Chief of Defence Force v Four Members of the Armed Forces
[2025] NZSC 34
•11 April 2025
| NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE RESPONDENTS REMAINS IN FORCE. |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 20/2024 [2025] NZSC 34 |
| BETWEEN | CHIEF OF DEFENCE FORCE |
| AND | FOUR MEMBERS OF THE ARMED FORCES |
| Hearing: | 8 October 2024 |
Court: | Glazebrook, Ellen France, Williams, Kós and Miller JJ |
Counsel: | U R Jagose KC, D P Neild and S R Hiha for Appellants |
Judgment: | 11 April 2025 |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe Court of Appeal’s order that the Temporary Defence Force Order 06/2022 (TDFO) be reconsidered is set aside, as is the Court of Appeal’s interim order that no action may be taken by the Chief of Defence Force pursuant to the TDFO and related instruments pending the reconsideration of the TDFO.
CThe respondents must pay the appellants one set of costs of $30,000 plus usual disbursements. We allow for second counsel.
____________________________________________________________________
REASONS
(Given by Miller J)
Table of Contents
Para No
Introduction [1]
The NZDF framework [12]
The CDF’s rationale for the COVID-19 vaccination requirement [21]
DFO 3 and DFO 4 [28]
Yardley v Minister for Workplace Relations and Safety[34]
CDF Directive 13/2022 [48]
The TDFO and Administrative Instruction [53]
Discharge and retention of Armed Forces members who refused COVID-19
vaccination [62]
The respondents [64]
The judgments below [76]
The High Court [76]
The Court of Appeal [81]
The issues on appeal [90]
Submissions [92]
Proportionality review [96]
Could the right to refuse medical treatment be further restricted? [110]
Did the TDFO and Administrative Instruction further restrict the ss 11
and 15 rights? [112]
The CDF’s justifications for the TDFO processes [119]
Did the Court of Appeal allow the CDF a sufficient margin of
appreciation? [122]
Did the Court step into the CDF’s shoes? [123]
Did the Court allow the CDF a sufficient margin of appreciation? [129]
Were the TDFO and related instruments demonstrably justified? [146]
The notice of alternative measures issue [147]
Disposition [153]
Introduction
This appeal concerns a COVID-19 vaccination mandate that the Chief of Defence Force (CDF) first imposed on all members of the Armed Forces of New Zealand on 3 March 2021 as part of their individual readiness requirements for deployment in New Zealand or overseas.[1]
[1]It is not necessary to distinguish among the three appellants so we will refer throughout to the CDF.
The four respondents are or were members of the Armed Forces, which comprise uniformed military personnel. They are or were members of the Regular Forces, which comprise full-time personnel. The part-time Reserve and Territorial Forces are also part of the Armed Forces.[2] The three armed Services (the Navy, Army and Air Force) and the Civil Staff together comprise Te Ope Kātua o Aotearoa | the New Zealand Defence Force (NZDF).
[2]To the extent the Reserve Forces and Territorial Forces differ, this judgment refers to these forces collectively as the Territorial Forces. See Defence Act 1990, s 2(1) definitions of “reserve forces” and “territorial forces” and s 11.
The direction to receive COVID-19 vaccinations was given initially under Defence Force Order (DFO) 3. Directions of this kind are authorised under ss 27 and 45 of the Defence Act 1990.[3] DFO 3, which was issued by the CDF on 23 November 2009, is the NZDF personnel manual. It requires that members of the Armed Forces meet individual readiness requirements, including vaccinations as specified in the NZDF Vaccination Schedule from time to time.[4] There are two parts to the Schedule: baseline (required for all members of the Armed Forces, in both domestic and deployed environments) and enhanced (required for particular roles or deployments).
[3]Defence Force Orders issued under s 27 of the Defence Act are secondary legislation for the purposes of the Legislation Act 2019: Defence Act, s 27A(1).
[4]Defence Force Order 3 [DFO 3], cls 9.6.16–9.6.17 and 9.6.36. See below from [28].
On the advice of the Chief Medical Officer, the Surgeon General and Director Defence Health added the COVID‑19 vaccination to the baseline schedule on 3 March 2021, and boosters were added on 11 February 2022. Two of the four respondents refused the primary vaccination; the others refused booster doses.
Under DFO 3 a member of the Armed Forces who is considered inefficient or ineffectual in the performance of their duties is liable to be discharged on performance grounds.[5]
[5]Clause 11.8.86. See below at [32].
DFO 4, which was issued by the CDF on 18 October 2005, is concerned with personnel administration. It sets out processes under which a member of the Armed Forces may be discharged or released.[6]
[6]See below at [33].
The respondents (as they are now in this appeal) pleaded that DFO 3 and DFO 4 were unlawful to the extent that those orders coerced members of the Armed Forces to be vaccinated and boosted. But they focused their challenge on a supplementary direction, the Temporary Defence Force Order 06/2022 (TDFO), and its related instruments. The TDFO was issued on 25 May 2022 and was specifically addressed to COVID‑19 vaccinations.[7]
[7]Temporary Defence Force Order 06/2022 [TDFO] was issued on 25 May 2022 but corrected before it was promulgated on 27 May 2022. We refer to the version promulgated.
The TDFO was issued by way of response to the 2022 High Court judgment in Yardley v Minister for Workplace Relations and Safety, in which the High Court set aside a different COVID-19 vaccine mandate for certain work carried out by Police and NZDF personnel.[8] Cooke J was not satisfied that the mandate was necessary for continuation of the relevant services.[9]
[8]Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, (2022) 19 NZELR 125. See COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 [Minister’s Order] (now revoked).
[9]Yardley, above n 8, at [105]–[106].
The TDFO specified that a member of the Armed Forces who is not fully vaccinated for COVID-19 “is ineffectual, and is to have their continued service reviewed” in accordance with a procedure set out in Annex A to the TDFO.[10] Such could not be deployed internationally, or domestically as part of any national contingency response.[11] Any member of the Regular Forces who had not received their primary vaccination was required to remain on COVID-19 isolation leave and could not access any NZDF camp, base or facility except for the purpose of health or welfare care.[12] Decisions to discharge or retain a member who had not had the required COVID-19 vaccinations were to be made by the Chief of the relevant Service.[13]
[10]TDFO, cl 12–13. See below at [53]–[60].
