Neil Sands
Outgoing Chief Ombudsman Peter Boshier says New Zealand’s reputation as a world leader in transparency is slipping as officials increasingly seek legislative “carve-outs” from the Official Information Act (OIA) that hamper public scrutiny of government actions.
In an interview with LawNews, Boshier also offered scathing assessments of Health New Zealand’s “disgraceful” attitude to OIA compliance and the Corrections Department’s “glacial” response to urgently needed reforms.
Boshier, 73, who retires at the end of the month after almost a decade in the role, said the OIA legislation remains largely fit-for-purpose more than four decades after it was introduced, but the culture of those responsible for implementing it needs to change.
“The default position of saying, ‘oh, we’d better see whether we should release this’ – that’s not what the Act says. It says, ‘in order to promote accountability and participation democracy, information shall be released’… so there’s a realignment that’s needed of being more permissive [towards releasing information], less protective,” he said.
“The default should be ‘release it unless there’s a good reason not to ‘.”
Boshier named Treasury and the Department of Prime Minister & Cabinet as departments with good track records of releasing information and was not shy about naming and shaming those he regards as the worst offenders.
“Health New Zealand is a disgrace,” he said, accusing it of not following the spirit or the letter of the law.
“For a relatively new agency, Health NZ is generating an increasing number of complaints, mostly about the time it takes to make a decision or its refusal to release parts or all of the requested information.”
Change needed
Boshier said Corrections had failed to act on his concerns about the “cruel, inhuman and degrading” treatment of the 13 inmates housed in Auckland’s Prisoners of Extreme Risk Unit (PERU), where the population includes Christchurch mosque terrorist Brenton Tarrant.
“Of the agencies we deal with, most regard our integrity and mana as so high that they do as we ask… Not so with Corrections, whose speed at achieving change is best described as glacial,” he said.
Boshier is also concerned at a rise in legislative “carve-outs”, which exempt areas from OIA scrutiny. He blamed them for New Zealand’s fall from first to fourth in Transparency International’s Corruption Perceptions Index between 2021 and 2024.
“The ultimate test is New Zealand’s transparency ratings and the international index… We’re still doing well in world terms, but we used to be number one,” he said.
“So, what’s the reason for that? It doesn’t help when bills are introduced into the House which have carve-outs of the OIA. That’s why we’re dropping. If there is a political wish that certain new bits of legislation should not be subject to the OIA, that’s going to affect our transparency ratings.”
One area of the OIA legislation Boshier believes needs strengthening is the penalty regime, to ensure there are consequences for non-compliance.
He said obstructions that impede the release of official information would quickly diminish if those responsible faced penalties similar to those imposed for workplace health and safety breaches.
“I’m just putting it out there for debate, because a lot of media in particular become so frustrated that information is requested but not supplied in a timely fashion,” he said.
“There’s criticism that the Act isn’t strong enough when there’s non-compliance and I think that criticism is right. So, I think there needs to be a discussion. Something’s got to change.”
From desperation to justice
While Boshier admits frustration at some aspects of OIA compliance, he also takes pride in successes during his time as Chief Ombudsman, which followed stints as a District Court judge, Principal Family Court judge and Law Commissioner.
“At the systemic level, we’ve had some quite big achievements,” he said. “We were responsible for the abolition of tie-down beds in prisons, which was an antiquated, inhumane practice. Also, some schools were secluding and locking away children with autism. We had complaints about that and we said ‘this is unreasonable’ and the law was actually changed.
“Then, when MIQ came in, managed isolation and quarantine, they developed a booking system and many New Zealanders were upset at how unfair it was because it was uneven and almost capricious. It didn’t have a logic to it.”
The Ombudsman found in a report that MBIE acted “unreasonably” on MIQ allocations and significantly impacted the people affected.
Boshier said one of the most rewarding aspects of his role was helping people who would not otherwise have the resources to pursue justice.
He cites the case of two overseas students, whose dispute over an education grant he escalated to the Prime Minister’s office, eventually resulting in victory for the pair.
“So that’s not a bad example of someone moving from desperation to feeling that they’ve been treated fairly in the end, right?”
‘Life is for living’
When he was a judge, Boshier travelled regularly to the Pacific for legal workshops and in 2007 drafted a Young Offenders Act for Samoa that is still in use today.
“I adored being on the bench. I loved the job. I liked the interaction with people. I liked the blend of intellect and humanity, and all sorts of opportunities were given to me, which I was very privileged to do,” he said.
But he said the Ombudsman role had been the best opportunity of his career.
“The only constraint is being principled, fair and reasonable,” he said.
“You don’t have pleadings, you don’t have evidence, you don’t have filing fees that people have got to pay to try and get on the door. For the most part, you don’t have delay, though some do take us a while. So, I like the job, because there’s the ability to just get on and do it.”
As for the future, Boshier said he had been approached about an ombudsman’s position in England, but did not relish the prospect of enduring the British winter.
He said he was enjoying working out his next move without having any concrete plans.
“Until now, from the time I went from being a litigation lawyer onto the bench, everything’s been prescribed. The next steps been offered and I’ve moved to it,” he said.
“[Now] there is no next step that I’m bound to go into, which I’m thoroughly enjoying.
“The drivers for me are: I like working and I like being able to make a contribution. You get to the point where you are pretty experienced and see things a bit more clearly than you might when you’re much younger. So, I want to do that as well as enjoying what there is out there. Life is very much for living.”
0 Comments