Inspector-General of Defence Bill

I move, That the Inspector-General of Defence Bill be now read a third time.

I want to thank the House for their consideration of the bill, particularly in the committee stages. I think there’s been a good examination, I think the points of principle that the members have been concerned about have been well canvassed. I reiterate the point that the importance of this bill is that it strengthens and assures civilian oversight of our military forces—that’s very important in liberal democracies like ours.

Our defence force has an extraordinarily important role to play, not only domestically, in being the source of defence and security for New Zealand but, as our forces frequently are—the role they play overseas in theatres and areas overseas and the work that they do, whether it’s peacekeeping, whether it’s humanitarian assistance and disaster recovery, or whether it is indeed combat. And we need our defence force personnel to know that, alongside their professionalism, the training they get, the leadership they get from their officers, in the rare occasions when there are failures and failings—and particularly where there are material consequences, including loss of life—that there are avenues for them or their families or members of the public or indeed the Minister of the day to have an inquiry and to be assured about what has happened in relation to those events. That’s what this bill does.

The office that it sets up is pretty orthodox, actually, in countries like ours. We are not the first to have an Inspector-General of Defence. Other like-minded countries have already established such an office—Australia is one, the UK is another. And most countries with well-established and well-developed defence forces have a range of oversight offices or organisations to provide that assurance that we expect, that we all need, and this will do this.

I know that some members have expressed disappointment about some of the amendments that I’ve introduced, effectively reinstating some aspects of the original bill. I have done that to protect our national security and foreign relations interests. Of course, everybody has a natural curiosity about the things that go wrong and the information that may support that. The reality is that if there is one operation of Government—apart from foreign affairs itself—that engages heavily in information and data that comes from our overseas partners, it is defence. A lot of that information is classified or it is subject to confidentiality, and we have an obligation to those partners to respect and observe that confidentiality whatever the context—and that would include the discharge of the powers of the Inspector-General of Defence under this bill, once enacted.

So that’s important, but those powers themselves are subject to a set of conditions. So there’s not a carte blanche right of the Minister of the day to certify that any information that he or she chooses should not be disclosed. A certification of non-disclosure of information has to meet a certain type and a certain description, and is laid out in the bill. Likewise, the conduct of inquiries—whether in public or private, again, those confidentiality requirements, our obligations to partners, have to be preserved.

The final point I’d make, which is the other change, which is the application of the Official Information Act. The Foreign Affairs, Defence and Trade Committee quite rightly, on the basis of submissions made, did not accept the kind of almost blanket removal of coverage from the Official Information Act, and that is now no longer the case. But there is some exception for that. The committee got advice from Sir Ken Keith, who basically said the sorts of things that ought to be excluded from the Official Information Act under this bill, are already excluded by the application of a range of other pieces of legislation. What I think is important, and indeed the style of this House has for some years now been that where we can, we codify those sorts of arrangements. So all I have done is to ensure—in the amendments I have put in, in relation to the Official Information Act—that the exemptions that would be applicable to the Office of the Inspector-General of Defence are those that would apply through the application of other legislation anyway. And in that respect, nothing is lost.

Otherwise, I think as a consequence of the work of the select committee, of the debate in this House, and the attention that members in this House have given, we have now a good piece of legislation to establish the Office of the Inspector-General of Defence. It will be good for our defence force personnel, it will be good for confidence in our New Zealand Defence Force, and it will be good for the confidence of future Ministers and MPs who will rely on this office to provide assurance that up to now has not been able to be given—except through the very expensive, time-consuming, and somewhat tortuous process of a royal commission of inquiry. On that basis, I commend the bill to the House.

Thank you, Mr Speaker. So we’re now a couple of hours further along and we still haven’t been able to utilise the House’s time appropriately. This is still a waste of time, as it was before, of both the committee and the House, and is not fundamentally achieving a significant improvement for the defence force or for the confidence the public can have in the defence force.

I want to start on their piece because the Minister of Defence has talked about the intent being to provide greater confidence to the public of New Zealand that there is civilian oversight of the military. But this doesn’t achieve it in a manner that can’t be achieved through an inquiry into Operation Burnham, which is exactly what happened, right? So in that instance, we saw the Government seek to provide confidence that the military was acting appropriately. They used the mechanisms available to them, conducted an inquiry, and got an outcome that, as I said in my previous contribution but I will reiterate, demonstrated that there had been no illegal behaviour from our defence personnel.

