New Zealand, High Court of New Zealand, 8 April 2022, NZDSOS Inc v Min. for Covid-19 Response, CIV-2021-485-595
Case overview
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Deciding body (English)
Deciding body (Original)
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Type of Court (material scope)
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Type of Court (territorial scope)
Instance
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Outcome of the decision
Link to the full text of the decision
General Summary
The main right argued in this matter was the right to be free to refuse medical treatment, in this case a COVID-19 vaccination. Furthermore, the Applicants claimed that the vaccination order was invalid as it was not a reasonable and demonstrable limit of rights under the New Zealand Bill of Rights Act 1990.
The remedy sought was a declaration that the order was invalid.
The Applicants were unsuccessful.
Facts of the case
This Application was concerning COVID-19 vaccine mandates for workers in the health and disability sector and education system. There were two claims contained in the Application. The first claim was that the requirement to be vaccinated pursuant to the COVID-19 Public Health Response (Vaccinations) Order 2021 was not within the empowering provisions of the Act. This claim was dismissed by judgment delivered on 12 November 2021.
This judgment represents the second claim being that the vaccination Order was invalid as it was not a reasonable and demonstrable limit of rights under the New Zealand Bill of Rights Act 1990. It was also argued that the criteria for obtaining an exemption to the vaccination requirements were unreasonable or irrational, or applied in such an overly rigid or arbitrary way that the Order should be set aside.
The Court determined that the exemption criteria were reasonable and not applied in an overly rigid manner.
At the time of trial, the mandates were still in force. However, between trial and the delivery of judgment, the New Zealand government revoked the mandate for those working in the education sector. The Court determined that the vaccine mandate for teachers and those in the education system were justified at the time of trial. The school environment in itself was a potential transmission risk in the compulsory nature of school requiring children to congregate in large groups.
In relation to the health and disability worker mandate, the Court concluded that the Orders remained a demonstrably justified limit on the rights in the Bill of Rights at the time of trial and that the Order was not unlawful. It pointed to the vulnerability of patients and the limitation on a patient’s ability to make informed choices and the need to keep public confidence in the health system.
The Court went on to state that the right to be free to refuse medical treatment is a significant right but that it was not an absolute right. The right is subject to reasonable limits as prescribed by law “that are demonstrably justified in a free and democratic society under s 5 of the Bill of Rights”. The Court concluded that such a view is consistent with international authority and consistent with the approach taken in New Zealand in separating the right to refuse medical treatment from other more absolute rights in the New Zealand Bill of Rights.
Type of measure challenged
- National government measure
- Federal government measure
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court commenced by considering if the right to refuse to undergo medical treatment contained in section 11 of the New Zealand Bill of Rights Act 1990 was an absolute right. The Court concluded with reference to international case law including the European Court of Human Rights, that it was not an absolute right and could be subject to demonstrably justifiable limits.
The Court found it significant that New Zealand had “charted its own course” in separating the right to refuse to undergo medical treatment a separate right. It was noted that in other human rights instruments that this right was “subsumed” within other more generally expressed rights such as the right not to be deprived of life or the right not to be subject to torture or cruel treatment. The Court considered that this separation from other rights, particularly the right to be free from medical or scientific experimentation was significant. The Court referred to the White Paper which was published in 1984 when the Bill of Rights was being considered which stated that section 11 had no equivalent in any other international covenant nor in any other international human rights instrument. It went on to state that the rationale behind separating this particular right would permit “persons to be treated against their will only where this is necessary to protect the health and safety of other persons, and not simply where their refusal of treatment will detrimentally affect their own health…”.
The Court accepted the Crown’s argument that the affected workers are not being compelled to receive a medical treatment. They are not being physically restrained in order to be vaccinated. Whilst they are under considerable pressure to accept the vaccination or risk losing their employment, they retain the right to decline. The right contained in section 11 is being limited however that limit is justified in a manner that the authors of the White Paper anticipated.
In order to address whether the limits that the Order imposes are justified, the Court had regard at para [67] to the steps in R v Hansen [2007] 3 NZLR 1 at [108] – [111] which asked:
a) does the limiting measure serve a purpose sufficiently important to justify the limitation of the right or freedom?
b) Do the means chosen to achieve that objective pass a proportionality test, namely:
(i) Is the limiting measure rationally connected with its purpose?
(ii) Does the limiting measure impair the right or freedom no more than is reasonably necessary or sufficient achievement of that purpose?
(iii) Is the limit in due proportion to the importance of the objective?
The Court concluded that the vaccine mandates imposed a justifiable limit on the right contained in section 11 and that they met the standards as set out in R v Hansen. The Court did acknowledge that the justification argument in the health and disability sector was more powerful than in the education sector.
Conclusions of the deciding body
Claim was dismissed.
Fundamental Right(s) involved
- Right to bodily integrity
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Proportionality
- Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)
While addressing whether the limits under section 5 are justified limitations, the Court relied on R v Oakes [1986] 1 SCR 103. One of the questions addressed in R v Oakes is whether the limit is in due proportion to the importance of the objective? The Court, however, noted that this test should not be applied rigidly. While considering whether a measure is demonstrably justified in a free and democratic society, the Court may warrant a line of analysis that is not particularly emphasized by the proportionality to the objective test. Careful scrutiny of the justification for the measure in question is required. In the present case, the Crown advanced two key justifications for the mandate in the health and disability sector. First, the vaccination assists in limiting the risk of transmission; second, the full vaccination limits the risk of absenteeism in the workforce. The Court gave more importance to the first justification. The purpose of the mandate was to inhibit the spread of COVID-19, to ensure the availability of critical health services, and to sustain the public confidence in those services. A zero tolerance approach could be justified. The Court accepted that the rights in the Bill of Rights are subject to reasonable limits, prescribed by law. The Court, however, elaborated that the Crown retained the burden of showing that any limits on a fundamental right were demonstrably justified in a free and democratic society under section 5 of the Bill of Rights. The Court referred to Spencer v Attorney-General of Canada [2021] FC 361 to describe the precautionary principle. According to Pentney J, “The precautionary principle is a foundational approach to decision-making under uncertainty, that points to the importance of acting on the best available information to protect the health of Canadians”. The Court maintained that the precautionary principle applied to the present case as there was uncertainty, but application of this principle did not remove or reduce the burden that was placed on the Crown to demonstrate that any limits on a fundamental right were justified. The Court accepted that vaccination has apparent benefits in reducing transmission and the Crown rightly saw vaccination as providing significant protection against community transmission. The Court accepted that the measures in the Orders remained a demonstrably justified limit on the rights in the Bill of Rights.
