Review of the Performance of the Defence Force 4/6

Mark Burton Defence
  1. We now turn to consider how the standards which we have identified in the
    preceding section of our report have been applied in practice in the Defence
    Force and the Ministry of Defence. We address our findings under the following
    headings -
    1. Standards governing relationships with and obligations to the Government of
      the day.
    2. Training in the application of standards governing senior Service personnel
      relationships with Government.
    3. The issue of higher loyalty.
    4. Standards of behaviour in respect of handling official information.
    5. The scale of the unauthorised release of official information.
    6. Action taken by CDF to review leaking and adequacy of his action.
    7. Action taken by Secretary of Defence to review unauthorised disclosures, and
      adequacy of his action.
    8. Why did the unauthorised leaks occur?

  1. Standards governing the relationship of senior Defence personnel with and
    obligations to the Government of the day
  1. As we have already noted, staff of the Ministry of Defence are bound by the
    provisions of the Public Service Code of Conduct, which is distributed to all
    staff on taking up appointment. Standards relating to a number of the matters
    dealt with in the Public Service Code have been incorporated in various
    documents issued as Defence Force or Service Orders, especially in relation to
    the handling of official information. The written guidance or standards
    governing the relationship of Defence Force personnel with the Government is
    likewise spread across a number of separate documents. We have noted in
    particular DFO 34 relating to Defence Force Headquarters Organisation which
    deals with the powers and functions of the principal offices and institutions of
    State; but this is more a constitutional statement than a ready guide to the
    standards which should guide the Defence Force's relationship with and loyalty
    to the Government of the day. We formed the view that, in this area, the
    guidance available to Defence Force personnel was less comprehensive, less
    explicit and more fragmented than what has been produced for public servants.
  2. Programmes and documents have been developed in the individual Services, to
    underpin the training that all their members receive in core values. These are
    intended to reinforce such attributes as respect for the traditions of their
    parent Service, professionalism, loyalty, discipline and teamwork which are of
    great importance to effective operation of the Defence Force. Indeed these core
    values constitute the basic foundation for the effective operation of the Force
    and it is vital that they be universally respected. But they do not set out to
    cover in any comprehensive way the proper relationship between Service personnel
    and the Government of the day. There are some short references to these matters,
    although the precise sense may not always be clear, as for example in the Army's
    "Ethos and Values" in describing service to the Crown -

    "The Armed Forces have a special constitutional position where
    the members are engaged to serve at the pleasure of the Sovereign. This service
    is carried out regardless of the political stamp of the Government and is
    reinforced by the Oath of Allegiance, commissions and warrants."

    This may or may not be interpreted as a commitment of loyalty to the
    Government of the day, although the Chief of General Staff claimed that there is
    no ambiguity - that personnel are on oath to serve the Government of the day.

  3. Similar ambiguity characterises the attempt in the Navy's Command Management
    and Divisional Manual to describe in flow-chart terms the relationship between
    Government and Defence Force (see Appendix 7). This diagram might well leave the
    reader with an exaggerated impression of the role of the Governor-General and a
    diminished view of the relative importance of Cabinet and the Minister of
    Defence (leaving aside the curious placement of Parliament). We return later to
    the matter of the Governor-General's role.
  4. It was suggested to us by one officer that his commissioning parchment,
    which absolutely informed his conduct, contained all that was required in the
    way of directions on his responsibilities to the Government of the day - but
    this basic document is concerned entirely with respect for the orders of his
    superior officers, and duties towards subordinates.
  5. There seems to us to be a need for a single document, unambiguously
    expressed, incorporating a code of conduct for distribution to all members of
    the Defence Force. Such areas as the need for loyalty to the Government, and for
    political neutrality on the part of Force members, could be given appropriate
    emphasis. The Public Service Code dealing as it does with general behavioural
    issues as well as with the proper handling of official information provides a
    commendable model. Officers of the Defence Force are not public servants, and we
    do not see it as desirable that they should be.7
    But, like all parts of the Public Service, the Defence Force is responsible to a
    Minister for giving advice and implementing Government decisions. The Government
    of the day is entitled to expect the same level of honest, impartial and
    comprehensive advice from the Defence Force as from the public service. And it
    is entirely appropriate that the same standards of conduct should apply to the
    Government's principal civilian and military defence advisers (and their
    subordinates) particularly when they are required to consult with each other in
    giving advice on major policy issues. We recognise that the State Services
    Commissioner's document might well need some adaptation to the special
    requirements of the Defence Force. We suggest in our Conclusions a method by
    which this might be done.
  6. The Civil Staff Code of Conduct issued by the Chief of Defence Force in 1997
    contains a number of cogent requirements of acceptable behaviour, but they are
    expressed as obligations to the Defence Force rather than to the wider context
    we are addressing. It does not (nor purports to) deal with the basic issues of
    political neutrality and loyalty to the Government of the day which are properly
    highlighted in the Public Service Code. There is therefore a gap to be filled
    and the suggested new Defence Force Code of Conduct, applied to them, would
    provide this.

