Submission: Inspector-General of Defence Bill

Published February 4, 2023 · Updated February 12, 2023

The full text of our submission to the Foreign Affairs, Defence and Trade Select Committee recommending substantial amendments to the Inspector-General of Defence Bill.

About the New Zealand Council for Civil Liberties

The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.

We wish to make an oral submission to the Committee.

Introduction

The Council supports the idea of an Inspector-General of Defence, which should help protect civil liberties by increasing accountability and supporting public trust in the New Zealand Defence Force (NZDF). However, the Council believes that this bill, unless significantly amended, will not deliver those outcomes.

All institutions created to investigate allegations of wrongdoing stand or fall on whether the public trusts them. If the institution is not independent enough, does not have enough powers, or its reporting and recommendations are constrained, it will not be trusted by the public. This will result in wasteful spending that does not achieve the claimed purposes of the institution, while shielding wrongdoing from being held accountable. This will lead to a decline in public trust in government.

A key component of whether people can place trust in an institution is whether people will have access to sufficient information to make an informed decision. While the government claims this bill improves transparency, it actually makes it more difficult to learn about potential or actual wrongdoing within the Defence Force. This will make it more difficult to hold the Defence Force accountable, and make it more likely that future human rights violations by the Defence Force will be kept secret instead of being exposed and corrected.

We support creating an external and independent oversight body but have serious concerns, both about a number of the powers that the new Inspector General of Defence (IGD) will have – notably the ability to issue suppression orders – and powers they will not have – for example the inability of the IGD to recommend prosecution.

The Council is concerned by the combination of provisions that mean people are not protected from self-incrimination when required to provide information to the IGD, but also that any information provided to the IGD during an investigation cannot then be used in a subsequent prosecution (unless it is for perjury or obstruction of the IGD’s investigation).

We are also deeply concerned by the exclusion of information relating to Inspector-General investigations being excluded from the definition of ‘official information’ in the Official Information Act 1982 (OIA). This will prevent people from obtaining information not only from the IGD, but also from the NZDF and Ministry of Defence. The situation is made worse by the power given to the Minister of Defence in this bill to impose secrecy orders that override the OIA. Both provisions continue the pattern of this Government introducing legislation that increases secrecy and distrusts the Ombudsman.

Independence of the Inspector-General

It is clear from the limits on the scope of the investigations that the Inspector-General will be able to initiate that the claims made by the government for the Inspector-General’s independence are unreliable. The IGD should be made an office of Parliament, to guarantee their freedom from ministerial control.

The relationship of the IGD to Parliament should also be strengthened by amending section 14 to require the IGD to investigate a matter referred to them by the relevant select committee. This would be comparable to the existing power under section 13(4) of the Ombudsmen Act 1975 for any committee of the House of Representatives to refer a matter to the Ombudsmen for investigation.

Recommendation 1
The Council recommends that the bill be amended to create the Inspector-General of Defence as an Officer of Parliament.

Recommendation 2
The Council recommends that the bill be amended to require the Inspector-General of Defence to undertake an investigation into any matter referred to them by the relevant select committee of the House of Representatives.

Suppression orders

Clause 38 allows the IGD to prohibit “the publication, broadcast, distribution, or other disclosure” of any information about any of its investigation, other than the IGD’s own reports.

Clause 38 allows the IGD to censor many types of speech. Notably, the investigative journalism which triggered the Operation Burnham Inquiry, could be made illegal. Even without being invoked, clause 38 creates a chilling effect on investigative journalism, as anyone would be reluctant to invest significant effort into a story which could be easily suppressed. This chilling effect is compounded by the offence and fines set out in clause 47.

The Council believes that clause 38 runs directly contrary to the stated policy objectives of this bill. It is an unprecedented return to the long-rejected approach of the repealed Official Secrets Act. It is incompatible with open government and the right to freedom of expression articulated in Article 19 of the International Covenant on Civil and Political Rights and section 14 of the New Zealand Bill of Rights Act 1993 (NZBORA).

We also note that Section 191(5) of the Intelligence and Security Act 2017 allows Parliament to learn about IGIS investigations without anyone fearing prosecution. The Council recommends that the Committee amends the bill to safeguard an equivalent ability to comment on investigations of the IGD that are mentioned in Parliament.

Recommendation 3
The Council recommends that clauses 38 and 47 be removed from the bill. If they are not, clause 38 should be redrafted along the lines of section 15 of the Inquiries Act 2015 to better protect the public’s right to freedom of expression.

Recommendation 4
The Council recommends that the bill be amended, along the lines of section 191(5) of the Intelligence and Security Act 2017, to protect the communication and reporting of proceedings in Parliament.

