Justice Cooke in the High Court today ruled that vaccine mandates issued for New Zealand Police and Defence Force workers were unlawful, being an unjustified limit on the right to refuse medical treatment and the right to manifest religious beliefs. The mandates for these workers were set aside and are unenforceable, so does this signal the end of New Zealand’s system of mandatory vaccinations for high risk workforces?

In short, no. Or at least, not yet.

Central to Cooke J’s decision in Yardley v Minister for Workplace Relations and Safety ^[1] was the purpose of the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the mandate order). The stated purpose of the mandate order was not to prevent the spread of Covid-19. Instead, the stated purpose was to ensure the continuity of public services, and to promote public confidence in those services.

Here is where the Crown ran into difficulty.

Justice Cooke dismissed other grounds of the claim, stating that the mandate order was consistent with the purposes of the COVID-19 Response Act, did not suspend other legislation, and was consistent with Treaty obligations. However, he upheld the claim that the mandate order was an unjustified limit on rights in the New Zealand Bill of Rights Act. Those rights are the section 11 right to refuse medical treatment and section 15 right to manifest religion. The consequences of the limits on those rights was the termination and loss of employment of those who declined vaccination.

Cooke J ruled that the Crown had not sufficiently demonstrated that in the current context of Covid-19, requiring mandatory vaccinations would meet the purpose of the mandate order being ensuring continuity of services and promote public confidence. Cooke J said:

• There was no evidence that the mandate would have increased vaccination rates any differently to those achieved under internal Police or Defence Force policy.
• There was no evidence that vaccination significantly reduces the risk of transmission of Covid-19 in the Omicron variant, and therefore the relatively small number of unvaccinated individuals would make no difference to the risk of widespread transmission throughout the services.
• While vaccination does provide protection from serious illness, there was no evidence that the remaining protective effect would significantly contribute to maintaining the continuity of the services.
• In addition, health advice tendered to Cabinet indicated that further mandates were not required to restrict the spread of Covid-19.

The Court was therefore not satisfied that continuity of the services was materially advanced by the mandate Order. When weighed against the significant impact on individuals, which included permanent loss of job and income, the mandate order had an unjustifiably disproportionate effect.

In addition, there were alternative lawful measures available to the Government which would have minimised the impact on individuals. This included using existing internal policies to deal with unvaccinated staff on an individual, risk-based basis.The Court noted that in using the mandate, no consideration was given to redeployment or suspension of employees, and termination was the only option utilised for a breach. Actions which infringe upon protected rights can only do so in a way which is the minimum required to implement the desired public policy outcome. Because options other than termination are available, this was therefore said to be a breach of the requirements under the New Zealand Bill of Rights Act. Notably for businesses, Cooke J’s decision indicates that the individual, risk-based approach to dealing with unvaccinated staff is preferred to widespread mandates.

So does this mean that all vaccine mandates are now null and void?

No. This case deals only with those mandates issued for the purpose of maintaining continuity of public services. Other vaccine mandates are covered by different orders. However, the Crown is now on notice that it will need to look at all of its vaccine mandates. It must ensure that, in the context of Omicron, and what we know about the efficacy of vaccines to prevent transmission, there is still justification for their continued enforcement.

There may be some flow on implications for employers and private businesses who operate their own mandatory vaccination policies. This case was urgently considered in a judicial review context, rather than through an employment law lens, please click here to read our employment team's update on the possibly wider ramifications.

 

[1]      Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 [25 February 2022]

Special thanks to James Meager for his assistance in writing this article.