Katipa v Chief of Navy
[2025] NZHC 2256
•11 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-682
[2025] NZHC 2256
UNDER The Judicial Review Procedure Act 2016 AND UNDER
The Declaratory Judgments Act 1908
IN THE MATTER
of an application for judicial review of the decision of the Chief of Navy to ‘CAT DF’ discharge Warrant Officer Darren Katipa under DFO 4
BETWEEN
DARREN KATIPA
Applicant
AND
CHIEF OF NAVY
First Respondent
AND
ATTORNEY-GENERAL OF NEW ZEALAND
Second Respondent
Hearing: 23 June 2025 Appearances:
M I Hague and S A Baker for the Applicant
A W M Britton, B R McCook-Weir and J K Rowe for the Respondents
Judgment:
11 August 2025
JUDGMENT OF GWYN J
KATIPA v CHIEF OF NAVY [2025] NZHC 2256 [11 August 2025]
TABLE OF CONTENTS
Para Nos
Introduction[1]
Background[8]
Relevant law — Defence Act 1990 and Defence Force Order for
Personnel Administration[30]
First ground of review — illegality[40]
Applicant submissions[40]
Respondent submissions[48]
Discussion[56]
Margin of appreciation[56]
Was the Decision ultra vires?[60]
Conclusion on first ground of review[88]
Second ground of review — unjustified limitation on the presumption
of innocence[89]
Applicant submissions[89]
Respondent submissions[92]
Discussion[94]
Third ground of review — unjustified limitation on the principles
of natural justice[101]
Applicant submissions[101]
Respondent submissions[107]
Discussion[112]
Fourth ground of review — unjustified limitation on the right to work [130]
Applicant submissions[130]
Respondent submissions[132]
Discussion[133]
Conclusion[139]
Relief [140]
Costs[145]
Introduction
[1] This judicial review proceeding concerns the Acting Chief of Navy’s decision to discharge the applicant, Darren Katipa, from the Royal New Zealand Navy (the Navy). The respondents are the Chief of Navy (CN) and the Attorney-General.
[2] On 26 April 2024, acting under the Defence Force Order for Personnel Administration (DFO 4) and s 57A of the Defence Act 1990 (the Act), the Acting CN (A/CN) discharged Mr Katipa from his service in the Navy (the Decision).
[3] The Decision took into account an alleged admission by Mr Katipa of an enduring association with a member of an organised crime group and two criminal charges that were laid against him in June 2021.
[4]Mr Katipa has advanced four grounds of review.
[5] The first ground of review is that the Decision was ultra vires DFO 4. At the heart of this aspect of the case is Mr Katipa’s contention that the meaning of dischargeable “conduct” under DFO 4 does not include unproven allegations of criminal offending.
[6] Further, Mr Katipa contends that the Decision unjustifiably limited his rights to the presumption of innocence and the principles of natural justice guaranteed by the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) and the right to work under the Universal Declaration on Human Rights (UDHR). These comprise the second to fourth grounds of review.
[7] Mr Katipa seeks a declaration that the Decision is unlawful and an order setting the Decision aside.
Background
[8] Mr Katipa joined the Navy in 1997. He held the rank of Warrant Officer in the Combat Systems Specialist (WOCSS) trade prior to his discharge. This role required Mr Katipa to hold a personnel security clearance at the level of SECRET and obliged
him to inform the Navy of matters that could potentially affect his suitability to hold that security clearance.
[9] On 19 August 2019, Mr Katipa self-reported a “change of circumstances” relevant to his security clearance. In his change of circumstances report, Mr Katipa provided the following information:
Affiliation with an individual – the drug bust that occurred Rotorua (I believe it was the 13.08.19) where Lionel McDonald was arrested on drug related charges. I have known him for at least 3-4 years through family, becoming friends in the last 12 months because of a shared interest in fishing and boating. During the last 12 months I have seen him about once a fortnight mainly around boating and fishing. I have had drinks with him, in Rotorua at bars and at family gatherings. I had considered him a friend.
[10] Mr Katipa states that he learned of Mr McDonald’s arrest and the criminal charges through a newspaper and ceased contact with Mr McDonald no later than August 2019.
[11] On 29 September 2020, the Directorate of Defence Security (DDSy) suspended Mr Katipa’s security clearance. In its minute, the DDSy stated:
1. WO Katipa has a confirmed and enduring association with organised criminal and is subject of an investigation into crimes involving illegal substances.
2. Reference A prescribes the New Zealand Government's requirements that a person must be suitable (and remain suitable) to be considered for a security clearance. An assessment of a person's suitability is that they possess and demonstrate an appropriate level of integrity, soundness of character
and moral principle to hold a national security clearance.
3. At Reference A, the Adjudicative Guidelines E1 and E4 set out criminal history and conduct factors which, in the absence of credible mitigations, makes WO Katipa unsuitable to hold a national security clearance at any level. Furthermore, noting that his association with organised crime, WO Katipa behaviours do not align with NZDF values, specifically Integrity (Tu Maia).
4. Given the nature of WO Katipa's association with organised crime and associated security concerns involved, I have formed the opinion that WO Katipa should not have access to any national security classified information, CIS or Restricted NZDF facilities.
[12] The first sentence of the minute was footnoted as follows: “WO Kaitpa’s (sic) own admission and confirmed in other agency reporting” (emphasis in original).
[13] Mr Katipa was also suspended from duty and a banning order was imposed, preventing him from accessing the Navy’s site and facilities.
[14] The DDSy issued a further minute on 16 December 2020. Its stated purpose was to notify that the DDSy had initiated a review of Mr Katipa’s security clearance and request that Mr Katipa be provided with an opportunity to respond with information that should be taken into account when deciding to retain or cancel his security clearance.
[15] The minute also noted that in 2019 Mr Katipa had self-disclosed “an enduring familial relationship with a criminal (McDonald)”. It went on to say:
Subsequent enquiries indicate that WO Katipa’s relationship with McDonald, and likely others, was more substantive than what he had declared.
Furthermore, WO Katipa has, allegedly, viewed information from a secure system that is beyond his need-to-know and misused NZDF CIS by accessing official information for which his role and responsibilities has no valid need or purpose.
[16] Mr Katipa responded to the security clearance review on 11 January 2021 challenging the statement by the DDSy’s statement that his relationship with Mr McDonald was “enduring” and emphasising that the contact was through a fishing group. In relation to the allegation that he had improperly viewed information from a secure system, Mr Katipa said he was:
…unsure of what specifically this refers to. I have had occasional access to SIE in my current and former roles…
… I am happy to give further comment as required if a specific allegation is made and I maintain that I have not knowingly accessed or viewed information from a secure system that is beyond my need to know.
[17] On 27 January 2021, the DDSy recommended that the Vice Chief of Defence Force (VCDF) cancel Mr Katipa’s security clearance. In that recommendation, the DDSy reiterated:
… subsequent enquiries to determine the degree of WO Katipa’s association with a convicted criminal affects his trustworthiness (and therefore suitability to retain his security clearance) indicated that WO Katipa’s relationship with McDonald, and likely others, was more substantive than what he declared.
[18] The recommendation also recorded a second reason for the recommendation, which was said to be “likely linked” to the first, that Mr Katipa had allegedly viewed information from a secure system beyond his need-to-know.
[19] The VCDF responded to the recommendation by minute of 7 April 2021. The VCDF restored Mr Katipa’s clearance, on the basis that there was “insufficient evidence currently available to me to reasonably support the cancellation of the security clearance”. Mr Katipa’s security clearance suspension was revoked on 7 April 2021. His banning order and suspension were also revoked on 28 April 2021.