Our NZSAS had acted lawfully, and that whilst there had been some issues within the senior leadership in terms of their ability to communicate information, indeed there were no illegal activities by our personnel. And that is the key thing to highlight here, because what we’re seeing is, I believe, a knee-jerk reaction to an area where concern was raised. It was found there was not a concern, and yet now we have a piece of legislation adding more cost and bureaucracy to a defence force that has many other priorities than this, and yet that cost and bureaucracy is not outweighed by the benefit it provides. It will not provide a significant increase in the confidence that the public will have in defence, which, as I mentioned earlier as well, is very high domestically and internationally. Our defence personnel are very well regarded for their professionalism and the manner in which they conduct themselves with integrity throughout their taskings. This won’t change that.

I think that is the key issue that we have here, and it’s been touched in the previous stages of this bill as well. But when we go into any operational theatre, our troops are deployed and they operate by the laws of armed conflict, their specific rules of engagement based on wherever they are and what has been set in place there. Those are the frameworks that guide them, as well it should be, and that is the mechanism to ensure that actions are appropriate.

Any function this inspector-general might carry out would be retrospective in terms of investigating potential behaviour anyway, and so it would not change a situation where something may have happened. But, as I’ve said, Operation Burnham found that nothing had happened inappropriately. So, on that basis, we are simply not seeing value for money.

This is something that is happening across numerous pieces of legislation put forward by this Government. The cost and the bureaucracy is not outweighed by the benefit it provides. Any time that legislation has been put forward, that should be the fundamental test. Is the cost of putting this in place less than the benefit we will derive from putting it in place? The answer clearly, in this case, is no, it is not.

Alongside that, and we traversed this through the committee of the whole House stage, is the concern around some of the potential for creep within the role. And I mention that in the context of the functions of the inspector-general being not only to investigate incidences that have occurred within the defence force but also the secondary or the assessment function, as it’s called, which allows for the inspector-general to assess and identify potential improvements or additions to policies and procedures. That is a real area of concern because, to me, that is incredibly broad. That is one of the reasons we’re opposing this bill as well—that there are not sufficient checks in place to limit the scope, the powers, or the breadth of what this inspector-general may do.

When we look at that alongside the need to empower our defence personnel to act, to perform the duties they are expected to carry out in whatever location they are and with whatever mission they have been given, this has the potential to overshadow that. As Mr Mitchell raised during the committee of the whole House stage, the concern around, potentially, the inspector-general significantly overreaching and ending up giving directives, as Mr Brownlee pointed out as well, or being sought out for advice on how to act—that for me would be a major concern, but is one that hasn’t been alleviated through the readings we’ve had to date.

So, look, we will continue to oppose this bill at its final reading. It simply isn’t fit for purpose. The Government hasn’t demonstrated a sufficient case for bringing this piece of legislation before the House and implementing it, so we would rather continue to back our defence personnel. As I’ve said, there are many other priorities that I would love to see the Government focusing on in defence that are much more meaningful for our defence personnel primarily, but for New Zealand as a whole, over and above this proposal to implement an Inspector-General of Defence.

Can I end by thanking all of our current and past defence personnel because it is a tough role. They do a fantastic job on behalf of all New Zealanders, and I do want to acknowledge their service. That is what’s being put under the spotlight here. There have been some concerns raised, through the inquiry and this process, around their integrity and their ability to perform. It has been shown they are professional, they maintain that high level of those high standards that we expect of them, and I am very proud of them and they should well be proud of themselves. So I thank them for their service. And, as mentioned, we will not be supporting this bill. Thank you.

Effective democratic civil military relations is a central tenet to any functioning democracy. As the only agency in power to inflict organised violence on an adversary, the public needs to have confidence that its armed forces will behave in a manner that’s in line with their values, even if the enemy does not behave in that manner. Having served a large chunk of my life in some of these hostile regions of world that we’ve been working in as part as a coalition, it takes years to build that trust with the communities you’re serving in, but then also the public, and it only takes a second to lose it. The trust of the public can only be maintained through transparency and certainty that the military is reporting faithfully to the public and the Government.

In closing, the Inspector-General of Defence will be an independent office that, if required, will investigate operations carried out by New Zealand’s armed forces. This a very important piece of legislation, and I commend it to the House.

