Hon Mark Burton
Minister of Defence
December 2001
Review of the Performance of the Defence Force in Relation to Expected Standards Of Behaviour, and In Particular The Leaking And Inappropriate Use of Information By Defence Force Personnel
Report to the State Services Commissioner
by Douglas White QC and Graham Ansell
Contd.
Findings
- We now turn to consider how the standards which we have identified in the preceding section of our report have been applied in practice in the Defence Force and the Ministry of Defence. We address our findings under the following headings -
- Standards governing relationships with and obligations to the Government of the day.
- Training in the application of standards governing senior Service personnel relationships with Government.
- The issue of higher loyalty.
- Standards of behaviour in respect of handling official information.
- The scale of the unauthorised release of official information.
- Action taken by CDF to review leaking and adequacy of his action.
- Action taken by Secretary of Defence to review unauthorised disclosures, and adequacy of his action.
- Why did the unauthorised leaks occur?
- Standards governing the relationship of senior Defence personnel with and obligations to the Government of the day
- As we have already noted, staff of the Ministry of Defence are bound by the provisions of the Public Service Code of Conduct, which is distributed to all staff on taking up appointment. Standards relating to a number of the matters dealt with in the Public Service Code have been incorporated in various documents issued as Defence Force or Service Orders, especially in relation to the handling of official information. The written guidance or standards governing the relationship of Defence Force personnel with the Government is likewise spread across a number of separate documents. We have noted in particular DFO 34 relating to Defence Force Headquarters Organisation which deals with the powers and functions of the principal offices and institutions of State; but this is more a constitutional statement than a ready guide to the standards which should guide the Defence Force's relationship with and loyalty to the Government of the day. We formed the view that, in this area, the guidance available to Defence Force personnel was less comprehensive, less explicit and more fragmented than what has been produced for public servants.
- Programmes and documents have been developed in the individual Services, to underpin the training that all their members receive in core values. These are intended to reinforce such attributes as respect for the traditions of their parent Service, professionalism, loyalty, discipline and teamwork which are of great importance to effective operation of the Defence Force. Indeed these core values constitute the basic foundation for the effective operation of the Force and it is vital that they be universally respected. But they do not set out to cover in any comprehensive way the proper relationship between Service personnel and the Government of the day. There are some short references to these matters, although the precise sense may not always be clear, as for example in the Army's "Ethos and Values" in describing service to the Crown -
"The Armed Forces have a special constitutional position where the members are engaged to serve at the pleasure of the Sovereign. This service is carried out regardless of the political stamp of the Government and is reinforced by the Oath of Allegiance, commissions and warrants."
This may or may not be interpreted as a commitment of loyalty to the Government of the day, although the Chief of General Staff claimed that there is no ambiguity - that personnel are on oath to serve the Government of the day.
- Similar ambiguity characterises the attempt in the Navy's Command Management and Divisional Manual to describe in flow-chart terms the relationship between Government and Defence Force (see Appendix 7). This diagram might well leave the reader with an exaggerated impression of the role of the Governor-General and a diminished view of the relative importance of Cabinet and the Minister of Defence (leaving aside the curious placement of Parliament). We return later to the matter of the Governor-General's role.
- It was suggested to us by one officer that his commissioning parchment, which absolutely informed his conduct, contained all that was required in the way of directions on his responsibilities to the Government of the day - but this basic document is concerned entirely with respect for the orders of his superior officers, and duties towards subordinates.
- There seems to us to be a need for a single document, unambiguously expressed, incorporating a code of conduct for distribution to all members of the Defence Force. Such areas as the need for loyalty to the Government, and for political neutrality on the part of Force members, could be given appropriate emphasis. The Public Service Code dealing as it does with general behavioural issues as well as with the proper handling of official information provides a commendable model. Officers of the Defence Force are not public servants, and we do not see it as desirable that they should be.7 But, like all parts of the Public Service, the Defence Force is responsible to a Minister for giving advice and implementing Government decisions. The Government of the day is entitled to expect the same level of honest, impartial and comprehensive advice from the Defence Force as from the public service. And it is entirely appropriate that the same standards of conduct should apply to the Government's principal civilian and military defence advisers (and their subordinates) particularly when they are required to consult with each other in giving advice on major policy issues. We recognise that the State Services Commissioner's document might well need some adaptation to the special requirements of the Defence Force. We suggest in our Conclusions a method by which this might be done.
