New Zealand, New Zealand High Court, 8 November 2021, [2021] NZHC 3012
Case overview
Country
Case ID
Decision date
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)
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
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
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
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.
Fundamental Right(s) involved
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
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.
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).
