matrix - Churchill or Cash for Questions scandals of recent times in the United
Kingdom, the Carrefours du Developpment scandal in France, each of the Flick, Barschell and Hesse
controversies in Germany and either the Watergate or Iran-Contra affairs in the United States.

3

New Zealand State Services Commission Annual Report 2000.

4

Asian Development Bank Anti-Corruption Policy April 1998 p.1.

5

Ethics in the Public Service, Current Issues and practice OECD 1996.

6

International Herald Tribune 13 August 1997.

7

Papua New Guinea Ombudsman Commission 2000.

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B. Challenges Wrought By Corruption [New Zealand]
The New Zealand State Services Commissioner put the matter of challenge in the following way.
If corruption is so rare in the New Zealand State sector, why should we be concerned about a handful ofcases. There are three reasons. First ... such cases undermine citizens confidence in public institutions ona scale disproportionate to the offence. In a country that relies largely on voluntary compliance with tax
laws, benefit administration and range of licensing and registration arrangements, citizens compliance isdirectly related to their trust in the way in which their personal information will be held, the honesty ofthe officials administering the law and citizens perception that all are treated equitably. This publicconfidence is fundamental to a successful civil society. Secondly our [New Zealand s] admirable trackrecord in these matters cannot be taken for granted. There are plenty of overseas examples todemonstrate that once it becomes established, corruption is difficult and costly to eliminate. Openness that is a willingness to acknowledge the risks and to prosecute those who transgress - is fundamental tominimising such risks. Finally, a State sector and private sector free of corruption contribute to a fairsociety and a well-performing economy. Neither equity nor efficiency are served by corruption. In recent
years international financial institutions which were once tolerant of, or at least philosophical about, adegree of corruption in countries where they were funding development programmes, have brought theeradication of corrupt practices closer to the top of their agenda .8
It may therefore be of interest to describe what may be termed the chemistry of the New Zealandpublic sector and the very limited amount of corruption that has been found to exist and to likewise
examine some of the mechanisms that ensure, for the moment that it is kept to a minimum.

IV. CONSTITUENT ELEMENTS OF NEW ZEALAND S PUBLIC SECTORThe New Zealand Public Service is comprised of 38 Government departments plus a number ofCrown Entities and State Owned Enterprises. As at 30 June 2003, the number of staff employedcalculated on a full-time equivalent basis was just short of 35,000. Latest estimates put the population of
the country at just over 4.0 million, there being two major ethnicities, European and Maori, the latterbeing 15%. To this should be added a smaller number of other groupings, people of Pacific Island
descent comprising 6% and those of Asian origin 5%. In other words, New Zealand can be described as apredominantly European but significantly multi-cultural country where in day to day living there isconsiderable evidence of Maori and Polynesian themes. Something of that same ethnic mixture comes tobe represented in those employed by the State.
During the past 20 years the New Zealand public sector has been the subject of widespread reform as
what is now known as New Public Management has come to be applied. This has had a number of
constituent elements. Laws governing labour organisations and the negotiating environment were passed.
State Owned Enterprises undertaking operations on a commercially viable basis were established. A
number of activities more suited to the private sector - such as railways, insurance, telecommunications
and banking were sold. A State Sector Act restructured public sector management and aligned the public
sector with private sector employment regulations. Employment came to be undertaken by means ofcontracts renewable after specific terms rather than employment being on a long-term and sometimes
lifetime basis. The foregoing and other items have had considerable effects on New Zealand life, a major
one being reduction in the number of public sector employees from more than 90,000 to 30,000 in that15-year period.

8

New Zealand State Services Commission Annual Report 2000.

