Inspector-General of Defence Bill

I present a legislative statement on the Inspector-General of Defence Bill.

DEPUTY SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon ANDREW LITTLE: I move, That the Inspector-General of Defence Bill be now read a second time.

First, I want to acknowledge the work and the deliberations of the Foreign Affairs, Defence and Trade Committee on the bill. The committee has produced a report recommending a number of changes to the bill and many of those changes, I think, are worthy and I endorse them. I believe that the changes the committee has recommended will only serve to enhance the transparency and integrity of the office of the Inspector-General of Defence once it is established, and I will come to some of those changes and some that I don’t agree with.

I’ll delve into, as I say, those changes, but I want to outline now why the bill is so important to this Government. This Government is committed to implementing the recommendations made by the inquiry into Operation Burnham, which concluded in 2020 and included the recommendation to establish an independent Inspector-General of Defence. The establishment of that office goes to the heart of two fundamental requirements in a democracy such as ours, and that is that there is civilian control of the military and that there is a ministerial accountability to Parliament for the military. These are important tenets of freedom and democracy in our society and which we, as parliamentarians, must work hard to uphold.

The inquiry into Operation Burnham, undertaken by Sir Terence Arnold and Sir Geoffrey Palmer, found that the actions of the NZSAS in 2010 and 2011 in Afghanistan were professional and lawful, but that there were shortcomings in the way that the New Zealand Defence Force subsequently provided information to Ministers and adequately scrutinised or responded to information. I believe the establishment of an Inspector-General of Defence will not only strengthen public confidence in the New Zealand Defence Force but will also support New Zealand’s international reputation by providing assurance that the Defence Force activities are subject to independent and dedicated scrutiny.

Members will recall the background to the Operation Burnham inquiry. A number of soldiers on deployment were concerned about some of their tasking, but had nowhere to take their concerns. Ultimately, their concerns were outlined in a book by investigative journalists Nicky Hager and Jon Stephenson, and it soon became apparent that the Minister of Defence at the time—a National Minister of Defence, Dr Wayne Mapp—had not been kept properly informed.

Coming back to the Inspector-General of Defence: once appointed by the Governor-General following a recommendation from this House, the Inspector-General of Defence will be an independent statutory officer for a five-year term. The inspector-general will be supported by a deputy who will be appointed for an initial three-year term. The inspector-general’s office will have the power to investigate any activity or matter related to the New Zealand Defence Force activities, which the inspector-general can launch on their own initiative, or following a referral from the Minister of Defence, the Secretary of Defence, or Chief of Defence Force.

I believe that this ability to investigate any issue at any time will reassure New Zealanders that they can continue to place their trust in the integrity of our Defence Force personnel. It will help me, as Minister of Defence, and my successors facilitate democratic and civilian oversight of the Defence Force and will strengthen the accountability and transparency of the military and increase public confidence when investigations are launched that review its actions. This is an office that will be able to examine, inspect and assess, to scrutinise and respond, to look across systems and process, and to ask hard questions.

The return of this bill to the House today is significant. New Zealand is one step closer to the establishment of the Inspector-General of Defence, following the robust review of the bill conducted by the Foreign Affairs, Defence and Trade Committee. The committee accepted 13 written submissions and five oral submissions, and I’m confident the committee gave very careful consideration to all of them. Many of the submitters made helpful suggestions to the committee, and I thank those submitters for the contributions they’ve made.

I want to also particularly acknowledge Sir Kenneth Keith, former Supreme Court judge, who was appointed by the committee to provide independent specialist advice. His advice reassured the committee and should also reassure New Zealanders that there’s been an independent eye cast over this bill.

There are a number of recommendations for change made by the committee that I’d like to acknowledge today—the first and perhaps most significant being their recommendation to enable the inspector-general to examine all the Defence Force activities on its initiative. As mentioned earlier, the Inspector-General of Defence will have the power to look into any activity undertaken by Defence Force personnel, except the activities of Veterans’ Affairs New Zealand. This means the inspector-general is free to choose the subject of the investigations or assessments it conducts. The office will have the discretion to act on information it receives from any person, organisation, or whistleblower within the Defence Force or outside of it. The inspector-general’s office could choose to examine, for example, incidents on deployments as well as wider matters including the Defence Force’s training or its workplace culture, or a policy or procedure that governs its activities.

The broad scope of the inquiry provides an important avenue of scrutiny for not only members of the public but also for service personnel themselves. Wide powers to investigate such as these are similar to the scope of the Inspector-General of Intelligence and Security, and I believe this will bring greater public confidence to the independence of the office.

The committee also recommended a number of changes to the bill to reassure the public that the inspector-general is independent from both the Defence Force and Ministers of the Crown. As a result, the bill 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. I want to thank the committee for their work in this regard and I commend those changes to the House, too.

But I add this, though: there is the question of who the responsible Minister should be. The bill doesn’t say who the responsible Minister should be, but the term “Minister”—which is in the bill, of course—for the purposes of any legislation, is defined in the Legislation Act 2019 as basically the Minister made responsible for the administration of the legislation by the Prime Minister of the day. I put on record now that I do not expect the Minister of Defence to be the Minister responsible for the Inspector-General of Defence. It should be another Minister, most likely the Minister of Justice.

