Auckland Barrister calls Judges comments about Family Court criticisms “unprecedented”

7:47 am today


The principal Family Court judge has fired back at criticisms from a new independent group that is pushing for changes to the way courts deal with violence against women.

Wellington Family Court and mediation room.

Wellington Family Court. Photo: RNZ / Alexander Robertson

Judge Laurence Ryan said the allegations from the Backbone Collective that the courts were failing to protect women were unfair and based on flawed assumptions.

The group, which launched last month, has sent a list of 160 questions to the government, demanding answers to why the system is letting women down.

But Judge Ryan said a number of the questions were premised on erroneous interpretations and he was concerned Family Court judges were being painted as uncaring and unprofessional.

In a three page statement he said many of the questions had already been considered by parliament around family violence or had been dealt with by parliament recently.

“Unfortunately a number of the questions the collective now wants answered are premised on erroneous or flawed intepretations of, and assumptions about, the current legal framework in which the Family Court operates.”

It was untrue the Family Court was secret or closed, he said.

“In fact the Family Court has been increasingly open to new media since law changes in 2004 and 2008 and many of its proceedings can be reported publicly.”

Judge Ryan also disupted concerns from the collective that the court was unaccountable and minimised allegations of family violence during custody disputes.

“It particularly concerns me that Family Court judges are being painted unfairly as uncaring and unprofessional and as putting people in harm’s way.

“This risks undermining public confidence in the courts and the impartial administration of justice, especially among people who may desperately need the court’s help during a distressing period of their lives,” Judge Ryan said.

Judges took an oath to do right to all manner of people under the law, he said.

“It is understandable that not all people who are enduring broken, painful or damaged relationships and who come to court seeking resolution or justice will go away satisfied.

“But a combative debate that pits the judiciary against those who rely on the court’s help, guidance and intervention is not conducive to improving outcomes, especially for children.”

In response to Judge Ryan’s comments, The Backbone Collective said the Family Court needed to listen to the experiences of the women who use it.

Co-founder Deborah Mackenzie said 61 percent of the 310 women who had completed its survey so far said they did not feel safer after going through the court system.

“We really thought that people in authority and in the Family Court would want to know from the women that use their service whether it was working well or not,” she said in a statement.

Judge’s comments ‘unprecedented’

Auckland Barrister and former family court lawyer Catriona MacLennan said she had never known a judge to be so outspoken.

“It’s extremely unusual that the principal Family Court Judge has responded to the Backbone Collective in this way. I think it would be just about unprecedented actually.”

She agreed with The Backbone Collective that the Family Court was not doing enough to protect women and children from family violence.

“I am contacted by women from all around New Zealand who are horrified by what happens in the Family Court, how they’re not believed when the explain the violence that they and the children have been subjected to.”

Access to information a “fundamental right”

In the second of Newsroom’s “watchdog” interviews, Shane Cowlishaw speaks to the Ombudsman, Judge Peter Boshier, about his work and why information is essential to democracy.

After sitting down with Judge Peter Boshier, you can tell he is steered by a strong moral compass.

Mental health, prisoners, whistle-blowers, and freedom of information are on his radar and he speaks with a piercing gaze about it all.

As New Zealand’s chief ombudsman, one of his main roles (as an infamous Australian politician once put it) is to “keep the bastards honest”.

Another politician, New Zealand’s own Gerry Brownlee, once warned Boshier to stay within his boundaries.

This left him unfazed – or perhaps even more committed to his approach of drawing attention to unacceptable conduct.

“I am clear that I’ve always worked within my boundaries and always will and the subject of the Minister was inconsequential…most people don’t know what the Minister meant, I certainly don’t.”

They are tough words from a man who has never shied away from a difficult task.

In his previous role as principal Family Court judge, Boshier inherited an institution steeped in secrecy.

But he worked to open up and demystify a court that was generally closed to the public, granting media more access and improving its image.

That approach served him well when he arrived at the Ombudsman’s office in late 2015, as he had inherited a lemon.

Finding an office hamstrung by an avalanche of complaints and processes mired in the past, Boshier realised he needed to make some drastic changes.

That included streamlining the complaints process by taking it digital and trying to solve complaints at the initial stage.

Reducing the backlog was important. The overwhelming workload had lent to a perception of impotency regarding the office, which in turn led to a lack of respect.

Since 2010/11, the Ombudsman’s workload has increased 44 percent.

But last year the office closed 178 more complaints than it received and work began on chomping into those overdue.

