New Zealand High Court Upholds Challenge to Vax Mandates By Bruce Bennett
There have been only a few successes dealing with the Covid mandates in the courts, which should wake up the freedom movements to the limits of the common law to dealing with upholding basic freedoms. Still, it is not totally hopeless, and the few victories that have occurred should be rejoiced. One recent one was the upholding of a High Court challenge questioning the legality of Covid-19 vaccination mandates for Police and Defence Force employees. The High Court of New Zealand determined that the government mandate was an unjustified incursion on the Bill of Rights, something New Zealand has but Australia does not. Justice Cooke held that “The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments.” Thus, in this case, the Bill of Rights actually did something in preserving fundamental rights.
“A High Court challenge questioning the legality of Covid-19 vaccination mandates for Police and Defence Force employees has been upheld, with the court determining that the government mandate is an unjustified incursion on the Bill of Rights.
In a decision released today, Justice Francis Cooke determined that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a "reasonably justified" breach of the Bill of Rights.
The lawyer for the police and Defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs.
The challenge, put forward by a group of Defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees.
The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court.
Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate.
As it stands, 164 of the overall police workforce of nearly 15,700 were affected by the mandate after choosing not to be vaccinated. For NZDF, the mandate affected 115 of its 15,500 staff.
The group relied on two aspects of the Bill of Rights - the right to decline a medical procedure and the right to religious freedom.
On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Pfizer vaccine, given that it was tested on the cells that were derived from a human foetus.
Justice Cooke agreed with the claim, saying that "an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief."
However, Justice Cooke disagreed with the claimants' broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally.
"I do not accept that a belief in an individual's bodily integrity and personal autonomy is a religious belief or practice. Rather it seems to me, in the circumstances of this case, to be a belief in the secular concept referred to in section 11 of the New Zealand Bill of Rights Act."
Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure.
The judge said that while it's clear the government isn't forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure.
"The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments," Justice Cooke stated.
But in considering the two claims, Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act.
The court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19.
"In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order," the Judge said.
"Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants."
An additional claim that the mandate would disproportionately affect Māori was dismissed by Justice Cooke.
Affected employees should be allowed to return to work - lawyer
Speaking to NZME, Matthew Hague, counsel for the applicants, said that the affected workers must be allowed to return to work.
He said he doesn't see why they won't be allowed to return on the grounds that they are currently still in a suspension period and because the basis of their dismissal was the mandate which has now been overruled.
He said they've actually not been fired yet, and are currently in a "suspension" period.
"In my view, they should immediately be able to return to work."
New Zealand Defence Force workers were given notice that they would be dismissed on March 1 and police workers would be dismissed on March 7, he said.
"They asked the court to rule that the order was unlawful which the court has now done and what that means is that the notice of dismissal that has been given to Police and defence force workers is now no longer in effect, so the police and the defence force workers should be able to return to work."
"I think they are committed to their jobs and these are people who have worked decades in the service of their community, they risk their lives domestically and when deployed on operation overseas. Many have received commendation and rewards for their work and their commitments to serving New Zealand."
"The affected workers feel let down and betrayed by this Government who attempted to dismiss them from their jobs based on an unlawful order or an order that has now been held to be unlawful."
He said there would be no further civil proceedings.
Government responds to judgment
In two separate but identical statements on Friday, spokespeople for both Police and NZDF said that any move to terminate staff contracts as a result of the vaccination order will be suspended while the decision is considered by government.
"As the judicial decision has only just been released, we will be taking time to consider the decision. We will be communicating with staff about next steps," the two spokespeople said.
"In the meantime terminations of employment will not proceed at this time."
The vaccination order deemed unlawful by the court required all frontline Police staff to be fully vaccinated by March 1, or face the possibility of termination.
Workplace Relations and Safety Minister Michael Wood also released a statement on the decision, saying the government will take time to consider the decision and seek advice on next steps.
"The judgement is clear that it is not questioning the efficacy of vaccines nor the role of mandates per se, but whether they were justified specifically for Police and Defence business continuity," the Minister said.
"The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations."
"No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised."
In a statement, Police Association president Chris Cahill said it had "never taken the position of making a medical or moral call on vaccinations, but did support legally backed mandates.
"The court has now clarified the legal status of the Police mandate and deemed it to be unlawful.
"The association therefore calls for all officers affected by this decision to be reinstated and returned to work as soon as practicable.
"The association also believes the ruling has implications for the policy relating to vaccinations for non-sworn Police employees. It makes sense for the parallel policy applying to non-sworn staff should now be dropped and those staff affected be permitted to return to their duties.
"While understanding the environment that led to mandates for Police, circumstances, including the high vaccinations rates of all Police staff, the current response framework for Omicron, and now the court ruling, mean it is appropriate all affected staff go back to work where they will be welcomed given the unprecedented demands on Police resources."”
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