Review of the Performance of the Defence Force 2/6

General

As our terms of reference state, the object of our review was to make an
assessment of standards and behaviour in the Defence Force in the areas of the
handling of official information and relations with Government. To carry out
this assessment and to answer the specific questions raised in our terms of
reference, it has been necessary for us to enhance our understanding of the
current constitutional, legislative, political, economic, military and social
environment in which the New Zealand Defence Force and the Ministry of Defence
are required to function, by further background reading and the interview
process. We make the following brief observations. ¹
In constitutional terms, protecting the security of a nation is generally
recognised as one of the principal functions of a Government. The adequate
defence of a nation is a critical part of ensuring its security. For that
purpose Parliament has empowered the Governor-General to raise and maintain
armed forces for the defence of New Zealand: Defence Act 1990, s 5. The Minister
of Defence has general responsibility for the defence of New Zealand and, for
that purpose, has power to control the New Zealand Defence Force through the
Chief of Defence Force: Defence Act 1990, s 7. It is clear from these provisions
and the scheme of the Defence Act that the Government of the day has statutory
responsibility for determining defence policy and for directing the
implementation of that policy through the Defence Force which it has power to
control². The Government's responsibilities and
powers are reinforced in practical terms by the obligation for the Government to
obtain Parliamentary appropriations for Defence Force operating and capital
expenditure budgets. The Chief of Defence Force also receives detailed terms of
reference from the Minister of Defence which stipulate the duties and
obligations of the Chief of Defence Force and include a purchase agreement which
defines the "outputs" the Government requires from the Defence Force: Defence
Act, s 25(2). The role and functions of the Chief of Defence Force and the
Chiefs of Staff are plainly subsidiary to the Minister of Defence. In New
Zealand there is civilian control of the military.
There is a range of legislation which affects the Defence Force and which is
relevant to our terms of inquiry. The principal statutes are -
19.1  The Defence Act 1990;
19.2  The Armed Forces Discipline
Act 1971;
19.3  The Official Information Act 1982;
19.4  The Protected
Disclosures Act 2000.

The effect of this legislation is summarised
in the Crown Law Office opinion and we refer to aspects of it in our report.
Broadly speaking, all of this legislation applies to Defence Force personnel and
affects the way they should behave.
In political terms the Government of the day is responsible for determining
defence policy, which is invariably concerned primarily with an assessment of
risks and consequent funding and equipment issues in the context of an ever
changing international scene and of New Zealand's international treaty
obligations. During our history defence policy has usually been bipartisan (eg
during World Wars and the Cold War), but there have also been occasions when it
has been intensely political. ³ Over the last
10-15 years defence policy has become increasingly political as Governments and
Opposition parties have developed distinct policies based on different
assessments of New Zealand's defence interests and equipment priorities, with
controversial decisions including the establishment of New Zealand as a nuclear
free zone by the New Zealand Nuclear Free Zone, Disarmament, and Arms Control
Act 1987, the decision to replace the Skyhawks with F-16s, the subsequent
reversal of that decision, the decision not to proceed with the Sirius upgrade
of the Orions and the priority given to acquisition of new light armoured
vehicles for the Army. The advent of MMP with a wider range of views represented
in Parliament and the consequential increase in the role of the Parliamentary
Foreign Affairs, Defence and Trade Committee have resulted in defence issues
receiving a relatively higher public and political profile. The ebb and flow of
New Zealand's defence policy over this period is chronicled in the reviews which
have been carried out, including the New Zealand Defence Resource Management
Review 1988 by Strategos Consulting Ltd; The Defence of New Zealand 1991: A
Policy Paper; The Shape of New Zealand's Defence: A White Paper, 1997; the 1999
report of the Foreign Affairs, Defence and Trade Committee, Inquiry into Defence
beyond 2000; The Government's Defence Policy Framework - June 2000; and the
Government Defence Statement - 8 May 2001.
In the context of the Defence Act, the Government of the day, when
determining defence policy, is expected to obtain advice from both the Secretary
of Defence, who is the principal civilian adviser, and the Chief of Defence
Force, who is the principal military adviser: ss 24(2) and 25(1). Furthermore,
they are required to consult with each other: s 31(1). Having obtained this
advice, the Government of the day has final responsibility for the determination
of New Zealand's defence policy. Both the Secretary of Defence and the Chief of
Defence Force then have significant responsibilities in respect of the
implementation of the Government's defence policies. Major policy shifts,
coupled with substantial lead-in times for implementation (eg equipment
acquisition), together with close scrutiny from Opposition political parties,
defence interest groups such as Just Defence and the Centre for Strategic
Studies, and the news media have created tensions within the Defence Force and
the three separate Services. Political and interest group scrutiny of defence
issues has also been reflected in a significant increase in the number of
requests for information under the Official Information Act and the number of
Parliamentary questions. Whether these tensions have affected the political
neutrality of the Defence Force, or any component of it, and the level of trust
between the Government and the Defence Force are issues which we address later
in this report.
The economic environment over the last 10-15 years has not encouraged
Governments to spend substantial sums on defence. There have been other
priorities. The 1999 Report of the Parliamentary Foreign Affairs, Defence and
Trade Committee, Inquiry into Defence beyond 2000, stated at p 12 -
"Faced with a declining defence budget, the result has been a
dramatic run-down in capabilities, exacerbated by all the disadvantages inherent
in the replacement syndrome as NZDF has struggled to upgrade whatever equipment
and facilities it can afford to retain."

