On 25 February 2022, the High Court upheld a challenge to the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (“the mandate”).
What was the outcome of this case?
The Court set aside the mandate on grounds that it placed unjustifiable limits on the applicants’ fundamental rights, protected by the New Zealand Bill of Rights Act 1990 (NZBoRA).
The mandate required that all Police and Defence Force personnel receive two doses of the COVID-19 vaccine by 1 March 2022, or they would be deemed unable to do their work and could face dismissal. The mandate potentially affected 279 unvaccinated personnel if they did not comply.
The three applicants who brought the case on behalf of these unvaccinated personnel argued that this not only limited the fundamental rights of those affected, but that the Government could not justify doing so in a free and democratic society – as required by NZBoRA.
The High Court agreed and held that the mandate constituted an unreasonable limit on fundamental rights protected by NZBoRA that could not be demonstrably justified in a free and democratic society. The mandate was set aside.
What rights did the mandate purport to limit?
The High Court accepted the applicants’ argument that the mandate limited two rights:
- First, the mandate limited the right of affected personnel to refuse to undergo medical treatment. This issue was not contested by the Crown and was accepted without any great qualification by the Court.
- Second, the mandate limited the right of affected personnel to manifest their religion or belief in worship, observance, practice, or teaching. However, this related only to the right of those who object to receiving a vaccine that was tested using cells derived from a human foetus on religious grounds. The mandate does not limit this right for people who object to the mandate because it is inconsistent with a manifestation of belief arising from the concept of “individual bodily integrity, personal autonomy or similar [religious] values”.
Why were these limits not demonstrably justified?
Limits on the rights and freedoms protected by NZBoRA are deemed lawful only if they can be “demonstrably justified in a free and democratic society”. Having considered the relevant factors, Justice Cooke held that these limits could not be justified for several reasons.
First, the High Court recognised that the relevant justification for the mandate was not the elimination of the spread of the virus, but to “ensure the continuity of services that are essential for public safety, national defence … and to maintain trust in public services”. However, expert evidence led to the conclusion that, while vaccination has significant beneficial effect in limiting serious symptoms and hospitalisation resulting from the Omicron variant, it is far less effective in reducing infection and transmission. Therefore, while Omicron may pose a tangible threat to the continuity of services, this is the case for the vaccinated as well as the unvaccinated.
Second, Justice Cooke found that the mandate affected only 279 out of 31,162 Police and Defence Force staff and personnel. It followed that there was no real evidence to suggest that the effect of the mandate on such a small number of unvaccinated personnel made any material difference to the continuity of services or the maintenance of public trust.
Finally, the High Court relied on the fact that both the Police and Defence Force already had their own internal vaccination requirements. There was no evidence to suggest that the mandate could implement any change in vaccination rates that could not be achieved through internal policy, nor evidence to suggest that it would have been impractical to deal with affected personnel individually (and perhaps more fairly), based on internal policy. Ultimately, the Court concluded that the Crown’s justification for the mandate was one of administrative convenience, “which is not a compelling justification for limiting rights”.
It was on these three principal points, and fair consideration of the relevant evidence, that the Court concluded that the limits placed on the applicants’ fundamental rights by the mandate were not demonstrably justifiable, and the mandate was set aside.
So, what does this (not) mean?
First, it is important to note that this decision is strictly limited to the mandate relating to Police and Defence Force personnel, only. This decision does not affect other vaccine mandates, which were implemented for different reasons.
Similarly, this decision is strictly limited to public policy decisions only, such as government decisions and powers exercised by government departments or ministries. It cannot be applied to private vaccination requirements – even requirements set by state-owned enterprises, such as KiwiRail or Air New Zealand.
Second, it must be stressed that this vaccination mandate was found to unjustifiably limit NZBoRA in two (limited) instances only. The High Court, quite rightly, rejected arguments that the mandate restricted the right to work, the right to be free from discrimination, or the protection of internal thought or belief.
Finally, this judgment should not be taken as the Court questioning the effectiveness and importance of vaccination, nor the efficacy of vaccine mandates more generally. Expert evidence in this case supported the conclusion that three doses of the COVID-19 vaccine significantly improve the prospects of avoiding serious illness and death, even with the Omicron variant. Expert evidence in other cases may lead to a different conclusion.
If you have any questions about the vaccination mandates, please get in touch with our employment team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.