Inspector-General of Defence Bill

Members, the House is in committee on the Inspector-General of Defence Bill. Members, we come now to Part 1.

Point of order. I seek leave for all provisions to be taken as one question.

Leave is sought for that purpose. Are there any objections? There is none. Part 1 of the debate on clauses 3 to 6 and Schedules 1—sorry; it is actually taken as one.

Thank you, Madam Chair. Just, really, by way of introducing the committee of the whole House stage of this bill, I acknowledge the members’ contributions in the second reading and I want to reiterate the point that the purpose of this bill is to strengthen the civilian democratic oversight of our military and to ensure—to the extent that vehicles such as military courts of inquiry and general military discipline do not deal with the issue, including issues arising out of combat or peacekeeping operations—that there is a means to investigate those issues. But, most importantly, it is to make sure that those charged with civilian oversight—the Minister, other Ministers as well, and indeed Parliament as a whole—can be assured that the advice and information they are receiving about military operations is accurate and is assured.

The genesis of this bill was from a series of events during a combat episode, a peacekeeping operation where the Minister was not properly informed—and on successive occasions, the Minister was not properly informed.

I have every confidence that our brave members of our New Zealand Defence Force, when they are in conflict situations, are carrying their doctrinal training and subject to the disciplines of their profession and their craft as soldiers and sailors and aviators know what to do. But there are occasions when events happen, when misjudgments can be made, whether at the leadership or senior officer level or at other levels and where an independent investigation outside of a court of inquiry is appropriate. This bill sets out the vehicle to do that.

The question is that Parts 1 to 6, Schedules 1 to 3, and clauses 1 and 2 stand part.

Thank you, Madam Chair. Look, I’m interested in picking up on the Minister’s comments there, because one of the key things that stands out for me is that there is already, from the people I talk to and from the feedback I get, a strong level of confidence that our defence personnel operate in a very professional manner and are well regarded both domestically and internationally, and his comments that the intent of this bill is to give further confidence. I’m wondering why, if that is the case, he has taken away two aspects within his Supplementary Order Paper that were put forward by the Foreign Affairs, Defence and Trade Committee—one of those effectively taking away the Minister’s ability to certify certain information as being ineligible to be disclosed, bearing in mind that the Official Information Act (OIA) already has the ability to refuse to release certain information based on some of those security parameters or privacy or any number of other considerations. Under the OIA, why does that clause need to be back in specifically? But also to the Green member Golriz Ghahraman’s point—around the perception as well when we are moving away from a public session to a private session. And surely if the intent is to improve the perception or the overall integrity of this defence personnel, then those would be two facets that would enhance that. And so I’m interested in why he’s looking to revert back to the original bill in that case—as I say, particularly given the OIA capacity to allow for some of that information. I also wanted to touch—oh, perhaps I’ll let him address those first.

Thank you, Madam Chair. I thank the member for his questions, and I acknowledge and agree with them entirely that the reputation of New Zealand Defence Force personnel around the world is of the quality of our personnel and what they bring to the role of the roles they play—as I say, whether in combat, whether in peacekeeping, whether in humanitarian assistance and disaster relief (HADR) operations. The member will be well aware of the stories someone like me would get told of the efforts that NZDF personnel go to engage with the communities of which they become a part, because they know that their security is tied up in the knowledge and understanding of the communities of which they’re a part. And I think we can more confidently say we stand apart in the world in the ability of our NZDF personnel to do that. So I acknowledge the member’s contribution in that respect.