[11]Clause 15.
[12]Clause 17.
[13]Clause 20.
The Court of Appeal found, reversing the judgment of Churchman J in the High Court, that the CDF had not discharged the burden of showing that the limits the TDFO imposed on protected rights were demonstrably justified.[14] The Court did not set the TDFO aside but directed that the CDF reconsider it, taking into account changed circumstances including the Government’s removal in August 2023 of all remaining restrictions in relation to COVID-19.[15] It made an interim order prohibiting any further action against the respondents (as they are now) and others in the same position pending reconsideration of the TDFO.[16]
[14]Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17, [2024] 3 NZLR 1 (Gilbert, Collins and Goddard JJ) [CA judgment] at [165]. See Four Members of the Armed Forces v Chief of Defence Force [2022] NZHC 2497 [HC judgment].
[15]CA judgment, above n 14, at [168]–[169].
[16]At [170]. The formal order at [177] was not limited to the respondents.
This Court granted leave to appeal on the question whether the Court of Appeal was correct to allow the appeal.[17] Counsel were invited to focus on whether the Court of Appeal failed to allow the CDF a sufficient margin of appreciation when deciding whether the TDFO and related instruments were needed to ensure the Armed Forces met operational readiness requirements. Leave extended to the nature and extent of justification evidence required of the CDF and the specificity of pleadings.
The NZDF framework
[17]Chief of Defence Force v Four Members of the Armed Forces [2024] NZSC 75 (Glazebrook, Ellen France and Miller JJ).
The defence of New Zealand is a Crown prerogative, but the Crown requires the authority of Parliament to raise, maintain and deploy forces in New Zealand.[18] That authority continues under the Defence Act.[19] It provides that the Minister of Defence shall have the power of control of the NZDF, which shall be exercised through the CDF.[20] These provisions affirm a long-established constitutional principle: although the defence of New Zealand is a prerogative power, the military are subject to civilian control.[21]
[18]See generally Joseph Chitty A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (Joseph Butterworth and Son, London, 1820) at 43–46; Bill of Rights 1688 (Imp) 1 Will & Mar sess 2 c 2, art 1; and Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [19.4.2(3)].
[19]Defence Act, ss 5–6 and 9.
[20]Section 7. See also Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [7]–[8].
[21]See also Roger Howard Laws of New Zealand Defence: Armed Forces at [46]–[49].
Section 8(3) provides that the CDF shall command the Navy, the Army and the Air Force through the respective Chiefs of those Services. Command is the authority of an individual, by reason of their rank, to direct, co-ordinate or control armed forces.[22] The relationship between members of the Armed Forces and the Crown is not one of employment but rather a unilateral relationship of service under which members serve at His Majesty’s pleasure.[23] They are bound by an oath of allegiance which includes a promise to obey all orders of superior officers.[24] That extends, obviously, to obeying orders to engage in armed conflict, with attendant risks to personal safety. Members must also deploy in accordance with orders at any time, regardless of personal circumstances. The evidence of the then CDF, Air Marshal Kevin Short, is that “[c]oncepts such as command and morale are uniquely important to the effective functioning of a military force”. It is the duty of commissioned and non‑commissioned officers to afford the utmost aid and support to their superiors and to foster loyalty and trust in the personnel under their command.
[22]See at [47].
[23]See Defence Act, s 45; and Deynzer v Campbell [1950] NZLR 790 (CA).
[24]Defence Act, ss 34–35; and Defence Regulations 1990, reg 3.
In addition to the functions imposed on the CDF under the Act, or any other enactment, the CDF has certain express responsibilities to the Minister. Relevantly, s 25 provides that:
(1)In addition to the functions imposed on the Chief of Defence Force by or under this Act or any other enactment, the Chief of Defence Force shall—
…
(b) be responsible to the Minister for—
(i)the carrying out of the functions and duties of the Defence Force (including those imposed by any enactment or by the policies of the Government); and
(ii)the general conduct of the Defence Force; and
(iii)the efficient, effective, and economical management of the activities and resources of the Defence Force; …
…
DFOs are provided for in s 27(1):
In performing the functions and duties and exercising the powers of the Chief of Defence Force, the Chief of Defence Force may from time to time, for the purposes of this Act, issue Defence Force Orders, not inconsistent with this Act, the Armed Forces Discipline Act 1971, or any other enactment.
Section 45 provides for the CDF to prescribe conditions of service, subject to an obligation to consult the Public Service Commission.
Section 57A provides that members of the Services may be discharged or released by the CDF for behaviour which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a Service into disrepute:
(1)The Chief of Defence Force may institute the discharge or release of a member of the Services if the Chief of Defence Force has reasonable grounds for believing—
(a)that the member has behaved in a manner which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a Service into disrepute; and
(b) that the discharge or release of the member is necessary—
(i) to maintain good order and discipline; or
(ii) to avoid prejudice to the reputation of that Service.
…
The Armed Forces Discipline Act 1971 is a consolidation of former enactments of the Parliaments of New Zealand and the United Kingdom relating to Service members.[25] It provides for the discipline of the Armed Forces and the infrastructure and processes needed to administer military justice.[26] Part 2 of the Act creates offences, among many others, of treachery, cowardice when before the enemy, looting, creating alarm or despondency, mutiny, insubordination, and disobedience to lawful commands of a superior officer.[27] Section 72 creates an offence of endangering the health of members of the Armed Forces:
(1)Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding 2 years, who, without lawful excuse, refuses or fails to submit himself to medical, surgical, or dental treatment or procedures by a medical practitioner or dental practitioner, as the case may require, after being ordered to do so—
(a)by a medical or dental officer who is a medical practitioner or dental practitioner; or
(b)by a competent officer acting on the advice of any such medical or dental officer—
if any such treatment or procedure, whether preventive, protective, or curative, is stated by the medical or dental officer who gives the order or advice to be, in his opinion, essential in the interests of the health of other members of the Armed Forces, or to be such that refusal or failure to submit thereto would constitute a potential menace to the health of other members of the Armed Forces or would prejudice the operational efficiency of any part of the Armed Forces.
(2)In any proceedings in respect of an offence against subsection (1), where the order involves curative surgery, it is a defence to the charge if the accused proves that the provisions of Defence Force Orders relating to the right of a member of the Armed Forces to ask for a second opinion in such cases have not been observed.
