The requirement for members of the New Zealand Armed Forces to be vaccinated against COVID-19 has been inserted into the “individual readiness requirements” for military personnel by way of a Defence Force Order (DFO), which is a species of subordinate legislation that can be made by the Chief of Defence Force (CDF). The Court of Appeal heard that such requirements are enforced in a flexible and individualised manner by the NZDF. However, CDF took an additional step of imposing a stricter and more comprehensive policy with respect to the COVID-19 vaccination requirement, which pointed strongly towards the discharge of all non-compliant personnel. This represented a limit on the right to refuse medical treatment (NZBORA s 11) and also, the Court held, the right to freedom of religious belief (NZBORA s 15), because the Crown did not adduce evidence sufficient to satisfy the Court that a vaccine was available which did not involve the use of foetal material.
In the final analysis, the Court held that
no or insufficient evidence had been put before it to prove that the stricter
approach was necessary to achieve the rational objective of supporting the
operational effectiveness of the Armed Forces. The Crown has the onus of proving
that any limit on a right is justifiable. The appellants placed before the
Court some evidence as to the comparative approach of the British armed forces,
which suggested that a more flexible approach was sustainable, even in a much
larger force. The Crown was unable to (or simply did not) discharge its onus in
that context.
In the absence of evidence sufficient to
justify the stricter approach, the Court held that it could not be justified
for the purposes of NZBORA s 5 and was therefore unlawful. However, the Court
provided a more limited remedy than was sought, requiring CDF to reconsider the
relevant DFO in light of its judgment (while also protecting the status quo
ante position of the applicants). The Court of Appeal sent a strong signal
that its willingness to entertain such limits relating to COVID-19 vaccines is
likely to be somewhat reduced in light of the lifting of virtually all restrictions
by other arms of Government in the wake of the pandemic.
This is (at least) the second occasion
within the last two years where the courts have found that they could not
uphold a COVID-19 rights limitation relating to the Armed Forces, due to the presentation
of no or inadequate evidence in support of the limit. The first was Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291. Readers will draw their
own conclusions about the lessons to be learnt for defendants (ie Government), depending
on the degree of deference which the relevant jurisdiction accords to military
decision-making. For plaintiffs, this decision underscores the value of comparative
analysis.
The NZDF has issued this statement in response to the decision of the Court of Appeal: https://www.nzdf.mil.nz/media-centre/news/update-on-recent-court-of-appeal-ruling/
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