NZ High Court ruling could put government covid-19 vaccination rollout on the back foot

A NEW Zealand High Court ruling on the NO JAB, NO JOB policy is certain to deal a heavy blow on the DCGA Government’s heavy-handed policy that everyone vaccinate against the COVID-19 corona virus.

In a judicial review in New Zealand last week, High Court Judge, Justice Cooke ruled the Government Mandates in ordering people to vaccinate or lose their jobs were “unlawful”.

The landmark ruling throws opens the floodgates for employees who were terminated or suspended because they refused to be vaccinated to be reinstated. The ruling has implications for the private sector as well.

The Order was made under s 11AA of the COVID-19 Public Health Response Act 2020 (the Act), which allows such an order to be made if it is in the public interest, and it is appropriate to achieve the purpose of the Act.

Three Police and Defence Force workers who do not wish to be vaccinated, and who face termination if they are not vaccinated by 1 March 2022 brought the judicial review. Thirty-seven additional workers in the same position have also sworn affidavits in support of the claim. The proceedings were filed on 6 January 2022.

The challenge to the New Zealand Government Mandates was mounted by Frontline Law on behalf of the New Zealand Police and the Military personnel.

• “… the Order made in the present case is nevertheless unlawful and is set aside. The applicants will be entitled to costs. Memoranda may be filed (no more than five pages plus a schedule) by the applicants and then the respondents if costs cannot be agreed.”

By the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order) New Zealand’s Workplace Relations and Safety Minister determined that work carried out by certain Police and Defence Force personnel could only be undertaken by workers who had been vaccinated.

Justice Cooke ruled the Mandates “unlawful.”

The challenge to the Order to vaccinate was made on four main grounds, namely:

• “(a) that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and
• “(b) that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and
• “(c) that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and

• “(d) that the Order is unlawful as it involves an unjustified limit on rights protected by the New Zealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion),” he said.

• Justice Cooke said the claims were supported by a number of affidavits, including affidavits from each of the three applicants, 37 affidavits from other affected workers employed by the Police and NZDF, and expert evidence from Dr Nikolai Petrovsky.
• Dr Petrovsky is the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation.

• “In his latter role he has developed a vaccine for COVID-19 which is presently in use in Iran. Finally, the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa New Zealand.”

The second ground of review is that the Order unlawfully suspends the operation of other legislation.

“Section 13(1) does not apply to, or in any way limit the New Zealand Bill of Rights, and both sub-sections (2) and (3) demonstrate legislative care to ensure that fundamental rights and principles are not eroded. For these reasons I dismiss this ground of review,” Justice Cook said.

“The next ground of review is that the Order fails to meet the Crown’s Treaty obligations as Māori will be dismissed from employment or service at a disproportionately higher rate rather than other ethnicities.

“The final, and in my view, key ground of challenge is that the Order is unlawful as it implements unjustified limits on fundamental rights protected by the New Zealand Bill of Rights Act.”

• “It is important to record this ground of challenge is advanced both in the statement of claim, and in submissions, on the basis that the Order is unlawful for being an unjustified limit on the relevant rights. It is not limited to a challenge to the decision of the Minister on conventional judicial review grounds.
• “Rather it is based on the argument that the Order itself imposes an unlawful measure. It is accordingly the type of claim that I addressed in Four Aviation Security Service Employees v Minister of COVID-19 Response. The Court itself must assess whether the measures implemented by the Order are an unjustified limit on any rights that have been limited.

• The analysis I set out of a claim of that nature in that judgment was not challenged in the submissions of the parties, and can be taken as the basis upon which I proceed.
• “The Crown accepts that the Order limits the right in s 11 of the New Zealand Bill of Rights Act to refuse to undergo medical treatment. The parties’ written submissions, and indeed their evidence, then devoted significant attention to the extent of the other rights in the Bill of Rights which were limited by the Order. Given that the Crown accepts, as it has in the previous challenges to vaccine mandates, that the right in s 11 is limited by the Order, I doubt whether the potential applicability of other fundamental rights will likely make much difference to the ultimate outcome of this challenge.
• “I accept, however, that there may be some more subtle implications arising if the other rights are found to be limited. But there is no dispute that the Order limits the right of affected workers to refuse to undergo a medical treatment.
• “I accept that such principles may have indirect relevance. Whilst the right to refuse medical treatment is substantively limited by the Order because of the coercion involved in affected workers being faced with the decision to either get vaccinated or have their employment terminated, it does not literally compel the medical treatment.

• “But 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. So in that sense the right to refuse to undergo medical treatment is not the only right (or significant interest) that is being limited.
• “I note that the advice summarized in the attached exhibits in relation to Omicron suggested effectiveness against infection at much lower levels than for Delta and that it declined “rapidly after the first month”. It also contained information about symptomatic disease suggesting that early evidence was that a booster restored rapidly waning protection, but that protection also dropped within a period after the booster, Justice Cooke said.
• “I take it from this evidence that vaccination may still have some effects in limiting infection and transmission, but at a significantly lower level than was the case with the earlier variants.

• “It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wains after the second dose, and seems to wain in a similar way after the booster. I accept on the basis of Dr Town’s evidence that vaccination might contribute to preventing contracting and spreading the Delta and Omicron variants to some extent, although not nearly as much as it did against the original versions of COVID-19.
• “I have no other evidence that this remaining protective effect significantly contributes to maintaining the continuity of Police and NZDF services in light of a number of personnel within those services who might remain in the services unvaccinated without the Order.”

• “The evidence of particular witnesses assume that the vaccine has a significant effect. For example, Deputy Commissioner Kura’s evidence was that the advice to Police was that unvaccinated and partially vaccinated Police staff were more likely to contract the virus. But the health advice so provided for the opinion is not in evidence.

• “Similarly, the Minister’s paper to Cabinet stated that unvaccinated individuals were more likely to contract and transmit COVID-19 and become more seriously ill and that Police were more likely to have higher levels of sick leave given their operations. Again, the advice relied upon is not available to the Court, and I note the other references in the Cabinet documents to health advice that further vaccine mandates to stop the spread of COVID-19 were not needed,” Justice Cooke said.

By ALFRED SASAKO
Newsroom, Honiara