It will be seen that medical treatment may be ordered if a medical practitioner has stated that, in their opinion, the treatment is essential in the interests of the health of other Armed Forces members or that refusal to submit would prejudice the operational efficiency of any part of the Armed Forces.
[25]Armed Forces Discipline Act 1971, long title. See also Howard, above n 21, at [160].
[26]See also Court Martial Act 2007; and Court Martial Appeals Act 1953.
[27]For the implications of disobedience for the concept of military discipline, see, for example, Nigel D White Military Justice: The Rights and Duties of Soldiers and Government (Edward Elgar Publishing, Cheltenham, 2023) at 26–27.
Section 73 creates an offence of doing or omitting any act that is likely to prejudice service discipline or bring discredit on the relevant Service.[28]
[28]Armed Forces Discipline Act, s 73(1)(a)–(b).
It is common ground that the vaccine mandate, created by DFO 3 and the addition to the baseline schedule, engages rights protected by the New Zealand Bill of Rights Act 1990 (NZBORA). They are the rights to refuse to undergo any medical treatment and to manifest religion and belief.[29]
The CDF’s rationale for the COVID-19 vaccination requirement
[29]New Zealand Bill of Rights Act 1990, ss 11 and 15. The respondents no longer rely upon the right to freedom from discrimination on grounds of religious belief or disability, as provided for in s 19.
Individual readiness requirements must be met by all members of the Armed Forces. They include baseline vaccinations, which are a condition that must be met on entry and maintained throughout the person’s career in the Armed Forces. Colonel Charmaine Tate, the Surgeon General and Director Defence Health,[30] explained why vaccinations are required in a military context:
Further, the spread of infectious diseases amongst a deployed military force can have a significant detrimental impact on its operational effectiveness, particularly if members of that force do not have any immunity to the disease, such that they may become seriously unwell. If deployed service members become seriously unwell, it compromises the deployed military force by unexpectedly decreasing its number of members, but also by virtue of placing an unexpected burden on deployed health services, and the evacuation chain.
Often the deployed environment is austere and advanced health services are not easily accessible. Much effort goes into optimising the health of all deploying NZDF personnel prior to deployment to reduce the likelihood that they will require health services and reduce the likelihood that they will need to be evacuated from a theatre of operations during their deployment. Any safe health advantage we can access, such as prophylaxis medication to prevent disease impact or vaccinations, is considered as part of this optimisation.
In most major recorded conflicts prior to World War II, disease was a much greater cause of casualties than wounds suffered at the hands of the enemy. This enduring feature of war was only reversed in World War II, chiefly as a result of major medical advances in prevention (vaccines) and treatment (antibiotics). Accordingly, the prevention and control of infectious disease is an important aspect of military strategy and operational success.
Risks of infectious diseases are reduced by measures such as infection prevention and control protocols, hygiene (personal, food and water), vector avoidance and control and waste and case management. Vaccinations are a critical and effective tool to reduce the likelihood of severe illness and impact for specific diseases that a service person may be exposed to.
[30]Before her appointment to these positions in June 2022, Colonel Tate was Chief Medical Officer, including when the COVID-19 vaccine was added to the baseline schedule.
Colonel Tate explained that the baseline schedule is based on an assessment of which transmissible infections a military population may be vulnerable to in New Zealand and what vaccinations may be needed to facilitate rapid deployment offshore. It currently includes the National Immunisation Schedule set by the Ministry of Health | Manatū Hauora (minus the HPV vaccine) plus Hepatitis A and COVID-19.[31] The enhanced schedule includes vaccines required for roles or locations where members are at risk of an infectious disease. Rabies, cholera and typhoid are examples.
[31]The COVID-19 vaccine now appears on the National Immunisation Schedule to be administered during pregnancy.
COVID-19 was designated on 11 March 2020 as a notifiable and quarantinable infectious disease.[32] Colonel Tate explained that it was identified as a disease which affects multiple organs, particularly in the respiratory system, and can cause critical acute symptoms and death and significant long-term consequences. It led in New Zealand to approximately 14,500 hospitalisations and 1,500 reported deaths to mid‑2022. Much was unknown about its origin and evolution. Decisions at the time had to be based on the best available information.
[32]Infectious and Notifiable Diseases Order (No 2) 2020. Before that, novel coronavirus capable of causing severe respiratory illness was designated a notifiable but not quarantinable infectious disease on 30 January 2020: Infectious and Notifiable Diseases Order 2020. COVID‑19 remained a quarantinable infectious disease until 1 October 2024: Infectious and Notifiable Diseases Order 2024. See now Health Act 1956, sch 1 pt 1 section B.
NZDF members were required to serve in roles in which they were at risk of exposure to COVID-19. That included service in connection with the Government’s quarantine regime, on international postings, or on civil defence operations. That was thought to necessitate vaccination to reduce the health risk of exposure to infected people. Vaccination was also thought necessary to reduce the severity and duration of illness. Isolation requirements beyond those applicable to the general public were also necessary to mitigate effects on NZDF’s capacity to perform its functions. In May 2022, the NZDF requirement was that household contacts (which included those sharing barracks) must isolate for at least seven days and until they were symptom-free,[33] meaning that a single case could have a significant effect on availability of personnel who shared barracks, messes and gymnasiums. Non‑pharmaceutical interventions, such as the use of masks and social distancing, are not always practicable during military training or operations. An unvaccinated person might place an unnecessary burden on the limited health services which may be available on some austere deployments; for that reason, unvaccinated persons could not be deployed overseas.
[33]This a wider and more onerous requirement than that set out in sch 2 of the COVID-19 Public Health Response (Self-isolation Requirements and Permitted Work) Order 2022 (as amended 2 May 2022). See also below n 73. The policy contemplated a narrow exemption process for persons required for urgent tasks.
Colonel Tate’s view was that the COVID-19 vaccines are well-researched and safe and have a huge impact on the burden of COVID-19 infection. In reaching that conclusion she relied in part on Ministry of Health advice, which has been supported by an affidavit of Dr Ian Town, Chief Science Advisor at the Ministry of Health. She accordingly recommended that the vaccination be added to the baseline schedule and later recommended that the booster doses also be added, primarily because they responded to later variants and helped maintain immunity levels.