On the two questions the member raises, one is about the Minister’s power to certify, effectively, the non-disclosure of information. That is subject to qualifications. As the member will know, in the reinstated provision in the bill, it is not just a blanket “the Minister can certify”; the Minister can only do that—I’m looking at clause 36(5) that sets out the conditions on which “The Minister may certify that protected material should not be disclosed”. And, principally, the reason for that is that much of the information that the NZDF will be dealing with—and certainly the inspector-general in any inquiry—will be classified information, and a fair quantity of it will come from overseas partners, and information shared between our partners, particularly in the military or national security context, is typically subject to conditions about preserving the confidentiality of it. And in order for the inspector-general to get on and do their job—and sometimes it will be appropriate for the inquiries to be conducted reasonably expeditiously—then it’s important that the protections around certain information can be provided, and the Minister’s power to certificate, in that respect, achieves that.

In relation to the second point the member touches on, which is whether or not the inquiry should be in public or private, the member will be aware that the original bill specified they should be in private. As a consequence of the submissions to the select committee and representations by members on the committee, I have taken the view that there should be a default position, which is that inquiries are conducted in private, much for the reasons about the nature and quality of the information that the inspector-general will have to deal with, but with a discretion to open the inquiry up to the public. And if members think back to the way the Operation Burnham inquiry, the royal commission of inquiry, was conducted, the first part of that was conducted in private, because there was a lot of classified information and it took a long time for information that could be declassified to be declassified or presented in an unclassified way. But that inquiry went on for many, many months, and so there was time to do that. There may not—in fact, there is highly unlikely to be time to do that in the sort of inquiries that the inspector-general may be called upon to make, and, therefore, it makes sense for the expeditious nature of inquiries for them to default to being private with the discretion to go public as needed.

So let’s assume the auditor—sorry, the inspector-general has been appointed. Immediately, that person is going to think, “Well, OK, I better do something with this role.”, and the scope for that person, under the bill, is going to be quite considerable. How big does the Minister of Defence envisage that office might become, bearing in mind that we have other inspector-generals who have quite large office operations? And what would be the circumstances if there is conflict between the view of the inspector-general about the scope that they’re able to exercise and the concern that might be expressed to a Minister by the Chief of Defence, for example, about that role starting to impinge on the battle readiness that they need to instil as part of their personnel? In other words, what are the brakes on this person? What are the constraints on this person? If it going to a point where there was clear conflict, who’s the adjudicator, and who makes the decision about where to from there?

Thank you, Madam Chair. And I thank Mr Brownlee for his questions. Ultimately, the size of the office will, I imagine, be something that will evolve over time—it won’t be immediately apparent what their precise needs will be. But that member will be aware of the experience, under successive Governments, of the office, for example, of the Inspector-General of Intelligence and Security, which originally started out as one fulltime-equivalent person—in fact, no, it was a part-time role with some part-time clerical assistance, then it became a full-time role with some part-time clerical assistance. But, during that time, significant omissions happened, and significant failures of oversight happened in relation to the intelligence agencies. Following an inquiry—an investigation conducted under the previous National Government—it led to that Government and the Prime Minister of the day, now Sir John Key, effectively recalibrating the office of the Inspector-General of Intelligence and Security. It’s now an office of, I think, eight fulltime-equivalents—nine people, I think, for a pretty involved work programme for the intelligence agencies.

I don’t expect the Inspector-General of Defence would be anywhere near that size, at least in its early years. It would have an important role to establish some processes and protocols and procedures. One of those is to understand how—I think, clause 10 in the bill, which is developing its relationship with other oversight bodies; it has to work out how that relationship works and how the other relevant jurisdictions around New Zealand Defence Force (NZDF) works. Specifically, the legislation requires the inspector-general to deal with us, laid out in subclause (2) of clause 10, and, indeed, will also have to calibrate its actions in relation to military courts of inquiries.

So there’s a bit of work to do, but I’m confident that it will establish a pattern of work and a responsible approach to work, and we’ll negotiate the resources needed to do that. That would be complementary to those other sources of authority and discipline within our NZDF. I don’t have any concern that the Inspector-General of Defence will add anything to the concerns that front-line defence personnel would be worried about, concerned about, or thinking about as they acquit themselves in their roles, because of the disciplined nature of their role, the doctrinal training that they receive, and the other rules, including international conventions that they’re subject to in that role. Those are things that defence personnel on the job are thinking about naturally as they conduct themselves. The powers of the role of the Inspector-General of Defence will not add a thing to that.

