Military historians say a law change will let the Defence Force off the hook for not keeping war records.

A change to the Public Records Act would let the NZDF seek an exemption from its legal duty to keep records if it is in multinational deployment.

A regulatory impact statement said recordkeeping overseas was "ad hoc and occurs rarely" anyway.

This change would relieve agencies of "the burden of non-compliance", until they found a solution, it said.

But historian Dr Aaron Fox said it would make war crimes harder to prove.

"That's an extreme example, but absolutely yes, without our New Zealand paperwork relating to what a New Zealander was doing, it does make it a lot more difficult," Fox told RNZ.

"We need to know why our people are overseas, we need to know where they are, what they are doing, and have the ability to hold those people accountable for their actions should something go wrong."

For this and other reasons, forces had been required to keep records of campaigns abroad for over a century, Fox said, citing a battalion in Crete in 1941 that burned all their paperwork as the Germans advanced.

"When they got back to Egypt the following month, they sat down and reconstituted as best they could ... they knew how important that was."

'Repatriation ... is ad hoc and occurs rarely'

The omnibus Regulatory Systems (Internal Affairs) Amendment Bill containing the exemption passed its first reading 188-1 in Parliament in August. It aims to amend 23 Acts to make the Department of Internal Affairs more efficient.

David Seymour introduced it to Parliament on behalf of Internal Affairs Minister Brooke van Velden.

The regulatory impact statement said the rationale for the law change was that in multinational arrangements often the records were kept by others - "created and managed in systems controlled by other jurisdictions, under their own legislation", so that a NZ entity could not meet its legal recordkeeping obligations.

"Repatriation of these records is ad hoc and occurs rarely."

It was better to "explicitly" recognise and manage this in order to "enhance confidence" in the system's integrity.

Operation Burnham was an example, it said.

In that case, dangerous deficiencies in recordkeeping of SAS operations in Afghanistan were exposed by journalists, and Defence was ordered to overhaul its information systems. Budget 2025 has attempted to play catch-up on that.

David Seymour introduced the Bill to Parliament on behalf of Brooke van Velden. Photo: RNZ / Samuel Rillstone

'The burden of non-compliance'

Under the amendment, the exemption from keeping records could be sought by any public entity in a multinational arrangement, not just Defence.

An exemption could be granted by the Chief Archivist, even retrospectively, to apply to records an agency should have kept previously, but did not.

Fox said the likes of the police and spy agencies working in multinational groups, say, with the United States, could exploit it.

Van Velden said exemptions would be case-by-case "where compliance is impractical - such as the NZ Defence Force operations overseas in multinational arrangements".

"The Chief Archivist can set terms and conditions for the exemption, such as time limits, to meet public interest requirements," she said in a statement to RNZ.

The regulatory impact statement said that since organisations were falling short anyway, the exemption "would relieve [them] of the burden of non-compliance ... while solutions are sought with partner nations".

Both the statement, and van Velden, said this would "ensure transparency and provide a basis for future repatriation of overseas records".

It would "complement" NZDF's overhaul of information management systems ordered after the Operation Burnham exposures, the impact statement added.

'They want to do less'

Fox was not buying it.

"I read it that they seem to be covering their oversight with the Operation Burnham fiasco," he said.

"They were told ... to do better. This amendment seems to be suggesting that they want to do less, and be allowed to do it. I don't get it."

Other historians told RNZ the amendment worried them, but they wanted time to consider it before commenting.

Fox said if it was a problem of security issues around records, those could be dealt with, and had been, for over a century.

"I don't understand what the difference is now compared to our commitments to Afghanistan and elsewhere a generation ago or our commitments, say, in the Second World War where we had significant security intelligence issues with our use of decrypted German codes, the Enigma decrypt - we still kept those records.

"I don't understand what might have changed right now to make proper record keeping that much more difficult in an international situation."

RNZ has approached the NZDF for comment, including on whether its current repatriation of records from multinational engagements was "ad hoc" or occurred rarely.