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Court of Appeal rules against Defence Force’s vaccination mandate

8 Mar 2024

| Author: Fiona Wu

Judicial Review – appeal – covid-19 vaccination mandate – Defence Act 1990 – Armed Forces Discipline Act 1971 – Code of Health and Disability Services Consumers’ Rights – New Zealand Bill of Rights Act 1990 – limit demonstrably justified

Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17 per Gilbert, Collins and Goddard JJ.

 

The appellants are four members of the New Zealand Defence Force (NZDF) who are subject to a temporary Defence Force order (TDFO), which was issued by the Chief of Defence Force (CDF) on 27 May 2022.

The order provided for a review of retention in the Armed Forces of any member who was not fully vaccinated for covid-19 under the NZDF vaccination schedule. The consequences of not being fully vaccinated for covid-19 were more prescriptive and stringent than those applying in respect of not meeting other vaccination requirements on the vaccination schedule.

Two of the appellants have received the primary doses of the covid-19 vaccination, but not the booster doses, while the remaining two have not received any covid-19 vaccination.

 

High Court decision

The appellants applied in the High Court for judicial review of the TDFO on the ground that it 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), specifically:
    • the right to refuse to undergo medical treatment (s 11);
    • the right to manifest religion (s 15); and
    • the right to be free from discrimination (s 19).

The appellants filed affidavits setting out their circumstances and the reasons why they have declined to be vaccinated. They filed affidavits from other unvaccinated members of the NZDF, who explained their reasons for declining vaccination.

Churchman J dismissed the challenges based on the AFD Act and the code. The judge accepted the order limited ss 11 and 15 of the NZBORA, 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. The TDFO was, therefore, a reasonable limit that could be demonstrably justified under s 5 of the NZBORA.

 

Court of Appeal

The appellants sought leave to appeal to the Court of Appeal, advancing the same grounds of challenge as they did in the High Court. They didn’t challenge the requirement of the covid-19 vaccination itself; they sought to retain the existing flexible approach to determining the consequences of not being vaccinated under the vaccination schedule.

The Court of Appeal found the judge was correct to dismiss the challenges based on the AFD Act and the Code. The alleged inconsistency with the AFD Act relied on a misunderstanding of the function of s 72, 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 wasn’t engaged in this case though.

Likewise, the code only applied at the point when a vaccination was offered to an individual NZDF member. It didn’t apply when the Defence Force chief issued a defence force order requiring vaccination, such as the TDFO.

The Court of Appeal agreed ss 11 and 15 of the NZBORA, and not s 19, were engaged by the TDFO, and that the respondents had established there was a sufficient justification for limiting those rights by adding the covid-19 vaccinations to the vaccination schedule.

Where the court differed from Churchman J, however, was in finding the respondents hadn’t demonstrated that the order’s more stringent and prescriptive consequences for not having these particular vaccinations were justified. In particular, the respondents hadn’t shown that the ongoing efficacy of the Armed Forces couldn’t have been ensured by fewer rights-limiting measures along the lines identified by the appellants. To this extent, the TDFO was inconsistent with NZBORA.

 

Applicable principles: when the Armed Forces Discipline Act engaged – when the Code of Health and Disability Consumers’ Rights engaged – whether compulsory vaccinations engage right to be free from discrimination – whether limitation is justified – whether fewer rights-limiting measures are available.

 

Held: The appeal is allowed. The CDF is directed to reconsider the TDFO in light of the court’s judgment, and is ordered to not take any further action under the TDFO until that reconsideration is complete.

 

Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17.

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