  1. Training in the application of standards governing senior Service personnel
    relationships with Government
  1. Senior officers of the Defence Force have normally been exposed to higher
    levels of training as they pass through the ranks. Such training includes
    enhancement of understanding of their proper relationship with the Government of
    the day. We witnessed a slide lecture presentation by the Defence Force Director
    of Legal Services, regularly given at the RNZAF Staff College at Whenuapai (but
    open to the other Services). In this example, it was made clear, eg, that -

    "The Defence Force and the disposition of those Forces are at the
    decision [sic] of Her Majesty's Ministers for the time being"

    And that

    "The Minister of Defence shall have control of the NZDF, which
    shall be exercised through the Chief of Defence Force."

    We were told that these bare statements normally formed the basis for
    extended discussion.

  2. More advanced study of the proper relationship between Government and Armed
    Forces is included in post-graduate courses undertaken by NZDF officers at staff
    colleges in a number of overseas countries, as well as New Zealand, and at such
    institutions as the Massey University Centre for Defence Studies.
  3. Since not all officers have access to these levels of training, we see merit
    in the organisation of special courses of perhaps 1-2 days' duration aimed at
    expanding understanding of the standards which should govern civilian/military
    relationships, and especially the convention of political neutrality which
    should govern the relationships between the Defence Force and the Government of
    the day. We believe that such a systematic approach would bring considerable
    benefit, and alleviate any areas of tension and uncertainty. But, as we observe
    later, no system of instruction would have prevented the deviant practices which
    have been the subject of our review: the individuals concerned were generally
    considered by those who addressed us on the subject to have been fully aware
    that their activities were in breach of the expected norms of conduct.
  4. Our experience in interviewing a number of Army officers in connection with
    our investigation into Mr Mark's allegations of misuse of his personal files
    suggested a further area in which training might be enhanced. There are times
    when Service personnel, who may be of relatively senior rank, are posted to
    sensitive positions in Service or Defence Force Headquarters immediately
    following long periods of service in overseas or even remote New Zealand
    locations. Several of these officers, and others whom we questioned on the
    point, thought that it would be helpful to them, and to their Services, if their
    Wellington positions were to be preceded by a short "refresher course" bringing
    them up to date with a range of pertinent issues outside their immediate
    professional experience, including some political orientation. We think this
    suggestion merits further consideration.

  1. The issue of higher loyalty
  1. In our preliminary briefing for the review, and in some of our interviews
    outside the Defence Force, we were told that it was not uncommon for members of
    the Force to insist that their loyalty was not necessarily to the Government of
    the day, but to a higher authority - the Sovereign, to whom all Service
    personnel swear an oath of allegiance; Her Representative in New Zealand who is,
    by statute, their Commander in Chief; or simply the Nation. This principle was
    believed to justify efforts to overturn or frustrate the implementation of
    Government policies seen as inimical to the country's security. None of those
    who passed these reports to us had had such assertions put to them directly by
    Defence Force officers; but all had received accounts of conversations in which
    such claims had been made.
  2. In most of our interviews with Defence Force personnel, we asked
    specifically whether the conduct of they themselves, or, to their knowledge,
    others in the Force was governed or influenced by the "higher loyalty"
    principle. In all cases, except for one middle-ranking officer, we received firm
    denials. There was virtual unanimity that, while their oath of allegiance was to
    the Sovereign, their loyalty was solely to the Government of the day. Many
    seemed bemused that the question should even have been asked, over what they
    regarded as a non-issue.
  3. We do not think there is any doubt that members of the Defence Force know
    that their loyalty is owed to the Government of the day, and that, once
    decisions have been taken by that Government, they must be faithfully
    implemented. That does not seem to us incompatible with the sense of duty to the
    nation that motivates service men and women to place their lives at the ultimate
    risk in New Zealand's defence.
  4. It was recognised in a number of our conversations that the argument of
    higher loyalty may well have been deployed as a rationalisation - or, as one
    interviewee put it, a "refuge" - by some Defence Force officers who embarked on
    actions they knew to be politically partisan or in defiance of Government
    policy. But we do not believe that it was a significant element of motivation.
  5. Although we do not judge that there is any serious ambiguity in the matter,
    in our Conclusions we address the statutory role of the Governor-General as
    Defence Force Commander in Chief. The powers of that office in New Zealand
    (quite unlike those of, say, the US President as Commander in Chief) are
    strictly limited in scope. We suggest that clearer statutory definition of the
    Commander in Chief's role and powers would remove any grounds for
    misinterpretations, deliberate or otherwise.

