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New Zealand, New Zealand High Court, 8 November 2021, ‎[2021] NZHC 3012

Case overview

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Country
New Zealand
Case ID
‎[2021] NZHC 3012
Decision date
8 November 2021
Deciding body (English)
New Zealand High Court
Type of body
Court
Type of Court (material scope)
  • Administrative Court
  • Civil Court
  • Criminal Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
1st Instance
Area
Vaccination
Further areas addressed
Industrial relations / Labor law
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Deciison_EN available on www.austlii.edu.au

Case analisys

General Summary

This case has dealt with a judicial review of the COVID-19 ‎Vaccinations Order 2021 requested by the Applicants, Aviation ‎Security Service employees who lost their jobs because of their ‎refusal to receive the vaccine. They have argued that the Order is ‎ultra vires the COVID-19 Public Health Response Act 2020, ‎irrational, and that the Respondent has failed to consider issued of ‎mandatory relevance. The Court has argued that the Act’s language ‎is sufficiently broad to allow for orders mandating vaccination to do ‎specific activities such as those of a border worker. It has also noted ‎that while there is scientific uncertainty surrounding the ability of the ‎vaccine in avoiding transmission of the Delta variant, its proven ‎efficacy regarding other variants as well as the reduction of ‎symptoms lead to a precautionary approach. It is therefore sufficient ‎for the measure to contribute, if only partially, to the aim. The Court ‎has also stated that the limitation of the Applicants’ right to refuse ‎medical treatments is proportionate, as they still maintain the option ‎to refuse vaccination. Consequently, the Court has concluded that the ‎challenged Order is compliant with the Bill of Rights and lawful. The ‎challenge has been dismissed. ‎

Facts of the case

On April 30, 2021, the Respondent, as Minister for COVID-19 ‎Response, issued the COVID-19 Public Health Response ‎‎(Vaccination) Order 2021 requiring mandatory vaccines for certain ‎workers. The Order was later amended in July to expand the ‎categories subject to the requirement, ultimately including most ‎border workers such as Aviation Security Service employees. The ‎Applicants, who were part of the latter category, have lost their jobs ‎as a result of their refusal to receive the vaccine. They have ‎challenged the lawfulness of the Order on three grounds: it is ultra ‎vires the COVID-19 Public Health Response Act 2020, which gives ‎the Minister the power to issue such orders; the Minister has ignored ‎considerations of mandatory relevance; and the Order is irrational. ‎

Type of measure challenged
National government measure
Measures, actions, remedies claimed
Annulment of the order
Individual / collective enforcement
Action brought by a specific group of claimants in their own interest for the purpose of collective redress measures such as damages or restitutions and annulment of the administrative decision.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Urgency
Reasoning of the deciding body

The Court has argued that the Applicants’ rights to refuse to undergo ‎medical treatments have been limited by the challenged Order, as it ‎is not necessary for a right to be completely removed for a limitation ‎to be recognized. The Court has excluded a possible violation of their ‎right not to be subjected to medical or scientific experimentation ‎because of the vaccine being granted only provisional approval as the ‎vaccine has therapeutic, not experimental purposes. Full approval ‎was not given to save time in an emergency, but controls have been ‎rigorous. The Court has argued that the Act allows orders to require ‎people to refrain from certain activities or to carry them in a ‎particular way. These include those of an employee and the “way” ‎can include being vaccinated. Since the aim of the Act is to ‎minimize the risk of the spread COVID-19, the Order has satisfied its ‎requirements. The Court has then noted how subordinate legislation ‎cannot be promulgated if contrary to the Bill of Rights. Therefore, it ‎is unnecessary to consider other grounds such as irrationality. The ‎Court has rejected the Applicants’ argument of an exaggeration of ‎the pandemic, reminding its health, social and economic ‎consequences and concluding that the purpose of the Order is ‎significant. Whether the Order is “demonstrably justified” is for the ‎judiciary to decide, and the Court has affirmed that the question of ‎legality is not a review of merits. It has however admitted its limits ‎regarding contested scientific issues such as the efficacy of the ‎vaccine against the transmission of the Delta variant. However, ‎considering its efficacy on earlier variants as well as the reduction of ‎symptoms and the “strong public interest” to attempt anything to ‎reduce the COVID-19 risk, the Court has concluded that a ‎precautionary approach is appropriate. Therefore, it has affirmed that ‎mandating vaccination for border workers exposed to particular risk ‎is “likely to contribute” to this aim and therefore justified. The Court ‎has also affirmed that not providing exemptions for people such as ‎the Applicants is not unjustified, as it would be hard to define them ‎on religious or moral basis. Furthermore, as the measure does not ‎deprive the Applicants of their right to refuse the vaccine, but only ‎provides consequences to that choice, it is proportionate. The Court ‎has therefore affirmed that the measure is justifiable and not contrary ‎to the Bill of Rights. ‎

