Reports and Publications

• Hunn Review
  • Contents
  • Executive Summary
  • Chapter 1
  • Chapter 2
  • Chapter 3
  • Chapter 4
  • Chapter 5
  • Chapter 6
  • Chapter 7
  • Chapter 8

Within this section

• State Services Commissioner's Review, December 2001 and Inquiry by Judge Advocate General, March 2002
• Constitutional and Legal Setting
• National Security Requirements and the Roles of other Departments

Hunn Review: 30 September 2002

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Chapter 2

Other matters to be taken into account

1. There are a number of other matters which the TOR direct should be taken into account or which could have a significant impact on the outcome of this review.

State Services Commissioner's Review, December 2001 and Inquiry by Judge Advocate General, March 2002

2. Simultaneously with the review of accountabilities and structures, the Government announced the undertaking of two other reviews concerned with specific matters (see Annex A). The first of these, referred to as the "Ansell/White Review", dealt with the performance of the NZDF in relation to expected standards of behaviour and was released in December 2001.
3. As in the case of the Controller and Auditor-General's report this review also found that the context in which it was carried out required more broadly based comment either to explain why certain things had happened or to suggest how they might be avoided in future. Following discussion with me it was agreed that Mr Ansell and Mr White would identify in their conclusions any organisational matters that might be taken into account in this review.
4. In view of the importance of the comments they have made I have reproduced relevant extracts from the Ansell/White document at Annex C. All of these issues are relevant to the scope of this review and I have attempted to address them in making my own suggestions for the future.
5. When it became apparent that the inquiry by the Judge Advocate General had been delayed to the point where its findings could not be reasonably considered, the Minister instructed by letter of 11 March 2002, that consideration of its findings should be removed from the TOR for this review.

