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Family carers win High Court battle over vaccine mandate

20 Apr 2023

| Author: Anna Longdill

Covid-19 Public Health Response (Vaccinations) Order 2021 – judicial review of amendment to the definition of ‘care and support worker’ – requirement for family carers to be vaccinated – was Minister for Covid-19 Response’s decision to make amendment invalid? – was amendment void ab initio? – proper interpretation of Vaccinations Order – declaratory relief – court’s responsibility where parties agree on relief

Wright v Minister for Covid-19 Response [2023] NZHC 480 (Van Bohemen J)

Family carers provide care and support services to family members in need of care and receive government funding for these services.  On 25 October 2021, the Minister for Covid-19 Response extended the Covid-19 Public Health Response (Vaccinations) Order 2021 (vaccinations order) to cover health and disability sector workers, including ‘care and support workers’.

The definition of ‘care and support workers’, however, excluded family carers. On 6 November 2021, the minister amended the definition of ‘care and support workers’ so family carers were included, meaning they were required to be vaccinated against covid-19 in order to retain government funding. This requirement was in place from 6 November 2021 until the vaccinations order was revoked on 26 September 2022.

A group of family carers who, with one exception, were unvaccinated and did not consent to vaccination sought judicial review of the minister’s decision to amend the vaccinations order.

Unusually, the parties were agreed that the minister’s decision was invalid, based on the material before him (which did not include any public health advice). The government was already taking steps to recompense those who lost income as a result of the amendment.  The parties agreed that the court should make two declarations:

  • a) that the minister’s decision to amend the vaccinations order was invalid as it was not a decision available to the minister on the basis of the information before him at the time; and
  • b) that the definition of ‘care and support worker’ in the vaccinations order that was effective from 6 November 2021 to 26 September 2022 did not include a person providing care and support services to a family member in that family member’s home or place of residence (ie, that it did not include family carers).

Judicial review – declaratory relief – applicable principles – where parties agree on relief – court’s responsibility for ensuring declarations granted are legally correct and appropriate – error of law – failure to take into account relevant considerations – New Zealand Bill of Rights Act 1990 (NZBORA) considerations – would a declaration be moot? – was the amendment to the definition invalid ab initio? – principles of administrative law – proper interpretation of vaccinations order

Held: First declaration made – minister’s decision was invalid as it was not a decision available on the basis of the information before him at the time.

This declaration is legally correct and there is value in making it, despite the revocation of the vaccinations order. The minister failed to have regard to relevant considerations (public health advice) and as a consequence his decision to amend the vaccinations order was flawed and invalid. Observation – no evidence that the minister failed to have regard to NZBORA considerations.

Second declaration not made – there was no appropriate basis to make it. Applying well-established principles of administrative law, the declaration of invalidity takes effect from the date of this judgment. The amendment was not void ab initio.  It would not be appropriate for the court to make a declaration based on presumed lack of intention by minister when the evidence established that he had intended to include family carers in definition of ‘care and support worker’.

Wright v Minister for Covid-19 Response

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