A large group of sailors, soldiers and airmen have had a victory today against an order from the Chief of Defence Force (CDF) that sought to dismiss them from service if they didn’t receive a COVID-19 vaccine or booster. The order is the fourth attempt by the CDF to achieve this with the previous orders either being withdrawn or ruled as unlawful in court. In the interim hearing, Justice Ellis ruled against the Chief of Defence and ordered that no member of the armed forces was to be discharged based on their vaccination status until after a substantive hearing. A date is not yet set for a substantive hearing but it is likely to be late September in the Wellington High Court.

A recent OIA has shown that between 380 and 780 members of the armed forces would be likely to be discharged over the order. As a part of United We Stand, these service members have launched a legal challenge against it, represented by personnel from all three services. Many of the affected service members have had their careers put on hold and been banned from camps and bases for the majority of the past year. They are now joined by an increasing number of service members that don’t want to receive a booster and find themselves under the same threat of being discharged over it.

While the New Zealand Defence Force NZDF has maintained operational requirements as the reason for this mandate, this has been largely undermined by a recent OIA showing that over 48% of the NZDF are classified as “unfit” for overseas deployment anyway. For senior officers of the rank of Lt Col and above this sits at 54% as is shown below. However, there are a huge range of training and support roles that need to be filled within New Zealand and as long as a service member is adding value they’re generally retained. At a time where there are record attrition levels it is illogical to discharge capable people unnecessarily.

The request in the interim hearing today was for the High Court to block the discharge of unvaccinated service members until the substantive hearing. The NZDF opposed this request by defending the hearing but as it became apparent that the grounds to oppose were very weak they relented and decided to agree to the order against them. The hearing could have been avoided if the NZDF had been reasonable in this request before hand, rather than wasting taxpayer funds in defending something then changing their mind halfway through.

Our battle against vaccination mandates in the NZDF has been ongoing through a series of failed attempts over the past year (timeline provided below). This has included rescinding two previous directives, each during the week prior to them being heard in court, having a government order overturned as unlawful and initiating an appeal against that finding then changing their mind and withdrawing it due to being unlikely to succeed. The affected service members believe that this agenda goes against the NZDF’s core values and intend to keep fighting it through the courts.

Timeline of CDF attempts to discharge his unvaccinated service members

Sep 2021

• CDF imposes first internal vaccine mandate, directing the discharge of members that are unvaccinated.

Dec 2021

• Under pressure from a legal challenge against the internal mandate, the NZDF requests that the government makes an order to mandate all members of the armed forces and NZDF civilians.

• The order is made by Minister Michael Wood one week before the interim hearing against the CDF would have occurred and the NZDF removes their internal mandate as it is now redundant.

Feb 2022

• The Wellington High Court rules that the vaccination order made by Minister Wood mandating NZDF and Police is unlawful and overturns it, four days prior to their discharge date.

Mar 2022

• Police proactively engage with affected staff and welcome them back to work.

• NZDF ignores a letter from their affected staff and maintains vaccine passports requirements in most work areas.

• Government launches an appeal against the Feb High Court ruling.

Apr 2022

• Government announces a drawdown of vaccine passports and mandates for a number of areas.

• The CDF moves against the all of government direction, releasing a new directive that orders retention reviews of unvaccinated service members and imposing tight timelines for their discharge.

May 2022

• The crown drop their appeal of the Feb High Court ruling, likely due to having a poor chance of success.

• Under pressure from another legal challenge, CDF rescinds his directive from the month prior, again during the week prior to it being heard in court.

• The CDF replaces his directive with a Defence Force Order, directing largely the same process and imposing tight timelines for discharge.

• A fourth legal challenge is launched against the latest version of vaccine mandate for service members.

• The CDF puts out a draft directive for consultation that civilian staff and contractors will be mandated if coming into Defence Areas. Given overwhelming opposition he chooses to withdraw it.

Jul 2022

• The interim hearing occurs in the Wellington High Court where they rule against CDF and block the discharge of service members until a finding from the substantive hearing.