And the Government Defence Statement of 8 May 2001 states at p 4 -

"When the government took office in 1999 it inherited a Defence
Force suffering from neglect, underfunding, and confused government decision
making. Much of its equipment dated from the Vietnam War era. Operational and
personnel spending had been cut by almost eighteen per cent in real terms
between 1991 and 1997. The previous government's 1997 Defence White Paper was
neither funded nor followed through."

The overall reduction in defence spending which occurred during the 1990s had
a significant impact on the Defence Force. It no doubt contributed to
difficulties within the Defence Force and the Ministry of Defence when
significant re-equipment decisions were required, and to rivalries between the
three Services as they competed, inevitably, for their share of the defence
budget. Morale in the Services which believed that their aspirations had not
been adequately met was inevitably affected, at least initially.
Some of the problems which occurred as a result of these pressures are
illustrated by the Report of the Controller and Auditor-General dated 22 August
2001 entitled "Ministry of Defence: Acquisition of Light Armoured Vehicles and
Light Operational Vehicles". The Report described relationships between the
Defence Force, the Ministry of Defence and the Army as "dysfunctional",
involving mistrust and confusion: paras 4.18-4.19. The Report recommended that
the dysfunctional relationships needed to be corrected - and be underpinned by
clear accountabilities, a more trusting environment, and more face-to-face
communication.
There are aspects of the military environment which are relevant to our
assessment of standards of behaviour in the Armed Forces which may not always be
fully appreciated by civilians. Members of the Armed Forces have joined up for
the purpose of defending their country and in the knowledge that in doing so
they may lose their lives or be seriously injured. They are not public servants
or covered by the Employment Relations Act 2000. Their commitment is based on an
oath of allegiance to the Sovereign: Defence Act, ss 34 and 35. And the Armed
Forces operate through a command structure which requires unquestioning
implementation of superior orders which may be conveyed orally or by written or
electronic directive. The "command" structure is based on the need in a fighting
force for hard decisions in difficult situations and short time frames. As the
following cartoon from a recent Spectator issue so graphically illustrates, the
command structure does not provide an opportunity, in a battle situation, for
debate -

The command structure is derived from the Crown prerogative and is reflected
in the Defence Act, ss 8(3) and 28, as well as the Armed Forces Discipline Act
1971, s 38, which makes it an offence to disobey the lawful command of a
superior officer. Under the Defence Act the Chief of Defence Force "commands"
the three Services and the joint force "through" their respective commanders: s
8(3). And each Service Chief and the commander of the joint force "command"
their respective Services and the joint force: s 28. All members of the Armed
Forces are inculcated in the command structure which permeates all aspects of
the military, operational and managerial. It understandably affects all
relationships within the Armed Forces and the manner of communication both
within and between the respective Services and Defence Headquarters.
The Chief of Defence Force also has power to issue and promulgate Defence
Force Orders which bind all Defence personnel: Defence Act, s 27. In addition
the Chief of Defence Force has power to authorise other persons to issue Defence
Force Orders: s 27(2). We understand that this power has been exercised by the
Chief of Defence Force in favour of the three Service Chiefs. Defence Force
Orders are used for many purposes, including the prescribing of conduct in
relation to classified and official information. We discuss the effect of this
on our terms of reference further in this report. In the meantime we note that
failure to comply with a Defence Force Order may be an offence under the Armed
Forces Discipline Act 1971: s 39.
The traditional military command structure has come under pressure from
changes in New Zealand society which are reflected in the Armed Forces. Defence
personnel, especially those of officer rank, are generally well educated and
articulate. A number of officers view their military service as one step in a
career. They are aware of their rights as citizens as well as their obligations
as members of the Armed Forces. They have views on the future of their Services
and the role of the Defence Force. They would like to be involved in the
formulation of policies which affect them. Once policies have been formulated
and are being implemented, they would welcome positive recognition and support
for their efforts from the Government and the country. They appreciate comments
such as those made in the Report of the Parliamentary Foreign Affairs, Defence
and Trade Committee Inquiry into Defence beyond 2000 at p 10 - "Lest it be
thought that we are denigrating our armed services personnel, the Foreign
Affairs, Defence and Trade Committee of Parliament places on record its high
regard for the job they are doing in difficult conditions with limited
resources. They deserve the respect of all New Zealanders for the contributions
they are making to our foreign policy and security interests and in carrying the
New Zealand flag so proudly into international peacekeeping operations, so often
far from home."
Overall we were impressed by the calibre, commitment and professional
approach of the Defence personnel whom we met in the course of our review. There
was general disapproval of the unauthorised disclosure of information which had
led to our review and a concern at the impact of the consequent adverse
publicity on the Defence Force. But it was also apparent to us from our
interviews that the environmental factors which we have identified set the scene
for the unauthorised disclosure of information which we were asked to consider
in assessing the standards of behaviour in the Defence Force and the Ministry of
Defence.

