A fundamental principle of the rule of law is accessibility: for a law to be binding, the people subject to it must be able to know what it says. However, a recent Official Information Act (OIA) response from the New Zealand Defence Force (NZDF) confirms that this principle has exceptions.
According to the response dated June 2025, the NZDF maintains a specific subset of secondary legislation—Defence Force Orders made under section 27 of the Defence Act 1990—that is hidden from public view.
Here is the breakdown of the current situation, the justifications for it, and the significant legal problems it creates for those serving in the Armed Forces.
The Numbers
The OIA response reveals that the NZDF currently holds 23 pieces of secondary legislation that are not open to the public:
20 pieces are “Restricted.”
3 pieces are “Classified.”
The highest classification applied to a piece of legislation is “Top Secret.”
Furthermore, the NZDF stated that no previously restricted or classified legislation has been declassified. Perhaps most notably, the NZDF asserts that it has no obligation to present this secondary legislation to the House of Representatives, meaning these laws bypass the standard parliamentary scrutiny applied to regulations.
The Justification for Secrecy
From a military standpoint, the argument for classifying orders is rooted in operational security (OPSEC) and national security.
Defence Force Orders can dictate anything from administrative procedures to Rules of Engagement (ROE) and the handling of sensitive technology. If a piece of secondary legislation outlines specific tactical responses, intelligence-gathering methods, or the capabilities of specific assets, publishing it could undermine New Zealand’s defence capabilities or endanger personnel. In this context, the government argues that the safety of the realm supersedes the principle of legislative transparency.
The Problem: How to Follow a Secret Law?
While the justification may be operational, the consequence is legal friction. The “Rule of Law” dictates that the law must be intelligible, clear, and predictable.
The existence of “Top Secret” legislation creates a paradox: How can an individual be expected to comply with a law they are not permitted to read?
This is not an abstract question. It is particularly acute for members of the Armed Forces. Service members operate under a strict disciplinary code where “failing to obey a lawful order” is a specific offense. If a Defence Force Order carries the weight of law, a breach of that order can lead to disciplinary action or Court Martial.
This raises immediate due process concerns:
Clearance Levels: Most service members do not hold a top secret clearance and so cannot read some orders that apply to them.
Legal Defence: If a service member is charged with violating a classified order, how does their legal counsel access the text to prepare a defence? While clearances can be arranged, it adds a layer of complexity and opacity to the justice process.
Democratic Oversight: The NZDF’s confirmation that they do not present these orders to the House removes the standard check on executive power. Usually, the Regulations Review Committee can scrutinize secondary legislation to ensure it doesn’t overreach. Classified orders exist in a legislative shadow, immune from this review.
Insights and Implications for the Armed Forces
The revelation that 23 pieces of legislation are currently hidden from view – with the highest level being Top Secret – signals a need for vigilance among military legal practitioners.
For members of the Armed Forces, this highlights a precarious legal reality. You are subject to a dual system of law: the public statutes available on legitimate websites, and a shadow set of rules stored in secure safes.
What this means for the Service Member:
Knowledge is Protection: If you are in a sensitive role, ensure you have been briefed on all relevant standing orders, even those you cannot physically take with you. Ignorance of a specific classified order might be a defence in a Court Martial, but it is a defence you want to avoid having to rely on.
The Clearance Gap: There is a tangible risk where personnel may be subject to orders they are not cleared to view. This could create a potential defence to failing to comply with a written order because they cannot be known of even with due diligence. However, there may be other offences for which this defence is not available, and there is a principle that ignorance of the law is no excuse.
While national security requires secrets, the intersection of secrecy and legislation is fraught with risk. When laws go underground, the safeguards of democracy – scrutiny, accountability, and accessibility – are left behind.
The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.
