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Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 (25 February 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND
CA289/01


BETWEEN
VERNON FREDERICK CURTIS


Appellant


AND
THE MINISTER OF DEFENCE


Respondent

Hearing:
12 February 2002


Coram:
Tipping J
McGrath J
Anderson J


Appearances:
M T Scholtens and C R Bradbury for Appellant
H M Aikman and G Stanish for Respondent


Judgment:
25 February 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] On 8 May 2001 the Minister of Defence, the Honourable Mark Burton, announced in Parliament that the Air Combat Force of the Royal New Zealand Air Force was to be disbanded. On 31 October 2001 the present appellant, Mr Curtis, as representative of a number of concerned citizens, commenced proceedings in the High Court at Wellington for judicial review of the Minister’s decision. The relief sought originally included an application for the setting aside of the decision but Mr Curtis now wishes to seek only a declaration that in making the decision the Minister exceeded his powers.
[2] The application for review was accompanied by an application for interim relief. The Minister resisted that application and also applied for an order striking out the substantive application for judicial review. On 20 November 2001 Heron J declined interim relief and struck out the substantive application. Mr Curtis now appeals against the strike out order.
[3] The central issue in the case is whether in making the decision inherent in his Parliamentary announcement, the Minister exceeded the power of control of the New Zealand Defence Force vested in him under s7 of the Defence Act 1990 (the Act). In short, Mr Curtis contends that he has at least an arguable case that the Minister exceeded his powers when making the decision in issue because that decision involved the abolition of an essential ingredient of the Royal New Zealand Air Force which is itself part of the New Zealand Defence Force. Such abolition, so Mr Curtis contends, goes beyond the scope of legitimate control. The Minister argues that the Judge was right to strike out the proceeding because at its heart lies an issue which is not justiciable in the Courts, namely the extent to which the Royal New Zealand Air Force should be armed. The cases on each side are of course more detailed than that, and we will examine them further after reference to the relevant statutory provisions and the reasoning of the Judge.

The relevant legislation

[4] It is convenient to set out those provisions of the Act which have immediate relevance. The long title to the Act is in these terms:

An Act—

(a) To continue to authorise the raising and maintaining of armed forces for certain purposes; and

(b) To constitute the New Zealand Defence Force, comprising—

(i) The Armed Forces under the command of the Chief of Defence Force; and

(ii) The Civil Staff under the control of the Chief of Defence Force; and

(c) To reaffirm that the Armed Forces are under Ministerial authority; and

(d) To define the respective roles and relationships of the Minister of Defence, the Secretary of Defence, and the Chief of Defence Force; and

(e) To redefine the relationship of the Chief of Defence Force to the Chiefs of Staff; and

(f) To make provision generally in respect of the establishment, control, and activities of the New Zealand Defence Force, and related matters

[5] Section 2 defines the Armed Forces as follows:

Armed Forces means the Navy, the Army, and the Air Force collectively; and includes any branch, corps, command, formation, unit, or other part of the Armed Forces; but does not include any part of the cadet forces:

[6] Section 5 which is the first section in Part I dealing with the constitutional position of armed forces reads as follows:

5 Power to raise armed forces

The Governor-General may from time to time, in the name and on behalf of the Sovereign, continue to raise and maintain armed forces, either in New Zealand or elsewhere, for the following purposes:

(a) The defence of New Zealand, and of any area for the defence of which New Zealand is responsible under any Act:

(b) The protection of the interests of New Zealand, whether in New Zealand or elsewhere:

(c) The contribution of forces under collective security treaties, agreements, or arrangements:

(d) The contribution of forces to, or for any of the purposes of, the United Nations, or in association with other organisations or States and in accordance with the principles of the Charter of the United Nations:

(e) The provision of assistance to the civil power either in New Zealand or elsewhere in time of emergency:

(f) The provision of any public service.

