What is the purpose of the Inquiry?
In April 2018 the New Zealand Government announced that an inquiry into Operation Burnham and related matters would be held. Operation Burnham was undertaken in Afghanistan by NZSAS troops and other nations’ forces operating as part of the International Security Assistance Force in 2010.
In 2017 the book Hit & Run was published which contained a number of serious allegations against New Zealand Defence Force (NZDF) personnel. The Inquiry aims to establish the facts in connection with the allegations, examine the treatment by NZDF of reports of civilian casualties following the operation, and assess the conduct of NZDF forces.
The Inquiry Terms of Reference can be found here.
Who is undertaking the Inquiry?
Who else is working on the Inquiry?
Counsel Assisting - The Inquiry members are supported by two counsel: Kristy McDonald ONZM QC and Andru Isac QC. Junior counsel are engaged as required.
Secretariat team - The Inquiry is supported by a secretariat team, managed by Anna Wilson-Farrell. The team is made up of several advisors and analysts, information management advisors and administrative support.
Review of document classification - The Inquiry has engaged two counsel to review classified material and test the claims to classification. They are David Johnstone, partner at Meredith Connell, and Ben Keith, Barrister at Thorndon Chambers.
Specialist advisors - Elana Geddis, Barrister, Harbour Chambers, Alison Cole, Specialist Advisor Human Rights.
Experts - The Inquiry is also assisted by a range of experts in different fields, as and when required. Some of these experts include:
When is the Inquiry expected to report back and what is its budget?
Under the Terms of Reference announced in April 2018, the Inquiry was due to provisionally report back within 12 months of its establishment. Cabinet agreed a budget of $2 million at that time. Late last year the Inquiry requested an extension and additional budget after deciding on the process it had determined for its investigation. As a result, Cabinet granted an extension for the Inquiry to report back by 31 December 2019 and agreed an additional $5 million in funding to allow it to complete its work.
As has been signalled in Progress Reports the Inquiry has experienced some delays. The Inquiry is now in the final stages of its work. Following the completion of the process of hearing evidence and reviewing documents, the Inquiry produced a draft report that was provided to core participants in February 2020 on a confidential basis. Core participants provided submissions on any aspect whether from a natural justice perspective or otherwise.
The planned private hearings on the Inquiry’s confidential draft report as detailed in Minute No 22 were cancelled due to COVID-19. The Inquiry instead invited further written submissions which the Inquiry has now received.
While the Inquiry has been able to move forward with a significant amount of work remotely while New Zealand was at Alert Level 4, the Inquiry is only able to progress some matters now that New Zealand has moved to Alert Level 3 and can access classified material.
As a result of COVID-19, the Inquiry sought, and has been granted, a short extension to its reporting date of 29 May 2020. The report is now due to be delivered to the Attorney-General by 17 July 2020. The Inquiry will complete its work within the existing budget.
What kind of process will the Inquiry run?
The Inquiry is determined to get to the truth of the matter. In doing so it has had to adopt a procedure that will help and not hinder that aim.
This is one of the most complex inquiries ever conducted in New Zealand in procedural terms. A number of witnesses need confidentiality when giving evidence and a considerable volume of secret and top secret documents need to be examined.
The Inquiry therefore has focused on developing a process that strikes a balance between protecting information and witnesses and meeting the principles of natural justice and open justice.
The Inquiry wants to ensure its work is as transparent as possible to enhance public confidence in the Inquiry’s processes and highlight the issues at stake. To that end, the Inquiry will hold public hearings organised around modules on important topics and release periodic updates on its progress. Progress reports can be found here.
A detailed explanation of the Inquiry’s procedures can be found in Ruling No 1.
What will the public hearings cover?
The first public hearing on the modules was held in Wellington on 4 April 2019. Presentations and submissions covered the political and military context of the current conflict, including New Zealand's involvement. The Inquiry also heard from NZDF on the issue of location of the events on 21/22 August 2010 (i.e. Operation Burnham).
A second hearing was held in May (see presentations and transcript here) and a third hearing in July (see presentations and transcript here). A fourth hearing was held in September and October (see Minute No 19 and Minute No 20). Updated information on all hearings can be found here.
What is a core participant?
Under the Inquiries Act 2013(external link) an inquiry can designate any person to be a core participant.
Core participants are determined by the inquiry to have (or possibly have), played a direct and significant role, have a significant interest in a substantial aspect, or may be subject to explicit or serious criticism during the inquiry or in the report. Every person designated as a core participant has the right to give evidence and make submissions to the inquiry, subject to any directions of that inquiry as to the manner in which evidence is to be given and submissions made.
Who are the core participants?
The Inquiry determined, in Minute No 1, that the core participants are Hit & Run authors Nicky Hager and Jon Stephenson, three Afghan villagers, and the New Zealand Defence Force.The villagers withdrew as core participants on 18 June 2019. See the media statement issued by the Inquiry in response here.