[20] On 7 June 2021, Mr Katipa was arrested and charged with conspiracy to deal a class A drug (cocaine)1 and participation in an organised criminal group.2 Mr Katipa has pleaded not guilty to the two charges. His trial is currently scheduled for 29 June 2026 at the Auckland High Court.3 Mr Katipa’s security clearance was again suspended on 8 June 2021. He was suspended from duty and issued with a banning notice on 18 June 2021.
[21] Under DFO 4 and s 57A of the Act, the Chief of Defence Force may discharge a service member where the “conduct of a Regular Force Service member is such that retention in the New Zealand Defence Force (NZDF) is no longer desirable.”4 Under an order of the CN, Rear Admiral David Proctor, Mr Katipa’s retention in the Navy was reviewed by the Commanding Officer of Base Philomel, Captain (Capt) Simpkins, on 4 December 2023.5 Capt Simpkins was directed to review the impacts of Mr Katipa’s conduct, including on his security clearance. Mr Katipa was advised in writing of the review and the potential outcomes of the review on 11 December 2023.
[22] Lieutenant (LTCDR) Blackmore was appointed to undertake a Conduct Shown Retention Undesirable discharge (CAT DF discharge) review of Mr Katipa.
1 Misuse of Drugs Act 1975, s 6. Maximum penalty 14 years’ imprisonment.
2 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
3 This proceeding does not (and cannot) address the criminal charges against Mr Katipa. That will be a matter for the jury at his trial.
4 Defence Force Order for Personnel Administration [DFO 4], cl 16.133.
5 At the time of the decision, Capt Simpkins held the rank of Commander. She is referred to as Capt for the purposes of this judgment.
LTCDR Blackmore’s report (the CAT DF Discharge report) from 24 January 2024 recorded the following:
a. 29 Sep 20 - WOCSS Katipa's SECRET security clearance was suspended by the Directorate of Defence Security (DDSy), following WOCSS Katipa's admission of an enduring association with a member of organised criminal group. WOCSS Katipa was subsequently suspended from duty and issued a banning notice.
b. 07 Apr 21 - WOCSS Katipa's security clearance was restored after· a review by VCDF.
c. 28 Apr 21 - WOCSS Katipa's suspension and banning order were revoked.
d. 08 Jun 21- WOCSS Katipa's security clearance was once again suspended by DDSy following his arrest and subsequent charges laid by the New Zealand Police.
e. 18 Jun 21-WOCSS DMK Katipa was once again suspended from duty and issued with a banning notice. This suspension and banning order remains in place.
3. The prosecution of WOCSS Katipa is ongoing. He is scheduled to appear in the Auckland High Court on 16 Sep 24 to face trial by jury. He has been bailed to his home address in Rotorua until the trial commences.
[23] The report noted that Mr Katipa had a successful career in the Navy and “numerous Divisional Officers had reported he had performed to a high level and contributed significantly to the outputs [of] the relevant unit”. The report recorded that criminal charges can only be laid where there was “sufficient evidence to support a reasonable prospect of conviction”. It observed that although the criminal charges had “not yet been determined by the civilian justice system,” they were “serious in nature and significantly undermine the trust and confidence that command can place in WOCSS Katipa”. Further, Mr Katipa’s security clearance suspension and banning order was assessed to “degrade trust and confidence” in him to “such a degree that it is no longer tenable for WOCSS Katipa to remain in Service”. The report recommended that a CAT DF discharge take place.
[24] Mr Katipa was provided with the report for comment on 2 February 2024. He met with Capt Simpkins to discuss its contents on 16 February via Microsoft Teams. Mr Katipa provided a written response to the report on 21 February 2024, which requested that the Navy clarify the “specific action I have undertaken that undermines confidence” and requested clarification of what “connection or
association that I have with organised crime”. Mr Katipa requested a self-release from the Navy to avoid the stigma and loss of potential entitlements based on length of service that would result from a CAT DF discharge.
[25] Capt Simpkins recorded her consideration of LTCDR Blackmore’s report and Mr Katipa’s comments in a minute of 14 March 2024. Mr Katipa’s comments were noted as follows:
a. the delays in the civilian court are outside of his control;
b. the withdrawal of his NSC is a standardised action initiated in a range of circumstances;
c. the RNZN has denied him name suppression;
d. the CAT DF Retention Review should be expunged/sealed when the charges have been dismissed; and
e. rather than CAT DF discharge, WOCSS Katipa would prefer to self-release from the RNZN.
[26]Capt Simpkins observed:
The key question to answer in determining whether retention or discharge is appropriate comes down to whether WOCSS Katipa can be trusted in an operational setting. This is both from my view as a Commander and also the likelihood of trust from other members of the NZDF.
In light of the information above, I have determined that the allegations against him have already bought [sic] the RNZN into disrepute and therefore, can no longer be trusted in an operational setting. Due to the suspension of his NSC and the nature of his trade, he cannot currently conduct any work for the RNZN. Therefore, it is determined that WOCSS Katipa's retention is no longer desirable and the recommendation is to administratively Discharge WOCSS Katipa.
[27] Capt Simpkins finalised the recommendation for discharge on 14 March 2024. Mr Katipa was provided with the recommendation on 15 March 2024. He advised that he would not formally comment. LTCDR Marshall received and reviewed the recommendation and approved the discharge recommendation on 15 March 2024.
[28] During the period 21 April to 29 April 2024, the current Deputy CN of the Navy, Commodore Woodhead, was the A/CN. A/CN Woodhead acted under a formal
delegation of power from the CN in deciding to discharge Mr Katipa (the Decision).6 On 26 April 2024, A/CN Woodhead approved the recommendation for Mr Katipa’s discharge. The Decision is set out in full below:
I have reviewed the evidence, advice and recommendations at the references, summarised above by [the Deputy Director Coordination (Navy)], reviewed the relevant sections of DFO 4, and taken into consideration all information therein.
The task required of me is to consider all available evidence and determine whether, on the balance of probabilities, WOCSS Katipa has conducted himself in a manner which undermines the trust and confidence that can be placed in him in an operational setting and that therefore his retention is no longer desirable. This is a different evidential threshold to that required of a criminal court and my decision is not contingent on the outcome of the prosecution now faced by WOCSS Katipa.
I have taken all facts into account, including, inter alia, that:
· WOCSS DMK Katipa has admitted that he had an enduring association with a member of an organised crime group;
· WOCSS Katipa has been charged with, and is awaiting trial for, alleged offending relating to participation in organised crime and drug related offending, both of which are serious offences which are the antithesis of the NZDF's core values and carry substantial potential prison sentences;
· this alleged offending has been linked to his service in the RNZN, thus bringing the Service into disrepute and undermining the trust and confidence that can be placed in him; and
· WOCSS Katipa's National Security Clearance, required to be able to discharge the duties of his branch, has been withdrawn.
In relation to the charges and the fact that a trial has not yet taken place, I am aware that the Crown can only lay charges if the evidence is assessed as providing a reasonable prospect of conviction.
I have also considered and taken into account WOCSS Katipa's comments tendered during the process of the retention review investigation. I also note the reporting officer's summary of WOCSS Katipa's career and performance.
On the facts and advice provided by the investigation officers I assess that on balance, WOCSS Katipa has conducted himself in a way that undermines the trust and confidence that can be placed in him in an operational setting.
I conclude that WOCSS Katipa's conduct, over a period of time, is not only incompatible with the mana and leadership expected of a senior rating, but has shown a level of disregard for the discipline of Service life so as to indicate his unsuitability for continued service.
6 Defence Act 1990, s 30(2). References to the CN throughout this judgment include Commodore Woodhead in his capacity as A/CN.
I therefore approve the recommendation of WOCSS DMK Katipa's Commanding Officer that he be discharged from the Service under Category DF.
[29] Following this, Mr Katipa was informed on 30 April 2024 of the Acting CN’s direction for his discharge and advised that he would be discharged from the Navy on 6 May 2024.
