Chief of Defence Kevin Short's COVID-19 vaccine booster mandate challenged in court by staff

The Chief of Defence's COVID-19 vaccine booster mandate is being challenged in the High Court by staff, with support from the Returned Services Association (RSA). 

A group of NZ Defence Force (NZDF) staff, including senior officers from the Navy, Army and Airforce that haven't received the COVID-19 vaccine or that don't want to receive a booster, have filed an urgent legal challenge against the Chief of Defence. 

Personnel who were unvaccinated or had received only one dose would receive a formal warning of discharge on Friday, April 29, and would be moved out by June 24 if the necessary approvals were given.

Meanwhile, staff who had received their primary vaccinations but not a booster shot as of the same date would be given just over two weeks to receive it or face discharge.

The group of staff, under the banner United We Stand, applied for a judicial review in the High Court on April 22, but to prevent staff losing their jobs due to the directive an urgent challenge was filed on April 29, a statement released on Wednesday explained. 

The RSA has thrown its support behind the group, expressing concern for the wellbeing of the staff over the potential impact the loss of employment would have on them and their respective families. 

"The RSA is here to support all serving personnel of New Zealand's Armed Forces," national president BJ Clark said on Wednesday. 

"The personnel who face losing their employment because of the vaccine directive will be experiencing significant stress brought on by the uncertainty surrounding them, a fear of becoming unemployed, and in some cases losing their home if they are living in service accommodation.

"Our support advisors are ready now to help affected personnel navigate a way forward."

Chief of Defence Force Air Marshal Kevin Short.
Chief of Defence Force Air Marshal Kevin Short. Photo credit: Getty Images

Chief of Defence Force Air Marshal Kevin Short's directive came as "a complete surprise" to staff, according to the statement, given the Government order mandating COVID-19 vaccination for Defence Force and police staff was ruled "unlawful" by the High Court in February.

The Government filed an appeal in March but a Crown Law spokesperson said at the time it was "in no way an attempt to reverse the removal of mandates on the workforces covered by the decision... and there is no intention to reinstate those mandates on those workforces". 

The Government removed COVID-19 vaccine mandates for all sectors except health, disability and aged care workers, as well as prison and border staff, from April 4. 

The Defence Chief has acknowledged the High Court's ruling, but in an April 12 directive said the COVID-19 vaccine had been part of the Defence Force's vaccination schedule since mid-2021.

"For members of the Armed Forces, meeting the vaccination schedule by being fully vaccinated is a condition of service," Short said at the time. 

"This requirement goes beyond health and safety and extends to their ability to serve where required by the NZDF, both domestically and internationally.

"Given that members of the Armed Forces live and work closely together, infectious diseases can spread rapidly and could render large numbers of people unwell or having to isolate.

"Such a situation would quickly impact critical outputs, including safety-related components of duty tasks."

A spokesperson for the Defence Force said mandatory vaccination for staff was not new. 

"Members of the armed forces need to be ready to serve and are required to meet individual readiness requirements, which includes having a number of vaccinations. These requirements have been around for decades and are not new," the spokesperson told Newshub.

"The COVID-19 vaccine has been part of the NZDF schedule of required vaccines for uniformed personnel since mid-2021, and the booster dose was added in February this year. Being fully vaccinated is a condition of service and the Chief of Defence Force sets the conditions under which a member of the armed forces can serve."

But United We Stand pointed to WorkSafe's direction to employers: "Outside of those sectors covered by Government vaccine mandates, WorkSafe considers that few workplaces will be able to justify an employer vaccination requirement for health and safety or public health reasons."

United We Stand said as of May 2, 1056 service members had either not received the COVID-19 vaccine or not received a booster. 

"Unless the directive is overturned it would likely result in hundreds more service members being dismissed from an essential organisation that is already suffering critically low manning. 

"This is at a time when tensions are increasing across the globe with the Ukrainian conflict and China expanding its military presence in the South West Pacific."