This, Boshier says, will herald a new age for the organisation.

What does the Ombudsman do?

The Ombudsman handles a variety of tasks, it turns out.

Firstly, there are the complaints.

Alongside people upset about the Official Information Act (OIA), people can complain about the conduct of state sector agencies.

Prisoners are also regular complainants to the Ombudsman, although Boshier has succeeded in getting “non-big-ticket” complaints dealt with at the source by Corrections.

As he describes it, the Ombudsman’s Office is the final option for many.

“Most importantly, it’s often a place you can come when you’ve tried all else. First of all, it’s a last resort.”

While complaints are a large part of the office’s work, there are other roles.

Whistle-blowers can approach for advice, while the Ombudsman makes sure New Zealand is fulfilling its role under the United Nations Convention on the Rights of Persons with Disabilities.

“I will continue fearlessly to draw attention to conduct that we think is unacceptable and people will continue to react to that by either accepting it, or not.”

They also monitor places of detention, both prisons and mental health units, and have increased the number of inspectors doing so.

Recently the Ombudsman released a report into the use of tie-down beds and restraints in prison.

It wasn’t pretty reading; the five cases included one prisoner who was restrained for 16 hours a day over 37 consecutive nights.

Boshier’s office will undertake follow-up visits to check if the recommendations made have been followed, but he is unwilling to express an opinion.

“I think my role is to draw public attention to the issues…I’ve got to be clear I’m an impartial watchdog, must never be drawn into expressing a point of view but rather making sure people are aware.

“I will continue fearlessly to draw attention to conduct that we think is unacceptable and people will continue to react to that by either accepting it, or not.”

One thing Boshier will comment on is the level of care for those suffering from mental health issues in prison.

It is “not good enough” currently, and he is mulling up an investigation into the situation.

The OIA – a “fundamental right”

Then, of course, there’s the Official Information Act.

Created in the early 1980s as a tool to provide access to information for the public, a version of the OIA is found in most robust democracies across the world.

But recently, New Zealand’s version has become far less useful than it once was.

The Ombudsman is the arbiter of the Act, deciding on complaints about the withholding of information and the tardiness of replies.

Boshier, who describes the OIA as “a fundamental right in democracy”, says a psyche had developed within the public service that the Act was an afterthought.

This is wrong, he says, and that message has been sent loud and clear.

An investigation into the state of mental health care in prisons is being considered. Photo: Shane Cowlishaw

Gaming the system by withholding or delaying the release of information is also unacceptable and Boshier’s latest push is on organisations who wait the full 20 working days before responding.

This is not what the Act specifies and the Ombudsman will take a dim view on those that do so without legitimate reason.

“I’m preaching the gospel that it’s not acceptable if you’ve got the information readily available to leave it to the last minute for release, that’s not what the Act says you can do and if it has been acceptable up to now, it’s no longer.

“My view is if you take this as an election year and an issue is topical it’s wrong for a reply to be delayed to the last minute when the public interest might require a discussion on it then and there, that’s what democracy should be not putting it off as tactics for three weeks and I think our duty will be to draw attention to delay that has been deliberate or tactical.”

The media, the opposition, and the public have their role to play as well, however.

Broad, wide-ranging requests did nothing to help the problem and often contributed to a lack of respect given to the OIA within government departments.

But regardless, Boshier is adamant there has been a “sea change” in how the Act has been viewed.

This has been led from the front by a reduction in the time the Ombudsman took to deal with a complaint.

This, alongside the decision to publish league tables of each agencies performance, has Boshier convinced the OIA will soon have its teeth back.

“I think in Wellington circles now it’s accepted that the culture has changed dramatically and I think everyone knows we now mean business.”

English has treated us like morons over SAS allegations

Trust us: We believe the Defence Force says PM Bill English.

Trust us: We believe the Defence Force says PM Bill English.

OPINION: The fact that our military conducted an operation in a foreign place in which innocent civilians were killed has clearly not grabbed the public’s attention.

I can sort of see why. The claims were made by Nicky Hager and Jon Stephenson in their book Hit & Run published with fanfare a couple of weeks ago.

The breathless launch and the dramatic allegations of possible war crimes in a situation where our Special Air Service (SAS) soldiers were clearly in a sticky physical and moral situation was always going to meet with a less than enthusiastic reception.

The authors also left themselves wide open by making a mistake which could be used to dent the credibility of their whole book even though the error was hardly serious.

Incidentally I made a mistake about the mistake last week.

