Today I made submissions to a New Zealand Parliamentary select committee on the use of the word ombudsman and the more appropriate gender free term ombuds. The submissions I made are as follows.

New Zealand was one of the first countries to introduce the office of the ombudsman after the Scandinavian countries. Our ombudsman scheme was established in 1964 under the Parliamentary Commissioner (Ombudsman) Act 1962 but it was not until the 1975 Ombudsman Act as amended in 1991 that the word "ombudsman" was protected by statute.

What changed since the origin of the office was a considerable expansion of the use of the term outside of the original use for the Parliamentary ombudsman scheme. In the United States, the term began to be used extensively for people appointed as an ombudsman to universities and similar tertiary institutions. There is a specific professional body where most affiliate, called the International Ombudsman Association, which operates an annual conference, a professional journal and training. The IOA tends to be a largely North American organisation, but it has increasingly reached out internationally and there are members across the world using the term ombudsman.

The New Zealand ombudsman became concerned about protection of the term and so arranged for an amendment to the act in 1991 restricting the use unless there was specific consent from their office. There are a number of statutory or industry bodies which were granted permission, including the Insurance Ombudsman (now called the Insurance and Savings Ombudsman) and the Banking Ombudsman. The only other permission was granted specifically to the office of the ICANN Ombudsman, where permission was given in 2011. That was of course an application which I made and which was granted subject to conditions that I not use the term in New Zealand because of the restrictions.

That was not a difficult condition because my office was global within the ICANN community. There were only ever a small number of referrals to my office from New Zealand, and the complaint handling software was based in Los Angeles, California. On a practical level I did a lot of the work online, but sitting at my office in Wellington, New Zealand, although I also travelled extensively to the ICANN meetings around the world.

This issue has now been the subject of an application for judicial review by Financial Services Complaints Limited, which runs an industry based service and wanted to use the term ombudsman. They considered that since other similar bodies have been granted permission, this restricted them in their marketing of the services. Their application was ultimately declined by Justice Simon France inFinancial Services Complaints Limited v Chief Ombudsman [2017] NZHC 525.

In his decision he refers to some of the history of the term and the reason why the term became restricted. Interestingly, there was some resistance to the restriction from officials and also from the Minister of Consumer Affairs, although because of the passage of time the details are somewhat murky. The then ombudsman Sir John Robertson managed to persuade Parliament to introduce the restriction however. The history was outlined in a paper which he presented to the International Ombudsman Institute, which is an international body of mainly Parliamentary ombudsman, based in Vienna. Citing from the decision and from his paper it is interesting to note:-

"While I have not achieved the total prohibition sought in the first place, the statutory power which I now have to control the use of the term “Ombudsman” is a practicable and sensible solution to the problems which I foresaw in 1985, at least insofar as New Zealand is concerned. We are a small country population-wise, where the Parliamentary Ombudsman is a well-established and, relatively speaking, well-known and understood concept. It was, therefore, important not to allow the positive influence which the office has been able to bring over the past thirty years, to the understandably at times contentious edge between the authority of the state and the rights of the citizen, to be diminished unnecessarily by the word “Ombudsman” becoming trivialized. I think there is some magic in the name “Ombudsman” which needs to be nurtured and protected in the public interest."

Ultimately the decision rested on issues of statutory interpretation and Justice France concluded by saying:-

"The application fails. The Chief Ombudsman’s policy is not inconsistent with the statutory purpose. Although it is legitimate to ask when a consent will ever be given under s 28A of the Act, the restrictive policy cannot be said at this point to have closed the door to any successful application in the future. The decision was not unreasonable."

What attracted my attention however was not the argument which was raised and the basis on which the application was refused. There was considerable emphasis on the need to protect the term, but no discussion at all on the use of the term outside of New Zealand. I mention this because of the very extensive use in the United States and Canada and also now Europe for university and industry ombudsman. The current membership of the International Ombudsman Association as cited from their annual report in 2016 was 744 – including a number of members from New Zealand. The judge's attention was not brought to the existence of this organisation and the fact that if there is concern about use of the term, then it does not take into account the very extensive use overseas.

