Review of the Performance of the Defence Force 3/6

Introduction

37. In this section of our report we consider in general terms the standards of
    behaviour which the Government requires of the Public Service, including the
    standards relating to the protection and disclosure of official information.
    These apply formally to staff of the Ministry of Defence but not to members of
    the Defence Force, although it is plain to us that Ministers expect from the
    Force standards of conduct similar to those for public servants. We note that in
    respect of the Civil Staff employed in the Defence Force the Chief of Defence
    Force has power to issue a code of conduct covering "the minimum standards of
    integrity and conduct" applicable to them: Defence Act 1990, s 60. We have
    examined the Civil Staff Code of Conduct issued under this provision in 1997 and
    comment on it later.

Standards of general behaviour in the Public
Service

38. The standards of behaviour which the Government expects of the Public
    Service are well established. They are set out in Chapter 2 of the Cabinet
    Manual and the New Zealand Public Service Code of Conduct published by the State
    Services Commissioner under s 57 of the State Sector Act. A copy of the relevant
    parts of the Code is in Appendix 6. As both the Cabinet Manual and the Code of
    Conduct emphasise, the standards are based on the convention of "political
    neutrality". In Palmer and Palmer, Bridled Power New Zealand Government under
    MMP, 1997, 85, it is stated -

    "The key element running through these obligations [in the Code
    of Conduct] is that the New Zealand public service is politically neutral -
    loyal to whatever government is in power at any time."

    The purpose of this convention is to ensure that the Public Service gives
    free and frank advice to the Government of the day while maintaining the ability
    to give similar advice to future Governments. The Code of Conduct puts it this
    way -

    "Public servants are required to serve the Government of the day.
    They must act to ensure not only that their department maintains the confidence
    of its Ministers, but also to ensure that it is able to establish the same
    professional and impartial relationship with future Ministers. This convention
    of political neutrality is designed to ensure the Public Service can provide
    strong support for the good government of New Zealand over the long term."

39. For present purposes the relevant standards may be summarised as follows -
    

    39.1  Public servants are obliged to serve the aims and objectives
    of the Minister. In this respect they owe a duty of loyalty to their Minister
    and the Government generally.⁴ They are
    responsible for providing assistance to their Minister in the development and
    implementation of policy.

    39.2  The advice which public servants give must be honest, impartial and
    comprehensive. Ministers should be in a position to take decisions based on all
    the facts and an appreciation of all the options. Public servants should fulfil
    their lawful obligations with professionalism and integrity.

    39.3  Final decisions on policy are the prerogative of Ministers and not
    public servants. The latter may not withhold relevant information from Ministers
    or seek to obstruct or delay a decision or attempt to undermine or improperly
    influence Government policy (for example, by the unauthorised release of
    official information).

    39.4  Once policy decisions have been made by the Government public servants
    are responsible for implementing those policies within the law and to the best
    of their abilities.

    39.5  Public servants who in conscience oppose policies or find themselves
    unable to implement a policy decision are required to discuss the circumstances
    with their manager or chief executive. They are not entitled to do anything to
    circumvent or undermine the Government's policies.

    39.6  Public servants should not normally communicate with Opposition Members
    of Parliament about matters relating to their official duties without prior
    Ministerial approval. Chapter 2 of the Cabinet Manual makes it clear that
    consultation and negotiation between the Government and other political parties
    is the responsibility of Ministers.

    39.7  Public servants must take considerable care when communicating with the
    news media. While they have the same rights of free speech in relation to their
    private affairs as members of the public, they should not discuss matters
    relating to their official duties if to do so would -

    • reveal advice given to a Minister;
    • use or reveal any information gained in the course of official duties where
      this was not already known by, or readily available to, the general public;
    • criticise, or offer alternatives to, a proposed or actual Ministerial policy
      or departmental programme;
    • purport to express or imply a departmental view, rather than clearly
      expressing a personal view only;
    • give openly partisan support to, or criticism of, a political party;
    • constitute a personal attack on a Minister, departmental colleague or other
      public servants; or
    • amount to criticism sufficiently strong and/or persistent so as to call into
      question the public servant's ability to impartially implement, administer, or
      advise upon a Government policy.

