Hunn Review: Annexes (30 September 2002)
Annex G
Summary of the Legal Judgements of the High Court and Court of Appeal (December 2001, and February 2002)
References
- Reserved Judgement of Heron J, in the Matter of the Defence Act 1990, between Vernon Frederick Curtis (Applicant) and The Minister of Defence (Respondent), High Court of New Zealand, Wellington Registry 20 November 2001. (CP 253/01)
- Judgement of the Court Delivered by Tipping J, in the Matter between Vernon Frederick Curtis (Appellant), and The Minister of Defence (Respondent), Court of Appeal of New Zealand, 25 February 2002, (CA
289/01)
Background
- On 1 May 2001, the Minister of Defence announced the decision of the Government to disband the Air Combat Force of the Royal New Zealand Air Force (RNZAF). On 31 October 2001, Mr Vernon Curtis on behalf of an organisation known as "Save our Squadron" commenced proceedings in the High Court for a judicial review of the Minister's decision. Curtis applied to have the decision set aside and sought interim relief, essentially stopping the dismantling of the force awaiting a full hearing.
- The Crown sought to strike out the proceedings and on 20 November 2001, Heron J struck out the substantive application and declined interim relief.
- Curtis appealed to the Court of Appeal, arguing that he had at least an arguable case that the Minister had exceeded his powers when making the decision to disband the Air Combat Force, because the decision involved the abolition of an essential ingredient of the RNZAF. Curtis argued that such abolition went beyond the legitimate control vested in the Minister under s. 7 of the Defence Act.
- The Court of Appeal reviewed Heron J's findings and judgement and agreed with Justice Heron's conclusions. On 25 February 2002, the Court delivered its judgement, dismissing the Appeal.
Discussion
- The legal judgements of Heron J, and the Court of Appeal address three central issues in respect of the Defence Legislation:
- the Minister's powers of control of the New Zealand Defence Force vested in him by s.7 of the Defence Act 1990 ;
- the definitions of Armed Forces, and the constituent parts
- the principle that the Courts of New Zealand within the assurance that the law has been upheld, do not intrude into matters of government policy.
The Minister's Powers under s. 7 of the Defence Act
- In respect of the first issue, Mr Curtis contended that the Minister had exceeded his powers when making the decision to disband the Air Combat Force, because that decision involved the abolition of an essential ingredient of the RNZAF which is itself part of New Zealand Defence Force. Mr Curtis contended that sub absolution went beyond the scope of the Minister's legitimate control. Experts for the Applicant contended that with the abolition of the Air Combat Force, the Air Force can no longer be described validly as an armed force able to satisfy the purposes specified in the Defence Act.
- After reviewing the Long Title, and Sections 2, 5, 7 and 11 of the Act Justice Heron accepted the Crown's argument that other than prescribing that the Royal New Zealand Air Force must exist, the Act does not prescribe how that force is to be made up. In particular it does not provide for an Air Combat Force. The Minister's power of control of the New Zealand Defence Force under s7 does not allow the Executive to abolish the RNZAF. Justice Heron and the Court of Appeal noted that since the RNZAF undoubtedly still exists, it can not be contended that the Minister has exceeded his authority. As the Court of Appeal judgement noted:
Although, in terms of the Minister's decision, New Zealand will have less of an air force than it had before, we consider that in law it is impossible to contend that New Zealand no longer has an Air Force as part of the New Zealand Defence Force. While as a matter of opinion it may be possible to say that without air combat capability an Air Force can no longer be called an Air Force, we regard it as impossible to come to that view as a matter of law. (para 16, p.9).
Definitions of Armed forces
- The Legal judgements refer to the constitutional position of New Zealand's armed forces. They re-state the view that Section 5 of the Defence Act reflects the long-standing constitutional requirement that Parliament must authorise the presence of armed forces within New Zealand. The Court of Appeal judgement notes that: "the exercise of the prerogative power of the Crown to raise and control armed forces is also controlled and, to an extent, abridged by the provisions of [Defence] Act". The judgement most particularly notes that in s5, the consent given by Parliament is qualified by reference to the purposes for which the armed forces may be raised and maintained. It notes that while the s5 empowers, it does not oblige the Crown to maintain any or any particular armed forces or forces.
- Both judgements examined s.11 of the Act, which specifies the constituent elements of the New Zealand Defence Force as the Navy, the Army and the Air Force, noting that the provisions do not require that all constituent elements of the Armed Forces be in fact armed. The Court of Appeal's judgement observed particularly that the Minister's power of control under s7 "significantly, is of the New Zealand Defence Force, not of its three constituent elements directly. The Court felt there was merit in the Crown's argument that the intention of the Act is that the Armed forces are a unitary whole under s 5.
Intrusion of the Courts in Matters of Government Policy
- Both Justice Heron's judgement and that of the Court of Appeal make it clear that the extent to which the Armed Forces of New Zealand are armed, either as a unitary whole or its constituent parts, is not a matter of law, but a matter of government policy. Both judgements noted the view that it was not the role of the Courts to express opinions on the appropriateness or otherwise of the arming of defence forces. The Court of Appeal referred to the a 1964 decision of the House of Lords, which give clear direction, quoting Viscount Radcliffe:
If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's Ministers it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should be different it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests. I may add that I can think of few issues which present themselves in less triable form.
- Consequently, the Court of Appeal upheld Justice Heron's decision to strike out the proceedings because the issue was a matter of high policy in which the Courts do not become involved, and because the proceeding was not judged to be justiciable, i.e., it is "an issue in respect of which there is no satisfactory legal yardstick by which the issue can be resolved". (Ref B, para 27, p. 13).