In a similar vein, the committee recommended the bill strengthen the inspector-general’s powers to gather information. The bill empowers the inspector-general to access all Defence records, including Defence Force databases, if they are considered relevant to its functions. The bill now also requires the Chief of Defence Force 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.

Lastly, I want to acknowledge and thank the committee and the submitters for other changes to the bill which enhance transparency and public confidence in the inspector-general’s operations. The bill will allow the inspector-general to publish information on the Defence Force’s progress implementing any recommendations it has made.

It will also be compulsory for the office to publish a summary of its investigations or assessments, where a full report is unable to be released in order to protect classified or sensitive information. It’s important that the public, again, has confidence that the inspector-general is acting lawfully, fairly, and reasonably. These changes will allow for greater visibility.

I have introduced a Supplementary Order Paper (SOP) that will make three amendments to the bill as reported back to ensure there are sufficient protections for people and information. To a large extent, they reinstate provisions that were in the original bill. These changes will, firstly, reinstate the Minister’s ability to certify that protected information should not be disclosed. This is an important backstop to ensure that information is not released if it would endanger the safety of a person or prejudice the security of New Zealand.

Secondly, it reinstates the Inspector-General of Defence’s partial exemption from the Official Information Act. This will apply to the working documents or internal records of the office. This will preserve the inspector-general’s ability to seek and receive information in confidence during the course of an investigation or assessment.

Thirdly, the SOP will require the Inspector-General of Defence to hold investigations in private unless the inspector-general determines on a case by case basis to hold hearings in public. This is necessary to protect participants and to encourage full participation in investigations.

These are responsible provisions that correctly balance the important powers of the Inspector-General of Defence and the need in this sensitive area of Government endeavour to preserve our national security and foreign relations interests. As members will recall, this Government has worked to bring this bill to Parliament following the conclusion of the Operation Burnham inquiry. It’s crucial that New Zealanders trust their military and their activities, and this bill, I’m sure, will go a long way to doing that. It will go a long way to supporting the brave, selfless, dedicated individuals who make up the New Zealand Defence Force. It’s critical they are supported to do their work and are able to get the right information at the right time so they can focus on the job at hand that is so often challenging. I commend the bill to the House.

The question is that the motion be agreed to.

Thank you, Mr Speaker. Look, happy to take a call on the second reading here of the Inspector-General of Defence Bill, a bill the Government deems so urgent and critical to get passed that we are going through the remaining stages here at 9.30 p.m. under urgency.

This is a total waste of the House’s time and, indeed, the committee’s time. The committee went back and forward over a number of aspects of this bill—and the Minister has outlined some of those just now as well—but this derives from the Operation Burnham inquiry that was conducted and, indeed, that began or was first requested under the previous Government, and the Government at the time didn’t pursue an inquiry. They chose not to, having confidence in the professionalism of the New Zealand Defence Force (NZDF) to have carried out their duties, and indeed that was borne out and proven to be the case. There was no illegal behaviour from the NZSAS on operations. There were some process deficiencies in the senior leadership and how that was reported through to the Minister, but a new matrix has been put in place since that time via Defence Force Order 35 around their requirement to report civilian harm.

Ultimately what we’re looking at here is, when we saw that change in Government, the new Government of the day decided we did need an inquiry and that’s their call to make. They went down that path and carried out exactly the sort of function that is now being proposed under this Inspector-General of Defence Bill. There is no need for this bill because the Government already has the ability to conduct an inquiry if they have concerns around a particular aspect of behaviour or a process or a system or deployment that has been carried out by NZDF that they can look into.

What’s being proposed here is certainly not the biggest priority in defence at the moment. We have a defence force going through significant issues. Attrition has been a big part of that and we’ve seen 30 percent of uniformed personnel leave over the last two years, and yet we’re seeing now a response via an additional oversight function, more bureaucracy and cost at a time when, frankly, we need a Government to demonstrate that they trust and back the Defence Force.

Now, some of the changes that are being proposed through the select committee—there were four key changes there around the scope of the inspector-general’s function: the independence of the inspector-general, notification of civilian deaths and injuries, and greater transparency. Generally those changes, I believe, are an improvement on the original bill as it was presented, particularly around the independence, taking out the Minister’s input to effectively lead some of the work that the inspector-general of the day may be doing based on what the Minister of the day can direct. So taking that out was a good move. Having the additional oversight from the Official Information Act (OIA) appeared to make sense.

I’m interested, though—and I’ll come to this in a second as well—when we look now at the Supplementary Order Paper (SOP) from the Minister, which is effectively unwinding the key changes that were made by the select committee, so back to my earlier statement about the waste of time being spent on a piece of legislation that is simply not the biggest priority in defence and is not adding sufficient value for the cost it will bring.

We’ve seen that now when the Minister has tabled an amendment which is proposing to totally change what had been put forward by the select committee’s amendments, their consideration of clauses 36, in particular, around the duty of confidentiality, where most of that part—subclauses (4), (5), (6); most of subclause (2) rewritten, as well—has been struck out around the Minister’s certifying what can be disclosed. That has now reappeared in the SOP put forward by the Minister.

