Yardley – Is the tide turning on the validity of mandatory vaccination orders?

In Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, three Police and Defence Force workers sought to judicially review the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Order) effective on 16 December 2021 under s 11AA of the COVID-19 Public Health Response Act 2020 (Act). The Order required certain Police and Defence Force personnel to be vaccinated by 1 March 2022. The judicial review was heard by Cooke J.

Cooke J had earlier issued the judicial review judgment in Four Aviation Security Service Employees v Minister of COVID-19 Response.¹ He held in that case that the Public Health Order (PHO) by the Minister of COVID-19 Response under s 11 of the Act requiring vaccinations of aviation workers was a justified limit on the right to refuse to undergo medical treatment provided for under s 11 New Zealand Bill of Rights Act 1990 (BOR Act). Other applications for judicial review of the PHO as it applied to other sectors have also been dismissed on the same grounds.

Unlike the PHO, the Order in this case was made by the Minister for Workplace Relations and Safety. The Order was signed on the basis that it was a justified limit on the rights and freedoms in the BOR Act, it was in the public interest, and it was appropriate to achieve the purpose of the Act. It came into effect on 16 December 2021. In the course of the proceedings, the Minister amended the Order to reflect that its purpose was to:

• Avoid, mitigate, or remedy the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect).
• Ensure continuity of services that are essential for public safety, national defence, or crisis response.
• Maintain trust in public services.

The challenge to the Order was on four principal grounds. That it:

1. Was not properly made for the purposes of the Act, and is inconsistent with those purposes. Particularly the requirement that it be proportionate, and it had not allowed economic and social factors to be taken into account. Further, that the implications of the Order had not been fully taken into account to ensure it was economically sustainable.

The Judge had little hesitation in finding the purpose of avoiding, mitigating or remedying the actual or potential adverse of effects of the COVID-19 outbreak had been met, as the Order was directed to ensuring the continuity of Police and NZDF services which was consistent with the purpose of supporting a public health response to the virus. Avoiding the implications of absenteeism caused by the virus, and the potential effects on the continuity of essential services, fall within that purpose. The requirement to act consistently with the purpose of the Act is satisfied.

2. Is inconsistent with other legislative provisions, including in the Defence Act 1990, the Policing Act 2008 and the Public Service Act 2020 so unlawfully purports to suspend the operation of such legislation.

Cooke J also dismissed this ground of review on the basis that s 13(1)(a) of the Act provided that a COVID-19 order may not be held to be invalid because it is (or authorises any act or omission that is) inconsistent with any other enactment relevant to the subject matter of the order. Further, s 13(1) does not apply to, or in any way limit the BOR Act, with the provision ensuring fundamental rights and principles are not eroded.

3. Is inconsistent with Treaty of Waitangi principles, including disproportionate impact on Māori, so does not meet the Crown’s obligations under the Treaty. In order words, Māori will be dismissed from employment or service at a disproportionately higher rate than other ethnicities.

This ground was dismissed on the basis that the position of Māori and of potential Treaty principles had been taken into account and were explicitly addressed when considering signing the Order. Further, there was no disproportionality disclosed on the evidence.

4. Is unlawful as an unjustified limit on rights under the BOR Act, including the right to refuse to undergo medical treatment, the right to manifest religion, the right to be free from discrimination, and other rights. This includes the right to work, and of minority groups to enjoy their culture and practice of religion.

This was the key ground of challenge. It had previously been raised in the Four Aviation Security Service Employees case. Cooke J adopted the same approach to what were “justified limits” as he had in that case, but leading to a different outcome. The rights said to be limited included:

• Right to refuse medical treatment (s 11 BOR Act): There was no dispute that the Order limited the right of affected workers to refuse to undergo medical treatment.
• Right to work: The pressure associated with the right to refuse medical treatment involves a limit on the right to retain employment if a person chooses not to get vaccinated. Although not in the BOR Act, this is an important right or interest recognised in domestic (employment) law and in international instruments.
• Right to manifest religion (s 15 BOR Act): Workers objected to taking the Pfizer vaccine because it was tested on cells derived from a human (possibly aborted) foetus, and that the requirement to be vaccinated is inconsistent with other Christian values. Cooke J accepted the obligation to receive a vaccine tested on cells from a human foetus is a limitation on the manifestation of a religious belief in “observance, practice, or teaching” of religion contemplated by s 15, but not otherwise.
• Right to be free from discrimination (s 19 BOR Act; Human Rights Act 1993). There is no evidence of discrimination or breach of this right as there is no evidence that a group having a particular religious practice would be differentially treated, or that, on grounds of race, there would be a disproportionate impact on Māori.