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As to employment, it can be observed that along with countries of a similar kind, namely Australia
and Canada for example, employment patterns have been transformed during the 20th Century. In former
times, whereas there were emphases upon manual work and bread winning being the role of the malewaged person. These have been replaced by a number of more complex patterns - the involvement ofboth men and women and different ethnic groups, along with an expanding service sector, increased selfemployment, part-time employment and job sharing. This has created, in the public sector as well, moredemand for the highly skilled, with increased waged dispersion based on skill levels and greater
variations in hours and conditions. In accordance with relatively new employment legislation, New
Zealanders, by and large (inclusive of working in the public sector), enter individual contracts of
employment with their department or Ministry. This is so at all levels with the Chief Executive very
often having a specific contract with the responsible Minister. These contracts provide for particularlevels of performance that are expected. It can be stated that, in the context of general employment,
people in the State sector are well paid in New Zealand terms. Put in another way, there is no great
disparity between ordinary wages earned in the public sector with ordinary wages earned by employees in
the regular business community.
The next relevant factor in describing the New Zealand community relates to general levels of
education. Without going into detail, New Zealand can be described as a country with a high degree ofgeneral literacy where there is an emphasis upon learning up to tertiary level. Education is compulsory to
the end of secondary school and, whilst most students attend State funded schools, there are a number ofother choices for parents and students and many opportunities for community education and advanced
education thereafter.
With a tradition born of a colonial past, which emphasised things such as self-help and an egalitarian
approach, New Zealanders can be said to dislike either excesses or abuses of power, which in the context
of a small society they are able to remonstrate, when necessary. To describe the New Zealand community
in a sentence, the elements of a relatively small but reasonably well-educated and egalitarian minded
community emerges, which dislikes unfairness and which will not tolerate corruption in the way adverted
to by the New Zealand State Services Commissioner above. All of these things have a bearing in keeping
the amount and degree of corruption at low levels.
A. Constituent Elements Available to Combat Corruption
As indicated above in the definition of corruption, many corrupt actions will be illegal in the sense of
breach of the criminal law. The New Zealand Police have responsibility for enforcement of the criminal
law and principally the Crimes Act, the Summary Offences Act and Misuse of Drugs Act available foruse in prosecutions before the Courts.
In addition, for specific matters of fraud of a more serious complex and multiple kind, there wasestablished in New Zealand in 1990 a specific Serious Fraud Office, which was set up to facilitate thedetection, investigation and expeditious prosecution of serious and/or fraud offenders. This office
involves the resources of multi-disciplinary teams of investigators, forensic accountants and prosecutors.
The inception of the New Zealand Serious Fraud Office some ten years ago reflected a trend around theworld to establish similar agencies in the face of increasing difficulty for law enforcement agencies using
traditional methods to come to grips with serious or complex fraud offending. In the decade to this year,
over 100 prosecutions have been taken with a record of successful prosecution; it is said, of more than90%. International fraud is now becoming a focus of interest for the Serious Fraud Office with a growing
need for it to use modern technology in detection.99

New Zealand Official Year Book 2000 p. 502.

