John Farrow, Partner at Anderson Lloyd, shares an overview of the Public Health Vaccination Orders in New Zealand, explaining why the orders have been ruled to be lawful through a selection of three cases.
To date there have been three Judicial Review proceedings of the Covid-19 Public Health Response (Vaccinations) Order 2021.[i] All of the proceedings have been unsuccessful.
The Decisions have largely followed consistent themes with the first Application advancing a number of the grounds and the latter applications advancing, primarily, Bill of Rights arguments.
Background
The Covid-19 Public Health Response (Vaccinations) Order (“the Order”) was made pursuant to ss9 and 11 of the Covid-19 Public Health Response Act 2020 (Act).
Initially the Order made vaccination mandatory for workers at MIQ facilities, airport and maritime port workers and aircrew. Since then, there have been a number of amendments extending the groups of affected persons to include workers in the health and disability sector and affected education services.
The Order provides that:
“An affected person must not carry out work or otherwise conduct an activity at a place unless they vaccinated.”
and
“A relevant PCBU must not allow an affected person to carry out work or otherwise conduct an activity at a place unless satisfied that the affected person is vaccinated.”
GF v Minister of Covid-19 Response
The challenges advanced included:
(a) whether a vaccine with only provisional consent is analogous to medical experimentation, which may give rise to issues under the International Covenant on Civil and Political Rights;
(b) whether the Vaccinations Order was a reasonable limitation on the rights guaranteed by NZBORA;
(c) whether the Vaccinations Order was prescribed for by law for the purposes of the Act;
(d) whether it mattered that the Vaccinations order was not subjected to a “democratic process” prior to its commencement; and
(e) whether the Vaccinations Order was an inherent breach of the right to justice, especially in circumstances where employees only had 48 hours’ notice that there employment was liable to be terminated.
The Court found that it was not possible to categorise the use of a vaccine which had been through the process of assessment and granted provisional approval as being the equivalent to “medical experimentation“.
It was argued and conceded that the relevant rights within NZBORA that may be engaged as a result of the Order are ss11 (the right to refuse to undergo any medical treatment) and 19 (the right to be free from discrimination, particularly on the grounds of disability, sex or religious beliefs).
In making the Order, the Minister must be satisfied that the Order does not limit or is a justified limit on the rights and freedoms in NZBORA. If the Order is not a demonstrably justifiable limit on the rights and freedoms then it will be unlawful.
The Court found that after receiving advice about NZBORA, the Minister came to the conclusion that there was a sufficient public health rationale for making the Order and that the reduction in risk achieved by the Order was material and could not be achieved in any other less rights-intrusive way and that the Order would be justified from a NZBORA perspective.
Justice Churchman found that there is no requirement in NZBORA, or any other piece of legislation, that stipulates that secondary or delegated legislation cannot contain a provision that limits one or more rights set out in NZBORA.
The Court found that the Order does not itself compel people to be vaccinated. They are free to make the same choice the Applicant did (refuse vaccination). The Crown however accepted that the choice between loss of employment and vaccination constituted sufficient imposition of freedom of choice to engage the s11 right. The onus therefore shifted to the Crown to establish that the reasonable limits prescribed by law would be demonstrably justified in a free and democratic society. The same applied in relation to s19.
The Court then conducted the inconsistency analysis under s5 of NZBORA:
(a) the limit must serve a sufficiently important objective, which warrants overriding a protected right or freedom;
(b) the means chosen to achieve the objective must be proportionate.
The Court found that the objective was sufficiently important – to protect and/or limit the risk of the spread of a pandemic throughout the general public of New Zealand. The means chosen did not impair the rights more than was reasonably necessary and the benefits achieved by the measure outweighed the limitation of rights.
It was also argued that it was unreasonable that the Vaccination Order was not created in partnership with Maori. However the Court found that the Minister specifically considered the potential for a disproportionate impact on Maori and Pasifika communities and concluded that the best way for the Crown to discharge its obligation to Maori was to pursue the elimination strategy, of which the Vaccination Order was an important component.
Four Aviation Security Employees v Minister of Covid-19 Response
This challenge involved Aviation Security workers who interact with arriving or transiting international travellers. While the Judicial Review Proceedings before Justice Churchman had been dismissed, the Court concluded that the Applicants’ case involved broader factual assertions that could not properly be addressed with the other proceeding.
Similar arguments were advanced in terms of s11 of NZBORA. Justice Cooke stated:
”Whilst persons in the position of the applicants are not being forcibly treated in the sense that they can decline to be vaccinated, they are required to be vaccinated as a condition of their employment and to decline to do so can, and has, led to termination.”
Justice Cooke also found that it is plain that the vaccine has been approved and used for therapeutic not experimental purposes.
The Applicants in this case argued that the Order was not authorised by the empowering provisions contained in ss9 and 11 of the Act. [ii]
Justice Cooke however found that provided that vaccinations are likely to contribute to preventing the risk of an outbreak or spread of Covid-19, it is available as a specified measure that can be imposed for the carrying out of a specified activity under s11.
Interestingly, Justice Cooke commented that there is a degree of evidential uncertainty as to the effectiveness of vaccination in reducing the likelihood of transmission of the Delta variant of Covid-19. However neither the Minister nor the Court are obliged to confine their consideration on the potential for vaccination to inhibit transmission to what can be established by way of scientific proof – the measures only have to “contribute” to preventing a risk.
The provisions contemplate a risk minimisation approach:
“Overall, the conclusion that is properly drawn from all the evidence is that the vaccine is effective at reducing the transmission of the earlier variants of the virus, and that it is also effective at reducing symptomatic infection and the detrimental effects of the Delta variant.“
The Court also provided helpful comment on the increasingly relevant issue of medical exemptions. If a person were to be exempted they would still potentially represent an increased risk of the entry or spread of the Covid-19 risk from border workers. While the individual may have a more objectively compelling reason not to be vaccinated, the demonstrable justification depends on the mandate being appropriate, even in the face of such compelling reasons. Questions of redeployment will become relevant and an employer may have a greater duty to find alternatives when someone has an objectively justifiable reason not to be vaccinated.
Four Midwives v Minister for Covid-19 Response
In this case the Applicants did not argue that the Order was an unjustified limit. The single ground of challenge was that the Act does not explicitly authorise the placing of a limit on the Applicants’ right to refuse to undergo any medical treatment.
Justice Palmer responded to that challenge:
“No Order can be made under the empowering provision that limits the right unless it is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society under s5 of the Bill of Rights. [iii]
If a limit in an Order is so justified, the usual purpose of interpretation of the empowering provision is not required to be narrowed to mean the Order is outside its scope.“
The Learnings
The Public Health Order has been robustly challenged but three Judges of the High Court have independently found that it is lawful.
Those decisions clear the way for the Government to extend the groups of affected persons, should this be seen as necessary.
[i] GF v Minister of Covid-19 Response; Four Aviation Security Service Employees v Minister of Covid-19 Response; Four Midwives v Minister for Covid-19 Response
[ii] Covid-19 Public Health Response Act 2020
[iii] NZBORA
John Farrow is a Partner co-leading Anderson Lloyd’s National Employment and Health and Safety Team. He is a member of the Institute of Directors, a LEADR accredited mediator and an ‘Association of Workplace Investigators’ Certificate-holder. Contact John at john.farrow@al.nz or connect via LinkedIn 
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Disclaimer: The opinions expressed in this article are those of the writer and do not purport to be specific legal or professional advice
