Venkat Raman
Auckland, February 25, 2022
In a move that is likely to have some repercussions, the Wellington High Court has ruled that the mandate requiring Police and Defence Staff to be vaccinated against Covid-19 is illegal.
But the presiding judge qualified his verdict saying that it did not impact the effectiveness of vaccination or other mandates that may exist within the Police and the New Zealand Defence Force (NZDF) staff.
The government order, issued late last year, required all Police and Defence Staff to be vaccinated against Covid-19 by March 1, 2022.
They faced either expulsion or change of duty to areas where they are less likely to be in contact with other staff or the public.
It is understood that about 300 Staff of both departments have refused vaccination.
Three of them filed a petition for a judicial review of the mandate on January 6, 2022. They were supported by affidavits from 37 of their colleagues in the same situation.
In his verdict issued today (February 25, 2022), Judge Cooke said that the government mandate breached Section 11 and Section 15 of the Bill of Rights Act.
“The order limits the right to be free to refuse medical treatment recognised by the New Zealand Bill of Rights Act (including because of its limitation on people’s right to remain employed), and it limits the right to manifest religious beliefs for those who decline to be vaccinated because the vaccine has been tested on cells derived from a human foetus which is contrary to their religious beliefs,” he said.
Other mandates unaffected
Justice Cooke said that Court’s decision did not affect any other vaccine mandates or internal vaccination policies of the Police or the Defence Force.
“In essence, the order mandating vaccinations for Police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed, health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order,” he said.
He said that the number of staff affected was very small (164 Police and 115 Defence) compared to the overall workforce of about 15, 000 in the Police and a similar number in Defence.
“There is no evidence that this number is any different from the number that would have remained unvaccinated and employed had the matter simply been dealt with by the pre-existing internal vaccine policies applied by police and NZDF. Neither is there any hard evidence that this number of personnel materially affects the continuity of NZDF and Police services,” Justice Cooke said.
Threat to the Forces
“Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant, in particular, is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants.
“I should make it clear what this case is not about. The order being set aside in the present case was not implemented for the purposes of limiting the spread of Covid-19. Health advice was that such a further mandate was not needed for this purpose. Neither should the Court’s conclusion be understood to question the effectiveness and importance of vaccination. The evidence shows that vaccination significantly improves the prospects of avoiding serious illness and death, even with the Omicron variant. It confirms the importance of a booster dose given the waning effect of the first two doses of the vaccine.
“But the order made in the present case is nevertheless unlawful and is set aside,” he said.
The applicants were awarded costs.
Attorney-General David Parker declined to comment on the Verdict and whether the government will appeal the decision.
National Party calls for action
National Party Leader Christopher Luxon called on the government to end the mandate regime, saying that the High Court verdict is a wake-up call for the government over every other vaccine mandate since Omicron is in the community.
“With the vaccine, mandates ruled unlawful, all of these police officers and defence force personnel should be back on the beat and serving Kiwis again. The judgment has implications for vaccine mandates more generally. Omicron has changed the game. Vaccine mandates made sense against Delta because the vaccine was very effective at preventing infection and transmission. They make much less sense against Omicron,” he said.
Mr Luxon said that his Party’s view is that mandates should be progressively phased out as soon as possible after the country reaches the peak of Omicron.
“Kiwis have done the right thing – getting vaccinated in record numbers and getting boosted. Now they’re looking for a pathway back to normality,” he said.
Source: Radio New Zealand