The Defence structure in New
Zealand

New Zealand's Defence structure has been designed on the basis of principles
widely applied in the State sector reform phase of the 1980s and early 1990s,
including the separation of policy and operational functions,⁴ and provision for contestability in advice to Ministers.
The structure is understood to have represented a response to concerns held by
the Government of the day about the efficient and effective conduct of some
aspects of Defence business, including planning for capability to meet the
Government's policy goals, and procurement of major equipment items.
Broadly, the structure locates responsibility for performance of the
functions and duties of the Armed Forces with the Chief of Defence Force, and
responsibility for production of defence assessments, procurement of equipment,
and audit of defence functions, with the Secretary of Defence. Section 24 of the
Defence Act 1990, which sets out the functions of the Secretary of Defence,
requires the Secretary to formulate advice on defence policy in consultation
with the Chief of Defence Force. This and other provisions appear to reflect a
desire by Parliament for effective communication and cooperation between the two
institutions, balanced by an element of constructive tension.
The three main institutions are the Minister of Defence, the Defence Force,
and the Ministry of Defence.

The Minister of
Defence

The Minister of Defence has the power of control of the New Zealand Defence
Force, exercised through the Chief of Defence Force under s 7 of the Defence Act
1990.

The New Zealand Defence Force

The New Zealand Defence Force is constituted under the Defence Act. It
comprises the Armed Forces of New Zealand and the Civil Staff of the Defence
Force. It is not a department of the Public Service under the State Sector Act
1988.
The Chief of Defence Force is appointed from time to time by the
Governor-General in Council under s 8 of the Act. The Chief of Defence Force is
the principal military adviser to the Minister of Defence and other Ministers,
and is responsible to the Minister for carrying out the functions and duties of
the Defence Force, its general conduct, and the efficient, effective and
economical management of its activities and resources, among other things.
The Chief of Defence Force commands the Navy, Army and Air Force through the
Chief of Staff of each of those services. The Chiefs of Staff are appointed from
time to time not by the Chief of Defence Force but by the Governor-General in
Council under s 28 of the Defence Act. The Chief of Defence Force also commands
any joint force either directly through a joint force commander or through any
of the Chiefs of Staff.

The Ministry of
Defence

The Ministry of Defence is a department of the Public Service under s 27 of
the State Sector Act 1988. The Secretary of Defence is appointed by the State
Services Commissioner under s 35 of the State Sector Act. The Secretary is the
principal civilian adviser to the Minister of Defence and other Ministers, and
is responsible to the Minister of Defence for the carrying out of the functions
and duties of the department, the general conduct of the department, and the
efficient, effective and economical management of the activities of the
department, among other things.

FOOTNOTES

A more detailed description of some aspects of the background environment
may be found in Rolfe, The Armed Forces of New Zealand, 1999, Chapter 3 - "The
superstructure: command and control".
The limitation on the power of the Courts to intervene in the carrying out
of these statutory responsibilities by the Government is illustrated by the
recent decision of Heron J in Curtis v Minister of Defence, 20 November 2001,
which involved an unsuccessful attempt to review the decision to disband the Air
Combat Force. It is understood, however, that this decision is under appeal.
For instance, in the late 1930s four senior colonels in the New Zealand
Army, with strong connections to the Opposition, spoke out strongly against the
Government's policies: see Barber, "The New Zealand Colonels' 'Revolt', 1938"
(1977) NZLJ 496.
Ewart and Boston, "The Separation of Policy Advice from Operations: the Case
of Defence Restructuring in New Zealand", Australian Journal of Public
Administration, Vol. 52, No.2, June 1993, p 223.

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Review of the Performance of the Defence Force 2/6