‘Serious concerns’ over secrecy in proposed military watchdog
Inspector-General of Defence small print puts investigative journalism at risk and raises fears human rights violations by soldiers could be hidden, writes
Anew military watchdog – created after the deadly Operation Burnham raid – is a recipe for ‘‘whitewash and brushing things under the carpet’’ and will make it more difficult to hold the Defence Force accountable, experts say.
They fear the small print in proposed legislation establishing the Inspector-General of Defence could see future human rights violations by soldiers kept secret – and make illegal the kind of investigative journalism that exposed the cover-up.
Details of the 2010 Special Air Services-led mission in Afghanistan became public when journalists Nicky Hager and Jon Stephenson wrote the book Hit & Run.
An inquiry later found a child was likely killed during the raid, elite soldiers misled ministers and the public about allegations of civilian deaths, and an insurgent was beaten while detained.
The probe, led by Sir Terence Arnold and Sir Geoffrey Palmer, recommended that an independent office of the Independent Inspector-General of Defence (IGD) be created to oversee NZDF and enhance accountability. The InspectorGeneral of Defence Bill is before a select committee, having had a first reading.
However, the new role can only look into operational incidents, and is specifically excluded from examining training, disciplinary matters and day-to-day administration.
Also out of scope are any matters which the NZDF is already investigating. Critics point out that other watchdogs – the Chief Ombudsman, InspectorGeneral of Intelligence and Security, and Independent Police Conduct Authority – are not prohibited from duplicating scrutiny, and this would allow military top brass to define the terms of how it will be investigated.
These limitations mean it couldn’t investigate scandals such as the Unimog crash which killed Masterton man Warren Carter, deaths in training like that of Sergeant Wayne Taylor, who broke his neck in 2017, or Lance Corporal Nicholas Kahotea, killed during a counter-terrorism exercise two years later.
It would exclude the watchdog from looking into widespread
problems of sexual assault in the workplace, a culture of bullying at Waiouru cadet school, drunkenness among staff or instances of personnel being linked to far-right extremists.
All of this is especially problematic because the Operation Burnham inquiry found NZDF misled ministers and the public, and that recordkeeping was poor.
The watchdog also isn’t allowed to recommend if an individual or the NZDF be prosecuted. And any information provided to the inspector-general cannot be used in any future prosecutions.
Critics have branded the move a ‘‘PR exercise’’ which will do nothing to improve public trust in the services. The New Zealand Council for Civil Liberties said it is a ‘‘recipe for whitewash and brushing things under the carpet, instead of ensuring adequate accountability for criminal acts’’.
‘‘The council believes that Parliament has lost sight of the all-important fact that people in the Defence Force have killed innocent people,’’ the council said in a blistering submission on legislation establishing the role.
‘‘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.’’
The submission added: ‘‘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.’’
The council – a voluntary, notfor-profit organisation which advocates to promote human rights – is also concerned the inspector-general will have powers to issue suppression orders to keep secret information about any of its investigations. That means details will only come from its own reports.
This runs contrary to the purpose of the bill – to increase transparency, the council said.
It would have a ‘‘chilling effect’’ on the media. ‘‘Notably, the investigative journalism which triggered the Operation
Burnham Inquiry, could be made illegal. Even without being invoked . . . anyone would be reluctant to invest significant effort into a story which could be easily suppressed.’’
It would prevent journalists writing stories like Stuff’s 2018 revelation that the NZDF had funded a special unit to fight Hit & Run’s claims.
Hager said Arnold and Palmer had strongly recommended an Inspector-General of Defence in their inquiry report.
‘‘But – to their shame – Defence staff have worked behind the scenes ever since to stop the creation of a strong and independent watchdog,’’ Hager said. ‘‘They want a system where mistakes and wrongful actions can continue to be hidden.’’
Defence Minister Andrew Little said it was intended that the inspector-general ‘‘not duplicate existing accountability functions’’ such as courts-martial or WorkSafe.
‘‘It is important that the bill is considered in full,’’ he said. ‘‘For example, the criticisms by the Council of Civil Liberties of powers to protect information fail to mention the constraints on the exercise of those powers.’’
A minister could limit information disclosure only if there was a risk of endangering someone or infringing privacy, prejudice security interests or foreign relations, he said.
The inspector-general can do so only where information is sensitive, in breach of a security classification or would prejudice the investigation, he added.
The bill is being considered by the foreign affairs and defence select committee.