    39.8  Only those public servants authorised to do so should make public
    statements to the media. In respect of public comment, Chapter 2 of the Cabinet
    Manual states -

    "Where press statements or other public comment are concerned, there
    should be a clear understanding as to which issues are to be handled by the
    Minister and which by the department. Official comment on behalf of a department
    should be made only by those employees authorised to do so."

40. The standards of behaviour of public servants in respect of the handling of
    official information are affected by the principles and procedures relating to
    the authorised release of information contained in the Official
    Information Act 1982, other relevant legislation, and specific departmental
    rules. We refer to the relevant legislation shortly. But at this point we
    highlight the general obligation on public servants to protect official
    information from unauthorised disclosure. As the Code of Conduct states
    (p 16) -

    "It is unacceptable for public servants to make unauthorised use or
    disclosure of information to which they have official access. Whatever their
    motives, such employees betray the trust put in them, and undermine the
    relationship that should exist between Ministers and the Public Service.
    Depending on the circumstances of the case, the unauthorised disclosure of
    information may lead to disciplinary action, including dismissal."

41. Public servants who are concerned about suspected departmental wrong-doing
    may report their concerns through their department's normal channels or by
    following the procedures prescribed by the Protected Disclosures Act 2000 (the
    "whistle blowing" legislation). The existence of the procedures and protections
    under this legislation, which provide a legitimate avenue of non-public
    disclosure when justified by concerns of serious wrong-doing, also serves to
    reinforce the obligation on public servants to avoid the unauthorised disclosure
    of official information.

The standards governing the handling of
official information

42. Our terms of reference require us to assess the standards of behaviour in
    the Defence Force in relation to the handling of "official information". The
    expression "official information" is generally understood to encompass all
    information, whether in documentary or electronic or other form, held by a
    Government department or a Minister of the Crown in his or her official
    capacity. The definition of the expression in the Official Information Act 1982
    makes it clear that in this context a Government department is a department as
    defined in Part I of the First Schedule of the Ombudsman Act 1975 which
    expressly includes the Ministry of Defence and the New Zealand Defence Force. A
    similar definition of the expression appears in s 78A(2) of the Crimes Act 1961
    and that definition is incorporated in s 25 of the Armed Forces Discipline Act
    1971 which proscribes the unauthorised disclosure of official information in
    certain circumstances. We return to these provisions later in our report as they
    have a special significance in respect of information held by the Ministry of
    Defence and the New Zealand Defence Force.
43. The object of the Official Information Act, as its long title states, is -
    

    "to make official information more freely available, to provide for
    proper access by each person to official information relating to that person, to
    protect official information to the extent consistent with the public interest
    and the preservation of personal privacy, to establish procedures for the
    achievement of those purposes, and to repeal the Official Secrets Act 1951."

44. This object is implemented by provisions which make it plain that the
    principal purposes of the legislation are -

    44.1  To increase progressively the availability of official
    information to the people of New Zealand;

    44.2  To provide for proper access by each person to official information
    relating to that person;

    44.3  To protect official information to the extent consistent with the
    public interest and the preservation of personal privacy (s 4).

45. The purposes are reinforced by the principle of availability in s 5 of the
    Act which requires all questions of availability to be determined in accordance
    with these purposes and the principle that -

    "the information shall be made available unless there is good reason
    for withholding it."

    But this approach does not apply where the Act "otherwise expressly
    requires". This express exception to the application of the principle of
    availability is particularly significant in the context of our review which is
    concerned with all official information held by the Ministry of Defence and the
    New Zealand Defence Force.

