The New Zealand Defence Force has made its first public response since the Court of Appeal delivered its judgment on Friday which upheld the appeal made by four members of the Armed Forces regarding the Defence Force Temporary Defence Order (TDFO) that required a mandatory retention review in the event that Covid-19 vaccination requirements were not complied with by Defence Force personnel.

In its ruling, the Court of Appeal stated, "It follows that the TDFO, at least insofar as it provides for mandatory reviews, has not been shown to be a reasonable limit on the appellants' rights that can be demonstrably justified in a free and democratic society.  It is, to that extent inconsistent with the New Zealand Bill of Rights Act (NZBORA) and unlawful."

In allowing the appeal, the Court ordered the Chief of Defence Force to reconsider the TDFO in light of the judgment and prohibited him from taking any further action pursuant to the order until such time as the reconsideration of the TDFO is complete.

Lawyer for the appellants, Matthew Hague, said "It is a fantastic result for the protection of fundamental rights in New Zealand.

"I call on the Chief of Defence Force to reinstate everyone who lost their jobs because of the unlawful mandate."

In its press release issued yesterday, the Defence Force stated, "There are currently no Covid-19 vaccine mandates in the NZDF."

"The DFO(T) that was subject to the Court’s judgment provided more prescriptive measures for managing members who were not Covid-19 vaccinated compared with the other readiness requirements. The Court found that it did not have sufficient evidence before it to be satisfied that the more prescriptive measures were justified."

"The Court has ordered the NZDF to review the measures it prescribes under the current order, and to hold off any further action until this is done."

"In light of the judgment, the NZDF will conduct a further review with consideration to flexibility of managing personnel who do not meet the vaccine requirement, while continuing to maintain an Armed Forces ready to meet New Zealand’s defence needs."

In its judgment, the Court described the review of the TDFO which the Chief of Defence Force has been ordered to undertake to be, "timely, if not overdue."

The Court noted that pursuant to an Official Information Act Request, it had emerged that, as at 31 May 2022, "out of a total of 9,251 NZDF Regular Force personnel, 3124 were not fit for service within New Zealand and 4,547 did not meet the fit for service criteria for international deployment."

The Court also considered that a 50% uplift on costs awarded to the appellants was justified, stating "the proceedings benefit a wider group than just the four applicants, and serve the important public interest of ensuring the lawful exercise of a statutory power to make secondary legislation."

A spokesperson for Minister of Defence, Judith Collins, confirmed to Newstalk ZB yesterday that the Minister still retained confidence in the Chief of Defence Force despite the Court of Appeal defeat.

The NZDF declined to confirm to Newstalk ZB whether it would apologise to service personnel directly affected by the TDFO, or whether it would consider reinstating former service personnel who were dismissed or resigned in connection with the TDFO.

One Defence Force member affected by these orders told ZB Plus this morning, "The NZDF says that it lives by 4 key values: courage, commitment, comradeship, and integrity. However, the NZDF's recent response to being exposed for forcing an unlawful order on its people proves that the current leadership is not aligned with the values of the NZDF."

Another told ZB Plus, "Despite the appeal's success, Defence continues to gaslight the country about their hard line and how they managed us. In 3 words: degradation, humiliation, distressing."