Review of the Performance of the Defence Force 5/6Mark Burton Defence
- The scale of the unauthorised release of official information
(i) Analysis of unauthorised disclosures
- 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
- Leaking, i.e. the deliberate and improper covert release of official
- 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.
- 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.
- 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.
- 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.
- 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
(ii) How Defence personnel view the leaking of documents and information
- 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
- 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.
- 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.
- 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.
- 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.
- Action taken by CDF to review leaking and adequacy of action
- 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.
- 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
- 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."
- 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.
- 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.
- 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.
- (g) Action taken by Secretary of Defence to review unauthorised disclosures,
and adequacy of his action
- 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.
- 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.
- We are satisfied that the steps taken by Mr Fortune in response to these two
incidents were appropriate.
- (h) Why did the unauthorised leaks occur?
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.