The High Court’s decision in NZDSOS Inc v Minister for Covid-19 Response has now been released here. The High Court upheld the legality of the vaccine mandates in the health and disability and education sectors. 

The Court held that the mandates were lawful as a demonstrably justified limit on the right to refuse a medical treatment when they were imposed, and that it was unable to conclude they were unjustified prior to the Government announcements that they be discontinued and narrowed in March 2022, notwithstanding that the increased transmissibility of the Omicron variant reduced the justification for the mandates.

The Court acknowledged that the Government intends to continue the mandate in the health and disability sector, but with a potentially narrower scope. Although satisfied that the Order as implemented remained justified at the time of the trial, it noted that if the Order is not reduced in scope it may become unjustified.

The Court also dismissed a challenge that had been raised in relation to the medical exemption criteria, stating that it was not persuaded that the criteria themselves were unduly narrow, or that they have been applied in an unlawful way. However, it commented that a more flexible approach to exemptions under employment arrangements may be more appropriate for any narrower health and disability sector vaccination requirements.

We note that this decision has resulted in a different outcome to the Court’s decision in Yardley v Minister for Workplace Relations and Safety in February 2022 (covering Police and Defence Force workers - see our FYI here). However, the Court noted that the vaccine mandates in Yardley were implemented for a different purpose, being to ensure the continuity of the workforces, and were found to be unjustified on that basis. In contrast, the health and disability and education mandates were implemented for different purposes, including to inhibit the spread of Covid-19 and to minimise the risk of community transmission.