Relevant law — Defence Act 1990 and Defence Force Order for Personnel Administration
[30] Section 57A(1) of the Act deals with when service members may be discharged. It reads:
57A Members may be discharged or released for incompatible behaviour
(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.
…
[31] Section 27 of the Act gives the Chief of Defence Force, or any duly authorised individuals, the power to issue Defence Force Orders (DFOs). DFOs are a form of delegated legislation that govern the operation of the NZDF. DFO 4 is the set of DFOs establishing “the responsibilities of the New Zealand Defence Force for formulating policy for conditions of service relating to Personnel Administration matters”.7 It was issued on 18 October 2005 and establishes the process for releasing or discharging a member of the Armed Forces.
7 DFO 4, cl 1.
[32] DFO 3, pt 11, ch 8 provides that the Service may initiate conduct discharge of a member of the Armed Forces under s 57A of the Act. The process for the CAT DF discharge of a service member under s 57A, is set out in DFO 4, ch 16, s 8:
Section 8 Discharge – Conduct Shown Retention Undesirable (Category DF)
Introduction
16.133 Discharge (Category DF) may be invoked under section 45 and 57A of the Defence Act 1990 when it is considered that the conduct of a Regular Force Service member is such that retention in the NZDF is no longer desirable. The desirability of retaining a Regular Force Service member must ultimately be judged against the trust a commander could place in that individual in an operational setting. It is in the interests of all members of the NZDF that unsuitable Regular Force Service members be discharged before problems arise in an operational setting.
16.134 Discharge (Category DF) is not to be used as a substitute for disciplinary action. Commanding Officers are responsible for maintaining the discipline of their units or ships and it is an abrogation of that responsibility to resort to discharge to avoid the duty of dealing with problematic Regular Force Service members. In assessing whether a Regular Force Service member’s retention is desirable, Commanding Officers or Superior Commanders are to consider whether failure to discharge a Regular Force Service member whose conduct indicates that retention is not desirable compounds a problem for someone else to inherit.
Conduct
16.135 For the purposes of this Section ‘conduct’ that indicates retention may not be desirable includes, but is not limited to, the following:
a. Convictions by courts-martial and findings of guilt by summary disposal.
b. Convictions before a civil court.
c. Actions and behaviour not dealt with by criminal or disciplinary proceedings, but which can still be proven to a satisfactorily high standard, to be undesirable.
d. In exceptional cases, offences that have been disposed of by pre-trial diversion or discharge without conviction.
Note: Pre-trial diversion and discharge without conviction are designed to give minor offenders a second chance without gaining a criminal record, which may jeopardise future employment opportunities. Such offences may, therefore, only be considered when the offending has special implications for the disciplinary integrity and/or operational effectiveness of the Armed Forces that were not considered by the Police or the Court when the decision to divert or discharge without conviction was made.
e. Behaviour which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a Service into disrepute.
[33] Clause 16.136 sets out examples of the conduct outlined in cl 16.135. Such behaviours or actions include:
(a) theft or dishonesty;
(b) drug use, alcohol misuse or other substance misuse;
(g) conduct which has resulted in the withdrawal of the Regular Force Service member’s security clearance, which is required for his or her branch, trade or specialisation;
[34] Conduct may be either one specific act, or a series of related or unrelated actions or offences, which when taken alone may not warrant dismissal or discharge, but when considered together indicate that retention may no longer be desirable.8
[35] DFO 4 establishes the formal process for discharging a service member. It requires a Commanding Officer (CO) or Superior Commander to raise a report considering retention of a service member when the member’s conduct has demonstrated that their retention may no longer be desirable, or as directed by the Chief of Defence Force or Service Chief.9
[36] The contents of such a report are prescribed at cl 16.140. Of relevance to this proceeding is the first requirement:
a. A description of his or her conduct throughout the whole of his or her Service career as reflected in Service records as well as details of any conduct relevant to consideration of retention and not recorded on Service records (Only verifiable occurrences are to be recorded. Unsubstantiated allegations or suspicions are not to be considered).
[37]Clause 16.142 then describes the factors to be considered in preparing a report:
Factors for Consideration
16.142 The aim of the report is ultimately to judge the desirability of retaining a Regular Force Service member against the trust a commander could place in that individual in an operational setting. The report is to be completed in a manner that is fair and reasonable to both the NZDF and the Regular Force Service member. To ensure the report is a thorough and robust assessment of the desirability of the Regular Force Service member’s retention, the following factors are to be taken into consideration when preparing the report:
8 Clause 16.137.
9 Clause 16.138.
(a) Has the Regular Force Service member committed an act or acts that undermine the confidence the Service can place in the Regular Force Service member such that the adverse effects of continued retention outweigh that Regular Force Service member’s likely future contribution to the Service?
(b) Has the Regular Force Service member’s conduct, over a period of time, shown a level of disregard for the discipline of Service life so as to indicate his or her unsuitability for continued service?
(c) Has the conduct eroded the trust and confidence that can be placed in the Regular Force Service member by other members of the NZDF?
(d) Is the Regular Force Service member’s punishment or other penalty imposed by a civil court incompatible with service, e.g. imprisonment or periods of periodic detention?
(e) Has the Regular Force Service member’s conduct had a detrimental effect on the preservation of the NZDF’s core values (refer to the NZDF Code of Ethics (DFO 09/2003) and the NZDF Statement of Commitment for a definition of core values)?
Report Summary
16.143 The report is to summarise the conduct that has led to the review of the Regular Force Service member’s retention. It is also to outline that, once the Service member has been given a reasonable opportunity to comment on the report, a decision will be made as to given whether the Regular Force Service member is:
a. retained without a formal written warning, or
b. retained with a formal written warning, or
c. retained and considered for reversion in rank in accordance with Chapter 13 of these Orders, or
d. recommended for discharge.
[38] Once a report is completed, the service member must be given an opportunity to read the report, be interviewed and make any written comment on the report.10 Any new evidence or argument raised by the service member is to be investigated by the report writer and any further report provided to the member for comment.11
[39]On completion of that process a decision is to be made to:12
(a)retain the Regular Force Service member without issuing a formal warning, or
10 Clauses 16.144–16.145.
11 Clause 16.148.
12 Clause 16.149.
(b)issue a formal written warning to the Regular Force Service member, or
(c)issue a formal warning to the Regular Force Service member and recommend a reversion in rank, or
(d)forward the report with a recommendation for discharge to the approving authority.
First ground of review — illegality
Applicant submissions
[40] Mr Katipa argues that the A/CN’s decision to discharge him constituted a form of illegality, as it was ultra vires DFO 4 for four reasons:
(a)the only basis of the discharge was that he had been charged with criminal offences;
(b)being charged is not “conduct” within DFO 4;
(c)the CN did not have sufficient evidence to reasonably believe Mr Katipa had an “enduring relationship with a member of an organised criminal group”; and
(d)it was not necessary for the CN to CAT DF discharge Mr Katipa.
[41] As to the first reason, Mr Katipa says that the only basis for the decision were two unsubstantiated criminal charges. The only change between the date on which the VCDF had restored his security clearance (citing “insufficient evidence to support cancellation”) in April 2021, and the retention review which commenced in December 2023, was the laying of criminal charges against Mr Katipa.
[42] Mr Katipa relies on cl 16.140(a) of DFO 4 which, regarding the contents of the report to be prepared, states in relation to conduct relevant to retention that “only verifiable occurrences are to be recorded. Unsubstantiated allegations or suspicions are not to be considered.” Mr Katipa says unproven charges are unsubstantiated allegations. Further, the CN had no knowledge of the conduct that gave rise to the charges.