The Court of Appeal has considered the issue and overturned the earlier decision. The decision is here https://forms.justice.govt.nz/search/Documents/pdf/jdo/bf/alfresco/service/api/node/content/workspace/SpacesStore/6cd608df-b230-422f-9421-9da450f02536/6cd608df-b230-422f-9421-9da450f02536.pdf 

The Court of Appeal looked at the historical development and use of the term. They comment in paragraph 8 of the judgment, that the need for legislative protection of the term ombudsman was driven by a concern that the use of the term outside the Parliamentary context had become increasingly widespread. Sir John Robertson apparently wanted a complete prohibition although this met with some opposition, when the then Minister of Consumer Affairs considered that the term had passed into common usage. Of course since this discussion in 1990 and thereafter, the term has become far more widely used particularly in universities, not just in North America but extensively in Europe and other places. This particular barn door has not only been open but destroyed in the following 30 years. But this factor did not loom large in the decision of the Court of Appeal.

It appears that the successor to Sir John Robertson, Sir Brian Elwood, issued criteria for considering applications for use of the name. He devised a two-stage test, the first of which was to balance the public interest in the use of the name against the undesirability of proliferation. The second test was a more elaborate examination of the use of the term, although the eight tests would look familiar to any ombudsman under the International Ombudsman Association criteria. Sir Brian opined that applications would be rarely granted, and only three have apparently been allowed. The most recent was of course my own application in 2011, described by Justice Simon France as an outlier. The Court of Appeal commented that my approval did not in fact shed any light on the use of the statutory discretion to use the term.

It is unfortunate that the Court of Appeal may not have been made aware of the criteria of the International Ombudsman Association, because the eight tests outlined by Sir Brian Elwood, are very similar to the criteria adopted by the IOA. There does not seem to have been any analysis of the very considerable amount of research and analysis over the many years since his decision, and the academic and other research from IOA members, found among other places, on their website and in the peer-reviewed journal published by the IOA.

But in any event the organisation Complaints Limited, the applicant in the High Court and appellant in the Court of Appeal pressed their case based on alleged invalidity of the Elwood policy. The Court of Appeal considered the categories of discretionary powers from previous authorities and found that the particular use was based on (paragraph 47)

 "Powers that by dint of the nature of the subject matter justify the establishment of a carefully articulated policy, but always with the reservation that no case is to be automatically rejected because it does not fit the policy"

They considered that the effect of the stage 2 factors is that the policy effectively amounted to a complete ban on the use, which was not what Parliament intended nor was it consistent with section 14 of the New Zealand Bill Of Rights Act 1990 (freedom of expression). They considered that the policy unduly restricted the scope of the discretion to a degree not contemplated by Parliament and precluded the decision-maker from taking into account other relevant considerations, in addition to proliferation and the risk of confusion.

But further than this, the courts both in the High Court and Court of Appeal were not told about more recent research on the use of the term. There have been a number of learned papers written by authors from Queen Margaret University in Scotland where there has been a centre for research on ombudsman, although they use the term ombuds. This aspect was not discussed either in the decision, because the judge was not referred to this research from what I can read from the decision. This research introduces a new angle to the use of the term because the authors consider that the term "ombudsman" is gendered and therefore can be abbreviated to ombuds. In a paper on the University website they talk about an attempt to introduce the gender neutral term to Northern Ireland, which was rejected, in the words of Varda Bondy and Margaret Doyle, stating that the attempt failed when the legislature were deemed arguments about brand recognition were more persuasive than arguments about equality. See https://ombudsresearch.org.uk/2017/04/25/how-an-attempt-to-introduce-a-gender-neutral-title-was-rejected-by-the-legislature/ for the full article. There is forthright comment about the failure to recognise inappropriate use of gender specific terms.

The purpose of my submission is to consider whether some of the larger issues about the extensive use overseas and about the gender of the term should have been considered in this argument. I raise it because I wonder whether this needs to be looked at in a bigger sense. I speculate whether the term ombuds could be freely used in New Zealand, because of the specific and now perhaps old-fashioned term ombudsman does not recognise gender diversity.

