Review of the Performance of the Defence Force 5/6

Mark Burton Defence

  1. The scale of the unauthorised release of official information

    (i)  Analysis of unauthorised disclosures

  1. We obtained from the Minister, the former Minister, the Chief of Defence
    Force and the Chief of the General Staff lists of alleged unauthorised
    disclosures of information. They covered not only the release of documents or
    the passing of information in briefing the media but also the provision of hints
    to members of Parliament as to what documents or information might profitably be
    sought via Parliamentary questions or Official Information Act requests. We
    referred the lists to the Chief of Defence Force and the Secretary of Defence
    for comment. Both of them drew our attention to the fact that inappropriate use
    of official information covers a broad spectrum of actions -
    • Leaking, i.e. the deliberate and improper covert release of official
      information to advance a particular agenda or to embarrass.
    • Unauthorised release, i.e. an intentional overt release of
      information outside approved guidelines that, because of its content, should not
      have been released from that organisation or person.
    • Authorised but unwise release, i.e. release of information within
      approved guidelines but with the possibility of causing damage or embarrassment.
    • Accidental release, i.e. the inadvertent release of information
      through carelessness.
  2. We have analysed the list of possible unauthorised disclosures in the light
    of this approach. Of the 62 disclosures included on the lists provided by the
    Minister, Hon. Mark Burton (44), Hon. Max Bradford (4), and Major General Dodson
    as CGS (14, plus three also in Mr Burton's list), covering a period from April
    1998 to October this year, 30 may be classified as 'probable leaks' in the terms
    above: "the deliberate and improper covert release of official information to
    advance a particular agenda or embarrass." Of the remainder, 15 may be
    categorised as 'unauthorised releases' (or unauthorised comments) and four as
    releases or comments that were 'authorised but unwise'. Most of the remaining 13
    cases were either properly authorised releases or comments, or what we have
    termed 'speculative analysis', that is, journalistic or political comment based
    on a variety of generally legitimate sources - information obtained under the
    Official Information Act, and from earlier public comment, for example. In one
    case, pure mischief seems to have been at work.
  3. It is the disclosures in the first category, the 30 'probable leaks', that
    are of most concern. Four of these 'probable leaks' occurred in Mr Bradford's
    time, three being to do with major impending procurement decisions (the Air
    Force's F16s, the Army's light armoured vehicles, and the Navy's third ANZAC
    frigate). The fourth related to the review of Defence real estate, where Mr
    Bradford noted a certain inevitability of disclosure given the protracted nature
    of the exercise and the number of people with interests at stake. In one of
    these cases the Secretary of Defence of the day initiated a Police inquiry,
    although this was cut short by Police operational requirements with no
    conclusions being drawn. Mr Bradford made the point that information in respect
    of at least six other sensitive Defence issues alive in his term as Minister
    (matters he may have considered potentially 'leak-worthy') was not disclosed.
  4. The remaining 26 'probable leaks' have occurred during the term of the
    present Minister. The first significant case occurred in May 2000 and the most
    recent in October 2001. The first, relating to Project Sirius, prompted the
    present Secretary of Defence to initiate a formal inquiry. While this inquiry
    was appropriately comprehensive it did not identify a source. Only a few others
    have been followed up by a formal investigation, either by CDF or by the Chief
    of Staff concerned. Most of the 'probable leaks' since January 2000 have
    occurred since the middle of this year (19 of the 26). Almost all of these have
    been related to the Army, and/or to the CGS personally. Four earlier 'probable
    leaks' also related to the Army and/or the CGS.
  5. Of the fifteen disclosures we have categorised as 'unauthorised
    releases/comments', most took place between the middle of last year and the
    middle of this year. Seven related to the Air Force, focusing mostly on morale
    and staff retention in the wake of Government decisions about its future role
    and structure. Some 'unauthorised releases/comments' appear to have been
    misguided contributions to aspects of the fairly lively public debate about
    defence matters. In the one case of an 'unauthorised release/comment' involving
    the Ministry of Defence the Secretary acted promptly and decisively,
    reprimanding the person concerned and issuing a general warning to his staff.
  6. Our analysis of the items on the lists of possible unauthorised disclosures
    provided to us is summarised in the chart at Appendix 8. This shows the timing
    of the various disclosures over the last two years. Bearing in mind the
    definition of 'leaks' we have used ("the release of official information to
    advance a particular agenda or embarrass"), we have indicated in the chart the
    institutions or individuals we suspect to have been likely 'targets' of the
    'probable leaks'.