Constitutional and Legal Setting

6. While I have not been asked specifically either to look at the constitutional provisions relating to defence or to suggest a revision of the Defence Act 1990, it is impossible to consider the issues which are the subject of this review without reference to both. In the event it has not been necessary to comment at length because the Government now has available to it two excellent legal opinions arising from these inquiries. The first, by the Crown Law Office, has been reproduced as an appendix to the Ansell/White report and the second, a paper I commissioned from the New Zealand Centre for Public Law, is attached to this report at Annex F. Other relevant contemporary judgements are those of the late Mr Justice Heron and the Court of Appeal concerning the disbandment of the Air Combat Force. A summary of these decisions is provided at Annex G.
7. As far as the Constitution is concerned there is no room for doubt that both the military and civilian members of the defence system are responsible and accountable to the Government of the day through the Minister of Defence. While the differences between the two are recognized in a number of ways there is no question that for all practical purposes the manner in which they should relate to the Minister is identical. The military profession has its own distinct traditions and values which are crucial in recruitment, in training and in the field, but it cannot claim a "higher loyalty" which distinguishes it from other servants of the Crown. Equally, while the NZDF is not a government department and the Ministry is, the ethos which determines their relationship with the Government is the same and Ministers should have the same expectations of both in respect of service and support. It follows, therefore, that the same conventions which apply elsewhere in dealings between Ministers and their senior professional advisers should apply to the defence system also.
8. One aspect of the Constitution to which I should refer is the precept that there should be "civilian control of the military." This is a principle deeply embedded in our constitutional arrangements but it is interesting how it has been interpreted at different times. The interpretation of the Strategos Report that led to the 1990 Act (and thus to the separation of civilian and military activities into two organisations) would imply that civilian public servants are the instrument of this constitutional principle, as the agents of the Minister. This interpretation has been widely rejected but most particularly has been rejected by the Armed Forces, both in this country, and in New Zealand's strategic partners. Interposing a civilian official, as an agent between political control and the Armed Forces, could create significant legal problems. It potentially diffuses both direct political accountability for control of armed forces, and the legal command of armed forces, which must be exercised by a military commander who is accountable for the actions of combatant subordinates under the Geneva Conventions. This is particularly emphasized in terms of the CDF's command responsibility.
9. For my own part, while I fully agree that the constitutional principle of civilian control is an essential and permanent component of our defence system, I see it as being exercised by the Minister, Cabinet and Parliament and not by public servants. Both civilian and military defence officials enjoy equal status as servants of the Minister -one does not control the other, one should not predominate over the other. Their skills are complementary and should be fused in a partnership.
10. The importance of this debate becomes apparent when one examines the 1990 Act. If the mainspring of that Act was the idea that the Constitution required a separation of civilian and military functions, then in my opinion the premise was false. If one accepts that "civilian control" means "political control," there is no constitutional barrier to the integration of these functions so as to attain the Government's objectives of cooperation and jointness.
11. The point then becomes one as to whether it is necessary to revise the Act to achieve the outcomes of this review. A decision on that can only be taken after Ministers have considered all the material presented in this report together with advice they will receive subsequently. In response to my request the New Zealand Centre for Public Law has enumerated the steps that could be taken within the existing legislation. I have also set out a possible programme of practical measures in Chapter 8 of this review. It will be seen that these steps, alongside the many other Governmental and organizational decisions that could be made without having to amend the 1990 Act, could add up to considerable progress towards the Government's goal. That is certainly the strong view of several of the Government's senior advisers: they would be particularly concerned if a fundamental revision of the Act would delay progress which is urgently needed. The counterpoint to that is the Select Committee's majority view that the Ministry of Defence and NZDF should be combined into one organization. That cannot be done without revising the legislation. An alternative might be to take the integration option as far as possible within the current legislation and make whatever specific amendments may be needed to avoid the more obvious anomalies. If this were done as a first step, the assessment could be made in the medium term whether a process of integration that stopped short of structural unity, enshrined in legislation, was sufficient for the Government's purposes.
12. As far as specific legislative amendments are concerned, I note the Government's Defence Policy Framework has taken up the Select Committee's suggestion and envisages a review of the Defence Act to cover the deployment of NZDF personnel overseas on warlike operations. The New Zealand Centre for Public Law has pointed to other issues e.g. the lack of powers for the Secretary to obtain the information required to meet the responsibilities of the position, (the CDF has reported to me that the NZDF has similar information access problems,), the ability of each Chief of Staff to report directly and separately to the Minister rather than through the CDF, where I think amendments might be desirable.
13. The point of law that has had the strongest emphasis in the course of this review is the requirement of the CDF to command each of the three Services "through" its Chief. (This is also reflected at the next level up with the power of the Minister to control the NZDF "through" the CDF). It has been put to me that this requirement can undermine the authority of the CDF when a Service Chief "goes round" him to the Minister or to another member of the Government, or when a Service Chief is reluctant to accept the CDF's direction. The CDF's inability to hire and fire his subordinates when he deems this necessary to enable him to fulfil his responsibilities, is not in accordance with current management practice. The restriction on the CDF's command powers is also at odds with management accountability. But as Professor Palmer has pointed out in his opinion, "the seriously coercive power of the military suggests that there are possible dangers in concentrating the power of military command in one professional position alone, no matter how well chosen and qualified the individual." It should be noted that among New Zealand's strategic partners, military command has been concentrated in one professional position alone. Some of these countries, including the United States have equal concern for the "seriously coercive power of the military being concentrated in one person", but have nonetheless preferred the high trust that comes from this approach rather than what they might see as the "divide and conquer" stratagem of playing Chiefs of Staff off against a CDF. This is a question which only Parliament is able to answer definitively.
14. Perhaps the point could be met not by seeking to amend this part of the Act but by ensuring all parties observe meticulously the procedures in the current legislation which provides that in most instances communication up or down the chain of command should be "through" the CDF. Where exceptional circumstances apply and a Chief of Staff wants to speak to the Minister this should be with the knowledge of the CDF and I would suggest, in the CDF's presence. Greater use might also be made of the Minister's power to issue directives and the CDF's power to issue Defence Force Orders, to reinforce their authority.

National Security Requirements and the Roles of other Departments

15. One of the desired outcomes of this review is "defence policy and operational advice that meets New Zealand's national security requirements, interests and obligations." I have attempted to suggest ways in which the Ministry of Defence and NZDF could improve their performance in this respect -the principal one being the integration of all the processes which contribute to the coordination of defence policy and planning. However, the two organizations cannot on their own achieve this outcome, they must work closely with others to produce the optimum result for the Government.
16. I have spoken to the Chief Executives of two of the other departments with defence-related responsibilities and to the Deputy Secretary of the third. The emphasis in our conversations and in their submissions was on their relationship with the Ministry and NZDF rather than on their own organizations. I would suggest that any future work on the defence system should also include the roles and responsibilities of these other agencies (e.g. it will be recalled the Controller and Auditor- General has commented in his report on the role of the Treasury).
17. The most urgent concerns I have encountered in this area are those stemming from the growing awareness of the globalisation of security and the expansion of its scope into areas which touch the ordinary citizen ever more closely. It is suggested that we lack machinery to deal with this phenomenon and that we should be thinking about processes which ensure the coordination of all government agencies whatever the type of threat to our security. This has been coupled with an argument that unlike our strategic partners we do not have permanent policy and strategy systems in place to bring together the Government and its principal advisers both in respect of national security overall and defence specifically. I will be making suggestions in both areas later in this review but much more work needs to be done on them. Material has been prepared in the course of this review that will be available to those who will be following up the question of our future national security requirements.

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