Mai Chen: Ombudsman ideal first port of call

Complaining to the Ombudsman about issues such as bullying in our schools is an effective way to resolve problems with state-funded bodies established under statute. Picture / Getty Images

Victims of bullying and their families have at last been given closure

The report released yesterday by the Ombudsman on complaints arising out of bullying at Hutt Valley High School in December 2007 shows why complaining to the ombudsmen is an effective way to resolve problems with state-funded bodies established under statute.

As a parent, I know that bullying is all too commonplace; only last week I had to call the teacher at my child's school to get intervention for bullying to stop. As an immigrant, bullying was commonplace when I first arrived in this country. As a lawyer, I have had many parents and boards of trustees asking for advice on bullying incidents.

Amazingly, many have already been to court to try to resolve these issues. I have the utmost respect for the work of the court, but in the public law toolbox it has to be last resort given the monumental effort and resources it requires, and the limited nature of remedies courts can provide in determining illegality. Going to court can also be slow.

Thus, in most instances of administrative wrongdoing or bad process, the ombudsmen are free, quick and creative in the remedies they can "recommend". The ability of the ombudsmen to table adverse reports in Parliament, as with the bullying report, means almost all recommendations are implemented.

It is hard to believe that torture, extreme violence and sexual abuse could have happened in the Hutt Valley. And to find that victims' families were not told by the school that their children had been subjected to this behaviour is every parent's nightmare.

The school did not refer the matters to the police or Child, Youth and Family (CYF), the perpetrators were not adequately punished and the school took it upon itself to interpret medical information in favour of the bullies. The Education Review Office failed to properly assess the safety of the school and CYF failed to manage a conflict of interest of its staff member also on the school's board of trustees.

This report has brought closure for the victims and their families by providing a comprehensive picture of what really happened. The ombudsmen also have the flexibility to look beyond the individual complaints to underlying systemic issues and to recommend policy changes which will have an impact on the whole sector.

They did all of these in the bullying report, recommending amending school national administration guidelines to make anti-bullying programmes mandatory in all schools, recommending that the Ministry of Education provide specific guidance to schools on what level of punishment is appropriate for various offences and actions and to improve disciplinary procedures by requiring principals and school boards to consider victims' views when making decisions on discipline in bullying or violence cases.

The measures are important because they address culture and culture change, something which a decision by a court cannot address.

New Zealand's first Ombudsman, Sir Guy Powles, said: "The Ombudsman is Parliament's man, put there for the protection of the individual and, if you protect the individual, you protect society."

The type of "administrative review/audit" that lies at the heart of a major Ombudsman investigation like the bullying report focuses on the impact on individual citizens and whether they have been treated by the state in a fair, just and transparent way.

The report is an in-depth, independent and impartial investigation of why individuals weren't protected in the way they should have been, leading to recommendations as to how we protect individuals and society in the future while ensuring transparent accountability.

Next year will be the 50th anniversary since the institution of the ombudsman was established in New Zealand. They guard the guardians.

They are more often my first port of call in problem solving for those with problems with government than any other complaint body. The ombudsmen are also the watchdogs under the Official Information Act, ensuring citizens and business can access government information to which they are entitled.

* Mai Chen is a partner with Chen Palmer and author of the forthcoming 'Public Law Toolbox.'