    (ii)  How Defence personnel view the leaking of documents and information

  7. As we have already noted, the overall impression gained from our interviews
    was that there was widespread disapproval of the unauthorised disclosure of
    information which had led to our review. No one sought to argue that any of the
    leaks were justified. It is appropriate to note here, however, that from a large
    number of officers we heard the view that the establishment of the Joint Forces
    Headquarters this year would, by fostering the collaborative working of
    individuals from all three Services towards a common operational purpose, offer
    an important new opportunity to widen the understanding of individual officers
    of the issues facing their counterparts in other Services. If this view is borne
    out, the effect should be a significant reduction of the "win at all costs"
    approach to inter Service consideration of major re-equipping requirements, for
    example, which had sparked much of the aberrant behaviour we have been

    (iii)  Absence of security leaks

  8. Overhanging the emergence of a pattern of unauthorised disclosures plainly
    intended to advance particular interests within the Defence Forces, or to
    destabilise or embarrass individuals or embarrass Government itself, is the much
    more serious issue of national security. At a time when the country is
    contributing troops to a major international combat operation which involves,
    among other things, significantly expanded exchanges of highly-sensitive
    information with partner Governments, it is of even greater importance than
    usual that the integrity of New Zealand's systems for dealing with such material
    remains beyond reproach.
  9. We sought reassurance from all those we interviewed - as a principal point
    of concern - that the spate of unauthorised disclosures of recent years had
    included no information whose release could have prejudiced New Zealand's
    security or defence interests, or its international relationships, or the
    Government's capacity to receive information in confidence from other
    Governments. We paid particular notice to the responses of those who, by virtue
    of their offices, would have certain knowledge of any such security breaches had
    they been identified.
  10. The unanimous response to our inquiry was that, in these crucial areas, no
    breach was known to have occurred. We regard this as a most significant finding.
    The lapses in judgement, discretion and, indeed, loyalty which have been deemed
    sufficiently serious to justify this review appear to have done no damage to New
    Zealand's security interests or international relationships.
  11. We asked a number of those interviewed if they considered that the evident
    disregard by some members of the Defence Force of the accepted standards of
    behaviour, in misusing official information of a domestically sensitive
    character, might be encouraging a general loosening of discipline in the
    handling of secure material. Again, the responses were reassuringly negative. It
    was the general perception that those members of the Defence Force who had been
    leaking the kind of information which is the cause of this inquiry, and who had
    done so for a particular purpose in full knowledge that they were acting outside
    the rules, would nevertheless see it as their duty to continue to treat
    classified information of a secure character with the respect due to it.

  1. Action taken by CDF to review leaking and adequacy of action
  1. We have been asked to describe the action taken by the Chief of Defence
    Force to review the apparent "leaking" of information by Defence Force personnel
    and to indicate whether we consider that action was appropriate. In order to
    carry out this task we referred the lists of information believed to have been
    disclosed without authority provided to us by the current Minister of Defence,
    the former Minister and the Chief of the General Staff to the Chief of Defence
    Force and asked him to comment on the lists and in particular to advise us of
    the action taken at the time to review the various incidents.
  2. In his response to us CDF stated that he did not consider that all of the
    incidents listed by the Minister constituted unauthorised disclosure of official
    information by Defence personnel. Many of the incidents involved speculative
    reporting based on "information" which could have been obtained from a variety
    of sources. He did not have the resources to investigate every incident of this
    nature. Nor did he consider that it would be worthwhile doing so. He will direct
    an investigation when he believes that there is "sufficient circumstantial
    evidence" to warrant the application of scarce resources and that such an
    investigation is likely to meet with a degree of success. Lengthy investigations
    have been conducted in the past three years, but in each case the outcome has
    been inconclusive. He considered that there was no reason why all investigations
    must be directed by him. Each single Service Chief of Staff has the authority to
    conduct his own investigation, where the "disclosed matter" is related to his
  3. CDF told us that he has regularly and formally enforced the standards to be
    applied to the protection of information and the guidelines for those who have
    authority to make information public via the media. He did this by way of a
    series of instructions designed to reinforce the restrictions on communications
    with the news media referred to in Defence Force Order 5/1999 - "NZDF External
    Relations" - which noted the establishment of a formal NZDF public relations
    structure and which contained explicit warnings about unauthorised
    communications with the media. Particular attention was drawn to paragraph 8 of
    the Order which reads -

    "Because of the potential political consequences of remarks made
    in the absence of complete knowledge on an issue, NZDF personnel, whether
    uniformed or civilian, are forbidden to publish in any form whatever, or
    communicate directly or indirectly to the media or any other external
    organisation or individual, any Service information, or the individual's views
    on any Service subject, without specific authority."