[43] Second, Mr Katipa says the criminal charges against him are not “conduct” captured by the discharge provisions in DFO 4. Clause 16.135 sets out specific examples of “conduct” which may indicate retention is undesirable, including convictions by courts-martial, findings of guilt by summary disposal, convictions before a civil [civilian] court and actions not dealt with by criminal or disciplinary proceedings, but for which the relevant conduct can still be established to a satisfactorily high standard. Although the list is expressly stated not to be exhaustive, the submission for Mr Katipa is that the examples listed in cl 16.135(a)–(d) would be rendered redundant if “conduct” included charges.
[44] Mr Katipa also submits that being the subject of a criminal charge is a passive state, resulting from state action, rather than an individual’s act or omission and therefore cannot amount to “conduct” under DFO 4. An individual does not “choose to be charged” and therefore “conduct” cannot include unproven criminal charges. While the underlying actions that led to charges may constitute “behaviour” or “conduct”, Mr Katipa submits that the CN should have, but did not, gather information on the alleged conduct underpinning the charges. The respondents have acknowledged that neither A/CN Woodhead, Capt Simpkins, LTCDR Blackmore, nor LTCDR Marshall received anything from Crown Prosecution or the Police about the alleged conduct which gave rise to the criminal charges. Nor, Mr Katipa claims, was such information disclosed to Mr Katipa during the CAT DF discharge process or the discovery process leading up to the hearing.
[45] As to the third reason, Mr Katipa submits that the CN did not hold sufficient evidence to conclude that he had “admitted that he had an enduring association relationship with a member of an organised criminal group”. Mr Katipa had self-reported an affiliation with Mr McDonald in 2019, but his security clearance had been restored based on the same information in April 2021 on the ground that there was “insufficient evidence to reasonably support” a cancellation. Mr Katipa disputes that he ever “admitted” to the enduring association. Mr Katipa requested clarification of the basis on which that assertion was made but was not provided with any information in response. Mr Katipa therefore submits that the CN held conflicting evidence — Mr Katipa’s self-reported change of circumstances confirming an affiliation with Mr McDonald, the VCDF’s assessment that there was “insufficient
evidence” to cancel his security clearance and Mr Katipa’s later denial that his association with Mr McDonald was “enduring.” Mr Katipa says that in those circumstances natural justice required the CN to make inquiries to ascertain whether there were “reasonable grounds” as s 57A of the Act required, but he did not.
[46] Given those factors, Mr Katipa submits that there was no basis to consider that he had acted in a manner incompatible with the maintenance of good order and discipline, or had brought the service into disrepute.13
[47] The fourth reason why Mr Katipa says the Decision was ultra vires is that a CAT DF discharge was not “necessary,” as required by s 57A(1)(b) of the Act. Mr Katipa submits this is evidenced by the fact CN Darin Golding made an offer to Mr Katipa that he “self-release” from service in October 2024 after this judicial review application was filed. The offer was made in the context of trying to resolve the proceedings. Mr Katipa submits that were discharge “necessary” the offer to change his CAT DF discharge to a self-release would not have been made.
Respondent submissions
[48] The respondents say, first, the Decision was reasonably based on information held. Second, that information concerned Mr Katipa’s conduct; third, the threshold for making the decision reflected its administrative nature.
Information on which the Decision was based
[49] The CN submits that the Decision was reasonably based on the information held by the CO, including the CAT DF Discharge report, Mr Katipa’s own comments and admitted association with a member of an organised crime group.
[50] The CN highlights that Mr Katipa alleges the CN failed to investigate but is unclear on how investigation into his alleged criminal behaviour could have occurred. The CN submits that investigation would conflict with Mr Katipa’s obligations to disclose any involvement in criminal offending relevant to his security concerns and the operational concerns underpinning the Decision.
13 Defence Act, s 57A.
“Conduct”
[51] The CN disagrees that criminal charges are not “conduct” amenable to discharge under DFO 4. The “conduct” referred to in DFO 4 is non-exhaustive and the open-ended nature of the list accords with the statutory purpose. The CN submits that the text is clear that a decision-maker must consider when offending has “special implications for the disciplinary integrity and/or operational effectiveness of the Armed Forces”, or where there is “behaviour which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a Service into disrepute.”14
[52] The CN rejects the suggestion that conduct warranting discharge must be a proven act, rather than an accusation. Mr Katipa’s security clearance was suspended due to his change of circumstances. It is submitted by the CN that it would be inconsistent with operational concerns if circumstances that could lead to a security clearance suspension could not be considered when determining a discharge.
[53] The CN acknowledges that “reasonable grounds” must exist for believing Mr Katipa acted incompatibly with the maintenance of good order and discipline within the Navy.15 This standard requires an objective and credible basis for thinking the state of affairs exists.16 The CN submits that an objective and credible basis for discharge existed on the basis of Mr Katipa’s admission of an association with Mr McDonald and the serious criminal charges filed against him.
[54] The CN denies that cl 16.140(a) narrows the scope of DFO 4 discharges to only “verifiable occurrences” rather than “[u]nsubstantiated allegations or suspicions.” The CN submits that, read in context, cl 16.140(a) is intended to capture rumour, gossip and matters lacking objective and credible basis. The CN submits that an objective and credible basis existed as sufficient evidential basis is required to file charges, Mr Katipa lost the security clearance necessary for his duties and his criminal charges led to media attention. Further, there was no requirement for the CN to independently verify the basis for the criminal charges.
14 DFO 4, cl 16.135.
15 Defence Act, s 57A.
16 R v Williams [2007] NZCA 52; [2007] 3 NZLR 207; (2007) 23 CRNZ 1 at [213].
“Administrative” nature of the decision
[55] The third submission for the respondents is that the Decision was administrative, rather than disciplinary in nature as:
(a)the primary purpose of the Decision was to ensure trust and confidence in individual members within an operational setting. The respondents cite s 57A of the Act for that proposition;
(b)DFO 4 at cl 16.134 states “discharge (Category DF) is not to be used as a substitute for disciplinary action.” Clause 16.133 states “the desirability of retaining a Regular Force Service member must ultimately be judged against the trust a commander could place in that individual in an operational setting”;
(c)finally, Capt Simpkins, in her discharge recommendation stated that “the Retention Review is a NZDF administrative consequence distinct from the prosecution in the civilian jurisdiction.”
Discussion
Margin of appreciation
[56] I will first deal with the appropriate margin of appreciation to be afforded to the A/CN’s decision to discharge Mr Katipa. As the Supreme Court observed in Four Members, the balance is not an easy one to strike.17 The applicant rejects that the Court should afford a wide margin of appreciation to the CN’s decision-making. In contrast, the CN submits that trust and confidence is essential to good order and discipline in the NZDF and this is a matter that the A/CN and CO are best placed to determine. The CN highlights the Supreme Court’s observation in Four Members that, where a discharge decision is elevated to a Service Chief, it may result in greater importance being placed on operational effectiveness and discipline.18 The CN submits that the Decision should be afforded a wide margin of appreciation, as review
17 Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34; [2024] 1 NZLR 21 [Four Members] at [109].
18 At [115].
of the Decision and the application of DFO 4 and s 57A of the Act will entail service- wide consequences.
[57] I accept that a wide margin of appreciation should be given to CDF/CN in making the assessment of whether the “behaviour” of a member is incompatible with the maintenance of good order and discipline or brings the service into disrepute, such that discharge is necessary. Operational efficacy and military discipline are clearly matters for military command, not the Courts, to assess.
[58] But before that assessment is made, there is a prior step to considering whether it is desirable that a service member be retained. That is to ascertain exactly what is the behaviour or conduct alleged against the service member. That is a question of fact and, in terms of cls 16.135–16.136 of DFO 4, interpretation and application of those provisions. That step is amenable to scrutiny by the Court. It does not require particular expertise in, or assessment or judgement of what is necessary for the purpose of military discipline.