Booster doses were moved to the enhanced schedule in March 2023. Colonel Tate made that decision because clusters of NZDF cases had become more related to collective activities and travel, rather than workplaces. That made it appropriate to consider booster doses immediately prior to planned collective activities and travel.
A decision was taken not to prosecute those who refused vaccination (primary or booster doses) without a medical justification, but rather to review their continued service.[34] The CDF considered that refusal was a matter of service, rather than discipline. That approach allowed members to choose to continue in the Armed Forces or leave, and it facilitated retention in cases where it was considered appropriate to retain the member in service.
DFO 3 and DFO 4
[34]Prosecutions might have been brought in respect of s 72 of the Armed Forces Discipline Act.
DFO 3 records that one of its purposes is to set a framework for individual readiness requirements, which are a fundamental component of operational preparedness:[35]
The New Zealand Defence Force (NZDF) is required by the Government of New Zealand to provide individuals and units/ships to meet contingencies within specified Degrees of Notice (DON). This Order provides the guidance and framework for managing the individual readiness of members of the Armed Forces.
Readiness, like combat viability, deployability and sustainment, is a component of operational preparedness. Therefore individual readiness needs to be applied within the context of the NZDF operational preparedness requirements.
The need for the NZDF to be able to deploy forces requires members of the Armed Forces to be at a level of individual readiness that allows them to deploy to conduct military operations. This ability is a fundamental component of military service.
…
The ability of the NZDF to deploy forces in a timely manner is based partially on the individual readiness of members of the Armed Forces. Individual readiness involves members of the Armed Forces who have completed basic training for their Service meeting prescribed standards and is a combination of professional, military, fitness, trade skills, administrative and other personal requirements.
Members of the Armed Forces are responsible for meeting and maintaining those aspects of individual readiness that are within their ability to control. Commanders are responsible for providing the training, mentoring, coaching and development opportunities to prepare members of the Armed Forces under their command for their designated roles. Single Services are responsible for providing the resources and the strategic direction to units to enable them to carry out their primary functions.
[35]DFO 3, cls 9.6.1 and 9.6.3. Clause headings are omitted throughout these reasons.
An objective of DFO 3 is to ensure that as many members of the Armed Forces as possible are ready to deploy to meet NZDF output requirements.[36] The impacts sought by DFO 3 are:[37]
(1)to ensure members of the Armed Forces achieve and maintain individual readiness, and
(2)the number of members meeting their individual readiness requirements is maximised leading to unit/ship readiness within designated DON and required Level of Capability (LOC).
[36]Clause 9.6.11.
[37]Clause 9.6.11.
DFO 3 establishes four readiness levels: (1) no impediments, (2) administrative or command issues need resolving but readiness can be achieved within response times, (3) ability to deploy is limited by factors that prevent readiness within response times, and (4) not deployable.[38] On posting to a unit or ship, members are to be initially categorised as being at one of these levels. Commanders are instructed that as many members as possible must obtain Level 1 or 2 readiness.
[38]Clause 9.6.16.
It is the responsibility of members to meet fitness standards that are within their ability to control, including maintenance of vaccines required under the Vaccination Schedule.[39] DFO 3 provides for corrective action for those who do not manage readiness requirements that are within their control. Corrective action extends to review of continued service in the NZDF:[40]
Where members of the Armed Forces are assessed as being unable to maintain individual readiness for reasons within or beyond their control, their continued service is to be reviewed in accordance with these Orders at DFO 3, Part 11, Chapter 8 Departing the NZDF (Military).
In the context of this provision, ‘unable to maintain’ means that the member of the Armed Forces is ‘not deployable’ and has been or is likely to be ‘not deployable’ for a period of time in excess of six months.
[39]Clauses 9.6.3, 9.6.17 and 9.6.36.
[40]Clause 9.6.50 (italics in original).
DFO 3 states that a member may be discharged on performance grounds where they are considered to be inefficient or ineffectual in the performance of their duties. It that the procedure for discharge is found in DFO 4:[41]
Discharge is where the NZDF initiates the departure of a member from the Regular Force or Territorial Force under this section, but not as part of a disciplinary process.
…
The Service may initiate the Performance discharge of a member of the Armed Forces where the member is considered to be inefficient or ineffectual in the performance of his or her duties, including repeated failure to meet single Service fitness requirements.
A Performance discharge is to be preceded by a review, and formal written warning for inefficient and ineffectual performance, in accordance with the procedure outlined in DFO 4.
The policy relating to the review and formal written warning for inefficient and ineffectual performance in DFO 4, Chapter 16, Section 7 is to be adhered to.
[41]Clauses 11.8.74 and 11.8.86–11.8.87. These provisions were later amended by Annex C to the TDFO, substituting “repeated failure to meet single Service fitness requirements” with “failure to meet individual readiness requirements”.
DFO 4 establishes a detailed process for discharge of Regular Force members who are inefficient or ineffectual in the performance of their duties.[42] Briefly, it provides for the person’s commanding officer to raise a report and allow the member to comment on it, to give a formal written warning if appropriate, to review the member’s performance during the period (being not less than three months) of the formal warning, to raise a further report at the end of that period, to provide full details if the recommendation is to discharge the member, to allow the member to comment on the report, and (if not satisfied with the member’s response) to forward the recommendation for discharge to the appropriate Service Chief or their delegate.[43]
Yardley v Minister for Workplace Relations and Safety
[42]Defence Force Order 4 [DFO 4], cl 16.104. Annex C to the TDFO expressly extended this discharge category to all members of the Armed Forces.
[43]DFO 4, cls 16.104–16.120.
We have explained that COVID-19 vaccination was added to the baseline schedule on 3 March 2021, and that Armed Forces members were obliged to receive it under DFO 3. The obligation to receive it later overlapped in part with two ministerial orders.
The first was an order made by the Minister for COVID-19 Response that came into force on 30 April 2021.[44] It required workers at Managed Isolation and Quarantine (MIQ) facilities, among other affected persons, to be vaccinated in order to carry out work at those facilities, among other border places. On 23 January 2022 this mandate was extended to boosters.[45] It was revoked for border workers on 2 July 2022.[46] Members of the NZDF fell within this mandate when deployed on Operation Protect, which supported MIQ facilities.