Claims by Nicky Hager and Jon Stephenson are being treated like fake news.


Claims by Nicky Hager and Jon Stephenson are being treated like fake news.

I said the writers got the names of the villages wrong but it appears the names are correct although that is disputed in some quarters.

What appears to have happened is they placed the villages in the wrong location and used satellite photos of the wrong locations and fitted locations from their narrative into them.

However it’s important to note that the sources for the book are excellent and Hager and Stephenson have clearly got the right date and operation.

In deciding no inquiry is warranted Bill English has dismissed the allegations, after a minimal review,  as so much fake news, and treated the public like idiots.

To suggest a fairly inconsequential error scuttles the story is throwing up a smokescreen. Remember the New Zealand Defence Force (NZDF) claimed the book contained major inaccuracies but has yet to come across with any others.

Prime Minister Bill English and Defence Minister Gerry Brownlee have satisfied themselves the book is inaccurate and that the NZDF has nothing to answer for given the current information.

This is on the basis of a briefing by correspondence and a sort of show-and-tell by the NZDF with the aid of a classified video of the operation.

English, and Brownlee, who we need to remember backed his dysfunctional Earthquake Commission all the way after the earthquakes, in public anyway, knew exactly what sort of criticism this would draw because it was obvious.

It comes down to the military being a judge in its own cause. NZDF chief Lieutenant-General Tim Keating may well have presented a perfectly accurate and balanced account of what occurred on that August night but why should we take English’s word for it? Scrutiny of this sort must be seen to be done properly.

It’s true the police often investigate themselves when allegations are made but at least the police complaints process has the oversight of a High Court judge.

Essentially English has accepted an army rebuttal which apparently doesn’t say exactly who was killed and injured, how much damage was done and doesn’t know if a gun on a helicopter gunship malfunctioned or not. He apparently has dismissed the fact the NZDF showed little interest in investigating complaints itself and ignored the fact it tried to cover up the potential deaths by twisting the conclusion of a report by other agencies.

To say Keating is independent because he wasn’t involved in the operation and that we can’t examine every SAS operation is, of course, ridiculous.

As an ex-SAS commander, Keating is hardly independent and no-one is asking for every SAS operation to be reviewed.

English has decided this on the politics. His polling would be showing that very few New Zealanders care about the allegations and are prepared to trust the NZDF hierarchy. But sometimes politicians need to do the right thing just because it’s the right thing to do.

The Prime Minister appreciates the episode has not lost him any brownie points so far but doesn’t appreciate this will come up again, perhaps in a catalogue of missteps which show he is a flawed leader.

So we have a cover up by the army and now it looks the Government is colluding in it.

This could have been handled so much better. I never  thought a major inquiry was needed to get to the truth here.

The book contains allegations backed by solid evidence. English and Brownlee could have conducted their review with the help of a couple of independent people who the public could trust. A couple of retired judges for instance. Maybe, dare I say, a couple of journalists.

A report addressing each of the allegations in Hit & Run should have been done and publicly released. It didn’t need to be a long and extensive exercise.

But English has assumed he can treat the public like morons and perhaps he is right.

Hit & Run: Why doesn’t NZDF start by answering this question? Pundit


NZDF has changed it’s position on civilian casualties and never explained itself. It has two ministers with different versions. How does any government agency get away with this?

There’s so much to digest in the confusion surrounding the book Hit & Run.

But there is a key shift in the position of the New Zealand Defence Force that has become lost in the chaos swirling around the accusations made.

For six years, the NZ Defence Force maintained that claims of civilians casualties were “unfounded”.

In relation to the raid, it has repeatedly referenced an investigation by two Afghan government ministries and the International Security Assistance Force and stated: “The investigation concluded that the allegations of civilian casualties were unfounded.”

By almost any common definition of the word, “unfounded” means it is not true. Baseless. Fiction. False.

And yet, now we know differently. And we know this because the Chief of Defence, Lieutenant-General Tim Keating (a former NZSAS commander) now says it is possible civilians were killed.

In his press conference last week, he said: “There may have been (civilian casualties), rather than ‘unfounded’. I’m not going to get cute here and say it’s a twist on words but it’s the same thing – ‘unfounded’, ‘there may have been’. The official line is that civilian casualties may have occurred.”

There’s nothing cute about the shift in position and this is why.

The question of civilian casualties arose in a New Zealand context in 2011, when then-defence minister Wayne Mapp was asked if they had occurred.

