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Friday, 24 February 2023


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'NOT DEMONSTRABLY JUSTIFIED': HIGH COURT UPHOLDS CHALLENGE TO POLICE AND NZDF
VACCINATION MANDATES, TERMINATIONS SUSPENDED

By: Ethan Griffiths and Caitlan Johnston
Open Justice multimedia journalist, Wellington
25 Feb, 2022 01:00 AM8 mins to read
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The High Court has determined a government-ordered vaccination mandate for
Police and NZDF employees is unlawful. Photo / NZME

The High Court has determined a government-ordered vaccination mandate for
Police and NZDF employees is unlawful. Photo / NZME

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.

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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.

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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.

Workplace Relations and Safety Minister Michael Wood says the government will
take time to consider the judgment before making any further decisions. Photo /
Mark Mitchell

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."


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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.

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All frontline Police were required to be fully vaccinated by March 1. Police
have now confirmed no terminations will take place while they consider the High
Court decision. Photo / NZME

"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."

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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.

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"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."

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"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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