[44]COVID-19 Public Health Response (Vaccinations) Order 2021 (now revoked).
[45]COVID-19 Public Health Response (Vaccinations) Amendment Order 2022.
[46]COVID-19 Public Health Response (Vaccinations) Amendment Order (No 5) 2022.
The second was the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021, made by the Minister for Workplace Relations and Safety. It came into force on 15 December 2021, requiring that certain Police and NZDF work be done only by vaccinated personnel.[47] With respect to the NZDF, the Order extended to all work carried out by both civilian and uniformed personnel.[48] The Order was made under s 11AB of the COVID-19 Public Health Response Act 2020. We will call it the Minister’s Order to distinguish it from DFOs made by the CDF.
[47]COVID-19 Public Health Response Act 2020, ss 17A(1) and 17C–17D (now repealed); and Minister’s Order, cls 2 and 7 and sch 2. But see cls 8–11, which allowed for authorised exceptions and exemptions. Schedule 1 also provided for a transitional period.
[48]Minister’s Order, cl 4 definition of “Defence Force worker” and sch 2; and Yardley, above n 8, at [16].
In Yardley a number of Police and NZDF personnel sought judicial review of the Minister’s Order.[49] The application was heard urgently on 15 February 2022 and judgment was delivered on 25 February 2022, before the transitional period ended and the Order took full effect from 1 March.[50] The judgment did not directly address the mandate for border workers nor the baseline schedule that, pursuant to DFO 3 and DFO 4, already required Armed Forces personnel to receive the vaccination.[51] It did however inform the TDFO which, as we have explained, is now a focus of the present proceeding. The Court of Appeal also cited it in some detail in the judgment under appeal, and there are parallels in reasoning. For these reasons, it is necessary to examine Yardley in a little detail.
[49]Yardley, above n 8, at [2] and [17].
[50]At [3].
[51]But see at [82]–[83].
Cooke J noted evidence from the Minister that vaccination was necessary to ensure continuity of NZDF services, which are essential for public safety, national defence and crisis response.[52] The Minister had deposed that the NZDF performs a unique and critical function, which included the security of MIQ facilities. He stated that NZDF staff live and work at close quarters in shared facilities and an outbreak could affect NZDF’s operational capability.
[52]At [10].
Cooke J addressed the question of deference at the commencement of his analysis of reasonable justification. He held that:[53]
[62] … I am not convinced that reference to deference, or to a margin for appreciation clarifies the Court’s task in the present case. There is an important distinction between the policy decisions made by the Executive, and the legal questions that are addressed by the Court. The choices made by governments on their response to COVID-19 involve wide policy questions—including decisions on the use of border closures, lockdowns, isolation requirements, vaccine mandates and many other measures. These are decisions for elected representatives to make. The Court addresses narrower and more limited legal questions—here whether the measure adopted is a demonstrably justified limitation of rights pursuant to s 5 of the New Zealand Bill of Rights Act. The Court’s function is not to address the wider policy questions. The Minister was free to choose between any options that were legally open to him. The options were so open to him if they satisfied the legal requirement that they were a demonstrably justified limit on the relevant rights.
[63] I accept when addressing the legal questions that the views of the Minister as set out in his evidence are to be given weight. Equally the views expressed by Deputy Commissioner Kura and Brigadier Weston, as senior and experienced persons in their respective areas should also be given weight. Questions involving expertise, such as those addressed by Dr Town may give rise to institutional limitations on the Court’s ability to reach definitive conclusions, particularly when their evidence is only provided by way of affidavit. But ultimately the Court must exercise its constitutional responsibility to ensure that decisions are made lawfully. And the Crown has the burden to demonstrate that a limitation of a fundamental right is demonstrably justified. …
It will be seen that the Judge recognised that weight should be given to the views of the Minister, to the expertise and experience of Brigadier Matthew Weston (the NZDF Chief People Officer (CPO) at the time), and to the Court’s own institutional limitations when it came to making findings on (untested) affidavit evidence.
[53]Footnote omitted.
After citing R v Hansen for the usual methodology,[54] Cooke J identified the risk to the continuity of services as absenteeism from the workplace due to illness or the need to isolate as a close contact of someone ill with the virus.[55] Against that background, he reasoned that justification involved four specific questions:[56]
(a)How many unvaccinated workers the Order addresses compared with the overall workforce. In particular how many workers have been pressured into vaccinating, or have been terminated/resigned as a consequence of the Order?
(b)Of that number, how many would have been pressured to vaccinate, or terminated/resigned in any event as a consequence of the existing internal policies applied by Police and NZDF. In other words what is the effect of the Order that was not already being achieved by existing vaccination policies?
(c)What is the risk of the continuity of services of Police and NZDF arising from this number of workers that are so addressed by the Order? This will include evidence of the additional risks of contracting and transmitting COVID-19 arising from being unvaccinated, in light of the number of workers so identified, and the overall workforce and its dynamics. It will also include an assessment of the impact on public trust in these services.
(d)Does the benefit so identified amount to a demonstrably justified limit on the rights bearing in mind the adverse impact on the persons whose rights are so limited?
[54]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
[55]Yardley, above n 8, at [66].
[56]At [67].
Unfortunately, there was little evidence addressed to these questions.[57] The had addressed justification at a more abstract level.
[57]At [69]. The parties also proceeded on the basis that the purpose of the Minister’s Order was to address the spread of COVID-19 rather than to ensure the continuity of the public services and to promote public confidence in those services: at [26]. See below at [46].
The Judge was not prepared to accept that a mandate was justified for NZDF civilian staff, or that the Minister’s Order was necessary for uniformed personnel. He to evidence that 99.2 per cent of the Regular Forces (who are uniformed personnel) were vaccinated, leaving 75 members who were not, and he noted there was no evidence that the number who remained unvaccinated fell as a result of the Minister’s Order; put another way, there was no evidence that the Government’s mandate was effective:
[84] Brigadier Weston’s evidence is that at 1 February 2022 99.2 per cent of the regular forces were fully vaccinated leaving 75 members of the regular forces who were not. 98.7 per cent of the civil staff were fully vaccinated leaving 40 who were not. There is no evidence addressing whether the 75 regular force members changed in number because of the Government mandate implemented by the Order. Neither is there any evidence whether the 40 civilian staff was smaller in number than would have been the case had there been no Order and the NZDF’s internal employment policies left to operate. The maximum total number said to be covered by the Order is 115, with no evidence as to whether that number is smaller as a consequence of the Order, or evidence about terminations/resignations and how that would have been different with and without the Order. Neither do I have any evidence that there were in fact more than 115 workers addressed by the Order because the fact it was going to be implemented led some workers to get vaccinated or resign in anticipation (excluding those who would have resigned because of the operational policies in any event).