[59] I agree with the applicant that, unlike the Four Members case, this is not an NZDF-wide challenge. It is an individual challenge to a particular decision, concerned with the interpretation and application of s 57A of the Act and DFO 4. While a decision on the proper interpretation of DFO 4 will have implications for how it is to be applied in other situations, it is not a decision about operational effectiveness and military discipline. I also note that as a service member, Mr Katipa is expressly precluded from the legal protections afforded to employees.19 Judicial review is therefore his only form of recourse against potential interference with his rights.20
19 Defence Act, s 45(5).
20 Four Members, above n 17, at [107].
Was the Decision ultra vires?
[60] Decision-makers must understand and give proper effect to the law that governs their decision-making power.21 Acting outside the limits of a statutory power is therefore a form of illegality.22
[61] The respondents deny that the Decision was made solely on the basis of Mr Katipa having been charged. They say the decision-making record is clear that the A/CN made the Decision based on:
(a)Mr Katipa had “admitted an enduring association with a member of an organised crime group”;
(b)Mr Katipa had been charged with serious criminal offending; and
(c)the laying of the charges led to two consequences. First, publicity which had the effect of bringing the RNZN into disrepute; and second, his personnel security clearance had been suspended.
“Admitted enduring association”
[62] Turning to the first of these, what Mr Katipa had admitted to, in his change of circumstances report, was that he had had an association with Mr McDonald through a fishing group, which he had ceased on becoming aware of the criminal charges laid against Mr McDonald. There was no “admission” by Mr Katipa of a continuing association beyond that point, nor did NZDF point to any evidence of that when further detail was sought by Mr Katipa. One might infer from the phrase used in the Decision and repeated in the respondents’ submissions, that Mr Katipa had admitted to both a “continuing association” and knowledge that Mr McDonald was a member of an organised crime group. In fact, there was no admission by Mr Katipa that, at the time of his association with Mr McDonald, he knew him to be a “member of an organised crime group”.
21 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.
22 Unison Networks Ltd v Commerce Commission [2007] NZSC 74; [2008] 1 NZLR 42 at [51]. See also Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158 (CA) at 173.
[63] Nevertheless, throughout the decision-making process it is characterised, and accepted at each stage, as an “admission of an enduring association with a member of an organised crime group”. Without more, that cannot have provided a proper basis for the Decision.
Did being charged amount to “conduct”?
[64] If the purported admission is set to one side, the Decision must have been based on the criminal charges laid against Mr Katipa and whether being charged itself amounts to “conduct” under cl 16.135.
[65] The applicant submits that cl 16.140(a) of DFO 4 excludes from the CN’s consideration undetermined criminal charges when undertaking a CAT DF review. That provision refers to the content to be included in the CAT DF report and, specifically, the details of a service member’s conduct throughout their Service career, as well as relevant details not recorded in their service record. The report is not to include “unsubstantiated allegations”.
[66] The respondents say that phrase is intended to capture mere rumour or gossip which should not be included, and does not cover, for example, the fact of criminal charges being laid.
[67] I see nothing on the face of cl 16.140(a) that requires the phrase to be confined in the manner suggested by the respondents. It is consistent with the requirement in cl 16.135 to focus on “conduct” and with the examples provided at cls 16.135(a) and 16.135(b) which require “convictions” and cl 16.135(c) which requires that other actions and behaviour “be proven to a satisfactorily high standard”.
[68] It is clear that Mr Katipa’s case does not come within cl 16.135(a) (convictions by courts-martial and findings of guilty by summary disposal), or cl 16.135(b) (convictions before a civil court). Nor is it captured by cl 16.135(d) (exceptional cases where offences have been disposed of by pre-trial diversion or discharge without conviction).
[69] The situation could potentially come within cl 16.135(c) in that it is “not dealt with by criminal or disciplinary proceedings”. But that provision requires that, even in the absence of criminal or disciplinary proceedings, the actions and behaviour “can still be proven to a satisfactorily high standard to be undesirable”. Here it was open to the Navy to further investigate Mr Katipa’s relationship with Mr McDonald to ascertain his “actions or behaviour”. It did not do so or, if it did (as might be inferred from DDSy’s minutes), it did not provide Mr Katipa with the information obtained to give him an opportunity to comment. As I will come to, that is also relevant to Mr Katipa’s right to natural justice ground of review.
[70] The list of qualifying conduct in cl 16.135 is clearly intended to be non- exhaustive (“includes, but is not limited to”). Indeed, cl 16.135(e) captures a significantly wider scope of conduct than that listed at (a)–(d), including “[b]ehaviour which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a Service into disrepute.”
[71] However that provision too requires “behaviour”, which then has certain effects or consequences. That comes to the nub of the applicant’s argument. Mr Katipa says that “conduct” and behaviour must be given their normal meaning. “Behaviour” and “conduct” require an action or omission; those words do not encompass the passive state of being subjected to a criminal charge.
[72]Blacks Law Dictionary provides:23
conduct, n. (15c) Personal behavior, whether by action or inaction, verbal or non-verbal; the manner in which a person behaves; collectively, a person’s deeds. …
[73]The Oxford Dictionary defines behaviour as:24
The way one conducts oneself …
23 Bryan A Garner (ed) Black’s Law Dictionary (12th ed, Thomson Reuters, St Paul (Minnesota), 2024) at 372. Definition of “conduct”.
24 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 96. Definition of “behaviour”.
[74]The same definition also appears in the Merriam-Webster dictionary.25
[75] Under cl 16.137 conduct may be “one specific act” or a “series of…actions” (emphasis added). I note too that cl 16.142, headed “Factors for Consideration”, emphasises commission of an act or acts (at (a)) and the member’s “conduct” (at (b)).26
[76] It might be argued that (a), (b) and (d) are not “conduct” or “behaviour” either. But they can be distinguished from the present case in that they are situations where the alleged conduct or behaviour has already been established.
[77] Here, in the absence of the Navy taking any steps to ascertain the underlying facts, or to clarify why it asserted that the relationship was “admitted” and “enduring”, it did not establish the requisite conduct or behaviour.
[78] The respondents assert they could not investigate what sat behind Mr Katipa’s self-disclosure in the change of circumstances report because it was his obligation to disclose any involvement in criminal offending. That argument appears circular. Mr Katipa did disclose his connection with Mr McDonald; he said he had ceased contact with Mr McDonald.
[79] In oral submissions before me, the nub of the issue came into sharp focus. Counsel for the respondents asserted that the change of circumstances report filed by Mr Katipa could not have been accurate or complete, given the subsequent criminal charges. It is logical to assume that view was premised on a conclusion that Mr Katipa was guilty of the criminal charges brought against him.
[80] If the Navy thought his disclosure was incomplete or inaccurate then it was open to it to investigate and, if further information was revealed, to put that to Mr Katipa. While the DDSy’s minute of 29 September 2020 suggests further investigation did occur, there is no evidence before the Court that the results of the investigation were put to Mr Katipa for comment.27 Nor does any such further
25 Merriam Webster Dictionary < — webster.com>. Behaviour is defined as “the way in which someone conducts oneself or behaves.”
26 DFO 4, cl 16.142 is set out in full at [37] above.
27 This minute referred to a “confirmed and enduring association with organised criminal (sic)” that had been “confirmed in other agency reporting.”
information feature in the various subsequent minutes and reports produced during the course of the retention review process.
[81] Clause 16.136 specifies that relevant behaviours or actions may include “conduct” “which has resulted in the withdrawal of the Regular Force Service member’s security clearance, which is required for his or her branch, trade or specialisation.” It is not disputed between the parties that Mr Katipa’s security clearance, which was twice suspended, was necessary for the performance of his duties. But there are two points of note. First, cl 16.136 refers to “withdrawal,” rather than suspension. On both occasions (29 September 2020 and 7 June 2021) Mr Katipa’s security clearance was suspended . Second, cl 16.136 still requires “conduct” which has resulted in the withdrawal of the clearance. It cannot be the mere withdrawal (or, in this case, suspension) in itself. The suspension was a consequence of the charges, not “conduct” in itself. And, as the respondents’ own evidence confirms that withdrawal of a security clearance is a standardised action initiated for any change of circumstance.