“That’s been investigated and proven to be false,” said Mapp in a 2011 TVNZ interview. Asked if he was satisfied no civilians had been killed – and if he had seen reports to support his belief – he said: “I am satisfied around that.”

This is important because Mapp is definite on this. His position came at the same time as NZDF made its first public statement, citing the investigation and saying claims of civilian casualties was “unfounded”.

That’s when the definition of “unfounded” was established. It meant no civilians had died. You can bet that interview was watched by NZDF commanders and they saw his rock-solid, cast-iron assertion that there were no civilian casualties.

Mapp’s position is in lock-step with NZDF’s at that stage. We all knew what “unfounded” meant, because Mapp had told us. NZDF also knew, unless (incredibly) it had decided not to watch any of the media around the previously unknown role of the NZSAS in the raid.

If Mapp had gone too far, then this was NZDF’s chance to correct its minister and the public.

But it did not.

In 2014, one of the Hit & Run authors Jon Stephenson produced a documentary for Maori Television on the raid. This is when NZDF’s definition of “unfounded” started to come apart.

Mapp’s successor Jonathan Coleman was then asked if civilians were killed and he said “you probably can’t rule out” civilian casualties from the Apache gunship air support. NZDF referred any queries to its statement of three years earlier – the “unfounded” statement.

So right then we had a new definition. In 2011 “unfounded” meant no civilians died and in 2014 it meant they might have.

Forget about Hit & Run – this was NZDF’s opportunity to clear matters up.

But it did not. It let the conflicting definitions of “unfounded” – defined by its ministers’ statements – to continue through to 2017 when Hit & Run was published.

When the book was launched, NZDF released the statement afreshsaying “allegations of civilian casualties were unfounded”.

Almost a week later, Keating got up in front of the press to explain that “unfounded” didn’t mean what almost all dictionary definitions said it meant. No, he said, it meant something else.

In making that case, it raises the question as to what it knew at the time Mapp was briefed. It also begs the question as to why it did not clear the matter up when it became clear Mapp had – it appears inadvertently – misled the New Zealand public.

Put to one side about whether civilians were actually killed, if revenge motivated the raid (a claim I personally find incredibly hard to accept), if international laws were broken and come back to this six-year position put by NZDF.

Government agencies – military or not – really should not be able to get away with misleading their ministers.

There was no doubt as to the question of civilian casualties among the NZSAS. It was a point of conversation among the elite unit in the months after the raid and through 2011 when Mapp went on television and said there were none.

Military leaders of those men should not underestimate the impact it has on soldiers when they see their ultimate political commanders making statements they know not to be true. And they knew, at the time Mapp was interviewed, that it was highly likely (if not certain) civilians had been killed.

I have reported on NZDF with some regularity. I visited the Bamyan base in Afghanistan where Tim O’Donnell – our first casualty of 10 in Afghanistan – served. I met men and women who likely served with him, albeit before the fatal attack in 2010.

The rank-and-file are good people who impress constantly. They are subject to high standards and strive to meet those. I believe those core values to be also present among those in the NZSAS I have met.

One other point. Among those fine men and women in uniform that I have had the privilege to meet and see at work in other countries have been those who are conscious their experiences have injured them in ways that can’t be seen.

There have been questions raised about the level of mental health support available to NZDF personnel. PTSD is real and it is affecting our returned service personnel.

When this issue arose in 2012, NZDF responded. In a statement, it said: “Recent criticism in the media about the Government’s lack of support for ‘shell-shocked’ soldiers is unfounded says the NZ Defence Force.”

Unfounded. There’s that word again. Looking back, I wonder which definition NZDF was using that time.

* This article also appears at the NZ Herald.

Addendum by the HRF

Actually, there was an earlier admission of casualties. In response to an OIA request in October last year, the Defence Chief, in a letter dated 15 June, but drafted earlier, says: “The 2010 raid in Baglan involved a suspected civilian casualty.”

The OIA response was drafted prior to the release of Hit and Run. Only one casualty was acknowledged but it was confirmed, not just that there is a “possibility” that civilians were killed.



Brian Rudman: We all deserve to know the truth about the 2010 SAS raids in Afghanistan

Brian Rudman is a NZ Herald feature writer and columnist.

 Prime Minister Bill English might have successfully stonewalled the clamour for a public inquiry into the 2010 SAS raids in Afghanistan if he and the military had been able to sell the lie that it was all the figment of the fevered imaginations of a couple of conspiracy theorists.