[7] Section 5 gives effect to the first purpose of the Act stated in its long title: to authorise the raising and maintaining of armed forces for certain purposes. It reflects the longstanding constitutional requirement that Parliament must authorise the presence of armed forces within New Zealand. The Bill of Rights Act 1688 (in force in New Zealand by dint of the Imperial Laws Application Act 1988) states that the “raising or keeping of a standing army within the Kingdom, in time of peace, unless it be with the consent of Parliament, is against law”. The exercise of the prerogative power of the Crown to raise and control armed forces is authorised by the parliamentary consent but it is also controlled and, to an extent, abridged by the provisions of the Act. Thus in Section 5 the consent given by Parliament is qualified by reference to the purposes for which the armed forces may be raised and maintained. Section 5 is of course empowering only and does not of itself oblige the Crown (effectively the Executive) to maintain any or any particular armed force or forces. However the prerogative of national defence itself is sometimes expressed as a paramount duty owed to subjects and the nation : see P Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001) at 630.
[8] Section 7 which gives the Minister the power in issue is expressed in this way:

7 Power of Minister of Defence

For the purposes of the general responsibility of the Minister in relation to the defence of New Zealand, the Minister shall have the power of control of the New Zealand Defence Force, which shall be exercised through the Chief of Defence Force.

This section gives effect to the purpose expressed in the long title to the Act as being “to reaffirm that the Armed Forces are under Ministerial authority”. Section 7 expresses the constitutional principle that the nation’s armed forces are subject to the control of the constitutional government. It also provides for the manner of implementation of that control, which is through the command structure of the New Zealand Defence Force. In this respect s7 is to be read with s8 which gives the Chief of Defence Force power of command over the Navy, the Army and the Air Force, which in turn is exercised through the respective Chiefs of Staff who are the immediate subordinates of the Chief of Defence Force. A number of other provisions reinforce Ministerial authority including s25(1) and (2) which makes the Chief of Defence Force responsible to the Minister for carrying out the functions and duties of the Defence Force “including those imposed by any enactment or by the policies of the Government.”

[9] Section 11 which is the first section in Part II dealing with the New Zealand Defence Force provides:

11 Constitution of Defence Force

(1) There is hereby constituted the New Zealand Defence Force, which shall comprise—

(a) The Armed Forces of New Zealand, being the armed forces raised and maintained under section 5 of this Act; and

(b) The Civil Staff, being the persons appointed under [section 61A] of this Act.

(2) The armed forces raised and maintained under section 5 of this Act shall continue to comprise—

(a) The New Zealand Naval Forces; and

(b) The New Zealand Army; and

(c) The Royal New Zealand Air Force.

(3) The New Zealand Naval Forces shall consist of the following:

(a) The Royal New Zealand Navy:

(b) The Royal New Zealand Naval Reserve:

(c) The Royal New Zealand Naval Volunteer Reserve:

(d) The Naval Reserves:

(e) Such additional naval forces as may be raised by the Governor-General in time of war or other like emergency.

(4) The New Zealand Army shall consist of the following:

(a) The Regular Force of the New Zealand Army:

(b) The Territorial Force of the New Zealand Army:

(c) The Army Reserve:

(d) Such additional army forces as may be raised by the Governor-General in time of war or other like emergency.

(5) The Royal New Zealand Air Force shall consist of the following:

(a) The Regular Air Force:

(b) The Territorial Air Force:

(c) The Air Force Reserve:

(d) Such additional air forces as may be raised by the Governor-General in time of war or other like emergency.

(6) The New Zealand Naval Forces, the New Zealand Army, and the Royal New Zealand Air Force may each be divided into such branches or corps, formations, commands, units, and other parts as the Chief of Defence Force determines from time to time.

[10] The first two subsections of s25, which deals with the position of the Chief of Defence Force, are as follows:

25 Chief of Defence Force

(1) In addition to the functions imposed on the Chief of Defence Force by or under this Act or any other enactment, the Chief of Defence Force shall—

(a) Be the principal military adviser to the Minister and other Ministers; and

(b) Be responsible to the Minister for—

(i) The carrying out of the functions and duties of the Defence Force (including those imposed by any enactment or by the policies of the Government); and

(ii) The general conduct of the Defence Force; and

(iii) The efficient, effective, and economical management of the activities and resources of the Defence Force[; and]

[(c) Be responsible to the appropriate Minister for—

(i) The carrying out of those functions and duties of the Defence Force (including those imposed by any enactment or by the policies of the Government) that relate to that Minister's portfolio; and

(ii) The tendering of advice to that Minister on any matter relating to that Minister's portfolio.]

