There are three key statutes that govern the roles, functions and procedures of the Ministry and the NZDF. These are:
- The Defence Act 1990;
- The State Sector Act 1988; and
- The Public Finance Act 1989.
There is also several other statutes dealing with specific defence activities.
The Defence Act 1990 is the principal legislation governing defence matters. It reaffirms the historical prerogative of the Crown to raise and maintain armed forces, and the principle of ministerial authority over the Armed Forces. The Act provides for the NZDF, comprising the Armed Forces under the command of the CDF. It also provides for the Chief Executive of the Ministry to be the Secretary of Defence.
The Defence Act 1990 defines the respective roles of, and relationships between, the Minister of Defence, the Chief of Defence Force, and the Secretary of Defence. The Chief of Defence Force is appointed by the Governor-General, who is Commander-in-Chief of New Zealand, representing the Crown. Executive power, however, is vested in the Cabinet which exercises authority over the armed forces. The Chief of Defence Force exercises command of the Navy through the Chief of Naval Staff, the Army through the Chief of General Staff, and the Air Force through the Chief of Air Staff, together with the command of any joint force through a joint force commander or through the chief of staff of any service.
The Defence 1990 Act was enacted in response to the findings of the Defence Resource Management Review of 1988 (the 'Strategos Report'). This report recommended a separation of the policy and operational (service delivery) functions of the Ministry and the NZDF. The new Ministry was to be responsible for development of policy, overseeing programmes and budgets, providing corporate services, and auditing performance and capability. The NZDF would separately be responsible for operations, plans and the administration of the three Services. As a result of the 1990 reforms we now see the Ministry and the NZDF as separate entities reporting to the Minister of Defence, but operating to some degree in an integrated manner.
The State Sector Act 1988 provides the administrative framework for the operation of the Public Service. The Act establishes the accountability relationship between departmental chief executives and their ministers. The Act also devolves responsibility to the chief executives for running their departments and managing departmental resources with minimal central input control. The Act lists the departments covered by its provisions. The Ministry is among the departments listed under the Act. The NZDF is not listed, as it is constituted under the Defence Act 1990.
The Public Finance Act 1989 changed the basis of State-sector financial management from a focus on inputs to a focus on outputs and outcomes. It is intended to deliver greater State-sector financial accountability. Cash accounting was replaced by accrual accounting, and a standard and comprehensive system of reporting to Parliament was introduced. Departments are required to produce an annual report based on Generally Accepted Accounting Practice (GAAP) and audited financial statements. Both the Ministry and the NZDF operate in terms of the Act.
Chief Executives and ministers are given delegated authority to spend up to levels specified in the Cabinet Office Manual in respect of expenditure concerning the operation of their departments. The Secretary of Defence is also given additional authority concerning the acquisition of capital equipment for the NZDF.
The Minister is responsible for other defence legislation as follows:
- Armed Forces Canteens Act 1948;
- Armed Forces Discipline Act 1971;
- Court Martial Appeals Act 1953;
- Military Decorations and Distinctive Badges Act 1918;
- Military Manoeuvres Act 1915;
- Patriotic and Canteens Funds Act 1947;1 and
- Visiting Forces Act 1939.
An amended Visiting Forces Act is essential before any Status of Forces Agreement (SOFA) between New Zealand and another country can be brought into effect. The existing Act dates back to 1939, applies only to members of the Commonwealth, and effectively lacks the legislative ability to supersede key jurisdictional issues that any co-signatory would insist upon. As the Act stands this means that any authoritative body in New Zealand currently retains the right to deal with a member of a visiting force as it would any other visitor to the country, a SOFA notwithstanding. This situation has effectively precluded New Zealand from concluding SOFAs with a number of our key defence partners. A new Visiting Forces Bill has been drafted and has been circulated for comment to all relevant government departments. The Bill itself has been progressed to priority level 3 on the current legislative programme, which means that it should come before a select committee before the end of the year.
The Volunteer Employment Protection Bill will be returned for select committee consideration as soon as possible. This Bill will go a long way towards providing protection of civilian employment for NZDF part-time volunteers who are required for operational service.
The Minister of Defence has a number of powers enshrined in legislation. These are:
Power of Control
Section 7 of the Defence Act 1990 gives the Minister of Defence 'power of control' over the NZDF, exercised through the CDF, for the purposes of meeting the Minister's 'general responsibility' in relation to the defence of New Zealand.
Powers of Requisition
In accordance with Section 10 of the Defence Act 1990, where the Minister is satisfied that there is an actual or imminent emergency involving the deployment of any part of the Armed Forces outside New Zealand, the Minister may authorise the CDF to requisition any ship, vehicle, aircraft, supplies or equipment to be used in connection with that emergency. In addition, any land, buildings or installation may be similarly requisitioned. The Crown is liable to pay compensation to the owners of any property requisitioned under this process.