- The Civil Staff Code of Conduct issued by the Chief of Defence Force in 1997 contains a number of cogent requirements of acceptable behaviour, but they are expressed as obligations to the Defence Force rather than to the wider context we are addressing. It does not (nor purports to) deal with the basic issues of political neutrality and loyalty to the Government of the day which are properly highlighted in the Public Service Code. There is therefore a gap to be filled and the suggested new Defence Force Code of Conduct, applied to them, would provide this.
- Training in the application of standards governing senior Service personnel relationships with Government
- Senior officers of the Defence Force have normally been exposed to higher levels of training as they pass through the ranks. Such training includes enhancement of understanding of their proper relationship with the Government of the day. We witnessed a slide lecture presentation by the Defence Force Director of Legal Services, regularly given at the RNZAF Staff College at Whenuapai (but open to the other Services). In this example, it was made clear, eg, that -
"The Defence Force and the disposition of those Forces are at the decision [sic] of Her Majesty's Ministers for the time being"
And that
"The Minister of Defence shall have control of the NZDF, which shall be exercised through the Chief of Defence Force."
We were told that these bare statements normally formed the basis for extended discussion.
- More advanced study of the proper relationship between Government and Armed Forces is included in post-graduate courses undertaken by NZDF officers at staff colleges in a number of overseas countries, as well as New Zealand, and at such institutions as the Massey University Centre for Defence Studies.
- Since not all officers have access to these levels of training, we see merit in the organisation of special courses of perhaps 1-2 days' duration aimed at expanding understanding of the standards which should govern civilian/military relationships, and especially the convention of political neutrality which should govern the relationships between the Defence Force and the Government of the day. We believe that such a systematic approach would bring considerable benefit, and alleviate any areas of tension and uncertainty. But, as we observe later, no system of instruction would have prevented the deviant practices which have been the subject of our review: the individuals concerned were generally considered by those who addressed us on the subject to have been fully aware that their activities were in breach of the expected norms of conduct.
- Our experience in interviewing a number of Army officers in connection with our investigation into Mr Mark's allegations of misuse of his personal files suggested a further area in which training might be enhanced. There are times when Service personnel, who may be of relatively senior rank, are posted to sensitive positions in Service or Defence Force Headquarters immediately following long periods of service in overseas or even remote New Zealand locations. Several of these officers, and others whom we questioned on the point, thought that it would be helpful to them, and to their Services, if their Wellington positions were to be preceded by a short "refresher course" bringing them up to date with a range of pertinent issues outside their immediate professional experience, including some political orientation. We think this suggestion merits further consideration.
- The issue of higher loyalty
- In our preliminary briefing for the review, and in some of our interviews outside the Defence Force, we were told that it was not uncommon for members of the Force to insist that their loyalty was not necessarily to the Government of the day, but to a higher authority - the Sovereign, to whom all Service personnel swear an oath of allegiance; Her Representative in New Zealand who is, by statute, their Commander in Chief; or simply the Nation. This principle was believed to justify efforts to overturn or frustrate the implementation of Government policies seen as inimical to the country's security. None of those who passed these reports to us had had such assertions put to them directly by Defence Force officers; but all had received accounts of conversations in which such claims had been made.
- In most of our interviews with Defence Force personnel, we asked specifically whether the conduct of they themselves, or, to their knowledge, others in the Force was governed or influenced by the "higher loyalty" principle. In all cases, except for one middle-ranking officer, we received firm denials. There was virtual unanimity that, while their oath of allegiance was to the Sovereign, their loyalty was solely to the Government of the day. Many seemed bemused that the question should even have been asked, over what they regarded as a non-issue.
- We do not think there is any doubt that members of the Defence Force know that their loyalty is owed to the Government of the day, and that, once decisions have been taken by that Government, they must be faithfully implemented. That does not seem to us incompatible with the sense of duty to the nation that motivates service men and women to place their lives at the ultimate risk in New Zealand's defence.
- It was recognised in a number of our conversations that the argument of higher loyalty may well have been deployed as a rationalisation - or, as one interviewee put it, a "refuge" - by some Defence Force officers who embarked on actions they knew to be politically partisan or in defiance of Government policy. But we do not believe that it was a significant element of motivation.
- Although we do not judge that there is any serious ambiguity in the matter, in our Conclusions we address the statutory role of the Governor-General as Defence Force Commander in Chief. The powers of that office in New Zealand (quite unlike those of, say, the US President as Commander in Chief) are strictly limited in scope. We suggest that clearer statutory definition of the Commander in Chief's role and powers would remove any grounds for misinterpretations, deliberate or otherwise.