Likewise over clause 39; amendments proposed there around investigations being conducted in private versus public was the consideration of the committee, and that’s now been unwound as well by the Minister. So we can look through at some of the changes that have been made that were fiddling with what was already an unnecessary piece of legislation that were potentially going to make it somewhat better, but still unnecessary, and now we’re seeing those major changes being unwound via the SOP that the Minister has talked to and we will be debating in short order given that we are, as I say, in urgency, talking through what is clearly a big issue for the Government of the day, but, frankly, is not a big issue for the Defence Force.

There are much bigger issues, as I say, around addressing their operational readiness, ensuring they are fit for purpose and can deliver on the needs and expectations of the Government of the day, on behalf of the people of New Zealand. We’ve seen concerns around their ability to do that. They are strained, they are under pressure, and this is a clear example of something that is actually not going to help alleviate that. You know, when you are under pressure, when morale is impacted, when attrition is through the roof, when there are any number of other issues around conditions of service and frustrations within the system, this is not a solution that is going to shift the dial on that.

Obviously we have the view, on this side of the House, that this is an unnecessary piece of legislation. The Government holds a different view; I can accept that is the case. Either way, though, this is not a strong indication of addressing the key issues in the defence sector at the moment, and that is one of the areas that I find most disappointing about this, when we are in such an area of need within the NZDF, we are not seeing the solutions delivered via this legislation, certainly, to address that.

I do want to acknowledge that the Minister did make, through the last Budget, an increase in the wage allocation, which had been a major issue within Defence and that has been well received. Of course, it would have been well received two years ago as well, but, nevertheless, we’ve seen that 30 percent loss of uniformed personnel in the interim.

But, as I say, I come back to the point that we are now debating under urgency a piece of legislation that is simply not going to shift the dial in a meaningful way for our Defence Force. It is not going to significantly increase the transparency or the oversight that the Minister alluded to, as well, because, as I said, the Government of the day, as we have seen, has the ability to carry out an investigation in its own right if they have concerns. That’s exactly what happened in this instance. Creating this mechanism is unnecessary, it adds more bureaucracy and cost at a time when we see a Government adding bureaucracy and cost across just about every sector, and, frankly, it’s unnecessary.

So on that basis, we do not support it and we will be debating the Minister’s SOP more in due course as well, but the proposals he’s made in there—amending or reverting back to some of the initial aspects touched on or outlined, rather, in the first reading bill—simply don’t give us any confidence to support at future stages, either.

So I will leave my contribution there, and look forward to continuing this debate over the next hour or two as we proceed what is clearly a big issue for the Government. Thank you very much.

I actually find it quite disappointing. We have gallant members on the other side of the House there. We have members that have held commission within the armed forces, and they lack fundamental understanding of what democratic civil-military relations represent. Democratic oversight of the military is particularly important right now and topical in Australia. In a 2020 report, the Inspector-General of the Australian Defence Force (ADF) found credible information of war crimes committed by ADF in Afghanistan between 2005 and 2016 through the Brereton report, and recently, for the first time in history, a court had been tasked with assessing allegations of war crimes by Australian forces. And this defamation trial was a huge moment for Australia both culturally and legally.

Going forward, my read of the Australian people is that they are going to demand that if the Australian Defence Force enters into a coalition with any of their partners, they are going to want their coalition partners to have independent oversight that is commensurate with the society that they are representing—and this Inspector-General of Defence Bill does that. It makes sure that our house is in order so we can work as part of a joint multinational coalition. It enhances our interoperability with our only formal defence ally. So I encourage the Opposition over there to have a look at how it improves our integration, how it improves our interoperability with our formal defence ally, our coalition partners. So, for that reason, I commend the bill to the House.

I think in the last few years, where the Foreign Affairs, Defence and Trade Committee has considered bills, this would be the one that has demanded the greatest degree of consideration by all members of the committee. While we end up at the end of all of the select committee consideration coming down on two sides of the proposal, I don’t think it in any way diminishes the desire by all members the committee to get as good a piece of legislation as is possible—albeit that on our side of the House we do not support it.

I want to acknowledge the advisers who were available to the committee. It was possible to have quite significant and robust discussion with them, and they were very willing to engage in that discussion. I particularly want to acknowledge the contribution made to our deliberations by Sir Ken Keith. To have someone of his capacity, his understanding, and his broad experience advising us was, I think, of extreme value. It meant, too, that where there were positions taken and he asked for time to have a think about those things, we could be certain that when he came back, there was a degree of thought gone into any proposition far greater than any one of us on the committee might have been able to put in place.

We know that this bill has come out of the royal commission subsequent to the investigations into Operation Burnham, which occurred in Afghanistan. I think, though, to suggest that there is any comparison between Operation Burnham and the matters that the previous speaker, Dan Rosewarne, just raised being dealt with by the Australian military at the present time—where there were very clearly war crimes committed by one particular soldier—is wrong; completely wrong.

There is, I don’t think, anyone else in this House at the moment who has been privy to viewing this footage that was available of that particular battle. I would have to say that anyone who was able to see that would find it very hard to point the finger at anyone inside the New Zealand Defence Force who were deployed in the field on that particular day.

