Review of the Performance of the Defence Force 1/6
Mark Burton DefenceHon Mark Burton
Minister of Defence
December 2001
Report to the State Services Commissioner
by Douglas White QC and Graham Ansell
Introduction
- The Minister of Defence and the Chief of Defence Force have each requested, under section 11(4) of the State Sector Act 1988, that the State Services Commissioner "review the performance of the Defence Force in relation to
expected standards of behaviour, and in particular the leaking and inappropriate
use of information by Defence Force personnel." - To meet that request the State Services Commissioner determined to carry out
an inquiry defined in the terms of reference set out in Appendix 1 to this
report. The Commissioner appointed us, Douglas White QC and Graham Ansell, under
s 25(2) of the State Sector Act 1988, as a Review Team to conduct this inquiry. - For the purpose of summoning witnesses and receiving evidence, s 25(1) of
the State Sector Act gives the State Services Commissioner the powers of a
Commission of Inquiry under the Commissions of Inquiry Act 1908. While those
powers attached to our inquiry, we were not a formal Commission of Inquiry as
such nor were we expected to hold formal, public hearings with the involvement
of parties, and witnesses being cross-examined by opposing counsel.
Context of the review, and relationship to other reviews
- The Government's Defence Policy Framework released in June 2000 foreshadowed
a "review of accountabilities and structural arrangements between the Ministry
of Defence and the New Zealand Defence Force". - On 10 September 2001 the Minister of Defence announced a review of the
accountabilities and structural arrangements between the Ministry of Defence,
the New Zealand Defence Force, and the three Services. The Minister of Defence
expects the reviewer to provide an interim report to him by the end of 2001. - In addition to its concerns about accountabilities and structural
arrangements the Government has expressed increasing disquiet about the handling
of Defence documents and information, including 'leaks' to members of the
Parliamentary Opposition. The Minister has announced two further reviews as a
consequence. The first is the review that is the subject of this report, about
the performance of the Defence Force in relation to expected standards of
behaviour, and in particular the leaking and inappropriate use of information by
Defence Force personnel. This review was originally required to be completed by
the end of November 2001, so that the results would be available to the first
(accountabilities and structural arrangements) review as soon as possible, but
the reporting time was extended when we were requested to direct our attention
to the more urgent matter of the allegations by Mr Ron Mark MP about misuse of
his Army files. On completion of our report on that matter on 13 December 2001
we resumed our work on this report. - The third review, which is intended to address specific concerns about a
letter written by an Army officer in March 1997, and an e-mail circulated by
Navy staff in March 2001, is being conducted under the authority of the Judge
Advocate General. The Judge Advocate General was originally expected to report
by mid-December 2001, but we understand that it is now unlikely that he will do
so before the end of January 2002. - Our terms of reference note the possibility of overlap between our review
and the review being carried out by the Judge Advocate General, and requires
appropriate cooperation and consultation between the two.
Nature of Government's concerns
- Before beginning our inquiry, we were briefed by the Minister of Defence and
the Chief of Defence Force on the nature of the concerns which had led to their
requesting the State Services Commissioner to initiate the investigation. This
was done both orally and by the submission of documents. Their observations
covered two broad areas:- 9.1 Unauthorised disclosure of official information
The Minister supplied us with a list of 44 occasions on which unauthorised
disclosures may have been made. These fell into several different categories,
and were of varying degrees of seriousness, though all had caused embarrassment.
In some cases, Defence personnel had spoken openly to media representatives or
written letters to newspaper editors about policy issues. In other cases,
information had been published by the media without attribution, or at least
with no more than a general reference to Service sources. There were a number of
instances in which information had apparently been passed, without authority, to
Opposition Members of Parliament as background briefing or in the form of copies
of official documents. On some occasions, requests for documentation from the
media or from Opposition MPs directed under the Official Information Act 1982 or
as Parliamentary Questions to the Minister, appeared to have been prompted by
sources within the Services. The report from the Chief of Defence Force covered
a number of these cases, and some others; and a further list of apparent
breaches was later supplied to us by the Chief of the General Staff. Both
officers gave us details of investigations already made, where they had been
initiated. We received from both copies of instructions they had issued with the
aim of discouraging practices which they held to be unacceptable.9.2 Standards of Defence Force behaviour
It was made plain to us that the Government was equally concerned to secure
an independent judgement on the standards of behaviour within the Defence Force
which had allowed and might have encouraged the spate of unauthorised
disclosures. We were asked to endeavour to establish whether within the Force
there was a full understanding of the relationship which should properly exist
between members of the Force and the Government of the day, and of the need to
avoid acting in a way that might suggest disloyalty to Government policies.