Was a CAT DF discharge “necessary”?
[82] Section 57A of the Act requires the A/CN to have reasonable grounds for believing that release or discharge was “necessary” to maintain good order and discipline or avoid prejudice to the reputation of the relevant Service. The applicant says the CN’s offer of 24 January 2025 to grant Mr Katipa’s request to self-release, demonstrates that the CAT DF discharge was not “necessary”.
[83] Section 57A makes it clear that behaviour that is incompatible with the maintenance of good order and discipline may result in either discharge or release. It is implicit that discharge, and in particular a CAT DF discharge, was not a mandatory response to the finding that Mr Katipa’s conduct was “incompatible”.
[84] Ultimately the decision whether release or discharge was necessary was for the CN. But there was an insufficient factual basis on which the CN could have had reasonable grounds to believe Mr Katipa’s behaviour was incompatible. It was therefore premature for the CN to exercise his judgement as to release or discharge.
Was the Decision an “administrative” decision?
[85] Although the primary purpose of a decision to discharge a member is that doing so is necessary for the interests of the services, and cl 16.134 states that a decision to CAT DF discharge a member of the Navy is “not to be used as a substitute for disciplinary action”, that does not mean that the Decision was merely administrative in nature. No other reference in ch 16, s 8 of DFO 4 supports the discharge being administrative.
[86] As Mr Katipa submits, the effect of the Decision was in fact disciplinary or punitive. It is not akin to the situation in Poananga v State Services Commission where the administrative decision was to transfer Ms Poananga from one public service department to another.28 An analogous decision in this context might be to transfer Mr Katipa from one navy vessel to another.
[87] Even if the “administrative” categorisation were accurate, it does not detract from the need to interpret the words “conduct” and behaviour” as they appear in DFO 4.
Conclusion on first ground of review
[88] In relation to the first ground of review I conclude that the Decision was ultra vires s 57A of the Act and DFO 4, in that:
(a)being charged with criminal offences is not in and of itself “conduct” or “behaviour” by Mr Katipa;
(b)the adverse publicity and suspension of Mr Katipa’s security clearance were consequences of the charges, not in and of themselves “conduct”;
(c)The Navy had insufficient information about the alleged conduct underlying the criminal charges to have grounds for believing that Mr Katipa’s behaviour was incompatible with the maintenance of good order and discipline and that his discharge was necessary to maintain
28 Poananga v State Services Commission [1985] 2 NZLR 385 (CA) [Poananga].
good order and discipline, or to avoid prejudice to the Navy’s reputation.
Second ground of review — unjustified limitation on the presumption of innocence
Applicant submissions
[89] Mr Katipa submits that the Decision was based on the mere existence of criminal charges, rather than any knowledge of the underlying conduct that gave rise to the charges. The Decision therefore presumed his guilt on the criminal charges and was incompatible with the right to the presumption of innocence. It did not amount to a demonstrably justified limitation on that right.
[90] Mr Katipa relies on Poananga. In that case the appellant was transferred from one government department to another under s 37 of the State Services Act 1962, after she had engaged in workplace political activities.29 Section 37 provided a general right of an administrative nature to transfer any employee within the public service without any right of appeal. The applicant relies on Somers J’s finding that “[t]o allow a conclusion to be influenced in any degree by assuming guilt of an offence is contrary to the course Parliament has required to be followed”.30
[91] Mr Katipa also points to Tompkins J’s comments that “[i]f disciplinary conduct is to be taken into account in a decision to transfer, that should only be after the disciplinary conduct has been found to amount to a breach of s 56 and then only by way of a penalty pursuant to s 58(6)”.31
Respondent submissions
[92] The CN considered that the charges would only have been laid if evidence was “assessed as providing a reasonable prospect of conviction.” In any event, the CN submits that the presumption of innocence in s 25(c) of the Bill of Rights Act is not
29 At 387.
30 At 398.
31 At 408.
engaged as this provision does not apply to professional or disciplinary proceedings and its application in a military context differs from civilian criminal justice.
[93] The CN considers that s 25(c) is inapplicable as the Decision was not in relation to the determination of any charge, not contingent on criminal charges, nor the outcome of the prosecution. The Decision was not made subject to the criminal standard of proof, nor was it a finding of criminal liability or a penal or disciplinary decision. The CN distinguishes Poananga, which involved a disciplinary decision.
Discussion
[94]Section 25(c) of BORA states:
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights… (c) The right to be presumed innocent until proved guilty according to law:
[95] There is no doubt that the s 25(c) right applies in respect of the criminal charges against Mr Katipa, “in relation to the determination” of the charges. But that existing right within the criminal proceeding is not automatically “transferred” to actions taken under DFO 4, even though the A/CN relied on the fact of the criminal charges.
[96] Nor am I persuaded that s 25(c) independently applies to the CAT DF discharge process. As the section heading to s 25 states, it enshrines minimum standards of “criminal procedure”. The rights listed are traditionally confined to criminal proceedings.32 The presumption of innocence is an aspect of a defendant’s fair trial right which protects against error in the criminal justice system.33 The right is available to an individual charged with an offence and relates to the determination of the charge.34
32 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [21.5.37].
33 Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1 at [26].
34 In R v Gibbons [1997] 2 NZLR 585; (1997) 3 HRNZ 596; (1997) 14 CRNZ 596 (HC) at 594,
Goddard J said: “charged must refer to an intermediate step in the prosecutorial process when the prosecuting authority formally advises an arrested person that he is to be prosecuted and gives him particulars of the charges he will face”.
[97] I agree with the respondents that the Poananga decision is not directly relevant for the purposes of this ground of review. In Poananga, the State Services Commission held both an administrative and disciplinary statutory power to transfer public servants. The Court of Appeal held that the transfer of a public servant under the administrative power was an inappropriate vehicle for what was, in reality, conduct that may have warranted use of the disciplinary power.35 Here, the CN has relied on the CAT DF discharge process. The error alleged by Mr Katipa is not the use of this process per se but that the conduct relied on to show that retention was “no longer desirable” was as yet unproven charges in the civil courts, where the conduct underlying those charges had not been separately investigated by the CN.
[98] The applicant also relied on Solicitor-General v Bujak,36 but the discussion in that case related to two legislative regimes – the Proceeds of Crimes Act 199137 and the Bail Act 2000 – where rights and interests are expressly limited, despite charges not yet being determined. I do not think they are relevant to this case.
[99] I am not persuaded that the rights guaranteed in s 25 apply to professional proceedings, whether characterised as administrative or disciplinary. I agree with the learned authors of “The New Zealand Bill of Rights Act: a Commentary”, that s 27(1) of the Bill of Rights Act provides a more flexible and context-sensitive right in this situation.38 The Poananga decision does have some relevance to Mr Katipa’s third ground of review regarding application of the principles of natural justice and to the respondents’ assertion that the Decision was an “administrative” decision. I come to that under the third ground of review.
[100]I dismiss the second ground of review.
35 Poananga, above n 28, at 410.
36 Solicitor-General v Bujak [2012] NZHC 2453 at [58].
37 Now repealed and replaced by the Criminal Proceeds (Recovery) Act 2009.
38 Butler and Butler, above n 32, at [21.5.39].
Third ground of review — unjustified limitation on the principles of natural justice
Applicant submissions
[101] Mr Katipa submits that the right to natural justice is engaged under s 27 of the Bill of Rights Act, as the Decision was a determination in respect of his rights and had severe consequences for him. He says because of the stigma and significant implications of a CAT DF discharge, there is a corresponding duty on the CN as decision-maker to ensure the process adhered to the rules of natural justice.