I think it’s important that we recognise that those soldiers were in Afghanistan because the New Zealand Government had committed them to that particular endeavour. They were there working under a set of some rules of engagement—the “legals”—for how they would operate. That was approved by the New Zealand Government. Their responsibility was to do their best for the people of New Zealand. There is no doubt in my mind that there was several moments during that battle where large numbers of New Zealand soldiers were in danger of losing their lives.

It was an operation conducted with other military forces. We were part of that. While it’s good that we were able to come back here and review this with the clear sight that hindsight always provides, I think it’s important that we recognise that this is unusual; it’s not something that occurs every day in the military.

I think, also, we need to recognise that the military, in its three branches, is very different to any other organisation that exists in New Zealand. They are not a police force. They are not a first responder. They are a military force, and they are always going to be, when deployed, in a position where they will be coming up against people who have nefarious intention toward them. That intention would also, of course, be directed at us—at our freedoms, our lifestyle, and all of the values that we have in our democratic society.

What concerns me about all of this is that we are somehow saying, because of this one incident, and because the royal commission has, you know—and they did a good job, the royal commission, of it. No issue with their report or anything like that or, for that matter, their recommendations. But their recommendations are for us to consider, not necessarily enact. I think reaching a conclusion that the operational arrangements for the New Zealand Defence Force should be so significantly changed as this bill is proposing to do is wrong.

We ask those soldiers to undertake exercises that are going to see them firing upon people at various times because that’s what military forces do. It is, I think, ludicrous to suggest that we are going to, in the future, if it was necessary to ask our military personnel to go into a battle zone, that somehow they would know at all times there was someone else looking over the top of them—not their immediate superiors, not their headquarters staff back home; but someone who is completely, apparently, independent who is going to decide whether or not what they have done is reasonable.

What I fear most is that this will lead to, effectively, the Inspector-General of Defence becoming the veto operator on defence activities. In other words, you have to ask the question: why would anybody in a leadership position in the Defence Force, having been asked by the Minister of Defence—therefore the Government of New Zealand—to undertake a particular deployment where they’ve gone through all the exercise of the rules of engagement, and I know that they are extensive. There is no such thing as just “fire at random” in any of these circumstances. There are rules of engagement, and they are agreed and they are set down, and they are drilled into every soldier. In fact, the previous speaker was able to say that when he was on deployment, he carried those rules of engagement on his person so that they were known at all times.

So there we have it: that they are being prepared to go into a deployment. What I think will happen is that the particular commanders of that deployment will end up going to the inspector-general and saying, “This is what we are planning. This is how it’s going to work. What do you think?” So you’re going to have the supposed line between the Crown—therefore the Government—and the military broken by, effectively, the Crown deciding to second-guess itself by appointing an inspector-general into an area where very few people will have sufficient expertise to be able to enable the activities of the military, recognising that they’re, within the rules of engagement, going to be at difficult circumstances at various times.

I want to just repeat, again: I think it’s a great shame that the footage of that battle is not more publicly available and able to be seen. It can’t be, because of arrangements that this country has with like-minded countries—and I’ll say no more than that. But if people could see that, then I think their understanding of the allegations made as a result of the investigations by the journalists and, ultimately, some of the conclusions of the royal commission would be a little more hard to understand.

Because there’s no doubt that when the we put soldiers into the battlefield, effectively—and they are in a position where they could lose their lives—then there has to be an understanding that they’re going to, at times, respond to those provocations in a way that some people won’t like, but we have to accept is the role that the military takes on.

So we’re not supporting this bill because I think it undermines that relationship between the military and the Crown. It further, I think, puts a degree of scrutiny over the top of the military operation that I don’t believe is, in all circumstances, necessary. I say, again, that Operation Burnham became the subject of a royal commission because it was rare; because it wasn’t something that happens often. I think that to suggest that because of that, we change how we do things from this point on forever, in such a radical way as this, is just a little bit too much.

Thank you, Mr Speaker. It’s a pleasure to take a short call in support of the Inspector-General of Defence Bill. Just to respond to Mr Brownlee’s comments around if there was a video available about the operation—and Mr Brownlee is forgetting that there were civilian casualties in this operation and that no one is directly blaming that war crimes were committed, but civilians were dead. This, more or less, takes a lot from the integrity of our Defence Force. So responding by establishing an entity like this is good for the image of our Defence Force, for the integrity, for the mana of the organisation. We cannot afford to have any doubts hanging over organisations like our Defence Force; it’s such a critical entity.

So this bill is a good bill for the reasons that I’ve mentioned above, and Operation Burnham has significantly undermined the integrity and the image of our Defence Force. Therefore, establishing this entity will play a role in facilitating democratic oversight of the New Zealand Defence Force and will provide independent scrutiny. For these reasons, this is a good step and I commend this bill to the House.

Thank you, Mr Speaker. I rise on behalf of ACT at the second reading of the Inspector-General of Defence Bill. Notwithstanding the circumstances—as the National Party have raised, that we’re under urgency here and this is obviously not a key priority for the Defence Force—I do acknowledge the investments that have been made in defence since the first reading of this bill.

This is one of those tricky roles, quite clearly. One hopes that the inspector-general won’t be doing very much, because if they are busy, then something is obviously going quite wrong, and that is in particular because the New Zealand Defence Force (NZDF) is involved in a lot of overseas deployments at present. Of course, they are in the United Kingdom training Ukrainians—good on them. In addition to that, which could be a tricky issue for this particular legislation, there are New Zealand Defence Force personnel unofficially fighting in Ukraine.

