Summary
The High Court dismissed NZDSOS and NZTSOS’s challenge for judicial review, finding the vaccine mandates were a justified limitation on the rights of health and education professionals.
Background
Following the manufacture of COVID-19 vaccines, the government amended the COVID-19 Public Health Response Act 2020 (“the Act”) to implement orders introducing vaccine mandates. These mandates applied to areas including health, disability and education sector workers following the COVID-19 Public Health Response (Vaccination) Amendment Order (No 3) 2021 (2021/325) (“the Order”).
The applicants, NZDSOS and NZTSOS are health professionals and teachers who oppose vaccination. The applicants challenged the validity of the Order under judicial review.
A judgment in November 2021 dismissed the claim that the mandate enacted by the Order fell outside of the empowering provisions of the Act. The remaining claim addressed in this judgment was the Order was invalid because it is not a reasonable and demonstrably justified limit of rights under the New Zealand Bill of Rights Act 1990.
The Case
The applicants challenged the Order on three grounds:
· The right to refuse medical treatment is an absolute right not subject to any limitations;
· The Crown could no longer show the Order was demonstrably justified in a free and democratic society; and
· The exemption criteria were unreasonable, irrational or being applied over rigidly.
Is the right to refuse medical treatment an absolute right?
The Court found the right to refuse to undergo medical treatment is not an absolute right, and is instead subject to justified limitations. The Court noted the Supreme Court had previously distinguished the right to refuse treatment from absolute rights against torture and deprivation of life. This aligned with a finding in the European Court of Human Rights, which upheld a requirement for those attending early education centres to be vaccinated against other illnesses.
Is the limit of the right by the Order demonstrably justified?
Justice Cooke found justification for the initial establishment of vaccine mandates. His Honour noted that heavily challenged claims regarding vaccine safety and efficacy created difficulty in forming his conclusion.
The Court found the vaccine inhibited the spread of the Delta variant. However, Omicron reduced the vaccine’s effectiveness, resulting in the revocation of the education sector mandate. The Court also dismissed the safety concern claim, due to the high-level scrutiny of the vaccine. Furthermore, Justice Cooke rejected that adverse effects outweighed the benefit of community protection from COVID-19.
Justification for health sector mandate
The Court found the limitation of right by the order was demonstrably justified for the health sector mandate due to:
· The heightened risk of healthcare workers contracting and transmitting COVID-19;
· The vulnerability of healthcare patients and their need for protection in close proximity with health professionals;
· A patient’s expectation to avoid COVID-19 when seeking treatment; and
· The importance of public confidence in the health system, which is upheld by a zero-tolerance approach.
Justice Cooke acknowledged that these justifications are less convincing for healthcare workers who conduct services autonomously or remotely.
Justification for education sector mandate
Justice Cooke noted students’ physical school attendance potentially created a transmission risk. His Honour rejected the virus presented a strong risk to children, but recognised the prevalence of long COVID and risks to vulnerable children. His Honour concluded the main public benefit of an education sector mandate was the protection of the community that children will interact with, and held a mandate was justified.
Is the exemption criteria unreasonable?
Justice Cooke rejected the criteria was unduly narrow or it had been applied in an overly rigid or unlawful approach. The appellants submitted affidavits of people harmed by thevaccine. The Court noted these instances, but refused to make decisions on individual cases as this fell out of the scope of a judicial review.
Result
After the hearing the government announced that vaccine mandates would no longer exist for education workers and would potentially be narrowed for health workers. The Court held the education sector mandate was justified and continued to be justified until it was reviewed and revoked. Additionally, the Court held the health and disability sector mandate was justified, although the scope of the Order could become unjustified if it was not narrowed. This analysis would likely require an assessment of whether current employment and policy measures were sufficient to address vaccination requirements.
For further information on this case or similar issues, please contact Director Brigitte Morten.