But Wayne Mapp, the National Government Defence Minister at the time of the raids, has effectively blocked that escape route. Dr Mapp says that “As a nation we owe it to ourselves to find out, to the extent reasonably possible, if civilian causalities did occur, and if they did, to properly acknowledge that.”

Mapp can’t be vilified as a leftist trouble-making peacenik. Before politics he was an Auckland University professor teaching commercial and international law. He was also a reservist major in the NZ Army, specialising in intelligence. Since 2012 he’s been a Law Commissioner.

Mapp was in Afghanistan at the time of “Operation Burnham” and wrote last week that he was fully briefed on the morning of the raid and “on the advice of the military professionals, I recommended that it proceed.”

He says he was told at the time that the raid had not achieved its stated aims, but it was not until 2014 he learned that civilians might have suffered, in particular, a three-year-old. Because of that, and author Jon Stephenson’s long experience covering the Afghan conflict, he said he agreed to be interviewed for the just-published book, Hit & Run by Nicky Hager and Jon Stephenson.

In it, an unnamed friend of Mapp’s quotes the Minister later confiding that the raid was “our biggest and most disastrous operation. A fiasco.”

Mapp has not denied the accuracy of this report. Or the book. Indeed he says it is possible that the Defence Force and the Hager-Stephenson accounts “are reconcilable.”

However, playing the academic, he also rather fancifully proposes the truth might be uncovered without the “necessity” of a full inquiry. He suggests instead, the Government make diplomatic approaches for information to the Afghan government “and trusted NGOs on the ground”.

This is rather naïve from a former minister of defence who says he first discovered there might have been civilian casualties by watching Stephenson’s 2014 documentary on Maori TV.

In rejecting an inquiry, English says that Hit & Run is a “wildly inaccurate piece of journalism.” This after a home movies session with the “independent” Chief of Defence Force, Lt General Tim Keating, of carefully edited clips from the US helicopters involved in the controversial night-time, killer raids!

To suggest the military are independent bystanders is risible. In October 2015, Keating had to publicly apologise to Stephenson for a press release issued by his predecessor, attacking the accuracy of his 2011 Metro magazine article alleging SAS troops had passed prisoners to local Afghan authorities known to use torture.

Stephenson sued for $500,000 over the claim he’d invented an interview with a top Afghan police official and, after a long legal battle, won an undisclosed settlement.

To suggest the military are independent bystanders is risible.

At the time of the 2011 press release, then Prime Minister John Key, sounding very much like English today, said “I’ve got no reason for the NZDF to be lying, and I’ve found [Stephenson] myself personally not to be credible.”

Revelations in Hager’s 2011 book on the Afghanistan conflict can have earned him no friends within the military hierarchy either.

The military says everything smells of roses. Hit & Run suggests otherwise. It contains interviews with SAS soldiers involved in the raids, along with local villagers, Afghan officials, local journalists and many others. Out of necessity, they’re mostly anonymous.

What Mapp said of the 2014 television programme, is equally applicable today. “Stephenson also told me enough about what had happened for it to be believable that this could have occurred …”

We all deserve to know the truth.

And with US President Donald Trump now threatening to “handle” North Korea, the sooner we know what the SAS gets up to abroad the better. In 2011, well after the controversial raids, Key was reassuring us the SAS in Afghanistan had a purely “mentoring role”.

Yet in their book, Hager and Stephenson reveal a secret 2003 Ministry of Defence report proposing our SAS “integrate seamlessly” into a joint global strike force with our English-speaking allies, USA, UK, Canada and Australia. Next stop North Korea?

Dominion Post Editorial: Striking disagreement over SAS raid is more cause for an inquiry

Last updated 05:00, March 29 2017

Lieutenant General Tim Keating's press conference marked the first Defence Force acknowledgement that civilians may have ...


Lieutenant General Tim Keating’s press conference marked the first Defence Force acknowledgement that civilians may have died during a 2010 New Zealand-led raid on an Afghanistan village.

OPINION: The question of a bungled and even law-breaking New Zealand-led military raid in Afghanistan is still wide open.

A defiant press conference by Chief of Defence Force Lieutenant-General Tim Keating has not put the matter to rest. It has raised new questions, and will have left most New Zealanders hopelessly confused.

Both Keating and the journalists who have thrown attention onto the raid, Nicky Hager and Jon Stephenson, appear firmly convinced they have its details entirely right.