Nor was there evidence that the number of unvaccinated staff adversely affected NZDF’s capacity to ensure continuity of its capability.[58]
[58]At [85].
The Judge added that a reasonably low percentage of NZDF personnel were recorded as being ready for deployment for a range of reasons.[59] It would be necessary to know how the number of people subject to the mandate affected deployment capability.
[59]At [86].
The Judge then turned to whether the presence of unvaccinated personnel, even in small numbers, created a “materially higher risk” to the remaining workforce.[60] However, the evidence was again limited. There was a conflict of expert evidence about the impact of vaccinations on the spread of the then prevalent Omicron variant. Dr Nikolai Petrovsky’s opinion was that mandatory vaccination did not reduce spread and may even increase it (because of asymptomatic infections or undue reliance on the vaccine).[61] Dr Town did not respond directly to Dr Petrovsky’s evidence.[62] The concluded that:
[91] I take it from this evidence that vaccination may still have some effects in limiting infection and transmission, but at a significantly lower level than was the case with the earlier variants. It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID‑19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wanes after the second dose, and seems to wane in a similar way after the booster. I on the basis of Dr Town’s evidence that vaccination might contribute to preventing contracting and spreading the Delta and Omicron variants to some extent, although not nearly as much as it did against the original versions of COVID-19.
[60]At [87].
[61]At [88].
[62]See at [89]–[90].
The Judge accepted that the precautionary principle was relevant.[63] He accepted that decision-makers should act on the best available information at the time.[64] However, the Minister’s Order was imposed not to suppress spread but to ensure continuity of, and public confidence in, essential services. If there was evidence of a risk to continuity, there would be “room for giving the Crown the benefit of the doubt in imposing measures to address that risk”.[65] But he was not satisfied that the Crown had offered sufficient evidence to justify the measures, even giving it some benefit of the doubt.[66] He pointed to the relatively small numbers of personnel the Minister’s Order actually addressed, the lack of any evidence that the numbers would have been materially different without the Order, and the evidence that the Omicron variant in particular broke through any vaccination barrier. For these reasons he was not satisfied that there was a real threat to the continuity of essential services. He found that the impact of the Omicron wave would be significant but transitory, while termination of service would be permanent.[67] It might be that suspensions of the unvaccinated would address any significant problems arising from the Omicron wave; if so, that suggested the Order was not proportionate.
[63]At [64], [87] and [94]–[95].
[64]At [94] citing Spencer v Canada (Attorney General) 2021 FC 361, (2021) 490 CRR (2d) 1 at [113]–[114].
[65]At [95].
[66]At [97].
[67]At [98].
Finally, the Judge noted that the Minister’s Order allowed for only limited exceptions which generally did not depend on the individual circumstances of those involved.[68] He was not persuaded that the loss of flexibility, relative to that offered by internal Police and NZDF policies, had been justified.[69]
CDF Directive 13/2022
[68]At [102]–[103].
[69]We return to Yardley below from [124].
A number of CDF directives were issued in connection with the COVID-19 vaccination. We need not survey them.[70] Generally, they explained that vaccination was required and established processes for dealing with those who declined either the primary or booster vaccinations. These processes included retention or discharge under DFO 4.[71] We do note that one of them, CDF Directive 31/2021, which implemented the Minister’s Order, stated that members of the Regular Forces serving in New Zealand who by 17 January 2022 had not received at least one dose were to be stood down on COVID‑19 isolation leave.[72]
[70]They include CDF Directive 14/2021 (and the associated CPO Administrative Instruction 04/2021), CDF Directive 26/2021 and CDF Directive 31/2021 (and the associated CPO Administrative Instruction 05/2021). We discuss CDF Directive 13/2022 here, which was followed by CDF Directive 20/2022, the TDFO and the associated CPO Administrative Instruction 01/2022.
[71]That was the position from the vaccine’s addition to the baseline schedule until CDF Directive 31/2021, and again after the revocation of the Minister’s Order.
[72]CDF Directive 31/2021, cl 12. CDF Directive 31/2021 was issued on 20 December 2021 and rescinded on 12 April 2022 by CDF Directive 13/2022 (although Yardley was delivered on 25 February 2022). The latter directive also cancelled CPO Administrative Instruction 05/2021. CDF Directive 13/2022 was itself rescinded on 13 May 2022. Clause 8 of the TDFO also cancelled CDF Directive 31/2021 and CPO Administrative Instruction 05/2021.
The position as at March 2022 was that New Zealand was at the start of what was predicted to be a significant surge of Omicron cases in the community. There had been a significant base outbreak in Auckland but its spread had been contained. Colonel Tate recommended that the vaccine requirement should remain for uniformed personnel to meet vaccine mandates for border force and international deployments, ensure immediate readiness, provide personal protection and reduce chances of onward transmission. Unvaccinated persons were considered more likely to contract and transmit the disease and become seriously unwell. She noted that experience had shown that very large numbers of people could be affected by a single case, because of the need to self-isolate.[73] For the same reasons, vaccination was recommended for civilian staff in NZDF workplaces.[74]
[73]This isolation requirement, which at that time applied to positive cases and their household contacts, was not limited to the NZDF. Members of the public were also required to self-isolate: see, for example, COVID-19 Public Health Response (Self-isolation Requirements and Permitted Work) Order 2022 (as made). It was not until 12 September 2022, well after the introduction of the TDFO, that household contacts were no longer required to isolate: see COVID-19 Public Health Response (Self-isolation Requirements) Amendment Order 2022. The isolation requirement for positive cases was then removed on 15 August 2023.
[74]Rather than readiness, a concern in relation to unvaccinated civilian staff was capability disruption.
