A campaign to save the air force's jet fighters has stumbled at the first legal hurdle.
A High Court judge has thrown out a legal bid challenging the Government's decision to axe the air force's Skyhawk jet fighters and Aermacchi training aircraft.
The Save Our Squadrons Campaign had challenged the Government's decision to axe the air combat force, saying it breached the Defence Act because it meant the air force would no longer have the ability to protect or defend New Zealand's interests.
However, in a reserved decision released late yesterday Justice Heron accepted the Government's counter-claim to strike out the challenge.
Save our Squadrons spokesman Clive Bradbury said the organisation would now consider appealing Justice Heron's decision on the grounds it was too narrowly based and did not give sufficient weight to the obligations of the minister of defence under the Defence Act.
The campaign had sought an interim injunction stopping the sale of the aircraft until a full hearing could study the move.
At the High Court hearing last week the court was told Defence Minister Mark Burton did not have the power to make the decision.
The case was brought with the intention of having Parliament review the decision, the lawyer for the campaign said.
The court was also told New Zealanders no longer lived in the benign security environment on which the Government's current defence strategy was predicated.
Mr Bradbury said Justice Heron's decision was "unexpected".
"We now have the prospects of an appeal and will take a few days to make up our minds. It was both surprising and disappointing.
"We believe the decision may be unduly narrow."
Mr Bradbury said the minister's control of the air force must be within the context of Section 5 of the Defence Act.
"Disbandment of the air combat force in the context of the rest of the May 8 defence statement will neither further the defence of New Zealand nor protect the interests of New Zealand - the primary imperatives under the Act."
Mr Bradbury said the campaign would pressure all major political parties to be transparent with their defence policies and the air combat force would be a major political issue at the next general election.
The Skyhawks and Aermacchis are due to stop flying before Christmas.
Mr Burton welcomed the court's decision.
"The court has clearly upheld the proper responsibility of Government to make and implement our policy," Mr Burton said.