Thank you, Madam Chair. Appreciate that insight. But that’s an area that I want to delve into as well, because under clause 8(b), the functions of the inspector-general are to “assess, and identify potential improvements or additions to, defence force policies and procedures”.

That is a very broad statement, and I think it picks up on the issue Mr Brownlee was raising around how far can this go. What limits are there on the inspector-general and, indeed, effectively, then, if they make a decision around something but that is in conflict with what CDF, Chief of Defence Force, is saying, for example—or indeed might have a different set of priorities or a different risk assessment from the inspector-general’s perspective, which may or may not align with the training objectives of the Chief of Defence Force, which may be looking to align with international areas where we’re trying to improve our interoperability, for example. How do we get that balance right?

Do you have any examples of the sorts of things that would come under that paragraph (b) around those powers, and can you really give the committee some confidence that there isn’t going to be continued creep and that we don’t see this office merge into something much more than I believe it is intended to be?

Thank you, Madam Chair. I thank the member for his question. As the member will know, there is an extraordinary array of procedures and protocols and policies that govern all manner of things within the New Zealand Defence Force across the three forces—guidelines and rules that are specific to each force.

This is in the context, too, where the conduct of defence activities is changing. It is becoming more—for want of a better phrase—digitally involved or engaged. There is more activity now that is done at a desk that previously wasn’t done that makes a direct contribution to combat or peacekeeping activities. I think we’re going to start to see, as we move in to the realms of outer space and the use of satellite technology, that that will become a critical feature of the work of front-line defence force personnel. There will be another set of procedures and protocols developed for all of that sort of work.

My expectation is that where this will come into play is where there is a breakdown or a failure or—for want of a better phrase; I hope people know what this is—a snafu that therefore requires interrogation. Now, the Chief of Defence Force (CDF) and the office of the CDF may well be able to provide a remedy to some of those sorts of failures, but the CDF may well benefit from an independent investigation into a particular process or procedural failing.

The only analogy I can draw upon is what happens in the intelligence space with the Inspector-General of Intelligence and Security. Admittedly, that inspector-general has very broad powers on a proactive basis to know everything and see everything that those agencies are doing. But typically what happens is, where there is a lack of understanding about the application of a particular protocol or even the law—the powers in their legislation—it is often the Inspector-General of Intelligence and Security that will play a role in assisting the agencies, and sometimes with further assistance of the Solicitor-General, to clarify the limits or the extents of powers that the front-line personnel have in that respect.

I expect that, with appropriate modifications, that’s how the Inspector-General of Defence will operate under this bill.

Thank you, Madam Chair. I wasn’t intending on taking a call on this bill, and wasn’t actually meant to be taking a call, but first I just want to acknowledge the members in the House that have served in our New Zealand Defence Force (NZDF). I have never done that, but I was very proud to have been a defence Minister, and reviewed all the information in relation to Operation Burnham and was struck by the incredible, professional, and brave behaviour of all of our NZDF personnel in Afghanistan and the amazing restraint that they showed. I find it extraordinary that we’re in this House, and the Minister has alluded to it several times tonight, the incredible, world-class standard and professionalism of our forces, and yet we’re still talking about putting an inspector-general in place as a result of, obviously, the recommendation that came out of Burnham, which completely vindicated, cleared, and confirmed for all of us just the quality of the New Zealand Defence Force that we have.

My real concern is this: if we do have our staff deployed overseas, if we do have them in Afghanistan doing a job that most of us don’t want to do, putting them in harm’s way, often trying to advance the democratic values that we hold as a country, can the Minister stand and assure me that an inspector-general or his or her office, however big that may be, is not going to be in a position where they’re going to inject themselves into an operation, where they’re going to put troops on the ground in a situation where all of a sudden there is an outside entity that arrives and starts to scrutinise and look at what they’re doing?