The crucial disagreement is over the manner and toll of the raid. Hager and Stephenson say six innocent people were killed and 15 wounded, but that no “insurgents” died, in a destructive and careless attack.

Keating, however, says nine insurgents were killed, while conceding only that it is possible a faulty weapon on a US helicopter led to accidental civilian deaths in one building.

“In all respects, the conduct of the New Zealand ground forces was exemplary,” he told reporters.

There are other conflicts, too, such as one over the precise location of the village attacked. The Defence Force says it was two kilometres south of the site that Stephenson has identified. It’s not clear how material this odd disagreement is.

Still, the two accounts do chime in important ways. Keating and the journalists agree the operation was called “Burnham”, that it happened on August 22, 2010, that one SAS soldier was injured by falling debris, and that civilians may have died.

No lay person can have much of an opinion on the important claims as they stand. They need rigorous, independent attention.

Keating cast himself, implausibly, as a source of such oversight. “It is not in our interest to push stuff under the carpet,” he said.

Certainly some New Zealanders will happily trust the Defence Force over a pair of freelance journalists. Yet the case is important enough, the gulf in the stories so wide, and the Defence Force’s record with information so streaky, that this must be investigated further.

Crucially, the former Defence Minister Wayne Mapp’s account of the mission as a “fiasco” is wildly different to Keating’s. Mapp has no reason to cause trouble. His remorse over the raid ought to be a decisive spur to the Government to launch an inquiry.

And when Keating said this week that civilians might have been killed in the 2010 raid, it was a blithe reversal of a stance held for years – last week, even – that such allegations were “unfounded”.

In truth, the Defence Force took years to reveal its lead role in the raid, even as other countries and media reported on it within days. That, too, was of a piece with its conduct during New Zealand’s deployment in Afghanistan – exemplified again this week by its three-year fight to stop a review of the deployment being made public.

So there is a need for a serious official interrogation of this raid. Prime Minister Bill English should order it promptly. Both the journalists and the Defence Force are confident and must welcome it. Both versions of this story can’t be right.

 – The Dominion Post

HRF Media Release: NZDF response to “Hit & Run”

It is obvious from yesterday’s briefing by the NZDF that there are two detailed versions of the events surrounding Operation Burnham; and they both can’t be true. That by itself is reason for an inquiry.


Although the NZDF has gone to great lengths to lay out an alternative scenario, it has to be remembered that none of those who spoke at the briefing were on the ground when these events took place. Whereas, the book details a quite different account of events as reported by SAS and PRT personnel in Baghlan Province at the time. It is entirely possible that NZDF HQ have not been told the true story – in other words, that a cover-up occurred not at HQ, but at the operational level.


Last week, the Human Rights Foundation got a long awaited Official Information response from the NZDF that for the first time acknowledged a civilian casualty. From the NZDF briefing, it is clear that there were in fact several civilian casualties and that the original ISAF report referred to this possibility Yet you can read to this day on the NZDF website that “the allegations of civilian casualties were unfounded”.


Another clear difference is that Hit & Run names everyone – who they were, where they lived, which families they were from and so on. There is none of that level of detail in the reports of the NZDF.


Defence Chief Keating said at the outset that in a matter of days from local and international intelligence services they knew who had attacked their patrol and the village they came from. After Operation Burnham, they are unable to name even one insurgent killed – they just define an insurgent as someone who “fitted a profile”. Surely they would want to know that they got the right people – otherwise, the job hasn’t been done. Yet it appears the NZDF approach is: if they were dead after the raid, they must have been an insurgent. This, of course, helps if you want to deny there were civilian casualties.


Finally, it’s now clear there were indeed civilian casualties of Operation Burnham and that NZDF knew this at the time, as they say civilians were being used as “human shields”. There are international protocols, which NZDF personnel are required to follow, that where civilians are injured in these circumstances they must search and care for the wounded. Even on the NZDF version of events, nothing was done for the wounded.


All this surely needs resolving. It may be the NZDF version of events that turns out to be the more accurate account. But there is a vast amount of information in Hit and Run that completely contradicts the NZDF account and it that information is verified, or even a significant part of it, NZDF needs to be held to account.


There was another report in the Herald yesterday about the entire Afghan operation and the fact that a critical report had been buried by the NZDF. If the Hit & Run version of Operation Burnham is verified, it will be clear that there is a culture of lack of accountability in the NZDF that needs serious attention. Surely, the only way to resolve these differing accounts is through a truly independent, judge-led Inquiry.



