Review of the Performance of the Defence Force 6/6

Mark Burton Defence

Conclusions

  1. In this section of our report we set out the various conclusions which we
    have reached in the course of making an assessment of standards and behaviour in
    the Defence Force in the areas of the handling of official information and
    relations with the Government. As we have discussed with you in the course of
    our inquiry, our conclusions respond to the specific questions raised in our
    terms of reference as well as other more general matters which have arisen in
    the context of making the requisite assessment.
  2. On the basis of the more than 70 interviews which we have conducted (see
    Appendix 2), we are satisfied that in the Defence Force overall standards of
    integrity, commitment and professionalism are high and that there is general
    disapproval of the unauthorised disclosure of official information: see
    paragraphs 28 and 91 above.
  3. While we were frequently assured that within the Defence Force there are
    clear and appropriate standards governing the relationship between the Defence
    Force and the Government of the day, we believe that the form and content of
    these standards is by no means as clear, comprehensive or accessible as the
    situation requires. It should be an early priority to fill this gap: see
    paragraphs 56-61 above. On the other hand, we found no reason to doubt that
    officers were generally well aware of their responsibilities and we certainly
    found no evidence of widespread disloyalty: see paragraphs 67-69 above.
  4. At the same time, however, there have been a substantial number of incidents
    involving the unauthorised disclosure of official information relating to the
    Defence Force and these incidents constituted breaches of the obligation on
    Defence personnel not to release such information. We were not asked to identify
    the individuals responsible for these deliberate "leaks" and, as we have made it
    plain, there is no clear evidence of culpability. We were guided in most cases
    by the weight of opinion in the responses to our inquiry. Nevertheless it became
    apparent to us that they probably came largely from factions in the Army: see
    paragraphs 111-117 above. As far as we could tell, there were few, if any,
    deliberate "leaks" of information from persons in the Navy, the Air Force, the
    Joint Force or the Ministry of Defence: see paragraphs 102-103 and 115 above.
  5. As we have emphasised in our report, none of the "leaks" referred to us
    involved classified information or information which related to the security or
    defence of New Zealand: see paragraphs 92-95 above. This conclusion was
    confirmed by all of those responsible for the protection in New Zealand of such
    classified information: see paragraphs 93-94 above.
  6. It is difficult to escape the conclusion that the "leaks" which occurred
    were originally designed to advance the interests of the Army, primarily against
    the interests of the other Services. Subsequently the "leaks" were designed to
    counter the influence of a faction in the Army by causing personal embarrassment
    to the CGS. These various leaks also had the consequential result of causing
    political embarrassment to the Government and the Minister: see paragraph 118
    above.
  7. In essence, with the qualifications already referred to, it seemed to us
    that the "leaks" occurred because -

    127.1  There was widespread concern in the Defence Force, and in the
    Army in particular, as a result of 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
    Force, and the consequential equipment requirements: see paragraphs 109-110
    above.

    127.2  There was intense competition between the three Services for their
    share of the funding likely to be forthcoming: see paragraph 111 above.

    127.3  A group of officers in the Army decided to pursue an active "campaign"
    designed to ensure that the Army obtained its share of resources. One aspect of
    this "campaign" involved undermining the claims by the Navy and Air Force for
    their share of resources. This included the judicious, but deliberate "leaking"
    of official information to the news media: see paragraphs 112-113 above.

    127.4  As a result of the perceived success of the Army "campaign" and those
    involved with it, another faction in the Army, for a variety of motives, reacted
    by deliberately "leaking" information to Opposition members of Parliament which
    led among other things to well directed requests for official information under
    the Official Information Act and Parliamentary questions which caused
    considerable personal embarrassment to CGS and consequential political
    embarrassment to the Government: see paragraph 118 above.

  8. These two phases of deliberate "leaking" of official information involving
    different factions in the Army are not indicative of any widespread malaise
    either in the Defence Force or indeed in the Army: see paragraph 120 above. They
    have involved a relatively small number of individuals who misguidedly believed
    that their breaches were somehow justified: see paragraph 119 above. Some of
    them may now appreciate that their actions were unwise and not in the best
    interests of the Army. We found no evidence of any systemic problem underlying
    the disclosure of official information in the Defence Force.
  9. We have set out in our report the steps taken by the Secretary of Defence to
    investigate the unauthorised disclosure of official information: see paragraphs
    102-103 above. We are satisfied that these steps were adequate and appropriate
    in the circumstances: see paragraph 104 above.
  10. We have also set out the steps taken by the Chief of Defence Force to
    investigate the unauthorised disclosure of official information: see paragraphs
    96-98 above. Although the steps taken by the Chief of Defence Force in relation
    to a much greater number of alleged breaches proved unsuccessful, they appeared
    adequate and appropriate in the circumstances: see paragraphs 99-101 above.
  11. We consider that the Chief of Defence Force was inhibited in successfully
    investigating the "leaks" by the following factors -

    131.1  Reliance on the command structure and on the force of orders
    in a managerial context. Some individual Army officers were prepared to
    disregard the orders in a way which would have been unthinkable to them in an
    operational context: see paragraph 100 above.

    131.2  The decision not to investigate "leaks" apparently from the Army on
    the grounds that the investigation of those "leaks" was the responsibility of
    the CGS: see paragraph 101 above.

