New Zealand, High Court of New Zealand, 12 November 2021, NZHC 3064
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
Link to the full text of the decision
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
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
Nature of the parties
Type of procedure
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.
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
General principle applied
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.