Privacy and unreasonable seizure

Clause 29 requires anyone to provide IGD with all information or things that the IGD wants, so long as the IGD claims the items seized are for an investigation.

This may be a reasonable standard for people who have sworn oaths to NZDF, or who are contractors to the NZDF and related agencies (‘the defence sector’). It is not a reasonable standard for interactions with the public. When the IGD obtains information from people who are not bound by an oath to the defence sector, those seizures should be overseen by a judge.

Privacy rights extend to everyone, even people in the defence sector. Clause 29 applies not only to the professional lives of people in the defence sector, but also to their private lives, and consequently the privacy of their friends and family.

Recommendation 5
The Council recommends that clause 29 be amended so that when the IGD wants to compel the provision of information or things for the purposes of an investigation by someone who does not work in the defence sector, they must request an examination order in the same manner as that found in subpart 12 of part 2 of the Search and Surveillance Act 2012.

Self-incrimination and protecting the guilty

The government’s intention with this bill is clearly to have a strong Inspector-General for the limited range of things they are permitted to investigate, but to then ensure the process ends there. People are not protected against self-incrimination, but conversely any information provided (even if not used as evidence) to the Inspector-General cannot then be used in a subsequent prosecution (except for perjury and obstruction of the IGD). This is a recipe for whitewash and brushing things under the carpet, instead of ensuring adequate accountability for criminal acts.

Clause 20 establishes that while the IGD may make findings of fact and fault, the report of an investigation must not determine “a person’s civil, criminal, or disciplinary liability”.

Clause 30 overrides the right to not self-incriminate found in section 25(d) of the New Zealand Bill of Rights Act 1990. IGIS has no similar power in the Intelligence and Security Act 2017.

While clause 41 prevents this incriminating material from being used as evidence in subsequent proceedings (except for perjury and obstruction of the IGD), clause 30 is an unacceptable weakening of people’s human rights.

The second part of this trade-off is equally unacceptable if the public are to be able to trust the Inspector-General and the Defence Force.

The Council believes there are systemic problems in the Defence Force and the Ministry of Defence, such as those documented by the Operation Burnham Inquiry and those reported by the media in relation to the culture and safety within the Defence Force during training and non-operational activities. The Council acknowledges that there is evidence to suggest that inquiries that are designed not to apportion blame have sometimes been proven to provide better outcomes for organisations than inquiries which establish guilt. However, the Defence Force is not a tech start up trying to determine why it has buggy code. The procedures for this entirely different context should be different. It is necessary but not sufficient for the Defence Force to adjust its policies to improve its future behaviour.

The Council believes that Parliament has lost sight of the all-important fact that people in the Defence Force have killed innocent people. Crimes have been committed. The people who committed them need as much help as the organisation that enabled them. But the requirements of justice mean that there must be a path for wrongdoing uncovered by the IGD to lead to criminal charges where necessary.

Recommendation 6
The Council recommends that clause 30 be deleted from the bill, along with clause 40(3).

Recommendation 7
The Council recommends that clause 41 be deleted from the bill, and a provision inserted requiring the Inspector-General to explicitly state in their report if they are recommending that any person or organisation be prosecuted.

Recommendation 8
The Council recommends that clause 20 be amended by adding “(3) The report should recommend criminal prosecution whenever there is reason to believe that a crime has been committed.”

Attacking the Official Information Act

The Inspector General will be subject to the OIA. However, schedule 3 of the bill contains an attack on the OIA, substantially undermining the effect of placing the IGD within the OIA’s scope. It will add paragraph (n) to section 2(1) of the OIA, removing from the definition of ‘official information’ the following:

information that relates to any investigation or assessment under the Inspector-General of Defence Act 2023, other than information that existed before the commencement of that investigation or assessment

This means that although the Inspector-General of Defence will technically be subject to the OIA, in practice nobody will be able to obtain information that ‘relates’ to ‘any investigation or assessment’ the IGD has conducted.

We will be able to ask about the IGD’s stationery bill – a good job since the IGD will not be subject to audit by Auditor General and will not have to produce end-of-year performance information under the Public Finance Act 1989 – but we will not be able to obtain information about the IGD’s substantive work.¹

This means that even if disclosure would cause no harm in terms of sections 6, 7, or 9 of the OIA, the information could not be obtained under the OIA if it ‘relates’ to the IGD’s investigation or assessment. Information will not have to be released, even if it is in the public interest to do so. It is difficult to see how this meant to build public and parliamentary confidence in the new IGD and its work.