A number of discharge decisions were in train at the time for unvaccinated Armed Forces members. CDF Directive 13/2022, issued on 12 April 2022, noted that these were rescinded in response to the decision in Yardley.[75] The Directive established processes that were thought to be consistent with Yardley, varying the DFO 3 and DFO 4 process as follows:[76]
(a)For Regular Force members who had not received the primary course: A formal written warning was no longer required. Instead, these members were to be notified by 29 April 2022 that they were subject to discharge.
(b)For Regular Force members who had not received the booster: The formal written warning period was to be no more than two weeks in duration. They had until 15 May 2022, or within three weeks of becoming eligible for a booster, to receive the booster or they would be subject to discharge.
[75]CDF Directive 13/2022, cls 5 and 10. However, the CPO advised the CDF that these members remained on COVID-19 isolation leave unless directed otherwise by their commanding officer.
[76]Clauses 14 and 17. Clauses 19–20 provided limited exceptions for certain members who were on parental leave or subject to disciplinary proceedings. Clause 18 provided that members deployed overseas who became subject to discharge were to be returned to New Zealand as soon as practicable.
For those subject to discharge, their commanding officer was to forward the retention report to the relevant Service Chief, who was to be the approving authority for retention.[77] Unvaccinated members of the Territorial Forces were also prohibited from entering NZDF areas or attending training, and from 30 June 2022 were to have their service reviewed.[78]
[77]Clause 14(c).
[78]Clauses 15–16.
CDF Directive 13/2022 was cancelled in turn on 13 May 2022, following an application for judicial review by members of the Armed Forces. It was replaced on 25 May 2022 by the TDFO,[79] and an associated administrative instruction was issued on 31 May 2022.[80]
The TDFO and Administrative Instruction
[79]See above n 7.
[80]See below at [59].
The TDFO stated that its purpose was to give directions about the COVID-19 vaccine requirement and to specify grounds and processes for discharge for failure to meet individual readiness requirements relating to the vaccination.[81]
[81]TDFO, cls 2–3.
The TDFO repeated the main rationale for including the COVID-19 vaccination on the baseline schedule:[82]
[Members’ pre-existing requirement to be vaccinated for COVID-19] goes beyond health and safety and extends to their ability to serve where required by the NZDF, both domestically and internationally. Members of the Armed Forces who are unable to maintain their individual readiness for reasons within or beyond their control, are to have their continued service reviewed.
Other rationales were said to include the vaccine mandates for border entry, available clinical evidence for reducing the risk of serious illness or poor health outcomes, and that the vaccine reduces the chance of onward transmission and therefore avoids impacting critical outputs, including safety-related components of duty tasks.[83]
[82]Clause 6 (footnote omitted).
[83]Clause 7.
It explained that members had been on notice of the requirement since mid‑2021:[84]
Members of the Armed Forces have been on notice since mid-2021, that being vaccinated against COVID-19 is a requirement of continued service in the Armed Forces. Every effort has been made by the NZDF to educate and reassure members as to the need for the vaccine. …
It has also been communicated to members of the Armed Forces that failure to meet individual readiness requirements may lead to a review of retention in the Service.
Consequently, any member of the Armed Forces who is not fully vaccinated for COVID-19 pursuant to the NZDF Vaccination Schedule is ineffectual, and is to have their continued service reviewed [in accordance with Annex A to the TDFO].
[84]Clauses 10–12 (footnotes omitted).
The TDFO made the following changes to DFO 3 and DFO 4 processes:[85]
(a)Deemed ineffectual, and continued service to be reviewed: Any member of the Armed Forces who was not fully vaccinated for COVID-19 was deemed ineffectual, and was to have their continued service reviewed.[86]
(b)Prohibited from deploying: Members who were not fully vaccinated but were eligible for a vaccination (including a booster) were not to deploy overseas, or domestically as part of a national contingency response capability or any domestic activity with a formal COVID-19 vaccination requirement. Members who were not fully vaccinated but were not yet eligible for a vaccination required a command exemption before deployment.[87]
(c)Prohibited from accessing camps and bases: Members of the Regular Forces who had not received their primary COVID-19 vaccination(s) were not to access any NZDF camp, base or facility unless for the purpose of seeking health or welfare care, or support, and were to remain on COVID-19 isolation leave. Members of the Territorial Forces who had not received their primary COVID-19 vaccination(s) were not to access any NZDF camp, base or facility and were not to undertake any NZDF training or other duty-related work. Members of the Armed Forces who had not received a booster were able to access NZDF camps, bases or facilities and undertake duties and training, but only within constraints that would be determined through the review process.[88]
(d)Service Chiefs to be the approval authority for discharge: Commanding officers were no longer authorised to retain members subject to discharge on performance grounds for failure to receive the COVID-19 vaccinations.[89] Instead, they were to forward the retention report, including any submissions made by the member, to the relevant Service Chief. The relevant Service Chief was then to serve as the approval authority for discharge on performance grounds. This delegation was not to be sub‑delegated.[90]
[85]The TDFO also dispensed with or heavily truncated formal warning processes: see below at [58]. See also above nn 41–42.
[86]Clause 12.
[87]Clauses 15–16.
[88]Clauses 17–19. See below n 95.
[89]Annex A cl 5(c).
[90]Clause 20.
It will be seen that members of the Regular Forces who had not received their primary vaccination were not to access any NZDF camp, base or facility unless for health or welfare care, and they were to remain on COVID-19 isolation leave. A re had been introduced in Auckland on 21 November 2021 to reduce transmission risk by ensuring that all visitors and personnel within specified workplaces, service accommodation or other facilities (such as barracks, messes and gymnasiums) were vaccinated.[91] A directive issued alongside the TDFO then cancelled that measure,[92] but the TDFO extended nationwide the prohibition on unvaccinated members of the Armed Forces from accessing NZDF camps, bases and facilities to the extent described above.
[91]CDF Directive 26/2021, cls 21–22. Clause 23 set out certain exemptions. On 16 January 2022, CDF Directive 33/2021 extended the requirement on visitors to apply nationwide.
[92]CDF Directive 20/2022 instead required risk mitigation and management practices, such as masks.
