Govt refusal of inquiry into Afghan death claims 'invalid', 'unlawful'

Rodney Harrison QC, Deborah Manning and Richard McLeod announce they have taken High Court action against the Government over alleged deaths in Afghanistan. Photo / Anna Leask

The government was "unlawful", "unreasonable" and "in breach of natural justice" in its decision not to hold an inquiry into claims SAS troops killed Afghan civilians in 2010, say lawyers for the victims.

This morning lawyers Deborah Manning, Rodney Harrison QC and Richard McLeod announced they had filed an application for a Judicial Review in the High Court at Wellington, in response to the government's stance on the alleged incident.

Allegations of civilian deaths were made in Hit & Run, a book by investigative journalists Nicky Hager and Jon Stephenson, released in March.

As a result Manning, Harrison and McLeod became the legal representatives for the families of the alleged victims and asked the Attorney General and Government for a full and independent inquiry into the event.

Authors Nicky Hager, left, and Jon Stephenson during the launch of their book, Hit & Run. Photo / Mark Mitchell

The government referred the decision-making to the Chief of Defence, who subsequently refused the inquiry.

The legal team this morning provided the Herald with a copy of their application, which outlines their case against the government.

They are seeking a Judicial Review under the Defence Act 1990, the Armed Forces Discipline Act 1971 and the New Zealand Bill of Rights Act 1990 in the matter of "decisions not to investigate alleged wrongdoing on the part of the New Zealand Defence Force in Afghanistan".

They revealed they were acting on behalf of three applicants, made up of groups of villagers from the area where the event - Operation Burnham - occurred.

On the villagers' instructions the trio have filed the application, which is two-pronged.

Firstly, they are suing the Prime Minister, Minister of Defence and Cabinet and the New Zealand Defence Force both in New Zealand and Afghanistan.

Secondly, they are suing the Chief of Defence.

The application states the in March 2017 the government decided to refer the allegations made in Hit & Run to the Chief of Defence "for decision (by him) whether any further action.... was warranted".

"Other than the referral... the New Zealand Government (in particular the Prime Minister, Minister of Defence and Cabinet) took no steps to investigate or to cause an inquiry and investigation to be made into the Operation Burnham allegations," the court application reads.

"On or before 30 March 2017 the (Chief of Defence) provided the Minister of Defence, and in turn Cabinet, with advice .... that based on the information he had considered he did not "consider that the obligation to conduct an internal Defence Force inquiry into Operation Burnham had been triggered.

"On or about 3 April 2017 the New Zealand Government... accepted and adopted the (Chief of Defence's) decision and/or further decided not to conduct an independent inquiry into or any other investigation of the Operation Burnham allegations.

"The referral to Chief of Defence decision and/or the refusal to hold an independent inquiry, or alternatively both decisions combined, amounted to or alternative brought about a refusal or failure on the part of the New Zealand Government and in particular the Minister of Defence to exercise discretion under the Inquiries Act to establish an independent inquiry into the Operation Burnham allegations and/or to address and determine on the merits the requests for an independent inquiry."

The application further states that "overall" the government "failed" to exercise in a "lawful and proper manner" discretion as to an independent inquiry.

"Accordingly, the refusal to hold an independent inquiry was unlawful and/or unreasonable, and/or in breach of natural justice and invalid," it said.

The villagers are seeking four things.

They want a declaration from the High Court that the refusal to hold an independent inquiry was "unlawful and/or unreasonable, and/or in breach of natural justice" and accordingly, invalid.

They want an order "quashing the refusal" to hold such an inquiry.

They want an order directing an inquiry into Operation Burnham be held.

And they are seeking costs from the government pertaining to the application for the review.