  4. The steps taken by the Chief of Defence Force to prevent the leaks from
    occurring and to investigate them subsequently have proved unsuccessful. To that
    extent they were, by definition, inadequate to ensure either that no breach of
    the obligation on Defence personnel to protect official information from
    unauthorised disclosure occurred or that the culprits were identified. But the
    Chief of Defence Force considers that he took all appropriate steps in the
    circumstances. And we have a measure of sympathy for his position because at the
    end of the day if a person is determined deliberately to disclose official
    information without authority, that person will do so whatever steps are taken.
  5. At the same time, however, we consider that the Chief of Defence Force may
    have been unduly constrained by the command structure and reliance on the
    existence of Defence Force Orders and instructions, and the authority of the
    single Service Chiefs to investigate leaks in their own Services. In our view
    while the command structure is of fundamental importance to the Armed Forces in
    an operational context it may have its limitations in managerial areas such as
    enforcement of obligations relating to standards of behaviour or to the
    investigation of breaches of those obligations. Further steps to reinforce the
    importance of the obligations appear to be required. Reliance on the existence
    of Defence Force Orders and instructions - as an element of the command
    structure - will not suffice. We have already proposed the publication of a
    simple, straightforward statement along the lines of the New Zealand Public
    Service Code of Conduct to be made available to all serving personnel as one
    means of extending the reach of the Orders. But there are other forms of action
    which might be considered with the aim of enhancing the effectiveness of the
    command system in non-operational situations.
  6. The view of the Chief of Defence Force that it was appropriate to rely on
    the authority of the single Service Chiefs to investigate leaks in their own
    Services reflects the constraints which affect the authority of the Chief of
    Defence Force in respect of the single Service Chiefs. In our preliminary report
    of 13 December 2001, paras 42 and 43.3, we identified this issue for further
    consideration. The constraints arise under the Defence Force structure created
    by the Defence Act 1990 which, in an operational command sense, makes the Chief
    of Defence Force paramount, but in a managerial sense makes him only first among
    equals because all are appointed by the Governor-General and the Chief of
    Defence Force has no authority to remove or suspend a single Service Chief. The
    Chief of Defence Force does not have the authority of a chief executive in
    respect of the single Service Chiefs. They are commanders in their own right in
    respect of their Service. The review being conducted by Mr Hunn provides a
    timely opportunity to consider how what seem to us to be structural ambiguities
    should be resolved.

  1. (g) Action taken by Secretary of Defence to review unauthorised disclosures,
    and adequacy of his action
  1. The Secretary of Defence's response to the list of unauthorised disclosures
    compiled by the Minister, covering the period March 2000 - October 2001, noted
    that in only two cases were the examples quoted clearly the responsibility of
    Ministry staff, or involved misuse by others of material originating in the
    Ministry. On the first, comments intended to expand a journalist's technical
    understanding of capability were unauthorised. The staff member concerned was
    reprimanded for lack of judgement and for acting beyond his authority. All staff
    were reminded of the Ministry's policy on communication with the news media.
  2. The second, more serious case concerned public release of confidential
    information about an acquisition project, provided to Ministers' offices and
    several Government departments. The Secretary initiated an inquiry into the
    matter by writing to the heads of the relevant departments, none of whom
    admitted responsibility. The Secretary does not believe that the information
    came from his Ministry, which had held it tight before the wider consultation.
    He has now made it standard practice for all staff members working on
    acquisitions projects to sign confidentiality agreements.
  3. We are satisfied that the steps taken by Mr Fortune in response to these two
    incidents were appropriate.

