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Court of Appeal confirms vaccine mandate for the education sector was legal

5 Apr 2024

| Author: Vivian Mitchell

Judicial review – Covid-19 Public Health Response Act 2020 – New Zealand Bill of Rights Act 1990 – vaccine order – vaccine exemptions – right to refuse medical treatment – demonstrably justified limit

NZTSOS Inc v Minister for Covid-19 Response [2024] NZCA 74 per Gilbert, Collins and Goddard JJ.

 

In April 2021, under the Covid-19 Public Health Response Act 2020, the Minister for Covid-19 made an order prohibiting affected persons from carrying out work unless they were vaccinated. Exemptions were to be determined by suitably qualified health practitioners.

In October 2021, an extension to the order required affected workers in the education sector to be vaccinated. A month later, a centralised process was created whereby exemptions would be granted by the Director-General of Health. The criteria were narrow and based solely on medical grounds.

The appellant, NZTSOS, is an association of education sector professionals and workers incorporated under the Incorporated Societies Act 1908. NZTSOS unsuccessfully sought judicial review in the High Court challenging the lawfulness of the order. NZTSOS claimed it interfered with s 11 of the New Zealand Bill of Rights Act 1990 (BORA) – the right to refuse to undergo medical treatment.

Cooke J found that while being a fundamental right, s 11 was not absolute and subject to reasonable limits that were demonstrably justified under s 5 of BORA. The court determined the vaccine mandate as a justified limit and the exemption criteria were not unduly narrow, nor had they been applied in an unreasonable, irrational, or overly rigid way.

NZTSOS appealed Cooke J’s decision submitting four issues for determination.

Did the High Court err in determining that the right to refuse medical treatment was not absolute?

Writing for the court, Gilbert J referred to the judgment in New Health New Zealand Inc v Taranaki District Council [2018] NZSC 59. That case authoritatively determined that the s 11 right was not absolute and may be subject to reasonable limits. This was also consistent with comparative jurisdictions.

Did the High Court err in determining that the exemption criteria were not ultra vires the Act?

Justice Gilbert found the High Court correctly applied the law and found the exemption criteria were not ultra vires.

Did the High Court err in determining that the exemption criteria were not too narrow and were not being unreasonably applied by the second respondent?

Justice Gilbert found the question of narrowness to be more appropriately addressed in the next ground of appeal. Regarding unreasonable application of criteria, NZTSOS’s submissions were found to do no more than assert that there were multiple cases of individuals who met the criteria but were denied an exemption. While helpful on the next ground, Justice Gilbert found these proceedings were not the appropriate vehicle for assessing whether particular individuals qualified for the exemption criteria. This ground of appeal was dismissed.

Did the High Court err in determining that the order was a reasonable demonstrably justified limitation on s 11?

Justice Gilbert found the High Court did not err in its approach. The objective of the order to provide a safe environment for children, to protect them and the wider community from serious illness or death and minimise the risk of overwhelming the public health system, was found to be sufficiently important to justify interference with the BORA-protected right.

The impairment of the right was found to be no greater than reasonably necessary. The minister was entitled to reject more widely drawn criteria, given the emphasis on achieving the highest practicable level of vaccination. The order was also found to have remained demonstrably justified in February and early March 2022.

 

Applicable Principles: NZBORA right to refuse medical treatment – whether right is absolute – whether the exemption criteria were ultra vires – whether the exemption criteria were too narrow – whether the exemption criteria were reasonably applied – whether the vaccine order was a reasonable demonstrably justified limitation on the right to refuse medical treatment.

 

Held: The appeal was dismissed. As a side note, Justice Gilbert agreed with NZTSOS that there are known health risks associated with the vaccine and accepted that the full extent of potential downstream risks is not yet known.

Justice Gilbert also mentioned that given the high vaccination rates achieved in early 2022, the court expected some consideration of whether the incremental benefit of maintaining the order continued to justify the impairment of education workers’ fundamental rights to refuse to undergo medical treatment. However, whether the order ought to have been revoked earlier was not appropriate to determine in the case.

 

NZTSOS Inc v Minister for Covid-19 Response [2024] NZCA 74.

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