Reports had reached Ministers and senior officials outside the Defence Force
that some members of the Armed Forces believed they had a higher loyalty - to
the Queen, through the Governor-General, who is Commander in Chief - which might
cause them to work actively against Government policies which seemed to them
detrimental to New Zealand defence interests. Essentially, Ministers wished to
know whether there had been a breach in the convention of political neutrality
within the Defence Force, and if so, what steps the Service Chiefs had taken to
remind their subordinates of their obligations and, where necessary, effect a
change in attitude.
Our approach and methods
- At the outset of our review we considered what might be the most appropriate
means of making the assessment and answering the questions raised in our terms
of reference. We noted that we had not been asked to conduct a formal inquiry
into the sources of the unauthorised disclosure of information which had led to
our appointment. We were not required to make any findings which might affect
the reputation of any identified individual and which might have justified
adopting a different approach. We decided that, while under s 25 of the State
Sector Act 1988 we had the same powers to summon witnesses and receive evidence
as a Commission of Inquiry, the nature of our terms of reference and the need to
report expeditiously meant that it would be appropriate and preferable to
conduct our review through a series of interviews with persons able to assist us
rather than by way of a formal public inquiry. We anticipated that those persons
whom we interviewed would be likely to be more forthcoming if we adopted this
approach. - Statements by the Minister of Defence gave public notice of our review. We
believed that anyone who might wish to make a submission to us would have been
aware that there was an opportunity to do so. The Minister of Defence also wrote
to the members of the Parliamentary Foreign Affairs, Defence and Trade Committee
by letter dated 23 October 2001 providing them with a copy of our terms of
reference and inviting them to contact us if they wished to contribute to our
review. We were not approached by any member of the Committee, although we
interviewed Hon. Max Bradford in his capacity as the former Minister of Defence
and also Mr Ron Mark MP, the latter primarily in connection with our report on
allegations relating to accessing his personal Army files. We received one
submission from a member of the public. - Having now completed our review, we are satisfied that the process which we
adopted was the right one in the circumstances. Since 28 September 2001 we have
interviewed a total of 75 people, 5 on more than one occasion. Without
exception, everyone interviewed was willing to assist us fully and frankly.
Defence personnel had instructions from the Chief of Defence Force to provide us
with any information which we sought and they did so. All other persons
co-operated fully. A complete list of the persons interviewed appears in
Appendix 2 to this report. On several occasions we were welcomed by those
interviewed in the Defence Force as providing an opportunity for them to express
views to an independent panel. We record our appreciation of the assistance
provided by all those interviewed. - In the course of our review we interviewed senior personnel at Defence
Headquarters in Wellington and also at the Headquarters of the single Services;
Ministry of Defence personnel; heads of other relevant Government departments
and persons responsible for security intelligence; staff from the office of the
Controller and Auditor-General; as well as a range of others including the
former Chief of Defence Force (Lt General Tony Birks), the former Chief of the
General Staff (Major General Piers Reid), the former Secretary of Defence (Mr
Gerald Hensley) and the former Chair of the Parliamentary Foreign Affairs,
Defence and Trade Committee (Hon. Derek Quigley). The questioning of Defence
personnel included interviews conducted at Trentham (the Joint Forces
Headquarters), Linton Military Camp, Whenuapai Air Force Base and Devonport
Naval Base. At each of these places we interviewed commanding officers and
groups of mid-ranking officers. We found that these interviews gave us a
valuable perspective for our review. - In addition to conducting the series of interviews, we sought and obtained a
substantial amount of documentary material, some of a background nature and some
directly relevant to our terms of reference. An index of the key documentary
material which we received is contained in Appendix 3 to this report. The
directly relevant documentary material included -- 14.1 Lists of information believed to have been disclosed without authority
over the past 2 - 3 years provided to us by the current Minister of Defence, the
former Minister of Defence, the Chief of Defence Force, and the Chief of the
General Staff. A summary list of unauthorised disclosures is contained in
Appendix 4 to this report.14.2 Comments on these lists provided by the Chief of the Defence Force and
the Secretary of Defence.14.3 Defence Force Orders and memoranda issued by the Chief of the Defence
Force and instructions to his Ministry by the Secretary of Defence relating to
the areas covered by our terms of reference, including classified information,
official information, protected disclosures and the unauthorised disclosure of
information. 14.4 A Crown Law Office opinion on the constitutional nature of
the relationship between the Defence Force and the Government of the day (sought
by the State Services Commission and the Defence Force). A copy of the opinion
is contained in Appendix 5 to this report. - As already noted, our terms of reference required us to co-operate and
consult with the other reviewers. To the extent appropriate, we have been in
touch with Mr Don Hunn, who is carrying out the accountabilities review, and Mr
Colin Carruthers QC, who is carrying out the review for the Judge Advocate
General. - As anticipated in our terms of reference, we have in the time available
obtained the information which we required to carry out our review without
needing to exercise any powers under the Commissions of Inquiry Act 1908.