The High Court overturned the government’s vaccine mandate for the New Zealand Police and Defence Force, finding it was not a justified limitation of rights and therefore unlawful.
Following the enactment of the COVID-19 Public Health Response Act 2020 (“the Act”), the government commenced a number of orders requiring specified workers to be vaccinated.
The COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (“the Order”) required Police and Defence Force personnel to be vaccinated. The three Police and Defence Force workers who brought the proceedings faced termination if they were not vaccinated by 1 March 2022, and applied for judicial review of the Order. An additional 37 workers also facing termination gave evidence.
The applicants challenged the Order on four grounds:
· the order was inconsistent with the purposes of the Act
· the order was inconsistent with other legislation such as the Defence Act 1990 and the Policing Act 2008
· the Order disproportionately affected Māori and was inconsistent with Treaty principles
· the Order was unlawful as it was an unjustified limit on rights contained within the New Zealand Bill of Rights Act 1990 (“NZBORA”)
The Court rejected the second and third grounds. It did not accept the Order was inconsistent with other legislation, as the empowering Act ensured Orders made under it remained effective, regardless of inconsistency with other legislation. The Court also dismissed the argument that the order disproportionately affected Māori, citing Crown engagement with Māori throughout the health response.
Was the Order inconsistent with the purposes of the Act?
The Court found the Order, directed to ensure continuity of Police and Defence Force services, was consistent with the Act’s purpose of supporting a public health response to Covid-19. Instead, the Court took issue with the purpose clause within the Order itself. The Order originally stated its purpose was to prevent and limit the risk of the outbreak or spread of Covid 19. After the court claim was filed, it was discovered that this purpose had been incorrectly formulated as the result of a drafting error. The purpose clause was replaced, and included the phrase “to ensure continuity of services that are essential for public safety, national defence, or crisis response”.
Justice Cooke noted this had implications for procedural fairness and was a reviewable error. His honour did not address the point further however, having reached the view that the order was unlawful on other grounds.
Was the Order unjustified?
While NZBORA allows for rights to be limited, it must only be done so where demonstrably justified. In this case, the Court held the vaccine mandate limited the rights to refuse medical treatment and manifestation of religious belief. These limitations needed to be balanced against the Order’s purpose of ensuring the continuity of, and confidence in, Police and NZDF services.
The Court held Act intended the government would monitor the justifications for vaccine mandates in light of changing circumstances. Justice Cooke was not satisfied the Order would make a material difference now the highly infectious Omicron strain was spreading rapidly through the community. While Covid-19 presented a threat to the continuity of the Police and NZDF, the threat was to both vaccinated and unvaccinated staff. The low numbers of unvaccinated staff further suggested the services could be adequately managed by internal vaccination policies. Justice Cooke also noted the possibility of future variants appearing which may further reduce the effectiveness of vaccination.
The Court remained unconvinced there was a real threat to the continuity of these essential services that the Order materially addressed. The vaccine mandate was therefore unjustified and unlawful.
The Court held the Order was unlawful and set it aside.
While this decision did not affect other vaccine mandates or policies adopted by employers, it reflects a changing attitude towards mandatory vaccination. Now that Omicron has become a reality for New Zealanders, the Crown will need to ensure its measures are justified in the changing circumstances.
The Crown has indicated they will appeal the decision.
To understand more about this case, please contact Director Brigitte Morten.