(2) The Minister shall give to the Chief of Defence Force written terms of reference (not being inconsistent with any of the provisions of this Act) setting out the terms and conditions of appointment as Chief of Defence Force, the duties and obligations of that appointment, and the manner in which the Government expects those duties and obligations to be carried out; and it shall be the duty of the Chief of Defence Force to perform the functions and to exercise the powers of the Chief of Defence Force in accordance with those terms of reference.

High Court judgment

[11] After having discussed and declined the application for interim relief, Heron J said that as interim relief was not appropriate it was “beyond doubt ... there is no point in these proceedings continuing ...”. He thereby carried some of his reasoning on the interim relief question into his strike out decision. That reasoning was essentially to the effect that the concept of the Armed Forces was a collective one and it was not necessary for each of the constituent elements to remain armed to its former level. The Judge was of the view that impossible questions of degree would arise if the Court were involved in deciding questions of the extent to which any particular part of the armed forces of New Zealand should be armed. He adopted Ms Aikman’s submission for the Minister that, other than prescribing that the Royal New Zealand Air Force was to exist, the Act does not prescribe how that force is to be made up or that it must include an Air Combat Force. Whether the RNZAF should continue to have an Air Combat Force was, in the Judge’s view, a paradigm of a policy decision in respect of which the Courts have never intervened. Thus the substantive application for judicial review was doomed to fail and should be struck out.

The issues

[12] We see the appeal as raising three issues and will consider counsel’s arguments under these headings, albeit, as Ms Scholtens said, issues (1) and (3) are in a sense opposite sides of the same coin. The issues are:
[13] Issues (1) and (3) are related in that Ms Scholtens argued that by removing the RNZAF’s air combat capability the Minister had effectively “neutered” the RNZAF to the point that it was no longer in law an air force because it had ceased to be an armed force as the Act required.
[14] It is of course elementary that the Courts are concerned only with the lawfulness of the Minister’s decision. Whether his decision is appropriate in other respects is not a matter with which the Courts may constitutionally be concerned.

Issue (1) : Has the RNZAF ceased to exist?

[15] Section 11(1) of the Act constitutes the New Zealand Defence Force and stipulates its composition. In reading the section it is necessary to bear in mind that in the Act the defined term ‘Armed Forces’ is used in a particular sense referring to the New Zealand Naval Forces, the New Zealand Army and the Royal New Zealand Air Force collectively. When, however, the term is expressed entirely in the lower case, that is as ‘armed forces’, it has a more general meaning. In this usage, for example, it refers to forces of other countries (s22(1) and (3)).
[16] Accordingly, when s11(2) stipulates the composition of the ‘armed forces’ raised and maintained under section 5 of the Act, it is indicating Parliament’s requirements in relation to the composition of the ‘Armed Forces’. They must continue to include the Royal New Zealand Air Force, the composition of which is itself specified in s11(5). Parliament thus indicated that it required that the Royal New Zealand Air Force continue in existence as a component of the New Zealand Defence Force. The Minister’s power of control of the New Zealand Defence Force under s7 does not therefore allow the Executive to abolish the RNZAF. But in deciding to disband the Air Combat Force the Minister has not abolished the RNZAF. It undoubtedly still exists, albeit without the Air Combat Force. Parliament has not directed that the Air Combat Force, or what has been referred to as the air strike capacity of the RNZAF, must continue. We cannot accept Ms Scholtens’ submission that by disbanding the Air Combat Force the Minister has brought about the total demise of the RNZAF. 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 .
[17] The evidence of Air Vice Marshall Hamilton, the Chief of Air Staff, is that at the time of the Minister’s decision the RNZAF comprised seven squadrons which formed the Regular Air Force. Of these, three squadrons made up the Air Combat Force, leaving four squadrons devoted to other purposes. Following dis-establishment of the Air Combat Squadrons, the operational capabilities of the RNZAF will include the Fixed Wing Transport Force comprising C130 Hercules and Boeing 727 aircraft, the Maritime Patrol Force comprising P3K Orion aircraft, and the Rotary Wing Transport Force comprising UH-1 Iroquois helicopters. The evidence is that recent deployments involving these aircraft have included the deployment of Orion aircraft to support the Multinational Interception Force operations in the North Arabian Gulf, the deployment of Hercules aircraft to the Gulf War, Somalia, Rwanda and Kosovo, and the deployment of the Iroquois helicopters in East Timor.
[18] All of these deployments are clearly within the powers contained in s5 of the Act and in particular paragraphs (c) and (d) of that section. In the light of this unchallenged evidence, we are unable to accept the view inherent in Ms Scholtens’ submissions that the RNZAF can no longer be regarded as an air force. It has no doubt become a different sort of air force from that which has hitherto existed but it nevertheless remains an air force. We do not think it necessary to refer to dictionaries or other materials to help with the meaning of the word “force” or the meaning of the expression “air force”. It is sufficient to say that for the purposes of s11(2) of the Act we are in no doubt that the RNZAF continues to exist and the Minister’s decision has not had the effect of so altering it as to cause it no longer to exist as an air force.