The formal warning period was removed for those who had not received the primary vaccination, and the maximum warning period for those who had not received a booster was reduced to two weeks.[93] The reasons for doing so were explained by Brigadier Weston and the CDF. Essentially, a formal warning procedure was superfluous because the primary vaccination had been an individual readiness requirement for more than a year, and the booster for three months. The to elevate approval for discharge to Service Chiefs was taken to ensure consistency of decision‑making, recognising that Service Chiefs had sufficient overview of operational effectiveness.
[93]TDFO, annex A cl 5. Compare DFO 4, cl 16.112(d) which required a formal warning period of not less than three months. These changes were already introduced in CDF Directive 13/2022, albeit rescinded on 13 May 2022: see above at [50].
Brigadier Weston also issued CPO Administrative Instruction 01/2022 (Administrative Instruction) which established a number of criteria that Service Chiefs must consider when making discharge or retention decisions under the TDFO:[94]
[94]CPO Administrative Instruction 01/2022, cl 7. Clause 6 clarified these criteria were not exhaustive. The CPO was required by cl 21 of the TDFO to issue these criteria. Clause 22 then required Service Chiefs to consider these criteria when deciding whether a member should be discharged or retained in service.
a.Has the member received the primary COVID-19 vaccination(s)?
b.Is the member in a strategically significant trade or [do they] have critical skills needed by the Service to meet Outputs 4 or 5 [to protect New Zealand’s sovereignty and security, and to contribute to New Zealand’s security, stability and interests, respectively]?
c.Is the member subject to a [Return of Service Obligation], such that it is in the interests of the Service to retain?
d.Is the member critical to the successful introduction into service of key capabilities in the next 12 months (ie are they posted to a project, transition unit or receiving unit supporting the introduction of a new capability)?
e.Is the member in a trade and/or a rank group with an attrition rate significantly higher than the Service 12-month rolling average?
f.Does the retention of the individual delay the promotion of others who do meet the [individual readiness requirement] for COVID-19 vaccination(s)?
g.Is the member considered a ‘single point of failure’ for key organisational outputs (ie broader than section/unit impact)?
h.Does the member not meet other [individual readiness requirements] in addition to not meeting the COVID-19 vaccination(s) [individual readiness requirement]?
i.Does the member hold a rank or position whereby their continued refusal to be fully vaccinated undermines service discipline?
j.Can the member be employed in a role that is not required to meet Output 4 or 5 tasks [in accordance with] para 14 and 15 of [the TDFO]?
k.Are there exceptional welfare reasons that support retention?
It will be seen that the criteria included the member’s skills and role, whether the member was a “single point of failure”, the implications for service discipline of the member’s refusal given their rank or position, capacity to deploy the member elsewhere, and exceptional welfare reasons.
To summarise, the TDFO initiated the retention review process for every member of the Armed Forces who was not fully vaccinated. The retention review process was to be according to DFO 3 and DFO 4 with two notable modifications. First, the formal warning process was either dispensed with or heavily truncated. Second, commanding officers could not decide to retain a member; instead, the relevant Service Chief (and not a delegate) was to make the final decision. The criteria took into account the need for the member’s skills and capabilities, their rank and position, capacity to deploy them elsewhere, and personal circumstances. Unvaccinated Regular Force members were already on isolation leave but the TDFO also limited their access to NZDF camps, bases and facilities (where that was not already the case). In the event a member was retained but continued not to meet individual readiness requirements, the prohibition from deployment was still to apply, and they were to be subject to a new retention review where they were required for certain deployments and in any event after 12 months from their Service Chief’s decision.[95]
[95]Clause 23. The TDFO was then amended on 23 June 2022 by Temporary Defence Force Order 07/2022, extending some of the dates by which the Service Chiefs had to make their decisions, as well as some of the termination dates. We infer that these dates were extended again on 8 August 2022 by Temporary Defence Force Order 09/2022, which is not in evidence. They extended again on 7 September 2022 by Temporary Defence Force Order 13/2022. The latter amendment order also allowed retained members to access NZDF camps, bases or facilities within certain constraints.
As noted earlier, in March 2023 Colonel Tate removed booster doses from the baseline schedule and added them to the enhanced schedule.[96]
Discharge and retention of Armed Forces members who refused COVID-19 vaccination
[96]Above at [26].
Brigadier Weston deposed that 39 members of the Regular Forces had their service reviewed by Service Chiefs for failure to receive the primary vaccination. The discharged and retained by each Service are recorded in this table:
| Service | Discharge | Retain |
| Navy | 6 | 6 |
| Army | 12 | 10 |
| Air Force | 4 | 1 |
It will be seen that a substantial minority (44 per cent) were retained.
The respondents
We turn to the circumstances of the four respondents. Their names and identifying particulars remain suppressed. The record contains details of the process followed in B’s case, but not the others.
A serves in the Army as a corporal. He is unvaccinated. He gives three reasons for declining to be vaccinated: his religious beliefs; lack of transparency from NZDF; and concern at provisional approval that the vaccine has received. He describes his religious beliefs as being traditional Catholic. He stands against abortions and does not believe in taking a vaccine that may have been developed and tested using cells descended from cells taken from an aborted human foetus. He also doubts the efficacy of the vaccine on transmission and infection rates and considers his risk of contracting and dying from COVID-19 to be “statistically low”.
A was retained by the Chief of Army. As at the Court of Appeal hearing, he was still subject to a retention review 12 months after his initial retention review. That review would have taken place by 15 August 2023. We do not know what happened at that review. No undertaking was made in respect of A as the CDF said in October 2022, following the High Court decision, that “his position will not be affected by either the outcome of the [a]pplication [for a stay] or the appeal itself”.
B is a former senior officer who served for 32 years in the Army. He had a distinguished career which included several overseas deployments, including two operational deployments in Afghanistan. He held the rank of Lieutenant Colonel. B is unvaccinated. He pleaded that he holds religious beliefs against abortion and those beliefs do not permit him to receive the vaccine, which he believes was developed using cells descended from cells taken from an aborted human foetus. He is also concerned that the COVID-19 vaccines are “still experimental” and at what he described as “the number of adverse health reports made globally”. He believes there is a significant but as-yet-unknown risk of an adverse reaction, which he deems unacceptable.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Appellants
Frontline Law, Wellington for Respondents
H M M Northover, Te Kāhui Tika Tangata | Human Rights Commission, Wellington for Intervener
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