- Standards of behaviour in respect of handling official information
- Our terms of reference require us to address three questions under this heading -
71.1 Do senior Defence personnel have clear standards for handling official information?
71.2 How do Defence personnel view the leaking of documents and information?
71.3 Why would Defence personnel leak documents?
We address our findings in respect of each of these questions in turn.
(i) Defence Force standards for handling official information
- Both the Defence Force and the Ministry of Defence have adopted comprehensive guidelines for handling official information. The Defence Force has a series of Defence Force Orders promulgated by respective Chiefs of Defence Force under s 27 of the Defence Act relating to the handling of official information. For our purposes the relevant Defence Force Orders currently are -
72.1 Defence Force Order 51 relating to Security;
72.2 Defence Force Order 70 relating to Official Information;
72.3 Defence Force Order 5/1999 relating to NZDF External Relations;
72.4 Defence Force Order 20/2000 relating to the Protected Disclosures Act 2000.
- We have examined the relevant provisions of Defence Force Order 51 relating to Security. We have also referred them to the Director of the New Zealand Security Intelligence Service for comment. Subject to his confirmation that there is nothing in the Order inconsistent with the Security Manual, we are satisfied that Defence Force Order 51 contains clear standards for the handling of official information relating to the security and defence of New Zealand.
- We have considered whether senior Defence personnel, who have access to official information relating to the security and defence of New Zealand, appreciate the critical importance of compliance with the standards in Defence Force Order 51. We believe that they do, not least because, significantly, as recorded in paragraph 94, none of the unauthorised disclosures of official information which we have been asked to consider relates to such information. We address this important finding further in our report.
- We have examined the provisions of Defence Force Order 70 relating to Official Information. We have also referred them to the Ombudsmen for comment. Subject to their confirmation, we are satisfied that Defence Force Order 70 contains clear standards for the handling of official information. The introduction to the Defence Force Order contains a concise and accurate summary of the position -
- This Manual prescribes the procedures for the handling of official information by all service and civilian personnel within the New Zealand Defence Force. The procedures are designed to provide for the proper implementation of the provisions of the Official Information Act 1982 and to ensure that necessary protection is given to official information.
- Where any request for official information is received from any person, it is to be handled in accordance with the provisions of this Manual.
- Defence Force Orders for the Navy, Army and Air Force prescribe the procedures to be followed for releasing official information to the news media, publishing books and articles, and delivering public speeches, lectures and radio addresses. Personnel are authorised to release official information to the extent authorised and for the purposes specified in those Orders.
- Official reports, correspondence, and documents of whatever description, whether classified or not, are the property of the Crown. The only authorised use which personnel may make of official documents, or information derived from them, is in the performance of their duty.
- Except as authorised in paragraphs 2 - 4 above no service or civilian employee shall:
- publish or disclose in any form whatever outside the New Zealand Defence Force any official information which he or she has acquired or to which he or she has access.
- use other than in the course of duty any official documents or their contents or any other official information.
- All personnel are reminded that there are special provisions in New Zealand law relating to the misuse of information. They are:
Section 25 Armed Forces Discipline Act 1971
-unauthorised disclosure of information.
Section 78 Crimes Act 1961 - espionage.
Section 78A Crimes Act 1961 - wrongful communication, retention, or copying of official information.
Section 105A Crimes Act 1961 - corrupt use of official information.
Section 20A Summary Offences Act 1981 - unauthorised disclosure of certain official information.
- Defence Force Orders for the Navy, Army and Air Force are to draw the attention of all personnel to the provisions of this Manual.
- The obligation to protect official information from unauthorised disclosure is mandatory8 and is also mentioned in paragraph 1101 of the Order and paragraph 8 of Annex A to Chapter 1 of the Order which is required to be placed in unit or branch orders once every three months as a routine order. The prohibition on unauthorised disclosure is reinforced in respect of communications to the news media by Defence Force Order 5/1999 - "NZDF External Relations" - which we refer to later in our report because it was relied on specifically by the Chief of Defence Force.
- We have examined the Defence Force Orders for the Navy, Army and Air Force referred to in paragraphs 3 and 7 of this introduction. They are based on Defence Force Order 70.
