Four Members of the Armed Forces v Chief of Defence Force - [2024] NZCA 17
Date of Judgment
16 February 2024
Decision
Four Members of the Armed Forces v Chief of Defence Force (PDF 589 KB)
Summary
Judicial Review - Required COVID-19 vaccinations - Defence Act 1990 - Armed Forces Discipline Act 1971 - New Zealand Bill of Rights Act 1990 - Appeal allowed
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.
The appellants are four members of the New Zealand Defence Force (NZDF). They are subject to Temporary Defence Force Order 06/2022 (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022. The TDFO provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for COVID-19 in accordance with the NZDF Vaccination Schedule (Vaccination Schedule). The consequences of not being fully vaccinated for COVID-19 were more prescriptive and stringent than those which apply in respect of not meeting other vaccination requirements on the Vaccination Schedule.
The appellants - two of whom have not received any COVID-19 vaccinations, and two of whom have received their primary doses, but not booster doses - applied in the High Court for judicial review of the TDFO (and related instruments) on the grounds that the TDFO was unlawful because it was inconsistent with the Armed Forces Discipline Act 1971 (AFD Act), the Code of Health and Disability Services Consumers' Rights (the Code), and the New Zealand Bill of Rights Act 1990 (NZBORA).
Churchman J dismissed the challenges based on the AFD Act and the Code. As regards the NZBORA challenge, the Judge accepted that the TDFO limited ss 11 and 15, but did not consider that s 19 was engaged. The Judge was satisfied that maintaining the ongoing efficacy of the Armed Forces was a sufficiently important objective to justify limiting the rights contained in ss 11 and 15, and that the TDFO (and related instruments) were therefore demonstrably justified in a free and democratic society for the purposes of s 5 of NZBORA. The applications for judicial review were dismissed.
The appellants now appeal to this Court, advancing the same grounds of challenge as they did in the High Court.
Held:
The alleged inconsistency with the AFD Act relies on a misunderstanding of the function of s 72 of the AFD Act, which makes it a criminal offence for a member of the NZDF to fail to submit to medical treatment in the circumstances set out in that provision. Section 72 of the AFD Act is not engaged in this case. The Judge was right to dismiss this aspect of the challenge to the lawfulness of the TDFO.
The Judge was also right to dismiss the challenge based on the Code. The Code only applies at the point when a vaccination is offered to an individual NZDF member. It does not apply when the CDF issues a defence force order requiring vaccination, such as the TDFO. So the Code was not engaged when the TDFO was issued.
Sections 11 and 15 of NZBORA are engaged by the TDFO, but s 19 is not. We agree with the Judge that the respondents have established that there was a sufficient justification for limiting those rights by adding the COVID-19 vaccinations to the Vaccination Schedule. But the respondents have not demonstrated that the more stringent and prescriptive consequences brought about by the TDFO for not having these particular vaccinations is justified. In pa1ticular, the respondents have not shown that the ongoing efficacy of the Armed Forces could not have been ensured by less rights-limiting measures along the lines identified by the appellants. To that extent, the TDFO is inconsistent with NZBORA. The appeal is therefore allowed.
The CDF is directed to reconsider the TDFO in light of this judgment, and is ordered to not take any further action pursuant to the TDFO (and related instruments) until that reconsideration is complete.