The Inspector-General of Defence Act became law on 26 July 2023. This law sets in place the process for establishing the role of an independent person who can facilitate independent oversight for the Minister of Defence, and provides an avenue for the Government to assure Parliament and the public that there is independent scrutiny of the New Zealand Defence Force activities. It will have an investigation function and an assessment function.
Origin of the Act
The recommendation for this position was made by the Government Inquiry into Operation Burnham, which was established to consider allegations against operations of the New Zealand Defence Force in Afghanistan in 2010 and 2011. The Inquiry found that the Defence Force had failed to provide full and accurate information to Ministers and to the public. It also found failures affecting ministerial accountability to Parliament.
Civil Society responds to the Bill
Several civil society organisations (including TINZ) and individuals submitted on the Bill, generally in support but concerned about elements that inhibited scope, independence, transparency and reporting. (The submissions are available online, as is the recording of the oral submissions to the Foreign Affairs, Defence and Trade Committee.). The submission by the New Zealand Council of Civil Liberties is particularly impressive, including its statement on why trust, independence and access to information needed to be enhanced in the Bill:
“All institutions created to investigate allegations of wrongdoing stand or fall on whether the public trusts them. If the institution is not independent enough, does not have enough powers, or its reporting and recommendations are constrained, it will not be trusted by the public. A key component of whether people can place trust in an institution is whether people will have access to sufficient information to make an informed decision.”
Official Information Act and Disclosure recommendation overridden
When first introduced, the Bill enabled partial exemption from Official Information Act requests. This was challenged by submitters. The Select Committee also sought expert advice from Sir Kenneth Keith, appointed by the committee as an independent specialist legal advisor to provide advice on the Bill. He confirmed that there are already provisions in the OIA that offer sufficient safeguards on national security matters, and that an exemption for this legislation is not needed. The Select Committee recommended to Parliament to remove the exemption clause.
It is disappointing that the Minister of Defence used his power to override that recommendation through a Supplementary Order Paper. The new Act now joins 30 other pieces of government legislation passed since October 2017 that enable partial or full exclusion from the Official Information Act (OIA). (There are now over 80 provisions with exclusions to the OIA in law.)
Other recommendations of the Select Committee - restricting the Minister’s ability to require non-disclosure of protected information; and that investigations should be held in public in the first instance - were also overturned by the Government in the Supplementary Order Paper. However many good recommendations of the Select Committee were passed through to law.
Civil Society was heard in several key areas
A number of recommendations made to the bill by Civil Society groups were incorporated into the Act.
Submitters recommended greater independence of the Inspector-General Defence (IGD), similar to the powers held and exercised by the Inspector-General of Security and Intelligence. Some submitter recommendations made their way through to the Act. The Inspector-General may now choose the subject of the investigations or assessments it conducts, and to act on information it receives from any person, organisation, or whistle-blower within the Defence Force or outside of it. This could include deployment incidents, internal training, workplace culture or policies or procedures.
Submitters also recommended that the IGD needed greater independence from both the Defence Force and Ministers of the Crown. This was accepted, and the Act no longer requires the Inspector-General to accept the Minister of Defence's feedback on its annual work programme or to seek the Minister's permission before sharing an investigation or assessment report with relevant Ministers.
Submitters recommended the Bill strengthen the IGD powers to gather information. This was accepted in that the Act now empowers the Inspector-General to access all Defence records, including Defence Force databases, if they are considered relevant to its functions.
Peace Movement Aotearoa submitted that the Chief of Defence Force should have to notify the Inspector-General of civilian deaths or injuries, whether these occur in peacetime or in armed conflict, and when it's likely the Defence Force has caused or contributed to civilian injury or death. This is now in the Act.
Publication of reports by the Inspector-General
The initial version of the Bill enabled the publishing of reports by the Inspector-General in a public sphere and dissemination of the report to specific related Ministers. But the carve outs in this version basically restricted the Inspector-General from reporting publicly on anything that might even hint at classified information, and publication of a summary was optional. TINZ and other submitters argued that the public, as well as the Minister, should be able to see the IGD at work. We recommended a requirement for the Inspector-General to report annually on such things as the number of investigations or assessments undertaken, broad categories of outcomes of investigations or assessments including recommendations made. This was agreed to and is included in the legislation.
Conclusion
Overall, it is clear that submissions from TINZ and others persuaded the select committee and its advisors that greater openness would strengthen public confidence in the Inspector-General and that there were sufficient protections in other legislation for many of the proposed restrictions to be unnecessary.
The Ministry of Defence’s report to the select committee on the exemptions acknowledges the merit of many submitters’ concerns, but the Government’s amendments in its Supplementary Order Paper undermined core elements of transparency.