Peter Hosking


UN and Afghan Independent Human Rights Commission report confirms civilian casualties in NZDF Operation Burnham

The United Nations Assistance Mission in Afghanistan and the Afghan Independent Human Rights Commission have confirmed civilian casualties in Baglan province on the night of NZDF’s Operation Burnham ( August 22  2010).

In their Annual Report for 2010, UNAWA and the AIHRC (both independent of Afghan and NZ authorities) confirmed that 6 civilians died in Baghlan province that night:

“Several incidents were documented where aerial strikes caused civilian casualties in 2010. Out of 58 incidents that caused civilian casualties, 11 aerial attacks caused five or more civilian deaths. Investigations by ISAF, known to the AIHRC and UNAMA Human Rights, were undertaken in six of these 11 incidents…The five incidents included: on 5 August, 10 civilians killed in Nangahar province; on 24 September, 13 civilians killed in Laghman province; on 21 February, 32 civilians killed in Uruzgan province; on 11 October, 10 civilians killed in Helmand province; on 25 October, 10 civilians killed in Helmand province; and on 22 August, six civilians killed in Baghlan province.” (Fn 40 p24)

View the 2010 Annual Report here:

HRF Chairperson Peter Hosking says these independent reports make clear that NZDF denials of civilian casualties have no credibility and that the NZDF is covering up the incidents outlined in Hit & Run




NZDF admits to suspected civilian casualty in Baglan raid

Logo Media Statement

For Immediate Release

The New Zealand Defence Force (NZDF) has now admitted that that there was a civilian casualty in the SAS raid on Baglan, Afghanistan referred to in the book Hit & Run.

In a response to an Official Information Act request sent by the Human Rights Foundation of New Zealand (HRF) in October 2016, received by the HRF just 10 days ago on 15 March, the NZDF states: “The 2010 raid in Baglan involved a suspected civilian casualty.”

Elsewhere, including on its own website, the NZDF continues to deny there were any civilian casualties. The website states:

        “The New Zealand Defence Force stands by the statement it made dated 20 April 2011.

As the 2011 statement says, following the operation, allegations of civilian casualties were made. These were investigated by a joint Afghan Ministry of Defence, Ministry of the Interior and International Security Assistance Force (ISAF) assessment team, in accordance with ISAF procedures.

The investigation concluded that the allegations of civilian casualties were unfounded. The NZDF does not undertake investigations or inquiries into the actions of forces from other nations.  That was the role of the joint Afghan-ISAF investigation.

The NZDF is confident that New Zealand personnel conducted themselves in accordance with the applicable rules of engagement.”

Peter Hosking, HRF Chairperson, says the OIA admission reinforces the need for a thorough and independent inquiry into the revelations in Hit & Run. The inquiry should have all the powers of a Commission of Inquiry. “Given the involvement of two Defence Ministers and the former Prime Minister, it is essential that the inquiry is completely independent, not just of NZDF, but of the Government. The inquiry should be led by a senior or even international judge”.


Offiical Information Act Request and NZDF Response attached below:

Contact: Peter Hosking 021660275



Human Rights Foundation
of Aotearoa New Zealand
P O Box 106 343

21 October 2016

Defence Headquarters

Ministerial Services

Private Bag 39997


Dear Sir/Madam,                             By Email:

Official information request: involvement of NZ forces in Iraq and Afghanistan

This is a request for information from the Human Rights Foundation of Aotearoa New Zealand (HRF) relating to the role and activities of the New Zealand Defence Force, including but not limited to the New Zealand Special Air Service (NZSAS), in Iraq and Afghanistan since 2001. New Zealand has contributed towards coalition forces deployed in these regions, and during this period are alleged to have been involved several incidents which are potentially in breach of New Zealand’s human rights obligations under international law.

These potential breaches have been raised in national media and public discussion. Some examples include Jon Stephenson’s article Eyes Wide Shut in Metro Magazine in October 2010, and the Native Affairs – Collateral Damage documentary aired on Māori Television in June 2014, also featuring Jon Stephenson.

The concerns raised include the handing over of prisoners to Iraqi, Afghan and American forces where they are believed to have been subjected to torture; the killing of Afghan nationals, believed to include civilians, in Tirgiran, Baghlan Province, in August 2010; and the killing of Afghan nationals in a raid in Kabul on 24 December 2010.