Issue (2) : Do all three constituent elements of the Armed Forces have to be armed?

[19] Ms Scholtens argued that the Royal New Zealand Air Force had to be and remain an armed force. Ms Aikman argued that under the Act that was not necessary and it sufficed that the Armed Forces as a whole, more precisely the New Zealand Defence Force, was armed. The Act of 1990 was designed to introduce a more unified structure in respect of the three constituent elements of New Zealand’s armed forces than had existed under its 1971 predecessor. That, we think, is the primary reason for the use of the word collectively in the definition of Armed Forces in the 1990 Act. The same point is demonstrated by the constitution of a composite New Zealand Defence Force by s11, thus giving effect to the second of the purposes of the Act expressed in its long title. The Minister’s power of control under s7, significantly, is of the New Zealand Defence Force, not of its three constituent elements directly. Hence that control is to be exercised through the Chief of Defence Force who is responsible to the Minister for carrying out the functions and duties of the New Zealand Defence Force, including those imposed by the policies of the Government (s25(1)(b)(i)).
[20] These are clear indicators that Parliament saw the Armed Forces as a unitary whole, albeit having three constituent elements. There is therefore merit in Ms Aikman’s contention that although the unitary whole has to be armed, it is not necessary for a particular component, ie. the RNZAF to be armed. The only contrary indication in the Act to which Ms Scholtens was able to point relies on the reference in the introductory words of s11(2) to the armed forces raised and maintained under s5. These words can be read as suggesting that each of the three components must be an armed force but the more natural reading of the subsection is that it is designed simply to link s11 with s5 in the sense of making it clear that the three components are, each of them, constitutionally authorised in terms of s5. In the light of our conclusion on the third issue, no final decision is necessary on this one. But we think the stronger view is that the Act does not require each component of the Armed Forces to be armed. It is sufficient if it can fairly be said that the New Zealand Defence Force as a whole is an armed force. On this basis one component can support the other or others on an unarmed basis without the New Zealand Defence Force as a whole ceasing to be armed.

Issue (3) : Has the RNZAF ceased to be armed?