Provision of Public Services and Assistance to the Civil Power
Section 9 of the Defence Act 1990 states that the Armed Forces may be used, in New Zealand or elsewhere, to perform any public service or to provide assistance to the civil power in time of emergency. Key aspects of these powers are:
- Specific written authorisation - the specific written authorisation of the Minister is required for the use of the Armed Forces to provide public services in connection with any industrial dispute, and the Minister must inform Parliament of that authorisation;
- Assistance to the civil power must be authorised by the Prime Minister, or next most senior Minister - assistance to the civil power involves law enforcement measures in situations where there is a likelihood that members of the Armed Forces may be required to use force. Any assistance to the civil power must be authorised by the Prime Minister, or next most senior Minister, acting on information supplied by the Commissioner of Police or a Deputy Commissioner of Police. The authorising Minister must be satisfied that there is a real or imminent emergency in which any person is threatening, causing or attempting to cause death, serious injury or serious harm to persons, or destruction or serious damage to property. Any assistance provided by the Armed Forces remains under the control of the Police, and the authorising Minister must inform Parliament of the authorisation.
- Time limit - any authorisation given in connection with an industrial dispute or assistance to the Police lapses after 14 days unless Parliament passes a resolution extending the authority for a period as specified in the resolution.
Delegation of Powers
The Minister may delegate to the CDF any of the Minister's powers, duties or functions that are delegated to the Minister under the Defence Act or any other enactment.
Armed Forces Canteen Council
The Minister is the chairperson of the Armed Forces Canteen Council, and appoints the other members of the Council. The Council is empowered to set up and operate amenities in Service establishments. The main purpose of the Armed Forces Canteen Council is to provide quality retailing and cafeteria services for NZDF personnel. The CDF chairs the Council in the absence of the Minister, and in recent years this has been the usual practice.
New Zealand Cadet Forces
The Minister approves recognition of new cadet units and disbands units on the recommendation of the CDF. The Minister also appoints cadet officers, authorises promotions and releases, and approves the award of the Cadet Force Medal.
The Secretary of Defence
Section 24 of the Defence Act 1990 describes the responsibilities of the Secretary of Defence. These responsibilities are in addition to those functions imposed by the State Sector Act 1988, which apply to all chief executives of New Zealand government departments. The Secretary's responsibilities, as detailed in Section 24, are to:
- Be the principal civilian adviser to the Minister and other ministers of the Government;
- Formulate advice on defence policy in consultation with the CDF;
- Prepare defence assessments 'from time to time' for the Minister, in consultation with the CDF. The assessments are to include different options capable of meeting the Government's defence policy objectives;
- Procure, replace or repair equipment representing significant military capability for the NZDF; and
- Arrange for the assessment and audit of the NZDF in relation to any function, duty, or project, and of the Ministry in relation to any major capital equipment procurement project.
The Secretary, pursuant to the provisions of the State Sector Act 1988, is employed under a fixed term contract for a term no longer than five years.
The Secretary of Defence - Mr Graham Fortune
Graham Fortune has been Secretary of Defence since September 1999.
He began his public service career with the Department of External Affairs, after graduating from Otago University with a Master of Science Honours degree. He was posted to Cook Islands, Canada and Papua New Guinea before spending three years as Director of Management Support with the State Services Commission in Wellington.
Mr Fortune became the Director of South Pacific Division in Foreign Affairs in 1980 and from 1981 to 1987 was Assistant Secretary responsible for Corporate Services and also for the South Pacific.
In 1987 he was appointed Ambassador and Permanent Representative to the United Nations in Geneva, Switzerland. In this capacity he was also New Zealand Trade Negotiator during the GATT Uruguay Round and Ambassador for Disarmament at the Conference on Disarmament.
In 1990 Mr Fortune became Deputy Secretary of Foreign Affairs, responsible for security and political affairs, and then served as High Commissioner to Australia from 1994 to 1999. On his return from Canberra he was the Special Ministerial Adviser on East Timor before becoming Secretary of Defence.
The Chief of the Defence Force
Under Section 25 of the Defence Act 1990 there are two principal roles of the CDF. First, he is the principal military adviser to Government. Second, he is responsible for the carrying out of the functions and duties of the NZDF and its efficient, effective and economic management. Specifically, the CDF is responsible for the:
- Operational planning and deployment of the NZDF or elements thereof on operational service;
- Efficient, effective and economical management of the NZDF;
- Provision of advice on military operational issues and the internal management of the NZDF;
- Procurement of minor capital equipment (that is, equipment with a total purchase price of less than seven million dollars); and
- Evaluation of military operational effectiveness.
