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Update on recent Court of Appeal ruling

On Friday, February 16, the Court of Appeal released a judgement in the case of ‘Four Members of the Armed Forces v Chief of Defence’ as it relates to the Temporary Defence Force Order 06/2022 (DFO(T)).

20 February, 2024

It’s important to clarify what this ruling means, and more importantly what the ruling doesn’t mean in the context of NZDF Covid-19 vaccination requirements in the DFO(T). In some reporting this has been confused with Covid-19 vaccine mandates, which is incorrect. There are currently no Covid-19 vaccine mandates in the NZDF.

Members of the Armed Forces must be ready to serve when and where they are needed and are required to meet individual readiness requirements, which includes having a number of vaccinations.  These requirements have been around for decades and are not new.

This requirement goes beyond health and safety, and extends to members of the Armed Forces being ready to serve and deploy where they’re needed, which is essential for a small Defence Force. These requirements range from fitness and weapon qualifications to dental and medical standards and having a number of vaccinations, including the Covid-19 vaccination, as specified in the NZDF Vaccination Schedule.

The Covid-19 vaccine has been part of the NZDF schedule of required vaccines for uniformed personnel since mid-2021. Being fully vaccinated is a condition of service and the Chief of Defence Force sets the conditions under which a member of the Armed Forces can serve.

In 2022, a High Court judgement (Yardley) overturned the government mandate for NZDF members to be vaccinated, but did not preclude the Chief of Defence Force from setting internal vaccination policies, just as many other employers and workplaces have set. The High Court was aware in Yardley that vaccination was already a requirement for the Armed Forces, and did not suggest this requirement in that context was unjustified.

This is not equivalent to the Government mandate. This is an individual process for each member and cases are considered on a case-by-case basis, with more flexibility in outcome than the mandate allowed for.   

The most recent Four Members of the Armed Forces v Chief of Defence Force case before the Court of Appeal was not about a vaccine mandate (these no longer apply), nor did it challenge the inclusion of the Covid-19 vaccine as an individual readiness requirement within the Armed Forces. 

The proceedings did not challenge the right for the NZDF to add the Covid-19 vaccinations to the NZDF Vaccination Schedule in order to be ready to serve, nor the consequences that followed from adding the Covid-19 vaccinations to the baseline schedule.

The DFO(T) that was subject to the Court’s judgment provided more prescriptive measures for managing members who were not Covid-19 vaccinated compared with the other readiness requirements. The Court found that it did not have sufficient evidence before it to be satisfied that the more prescriptive measures were justified.

The Court has ordered the NZDF to review the measures it prescribes under the current order, and to hold off any further action until this is done.  Importantly, the Court specifically emphasised that it did not find that the measures were not justified and noted that it is possible that they were. As such, the Court did not overturn the DFO(T) or any decisions made under it.

In line with the changing global and national situation around Covid-19, the NZDF Vaccination Schedule requirements have already undergone a review and amendment. In light of the judgment, the NZDF will conduct a further review with consideration to flexibility of managing personnel who do not meet the vaccine requirement, while continuing to maintain an Armed Forces ready to meet New Zealand’s defence needs.

The NZDF continued to implement its orders for managing people who did not meet individual readiness requirements after the High Court upheld that its orders were lawful. The NZDF was entitled to rely on the Court’s finding even though it was subsequently subject to appeal to the Court of Appeal. The Court of Appeal has now ordered the NZDF to reconsider that order and pause any future action taken under it.

The full Court of Appeal judgement can be found here.