The discussion then turned to the “decisive question” in the challenge, which is whether the limitation of fundamental rights is demonstrably justified in a free and democratic society given the public interest that is sought to be advanced by the Order (s 5 BOR Act). In relation to this, for the reasons which follow, the Judge found that the Order was an unjustified limitation on the rights of those it affected:

• The Court’s function is to determine a legal question about the application of s 5 BOR Act, not to address wider policy questions on the government’s response to COVID-19.
• The justification here is the advancement of the objective of the Order – to ensure continuity of services that are essential for public safety, national defence, or crisis response, and to maintain trust in public services. The risk to continuity of services is from direct or indirect potential absenteeism in the workforce due to COVID-19. The risk by unvaccinated relates to their own vulnerability, but they are seen as at risk of transmitting COVID-19 to others or causing colleagues to require to isolate. Maintaining trust in public services involves providing confidence to the public that the Police, and potentially NZDF, have a fully vaccinated workforce which it is safe to interact with.
• The issues to determine whether the limiting measure serves a sufficiently important purpose to justify the curtailment included:
  • The number of unvaccinated workers the Order addresses vs the overall workforce. How many positions have been terminated or individuals resigned rather than being pressured into vaccinating.
  • Of that number, how many would have been pressured to vaccinate or terminated/resigned in any event as a consequence of the Police/NZDF existing internal policies.
  • What is the risk of continuity of services arising from this number that are addressed by the Order.
  • Does the benefit of vaccination amount to a demonstrably justified limit on rights, bearing in mind the adverse impact on the persons whose rights are limited.
• The actual impact of the Order on the Police suggests it is limited to 164 police workers, of which 60 have been terminated. That is in the context of an overall workforce of 15,000, and a workforce of just short of 11,000 covered by the Order. There is no evidence that the mandate had a material effect on overall vaccination rates for Police, or whether the unvaccinated materially addressed the ability of Police to provide continuity of services. The Judge was not persuaded that any need to deal with unvaccinated staff individually justified a mandated approach for administrative convenience. He was also not convinced there was any material risk to public confidence by a very small number of Police being unvaccinated.
• The position was similar with NZDF, which had an existing vaccination programme in place from February 2021. The maximum total number covered by the Order was 115 (including 40 civil staff), with 15,480 personnel (including 3,048 civil staff). Again, there is no evidence how those 115 adversely affected the ability of NZDF to ensure continuity of capability or that the vaccine mandate had a material impact on deployment capability.
• It would be artificial not to take into account what has happened right from the original decision in December 2021 up to February 2022, when the measure was not yet legally effective, as it required vaccination by 1 March 2022. There is also a legislative intention to monitor the justifications for orders in light of changing circumstances.
• The relatively low number of unvaccinated staff might not mean the Order is not a reasonable limit on rights if the evidence shows the presence of unvaccinated personnel, even in small numbers, created a materially higher risk to the remaining workforce to establish justification.

The Court, therefore, found the Order was unlawful and set it aside.

This judgment is the first to determine that rights under the BOR Act have been unjustifiably limited by a mandatory vaccination order, and to set the Order aside. It reflects though the evolution of the pandemic, including the emergence of different variants warranting different public health responses. Yardley also recognised that the purpose of the Order in that case was different to other mandatory vaccination orders – PHOs – such that the outcomes in the earlier cases may remain appropriate.

As expected, it was only a matter of time before mandatory vaccination orders were revoked by the Minister, or, absent that, successfully challenged by way of judicial review. The Government has very recently announced that mandatory vaccination is no longer required in some sectors, although it remains in others. However, employers dealing with unvaccinated employees need to continue to act fairly and reasonably towards them. Where an employee is still employed and an applicable order is revoked or set aside, employers will need to act fairly and reasonably towards the employee in response to this change. Their conduct while orders were in place will also be assessed at the time they took steps in response to orders then in force.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.