About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
   
2. We wish to make an oral submission to the Committee.

Introduction

3. This is a long and detailed bill without a coherent theme. So long that when the Council initially reviewed this bill we failed to notice the serious problem with clause 162. We therefore reserve judgement on the remainder of the bill.
   
4. We further recommend that Members consider amending section 267 of the standing orders to replace the “or”s with “and”s, in order to improve our law making process by making all omnibus bills coherent.

Freedom of Expression

5. Clause 162 amends the Public Records Act (PRA), to allow the Chief Archivist to exempt public officers acting overseas from the obligation to keep records.

Bill of Rights Compliance Report (BORA Report)

6. The Attorney General issued a compliance report under section 7 of the New Zealand Bill of Rights Act (BORA report). The BORA report has an analysis on Freedom from Discrimination and the Right to be Presumed Innocent.
   
7. However, this BORA report, like so many before it, ignores Freedom of Information. The Attorney General has no power to selectively ignore parts of BORA in their reports. Yet, once again we have a bill with secrecy measures accompanied by a BORA report which does not even acknowledge that BORA section 14 is affected. The Council urges the Committee to ask the Attorney General to re-issue their analysis after considering Freedom of Information issues under section 14.¹
   
8. The Council also notes, again, that the BORA report was done on a draft not on the final bill, and urges the Committee to ask the Attorney General to update their analysis based on the bill as it is currently written.

Operation Burnham

9. The regulatory impact statement (RIS) makes it clear that clause 162 is not merely for Defence Force (NZDF), but names Operation Burnham:² “This issue was highlighted during the Inquiry into Operation Burnham concerning the actions of SAS troops in Afghanistan”
   
10. The needless deaths of civilians during Operation Burnham prompted the Attorney General to launch a formal Inquiry. That Inquiry determined that NZDF had systematic record keeping failures. Its first recommendation is:³

We recommend that the Minister of Defence take steps to satisfy him or herself that NZDF’s (a) organisational structure and (b) record-keeping and retrieval processes are in accordance with international best practice and are sufficient to remove or reduce the possibility of organisational and administrative failings of the type identified in this report. To enable the Minister to do so, and to ensure public confidence in the outcome, we recommend the appointment of an expert review group comprising people from within and outside NZDF, including overseas military personnel with relevant expertise. 

11. Somehow, despite that context, the RIS considered only these two options:⁴

Status Quo: Public Offices deployed in multinational arrangements do not meet the requirements of the PRA.
Option 2: PRA exemption for public offices while deployed into multinational arrangements.

12. The RIS’ recommendation of the option for clause 162 is apparently based on wishful thinking not on a credible theory for change:⁵

The new provision could become redundant if the underlying problem is resolved, e.g. , if nations in a multi-national deployment establish information management protocols that allow compliance with participants’ national information management requirements.

Obviously clause 162 makes it less likely that anyone will ever try to resolve the underlying problem. 

13. The Council believes that neither of these options should have been considered. Whilst it is traditional to consider the status quo, when the status quo is clearly illegal, as it is in this case, then it should not be considered. And the second option is deciding that our principles are not worth defending. The Council believes that it is a sad indicator of the deterioration of our democracy and public service that when faced with a difficult situation the Ministry has chosen not to bother to try.
    
14. It is self-evident that there are preferable options to the two being considered. Foremost amongst those should be requiring NZDF to obey the law. If it is not possible for NZDF to comply with the PRA in some overseas deployments, then we must not deploy NZDF into those situations. In contrast to the bill’s approach, blocking illegal deployments will motivate a quick resolution of the underlying records management problems.

Inspector General of Defence

15. The Council notes that the Inspector General of Defence (IGD) was not consulted when drafting this bill. The IGD’s section 8 functions include “to assess, and identify potential improvements or additions to, Defence Force policies and procedures governing activities of the Defence Force.”
    
16. Parliament justified the creation of the IGD on the grounds that they would improve transparency, and therefore public trust. The Council further notes that the IGD has published no reports despite being in existence for well over a year.⁶  It is not credible to believe that not a single policy or procedure of NZDF is worth investigating to see if it can be improved. Indeed, clause 162 is a disproof of that hypothesis. The only conclusions are either that the IGD is greatly in need of assistance, or that the IGD has chosen to act as a mechanism to hide the truth, as the Council warned it would.
    
17. The Operation Burnham inquiry concluded that NZDF should not be uncritically trusted to oversee itself. Given that the IGD appears not to be overseeing NZDF either, the Public Records Act remains the primary safeguard we have as a nation to hold NZDF accountable for its mistakes. The PRA is therefore also the primary incentive for NZDF to improve itself. The Council strongly recommends maintaining that transparency by removing clause 162 from the bill.

Recommendation Remove clause 162 from the bill.

18. The Council thanks members of the Committee for their time and consideration of our submission.

1. The Council further notes that the government has repeatedly promised to put a stop to the practise of secrecy clauses, most recently as Commitment 7 of the Fourth National Action Plan under the Open Government Partnership. https://www.publicservice.govt.nz/assets/OGP/NZs-Fourth-National-Action-Plan-2023-2024.pdf
   The Council further notes that the Ministry of Justice had the gall to report that Commitment 7 was successfully completed. https://www.publicservice.govt.nz/assets/OGP/NAP4-Self-Assessment-Report.pdf
   This bill would be yet another proof that the work on secrecy clauses has not yet meaningfully begun. ↩︎
2. RIS page 40 https://www.dia.govt.nz/diawebsite.nsf/files/regulatory-impact-2024/$file/regulatory-systemsamendment-bill-ris.pdf ↩︎
3. https://operationburnham.inquiry.govt.nz/inquiry-report/chapter-12 ↩︎
4. RIS page 40 ↩︎
5. RIS page 41 ↩︎
6. The IGD promised “I will publish a report on the completion of each investigation or assessment that I undertake.” at page 5 of the 2025/2026 Work Programme. No reports have been published. https://www.igd.govt.nz/publications/work-programme ↩︎