The Supreme Court has recently issued a compelling judgment regarding the role of the courts in reviewing the decisions of key public officers and the relevance of context to the lawfulness of such decisions.

Chief of Defence Force & Ors v Four Members of the Armed Forces [2025] NZSC 34 concerned the measures put in place by the Chief of Defence Force (CDF) on all members of the New Zealand Armed Forces who refused the COVID-19 vaccination. These measures were part of the New Zealand Defence Force (NZDF)'s broader strategy to ensure readiness and operational effectiveness during the COVID-19 pandemic. They were aimed at maintaining the health and deployability of the Armed Forces.

A particular focus of this appeal was the extent to which the courts should afford a ‘margin of appreciation’ to the CDF’s determination of what was needed to meet key objectives of the Armed Forces, including readiness, operational effectiveness and command and control, when assessing that determination against the NZBORA.

Background

As part of service in the NZDF, members of the Armed Forces (ie uniformed personnel) are required to comply with the readiness requirements set out in secondary legislation made by the CDF. These have for many decades included specific vaccination protocols. If a member does not meet the readiness requirements, they are considered inefficient or ineffectual in the performance of their duties, and are liable to be discharged on performance grounds or released.

Once the COVID-19 vaccination became available, it was added to the vaccination schedule for members of the Armed Forces as a requirement for deployability. 

The Temporary Defence Force Order 06/2022 (TDFO) introduced specific processes for managing members who refused the COVID-19 vaccination. These processes included:

• Mandatory service review: Unvaccinated members were deemed ineffectual and had their service reviewed.
• Exclusion from bases: Unvaccinated members were barred from accessing NZDF camps, ships, bases and facilities, for the health and safety of other members.
• Elevation of decision-making: Discharge or retention decisions were elevated to Service Chiefs to ensure consistency and consideration of broader operational effectiveness.

These incremental changes were considered necessary to address the unique challenges posed by the pandemic and ensure the NZDF's readiness and operational effectiveness. However, the changes impinged on members of the Armed Forces’ individual rights. 

Central to the issue before the Supreme Court was whether the TDFO and related instruments imposed additional restrictions on individual rights that were not demonstrably justified in a free and democratic society under section 5 of NZBORA.

1. Court recognises the authority of the Chief of Defence Force

The Supreme Court affirmed the authority of the CDF and his expertise to implement operational policies relevant for the readiness of the Armed Forces including health and safety measures, even if they impose certain restrictions on individual rights. The Court noted that the CDF is the decision-maker appointed under legislation and is likely to be in a much better position than the Court to evaluate the relevant considerations with respect to readiness, operational effectiveness and military discipline. This sets a precedent confirming the CDF's ability to make critical decisions in the interest of overall military effectiveness and is relevant not only to the NZDF, but also other militaries elsewhere in the Commonwealth. 

The judgment recognised the CDF’s authority to command the Armed Forces at a time where it is essential for the Armed Forces to remain combat-ready and resilient to keep New Zealand safe and secure. The Government has made announcements about increasing the combat capability, readiness and operational effectiveness of the Armed Forces. The Minister of Defence noted, when making the announcement, that: 

our personnel are expected to be called upon more often, in more places, and for longer. For this, they must be equipped and trained for a range of operations, to be more combat capable and able to deter actions adverse to our interests while also being ready to provide essential humanitarian assistance and disaster relief. 

It is likely that the CDF may be required to strengthen the posture and readiness of the Armed Forces and make critical decisions for the safety of New Zealand in future times. 

2. Context is important: balancing individual rights and collective needs

The judgment highlights the balance between individual rights, the collective needs of the military, and wider context. It acknowledges that while individual rights are important, they can be reasonably restricted to ensure the greater good and operational effectiveness of the Armed Forces.

The Court took into account the wider context of members of the Armed Forces serving at the pleasure of the Crown and being at risk of dismissal for failure to comply with orders, lacking the legal protections that are available to employees. The Court warned lower courts that “care must always be taken not to undermine command structures on which military effectiveness depends”. 

The ruling supports the restriction of certain individual rights, such as the right to refuse vaccination, in favour of maintaining readiness, operational effectiveness and the collective health of the Armed Forces. This means that personal choices may be limited when they conflict with broader military objectives.

3. Consideration of reasonable alternatives

The Supreme Court determined that when reviewing a decision made by a public actor against NZBORA, a court may accept that decision so long as the decision-maker has satisfied the court that the decision lies within a range of reasonable alternatives. 

The judgment emphasised the importance of considering reasonable alternatives and the expertise of decision-makers. This is particularly true where there are wider considerations of readiness, operational effectiveness and the requirement on CDF to carry out the functions and duties of the NZDF under the Defence Act 1990. These factors collectively reinforce the authority of military leadership to make informed decisions that prioritise the health and readiness of the force while balancing individual rights and operational needs.

Takeaways

Overall, the Supreme Court concluded that the TDFO and related instruments were demonstrably justified under NZBORA. To the extent the elevation of retention decisions to Service Chiefs further restricted individuals’ protected rights, this was considered within the range of reasonably available responses to the CDF’s concerns about maintaining operational effectiveness and military discipline. 

This judgment is relevant for public decision-makers when considering decisions that may impinge on human rights for a broader purpose: 

1. The Court can recognise the authority of decision-makers and their unique expertise, giving them a ‘margin of appreciation’. 
2. The wider context is important when assessing the lawfulness of a limitation of rights. In the case of the Armed Forces, the Court recognised that while individual rights are important, they can be reasonably restricted to ensure the greater good and operational effectiveness of the Armed Forces.
3. When reviewing consistency of a decision made by a public actor with NZBORA, a court may accept the decision so long as the decision-maker has satisfied the court that the decision lies within a range of reasonable alternatives.

Get in touch

Please get in touch with one of our experts to discuss any aspects of this article.

Special thanks to Sarah Gwynn for her assistance in writing this article.