  12. Our terms of reference do not require us to make any recommendations. We
    understand that this is because it is intended to refer our report to Mr Don
    Hunn to assist him in his major review of the accountabilities and structural
    arrangements between the Ministry of Defence and the New Zealand Defence Force.
    Both you and Mr Hunn have suggested, however, that it would be helpful if we
    were to identify in our conclusions any matters arising from our inquiry which
    might be taken into account in Mr Hunn's review. This we now do.
  13. It seems to us that in the context of the subject matter of our review there
    is a need for clear and decisive leadership at the top of the Defence Force and
    the Army to identify and remove or neutralise those individuals responsible for
    the breach of Defence Force standards and the unauthorised disclosure of
    official information. The recent appointments to those two positions have
    provided the Government with an ideal opportunity to ensure that the new leaders
    are not only of high professional competence but will also deal promptly and
    effectively with the culprits.
  14. The terms of reference to be given by the Minister to the CDF when that
    officer takes up his appointment should state clearly and prominently that one
    of his principal responsibilities will be to take decisive steps to end this
    sorry saga. They must include a vigorous attempt to identify and remove or
    neutralise that small minority of officers who have participated in it; the
    expeditious reiteration to all personnel of their responsibilities in this area,
    and all practical means that can be taken to enhance and preserve respect for
    the accepted standards of behaviour. It should be made plain to the new CDF that
    the degree of his success in meeting this explicit requirement will be a major
    element in judging his performance.
  15. In paragraph 101 above we referred to the existence of constraints on the
    powers of the Chief of Defence Force to carry out his responsibilities in
    relation to management as distinct from operational functions. In these
    management areas he has similar accountabilities to the Government as does any
    Chief Executive in the Public Service. He can, however, only perform this role
    through the Service Chiefs; yet since he does not appoint those Chiefs he has
    very limited disciplinary power over them and therefore less authority to ensure
    that his wishes are carried out. While this may not be a significant problem at
    times when all the senior officers concerned are working in harmony history has
    shown that this will not always be the case. It seems to us that this area - of
    heightening the effectiveness of accountability procedures within the Defence
    Force - needs to be considered further in the context of Mr Hunn's review.
  16. One possible approach might be a change in the way Service Chiefs are
    appointed. In the latest round of appointments of CDF and Service Chiefs, the
    State Services Commissioner, with the assistance of an advisory panel, advised
    the Government of the candidates whom he believed were best qualified for the
    respective positions. The appointments were then approved by the
    Governor-General in Council. This procedure, for the first time followed the
    State Services model, except that whereas the State Services Commissioner
    formally appoints Departmental Chief Executives, who are then bound in a
    contractual relationship with him, the appointment of the Service Chiefs has
    been effected, as required by the Defence Act, through the issue of Warrants by
    the Governor-General. Consideration might now be given to aligning the two
    appointment processes a stage further - that, while the Governor-General in
    Council continues to approve the appointment of Single Service Chiefs, the
    Defence Act could be changed to provide for the appointment to be formally made
    by the CDF, bringing the Service Chiefs into the same kind of contractual
    relationship with CDF as the State Sector Chief Executives have now with the
    State Services Commissioner.
  17. We anticipate that Mr Hunn will consider the need for structural changes at
    New Zealand Defence Force Headquarters and consequential legislative amendments
    to the Defence Act 1990. In the course of our inquiry we formed the view that
    the experience of the last decade indicates that consideration could usefully be
    given to other amendments of the Act including -

    137.1  The nature and extent of the powers of the Chief of Defence
    Force to command all aspects of the Defence Force. (Current ambiguities should
    be removed).

    137.2  The role and functions of the three Service Chiefs now that the Joint
    Forces Headquarters has been established.

    137.3  The effectiveness of the command structure outside operational and
    related areas.

    137.4  A requirement that by the end of a transitional period all
    appointments to senior positions should have Joint Forces experience.

  18. If it is decided to make amendments to the Defence Act 1990, there are a
    number of further specific points which might be considered -

    138.1  Clarification of the role of the Governor-General as
    Commander in Chief: see paragraph 70 above.

    138.2  Inclusion of a specific provision requiring political neutrality of
    the Defence Force and briefing of the Leader of the Opposition to encourage a
    bipartisan approach to defence issues. There is a precedent for such a provision
    in the New Zealand Security Intelligence Service Act 1969: see s 4AA.

  19. The Defence Force should consider producing a simple, straightforward
    statement in booklet form describing clearly the obligations of all Defence
    personnel to observe political neutrality and to avoid the unauthorised
    disclosure of official information to anyone, whether or not in the media: see
    paragraphs 60 and 81 above. The Public Service Code of Conduct could be used as
    a model, but adapted to reflect the unique features of the Defence Force and to
    include the points made in the introduction to DFO 70. The contents of the
    booklet might usefully be prepared after consultation with members of the
    Defence Force using a "bottom up" approach.
  20. The Defence Force should consider extending the education and training of
    its officer corps in all Services to include an appropriate course covering the
    essential features of the constitutional relationship between civilians and the
    military: see paragraph 64 above. The course already developed by the Director
    of Legal Services would be a valuable starting point. All appointees to New
    Zealand Defence Force Headquarters should have the benefit of such a course
    where the nature of their prior experience justified this.
  21. The changing principles of Defence Force personnel - better educated, more
    questioning than their predecessors - suggest to us that there may be a need for
    some forms of safety valve. At the higher level, these might include a vehicle
    on the lines of the now discontinued Defence Quarterly which enabled them to
    advance views publicly in their personal capacity. For lower ranks as well as
    higher, there would be value in providing full opportunity to advance views on
    major impending policy issues, and to receive the feedback from their Service
    which would give those who took advantage of the process a feeling of ownership
    in the results.

Douglas White QC

Graham Ansell

20 December 2001