New Zealand Court of Appeal: evidence required to justify limiting rights of military personnel

 A decision of the New Zealand Court of Appeal in Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17 delivered on February 16, 2024 serves as a salutary reminder that, if the Crown wishes to limit the constitutional rights of military personnel, they need to adduce evidence that those particular limits can be “demonstrably justified in a free and democratic society” (New Zealand Bill of Rights Act 1990 (NZBORA), s 5).

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.

Disclaimer: The author was counsel in earlier challenges to COVID-19 vaccine mandates on behalf of both military and healthcare personnel. Those challenges, which took place during the height of the pandemic, were unsuccessful.