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As was said in commencing, New Zealand was the first English-speaking country in 1962 to adopt bylegislation the previously Scandinavian notion of Ombudsman methodology. This envisages theindependent investigation of citizens complaints about an act of maladministration by a Government
department or agency. The Ombudsman is furnished with sufficient powers to inquire and obtain suchinformation as may be necessary to form a view of the matter under complaint and to make a
recommendation for redress, where that is appropriate. The New Zealand Ombudsman office has
functioned now for nearly 40 years with there being now two Ombudsmen undertaking some 6000 cases
per year, brought to them by ordinary individuals. The ready availability of a complaint mechanism isthus something to which New Zealand citizens have relatively easy recourse. The work of the New
Zealand Ombudsmen, though conducted according to an individual New Zealand statute, broadly accords
with the internationally accepted definition of Ombudsman, also mentioned at the outset.
All investigations undertaken by Ombudsmen are conducted in private. When an Ombudsman
believes a complaint can be sustained, this opinion is reported to the Government department ororganisation concerned along with any recommendation for action. A copy of this report may also bemade available to the responsible Minister. At the local government level, over which, in New Zealand,
the same Ombudsmen have jurisdiction, the Ombudsman reports the finding to the organisation and may
provide a copy of that to the Mayor. Ombudsmen have no authority to investigate complaints against
private companies and individuals or decisions of Judges. The foregoing enables Ombudsmen to becomeaware of evidence of corruption or corrupt activity and to take action with the relevant organisation.
As has also been described, at the beginning of the 1980s, following the report of a Government
appointed Committee comprising senior civil servants, New Zealand passed an Official Information Act
in 1982 and became a freedom of information country. This is based on the principle that information
shall be made available unless there is a good reason for withholding it. The purposes of the Act are toincrease the availability of official information to the people and provide for proper access by bodies
corporate to official information relating to them but at the same time, where it is in the public interest, toprotect official information from disclosure and to preserve such things as individual privacy. The
Official Information Act, by and large, covers all Government departments, statutory bodies and State
Owned Enterprises, with the exception of the Courts. Ombudsmen can review a decision by aGovernment organisation to refuse supply of information, and the formal recommendation of an
Ombudsman, after such review, is binding unless overridden in very limited circumstances. The Official
Information legislation also contains provisions enabling citizens to be advised of reasons for decisions.
The provision of information or the absence of it can frequently identify something wrong (which may beevidence of corruption) and which will become apparent to an Ombudsman who can then do something
about it.
In short, the Ombudsmen, whether acting in their jurisdiction on complaints about maladministration,or in their jurisdiction to make available, where appropriate, official information, play a role in ensuring
the transparency and accountability of Government. It follows that the Ombudsmen can in the course ofthis work become aware of evidence of corruption and can be in a position to recommend action
regarding it.
Statutory measures against corruption have continued to be added to the law in New Zealand. The
New Zealand Parliament in April 2000 passed legislation which came into effect on 1 January 2001. Thislegislation, called the Protected Disclosures Act, enables employees who observe serious wrongdoing inor by an organisation to disclose that to what are called appropriate authorities such as the Ombudsmen,
the State Services Commissioner, the Commissioner of Police, the Auditor-General, the Director of the
Serious Fraud Office and others. In circumstances where that is done, the notifying person will be
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protected from civil, criminal or disciplinary proceedings, or retaliatory action which might be taken byan erstwhile employer. New Zealand thus joined those countries which have what is termed
whistleblower legislation.
One of the functions of the State Service Commission, which superintends the Public Service and its
staff, is to promote appropriate values and standards of behaviour for the Public Service. That
organisation publishes a specific Public Service Code of Conduct, which comprises three principles, thesebeing first that employees should fulfil their lawful obligations to Government with professionalism andintegrity , secondly that employees should perform their official duties honestly, faithfully andefficiently, respecting the rights of the public and their colleagues , and thirdly employees should notbring their employer into disrepute through their private activities .
More recently, in 2000, the New Zealand Government appointed a State Sector Standards Board
comprised of a group of senior people from commerce and Government and the Trade Unions, to draft astatement of Government expectations of the State sector and the priorities that departments and agencies
are to observe in responding to citizens.
In a small country there is the opportunity for a considerable amount of cross-fertilisation of ideas andconcepts. There is available, when one talks of means to avoid corruption, the following, connected with
Ombudsman methodology. It will be recalled from above, that the Ombudsman concept enables
independent investigation of complaints of maladministration. That model, after having been applied fora great many years in the public sector, has come to be taken up in two New Zealand industries. First, theBanking Ombudsman scheme began in July 1992. It arbitrates unresolved disputes about banking
services in an independent and impartial manner and such help is available free to the complainant. The
Banking Ombudsman is, in the instance of that industry, furnished with power to award compensation tocover direct losses of up to $100,000, inconvenience of up to $2,000 and some costs. There is a reporting
mechanism to a Banking Ombudsman Commission, which comprises representatives of the banks andconsumer organisations. Episodes of corruption, if any, are able to be complained of through this means.
In 1995 there was also commenced in New Zealand an office of Insurance and Savings Ombudsman, thisbeing an independent body to help consumers resolve their complaints against participating insurance andsavings companies. Again, this is a free service to consumers operating independently of the insurance
and savings industry and funded by levies upon companies involved in the scheme. The Insurance andSavings Ombudsman s jurisdiction extends to investigation of personal and domestic insurance, where
less than $100,000 is involved and the person is able to approach the Ombudsman after having taken it up
with the insurance company in question.
One can therefore see the mirroring or modelling in the private sector of something which has provento be successful in the public sector. Parliamentary Ombudsman methodology has proved successful for
New Zealand citizens and for the public sector. The shift to the private sector and the adoption of manyof the methods employed by the Parliamentary Ombudsman - inquisitorial approach, informal resolution
and use of alternative dispute resolution means - assist this in being successful. It is to be noted that there
is a distinction with industry Ombudsmen having the power to make binding orders in certain
circumstances, whereas Parliamentary Ombudsmen are restricted to recommendations which goes back to
the original Scandinavian conception of Ombudsman.

