John Farrow
, Partner at Anderson Lloyd, discusses the decision of Yardley V Minister for Workplace Relations and Safety, which dealt with attempting to mandate vaccination to prevent and limit the risk of, the outbreak of, or the spread of Covid-19. He also discusses the role of the Crown in this deliberation.
In reading the Decision of Yardley v Minister for Workplace Relations and Safety, there is a sense that after three successful defences of the Mandate[1], the Crown fell asleep at the wheel. The Judgment is riddled with references to there being no evidence on the crucial issues before the Court. The relevant question was whether the limitation on identified fundamental rights was reasonable and demonstrably justified in a free and democratic society. The burden was on the Crown to establish this.
The justification advanced was contained in the objective of the Order identified in its amended terms. However there was a fundamental disconnect between the Hon Michael Woods’ affidavit evidence and the stated purpose of the Order. Minister Woods’ evidence was that it was in the public interest to maintain the operational capacity of Police and Defence Force workforces so they can continue to play a critical role in our Covid-19 response and remain prepared to respond to a wide variety of incidents and emergencies across New Zealand and internationally.
However, the purpose of the Order stated was to “prevent, and limit the risk of, the outbreak or spread of Covid-19 by requiring specified work to be carried out only by affected workers who are vaccinated and where it is in the public interest to do so.”
Once the issue was identified, the Minister clarified the purposes of the Order by a further Amendment Order introducing a replacement purpose clause which included continuity of services and maintaining trust in public services.
Crucial to this case was that the Order did not affect all of the Police or Public Defence workforces. That is because by the time it was implemented, the majority of staff had become vaccinated due to NZ Police’s and NZ Defence Forces’ employment policies.
The Applicant’s challenge was ultimately successful on the basis that the Order was unlawful for being an unjustified limit on the Applicant’s rights. Specifically, their right to manifest religion or belief (s15 of the New Zealand Bill of Rights Act) and their right to refuse medical treatment.
A number of the Applicants filed Affidavits referring to their fundamental objection to taking the Pfizer Vaccine, given that it was tested on cells that were derived from a human foetus, believed to be an aborted foetus. Justice Cooke accepted that an obligation to receive a vaccine which a person objects to because it has been tested on cells derived from a human foetus does involve a limitation on the manifestation of a religious belief contemplated by s15.
Justice Cooke considered how many unvaccinated workers the Order would address, compared with the overall workforce and what was the risk of continuity of services arising from the limited number of workers caught by the Order.
One of the problems for the Crown was that neither its submissions, nor its evidence, allowed the Court to assess those considerations in any detail. The Court concluded that the evidence suggested that the actual impact of the Order was limited to 164 Police workers (60 of which had already had their employment terminated). This was in the context of a workforce just short of 11,000 covered by the Order.
There was no evidence before the Court that this number would have been any different had it been addressed by Police’s internal Vaccination Policy. Nor was there any evidence that the Mandate in the Order had a material effect on overall vaccination rates for Police or what the total vaccination rates might have been without the Order. Justice Cooke also commented that there was no explanation of how unvaccinated staff materially addressed the ability of the Police to provide continuity of services.
The Court found a similar position with the Defence Force. 99.2% of Regular Forces were fully vaccinated, leaving only 75 members who were not. Again, there was no evidence on how those staff adversely affected the ability of the Defence Force to ensure continuity of capability, given the total personnel count of over 15,000.
Justice Cooke acknowledged that if the evidence established unvaccinated personnel, even in small numbers, created a materially higher risk to the remaining workforce, then justification may exist. However, the medical evidence called by the Applicants was that while vaccination has potential benefit in reducing the severity of the disease, it does not assist in preventing transmission to others. The Crown’s expert evidence failed to directly respond to the claim of a lack of effectiveness of the vaccine inhibiting the spread of Covid-19.
Justice Cooke concluded that the Crown had failed to put forward sufficient evidence to justify the measures that have been imposed –
“The apparently low numbers of personnel the Order actually addresses, the lack of any evidence that they are materially lower than would have been the case had the internal policies been allowed to operate, and the evidence suggesting that the Omicron variant in particular breaks through any vaccination barrier means that I am not satisfied that there is a real threat to the continuity of these essential services that the Order materially addresses.”
Justice Cooke observed that the Omicron variant significantly changes the benefits that vaccination provides for preventing people contracting and transmitting Covid-19 (as opposed to the seriousness of the illness). He observed that this was reflected in the fact that the Order only mandates two vaccine doses and not a booster dose. That contrasted with the Mandate imposed for public health reasons in relation to Customs/Border workers and Health workers.
Finally, the Court observed that there was greater individual flexibility in internal policies when compared with the Order. It was for the Crown to show why that flexibility was inconsistent with the public interest. It failed to do so.
Justice Cooke issued a cautionary note at the conclusion of his Judgment. He made it clear that the Order was not implemented for the purposes of limiting the spread of Covid-19. In fact, health advice provided to the Government was that further mandates were not required to restrict the spread of Covid-19. The Court’s conclusion did not question the effectiveness and importance of vaccination. The evidence showed that vaccination significantly improves the prospects of avoiding serious illness and death, even with the Omicron variant. However in the circumstances of the present case, and on the evidence before it, the Court concluded that the Order was unlawful.
The Learnings:
While the earlier Mandates were expressly for public health purposes, this Mandate was for the purpose of public service continuity. With a significant percentage of the Police and Public Defence workforce already being vaccinated, due to internal employment policies, there was little justification for the Mandate.
While the case might be interpreted (and as Matthew Hague argues) as bringing an end to subsequent mandates, there is still a clear case, on public health grounds, for vaccine booster mandates.
[1] Public Health Vaccinations Order Ruled to Be Lawful – John Farrow – Legalwise 30 November 2021: https://legalwiseseminars.com.au/nz/insights/public-health-vaccinations-order-ruled-to-be-lawful/
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. Contact John at john.farrow@al.nz or connect via LinkedIn
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