Friday, April 24, 2020

The weakness of the Ombudsman

While the Ombudsman rightly took a strong line on standing up for the OIA, there's another story this morning which doesn't exactly paint them in a good light. The Department of Corrections tried to deny them access to prisons (another example of trying to weaken oversight during the pandemic). And rather than putting their foot down, they wrote them a series of begging letters:

Chief Ombudsman Peter Boshier says Corrections has discouraged him from accessing prisons, despite the fact he has a statutory monitoring role and is concerned about inmates enduring extended lockdown hours during the Covid-19 pandemic.

Boshier told RNZ that after spending a lot of time working through the issues with Corrections, his staff would begin a series of visits to 15 prisons and other detention centres from next week.


"I received a letter from Corrections which really was quite discouraging of my continuing role because of the risk of infection and what might occur in prisons. And so it's taken me some time to work through it with Corrections and come to a point where we can perform our role properly."

In case there's any doubt, the Ombudsman's case is rock solid. They are an essential service, and a designated National Preventative Mechanism under the Optional Protocol to the Convention against Torture, which means that under the Crimes of Torture Act 1989 they have an unrestricted right of access to prisoners and places of detention. Corrections was breaking the law. Rather than writing letters begging for them to obey, the Ombudsman should have prosecuted the Chief Executive for obstruction (a power exercisable by way of s34 of the Crimes of Torture Act, which ensures that NPMs get to use all their usual powers in their OPCAT jurisdiction). While the penalty for this is a derisory $200 fine - something which desperately needs to be updated - its the sort of thing which should end an uncooperative public servant's career, and it would send a clear message that you do not fuck around with preventing oversight of detention facilities to cover up possible torture (because prisoners are being kept in prolonged isolation, and that constitutes torture under international law).

So why didn't they? The problem is institutional culture. Last year, in the context of a possible review of the OIA [long document; the quote is on p 269], a former Ombudsman's Office staffer talked about how the Ombudsman had a culture of mediation - suitable for cases of maladministration, where its about persuading an agency that they need to fix something, but utterly unsuitable for OIA cases where they make binding rulings. It also seems to be unsuitable for the OPCAT jurisdiction, where their job is to monitor places of detention to ensure they are free of torture and cruel or degrading treatment, where the agencies and people they are monitoring are by definition hostile (being on the hook for serious criminal charges if they are found to be misbehaving or failing to follow the law). You can't treat such investigations like a cosy chummy conversation seeking to persuade a colleague that actually they should obey the law. Instead, its effectively a standing criminal investigation. The Ombudsman should treat it as such. If they can't, maybe we need an NPM who will do the job effectively, or get international experts who aren't part of our system and so aren't afraid to burn bridges (and whatever else needs to be burned) to do it instead.