  1. (h) Why did the unauthorised leaks occur?
  1. The unauthorised release of information, commonly known as "leaking",
    provided the most obvious evidence of a pattern of unacceptable behaviour within
    the Defence Force which was of even greater concern than the leaking itself.
    While leaking of official information had occurred often enough in preceding
    years - both from the Armed Forces and from other Government agencies, and
    generally to the media - the pattern during the years 1997-2001, on the part of
    the Defence Force seems to have been more substantial, more complex in character
    and range than earlier, and to have raised more troubling concerns about the
    integrity of members of the Force. Why should this be so?
  2. In none of the cases drawn to our notice (other than where the release was
    not deliberate) has the identity of the individuals responsible been firmly
    established. We were not constituted as a "leak inquiry", but were charged to
    examine broad trends in behaviour, as well as the integrity of systems governing
    the handling of official information within the Defence Force and Ministry of
    Defence; and we have no independent judgement to offer on the precise origin of
    the leaks, nor on the motives of those responsible.
  3. Moreover, the evidence provided to us during the numerous interviews we
    conducted was by no means unanimous on either point. Opinions as to the identity
    and motivations of the miscreants were divided; and conclusions, necessarily
    speculative but stated by some with assurance, were as confidently contradicted
    by others spoken to.
  4. We must, therefore, acknowledge at the outset that, in the absence of firm
    evidence of individual culpability, we cannot state with certainty why it was
    that these breaches of discipline and obligation occurred in such number in the
    past four years. But although the evidence could not be judged totally
    conclusive, by the end of our investigation, the weight of opinion appeared to
    point towards one plausible explanation. The following paragraphs set out our
    best attempt to chart the course of events and the forces which provoked them.
    It is to be regarded as an hypothesis rather than a proven diagnosis; but we
    believe it to lie closely enough to the truth to underpin the conclusions
    advanced in the final section of our report.
  5. The aberrant behaviour manifested in an unacceptable level of unauthorised
    disclosure of official information during the last four years had its roots in
    two highly significant trends already touched on in paragraphs 20-22 above.
    These were the run-down in Defence capabilities stemming from a declining
    Defence budget, and the emergence of clear divisions between the two major
    political parties as to the purpose and structure of the Defence Forces, and the
    consequential equipment requirements.
  6. For a number of reasons, Defence spending has always been a difficult area
    for New Zealand Governments, not the least the perceived absence of a clear,
    direct military threat to the country. Another major challenge has been to
    accommodate within a limited budget periodic expenditure bulges when very large
    capital assets, especially for the Navy and Air Force, need to be replaced or
    upgraded. The period 1997 - 2001 with which we have been principally concerned
    saw these difficulties converge, as major re-equipping decisions covering all
    three Services could not be further postponed. They were dealt with first in the
    last years of the National Government, then reconsidered by the incoming Labour
    Government with different priorities.
  7. During the first phase, up to late 2000, there was intense competition
    between the three Services for their share of the funding likely to be
    forthcoming. This competition was initially expressed within established
    consultative procedures aimed at identifying an agreed priority for new capital
    projects; but as the process advanced and a Ministerial view began to take
    shape, it became apparent which aspirations were most likely to be fulfilled and
    which, at least initially, must be deferred or only partially met. In
    particular, there were apprehensions on the part of many Army officers that
    their Service's legitimate claims would not be fully met in this round. Such
    foreboding appears to have actuated the letter sent by Lt Col. Gordon, then on
    the Defence liaison staff in London, to the Deputy Chief of the General Staff
    Brigadier Ottaway in March 1997. (Appendix 9). It was written about two weeks
    after a CGS seminar in which working groups of middle level Army officers had
    canvassed many of the ideas advanced in the letter.
  8. The "Gordon letter" is currently the subject of a separate inquiry under the
    authority of the Judge Advocate General. We content ourselves with noting that a
    number of the officers we interviewed, while not necessarily aware of the
    existence of the letter before it was tabled in Parliament in 2001, believe in
    hindsight that it constituted a basis from which some of their fellow officers,
    perhaps with the assistance of certain retired colleagues, did indeed open the
    "second front" advocated by Col. Gordon. The strategy defined by Gordon was to -

    "attain a level of control over NZDF policy making in order to
    ensure that the capabilities of the NZ Army evolve in such a way as to be able
    to meet the future challenges likely to be imposed by Government."