The reality of it is they have to be wholly focused on what they’re doing. There’s a chain of command, and any outside interference could put them in danger and anyone else that they’re protecting or having to focus on, bearing in mind that a big part of our SAS deployment there and our provincial reconstruction team deployment was acting as security for Afghan security forces.

So I guess what I’m asking the Minister do is give this House an assurance that there is no chance—and there’s too much vagueness, in my view, in terms of the response that the Minister’s giving in the House at the moment around what the parameters are, what the rules of engagement are for an inspector-general in terms of how they’re going to have oversight, how far they can inject themselves into ongoing New Zealand Defence Force operations. This is critically important that they are not compromised or put in a position where all of a sudden, like I said, if they’re on the front lines and they’re operating in a war zone, all of a sudden having an inspector-general’s office roll into town and start to scrutinise operating procedures, the way they’re operating and what they’re doing.

As I have already said now at least a couple of times, the front-line defence force personnel are already subject to a range of rules, policies, guidelines, protocols, and their own training. That is what makes them disciplined combat personnel. So they’re already subject to that. It’s very clear in clause 8 of the bill, in the description of the functions of the inspector-general. There are two principal functions. One is an investigation function, and it’s very clear in the drafting of the bill that it is post any event that might be the subject of an investigation. So the inspector-general will not be marching into a combat zone with a clipboard, checking that anybody is complying—

Hon Mark Mitchell: Define an “event”. Is it a single event, or is it a deployment?

Hon ANDREW LITTLE: —with rules, protocols, policies. The member asked whether it’s a single event. The legislation refers to incidents that have occurred in the course of the activities of the defence force and also then goes on to say “acts or omissions … in relation to those incidents”. That’s the investigation function.

Then there’s the assessment function, which is more about the policies, procedures, and you might say the governing level of NZDF, what happens at the officer level. I go back to what I’ve also said before too, which is about the origins of this. If you look at the conclusions of the Operation Burnham inquiry, the negative conclusions, if I could describe them this way, focused on the failure of the defence force hierarchy to keep proper information and provide proper information and advice to the Minister and others responsible for civilian oversight. So it is about making sure that that remains intact and conducted in a proper way. The Inspector-General of Defence does not and will not interfere in the work of front-line personnel when they are carrying out that work, but when things do go wrong, when there are failures of policy, other failures that are not or could not be the subject of a military court of inquiry, then it will be the role of the Inspector-General of Defence to conduct an inquiry.

Thank you, Madam Chair. Just a couple of questions to kick off, for the Minister. I’d like him to elaborate on what assurances he can provide that the independence of this office and the inspector-general—that the independence can be maintained to a high standard and that a future Minister of Defence, given the framework, can’t just prevent an investigation from going public or even to Cabinet, to Parliament, or even the existence potentially of an investigation. I’ll just kick off with that one—if the Minister could give us assurances how this might maintain independence, thank you.

Thank you, Madam Chair, and I thank Dr McDowall for his question. I think the answer to the member’s point will be found in clause 9, the requirement that “The Inspector-General must, when performing … [their] functions, (a) act impartially, fairly, independently, and in the public interest; and (b) have regard to the military context”. So I’m satisfied that statutory obligation on the inspector-general to act independently is very clear cut, and any conduct by the Inspector-General of Defence that looks like the office holder has compromised their independence would render any inquiry and investigation, or at least its conclusions, if not questionable, possibly unlawful if they haven’t truly acted independently. And I would fully expect that not only the incumbent Inspector-General of Defence but people such as the incumbent Minister and the incumbent Chief of Defence Force will know that their obligation is to ensure that that statutory obligation is properly adhered to.

