Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- Criminal Court
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Consumer protection
- Scope of powers of public authorities (legislative, executive etc.)
- People with disabilities
- People with chronic diseases
- Maori people
Outcome of the decision
This judgment has dealt with the judicial review of the Vaccinations Order 2021. The applicant has lost her job as a result of the Order reserving certain jobs for vaccinated personnel. She has challenged the legality of the Order on two grounds: ultra vires its authorizing Act and irrationality. In verifying whether the limitations to fundamental rights set out by the Order are justifiable, the NZHC has concluded that the importance of the purpose, the efficacy of the vaccine, the balancing between its benefits and the possible discrimination towards unvaccinated workers are indicators of the lawfulness of the limitations. The Court has also affirmed that it is not within its competence to assess scientific debates and question the executive power’s choices in response to these issues: the judicial review can only consider whether the decision is consistent with and reasonable based on the available information. The existence of reasonable alternatives does not in itself authorize the Court to choose one of the alternatives over the others. Because the available information indicates that the vaccine is an efficient solution, the Order has not been deemed ultra vires. As the arguments regarding its alleged irrationality have also been rejected, the Court has rejected the application.
Facts of the case
The Vaccinations Order was signed on April 28, 2021, and forbade unvaccinated people from performing specific jobs. Because of the Order, the applicant has lost her job at the New Zealand Customs Service and the Employment Relations Authority has rejected her challenge. The applicant has asked the High Court to declare the Order unlawful, in that is ultra vires s9 of the COVID-19 Public Health Response Act 2020, and irrational. The applicant has presented numerous arguments. She has maintained that the Order was not a justified limitation of the rights under the New Zealand Bill of Rights Act 1990, that a vaccine under provisional registration may be considered medical experimentation, that the signing of the Order was not the result of a democratic process, that the 48h-notice prior to its entry into force violated natural justice principles with regard to the affected employees. Other arguments include the allegation that the Order lacked an appropriate socio-economic evaluation, contained a Henry VIII clause, and was signed unlawfully by an Associate Minister. Further, the applicant has lamented the lack of consultations with the Māori community, the incompatibility with s 211 of the Health and Safety at Work Act 2015 and article 23.1 of the Universal Declaration of Human Rights (UDHR) as well as with the consumer rights under the Code of Health and Disability Services Consumers’ Rights 1996.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
Regarding the Order being signed by a delegate of the Minister, the Court has replied that this is lawful under s7 of the Constitutional Act. It has argued that the Order is appropriate to achieve the purpose of the Act under s9, since it aims at counteracting the spread of Covid-19. It has then rejected the argument that the use of a vaccine under provisional registration amounts to medical experimentation, as well as the allegation that s11 of the Act could constitute a Henry VIII clause, as it does not authorize the overriding of any primary legislation. The Court has also rejected the interpretation that the Order’s entry into force 48h after its publication threatens principles of natural justice, as employees can challenge their termination after that limit. It has been noted that the evidence proves that socio-economic factors were considered in the Order, while no risk of mass termination has been found. The Court has remarked that it cannot question the merit of policy-makers’ decisions. Based on s9(1), the limits posed by the Order to rights and freedoms in the NZBORA must be demonstrably justifiable. There are two relevant provisions: 11 NZBORA which grants the right to refuse medical treatment, and S19 which ensures the right to freedom from discrimination. The Court has applied the Hansen Test to verify the justifiability of the limitations in the Order. It has affirmed that the objective of controlling the spread of Covid-19 is sufficiently important to warrant a limitation on rights. The rational connection to the objective has been satisfied by the proven efficacy of the vaccine. The nature of the limitations on the right must be verified in light of reasonable alternatives: here, the Court has noted that, regarding controversial scientific issues, leverage must be granted to the executive power, and that the information available to the Ministry shows that the vaccines are the most desirable solution. The benefits of the vaccine for vaccinated persons, the people around them, and the community have been deemed by the Court greater than any potential discrimination towards the unvaccinated. Regarding the alleged irrationality, the Court has affirmed that there was no obligation for the Ministry to consult with the Maori community, that the Order is consistent with the Health and Safety at Work Act, and does not affect the employment jurisdiction of the Authority nor the Employment Court. Given the possibility to challenge the termination of employment, the right to work has not been violated. It has been established that the Order does not violate the Code of Health and Disability Services Consumers Rights, as healthcare providers still cannot force anyone to get vaccinated, and the right to be informed has remained intact. The Court has therefore concluded that the Order is not ultra vires nor irrational and the application has been rejected.
Conclusions of the deciding body
The analysis of the numerous arguments presented by the applicant has led the Court to rule that the Order is neither ultra vires nor irrational. For this reason, the application has been rejected.
Fundamental Right(s) involved
- Freedom of information
- Right to bodily integrity
- Right to good administration
- Right to work
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to refuse to undergo medical treatment, s11, New Zealand Bill of Rights Act 1990
- Freedom from discrimination, s19, New Zealand Bill of Rights Act 1990
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of expression / right to information
- Health v. right to bodily integrity; right to work; right to be free from discrimination
General principle applied
- Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)
In balancing the benefits of the vaccine with the potential discrimination towards unvaccinated workers, the Court has employed the principles of proportionality and reasonableness. The importance of the purpose of the measure, the proven efficacy of the vaccine, and the socio-economic effects have led the NZHC to conclude that the benefits outweigh the risk of discrimination. With regard to the minimal impairment requirement, the Court has also underlined the limits of the judiciary power: while it is not within the competence of the judiciary to question the merits of scientific debates and policy-making evaluations, the judiciary can only assess whether the Minister has acted logically based on the information available.
The Court has cited the Vavricka and Ors v The Czech Republic decision of the ECHR (Vavricka and Ors v The Czech Republic ECHR 47621/13, 8 April 2021), reporting the Court’s reasoning on proportionality regarding vaccination measures. The ECHR has stated that it is not disproportionate for a State to require vaccination in order to protect the health of the population (in this case, children who are unable to receive the vaccine, regardless of the existence of different, less intrusive measures).