New Zealand Defence Force (NZDF) Service Members have filed a legal challenge against a Directive from the Chief of Defence Force (CDF) that would see them discharged at short notice if they have not maintained currency with COVID-19 boosters. The legal challenge is now also being supported by the Returned and Services Association (RSA) due to their concern for the effect on individuals. The application for judicial review was filed in the Wellington High Court on 22 April 2022 but given the short timeframe for discharge, an interim application was also filed on 29 April 2022 in an attempt to stop the Directive before people lose their jobs.
The uniformed applicants include senior officers from the Navy, Army and Airforce that have not received the COVID-19 vaccination and those that have but do not want to continue to receive boosters. They are supported by hundreds of other service members and civilians in similar situations as part of the United We Stand group. A recent OIA showed that as at 2 May 2022, 1056 service members had either not received the COVID-19 vaccine or not received a booster.
The RSA is very concerned for the wellbeing of these service members and the impact of the imminent loss of employment on their families. The RSA fills a critical role in advocating for current service members and is encouraging those that have been negatively affected and need support to contact them directly.
The Directive came as a complete surprise to many given that the government order mandating vaccination for NZDF and Police personnel was ruled unlawful by the High Court earlier this year on the grounds of being an unjustified limitation on human rights. This latest Directive would achieve the same outcome but will use internal policy instead.
Unless the Directive is overturned it would likely result in hundreds more service members being dismissed from an essential organisation that is already suffering critically low manning. This is at a time when tensions are increasing across the globe with the Ukrainian conflict and China expanding its military presence in the South West Pacific.
CDF’s justification for this hard-line approach is the maintenance of operational outputs. However, the vaccine has only become an operational requirement because he chose to add it to the required vaccine schedule. There are strong indications that this decision was made against the clinical advice of his Chief Medical Officer. On any given day thousands of service members are undeployable for a wide range of health or administrative reasons while being retained in training and support roles. They are also able to deploy if granted a waiver to meet service contingencies.
It is also notable that New Zealand allies such as Australia and the United Kingdom have not applied a discharge policy to service members that choose not to receive the COVID-19 vaccine.
NZDF policy to discharge uniformed personnel for not maintaining an operational readiness requirement would usually require a three-month warning first. However, the CDF Directive attempts to change this process so that an individual’s service can now be terminated within two weeks. This shows that in the matter of vaccination, service members are being treated with a disproportionately harsh approach in comparison to similar situations that affect their deployability status. The applicants believe this aspect of the directive is clearly unlawful as it contravenes the documented HR processes in Defence Force Orders.
The directive is also inconsistent with Worksafe’s direction to NZ Employers which states that:
“Outside of those sectors covered by Government vaccine mandates, WorkSafe considers that few workplaces will be able to justify an employer vaccination requirement for health and safety or public health reasons. For those who can, this would likely be only for specific roles”.
In contrast, CDF is proposing a blanket vaccination policy including boosters for everyone, even civilian staff and external contractors required to access Defence Areas.
Many of the affected service members have legitimate reasons for declining the vaccinations on religious grounds, medical grounds or having suffered a reaction to a previous dose. No guidance has been given on any form of exemption or consideration for alternative work arrangements as would be a reasonable and legal requirement in implementing such a mandate.
United We Stand believes that the current directive is unlawful, destructive to NZDF operational capacity and causes unreasonable harm to a range of service personnel and their families. We are confident that the High Court will come to the same conclusion and overturn the Directive, enabling service personnel to continue their careers. We continue to offer support to any affected personnel and ask that anyone struggling through this time make contact with United We Stand or the RSA.
United We Stand is challenging the government appeal of the February High Court ruling as well as pursuing this legal action and supporting civilian staff facing a parallel mandate process. They are reliant on funding this personally and appreciate any donations that can be made to support them in this ongoing legal battle. Please donate through https://unitedwestand.nz/support.
By: United We Stand