  1. Standards of behaviour in respect of handling official information
  1. Our terms of reference require us to address three questions under this
    heading -

    71.1  Do senior Defence personnel have clear standards for handling official
    information?

    71.2  How do Defence personnel view the leaking of documents and information?

    71.3  Why would Defence personnel leak documents?

    We address our findings in respect of each of these questions in turn.

    (i)  Defence Force standards for handling official information

  2. Both the Defence Force and the Ministry of Defence have adopted
    comprehensive guidelines for handling official information. The Defence Force
    has a series of Defence Force Orders promulgated by respective Chiefs of Defence
    Force under s 27 of the Defence Act relating to the handling of official
    information. For our purposes the relevant Defence Force Orders currently are -

    72.1  Defence Force Order 51 relating to Security;

    72.2  Defence Force Order 70 relating to Official Information;

    72.3  Defence Force Order 5/1999 relating to NZDF External Relations;

    72.4  Defence Force Order 20/2000 relating to the Protected Disclosures Act
    2000.

  3. We have examined the relevant provisions of Defence Force Order 51 relating
    to Security. We have also referred them to the Director of the New Zealand
    Security Intelligence Service for comment. Subject to his confirmation that
    there is nothing in the Order inconsistent with the Security Manual, we are
    satisfied that Defence Force Order 51 contains clear standards for the handling
    of official information relating to the security and defence of New Zealand.
  4. We have considered whether senior Defence personnel, who have access to
    official information relating to the security and defence of New Zealand,
    appreciate the critical importance of compliance with the standards in Defence
    Force Order 51. We believe that they do, not least because, significantly, as
    recorded in paragraph 94, none of the unauthorised disclosures of official
    information which we have been asked to consider relates to such information. We
    address this important finding further in our report.
  5. We have examined the provisions of Defence Force Order 70 relating to
    Official Information. We have also referred them to the Ombudsmen for comment.
    Subject to their confirmation, we are satisfied that Defence Force Order 70
    contains clear standards for the handling of official information. The
    introduction to the Defence Force Order contains a concise and accurate summary
    of the position -
    1. This Manual prescribes the procedures for the handling of official
      information by all service and civilian personnel within the New Zealand Defence
      Force. The procedures are designed to provide for the proper implementation of
      the provisions of the Official Information Act 1982 and to ensure that necessary
      protection is given to official information.
    2. Where any request for official information is received from any person, it
      is to be handled in accordance with the provisions of this Manual.
    3. Defence Force Orders for the Navy, Army and Air Force prescribe the
      procedures to be followed for releasing official information to the news media,
      publishing books and articles, and delivering public speeches, lectures and
      radio addresses. Personnel are authorised to release official information to the
      extent authorised and for the purposes specified in those Orders.
    4. Official reports, correspondence, and documents of whatever description,
      whether classified or not, are the property of the Crown. The only authorised
      use which personnel may make of official documents, or information derived from
      them, is in the performance of their duty.
    5. Except as authorised in paragraphs 2 - 4 above no service or civilian
      employee shall:
      1. publish or disclose in any form whatever outside the New Zealand Defence
        Force any official information which he or she has acquired or to which he or
        she has access.
      2. use other than in the course of duty any official documents or their
        contents or any other official information.
    6. All personnel are reminded that there are special provisions in New Zealand
      law relating to the misuse of information. They are:

      Section 25   Armed Forces Discipline Act 1971
            -unauthorised
      disclosure of information. Section 78   Crimes Act 1961 - espionage.

      Section 78A   Crimes Act 1961 - wrongful communication, retention, or copying
      of official information.

      Section 105A   Crimes Act 1961 - corrupt use of official information.

      Section 20A   Summary Offences Act 1981 - unauthorised disclosure of certain
      official information.

    7. Defence Force Orders for the Navy, Army and Air Force are to draw the
      attention of all personnel to the provisions of this Manual.
  6. The obligation to protect official information from unauthorised disclosure
    is mandatory8 and is also mentioned in paragraph
    1101 of the Order and paragraph 8 of Annex A to Chapter 1 of the Order which is
    required to be placed in unit or branch orders once every three months as a
    routine order. The prohibition on unauthorised disclosure is reinforced in
    respect of communications to the news media by Defence Force Order 5/1999 -
    "NZDF External Relations" - which we refer to later in our report because it was
    relied on specifically by the Chief of Defence Force.
  7. We have examined the Defence Force Orders for the Navy, Army and Air Force
    referred to in paragraphs 3 and 7 of this introduction. They are based on
    Defence Force Order 70.
  8. We have considered whether senior Defence personnel appreciate the
    significance of the obligations imposed on them by Defence Force Order 70 in
    respect of all official information. While we are reasonably satisfied that
    senior Defence personnel are aware in general terms of the nature of the
    obligation not to disclose official information unless authorised to do so, it
    is apparent that -

    78.1  There has in recent years been a significant increase in the number of
    unauthorised disclosures of official information relating to the Defence Force;

    78.2  The steps taken by the Chief of Defence Force to prevent this from
    occurring have not been successful; and

    78.3  Some Defence personnel are therefore either unaware of the obligation
    or, notwithstanding the terms of Defence Force Orders 70 and 5/1999, which are
    explicit, have deliberately breached the directions and have disclosed official
    information without authority.