In meeting his responsibilities the CDF has: command of the Navy through the Chief of Naval Staff, command of the Army through the Chief of General Staff; command of the Air Force through the Chief of Air Staff, and command of any joint force through a joint force commander or through the Chief of Staff of any Service.
The CDF is appointed by the Governor-General. Under new arrangements applying to the appointment of CDF and Service Chiefs announced in October 2001, the State Services Commissioner convenes an interview panel after seeking advice from the current CDF and Secretary of Defence. The Minister of Defence receives the panel's recommendations and Cabinet then decides on which candidate to recommend to the Governor-General-in-Council for the appointment. The terms and conditions of that appointment are specified in written Terms of Reference from the Minister of Defence.
Other duties and functions of the CDF
The CDF also has the following responsibilities and powers:
- Chairing the Chiefs of Staff Committee;
- The power, in the name and on behalf of the Crown, to:
- enter into any contract or arrangement with any other person; and
- purchase/ lease/dispose of/ trade in any goods, services, assets or land under control of the NZDF;
- Fixing the terms and conditions of members of the NZDF regarding:
- Defence Force members' remuneration; and
- civilian staff personnel policy, including an EEO programme and the negotiation of any collective employment contracts.
The CDF may make representations to the Minister, or, in exceptional circumstances, to the Prime Minister, in respect of the exercise of command by, or the exercise of any functions imposed upon, the CDF.
Unlike State Sector Chief Executives, the performance of the CDF is not subject to review by the State Services Commissioner. The NZDF is not bound by the provisions of the State Sector Act 1988, as the NZDF is not an organisation listed in the Schedules to that Act. The CDF does have statutory responsibilities to ensure that the NZDF complies with relevant New Zealand legislation, being accountable to the Minister of Defence. The CDF receives Terms of Reference from the Minister.
The Chief of the Defence Force - Air Marshal Bruce Ferguson OBE, AFC
Air Marshal (AM) Bruce Reid Ferguson was born in Napier on 14 July 1949 and was educated at Tauranga Boys' College. He joined the RNZAF in 1969 and commenced training on No 53 Pilots Course. He was posted to Auckland in March 1970 where he completed a Basic Sioux course, an Iroquois conversion course and a tour on No 3 Squadron.
In September 1971, AM Ferguson was posted to Singapore for a tour on No 41 Squadron - Iroquois Flight. On return to New Zealand in February 1973, he was selected as ADC to the Governor General.
In July 1974, AM Ferguson commenced No 27 Flying Instructor Course at Wigram and then completed a tour as a Pilot Training Instructor on both fixed wing and rotary wing aircraft. He was posted to No 3 Squadron SAR Detachment as Detachment Commander in April 1977 for nine months. After a year as an instructor at Central Flying School, he was attached to No 17 Junior Command Staff Course in February 1989.
On completion of the course, he returned to Central Flying School. In February 1980, AM Ferguson was posted to Singapore as Operations Flight Commander flying Iroquois helicopters. He returned to the Central Flying School two years later and was appointed Officer Commanding Central Flying School where he was also the leader of the RNZAF 'Red Checkers' formation aerobatic team for two years. From May to September 1984, he filled the post of Staff Officer Flying Training before being posted to Air Staff as Personal Staff Officer to the Chief of Air Staff. In April 1986 he was appointed Director of Air Force Officer Postings and Appointments.
From May 1988 to June 1989, AM Ferguson attended the United States Air Force Air War College at Maxwell Air Force Base. On his return to New Zealand he was posted to the position of Officer Commanding Operations Wing at RNZAF Base Auckland. On 29 October 1991, he was promoted to the rank of Group Captain and appointed to the position of Base Commander, RNZAF Base Auckland. He held this position until December 1994. He then attended the Royal College of Defence Studies in London in 1995, before returning to take up the appointment of Assistant Chief of Air Staff (Personnel) in February 1996. On 17 November 1997 he was promoted to the rank of Air Commodore and appointed to the position of Assistant Chief of Defence Force (Personnel) on 21 November 1997. On 25 February 2002 he was appointed to the position of Chief of the Defence Force.
AM Ferguson was awarded a Queen's Commendation for Valuable Service in the Air in 1977, the Air Force Cross (AFC) in 1984; the New Zealand 1990 Medal; and made an Officer of the Order of the British Empire (OBE) in 1994. He holds a current Black belt in the Korean martial art of Tae Kwon Do. He is married to Rosemary and they have three children; Brooke, Natalie, and Sarah.
- Responsibility for this Act is shared with the Minister of Veterans' Affairs.