- We have considered whether senior Defence personnel appreciate the significance of the obligations imposed on them by Defence Force Order 70 in respect of all official information. While we are reasonably satisfied that senior Defence personnel are aware in general terms of the nature of the obligation not to disclose official information unless authorised to do so, it is apparent that -
78.1 There has in recent years been a significant increase in the number of unauthorised disclosures of official information relating to the Defence Force;
78.2 The steps taken by the Chief of Defence Force to prevent this from occurring have not been successful; and
78.3 Some Defence personnel are therefore either unaware of the obligation or, notwithstanding the terms of Defence Force Orders 70 and 5/1999, which are explicit, have deliberately breached the directions and have disclosed official information without authority.
- We discuss the reaction of the Defence Force to these breaches, the reasons for them and the adequacy of the steps taken by the Chief of Defence Force in respect of them later in this report. As we have already noted, unlike the Public Service which has easy access to its Code of Conduct, the Defence Force has not published a simple, straightforward statement of standards in respect of the protection and disclosure of official information. Instead the relevant instructions are contained in Defence Force Order 70 which is one of some 50 volumes of Defence Force Orders published in book form out of a total of some 128 current Defence Force Orders which relate to a wide variety of different subjects of varying degrees of importance. Furthermore, Defence Force Order 70 is concerned primarily with practices and procedures relating to the disclosure of official information under the Official Information Act 1982. The obligation to protect official information from unauthorised disclosure is mentioned in the Defence Force Order, but it is possible that its significance as a stand-alone obligation may not be fully appreciated by all members of the Defence Force. They may not understand that breach of the obligation may be an offence under s 39 of the Armed Forces Discipline Act 1971. The sanction for failure to comply with this aspect of the Defence Force Order is not mentioned in the Order. Certainly those who have been guilty of the unauthorised disclosure of official information in the Defence Force were not deterred.
- Defence Force Order 5/1999 - "NZDF External Relations" - is concerned with unauthorised disclosures of information or news to the media. It does not address the issue of unauthorised disclosure to persons outside the media, such as Opposition members of Parliament. To this extent it might convey the impression that disclosure to such persons is not prohibited.
- Production of a simple, straightforward statement in booklet form which among other things described clearly the obligation on all Defence personnel to avoid the unauthorised disclosure of official information to anyone, whether or not in the media, would promote understanding of responsibilities. Hence our advocacy of a code on the Public Service model covering both general behavioural issues and the handling of official information.
- We have examined the provisions of Defence Force Order 20/2000 relating to the Protected Disclosures Act 2000. We are satisfied that it contains appropriate procedures for the implementation of the Act, but we have the following concerns -
82.1 The introduction to the Order does not make it clear that it reinforces the obligation to protect official information from unauthorised disclosure;
82.2 The procedure for making a protected disclosure within the Defence Force may not sit comfortably with the command structure; and Defence personnel may not be aware of its existence and potential significance.
(ii) Ministry of Defence standards for handling official information
- The Ministry of Defence has issued the following relevant manuals to its staff -
83.1 Security Manual: Policy on Information Security
83.2 Security Manual: Document Security
83.3 Corporate Manual: Ministerial and Information Requests
83.4 Corporate Manual: Official Information Act Procedures
83.5 Legal Compliance Manual: Official Information
83.6 Public Service Code of Conduct
83.7 Human Resources Manual: Code of Conduct
83.8 Corporate Manual: Communication with the news media
83.9 Corporate Manual: Information Technology Management and Security
83.10 Protected Disclosures: Policy and Procedures.
- We have examined the provisions of these Manuals. We are satisfied that in each case they contain clear standards for the staff of the Ministry. There has been no suggestion that these standards are not understood by Ministry staff.
FOOTNOTES
- K J Scott, The New Zealand Constitution, 1962, p 140.
- The Armed Forces "cannot be regarded as a uniformed version of other departments of state" because of the intensity of personal and hierarchical relationships that are developed to ensure success in operations. Consequently "loyalties are much sharper than in an administrative department": Thornton LW, "Comment On Major Loorparg's Review of Defence Organisation" in Looparg T. "Defence Reorganisation: A New Approach to Change." Public Sector Research Papers Vol.2, No.1, 1981, p 1.
- cf. Defence Force Order 32/1994 - "The Privacy Act 1993 - New Zealand Defence Force Procedure and Practices" - referred to in our report of 13 December 2001, paras 30-31, 41 and 46.1. To the extent that there was some doubt as to whether paragraph 13(a) in that Order was in the requisite mandatory form we recommended that consideration should be given by CDF to amending it to include a clear prohibition on access to or use of personal information unless required for a lawful purpose.