We will continue to support this legislation because it confronts an important issue, and, while there is room for improvement, once this office is established and functioning we think it can be up to the next Government to look at how it has played out and make those legislative improvements. Because this is not a particularly fast-moving area, there is time to look at that structure and improve on things like the independence. I think the submission during this select committee process by the New Zealand Council for Civil Liberties is quite a good one to refer to—lots of good recommendations in there.

This new authority, obviously, requires a significant amount of trust in the Chief of Defence Force (CDF) and the Minister, whoever it may be. While we acknowledge that things do work a bit differently in the defence space, the purpose behind this bill is to increase accountability and we do have some concerns about that. There is a concern around the amalgamation of power and whether there is sufficient independence between the roles, say between the Minister of Defence, CDF, and the inspector-general. As an aside, keeping in mind at present that the Minister of Defence is also the Minister responsible for the GCSB, the NZSIS, and even the Public Service—just thinking about the requirements around getting permission from the Minister of Defence before passing on information to other Ministers—you know, you have to wonder if the Minister of Defence has to ask himself if he can pass on information to the Minister of GCSB and so on.

If we look at the introduction of the bill, and others have spoken about the origin of this, “The Inquiry found that the Defence Force had failed to provide full and accurate information to Ministers and to the public.”—Operation Burnham—and “The establishment … is also intended to assure the public that activities of the Defence Force have independent oversight.”

Given the nature of this new role, it isn’t quite clear that this is fully fit for purpose in dealing with this issue. But none the less, as I said, it can be improved. It does have a lot of promise, but it does need tweaking. The independence, as I said, is a bit questionable, but we acknowledge and understand that this is a difficult area to get the balance between transparency, oversight, national security, and privacy right. Obviously, there is a necessity to protect identities and national operational security matters, so it is tricky.

I know we’ll get to this in the committee stage, but referring to the Supplementary Order Paper (SOP) in the name of Minister Little, number 370, “amends the Inspector-General of Defence Bill by enabling the Minister to certify certain material obtained by the inspector-general as non-disclosable”—perfectly understandable, but immediately you get that kind of hint of a reduction in independence of this role. It requires the inspector-general to conduct every investigation in private—so that switched from public to private. I think, in all fairness, this practically doesn’t make a heck of a lot of difference, because, ultimately, it’s up to the inspector-general to decide whether to make it public or private anyway. So I guess it changes the focus but not necessarily the outcome.

The last issue that the Council for Civil Liberties raised, around the OIA, we agree with that.

Another clause which I’ll just sort of query, clause 31, requires the inspector-general to “give prior written notice” before entering a defence estate, the defence area, naval ships and so on, and other assets. This is again this issue of independence, because—maybe it’s just the influence of Hollywood here in the back of my mind, but I think it doesn’t take too much to imagine a scenario where a future Chief of Defence Force may decide that there’s a reason they don’t want the inspector-general to go there or can delay it, and that heads-up can be quite useful. So we just need to see how this actually rolls out. Maybe it is just an optics issue, but I think it’s worth raising due to the complex relationship between the CDF, the Minister, and the inspector-general as a result of this legislation.

It is good to see the protections for Defence Force personnel to make sure that they can be whistleblowers and not have that blow back on them. It does make me wonder, what about intermediaries who aren’t connected with the New Zealand Defence Force? What if a whistleblower goes through one of them, perhaps even their local MP, and they raise issues with something they’ve seen or something they’ve heard, witnessed, and so on?

I think it’s also important, you know, given all the powers that this bill grants this role and the protections, which are significant, to reflect on the functions, going back to clause 8. So not only “(1)(a) to investigate—(i) incidents … in the course of activities of the Defence Force”—obviously—“(b) to assess, and identify potential improvements or additions to, Defence Force policies and procedures governing activities of the Defence Force”. So, all in all, while this position has a great deal of power, as I said, around it—privacy mechanisms and information-gathering powers and restrictions on sharing and procedures to follow—it’s kind of, you know, what’s the actual outcome we’re looking for?

Clearly, this is not a judicial issue. This is not about massive prosecutions against soldiers. It seems to just be about improving policies. I understand that this is trying not to step on the toes of military justice and the consequences, and I wonder, is there a tension between the investigations carried out by this role that will be carried out and those that are carried out by the military judicial system or the civilian judicial system?

So, in summary: room for improvement, possibly a job for the next Government. Luckily, this is not an area that moves at great speed. This is an important issue. The role should exist, needs to be improved, and we hope in good faith that the purpose of this role and the office are carried out effectively and it doesn’t just become an internal procedural mechanism that actually protects wrongdoing by concealing it from Cabinet, Parliament, or the wider public. So, with that, I commend it to the House.

Thank you, Madam Speaker. I will begin by acknowledging you as the chair of our Foreign Affairs, Defence and Trade Committee, the committee that considered this bill, the Inspector-General of Defence Bill, at great length and with a lot of diligence, I would say. As others have said—including the deputy chair, the Hon Gerry Brownlee—I think we did all come together with a lot of good will in terms of improving this bill based on its purpose, although some members are, of course, tonight voting against it, and I think that’s sad.