  9. We discuss the reaction of the Defence Force to these breaches, the reasons
    for them and the adequacy of the steps taken by the Chief of Defence Force in
    respect of them later in this report. As we have already noted, unlike the
    Public Service which has easy access to its Code of Conduct, the Defence Force
    has not published a simple, straightforward statement of standards in respect of
    the protection and disclosure of official information. Instead the relevant
    instructions are contained in Defence Force Order 70 which is one of some 50
    volumes of Defence Force Orders published in book form out of a total of some
    128 current Defence Force Orders which relate to a wide variety of different
    subjects of varying degrees of importance. Furthermore, Defence Force Order 70
    is concerned primarily with practices and procedures relating to the disclosure
    of official information under the Official Information Act 1982. The obligation
    to protect official information from unauthorised disclosure is mentioned in the
    Defence Force Order, but it is possible that its significance as a stand-alone
    obligation may not be fully appreciated by all members of the Defence Force.
    They may not understand that breach of the obligation may be an offence under s
    39 of the Armed Forces Discipline Act 1971. The sanction for failure to comply
    with this aspect of the Defence Force Order is not mentioned in the Order.
    Certainly those who have been guilty of the unauthorised disclosure of official
    information in the Defence Force were not deterred.
  10. Defence Force Order 5/1999 - "NZDF External Relations" - is concerned with
    unauthorised disclosures of information or news to the media. It does not
    address the issue of unauthorised disclosure to persons outside the media, such
    as Opposition members of Parliament. To this extent it might convey the
    impression that disclosure to such persons is not prohibited.
  11. Production of a simple, straightforward statement in booklet form which
    among other things described clearly the obligation on all Defence personnel to
    avoid the unauthorised disclosure of official information to anyone, whether or
    not in the media, would promote understanding of responsibilities. Hence our
    advocacy of a code on the Public Service model covering both general behavioural
    issues and the handling of official information.
  12. We have examined the provisions of Defence Force Order 20/2000 relating to
    the Protected Disclosures Act 2000. We are satisfied that it contains
    appropriate procedures for the implementation of the Act, but we have the
    following concerns -

    82.1   The introduction to the Order does not make it clear that it
    reinforces the obligation to protect official information from unauthorised
    disclosure;

    82.2   The procedure for making a protected disclosure within the Defence
    Force may not sit comfortably with the command structure; and Defence personnel
    may not be aware of its existence and potential significance.

    (ii)    Ministry of Defence standards for handling official information

  13. The Ministry of Defence has issued the following relevant manuals to its
    staff -

    83.1   Security Manual: Policy on Information Security
    83.2   Security
    Manual: Document Security
    83.3   Corporate Manual: Ministerial and
    Information Requests
    83.4   Corporate Manual: Official Information Act
    Procedures
    83.5   Legal Compliance Manual: Official Information

    83.6   Public Service Code of Conduct
    83.7   Human Resources Manual:
    Code of Conduct
    83.8   Corporate Manual: Communication with the news media

    83.9   Corporate Manual: Information Technology Management and Security

    83.10   Protected Disclosures: Policy and Procedures.

  14. We have examined the provisions of these Manuals. We are satisfied that in
    each case they contain clear standards for the staff of the Ministry. There has
    been no suggestion that these standards are not understood by Ministry staff.

FOOTNOTES

  1. K J Scott, The New Zealand Constitution, 1962, p 140.
  2. The Armed Forces "cannot be regarded as a uniformed version of other
    departments of state" because of the intensity of personal and hierarchical
    relationships that are developed to ensure success in operations. Consequently
    "loyalties are much sharper than in an administrative department": Thornton LW,
    "Comment On Major Loorparg's Review of Defence Organisation" in Looparg T.
    "Defence Reorganisation: A New Approach to Change." Public Sector Research
    Papers Vol.2, No.1, 1981, p 1.
  3. cf. Defence Force Order 32/1994 - "The Privacy Act 1993 - New Zealand
    Defence Force Procedure and Practices" - referred to in our report of 13
    December 2001, paras 30-31, 41 and 46.1. To the extent that there was some doubt
    as to whether paragraph 13(a) in that Order was in the requisite mandatory form
    we recommended that consideration should be given by CDF to amending it to
    include a clear prohibition on access to or use of personal information unless
    required for a lawful purpose.