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New Zealand, High Court of New Zealand, 12 November 2021, NZHC 3064‎

Case overview

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Country
New Zealand
Case ID
NZHC 3064‎
Decision date
12 November 2021
Deciding body (English)
High Court of New Zealand
Type of body
Court
Type of Court (material scope)
The High Court is New Zealand’s only court of general jurisdiction
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Interim procedure
Area
Vaccination
Further areas addressed
Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_EN available on www.courtsofnz.govt.nz

Case analisys

General Summary

This is a challenge initially by four midwives against a mandatory ‎COVID-19 vaccination Order which was heard together with a ‎similar challenge by a group of teachers and a group of doctors. ‎There are two claims:‎ ‎
1.‎ the Order is not legally valid as it is contrary to the right to ‎refuse to undergo medical treatment as contained in s 11 of ‎the New Zealand Bill of Rights Act 1990; and ‎
2.‎ the Order is invalid because it is not reasonable and cannot be ‎justified in a free and democratic society under s 5 of the ‎New Zealand Bill of Rights Act 1990.‎
The first cause of action was dismissed.‎

Facts of the case

The applicants challenge the validity of a mandatory COVID-19 ‎vaccination Order directed at those who work in the health and ‎education sectors. The Order was made in October 2021. The first ‎challenge was made by four midwives and then an identical ‎challenge was made by a group of doctors, pharmacists and dentists ‎and a group of teachers. The first mandatory vaccination deadline ‎was 15 November 2021 and the second deadline was 1 January 2022. ‎The Court heard all three matters together on 8 November 2021. ‎The first claim is that the mandatory vaccination Order is unlawful ‎as is contrary to the right to refuse to consent to medical treatment as ‎contained in s 11 of the New Zealand Bill of Rights Act 1990. The ‎Court acknowledged that the mandatory vaccination Order engaged s ‎‎11 of the New Zealand Bill of Rights Act 1990 but found that such ‎an order was justified in conjunction with the common law principle ‎of legality which requires any legislative limitations to be clearly ‎expressed. ‎ The first cause of action was dismissed. The second cause of action ‎is yet to be heard.

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
  • Declaration that the mandatory vaccination Order was unlawful and ‎contrary to s 11 of the New Zealand Bill of Rights Act 1990.‎
  • Declaration that the Order was invalid and can not be justified under ‎s 5 of the New Zealand Bill of Rights Act 1990.‎
Individual / collective enforcement
Action brought by a specific group of claimants in their own interest for the purpose of injunctive measures or other remedies, including the annulment of administrative decisions, for the protection of a more general collective interest.
Nature of the parties
  • Claimant(s)
    Private collective
  • Defendant(s)
    Public
Type of procedure
Urgency
Reasoning of the deciding body

The Court engaged in a lengthy consideration of how s 6 of the New ‎Zealand Bill of Rights Act 1990 works together with the empowering ‎provision of s 11 of the Civil Defence Emergency Management Act ‎‎2006. Section 6 of the New Zealand Bill of Rights Act 1990 states ‎that interpretation of legislation is to be consistent with the Bill of ‎Rights Act and s 11 of the Defence Emergency Management Act ‎gives the Minister power to make orders which require relevant ‎persons to “report for medical examination or testing in any ‎specified way or in any specified circumstances”. Mandatory ‎vaccination orders were made under this Act. The applicant’s ‎argument was that the Act did not explicitly authorise making an ‎order requiring a person to cooperate with a medical procedure - in ‎this case, a vaccination - and as such was inconsistent with s 6 of the ‎New Zealand Bill of Rights Act 1990 and unlawful. The Court ‎agreed that s 6 required legislation to be interpreted consistently with ‎the New Zealand Bill of Rights Act 1990 and s 11 being the right to ‎refuse to undergo medical treatment was engaged here. The Court ‎explained that no order can be made that limits this right unless it is ‎reasonable, prescribed by law, and can be justified in a free and ‎democratic society under s 5 of the New Zealand Bill of Rights Act ‎‎1990. ‎