I do also want to congratulate the Minister. I think that although we’ve heard that perhaps this isn’t the most urgent of bills, in fact there isn’t a moment more apt for a bill like this to come to the House. It is urgent in the context of global events for us as a nation to send a message that we stand for the rule-of-law system in not only times of peace but in terms of international humanitarian law—or the so-called laws of war—when prejudice is high and national security is at stake and that we stand for those precious rules that have protected our rules-based system and our like-minded nations in the toughest of times since World War II when we first started to apply them.

So this does come, as we’ve heard again and again, out of the inquiry into Operation Burnham. So it is apt to also draw on some of the themes of that operation and the types of shortfalls that led to this bill being introduced. Operation Burnham was, of course, about events that happened on the ground, but the most concerning of the findings were not, in fact, about the operation on the ground perhaps, and those were not necessarily the events or the actions that have led to this bill. What Operation Burnham highlighted was a pattern of disrespect and inappropriate behaviour by members of the Defence Force right up to three different heads of the New Zealand Defence Force in terms of failures in transparency and accountability and the relationship between the civilian oversight mechanism, which is right now the Minister, and the military system—the information lines and the processes.

So that is part of the reason we see this bill and the office of the inspector-general as being necessary. It’s not only to address the very, very rare cases when something like a harrowing war crime happens, but to know ahead of time where our systems, processes, accountability mechanisms, transparency—as far as it is necessary, even in the context of the military—are falling short of what New Zealand would expect.

So to those ends, the committee focused on improving the bill in terms of transparency, public access, journalistic access, the judicial-review mechanism that would kick in for anyone that wanted, whether as part of proceedings or another affected party, to challenge the decisions of the inspector-general, including on transparency decisions. That idea of justice being done is as important as justice being seen to be done.

So to that end, having a civilian or an independent mechanism to investigate not only individual cases but also patterns and systems is taking us quite far, as a nation, into the modern expectation that we will follow international humanitarian law and, actually, international criminal law as well, where those more serious incidents might occur. We are recognising that we have an obligation to investigate, prosecute, and punish, but we also have an obligation to build systems that are fit for purpose and that are like those of our allies. In some of these combat operations, we heard that Australia, for example, has a system that would potentially go much further than ours, and so we may fall behind.

To that end, the committee’s report sits in a little bit of contrast to the Supplementary Order Paper (SOP) introduced by the Minister, so we won’t be supporting that SOP. The ACT Party member, Dr James McDowall, outlined opposition that—although we don’t often agree so closely with the ACT Party—I would say reflects quite directly what the Green Party’s concerns are: the certification of information that may be withheld by a Minister. The committee did discuss and analyse that issue in terms of whether or not politicisation may come into it. If something has happened, a Government may not want to reveal whether there were considerations of that kind. That may be later, and this will obviously apply to successive Governments, and may come up.

The Official Information Act’s (OIA) applying. Operation Burnham was obviously an investigative journalistic revelation that came about, and so to have the OIA apply is an important mechanism to have processes assumed to be held in public unless there are named sensitivities. This is something that courts really abide by and the inspector-general’s office would always be sensitive to, so we felt that that presumption was helpful to calming public anxiety about secrecy around defence mechanisms like this. For me, the idea that that judicial review issue would be protected was one where I, at least, was led to press harder for transparency, being put into the bill, which I think is rolled back somewhat by the Minister’s SOP.

But, nonetheless, this is a watershed moment, I would say, in terms of bringing back trust, accountability, and transparency and restoring the idea that the New Zealand Defence Force will operate in line with the values of Aotearoa New Zealand and that the public will have some access and some way of knowing that that is in fact the case without there needing to be journalistic investigations like in Operation Burnham.

So we do commend the bill to the House, and I do congratulate the Minister for bringing it in urgency, because we do need to set those standards right now. We need to draw that line in the sand.

Thank you, Madam Speaker. I appreciate taking the opportunity for a short call on the Inspector-General of Defence Bill. I was not a member of your select committee, Madam Speaker—the Foreign Affairs, Defence and Trade Committee—but nevertheless I followed along in the debate tonight and I want to acknowledge the Minister for bringing this bill and for his hearty definition and explanation of the legislation, which was very helpful.

The policy outcome for the establishment of this is an oversight function independent of the New Zealand Defence Force that will strengthen democratic accountability, civilian control of the military, and increase public confidence that issues regarding the legality and propriety of its actions are appropriately investigated with the flexibility and durability to respond to the complexity of the New Zealand Defence Force business now and into the future. It also gives those personnel, the military personnel, another place to apply to or to ask for help or seek advice. I commend this bill to the House.

Thank you, Madam Speaker. As someone who’s served in both the New Zealand Army and the British forces, when the book by Nicky Hager and Jon Stephenson was released in 2017, I was sitting over there, and I went down to the bookshop as soon as I heard about this book, and actually bought it and read it in the course of the same day. At the time, when I read it, the one thing that struck me was when you looked at the bibliography in the book, there seemed to be only three sources for the entire book and the claims made by Hager and Stephenson in that book. My personal feeling at that time, back in 2017, was how maligned the New Zealand Defence Force had been in that book, that obviously led to the inquiry.