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V. CONCLUSION
The foregoing has been a brief survey of measures available to combat corruption from the standpointof a small country in the Asia-Pacific region. It is from the standpoint of a country which has registered ahigh placing in the well-known Transparency International Corruption Percentage Index for a number ofyears. That assessment, conducted each year, is not an assessment of the corruption level in any country
but an assessment of the level at which corruption is perceived by people working for multi-national firms
and institutions as impacting on the commercial and social life in that country. It can be said that New
Zealand is fortunate in having very low levels of corruption and that, with the measures described above,
such is likely to continue in the future. To quote a recent New Zealand representative for Transparency
International (an international non-governmental organisation with a specific interest in public sector
corruption and its eradication), Dr Peter Perry of the University of Canterbury in Christchurch New
Zealand, Corruption is an ever-present threat, globally increasing and better tackled before rather thanafter the event . All commentators , he said, agree that good governance is the best preventative .
In ending I wish to draw together the two streams - of the Ombudsman role affecting
maladministration and the Ombudsman role affecting freedom of information, in order to address some
general remarks about the future of the office.
A question often posed to Ombudsmen worldwide is whether the ordinary community sufficiently
understands the redress offered by the service. This is no area for complacency. In New Zealand, thelegislation has been in force for more than 40 years, and the jurisdiction has been extended to cover local
government, state owned enterprises and schools. The daily workload of the two Ombudsmen sees
several hundred cases open at any given time and some thousands dealt with each year. And yet there
needs to be continuing publicity given to the work of the office. This can be in the media, through thecountry s ethno-minorities, in school publications and by receiving public airing in Parliament and its
Select Committees. The New Zealand office continues to handle more complaints annually. In 1965 theannual total was 743; in 1975, 1163; in 1985, 1994, in 1995, 4707 and in 2003 no fewer than 5121 cases
were under investigation in the course of the year to June 2003.
Publicity is vital. The notion of the office being one of last resort for the community must bepreserved. It also seems appropriate to ensure that the office is reactive to complaints by individuals andis not engaged in what might be termed artificial solicitation of complaint. It is generally agreed that low
key but regular publicity and dissertation regarding its services meets the matter best.
It might be thought that the Ombudsman office, by having grown incrementally for over 40 years, allover the world, would have an assured position in the framework of every modern state, and that nothing
has emerged which might replace it. Developments of the last decade would suggest this to be so. The
installation of an Ombudsman (entitled the Public Protector) in South Africa is a good example, but so
too are new States in Africa and Eastern Europe. But there is no room for complacency regarding
ongoing growth though, because whilst the office has certainly grown through two generations (taking
1960 as a baseline), government administrations of the early 21st century can be of a far different size andstyle and may exert a much different influence on the citizenry. In New Zealand, widespread economic
reform and restructuring of government enterprise have reduced the numbers in the civil service. Many
people are now working under contract and for shorter periods. Successive Governments have adopted afunder/provider split with many of the providing functions being delivered by the private sector rather
than by government departments. In these terms, it could be argued that the need for an Ombudsman
service in New Zealand has lessened. But yet, the number of complaints referred to our office continue toincrease each year.
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Is recourse to the Ombudsman a worthwhile asset to the ordinary citizen? The question is intriguing
because the term redress usually connotes the ability to obtain some kind of order or sanction against adepartment or organisation. That ability to bring down sanctions is one reserved to judicial tribunals.
The Ombudsmen have, at least in New Zealand, never been granted such powers and neither have any
ever been sought. Professor Larry Hill, in his book The Model Ombudsman commented poignantly
that ... one of the institutions most interesting puzzles is its apparent effectiveness, despite minimal
