Review of the Performance of the Defence Force 3/6Mark Burton Defence
- 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
- 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
"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."
- 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
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."
- 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."
- 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
- 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.
- 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."
- 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).
- 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.
- 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 -
- To prejudice the security or defence of New Zealand or the international
relations of the Government of New Zealand; or
- To prejudice the entrusting of information to the Government of New Zealand
on a basis of confidence by -
- The government of any other country or any agency of such a government; or
- Any international organisation; or
- The government of any other country or any agency of such a government; or
- To endanger the safety of any person "
- To prejudice the security or defence of New Zealand or the international
- 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
- 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.
- 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".
- 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, 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.
- 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.
- 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.
- 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.