'Secret inquiry' would not help public confidence, Operation Burnham hearing told

Holding a secret inquiry into an alleged cover up wasn't going to help public confidence, the inquiry into a controversial NZSAS raid has been told.

Lawyer Alan Ringwood said the majority of the mainstream media had come together to oppose the default secrecy provisions proposed for the Inquiry into Operation Burnham.
"If you have open justice, what you get is public confidence in the process. A private inquiry into an alleged cover up may not be enough to inspire public confidence."

Listing his clients, Ringwood noted it was "almost all of New Zealand's mainstream media" who were "actually competitors" yet had come together on a point of principle.

Ringwood's submission for the nation's media came in the second of a two-day hearing to set the rules for how the Operation Burnham inquiry would run.

Concerns over the classified and sensitive content of information and witnesses has seen the defence and intelligence establishment lobby for almost entirely closed hearings into the 2010 NZSAS raid.

The inquiry was set up to get to the truth of claims in the book Hit & Run, including allegations of "war crimes" by the NZSAS during the hunt for insurgents behind attacks on New Zealand forces.

The claims included an alleged "revenge" raid on a community in Tirgiran Valley which was said by authors Nicky Hager and Jon Stephenson to have left six civilians dead and 15 others wounded. NZDF say nine insurgents were killed.

Ringwood pointed to Supreme Court findings which endorsed the media's role as the surrogate for the public in matters before the courts. There were similar statements around the role of the media in the United Kingdom's inquiry into the Iraq war.

Both linked to the law under which the Operation Burnham inquiry was set up, which specifically referred to open justice and public interest as matters which had to be considered before information was withheld from the public.

"The media is the conduit through which the public receive information about these matters of public interest," he said.

Ringwood said it should be possible to make information available to the media - and public - if there were no reasons to withhold it.

He said media were not seeking to make public classified information, or to make public national security matters which needed to be heard privately.

He said it was accepted there was genuinely sensitive information which needed to be protected.

"That doesn't justify adopting a default private process for the inquiry… or keeping things private that don't need to be private."

Ringwood said there was a misconception a more open process would strike at the legislation's demand for efficiency. It was a clause included in the 2013 legislation because of Parliament's concerns over inquiry cost and time spiralling out of control.

"If there is additional cost in delivering open justice, that is not an unnecessary cost."

Earlier, NZDF's lawyer Paul Radich QC told the inquiry publicity around former NZSAS corporal Willie Apiata winning the Victoria Cross had impacted on his ability to operate as a fully-functioning member of the elite unit.

The claim was made when the defence force was challenged over its insistence for anonymity for NZSAS members and the blaze of publicity around Apiata.

Sir Terence Arnold, one of the inquiry chairmen, asked about Apiata. "That was a very public thing. He went back to Afghanistan."

Radich responded: "I understand, sir, his operational capabilities were then adversely affected."

Apiata was a corporal in the NZSAS who won the Victoria Cross for bravery under fire in 2004, while rescuing a wounded fellow trooper while under heavy fire. Apiata then rejoined the fight, which took place on an operation seeking out Taliban territory in Afghanistan.

Deputy solicitor general Aaron Martin said the highly sensitive nature of the evidence needed by the inquiry required special protection to keep it from being disclosed publicly.

The security of New Zealand and the benefit enjoyed from its international relationships was at risk, he said.

Martin, who was appearing for a range of government agencies including the intelligence services, said all classified material to be aired should be covered by a legal order suppressing airing or sharing.

Inquiry heads, Arnold and Sir Geoffrey Palmer, will consider evidence before setting rules for how the inquiry will operate. It has a reporting deadline of April although this may be extended.