[102] Mr Katipa submits that the CN breached his right to natural justice by failing to disclose the information the CN relied on to conclude that Mr Katipa had an enduring association with a member of an organised criminal group and that trust and confidence had been eroded. Further, Mr Katipa submits that the CN did not investigate the alleged enduring association or the behaviour that led to the criminal charges, nor did he seek comment from Mr Katipa on this. Finally, Mr Katipa says the CN failed to provide him with sufficient detail of the alleged underlying conduct that formed the basis of the Decision.
[103] The applicant highlights that his CAT DF discharge in effect amounted to a misconduct discharge, short of dismissal at court martial, which is the “most dishonourable of all discharges.” The most common release is self-release at the member’s own request. Other categories of discharge relate to performance, medical incapacity and failure to complete initial training. Mr Katipa also submits that the CN was under a duty to consult with him on the information contained in his change of circumstances self-report, which was provided for security clearance purposes, but used for the purpose of discharge without consultation.
[104] Mr Katipa submits there were less rights-limiting alternatives open to the CN. He says that, as is clear from NZDF’s OIA response to his inquiry in preparation for this hearing, at any given time multiple members of the Armed Forces are facing criminal charges but are not discharged on that basis alone. What Mr Katipa says are “sensible precautions” are taken, for example, suspending security clearances or suspending a member from their duties. That possibility was in fact demonstrated in
the case of Mr Katipa himself, who was permitted to continue serving from the date he was charged on 7 June 2021 until the CAT DF process was initiated in December 2023.
[105] Alternatively, Mr Katipa says he could have been suspended without pay. If the Navy had been concerned about his inability to perform his role, it could have used the process referred to as a CAT DE discharge for being inefficient or ineffectual in the performance of his duties.
[106] The degree to which the right was limited can also, the applicant says, be assessed by considering the adverse impact on him. His reputation has been affected, he was denied valuable resettlement entitlements, as well as the commemorative cap-tally board, a significant mark of service awarded only after a lengthy period of service.
Respondent submissions
[107] The CN accepts that the Decision engages s 27(1) of the Bill of Rights Act, but says Mr Katipa was given adequate notice and opportunity to be heard throughout the process outlined in DFO 4, which provides opportunity for a service-member to advocate for their position and be provided with information.
[108] LTCDR Blackmore’s CAT DF Discharge report was given to Mr Katipa and detailed the substance of the allegations. Mr Katipa responded to the report and was interviewed. He later declined the opportunity for further comment.
[109] Under DFO 4, investigation is only required where the “member introduces new evidence or argument” when commenting on a CAT DF Discharge report.39 The change of circumstances report from August 2019 provided information that Mr Katipa had an enduring association with a member of an organised criminal group and this association was also reflected in LTCDR Blackmore’s CAT DF Discharge report. As such, it is submitted that Mr Katipa knew the substance of the information relied on in the Decision. Although Mr Katipa stated he “did not understand his
39 DFO 4, cl 16.148.
enduring association with organised crime,” this conflicted with the admission he had made in his change of circumstances report and, the CN submits, did not constitute “new evidence,” requiring an investigation.
[110] The respondents say as part of his initial suspension in 2019, Mr Katipa had multiple opportunities to comment, which were taken. Further, Mr Katipa had an interview with Capt Simpkins following LTCDR Blackmore’s report and also declined to comment following Capt Simpkins’ recommendation.
[111] The Navy has not sought to directly justify the limitation on the right. However, the respondents assert that the discharge under DFO 4 was an “administrative” decision rather than a disciplinary one and say that to investigate the underlying allegedly criminal behaviour would be “incongruent with the operational concern and administrative nature of the Decision”.
Discussion
[112]Section 27 provides:
Section 27 Right to natural justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[113]It is common ground that the right applies in this case.
[114] Natural justice is a flexible concept, which can be adapted to context.40 Natural justice typically requires adequate notice of the complaint against an individual,41 fair opportunity to be heard,42 and a right of reply.43 Natural justice does not impart an obligation to disclose material of which the subject of the complaint is already aware and would expect the decision-maker to pay regard.44 In this case, DFO 4 sets out the procedure in cls 16.138–16.163 to be followed when effecting a CAT DF discharge, in order to observe the principles of natural justice.
[115] In effect the respondents rely on the label of “administrative” which they attach to the DFO 4 process to rebut the claim that they failed to adequately investigate or inform Mr Katipa of the case against him. They say that the prescribed DFO 4 process ensured that natural justice was provided to Mr Katipa.
[116] While the respondents’ submissions focused on the DFO 4 process itself, in my view it is also necessary to scrutinise all of the steps in the process that culminated in the Decision, including the initial suspension of Mr Katipa’s security clearance. As I have discussed above, the phrase “a confirmed and enduring association with organised criminal (sic)” was a misleading characterisation that appears to have been repeated from the DDSy’s minute of 29 September 2020 without further scrutiny, at each stage of the CAT DF process and without adequate opportunity for Mr Katipa to refute that characterisation.45 In particular:
(a)Mr Katipa sought but did not receive the information relied on to reach the initial conclusion about the “admitted enduring relationship”. Consequently there was no discussion with Mr Katipa of whether and what he had “admitted” to in his change of circumstances report. The respondents rely on the fact that this has been a consistent
40 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132. Dotcom v United States of America [2014] NZSC 24; [2014] 1 NZLR 355 at [120], per McGrath and Blanchard JJ.
41 Khalon v Attorney-General [1996] 1 NZLR 458 (HC) at 466.
42 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 720. Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at [18], per Keith J.
43 Koia v Waitangi Tribunal HC Wellington CIV-2010-485-1519, 22 February 2022 at [94]; and
Crawford v Securities Commission [2003] 3 NZLR 160 (HC) at [78].
44 Zhao v New Zealand Law Society [2012] NZAR 894 at [77]. Talukder v Removal Review Authority
[2000] NZAR 194 (CA) at 198.
45 At [62]–[63] above.
categorisation since the initial security clearance suspension in 2019, but that does not answer the point that Mr Katipa’s challenge to the characterisation then, and subsequently, was not addressed.
(b)DDSy’s minute of 29 September 2020 records “WO Katipa has confirmed an enduring association with organised criminal…”. A footnote to “confirmed” says: “WO Katipa’s own admission and confirmed in other agency reporting”. That “other agency reporting” was not disclosed to Mr Katipa. It was not detailed in subsequent minutes or reports and nor was it in the materials provided to the Court in this hearing.
(c)The DDSy minute of 16 December 2020 referred to an allegation that Mr Katipa had viewed information from a secure system beyond his need-to-know and misused NZDF CIS by accessing information for which his role and responsibilities had no valid need or purpose. The detail of that allegation was not put to Mr Katipa and in his response of 11 January 2021 he said “I am unsure of what this refers to. I have had occasional access to SIE in my current and former roles”. No further clarification was provided by the DDSy. The allegation was repeated in the CAT DF Discharge report and the Decision itself.
(d)The 16 December 2020 minute also referred to “[s]ubsequent enquiries” indicating that Mr Katipa’s relationship with Mr McDonald was “more substantive than he had declared”. Again, the nature and detail of the “subsequent enquiries” were not provided to Mr Katipa, or set out in subsequent steps on the discharge process, or put before the Court.
[117] The respondents argue that Mr Katipa had admitted his association with Mr McDonald in his change of circumstances report, therefore he could not maintain that he did not understand what was meant by the phrase “admitted enduring
association with organised crime.” This simply begs the question in issue and takes the matter no further.46
[118] I conclude that Mr Katipa did not have sufficient information to effectively refute the allegations against him. His right to natural justice was limited.
