The High Court has refused to allow lawyers representing Afghanistan villagers to seek further information from the government inquiry into Operation Burnham.
The inquiry follows allegations published in the book Hit and Run. Photo: supplied
The inquiry is investigating allegations that New Zealand soldiers killed six Afghanistan civilians during a military operation in 2010 and the military then covered up what happened.
Those allegations were the subject of the book 'Hit and Run' by Nicky Hager and Jon Stephenson.
In two weeks time the High Court in Wellington will hear an application on behalf of the villagers asking that the Inquiry's closed private hearings into matters relating to them be put on hold until after a judicial review of the Inquiry takes place in July.
On Monday their lawyers went to the High Court asking it to require the Inquiry to release information about what hearings it will hold between now and then.
Doctor Rodney Harrison QC told the court several attempts had been made to obtain information from the Operation Burnham Inquiry, including writing to the Inquiry itself and to Crown Law.
"We're here arguing it, but a simple request which could easily have been complied with was turned into an all or nothing contest, where instead of saying 'we can give you part of what you're asking for' they have said 'you'll get nothing'."
However the Solicitor-General Una Jagose told the Court the villagers' lawyers already had sufficient information to argue their case and questions raised at Monday's hearing were an attempt to "get behind" the confidentiality orders the Inquiry has made.
The lawyer supporting the Inquiry, Kristy McDonald QC told Justice Ellis the Inquiry had undertaken two contextual interviews to learn more about the background against which Operation Burnham occurred and would not be doing any more until May.
She said the Inquiry would engage with whistleblowers, journalists' sources and past and present members of the military and would be receiving classified material relating to sensitive matters of state.
"By answering the [questions raised by the villagers' lawyers] identification of witnesses will occur even if they're not named.
"Those with knowledge of relevant matters will be able to deduce the names of witnesses quite readily... The information sought ...goes beyond the protections the enquiry has put in place and [is] not needed.
In a decision released yesterday Justice Ellis has ruled that requiring the Inquiry to answer questions gives rise to a real risk that confidential and sensitive information might be disclosed, in breach of the Inquiry's ruling.
"Even if the questions can be reframed to avoid [that] difficulty, the information sought is not necessary in order for the applicants to advance their application for interim relief."
Justice Ellis acknowledges there could be some practical benefit in generalised information about numbers and timings of hearing to be made available to the villagers, but she says that is a matter for the Inquiry.
"It is not a reason to compel the Inquiry to provide such information and I decline to do so."
The next hearing takes place on 30 April at the High Court in Wellington.