It is regrettable that no consideration appears to have been made of the criteria in the IOA standards to set up an ombudsman office. Both the New Zealand Parliamentary Ombudsman and Complaints Limited do not appear to have considered the use of the large body of research from the IOA. This may have cut short the need for judicial review to the Court of Appeal in my view.

A consideration of the IOA standards would have supported the Court of Appeal's view about the unduly restrictive policy. So it will be interesting to see if the term can now be used more widely as a result. My thoughts are that use of the IOA standards would be of assistance in creating any new policy about the use of the term.

The proposed legislation is very narrow in scope and appears to address the specific issues of the parties in the High Court and Court of Appeal. It misses the very substantial opportunity to address the gendered version of the name and perhaps more importantly, ignores the extensive overseas use of the term both in the older version of ombudsman and in the, as I submit, more correct version of ombuds. Of course there is no restriction on the use of the word ombuds. So there is nothing to stop an organisation recognising the older gendered version as obsolete and using the more modern term.

It also misses an opportunity to recognise that the model of dispute resolution promoted by the IOA has gained tremendous traction because of the advantages of assisting organisations to deal with a wide variety of disputes. Sadly, the legislation seeks to repair a 20^th-century problem in the 21^st century.

If it is of value to the Select Committee I am happy to talk further about these issues.

Chris LaHatte

Appendix

In this section I have included material from the IOA website at https://www.ombudsassociation.org/learn-about-ioa to give an overview of what they do. I am a member of IOA.

About IOA

Mission:

The mission of IOA is to advance the profession of organizational ombudsman* and ensure that practitioners are able to work to the highest professional standards.

Vision:

The vision of IOA is to work having an ombuds office in every organization.

Who We Are

The International Ombudsman Association (IOA) is a member-led, professional association committed to supporting organizational ombuds worldwide. At the most fundamental level, an organizational ombuds is one who assists individuals and groups in managing conflicts and raising concerns in service of a highly effective and healthy organization. There are a number of different titles or names for this position: “ombudsman,” “ombudsperson,” “ombuds,” or “ombud” among others. There are different types of ombuds with different roles, functional responsibilities, and standards of practice including: organizational ombuds, classical ombuds, and advocate ombuds. IOA members are the heart and the heartbeat of our association. Membership is important to us, and we strive to foster meaningful member engagement throughout the association.

What We Do

The Association supports organizational ombuds worldwide working in corporations, educational institutions, non-profit organizations, government entities, and non-governmental organizations. The IOA works to promote the continuous development of the organizational ombuds profession through its Standards of Practice and Code of Ethics; support of communication and networking among ombuds: its strategic partnerships and communications with professionals sharing similar functions; and with government agencies and other organizations. IOA provides professional development, networking, mentoring, a peer-reviewed journal, a newsblog, and many online resources, as well as a robust and engaging annual conference.

As the ombuds profession and IOA continue to evolve, we continue to look for new and innovative ways in which to best meet the needs of our growing membership, to enhance our membership experience, and to promote the profession. Learn more by viewing our Strategic Plan.

Our History

The name “ombudsman” (OM-budz-man) comes from Swedish and literally means “representative.”  The International Ombudsman Association (IOA) was officially formed in July 2005 following the merger of The Ombudsman Association (TOA) and the University and College Ombuds Association (UCOA). IOA is the largest international association of professional organizational ombuds practitioners in the world, representing almost 900 members across the globe. IOA was built on the traditions of TOA and UCOA; IOA offers a full roster of professional training and education programs for the practicing ombuds professional and those interested in learning about our practice.

The leadership of IOA consists of a 15-member volunteer Board of Directors elected by the membership; standing committees composed of volunteer members with chairs appointed by the Board; and other strategic IOA initiatives comprised of member volunteers who have expertise and passion for specific areas of practice. Learn more about IOA by reviewing our Annual Reports.