    This included ensuring that selected individuals supporting the "two fronts"
    strategy were selected for promotion to key positions, exploiting "the
    vulnerability of the air strike capability to the Army's advantage, and lobbying
    Maori MPs, select committee members, academic institutions and the general

  9. The Judge Advocate General's inquiry will show how far these ideas were
    disseminated and acted upon within the Army and disclose the available
    information concerning the source of the leak of the letter. The important point
    for us is that a number of Army officers at that time strongly disagreed with an
    approach which advanced public relations activities into unacceptable territory.
    It is perfectly appropriate and, indeed, desirable that a Service should
    maintain a public relations programme designed to disseminate information about
    its activities as an aid to recruitment, and to wider community understanding of
    its role. But a fine line demarcates this legitimate activity from the active
    lobbying of politicians and calculated undermining of the aspiration of other
    Services. In our view and in those of a number of fellow officers this line was
    plainly crossed in Col. Gordon's blueprint. "Working outside the square" as one
    senior Army officer put it to us. It is significant that at this time the public
    relations firm Communications Trumps, which had a substantial role in the
    process, was described by a former director as having been involved in an "Army
    rebranding" exercise.
  10. The split in opinion within the Army was exacerbated by a further divisive
    internal argument over the appropriate future strategy and consequential
    equipment requirements of the land force. The debate appears to have continued
    well beyond the point at which final decisions on the matter were taken by the
  11. The current Government's decision to reverse its predecessor's decisions in
    a number of respects, most notably in abandoning the air strike capability and
    investing more heavily in the Army motorisation project, was clearly
    disappointing to the Air Force and, to a lesser extent, the Navy. Our inquiries
    did not, however, produce any evidence or even widespread perception that the
    rising epidemic of unauthorised disclosures were part of a campaign from within
    those two Services directed at having the decisions reversed, embarrassing the
    Government or destabilising senior individuals within the Defence Force.
    Comments made to the media about the state of morale in the Air Force, for
    example, were acknowledged to be due to efforts by the media to secure stories
    rather than any pro-active campaign. Middle ranking as well as senior officers
    of these Services assured us that all personnel saw it as their duty now to work
    zealously to put the new policies into effect.
  12. Over the past year the origin and the target of the heightened level of
    unauthorised disclosures have clearly changed. Without firm evidence it is
    impossible to identify the sources of this later unauthorised flow of documents,
    or information about the content or existence of documents to Opposition Members
    of Parliament and to a smaller extent the information media. We encountered a
    view, within as well as outside Army, that the prime culprits were Army
    officers, whether in the Army itself, or on the staff of Defence Force
    Headquarters, or perhaps retired. Their motives were said to be various: support
    for what they saw as a more balanced Defence Force structure; opposition to some
    aspects of Army's current policies; determination to destabilise Army
    leadership; dissatisfaction with lack of promotion. 9
  13. Initially, this view of Army culpability seemed to us too much of a paradox
    to be taken seriously. But its repetition and the evidence in some cases that
    leaked material could only have come from Army sources suggested to us that it
    might well have greater plausibility than any other likely explanation.
  14. It would be wrong to see this inference as indicating widespread disloyalty
    to the Government. Although the disclosures have plainly caused continuing
    embarrassment to the Government, they appear to have been aimed primarily at
    destabilisation of individuals within Army, and at influencing the CDF and CGS
    appointments. As one senior interviewee put it to us, the aim was to ensure that
    the "right" people would hold the key positions when the next round of major
    funding and equipment decisions occurred.
  15. Moreover, the group of officers orchestrating the disclosures is considered
    to be small, and the overwhelming majority of Army officers do deplore the
    tactics employed. Some informants expressed the hope that this group would be
    identified and dealt with summarily.
  16. Our inquiries have then not established any grounds to conclude that there
    has been a systemic failure in the behavioural standards of the Defence Force.
    We were impressed by the integrity and commitment of the serving officers we met
    and their obvious distaste for the aberrant conduct of a few. Loyalty to the
    Government, for most, is not at issue. It is in everyone's interest that a
    stronger attempt should now be made by the new leadership to identify those few
    who have overstepped the mark and neutralise their ability to do further damage.
    There are also a number of areas in which we believe improvements in the
    framework governing standards of behaviour and the handling of official
    information would help to clarify and reinforce the Government's expectations;
    and these are addressed in the conclusion section which follows.


  1. As Iago put it in Othello, Act 1, Scene 1 -
    "Tis the curse of
    service. Preferment goes by letter and affection. And not by old gradation,
    where each second Stood heir to th' first."