A recent TVNZ Colmar Brunton poll found that 61% of respondents supported compulsory vaccination for all New Zealanders aged 18 and over. 35% said it should not be mandatory, with the rest undecided.
In a country that fiercely defends civil liberties, this outcome would have been unheard of 18 months ago. However there is increasing pressure on employers and social venue providers to allow only vaccinated people to access premises and participate in those aspects of society. There have also been questions as to whether the Government itself should legally mandate vaccination more broadly.
Currently in New Zealand vaccination is only mandatory for certain groups of workers. The COVID – 19 Public Health Response Act 2020 makes it unlawful for “affected persons” to carry out work or otherwise conduct activity at certain places unless they are vaccinated. This applies to people working within managed isolation and quarantine facilities, and work undertaken by certain Government officials in affected workplaces (airports, aircraft, ports and ships).
The Order was subsequently extended to workers who handle “affected items” removed from managed isolation and quarantine facilities, aircraft and ships and who had contact with other groups of affected workers.
The legality of this Order was recently challenged in the High Court after a Customs employee was dismissed for refusing to be vaccinated.
The applicant argued that the Order was not a “justified limitation on the rights and freedoms” under the New Zealand Bill of Rights Act.
A star studded cast provided affidavit evidence for the Crown, including Minister Hipkins (who was responsible for the Order), Associate Minister Verrall and Dr Ashley Bloomfield. In explaining why the Order was deemed necessary Minister Hipkins said that it was because the affected workers may be exposed to, and infected by, COVID-19 in the course of their work and subsequently become vectors for transmitting the virus more widely.
Minister Hipkins pointed to international studies which have shown that vaccination leads to a significant reduction in the rate of transmission and said that the public health advice he had received convinced him that there was a strong rationale for the Order.
The Court accepted that the Minister had properly considered the relevant factors in making this assessment.
Next the applicant claimed that because the Pfizer vaccine has only been granted provisional consent, requiring anyone to take it would amount to subjecting them to medical experimentation. Before medicines (including vaccines) can be used in New Zealand, they must be granted either provisional or full consent. Justice Churchman dismissed this argument finding that both forms of consent are valid. He also noted that the Pzifer vaccine has been granted full approval in the United States.
The applicant further argued that the Minister did not consider the social and economic consequences of making the Order and that it could result in “mass terminations of employment”. The Court found that this submission was “overstated” and that the Minister had considered the opportunity cost related barriers for workers and their household contacts and other employment related consequences.
The Court then considered whether the Minister had sufficient basis for determining that the Order was a justified limit on the rights and freedoms created by the New Zealand Bill of Rights Act. The rights and freedoms most likely to be negatively impacted were identified as the right to refuse medical treatment and the right to be free from discrimination, including on the grounds of disability, sex or religious belief.
Justice Churchman accepted that the Minister had considered whether the required outcomes could be achieved in a less intrusive way, based on public health advice. In reaching this finding the Court held that the Order achieved an important social objective, specifically to limit the risk of spread of a pandemic, and was proportionate. It also noted that the Order did not force any person to be vaccinated, but rather it resulted in consequences, including the potential loss of employment, for people who chose not to be.
Another argument advanced by the applicant was that the Order was not created in partnership with Māori or with any consideration of Te Tiriti o Waitangi. The submission was that Māori are more likely to have health conditions which may mean they are unable to receive a vaccination; Māori have traditionally lower vaccination rates than non-Māori; and Māori are more likely to be lower paid with little scope for redeployment.
On this issue the Court found that the Minister had considered the potentially disproportionate impact of the Order on the Māori and Pasifika communities. He had also received specific advice on Te Tiriti o Waitangi. Having properly considered these things, the Minister concluded that the best way for the Crown to discharge its obligations to Māori was to pursue the elimination strategy of which the Order was an important element. The Court accepted this rationale.
Having successfully defended this challenge, the question now is whether the Government will seek to extend the application of the Order to other groups of workers. We are already seeing a number of private employers moving towards mandatory vaccination, but it would remain a big call for the Government to go further.
One of the factors considered by the Court was proportionality – the fact that mandatory vaccination was found to be justifiable for a relatively small group of “affected workers”, does not mean that it will necessarily be justifiable for others.