Because this amendment is to the definition of ‘official information’ in the OIA itself, it also means this information will not have to be disclosed by the Defence Force, the Ministry of Defence, or any other government agency. This will include information about the Defence Force or Ministry’s organisation to interact with the IGD, as well as how it will be responding to the IGD’s findings and recommendations.²

Such an expansion of official secrecy is quite grotesque when the OIA already has adequate protection for this kind of information and section 31 of the Act already empowers the Prime Minister to certify to the Ombudsman they should not recommend the disclosure of information where disclosure “would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand, or any interest protected by section 7 [of the OIA]”. A section 31 certificate may also be issued by the Attorney-General if they believe “that the making available of any information would be likely to prejudice the prevention, investigation, or detection of offence”.

Recommendation 9
The Council recommends that Schedule 3 be amended to remove the amendment to section 2(1) of the Official Information Act 1982.

Duty of confidentiality – Ministerial secrecy certificates

In addition to significantly constraining the Inspector General’s accountability under the OIA, the bill further weakens the public’s right to information in clause 36 of the bill. This provision makes everything obtained or received by the IGD confidential, unless it is disclosed to the Minister, or is for the purposes of performing the IGD’s functions.

Clause 36(5) empowers the Minister to issue a certificate that the ‘protected material’ (defined in cl 36(1)) either should not be disclosed at all, or only on terms and conditions specified in the certificate. The grounds for issuing a ministerial secrecy certificate echo some of the language of section 6 of the OIA, but also go beyond this in significant ways.

First, because it allows information about the “performance of the functions of the Defence Force or the Ministry [of Defence]” to be suppressed when those functions have no impact on safety, security, or defence. This is inventing an entirely new basis for official secrecy that is not present in the OIA.

Second, because under clause 36(5)(b) the restriction on disclosure of personal information is not subject to a public interest override test, unlike section 9(2)(a) of the OIA.

The ministerial secrecy certificates that can be issued under this bill are essentially about gagging the IGD from including relevant information in their reports. In doing so, they recreate an Official Secrets Act regime, where information may only be disclosed with the consent of the Defence Force, Ministry and Minister. The certificates are an attack on the independence and the judgement of the Inspector-General to make sound decisions in relation to their reports. But they go further, because for any information that might fall within the definition of ‘official information’ in spite of the exclusion proposed in schedule 3, this information could be blocked from disclosure under the OIA by a ministerial certificate. This has the consequence of preventing the Ombudsman from recommending disclosure of this information following investigation of a refused OIA request.

Fundamentally, any use of the certificates will significantly damage public confidence in the independence and role of the Inspector General. The assumption will be that the secrecy certificate is for reasons of political inconvenience, since it is highly unlikely the IGD would be so unaware of the consequences of disclosure that they would insist on including the relevant information in their report unless it was needed to support their conclusions.

The effect of the certificates, combined with the amendment to the definition of ‘official information’, mean that the ability of MPs, the media and the public to obtain information about the conduct and operations of the IGD, Defence Force and Ministry will be severely curtailed without the government even having to make the case for official secrecy by ministerial diktat when that is exactly what the OIA was designed to move us away from 40 years ago.

No Justification for Secrecy Certificates

The Council notes that no justification for the secrecy certificates has been given in the bill’s explanatory notes.

Nor is there any consideration of these ministerial secrecy certificates in the Ministry of Justice’s assessment of the bill’s compliance with the NZ Bill of Rights Act. Paragraphs 8-13 of that document fail to address the powers given to the minister under clause 36(5), and whether they are necessary, let alone proportionate limitation on our rights under section 14 of the NZ Bill of Rights Act.

Finally, paragraphs 50 and 51 of the Cabinet paper Establishing an Inspector-General of Defence: Approval to draft a Bill, considered on 5 May 2022 misled ministers.³ First, paragraph 51 claims that the proposals “aligns with the feedback of the Inquirers, Sir Terence Arnold and Sir Geoffrey Palmer, detailed in Appendix E”. However, Sir Terence and Sir Geoffrey’s comments – both as summarised in the Appendix and in their actual response to the consultation, relate only to the importance of the IGD being able to access information provided to the Defence Force by foreign partners, and in no way suggest that the Minister should be given the power to issue a certificate that overrides the OIA. The issue of ministers issuing certificates to prevent information from being included in a report was not even mentioned in the consultation paper issued in 2021, so it is not surprising they did not comment upon it.⁴ Second, the Cabinet paper does not explain to ministers the implications of the ministerial certificate power for the rights of people under the Official Information Act.

The Council believes that the creation of ministerial secrecy certificate powers is an unjustified expansion of official secrecy. Sub clause 36(5) should be removed from the bill. If it is not, it should at least be amended to require publication of the fact that a ministerial certificate has been issued to the IGD. Without this people will not have the opportunity to challenge the certificate in court.

