Chief of Defence Force and Others v Four Members of The Armed Forces

(Given by Miller J)

1

This appeal concerns a COVID-19 vaccination mandate that the Chief of Defence Force (CDF) first imposed on all members of the Armed Forces of New Zealand on 3 March 2021 as part of their individual readiness requirements for deployment in New Zealand or overseas. 1

2

The four respondents are or were members of the Armed Forces, which comprise uniformed military personnel. They are or were members of the Regular Forces, which comprise full-time personnel. The part-time Reserve and Territorial Forces are also part of the Armed Forces. 2 The three armed Services (the Navy, Army and Air Force) and the Civil Staff together comprise Te Ope Katua o Aotearoa | the New Zealand Defence Force (NZDF).

3

The direction to receive COVID-19 vaccinations was given initially under Defence Force Order (DFO) 3. Directions of this kind are authorised under ss 27 and 45 of the Defence Act 1990. 3 DFO 3, which was issued by the CDF on 23 November 2009, is the NZDF personnel manual. It requires that members of the Armed Forces meet individual readiness requirements, including vaccinations as specified in the NZDF Vaccination Schedule from time to time. 4 There are two parts to the Schedule: baseline (required for all members of the Armed Forces, in both domestic and deployed environments) and enhanced (required for particular roles or deployments).

4

On the advice of the Chief Medical Officer, the Surgeon General and Director Defence Health added the COVID-19 vaccination to the baseline schedule on 3 March 2021, and boosters were added on 11 February 2022. Two of the four respondents refused the primary vaccination; the others refused booster doses.

5

Under DFO 3 a member of the Armed Forces who is considered inefficient or ineffectual in the performance of their duties is liable to be discharged on performance grounds. 5

6

DFO 4, which was issued by the CDF on 18 October 2005, is concerned with personnel administration. It sets out processes under which a member of the Armed Forces may be discharged or released. 6

7

The respondents (as they are now in this appeal) pleaded that DFO 3 and DFO 4 were unlawful to the extent that those orders coerced members of the Armed Forces to be vaccinated and boosted. But they focused their challenge on a supplementary direction, the Temporary Defence Force Order 06/2022 (TDFO), and its related instruments. The TDFO was issued on 25 May 2022 and was specifically addressed to COVID-19 vaccinations. 7

8

The TDFO was issued by way of response to the 2022 High Court judgment in Yardley v Minister for Workplace Relations and Safety, in which the High Court set aside a different COVID-19 vaccine mandate for certain work carried out by Police and NZDF personnel. 8 Cooke J was not satisfied that the mandate was necessary for continuation of the relevant services. 9

9

The TDFO specified that a member of the Armed Forces who is not fully vaccinated for COVID-19 “is ineffectual, and is to have their continued service reviewed” in accordance with a procedure set out in Annex A to the TDFO. 10 Such could not be deployed internationally, or domestically as part of any national contingency response. 11 Any member of the Regular Forces who had not received their primary vaccination was required to remain on COVID-19 isolation leave and could not access any NZDF camp, base or facility except for the purpose of health or welfare care. 12 Decisions to discharge or retain a member who had not had the required COVID-19 vaccinations were to be made by the Chief of the relevant Service. 13

10

The Court of Appeal found, reversing the judgment of Churchman J in the High Court, that the CDF had not discharged the burden of showing that the limits

the TDFO imposed on protected rights were demonstrably justified. 14 The Court did not set the TDFO aside but directed that the CDF reconsider it, taking into account changed circumstances including the Government's removal in August 2023 of all remaining restrictions in relation to COVID-19. 15 It made an interim order prohibiting any further action against the respondents (as they are now) and others in the same position pending reconsideration of the TDFO. 16

11

This Court granted leave to appeal on the question whether the Court of Appeal was correct to allow the appeal. 17 Counsel were invited to focus on whether the Court of Appeal failed to allow the CDF a sufficient margin of appreciation when deciding whether the TDFO and related instruments were needed to ensure the Armed Forces met operational readiness requirements. Leave extended to the nature and extent of justification evidence required of the CDF and the specificity of pleadings.

12

The defence of New Zealand is a Crown prerogative, but the Crown requires the authority of Parliament to raise, maintain and deploy forces in New Zealand. 18 That authority continues under the Defence Act. 19 It provides that the Minister of Defence shall have the power of control of the NZDF, which shall be exercised through the CDF. 20 These provisions affirm a long-established constitutional principle: although the defence of New Zealand is a prerogative power, the military are subject to civilian control. 21

13

Section 8(3) provides that the CDF shall command the Navy, the Army and the Air Force through the respective Chiefs of those Services. Command is the authority of an individual, by reason of their rank, to direct, co-ordinate or control armed forces. 22 The relationship between members of the Armed Forces and the Crown is not one of employment but rather a unilateral relationship of service under which members serve at His Majesty's pleasure. 23 They are bound by an oath of allegiance which includes a promise to obey all orders of superior officers. 24 That extends, obviously, to obeying orders to engage in armed conflict, with attendant risks to personal safety. Members must also deploy in accordance with orders at any time, regardless of personal circumstances. The evidence of the then CDF, Air Marshal Kevin Short, is that “[c]oncepts such as command and morale are uniquely important to the effective functioning of a military force”. It is the duty of commissioned and non-commissioned officers to afford the utmost aid and support to their superiors and to foster loyalty and trust in the personnel under their command.

14

In addition to the functions imposed on the CDF under the Act, or any other enactment, the CDF has certain express responsibilities to the Minister. Relevantly, s 25 provides that:

15

DFOs are provided for...