I think in times of this, it’s very important that facts are part of the conversation—and not allegations. I just want to pick up on an earlier point one of the Labour members said: I think it’s shameful to compare this action—Operation Burnham—to what has been taking place in Australia. I’m very disappointed to hear a Labour member—and also a former member of the NZDF—talking in that way, because there is a gulf between what has happened there and what happened in Operation Burnham.

I just think we need to reflect that war involves both offensive actions and defensive actions, and war is often ugly, it’s usually confusing, and it’s a horrible display of mankind, but it is what it is. Politicians and politics mean that the military is an arm of politics, unfortunately. But the people who go out on behalf of our country—the men and women who do this on behalf of our country—deserve our support.

I have spoken to the combatants who were engaged in this operation, I’ve spoken to them directly, and one of the things I was surprised and pleased to hear from them was the level of restraint shown by our New Zealand soldiers during that battle. I was very, very heartened to hear that. I think the important thing is, it’s when people go into battle, there are always terms of engagements; there were very formal, very clear terms of engagement issued to all the soldiers involved in Operation Burnham, and from what I could see or understand, I thought they showed incredible restraint in that action.

What I’m concerned about is the issue of inability to know, and to determine, and to make quick decisions in the field. When you realise that actions are often lead by rather junior officers such as lieutenants, or senior NCOs such as sergeants. These are people who’ve got to make split decisions in the time of a great deal of confusion and danger. I think what this bill will do is put an element of uncertainty in the minds of those commanders. I’m very concerned that our men and women who serve New Zealand proudly are going to be in a situation where they may delay, they may be unsure of what to do, and I would say to you that in conflict, delay is deadly. Delay is deadly in conflict.

I am very concerned about what this is, because this bill proposes to embed in the process an independent inspectorate. If it was one that could be called upon when required, I can understand that arrangement, but I think it’s unnecessary and it will lead to long term degradation, and it also raises the issue of what is the remit of the inspector-general. Just heard the member from Greens talk about approving battle plans—is the inspector-general going to be involved in determining rules of engagement?—

Hon Member: No, no!

ANDREW BAYLY: Whatever—what weapons should be used; what personnel? I think that level of uncertainty is very worrying, and I hope everyone understands that National will support our servicemen in New Zealand because they do a fine job on behalf of our country.

Thank you, Madam Speaker. I want to take up the point that Mr Bayly has just raised, because I’m quite concerned by the underlying logic. This is a situation where five people, including a child, died. I have great respect for our defence forces, but Mr Bayly’s argument—if you read the Hansard—is actually that we should not make our Defence Force worried about acting in a situation that’s critical, because they’ll be worried that sunlight will be shone on what they’ve done. Now, that’s just not a good argument.

This law is about safeguarding democratic accountability. It’s about building trust for our force because our force will know that there is an independent examination of what they do. That’s a fair examination, it’s an independent examination, and if people do nothing wrong, then they will not be exposed to anything wrong. This is a safe way of bringing accountability into our system and making sure that our Defence Force is in fact supported in doing the right thing. Thank you, I commend this bill to the House.

Mālō e lelei, Madam Speaker, and mālō 'aupito for the opportunity to take just a short call in the House on the Inspector-General of Defence Bill tonight. It will be a short call, because we’ve already heard tonight that it’s been well canvassed, and, actually, it’s a no-brainer because this bill speaks to the defence priorities for people but also the defence principles of mana and pono by establishing an Inspector-General of Defence (IDG) that will have oversight of our New Zealand Defence Force, as recommended by our Operation Burnham inquiry.

As I said, this bill is a no-brainer. This is about establishing what the service is asking us for. It’s also about ensuring that we support our service people—and that’s not just in terms of the wage increase that we’ve recently done, but also about making sure that we listen to them, we establish the IGD, as requested. For that, it’s a good bill and I commend it to the House.

Thank you, Madam Speaker. Thanks to colleagues who’ve been contributing in this debate at the second reading of this Inspector-General of Defence Bill. It’s been an interesting discussion.

I agree with my colleague and friend Tim van de Molen that there are many priorities for the Defence Force right now that are much more urgent than this project. Morale is low. I say that not merely anecdotally, although that is certainly the sense I get from talking to people who are currently in the New Zealand Defence Force, but also borne out in various satisfaction surveys or whatever they’re called now. I know what low morale looks like. I was a member of the National Party caucus in the last Parliament and members of the current Labour Party caucus know what low morale is like too.

The army and indeed the Defence Force in general have been decimated. In the literal sense of that phrase, it would be one in 10 members having departed the service. In fact, the attrition rates, again, as my colleague and friend Tim van de Molen has indicated, some 30 percent over two years. If we do the math on that, obviously that’s north of 10 percent, so worse than decimated, which has echoes of Blackadder’s famous “a fate worse than a fate worse than death” line. And that’s, again, in the words of Blackadder, “pretty bad”. So strategic decisions are needed for the Defence Force at this juncture.