The HRF request the following information pursuant to the Official Information Act 1982 (‘the Act’) regarding New Zealand forces in Iraq from 2003 to the present date, and regarding New Zealand forces in Afghanistan from 2001 to the present date:

  1. Any and all information relating to the detention of prisoners by New Zealand forces, or by other forces with the assistance of New Zealand forces, including:
  2. the number of detainees; and for each of these:
  3. the dates and reasons for their detention;
  4. whether they were detained by New Zealand forces or by other forces and if the latter, information pertaining to the extent or nature of the involvement of New Zealand forces;
  5. whether they were transferred to American, Afghan or Iraqi forces or otherwise released;
  6. whether New Zealand authorities are aware of any involvement, direct or indirect, that New Zealand forces may have had in the torture or mistreatment of detainees in Iraq or Afghanistan.
  1. Any and all information regarding the involvement or participation of New Zealand forces in actions resulting in the deaths or serious injuries of civilians or non-combatants, whether the result of direct actions by New Zealand forces or by the actions of other forces operating alongside, with the cooperation of or under the supervision of New Zealand forces. Such incidents include but are not limited to:
  2. The raid in Band e Timur, Helmand Province, in May 2002;
  3. The raid in Baghlan Province in August 2010;
  4. The engagement near Dahane Baghak, Bamyan Province, in August 2012; and
  5. The 24 December 2010 Kabul raid.
  1. In relation to the above noted incidents, the full results of any formal inquiries conducted into the actions of New Zealand forces, including the investigation by ISAF into the raid in Baghlan.
  1. Material including operational manuals, rules of engagement and other material relating to the treatment of prisoners, conduct of New Zealand forces and interactions or engagements with civilians and non-combatants.
  1. Information relating to the role and objectives of New Zealand forces, including the NZSAS, in these deployments.

If you are in need of any clarification or further information as to the above, please do not hesitate to contact me.

I understand that a decision on a request for information under the Act should be made within 20 working days of receiving that request. Please advise if you expect to require an extension of time for this request, pursuant to section 15A of the Act.

Yours faithfully,

Peter Hosking



NZDF Response Mar 17


Dairy tax and herd reductions would help achieve a zero-emission economy: report

A new cross-party report suggests emission charges for agriculture will be key to achieving a zero-emissions economy. (FILE)


A new cross-party report suggests emission charges for agriculture will be key to achieving a zero-emissions economy. 

Renewed calls to tax dairy emissions and cut the national herd by up to one third are among several ways to curb New Zealand’s greenhouse gasses, a new report says.

The Net zero in New Zealand report, commissioned from UK-based company Vivid Economics, stated almost half of our greenhouse gasses came from biological emissions.

However, Federated Farmers national vice-president Anders Crofoot said the idea of an emissions tax on agriculture had been considered previously, but was deemed too expensive.

Federated Farmers national vice-president Anders Crofoot said the idea of an emissions tax on agriculture had been ...


Federated Farmers national vice-president Anders Crofoot said the idea of an emissions tax on agriculture had been considered previously, but it was decided to be too expensive to implement.

The report suggested cutting overall animal numbers by 20-35 per cent, but Crofoot said this would be unpalatable to farmers and the economy until there was an alternative to dairying that would bring in similar cash.

Vivid Economics managing director John Ward said New Zealand was unique for having a low-carbon energy sector.

Agriculture accounts for the highest percentage of total emissions of any developed country.

“New Zealand looks today like a lot of other OECD countries are likely to look like in 20 or 30 years time. A lot of them have a carbon-intensive energy stock and are really heavily focusing on that to bring emissions down, and to look at agriculture later,” Ward said.

The research explored how to achieve a carbon-neutral economy by 2050, as set out by the Paris Climate Agreement.

Changing land use patterns would be among the biggest factors in deciding whether New Zealand succeeded or failed in achieving its emission goals, Ward said.

“That’s away from agriculture, towards horticulture, crops or forestry. Those trends are gradual, we’re not saying you have to go out and shoot your cows tomorrow.”

Three general recommendations were made to give policymakers a proposed blueprint for the future.

The first recommended the country focused on using low-cost emission-reduction opportunities but not make significant changes to land use. This would result in projected emissions reductions of less than one per cent each year leading up to 2050.

The second saw New Zealand make use of emerging technology and move away from pastoral agriculture, reducing animal numbers by up to a third, resulting in an annual reduction of 3-4 per cent in the same period.

Finally the ‘resourceful’ pathway relied on planting trees to offset residual emissions. An extra 1.6 million hectares of forest would reduce emissions by around 3 per cent annually.

 – Stuff