[21] While there are differences of opinion in the evidence as to whether the RNZAF has ceased to be an armed force, there is no challenge to the following factual evidence. The Minister has deposed that the Orions, Hercules and Iroquois all play a combat support role and both Orions and Iroquois can be fitted with weapons. The Chief of Air Staff has deposed that each of the remaining force elements (Fixed Wing Transport, Maritime Patrol and Rotary Wing Transport) remain equipped and armed in a manner appropriate to their respective roles. For example, Iroquois helicopters deployed to East Timor are mounted with machine guns. It is thus apparent that certain of the RNZAF’s remaining aircraft are capable of being armed and indeed are armed in a more than illusory way.
[22] The level at which the RNZAF is armed is not something into which the Courts can go. That is a matter of policy for the Government of the day, in respect of which it will be accountable at the ballot box. In legal terms, if the RNZAF as a constituent of the New Zealand Defence Force must be armed, it is impossible on the unchallenged evidence to say it is not armed. The level at which it should be armed is a political not a legal issue. The Minister’s decision to reduce the RNZAF to its current level of armament was one which he was empowered to make under s7 of the Act as a facet of controlling the New Zealand Defence Force.
[23] There is no need to cite extensively from authority to support the proposition that decisions of the Executive Government, here the Minister of Defence under s7 of the Act, concerning the manner in which and the extent to which the armed forces are to be equipped, deployed and controlled, are not matters into which the Courts will generally go. The touchstone for judicial intervention will always be lawfulness. In making the kind of decisions now under discussion, those concerned must act lawfully but this means that the decision must be susceptible of assessment in terms of legality before the Courts can become involved.
[24] Although Their Lordships’ views may have been expressed in rather more absolute a way than is appropriate for present purposes, because they were speaking of the prerogative alone rather than the prerogative in combination with statutory provisions, the decision of the House of Lords in Chandler v Director of Public Prosecutions [1964] AC 763 is of considerable relevance. At 791 Lord Reid said:

It is in my opinion clear that the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co. Ltd v Attorney-General [1932] 2 K.B. 197. Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in court.

[25] At 798 Viscount Radcliffe observed:

If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty’s Ministers for the time being, as we know that they are, 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. The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and 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.

[26] In her judgment in the Supreme Court of Canada in Operation Dismantle v The Queen [1985] 1 SCR 441 at 465 Wilson J, after citing Viscount Radcliffe’s observations in Chandler as noted above, expressed the view that matters such as those with which the present case is concerned are not justiciable because they involve moral and political considerations which it is not within the province of the Courts to assess. Wilson J also expressed the view that in terms of constitutionality the Courts should not embark into the kind of matters under discussion. In New Zealand the same idea has been expressed in different contexts in Creedenz NZ Inc v Governor-General [1981] 1 NZLR 172, 197-198 CA and Petrocorp v Minister of Energy [1991] 1 NZLR 641, 655 PC.
[27] A non-justiciable issue is one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.
[28] In the present case it is not fairly arguable that the Minister’s decision has completely disarmed the RNZAF. The only issue is whether his decision has left the RNZAF insufficiently armed. But that is par excellence a non-justiciable question. It is a question which is not susceptible of determination by any legal yardstick. Furthermore it is one of Government policy into which it is constitutionally improper for the Courts to go. The appellant has no prospect of showing the Minister’s decision to have been unlawful and hence no prospect of obtaining relief of any kind. It is therefore appropriate that his application for judicial review was struck out.

Basis of strike out

[29] The conventional basis for striking out a proceeding is when it can be said with certainty that, even if all the facts alleged in the plaintiff’s statement of claim are true, no cause of action exists. The present case represents a slight variation from that situation, albeit it can still be viewed in those conventional terms. It is perhaps more accurate to say of this case that the proceeding should be struck out because, on the unchallenged evidence and on a correct application of the law, the case necessarily involves an issue which is not justiciable. In such circumstances we consider it appropriate for the proceeding to be struck out. The situation is the same as or at least closely analogous to one in which there is no cause of action on the pleaded facts. In each situation it can be posited with certainty at the outset that the appellant has no prospect of obtaining the relief sought. It is therefore both in the public interest and in the interests of the parties that the litigation be brought to an end before trial.

Formal disposition

[30] For the reasons given we agree with the conclusion to which Heron J came. The appeal is dismissed. If any question of costs arises, the parties may file memoranda.

Solicitors
Bradbury & Muir, Auckland, for Appellant
Crown Law Office, Wellington, for Respondent

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