Chief of Defence Force v Four Members of the Armed Forces

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
[2024] NZSC 75

BETWEEN	CHIEF OF DEFENCE FORCE First Applicant CHIEF PEOPLE OFFICER Second Applicant ATTORNEY-GENERAL Third Applicant
AND	FOUR MEMBERS OF THE ARMED FORCES Respondents

Court:	Glazebrook, Ellen France and Miller JJ
Counsel:	A M Powell for Applicants M I Hague for Respondents
Judgment:	8 July 2024

JUDGMENT OF THE COURT

ALeave to appeal is granted (Four Members of the Armed Forces v Chief of Defence Force [2024] NZCA 17).
BThe approved question is whether the Court of Appeal was correct to allow the appeal.

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REASONS

Leave is granted in general terms, but counsel should focus on whether, to use the applicants’ terminology, the Court of Appeal failed to allow a sufficient margin of appreciation when assessing the individual readiness requirements against s 5 of the New Zealand Bill of Rights Act 1990. The grant of leave extends to the nature and extent of justification evidence required and the specificity of pleadings.

Solicitors:

Te Tari Ture o te Karauna | Crown Law Office, Wellington for Applicants
Frontline Law, Wellington for Respondents

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal from the Chief of Defence Force, the Chief People Officer, and the Attorney-General against a decision of the Court of Appeal that had allowed an appeal by four members of the Armed Forces. The primary dispute concerns the assessment of individual readiness requirements for military personnel, with the respondents arguing that these requirements infringed upon their rights under section 5 of the New Zealand Bill of Rights Act 1990. The applicants sought to challenge the Court of Appeal's decision, focusing on the margin of appreciation afforded to military readiness assessments and the nature and extent of the evidence required to justify such assessments.

The central legal issues revolved around the interpretation and application of section 5 of the New Zealand Bill of Rights Act 1990, which guarantees the right to freedom of thought, conscience, religion, and belief. The court had to determine whether the Court of Appeal appropriately balanced the right to freedom of conscience with the military's need to maintain operational readiness. The applicants argued that the Court of Appeal had not given sufficient weight to the military's operational requirements, while the respondents contended that their constitutional rights were unduly infringed. Additionally, the court examined the specificity of the pleadings and the justification evidence presented by the applicants.

The Supreme Court granted leave to appeal, indicating that the Court of Appeal may have erred in its assessment of the margin of appreciation owed to military readiness requirements under section 5 of the New Zealand Bill of Rights Act 1990. The grant of leave extended to the nature and extent of the justification evidence required and the specificity of the pleadings. The court emphasised that counsel should focus on whether the Court of Appeal failed to appropriately balance the constitutional rights of the respondents with the military's operational needs. The Supreme Court's decision will provide further clarity on the scope of section 5 rights in the context of military service and the deference owed to military assessments.

The Supreme Court ordered that the appeal be heard on the basis of the approved question and the scope of leave granted. The respondents were permitted to present arguments concerning the margin of appreciation, the justification evidence, and the specificity of the pleadings. The court's decision will ultimately determine the extent to which individual readiness requirements must be justified under the New Zealand Bill of Rights Act 1990.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established