Thank you, Mr Chair, and I thank the Minister for his answers there. Just a quick question about jurisdiction. Given this is a current issue, will the inspector-general be looking at, for instance, as I alluded to in my second reading speech, personnel who are on leave who are fighting in an overseas theatre when they shouldn’t be—for instance, there is a current reality we have personnel fighting unofficially in the Ukraine, even if we’re talking about a small number. So I’m just curious, because that’s quite pressing.

Thank you again to Dr McDowall. I think, again, clause 8 of the bill is clear that “(1) The functions of the Inspector-General are (a) to investigate (i) incidents that have occurred in the course of activities of the Defence Force.” And so if there is a serving personnel member who is on leave and going off conducting other operations akin to combat operations but not as a member of the NZDF, then that will not come under the auspices or the aegis of the Inspector-General of Defence. It is possible that under subclause (1)(b) of clause 8 of the bill, in the assessment function, which is assessing and identifying potential improvements or additions to policies and procedures, an inspector-general might express a view about the granting of leave to serving personnel to do those sorts of things, but I think that would be somewhat limited by the fact that even considering policies and procedures must relate to activities of the defence force, but I have to concede that there is possibly a grey area there.

I just thank the Minister again. A previous statement talking about the personnel and how they might perceive this, I was just wondering—you know, there’s pulse surveys, there’s other surveys that have been conducted. Have there been any studies on how this legislation is perceived by our personnel?

I’m not aware of any surveys that have specifically touched on this legislation. In the end, this legislation arose out of the commission of inquiry into Operation Burnham. That itself was prompted by the book produced by the investigative journalists. It’s interesting to note that some of the content—a significant proportion of the content—of that book by those investigative journalists came from serving personnel, including personnel who served in and at the time of the events that were the subject of the book and Operation Burnham. So my expectation is that there will be personnel who will be reassured that there is some oversight. And in the event that there is activity that they see, or issues that they see that are not otherwise covered by courts of inquiry, that could be the subject of an approach to the Inspector-General of Defence.

Minister, the legislative statement proposes that the Inspector-General of Defence’s functions, duties, and scope includes to assess and identify potential improvements or additions to policies and procedures governing NZDF activities. Today, Janes published an article under Defence News saying that “New Zealand faces procurement challenges” in defence and that the 12 procurement programmes under way during 2021-2022 face some significant impacts. The review of those programmes says that Defence faces significant challenges on budget, that Defence prefers to hold to fixed price contracts and benefits, which is a measure—

CHAIRPERSON (Greg O’Connor): Mr Court, this is not relevant, unless you are going to make it relevant—

SIMON COURT: The question is, for the Minister, will the Inspector-General of Defence also be enabled to inquire into procurement practices at New Zealand Defence Force?

The organisation principally responsible for procurement is the Ministry of Defence—works with New Zealand Defence Force, of course, but the actual practical exercise of procurement, of investigating options, preparing budgets, preparing advice to Ministers, principally the Minister of Defence and the Minister of Finance, is the role of the Ministry of Defence. The Ministry of Defence is not covered by the Inspector-General of Defence powers.

Thank you, Minister. So which entity then would have responsibility for reviewing the procurement approach and whether there is value for money in procurement?

I don’t want to give the member a primer on Government, but there are a number of entities that do that—Treasury is playing a critical role in being a check and balance on effective procurement procedures. The Auditor-General plays a role in ensuring value for money. But I can say that for the Ministry of Defence, because of the centrality of procurement to its role, it is continually learning from every procurement exercise it undertakes, and improving its processes. I have to say, in my engagement with Treasury, one of the comments that they do make about the Ministry of Defence is to talk up the quality of the procurement processes that it utilises, and has described it as some of the best procurement processes across Government.

I move, That the question be now put.

The question is that the Minister’s amendments set out on Supplementary Order Paper 370 be agreed to.

The question is that Parts 1 to 6, Schedules 1 to 3, and clauses 1 and 2 as amended stand part.

Madam Speaker, the committee has considered the Inspector-General of Defence Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

This bill is set down for third reading immediately.

Third Reading