I do acknowledge that the Minister of Defence has brought forward a review that his predecessor had instigated. I think bringing it forward was a good move. I also give credit to the Minister for arguing successfully that a pay rise should take place across the New Zealand Defence Force. While some good decisions have been made recently, it is nevertheless the case that there are other pressing strategic priorities. So while it is again positive—and I give credit where it’s due; I don’t wish to speak in a partisan way unnecessarily regarding defence and national security matters. It is positive, as I say, that decisions were made in relation to P-8 aircraft to replace the existing P-3s, likewise the Hercules replacement. Nevertheless, there are big questions now still: what is to be the replacement for the frigate class—if we can call two ships a class—and the case discussed relatively recently in relation to the Boeing 757s, and many other issues of course remain and they’re all worthy of debate and discussion. It seems surprising that it would be the priority of the Government to put forward this legislation—and under urgency, at that.

We’ve heard a number of arguments—and some of them are more compelling than others—from various parties across the House about why this bill should be supported, why we’re not going to have the opportunity to discuss it further and debate them with our caucus, because the bill will be passed before the night is out. So that’s one of the perils of urgency, of course.

We’ve heard about the need to increase public confidence in the Defence Force and the matter of trust. I’ve had a few occupations in my life and my current one, politician, is not particularly high among trust levels among New Zealand public. Before that I was a lawyer. Again, not a particularly trusted profession. The only thing I’ve ever done that’s actually been remotely likely, in a general sense, to be the subject of public trust was being a member of the New Zealand Defence Force.

So with all due respect, I think we’re looking in the wrong place if we say that these measures are necessary to increase public confidence in the military. I think, in fact, the members of our Defence Force—and I acknowledge and Mr Rosewarne and also Mr Bayly and van de Molen, who have spoken tonight in that regard. I think that is, with all due respect, not the strongest justification for the further measure that’s in front of us tonight.

I think the point that Mr Rosewarne makes regarding interoperability with Australia is a useful one, because I think that should be a concern of ours. That is to say we should always be interested to know whether moves that our Defence Force are making will make us more or less interoperable with close allies and partners, including in particular Australia—which, of course, is an ally proper, not merely a very good friend or however we’re characterising our relationship with the US, for example, at the moment. But I think if we were to wonder about how Canberra and indeed other parts of the Australian defence establishment would regard New Zealand as an ally in our region and further afield, I think that the establishment or non-establishment of an Inspector-General of Defence would be very low among their priorities. Certainly there would be other issues that they would, and do, raise with us frequently that they would have us attend to more pressingly in relation to our Defence Force and its ability to operate with their.

I state an obvious case in relation to the AUKUS submarines. At the moment, our statute book will not allow the prime strategic asset of our closest defence ally to enter our waters. Notwithstanding that they are nuclear-propelled not -armed, I don’t state that with any intention of suggesting any policy position one way or t’other. I just merely state that there are interesting and important issues that will come up in trans-Tasman relations, and questions of interoperability, I think, might more usefully be answered in such questions as that going forward than merely creating another position such as this.

Most fundamentally, again, as pointed out by Tim van de Molen, the things that this bill will do need not be legislated, because they have been done before even with the legislation in its current form. So to that end, we don’t see that there is any need—urgent or otherwise—for the bill, and for that reason, we do not support it.

It is a privilege to take a short call on the Inspector-General of Defence Bill. Can I begin by acknowledging the brave and selfless men and women who are members of the New Zealand Defence Force, and I know that all of our Parliament would concur with that.

I do want to pick up on some comments made earlier in the evening by Mr Bayly when he was referencing some earlier comments from my colleague Dan Rosewarne, and I’ve read through the comments that Mr Rosewarne made around both the workings of the New Zealand and Australian Defence Force. I just want to, I guess, correct Mr Bayly’s interpretation of that, because Mr Rosewarne was not saying that what happened that was investigated through Operation Burnham or that the practices of the New Zealand Defence Force are comparable to the events that are currently in the media in Australia. That is not what he said. I think it’s really important that I place on the record that it’s not the comments that he made.

What he was saying was the need for, as part of the work that New Zealand and Australian Defence Forces do in partnership—which is something that as New Zealanders we are very proud of, the partnership that we hold with our Australian comrades—was that as part of that work there is a need for those assurances around having an independent inspector role sitting there as part of that work. That was the point he was making. He was not saying that the events that led to Operation Burnham were comparable with what’s currently being discussed and being addressed in Australia. I just want to make sure that’s very, very clear.

Some other comments have been made tonight around the importance of us as a Parliament protecting and upholding the role of the Defence Force and just ensuring that, as politicians, that that is appropriate.

One of the things that this bill does is that it actually creates a mechanism for members of the Defence Force to whistle-blow, to raise issues up, so they have a place that they can take things if they are seeing things that is of concern to them; and that, actually, that inspector component is, again, independent of politicians as well, so that it can ensure that it’s not tainted through politics—that it does have that genuine independence about it. So that is a way for us to provide greater protections to, as I said, the brave men and women of our Defence Force. It’s our job as politicians to ensure we are putting every mechanism in place so that they can do what is the most difficult role in the world on behalf of New Zealand in a way that New Zealanders feel they can trust and are proud of, which is what we are. On that note, I commend the bill to the House.

The question is, That amendments recommended by the Foreign Affairs, Defence and Trade Committee by majority be agreed to.

This bill is set down for committee stage immediately. I declare the House in committee for consideration of the Inspector-General of Defence Bill.

In Committee

Parts 1 to 6, Schedules 1 to 3, and clauses 1 and 2