coercive capabilities . The recent Netherlands Ombudsman, Marten Oosting is on record as saying thatthe major power available to an Ombudsman is in the mobilisation of shame .
The emphasis has rather always been on the Ombudsmens ability to persuade the parties to some kindof resolution. It can certainly be said, from a New Zealand standpoint, that Ombudsman
recommendations have developed an enviable record of being adopted, even if not in the short term, thencertainly in the medium and longer terms.
New Zealand barrister and writer, Dr Graham Taylor (who co-incidentally worked as legal counsel to
the Ombudsmen in the 1980s), in a paper published in Judicial Review of Administrative Action in the
1980s described administrative review in New Zealand as being available by three broad means: first in
the courts, secondly under the Official Information Act and thirdly by referral to the Ombudsmen . If thejurisdiction of the third of these is to remain meaningful, there must be regular review and reappraisal of
the role. The Ombudsmen must be able to operate in an independent fashion; they must be encouraged to
be flexible in resolving items, particularly where dispute has occurred; and they must retain credibility
both with the public and with those organisations subject to coverage. One of the keys to maintaining
credibility for the Ombudsmen office is that the incumbent should never be seen to become an advocate
for either complainant or organisation. The Ombudsman should be seen to undertake a separate anddistinct review. If there is a role for advocacy, it should be restricted to the Ombudsman advocating theparticular recommendation in a particular case following an independent review.
Let me end with four quotations, the first from Bridled Power one of the co-authors of which is aformer New Zealand Prime Minister, Sir Geoffrey Palmer:The introduction of Ombudsmen has had a healthy effect on decision-making in the
New Zealand Government. They provide the check of independent scrutiny with fullaccess to the relevant information and the possibility of publicity about erroneous
Government decisions that affect individuals.
The second quotation is from Hon Mrs Anson Chan who, in 1997 was appointed to be Head of the
Civil Service in the Special Administrative Region of Hong Kong - where the office has been retained,
following the return of Hong Kong from British Colonial status to being part of China.
An Ombudsman has a difficult job. [He] has to maintain [his] independence andimpartiality, not an easy task as many issues become more and more politicised. And agood Ombudsman should always try to strengthen the relationship between the public
and the government. It is only too easy to find fault in a way that will adversely affectthe credibility of the government and demoralise staff. It is all the more difficult tomake constructive criticisms that will enable civil servants to understand how they cando their jobs better, thereby improving the standard of service to the community, and at
the same time enhance the public understanding of why a government takes thedecision it does. An Ombudsman needs courage, intelligence, determination andsensitivity to do [his] work successfully.
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The third quotation is from Justice Kantharia, recently deceased Ombudsman of the State ofMaharashtra, India, writing for an Ombudsman meeting in the mid 1990 s.
The basic foundation of the institution of Ombudsman is to ensure that citizens should
not be the victims of actions of the bureaucracy or other functionaries. The central
feature of the institution is that the investigation and association of administrative
conduct would confirm the basis for proposals as to future conduct of the bureaucrats.
The purpose of investigation is not only the redress of individual complaint, butprevention of future ones. Thus an Ombudsman is able to make suggestions for
improving performance and better service to the citizens in the light of experience
gained while investigating into public grievances. The institution has to be quite alert
to prevent maladministration. To put it precisely, the institution of Ombudsman is a
device by which the state provides free service of an independent investigator for
looking into citizens complaints and submits its own decisions and suggestions for
remedial action.
The final quotation is from New Zealand s first Ombudsman, Sir Guy Powles, who declared upontaking office.
The Ombudsman is Parliaments person - put there for the protection of the individual,
and if you protect the individual, you protect society. I am not looking for any
scapegoats or embarking on any witch hunts. I shall look for reason, justice, sympathy
and honour, and if I don t find them, then I shall report accordingly.

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