The circumstances just outlined by the previous speaker Dan Rosewarne do not change because there is an Inspector-General of Defence. If there is to be any breakdown in the trust between the New Zealand public and the military, it would be because an event has occurred; not because the inspector-general existed.

The inspector-general just becomes a mechanism for dealing with events that have happened, and I go back to my point before: Operation Burnham was rare. It was an unusual circumstance, and there was a mechanism available in order to have a better look at it. To tip the entire system upside down by putting in place an inspector-general who ultimately will become the veto office on the activities of the military is, I think, very short-sighted and somewhat disrespectful for those who commit their lives to military service.

I’ve said all I need to say on this bill. It is not something that we support.

A lot has been said about this bill from across the House in support and in opposition to this bill. I just want to thank the officials who worked around the clock to make this bill what it is. The members of the committee, with all disagreements, they have done a good job, and all the submitters, including the five submitters who submitted in person. So I’d like to thank everyone for the work that they have done, and I commend this bill to the House.

Thank you, Mr Speaker, for the opportunity to rise in the third reading of this bill. It’s been an interesting night and I, obviously, stand on behalf of ACT to continue to support this bill at third reading.

The scope of this role, for all its power and all its abilities, is rather narrow. I think it does need some improvement over time, but the urgency of that is not necessarily there. We’ve got time to look at it over the coming months—the next Government, which is a bit odd, given we’re doing this under urgency right now. So does the role have sufficient teeth? Probably not, but that may help to contain the powers and the influence. Therein lies the question, I think. If it was in place at the time of the incident that we’ve been talking about, would it have meant that the defence force would have provided sufficient information? I don’t think that question has been quite answered.

I still have concerns around the independence of this role. How can that be maintained? You know, I understand there are expectations in the bill—clause 9—but none the less, I think it’s very difficult, and it may be hypothetical, but it’s very difficult to foresee a future Minister in whatever Government having that respect to maintain that.

The grey area that I raised in the committee stage, I think that is something that does need to be addressed pretty quickly by the person in this role, because that’s happening right now. As members have noted, these are very rare occurrences that we know of where things are going wrong, but there are, in fact, theatres where New Zealanders are involved in. Will they be looking at that? Will they not be looking at that? We got some clarity, but perhaps not all that sufficient.

It would have been good, I think, for the defence force to do a bit of internal discussion with the personnel. Obviously, there were submissions to the Foreign Affairs, Defence and Trade Committee, but it would have been good to look internally, I think, and actually ask what people thought of this and what the barriers are that they face or they feel they face in reporting incidents that may happen. That would have been good in designing the exact role.

The jurisdictional side of this is interesting. Again, it goes back to: how much teeth does this have? It was going to be one of my follow-up questions before I got stopped, but will information gathered by the inspector-general—obviously, it’s got a lot of confidentiality around it. Can that then be used in prosecutions? I think there’s, again, a bit of a grey area there around what is restricted and what isn’t.

So I think with the time that the Government and future Governments can have developing this, there may be some opportunity for scope change where members of the defence force can perhaps utilise this role to make complaints of internal issues, not just operational issues but areas where they can see that things need to be improved. Maybe it’s the houses falling down and getting mouldy, maybe it’s all the reasons behind the attrition rates and the other issues that the National Party and ourselves have raised. So, you know, we hope, as I said in the second reading, that this role is successful but not busy, because if it’s busy, then things are going wrong and it would make you question, retrospectively: have there been things going on that we haven’t been made aware of? So with that, with some hopeful optimism, we commend it to the House. Thank you.

Thank you, Mr Speaker. It’s actually a pleasure for me to rise in support of this bill tonight. I know that others have said that there’s no urgency in this matter, but I do want to note that Operation Burnham, which we all keep referring to as the trigger—for lack of a better word—for this bill and this office being created happened in 1996, and the inquiry report was made public in July 2020, so it’s almost the anniversary three years on. It has never been, I would argue, more apt for New Zealand to signpost our values when it comes to operations and the conduct of our military, the conduct of armed conflict, and the values that we hold dear, hopefully, in terms of the rule of law, the protection of human rights and humanitarian law, even when the worst of circumstances are occurring.