The text of the New Zealand Bill of Rights Act 1990, under s ‎‎9(1)(ba), explicitly indicates that Parliament envisaged that orders ‎limiting rights under the Act can be made as long as such limits are ‎justified under s 5 of the Act. The Court referred to previous ‎Supreme Court cases particularly R v Hansen and New Health New ‎Zealand v South Taranaki District Council and their interpretation of ‎s 6 of the New Zealand Bill of Rights Act 1990.‎

The Court stated that the meaning of legislation needs to be ‎interpreted in light of its purpose and context. Upholding a right or ‎freedom by applying s 6 to interpret the meaning of legislation ‎would involve applying only half of the Bill of Rights Act to ‎interpretation if the intention of Parliament to put a reasonable and ‎justifiable limit on the right is not taken into account. Holistic ‎interpretation of the legislation required consideration of s 9(1)(ba) ‎of the Act which allowed limitations on rights and freedoms.‎

Conclusions of the deciding body

The Court dismissed the first cause of action and concluded that the ‎Order was not contrary to s 6 or s 11 of the New Zealand Bill of ‎Rights Act. ‎

Balancing Fundamental Rights and Fundamental Freedoms

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)
  • Justified limitations‎, s 5, New Zealand Bill of Rights Act 1990
  • Interpretation consistent with Bill of Rights to be preferred‎, s 6, New Zealand Bill of Rights Act 1990
  • Right to refuse to undergo medical treatment, s 11, New Zealand Bill of Rights Act 1990
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. right to refuse to undergo medical treatment
General principle applied
  • Proportionality
  • Reasonableness
  • Legality
Balancing techniques and principles (proportionality, reasonableness, others)

The Court looked at the full and balanced effect of the Bill of Rights. ‎The approach taken by the Court was to balance statutory ‎interpretation and the intention of the Parliament in enacting the ‎legislation with the relevant freedoms protected in the Bill of Rights ‎Act. The Court took the view that holistic interpretation of the ‎legislation required consideration of s 9(1)(ba) of the Act which ‎allowed limitations on rights and freedoms.‎

Author of the case note
Solicitor Kirsty Mackie, Research Assistant, Australian Centre for Health Law Research‎, Queensland University of Technology
Case identified by
Lecturer Muhammad Zaheer Abbas, Chief Investigator, Australian Centre for Health Law Research‎, Queensland University of Technology
Published by Chiara Naddeo on 29 June 2022

More cases from New Zealand

  • New Zealand, New Zealand High Court, 8 November 2021, ‎[2021] NZHC 3012
    Area: Vaccination
    Fundamentals rights involved: Other (Right to refuse to undergo any medical treatment)
    Outcome: Claim inadmissible or rejected
  • New Zealand, High Court of New Zealand, 8 April 2022, NZDSOS Inc v Min. for Covid-19 Response, CIV-2021-485-595
    Area: Vaccination
    Fundamentals rights involved: Right to bodily integrity; Right to health (inc. right to vaccination, right to access to reproductive health)
    Outcome: Claim inadmissible or rejected
  • New Zealand, High Court of New Zealand , 27 April 2022, Grounded Kiwis Group In. v Min. of Health, CIV-2021-485-556
    Area: Freedom of movement of people
    Fundamentals rights involved: Freedom of movement of people, goods and capital
    Outcome: Claim partially upheld
  • New Zealand, High Court of New Zealand, 22 November 2021, NZHC 3154‎
    Area: Immigration and asylum
    Fundamentals rights involved: Other (Right to natural justice)
    Outcome: Claim upheld
  • New Zealand, High Court of New Zealand, 28 October 2021, NZHC 2897‎
    Area: Scope of powers of public authorities (legislative, executive etc.)
    Fundamentals rights involved: Freedom of movement of people, goods and capital; Other (Freedom to re-enter the country of residence without unreasonable ‎limitation)
    Outcome: Claim upheld
  • New Zealand, High Court of New Zealand, 28 February 2022, NZHC 308‎
    Area: Industrial relations / Labor law
    Fundamentals rights involved: Freedom of association, Public gathering, Assembly
    Outcome: Claim upheld
  • Load 6 more
List all available cases from New Zealand

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