Does the Inquiry have the power to make people talk to it?
Yes. Under the Inquiries Act (external link)an inquiry may issue a witness summons in writing to any person, requiring that person to attend and give evidence before the inquiry.
Does the Inquiry have the power to make people give it information?
Yes. Under the Inquiries Act(external link), an inquiry may require any person to produce any documents or things in that person’s possession or control if deemed relevant.
How will the Inquiry manage the confidentiality of information provided?
Classified information will be processed and stored in accordance with the Government’s Protective Security Requirements.
In addition, in Appendix 1 of Minute No 4, the Inquiry’s Witness Protocol describes the procedures for protecting sensitive witnesses who require confidentiality.
What if any, of this information will be released so the public can understand the matters under scrutiny?
The Inquiry has instituted a review process in relation to relevant material which has been classified on national security grounds. Two legal counsel are assisting the Inquiry to review the classified material and to test the claims to classification. If no agreement can be reached by the reviewers with the relevant government agency, the Inquiry will determine the matter.
Some of the material originates from New Zealand’s overseas partners such as the United States and NATO which must provide consent for the material to be released to the Inquiry.
Based on the analytical work carried out to date, the Inquiry’s present assessment is that many of the important relevant documents will likely remain classified and will not be able to be disclosed for legitimate reasons involving New Zealand’s national security and diplomatic relationships.
In total, there are likely to be several thousand relevant documents for the Inquiry to consider.
The process for reviewing classified information is explained in a protocol which can be found here [PDF, 82 KB]. Minute No 3, Minute No 4 and Minute No 6 also set out the Inquiry’s views and decisions on this issue.
Material which has been disclosed under the protocol can be found here.
What information will be made public?
Inquiry Rulings, Minutes, submissions and any other appropriate documents are published on the Inquiry website.
Why are witnesses being interviewed in secret?
Many witnesses will need confidentiality when giving evidence to the Inquiry for a range of reasons. These include Afghan nationals, journalists’ sources, whistle-blowers, members of the NZSAS and intelligence and security agencies’ personnel. In addition, the Government’s Protective Security Requirements in relation to classified information also necessitates confidentiality for witnesses when giving evidence.
What steps are being taken by the Inquiry to talk to all relevant witnesses?
Counsel Assisting have been carrying out initial interviews with people who have relevant information. The Inquiry members will then undertake an evidential interview with the material witnesses under oath. This will not be done in public for the reasons set out in Ruling No. 1 (those reasons include risks to witnesses, and the need to ensure classified material and information is handled appropriately).
Can the Inquiry make findings of criminal activity or be able to recommend criminal proceedings against individuals?
The Inquiry, in common with all inquiries under the Inquiries Act, has no power to determine civil, criminal or disciplinary liability of any person. However, it may, if justified, make findings of fault and recommend further steps to determine liability.
Minutes are documents which set out the Inquiry’s decisions or directions on procedural matters. These aim to provide guidance to the Inquiry’s core participants and Crown agencies who have a significant interest in matters under scrutiny by the Inquiry. For example; Minute No 4 sets out how the Inquiry will gather information from witnesses. By way of comparison, Rulings deal with decisions on more substantive matters. For example; Ruling One confirmed the Inquiry’s overall approach to conducting its investigation.
Who can supply information to the Inquiry?
Anyone who believes they may have relevant information can contact the Inquiry. Contact details are listed here.
Can people provide information confidentially?
Where a person wishes to provide information in confidence that will be respected. We will discuss any concerns or needs you have about your safety, security or confidentiality and explain what protective measures we have in place to address these concerns. Any document generated by the Inquiry will not refer to individuals by name unless the information was provided openly.
What happens after I make contact?
Counsel assisting the Inquiry will contact you to discuss your concerns and in appropriate cases arrange a private confidential meeting with you. During discussions with counsel assisting any concerns or needs you have about your safety, security or confidentiality, can be addressed, as well as the nature of the information you can provide. We will also explain our processes and the next steps.
Will the judicial review being sought by counsel for Afghan villagers impact on the Inquiry?
Three people who have identified themselves as former residents of two villages in Afghanistan have filed proceedings seeking a review of the Inquiry’s Ruling No 1. They have also applied for an interim order suspending the Inquiry’s work until their substantive application for review has been heard. As is normal with such proceedings, the Inquiry as the decision maker will abide by any decisions the Court makes in relation to this.
In the meantime, in accordance with its obligations under the Inquiries Act 2013 and its terms of reference, the Inquiry is continuing with its investigation. Its focus remains on getting to the truth of the matter.
Update: Counsel for Afghan villagers discontinued these proceedings on 18 June 2019 when the villagers withdrew as core participants of the Inquiry.
Additional Q&As issued at the time of the Inquiry announcement in April 2018 can be found here.