Thursday, October 27, 2022

This is not how you build trust

One of the recommendations of the Operation Burnham inquiry into the killing of civillians in Afhganistan by the SAS was the establishment of a new Inspector-General of Defence to conduct such inquiries in future. Two years on, the government has finally gotten around to introducing the required legislation to the House. Unfortunately, rather than reducing distrust around NZDF and its dirty cover-up habit, it seems purpose-built to encourage it.

The bill is based on the existing provisions for the Inspector-General of Intelligence and Security. Like the IGIS, the new IGDF will likely be dealing with classified information, so you'd expect some secrecy provisions. But the new bill goes well beyond the current IGIS framework in its secrecy provisions, which seems excessive.

The first problem is with the confidentiality clause, which forbids IGDF staff from disclosing material relating to an investigation. This is actually weaker than the equivalent clause for IGIS, in that it only covers material certified as non-discloseable by the Minister. But look at the grounds on which the Minister can make that certification: some definitions which mirror sections 6(a) and 6(b) of the OIA (so unproblematic), plus a new one covering information likely to prejudice "the continued performance of the functions of the Defence Force or the Ministry". Effectively this is the creation of a new OIA withholding ground, and its not hard to see how NZDF would view any disclosure of its wrongdoing as prejudicing its performance (given the Burnham coverup, its clear they already think that).

The new IGDF will also have a new power to make wide-ranging gag-orders on "sensitive" information - supposedly to protect "privacy or condidentiality", but is actually about protecting classified or "sensitive" information, a term which includes that new withholding ground of "making NZDF feel bad". This sortof mirrors the powers of a commission of inquiry, but isn't one we grant to the IGIS, or to the IPCA, Ombudsman or Privacy Commissioner, and it seems purpose-designed to enable NZDF cover-ups. Just ask for an inquiry, get their Inspector-General to make some orders, and suddenly everything is neatly swept under the carpet! Given that one of the aims of this bill is to rebuild trust in NZDF, this seems like exactly the wrong way to go about it.

Breaching such an order will be a criminal offence, but unlike the IGIS legislation, there's no inbuilt protection for disclosures in Parliament. Which kindof tells you who NZDF thinks is in charge here.

One bit of good news is that the IGDF - unlike IGIS - will be covered by the Ombudsmen Act, and therefore the OIA. But new information relating to IGDF investigations held by them and other agencies will be excluded from the definition of "official information". This isn't so problematic for IGDF material while inquiries are ongoing. But for completed inquiries, and for other agencies, it means that their response to an inquiry and its recommendations - e.g. summaries, legal opinions, reports on where the hell that file went or how people in Defence HQ were operating their own parallel filing systems - will be forever secret. Which, again, given the trust issues, seems counterproductive.

Overall, it looks like NZDF has taken exactly the wrong lessons from the Operation Burnham inquiry. Where there was a clear need for more transparency to rebuild trust, they have opted for secrecy at every turn. Unless the bill is significantly modified to correct this, we should treat their new "Inspector-General" as just an agent for further coverups.