Conclusions of the deciding body

The Court has stated that the Order is not ultra vires its statutory ‎requirements. It has further concluded that the aim of the challenged ‎Order to reduce the spread of COVID-19 is of great importance. ‎Furthermore, the measure itself is proportionate to the aim, not ‎eliminating the interested workers’ rights to refuse vaccination but ‎limiting it by providing the possible consequence of the termination ‎of employment. Consequently, the Court has affirmed that the Order ‎is not unlawful and has dismissed the challenge. ‎

Balancing Fundamental Rights and Fundamental Freedoms

Fundamental Right(s) involved
Right to refuse to undergo any medical treatment
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Right to refuse to undergo any medical treatment, s. 11, New Zealand ‎Bill of Rights
  • Right not to be subjected to medical or scientific experimentation, s. ‎‎10, New Zealand Bill of Rights‎
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health. v. right to refuse to undergo any medical treatment
General principle applied
  • Rule of law
  • Proportionality
  • State of emergency or necessity
  • Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)

The Court has applied the precautionary principle when considering ‎the efficacy of the vaccine to prevent the spread of COVID-19 ‎particularly regarding the Delta variant. Based on the scarce ‎evidence available at the time of the judgment, the Court has argued ‎that the strong public interest to attempt everything to minimize the ‎spread of COVID-19 justified a precautionary approach. The Court ‎has also applied the proportionality principle by arguing that the ‎challenged Order limits the Applicants’ right to refuse medical ‎treatment but does not eliminate it. As such, the measure is ‎proportionate to the important purpose of reducing the spread of ‎COVID-19. The application of the rule of law principle of the ‎separation of powers has allowed the Court to argue that defining ‎whether the limitation of rights caused by the measure is lawful, is ‎something reserved to the judiciary, and does not interfere with the ‎policy choices of the executive. When addressing the provisional ‎consent given to the vaccine, as well as the choice of adopting a ‎precautionary approach to the resolution of the case, the Court has ‎considered the state of emergency caused by the pandemic. ‎

Judicial dialogue

The Court has referred to a recent Supreme Court of New South ‎Wales’s case, Henry v. Hazzard, to support its claim that the ‎judiciary is faced with limits regarding the ability to decide on ‎uncertain scientific matters. ‎

Additional notes

Impact on Legislation/Policy

The Court has noted how the Order was issued relying on a section of ‎the Act which does not mention vaccination. While affirming that ‎this does not affect the lawfulness of the Order, it has underlined how ‎its conclusions do not allow for a more extensive use of this power ‎and how it would be more appropriate for the Parliament to legislate ‎in the area as to avoid uncertainty. On November 25, 2021, the ‎Parliament has in fact adopted the COVID-19 Response ‎‎(Vaccinations) Legislation Act 2021, which provides a legislative ‎framework to the issue of vaccination and specifies a series of orders ‎that can be issued on the matter (Vaccination Act 2021). ‎

Additional resources
Link_EN to www.austlii.edu.au
Author of the case note
Giulia Alessandra Foti, Research Assistant, University of Trento
Published by Chiara Naddeo on 17 September 2022

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