[119] For completeness, I address Mr Katipa’s submission that his change of circumstances form was used by CN for a different purpose (under s 57A of the Act) than the one for which it was proffered. The CN was therefore under a duty to consult with Mr Katipa about how the information might be considered in light of that new purpose.47
[120] There is nothing in the change of circumstances form itself that suggests it is to be used only for security clearance purposes. In fact, it includes a text box “effect on employment”.
[121] Other aspects of the DFOs support that view. For example, DFO 3 at cl 9.7.25 says that if a member of the force’s clearance level is to be denied, downgraded or withdrawn “[t]he individual is to be invited to attend a meeting to discuss their security clearance and the potential effect this may have on ongoing employment and/or retention.”
[122] DFO 4 cl 16.136 lists “conduct which has resulted in the withdrawal of the Regular Force Service member’s security clearance” as conduct which may indicate retention is not desirable. In my view, what is disclosed in a change of circumstances form for the purpose of security clearance purposes would and could be relied on at that point.
[123] The authority relied on by the applicant, University of Auckland v Tertiary Education Commission, is not analogous. There, the universities gave the information about their change of circumstances willingly. In contrast, Mr Katipa was required under DFO 3 cl 9.7.23 to report any changes to his personal circumstances to his
46 See [77]–[78] above.
47 University of Auckland v Tertiary Education Commission [2002] 2 NZLR 668 at [79]–[81].
commander/manager. In addition, the universities had no forewarning that the information they had provided to the Tertiary Education Commission for the purpose of a domestic comparison, would also be used for an international comparison. Here, for the reasons noted above, it must have been tolerably plain to Mr Katipa that the information disclosed in his change of circumstances report could have had some bearing on his status in the Navy.
Was the limitation justified?
[124] Adopting the Supreme Court’s methodology in Hansen v R,48 I consider first whether the purpose of the limitation was sufficiently important to justify curtailment of the right to natural justice. Here, the purpose of the CAT DF discharge is as set out in s 57A of the Act — to maintain good order and discipline within the service, or to avoid prejudice to the reputation to that service. Mr Katipa accepts that this purpose is sufficiently important to justify limiting rights.
[125] I accept there was an insufficient rational connection between the basis for the CAT DF discharge, namely the fact that Mr Katipa was facing criminal charges, and the need to maintain good order and discipline or avoid prejudice to the reputation of the Navy. In addition, and linked, the right was limited more than was reasonably necessary.49
[126] A range of less rights-limiting alternatives was open to the CN. For example, Mr Katipa could have been permitted to self-release, he could have been placed on unpaid suspension, or he could have been discharged under CAT DE (under DFO 4, ch 16, s 7). Mr Katipa’s unrebutted evidence was that permitting a member facing criminal charges to self-release has occurred before in the Navy and as noted, a number of current members of the Armed Forces are suspended facing criminal charges.
[127] Any reputational measures could have been mitigated or eliminated through, for example, suspension whilst the Navy allowed the process to run its course.
48 Hansen v R, above n 33, at [104].
49 Wolf v Minister of Immigration [2004] NZAR 414 at [30].
[128] Accordingly, there is no rational connection and less rights-limiting alternatives were available to the CN. It follows that the limitation on Mr Katipa’s rights was out of proportion to the objective sought.
[129] I conclude that the discharge amounted to an unjustifiable limit on Mr Katipa’s right to natural justice.
Fourth ground of review — unjustified limitation on the right to work
Applicant submissions
[130] Mr Katipa relies on the right to work, to free choice of employment and to protection against unemployment recognised in art 23(1) of the UDHR and the preservation of those rights by s 28 of the Bill of Rights Act. Section 28 provides that existing rights or freedoms shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in the Bill of Rights Act.
[131] Mr Katipa’s submissions highlight that service members cannot raise personal grievances, or have recourse to the Employment Relations Authority. He submits that the right to work is engaged by the Decision as it prevents him from working in his chosen profession and no comparable industry or role exists. The Navy is the only place where he can be a naval rating. Mr Katipa submits that other alternatives to discharge were available, such as suspension without pay or engaging him in duties that did not require a security clearance.
Respondent submissions
[132] The CN denies that s 28 of the Bill of Rights Act protects the right to work under art 23(1) of the UDHR. The CN submits that s 57A of the Act and DFO 4 do not engage the right to work. Service in the Armed Forces is not an employment relationship; members serve at His Majesty’s pleasure and that necessarily limits the scope of the right to work in the naval context. Further, s 45(5) of the Act precludes the Employment Relations Act 2000 from applying to conditions of service.50 It is
50 This provision states: “Nothing in the Employment Relations Act 2000 applies to the conditions of service of members of the Armed Forces.”
submitted that the right to work is recognised to an appropriate extent in the redress procedure under s 49 of the Act as a “proportionate implementation of the right for the unique position of members of the Armed Forces.”
Discussion
[133] As Cooke J found in Yardley v Minister for Workplace Relations and Safety, rights, such as the right to work, recognised in international instruments can be taken to have only indirect relevance and they do so through New Zealand’s domestic legislation, such as the Employment Relations Act 2000.51 However, and as Cooke J observed, nothing in that Act applies to the conditions of service of members of the Armed Forces.52 Only the High Court has jurisdiction to review the legality of measures imposed by a DFO, in light of the principles reflected in international law.
[134]In the Four Members case the Supreme Court said:53
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.
[135] I agree with the respondents that that status necessarily limits the scope of application of the right to work in the context of the Navy. That conclusion is reinforced by s 45(5) of the Act.
[136] The respondents point to s 49 of the Act as a proportionate implementation of the right to work as it applies to the unique position of members of the Armed Forces. They note Churchman J’s first instance decision in Four Members where he held that members of the services are able to challenge their “dismissal” through the complaint process to the Chief of Defence Force provided by s 49.54
[137] The applicant disputes the effectiveness of the s 49 process as it is an internal process and, in his particular circumstances, there was no practical opportunity for Mr Katipa to raise a s 49 complaint in the short gap between the Decision and
51 Yardley v Minister for Workplace Relations and Safety [2022] NZHC 975 at [45].
52 At [45]. Defence Act, s 45(5).
53 Four Members, above n 17, at [13].
54 Four Members of Armed Forces v Chief of Defence Forces [2022] NZHC 2497.
termination date. I accept that was so but I nevertheless conclude that the right to work is not applicable.
[138]I dismiss the fourth ground of review.
Conclusion
[139]I have found for the applicant on two grounds:
(a)The Decision was ultra vires because it relied on facts that could not properly be characterised as “conduct” or “behaviour” by Mr Katipa.
(b)Mr Katipa’s natural justice rights were unjustifiably limited by the process undertaken by the Navy.
Relief
[140] Section 16(2) of the Judicial Review Procedure Act 2016 allows the Court to set aside the decision under challenge. Sections 17(2) and (3) provide a discretion to remit the matter back to the decision-maker for reconsideration.
[141] Mr Katipa’s statement of claim sought a declaration that the Decision was unlawful and an order setting it aside. In oral submissions, Mr Hague advised that Mr Katipa’s service would automatically expire on 30 June 2025. That being the case, he would not seek to have the Decision reconsidered.
[142] The respondents agree that Mr Katipa’s service is deemed to expire on 30 June 2025, but nevertheless seek to have the Court remit the matter back for reconsideration, with appropriate guidance.
[143] The particular circumstances of this case, being the lapse of time — Mr Katipa made his change of circumstances report in August 2019 — and the deemed expiry of Mr Katipa’s service, mean this is an appropriate case to set aside the decision without more.
[144] I make an order setting aside the decision of the Acting Chief of Navy on 26 April 2024 that Mr Katipa be Category DF discharged.
Costs
[145] I expect that the parties should be in a position to agree costs. If that is not the case memoranda not exceeding five pages per party are to be filed within 15 working days from the date of this decision.
Gwyn J
Solicitors:
Frontline Law, Wellington Crown Law Office, Wellington
0
6
0