The Inquiry submitted the report to the Attorney-General on 17 July 2020. Following authorisation by the Government, the Inquiry published the report on its website on 31 July 2020. To read the report, click here.
When did the Inquiry submit the report?
The Inquiry submitted the report to the Attorney-General on 17 July 2020. The Terms of Reference require the Inquiry to report to the Attorney-General.
The Government has now authorised the release of the report. To read the report, click here.
What was 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 aimed to investigate and establish the facts in connection with the allegations of wrongdoing on the part of NZDF personnel; examine the treatment by NZDF of reports of civilian casualties following Operation Burnham; and assess the conduct of NZDF forces in connection with Operation Burnham and related matters.
The Inquiry's Terms of Reference can be found here.
Who undertook the Inquiry?
Who else worked on the Inquiry?
Counsel Assisting - the Inquiry members were supported by two counsel: Kristy McDonald ONZM QC and Andru Isac QC. Junior counsel were engaged as required.
Secretariat - the Inquiry was supported by a secretariat, managed by Anna Wilson-Farrell. The Secretariat was made up of advisors and analysts, information management advisors and administrative support.
Review of document classification - the Inquiry engaged two counsel to review classified material and test the claims to classification. They were David Johnstone, Partner at Meredith Connell, and Ben Keith, Barrister at Thorndon Chambers.
Experts - The Inquiry was also assisted by a range of experts in different fields, as and when required. These experts included:
When did Inquiry report back and what was its budget?
The Inquiry submitted its report to the Attorney-General on 17 July 2020.
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 an initial budget of $2 million at that time. Late in 2018 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 was signalled in Progress Reports the Inquiry experienced delays due to a number of factors and was granted further short extensions until 31 March 2020 and subsequently to 29 May 2020.
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.
As a result of COVID-19, the Inquiry was granted, a short, six-week, extension until 17 July 2020. The Inquiry has completed its work within the existing budget.
What kind of process did the Inquiry run?
The Inquiry was determined to get to the truth of the matter.
This was one of the most complex inquiries ever conducted in New Zealand in procedural terms. A number of witnesses needed confidentiality when giving evidence and a considerable volume of secret and top secret documents needed to be examined.
The Inquiry therefore focused on developing a process that struck a balance between protecting information and witnesses and meeting the principles of natural justice and open justice.
The Inquiry wanted to ensure its work was as transparent as possible to enhance public confidence in the Inquiry’s processes and highlight the issues at stake. To that end, the Inquiry held public hearings organised around modules on important topics and released 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 did 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 the New Zealand Defence Force on the issue of location of the events on 21/22 August 2010 (i.e. Operation Burnham).
A second hearing was held in May 2019 (see presentations and transcript here) which provided a perspective on how the conflict in Afghanistan has impacted on the lives of people who live there and provided an opportunity for non-government core participants to respond to presentations on military and political matters from Public Hearing Module 1, as well as rules of engagement. A third hearing in July 2019 (see presentations and transcript here) explored the international legal framework and the Joint Prioritised Effects List (JPEL). A fourth hearing was held in September and October 2019 (see Minute No 19 and Minute No 20) on the alleged “cover-up” allegations. Information on all hearings can be found here.
What is a core participant?
Under the Inquiries Act 2013(external link)(external link) an inquiry can designate any person to be a core participant.
Core participants are determined by an 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 were the core participants?
The Inquiry determined, in Minute No 1, that the core participants were 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.
Did the judicial review being sought by counsel for Afghan villagers impact on the Inquiry?
Three people who identified themselves as former residents of two villages in Afghanistan filed proceedings seeking a review of the Inquiry’s Ruling No 1. They also applied for an interim order suspending the Inquiry’s work until their substantive application for review had been heard.
Counsel for Afghan villagers discontinued these proceedings on 18 June 2019 when the villagers withdrew as core participants of the Inquiry.
Did the Inquiry have the power to make people talk to it?
Yes. Under the Inquiries Act 2013 (external link)(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.
Did the Inquiry have the power to make people give it information?
Yes. Under the Inquiries Act 2013(external link)(external link), an inquiry may require any person to produce any documents or things in that person’s possession or control if deemed relevant.
Minutes are documents which set out the Inquiry’s decisions or directions on procedural matters. These aimed 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 would gather information from witnesses. By way of comparison, Rulings deal with decisions on more substantive matters. For example: Ruling No 1 confirmed the Inquiry’s overall approach to conducting its investigation.
How did the Inquiry manage the confidentiality of information provided?
Classified information was handled 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 described the procedures for protecting sensitive witnesses who require confidentiality.
What information has been released so the public can understand the matters under scrutiny?
The Inquiry instituted a review process in relation to relevant material which was classified on national security grounds. Two independent legal counsel were engaged to review the classified material and to test the claims to classification. Through this process a significant amount of previously classified information was made publicly available on the Inquiry's website and can be found here.
Only the key documents went through the classification review process – these were documents that the Inquiry considered needed to be made publicly available for the purposes of its report. Many documents disclosed to the Inquiry did not go through the process and remain classified and therefore subject to the Government's Protective Security Requirements.
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. Minute No 23 and Minute No 24 set out the final orders of the Inquiry relating to protection of information regarding the Inquiry’s draft report, interviewees, vulnerable witnesses including Afghan villagers, the Inquiry’s internal deliberations, and classified and confidential material.
What information has been made public?
Inquiry Rulings, Minutes, submissions and any other appropriate documents are published on the Inquiry’s website.
Over 400 previously classified documents have been published on the Inquiry's website and in public hearing bundles as a result of the Inquiry's classification review process. These can be found here.
Why were witnesses being interviewed in private?
Many witnesses needed confidentiality when giving evidence to the Inquiry for a range of reasons. These include Afghan nationals, journalists’ sources, whistle-blowers, current and former personnel from the New Zealand Defence Force and intelligence and security agencies. In addition, classified material had to be handled in accordance with the Government’s Protective Security Requirements.
What steps were taken by the Inquiry to talk to all relevant witnesses?
Counsel Assisting carried out initial interviews with people who had relevant information. The Inquiry members then undertook evidential interviews with the material witnesses under oath. This was not 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 was handled appropriately).
In total, the Inquiry, or legal counsel on the Inquiry’s behalf, heard evidence from 159 witnesses (some of whom were interviewed multiple times), including all NZSAS personnel that were on Operations Burnham and Nova who were able to be spoken to. In addition, Counsel Assisting spoke to a number of other individuals who had information relevant to the Terms of Reference.
Could the Inquiry make findings of criminal activity or recommend criminal proceedings against individuals?
The Inquiry, in common with all inquiries under the Inquiries Act 2013, had no power to determine civil, criminal or disciplinary liability. However, it could, if justified, make findings of fault and recommend further steps to determine liability.
Additional Q&As issued at the time of the Inquiry announcement in April 2018 can be found here.