Recommendation 10
The Council recommends that clause 36 be amended to remove paragraph (b) from clause 36(2), and sub-clauses (4), (5) and (6). Clause 46 should also be removed from the bill, as there are already offences in sections 78, 78AA, 78A, 105 and 105A of the Crimes Act 1961. If the powers to issue certificates are not removed, the clause should be amended to require the Minister to lay before the House a notice that they have served the IGD with a certificate, and a copy of the certificate.

Protected Disclosures

Schedule 3 of the bill makes significant changes to the Protected Disclosures (Protection of Whistleblowers) Act 2022. Section 4 of that act is amended to add a broad definition of “defence information”:

means information that relates to the activities of the New Zealand Defence Force other than activities of Veterans’ Affairs New Zealand

This overly broad definition is then used as the basis for rewriting the protected disclosure rules for everything that occurs not just in NZDF but also in relation to people in other government departments who may which to raise a concern arising from “defence information”. After the change, protected disclosures may now only be made to IGD, even if, as will usually be the case, IGD has no authority to take action.

Recommendation 11
Rewrite the changes to the Protected Disclosures (Protection of Whistleblowers) Act 2022 to simply add the Inspector-General of Defence to the existing list of bodies to whom protected disclosures can be made, and remove all of the other amendments to the Protected Disclosures (Protection of Whistleblowers) Act 2022.

Duplication of Scrutiny

Clause 10 strongly suggests to the Inspector-General that they should not launch an investigation if one of a number of people or organisations listed in clause 10(2) have functions that might overlap with the jurisdiction of the IGD. As such it suggests that both the Secretary of Defence and/or the Chief of the Defence staff might be able to prevent the IGD from performing any of its functions by launching their own investigations.

This is clearly in direct opposition to the stated policy objective. If Parliament believes that those existing oversight mechanisms are sufficient this bill would not be before the House. As we have established that Parliament believes that there is a need for an additional, impartial oversight mechanism, the existing oversight mechanisms, with their vested interests, should not be permitted to interfere.

Recommendation 12
The Council recommends that clause 10 be removed from the bill.

Limited Scope

Any comparison of clause 8 to the equivalent s 158 of the Intelligence and Security Act 2017 will note the numerous functions of the IGIS which were not made functions of the IGD. Most notably, s 158(1)(f) instructs IGIS to perform annual reviews of the procedures and compliance processes of the Intelligence Services and s 158(1)(h) instructs IGIS to perform audits of the implementation of those policies and procedures.

The Council believes that those reviews and audits are significant sources of the value created by IGIS. The IGD is limited to only an annual work programme and an annual report (cl 53 and cl 54), it cannot conduct reviews or unscheduled audits.

Recommendation 13
The Council recommends that annual reviews and unscheduled audits similar to those in sections 158(1)(f) and (h) of the Intelligence and Security Act 2017 be added to Clause 8.

Bill of Rights Compliance Report

The Council again notes our considerable disappointment with the Attorney General’s NZBORA Compliance Report.⁵ The Council feels that it is accurate to summarise the report’s analysis, especially 13(c), as if “the IGD can be trusted with unlimited powers because only perfect people will ever be appointed or work for the IGD”. This is not merely incorrect, but it bypasses any serious thought about what powers and controls are appropriate.

The Council further notes again that the Hansen test which the NZBORA Compliance Report correctly identifies as the applicable standard (see s11 of the report), requires analysis to determine that “the limit [is] in due proportion to the importance of the objective”. In order to do so the NZBORA Compliance report needs to make some sort of assessment of the importance of the objective. As usual, the report fails to include any assessment of the importance of the objective.

The Council finally notes again that the NZBORA Compliance Report was performed on a draft, not the current bill. The Council recommends that the Committee ask the Attorney General to update their report before the Committee prepares its report.

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

1
See paragraphs 70.3 and 70.4 of Cabinet paper GOV-22-SUB-0009, accessed from: https://www.defence.govt.nz/assets/publication/file/Establishing-an-IGD-Policy-Proposals.pdf
2
Defence unit working on Afghan raid inquiry has $2 million budget, Radio New Zealand, 3 September 2018. https://www.rnz.co.nz/news/political/365506/defence-unit-working-on-afghan-raid-inquiry-has-2-million-budget
3
GOV-22-SUB-0009, accessed from: https://www.defence.govt.nz/assets/publication/file/Establishing-an-IGD-Policy-Proposals.pdf
4
See paragraphs 68-69 of the consultation paper: https://www.defence.govt.nz/assets/publication/file/IGD-Targeted-Consultation-Document.pdf
5
Consistency with the New Zealand Bill of Rights Act 1990: Inspector-General of Defence Bill, Ministry of Justice 2022. https://www.justice.govt.nz/assets/Documents/Publications/20221027-Inspector-General-of-Defence-Bill.pdf

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