I am perplexed by the repeated submission of the National Party members—who are the only members of this House voting against it tonight—in saying that Operation Burnham did not in fact find anything adverse. In fact, there were some extremely concerning findings in that report in terms of failures in process and accountability and in transparency that went right up the ranks to three successive heads of our military, and, in particular, in terms of the ways that those failures in process and transparency and in accountability impacted the ability of successive Ministers, who were at that time and until the passing of this bill the only and the highest civilian accountability mechanism for our military to actually do their job. So those extremely concerning findings, I would frame, are the impetus for this bill. It was not necessarily what happened on the ground, but the fact that there were such big failings in terms of the ranks of our military in identifying failures in humanitarian law and their own obligations in holding each other to account and upholding New Zealand’s values.

Now, if our military is to continue to engage in military operations with the likes of Australia and the United States to take part in operations that put us in danger of breaching international humanitarian law, we, in fact, have an obligation to those populations, those communities on the ground, who interact with our military personnel. That’s not to say that any one of us in passing this bill suspects our military of being war criminals, which seems to be the argument against this bill, but the fact is that we stand for values that say that the rule of law and human rights will protect those communities, even when we join military operations.

Whether or not I support those decisions themselves is a very different thing, but I did live at one time in my life in a Middle Eastern war, and so I would hope that nation States that engage in military operations across the globe, far away, have systems in place that would uphold the rights, including the right to life, of people like myself and that we’d want to hold that Operation Burnham actually engaged the deaths of five people, including a child. So it’s about making our systems accountable and assuring that the New Zealand public as well as those communities who interact with our military across the globe are confident that we hold those values above and beyond any stated bravado that comes, often, with war.

This is a good first step in meeting some of those obligations and in honouring the recommendations of the Operation Burnham report, but we—together with the ACT Party, interestingly—share the concern that some of the mechanisms in this bill were weakened as against the report of the select committee in terms of transparency, in terms of giving a veto to the Ministers to hold information secret, in terms of the limitation of access to the Official Information Act, and in terms of the presumption that all proceedings will be held confidentially unless the inspector-general makes them public. I would point out that it shouldn’t be up to a journalistic investigation to uncover not only misdeeds but procedural impropriety, as Operation Burnham did reveal. So this office would best operate if those limitations were eventually removed.

The intention is good. The structures do provide for an independent mechanism that will start to rebuild that trust and confidence in our military, but some of the opaqueness may mean that although justice may well be done, it may not be seen to be done, and those mechanisms do need to still be strengthened.

But with that, it is a line in the sand for New Zealand to say that, in fact, our military will be accountable. It will to some extent be found more transparent than it has ever been, and we say that the values of our nation will apply equally to our military in its operations and in its processes, whether here or across the world—whether they’re operating in the Pacific, as they mostly do, or whether they’re in combat operations much further away. So it is a good step, and I do commend the bill to the House.

I commend the bill to the House.

I call—how can I forget your name? I think it’s late at night. It’s a mental blank. Come on, someone give me a hand.

Hon Members: David Bennett!

DEPUTY SPEAKER: David Bennett.

I was going to do a short call, but now I’m going to tell a story about the Speaker—ha, ha! It’s only a little story, but I’m sure everyone will want to hear it!

But no, the National Party wants to pay tribute to our defence forces, the men and women involved that do a tremendous job. There’s many that are in this House that have served our country, and we just have to look around these walls. We thank them for their service and their contribution and we look forward to their continued service in the future.

I commend this bill to the House.

I commend this bill to the House.

Thank you. I commend this bill to the House. I also want to say that we’ve had an interesting debate and I think the points that have been made by the National Party, I don’t need to rehearse at length, but suffice to say that our position has been, for a start, there were many pressing priorities for the New Zealand Defence Force at the moment, including low morale, high attrition—which, two things that are the wrong way around, of course—and the stated need for an increase in public confidence in the defence force, we don’t think, is sufficient justification. We don’t think there is low confidence in that in the defence force.

We don’t think, therefore, this is a measure that would be needed to increase public confidence. We think that the basis for legislating in this way is not made clearly because, in fact, these things all can already be done without the need for bespoke legislation or, indeed, the position created.

All these reasons—National continues to oppose this bill.

I commend this bill to the House.

The Government has indicated they wish to conclude urgency. Therefore, the House stands adjourned until 2 p.m. tomorrow. Good evening.

The House adjourned at 11.46 p.m. (Wednesday)