Introduction
Vaccine mandates have been one of the most contentious issues arising out of the COVID-19 pandemic. In this most recent judgment, the High Court considered whether the government’s vaccination mandate breached fundamental rights, and if so, whether the limitations are reasonable and demonstrably justified. The case, which challenged the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Order), was brought by three employees of the New Zealand Police (Police) and the New Zealand Defence Force (Defence Force) who each faced termination should they not be vaccinated by 1 March 2022. Thirty-seven other workers also swore affidavits in support of the claim.
The Order
Under the Order, it was determined that work carried out by certain Police and Defence Force personnel could only be performed by vaccinated workers. The purpose of the Order was to ensure continuity of services that are essential for public safety, national defence, or crisis response and to maintain trust in public services.
The arguments
The Applicants’ put forward a number of arguments. Most notably, they argued that the Order placed an unjustified limitation on their right to be free to refuse medical treatment under s 11 of the New Zealand Bill of Rights Act 1993 (NZBORA). The applicants also asserted that the Order placed an unjustified limit on their right to manifest religion or belief provided under s 15 of the NZBORA. This argument was based on the assertion that the Pfizer vaccine had been tested on cells that were derived from a human foetus, believed to be aborted. The Court noted that while the Order does not force Police and NZDF personnel to be vaccinated against their will, the mandate does present an element of pressure.
Conversely, the Minister acknowledged that the Order placed limitations on the applicant’s NZBORA rights but argued that the limitations were justified based on ensuring continuity of services essential for public safety, national defence or crisis response, and to maintain trust in those public services. It was argued that the risk to continuity of services arose from possible absenteeism – both direct and indirect – caused by COVID-19. It was further asserted that the maintenance of public trust in services, especially the Police, was associated with having a fully vaccinated workforce.
The decision
The High Court came down on the side of the applicants, taking the view that the mandate was an unjustified limit on the applicant’s rights under the New Zealand Bill of Rights Act 1993.
Cooke J noted that the Order was implemented to ensure the continuity of the public services (e.g., the Police and the Defence Force) and to promote public confidence in those services, as opposed to limiting or stopping the spread of COVD-19. As such, the judgment focused significantly on what the Order actually achieved in relation to the number of unvaccinated Police and Defence Force personnel impacted by the Order. It was noted that the actual impact of the Order was limited to 164 police workers and 115 Defence Force staff (including both regular forces and civilian staff) though it covered workforces of roughly just under 11,000 and 15,480 respectively.
The decision states that no evidence was provided to show that the numbers would have been any different had vaccination been addressed solely by the organisations’ internal vaccination policies. Cooke J proceeded to emphasise that no explanation was provided to account for how such a limited number of unvaccinated personnel would materially affect the ability of either the Police or the Defence Force to provide continuity of services, or similarly, public trust in the provision of the services.
What does it mean?
The decision focuses significantly on the numbers of Police and Defence Force workers affected by the Order, as compared to the overall size of the organisations. As such, the Minister was unable to demonstrate that either continuity of public services or public trust and confidence in said public services would be negatively impacted. The decision is limited in its direct application to private businesses and does not overturn other mandates imposed by the government. However, it is worth noting that the decision upholds fundamental rights under the NZBORA – notably the right to manifest religious belief. An employee could arguably point to this case in objecting to a vaccination mandate on religious grounds.
The decision also noted the effectiveness of the vaccine and stated that it does not prevent the spread of the Omicron variant to the same degree that it did against the previous variants. However, Cooke J expressly noted that the decision should not be understood to question the effectiveness and importance of vaccination.
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