Vaccine mandate order overturned for Police and Defence Force

As it turns out, vaccine mandates may not be enforced as easily as originally anticipated. A recent COVID-19 High Court case has determined the vaccine mandate for police and defence force staff to be ‘unlawful’[1]. The order requiring New Zealand police and defence force to be vaccinated has now been quashed.

Background:

On February 25 2022, the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (“the Order”), which provided that police officers and New Zealand Defence Force staff must be fully vaccinated against COVID-19 by March 1 2022, was overturned. The High Court ruled that the vaccine mandates established by the Order were an unjustified limit on the right to refuse medical treatment and the right to manifest religious beliefs.

Upon finding that the Order’s purpose was unjustified, Justice Cooke clarified that, “The order was imposed to ensure continuity of the public services, and to promote public confidence in those services, rather than stop the spread of COVID-19”. The Court found that the Order affected only a small number of unvaccinated Police and Defence personnel (164 out of 15,682) when it came into effect. Accordingly, the Court was not satisfied that the Order made a material difference or achieved its objective.

Unjustified limits

It was accepted by all parties that the Order limits the New Zealand Bill of Rights Act 1990 (“BORA”). However, the key ground of challenge in determining the Order as unlawful was that it implements unjustified limits on fundamental rights protected by BORA, namely the right to refuse to undergo medical treatment and limitations on the manifestation of a religious belief.

The Court used a balancing act, finding that the significant impact on the affected individuals created an unjustifiably disproportionate effect. Justice Cooke was not satisfied that the Order advanced the purpose for which it was created, that being, to ensure the continuity of public services and maintain public trust in those services. Internal vaccination policies were deemed to be an alternative that could have achieved the Order’s intended objective.

The Court made it clear that the reasoning behind the Order being set aside in this case was due to it not being implemented for the purposes of limiting the spread of COVID-19. Health advice indicated that the specific mandate in question was not needed for this purpose.

The Court concluded this decision is not intended to question the effectiveness and importance of vaccination. Nevertheless, the Order considered in this case was deemed unlawful and set aside.

What does this mean for other vaccine mandates?                               

This case is limited in its application and was only in relation to vaccine mandates issued for the purpose of maintaining continuity of public services. The judgment ultimately supports vaccination and an individualised approach to vaccine mandates for workers, rather than wide-ranging mandates.

All other public mandates are still currently valid and binding. However, employers should ensure any vaccination mandates they have enforced in the workplace have been implemented by following the necessary procedure and that all risk assessments are regularly reviewed in consultation with staff.          

If you would like to discuss your obligations as an employer in the COVID-19 context, please contact Jaesen, Ruth, Jordan or Caylee.

[1] Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291.