Case note

Four Members of the Armed Forces v Chief of Defence Force

Vaccine mandates are a thing of the past, but cases about them (and other aspects of the COVID-19 response) continue to work their way through the courts.

One such case involved four servicemen—two in the Army, one in the Air Force and one in the Navy—who objected either to vaccination or to receiving a booster. The New Zealand Defence Force had issued orders that required service personnel to be vaccinated and boosted in order to meet “individual readiness requirements” and therefore to be eligible to be deployed. Failure to meet these requirements “was more likely to result in dismissal from the Armed Forces”.

The four servicemen challenged the orders on the basis that (among other things) the orders limited their rights under the New Zealand Bill of Rights Act 1990, and that the limits couldn’t be justified. In an unanimous decision, the Court of Appeal agreed.

The Court said that two rights were engaged:

  1. the right to refuse medical treatment, “because [the orders] place significant pressure on the [servicemen] and other members of the Armed Forces to accept vaccination against COVID-19”; and
  2. the right to manifest religious belief, because of concerns that the available vaccines had been developed or produced using “cell lines descended from cells taken from aborted foetuses”. The Court straightforwardly accepted that, for two of the servicemen whose faith precluded support for abortion, requiring vaccination would restrict their ability to manifest their beliefs.

However, it is legitimate to limit rights so long as those limits are “demonstrably justified.” The Court was very clear that it was up to the NZDF to prove that the limits passed this test—in other words, that they were necessary “to achieve sufficiently important objectives” and proportionate to those objectives. In this case, the key objective was to ensure “the ongoing efficacy of the Armed Forces.”

The NZDF could not do this because:

  • the orders created a blanket rule requiring COVID-19 vaccination. By contrast, the consequences of failing to comply with other, similar readiness requirements was assessed more flexibly and on an individual basis, and the NZDF did not show that this would be inappropriate for COVID-19 vaccinations as well. Mere administrative convenience, for example, was not a sufficient reason to justify this approach.
  • it needed to do more than simply assert that the orders would help maintain NZDF efficacy. For example, said the Court, it should have engaged in “data-based analysis of different scenarios, or comparisons with the measures taken by the Armed Forces of other countries, and their relative effectiveness. The justification needed to explain why the [more flexible] approach ... would be insufficient to achieve the relevant objectives. It needed to engage with the likely time frame for which any additional restrictions would be justified, and whether permanent discharge of unvaccinated members was necessary to achieve the objectives given that timeframe. It also needed to engage with the question of why these measures should apply to members who are already, for other reasons, not deployable ([which was] a very significant proportion of the Regular Force)”.

The Court of Appeal ordered the NZDF to “reconsider” the orders “in light of this judgment” and prohibited any further action against the four servicemen while that was taking place.

The case is notable for the close scrutiny that the Court of Appeal gave the orders and the NZDF’s justifications. It is encouraging when fundamental rights, like the right to manifest religious belief, are taken so seriously.

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

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Alex Penk
June 17, 2024
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