Case Brief: GF v Minister of Covid-19 Response [2021] NZHC 2526

October 19, 2021

Summary

GF unsuccessfully applied for judicial review of the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Order”). The High Court found the Order was within the authority of COVID-19 Public Health Response Act 2020, and was not irrational.

Background

The applicant, GF, was an employee of NZ Customs. The Order was signed by the Associate Minister in April 2021 for the purpose of preventing and limiting the risk of Covid-19 spreading in the community. To achieve this purpose, the Order required frontline workers to be vaccinated before conducting certain activities. GF’s work was captured by the Order and she refused to get vaccinated. Her employment was terminated as a result.

GF complained to the Employment Relations Authority (“ERA”), claiming that she was unjustifiably dismissed. The ERA dismissed her claim, as the employer was complying with the Order, and the Authority had no power to declare the Order itself to be invalid.

GF challenged the validity of the Order in the High Court on two grounds. First, the Order breached New Zealand Bill of Rights Act 1990 (“NZBORA”) and was unlawful. Second, the Order was irrational.

The Case

Was the Order within the powers of the COVID-19 Public Health Response Act?

GF argued the Order was not a justified limitation on the right to refuse medical treatment under s 11 of NZBORA, and the right to freedom from discrimination under s 19. Vaccinations required by the Order were within the definition of medical treatment under s 11. GF submitted that while workers could refuse the vaccine, the Order subjected workers to duress which compromised their ability to make a free and informed choice to vaccinate.

The Court acknowledged affected workers suffered a significant imposition on their freedom of choice to refuse vaccination, and there was risk of discrimination. This meant the Crown had to justify its use of the Vaccination Order.

Dr Ashley Bloomfield’s evidence showed vaccination reduced rates of infection and the severity of symptoms, reducing the chance of fatality. As border workers were the most likely source of community transmissions, vaccinations helped to significantly reduce the risk of wider outbreaks. GF failed to identify an alternative method of addressing Covid-19 that would be equally effective. The Court held the economic, social, and health benefits of the Order outweighed any limitations to the rights of workers, and was demonstrably justified.  

Was the Order irrational?
Decisions made by the government can be challenged on the grounds they are unreasonable or irrational. A decision will be irrational where it is not supported by evidence or logic, or fails to follow an established legal principle.

GF argued the Order was not created in partnership with Māori, and was inconsistent with legal principles in other legislation governing employment relationships. This included the Health and Safety at Work Act 2015 (“HSWA”), the Universal Declaration of Human Rights (UDHR), and the Health and Disability Commissioner (Code of Health and Disability Services Consumers Rights) Regulations 1996 (“Regulations”).

There was considerable overlap between the applicant’s arguments that the Order was unlawful and irrational. Much of GF’s claims relied on the assertion that the Order was inconsistent with the HWSA and Regulations by imposing its own requirements.

The Court found the Minister had adequately considered the impacts of the Vaccination Order on Māori, the Treaty of Waitangi, and workers. It had not acted irrationally, nor without regard to its consequences.  The Court could not second-guess the policy decisions made by the Minister.

The Court also held the Order not did not breach or replace any provisions of the HSWA or the Regulations. Nor did it interfere with an employee’s right to dispute employment matters in the ERA and Employment Court.

Result

The High Court found that the Order was neither a breach of NZBORA nor irrational, and dismissed the application for judicial review. This decision shows that for workers affected by the vaccinations public health orders, freedom to refuse vaccination does not mean freedom from consequence.

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