46. The Official Information Act spells out plainly the circumstances in which
    there will be conclusive reasons for withholding official information. Under s 6
    of the Act -

    "Good reason for withholding official information exists, for the
    purpose of section 5 of this Act, if the making available of that information
    would be likely -

    
    
    1. To prejudice the security or defence of New Zealand or the international
       relations of the Government of New Zealand; or
       
    2. To prejudice the entrusting of information to the Government of New Zealand
       on a basis of confidence by -
       
       1. The government of any other country or any agency of such a government; or
          
       2. Any international organisation; or
    3. To endanger the safety of any person "

47. The express recognition in s 6(a) and (b) that information should not be
    made available if it would be likely to prejudice the security or defence of New
    Zealand or the entrusting of information by a foreign government or an
    international organisation is consistent with s 25 of the Armed Forces
    Discipline Act which makes it an offence for any person subject to the Act to
    disclose such information.⁵

    To similar effect are s 78A of the Crimes Act 1961 and s 20A of the Summary
    Offences Act 1981. These statutory prohibitions against the unauthorised
    disclosure of information relating to the security and defence of New Zealand
    are not surprising. They serve to emphasise for Defence personnel the critical
    importance of maintaining the highest standards of confidentiality in respect of
    such information.

48. The Official Information Act contains other provisions relating to the
    non-disclosure of official information. Under s 9 of the Act there may be good
    reason for withholding official information where it is necessary to avoid
    prejudice to the substantial economic interests of New Zealand, or to enable a
    Minister or department to carry out, without prejudice or disadvantage,
    commercial activities, or enable a Minister or department to carry on, without
    prejudice or disadvantage, commercial negotiations. These provisions are likely
    to be applicable to the Ministry of Defence in respect of the implementation of
    Government decisions for the re-equipment of the Defence Force.
49. Notwithstanding the principle of availability underlying the Official
    Information Act, it is clear that there are categories of official information
    which will be held by Government departments and Ministers which should not be
    disclosed. Persons holding and having access to such information need to take
    special care to ensure that such information is not disclosed. The existence of
    such information also means that a careful approach is required in respect of
    all official information. This is reinforced by the Cabinet Manual, Chapter 6,
    which states -

    "The government holds a large quantity of information of all
    kinds. All government information should be treated with care and protected from
    unauthorised release" and "Where government documents are sensitive, they may be
    given a security classification. Classified documents must be handled in
    accordance with their classification, subject to their release under the
    Official Information Act or under some other proper authority".
    

50. The classification of documents for security purposes is carried out as a
    result of a decision by Cabinet on 18 December 2000.

The security classifications
system

51. The security classifications system, which is applicable to official
    information, has existed for many years. Its classifications and definitions
    have, in the normal course of events, been revised from time to time. The system
    in operation through the late 1990s provided three classifications:
    Confidential, covering information or material the unauthorised disclosure of
    which would have been likely to damage national interests in a significant
    manner; Secret, relating to information or material the unauthorised disclosure
    of which would have been likely to damage national interests in a serious
    manner; and Top Secret, covering information or material the unauthorised
    disclosure of which would have been likely to damage national interests in an
    exceptionally grave manner.
52. The revised system introduced in December 2000 provided an additional
    national security classification - Restricted, where compromise of information
    would damage national interests in an adverse manner. Two further
    classifications were also introduced for public interest or personal privacy
    reasons: Sensitive, where compromise of information would be likely to damage
    the interests of the New Zealand Government or endanger the safety of its
    citizens; and In Confidence, where compromise of information would be likely to
    prejudice the maintenance of law and order, impede the effective conduct of
    government in New Zealand or affect adversely the privacy of its citizens.
53. The Director of the Domestic and External Security Secretariat has advised
    us that the Ministry of Defence has updated its departmental security policy to
    reflect the new system. The policy is published on the Ministry's intranet and
    all staff have been trained. New staff are trained as part of the induction
    process. The NZDF has also updated its departmental security policy. Its
    intranet includes a self administered training module, completion of which is a
    prerequisite for authority to use the NZDF email system. Security training is
    also part of the military training system, with courses for officers and NCOs
    covering the subject at various levels. At this still early stage the new system
    appears to be bedding in satisfactorily in terms of comprehensibility,
    implementation and compliance.
54. Chief executives or other officers responsible for each organisation are
    entitled to make further more detailed rules to facilitate implementation of the
    classified information system within their own settings.

FOOTNOTES

5. K J Scott, The New Zealand Constitution, 1962, p 140.

6. These provisions also reflect the traditional judicial restraint when
   dealing with cases involving national security or international relations: see
   Eagles, Taggart, Liddell, Freedom of Information in New Zealand, 1992, 162 ff.