High Court Rules Police and Defence Force Vaccine Mandate is Unlawful

1 Mar 22

The High Court has held that the Covid-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Order) was not a reasonable limit on the fundamental rights protected by the New Zealand Bill of Rights Act (BORA) and was therefore unlawful[1].

Notably, this Order related to Police and Defence Force employees, and had been introduced for the purpose of protecting continuity of service, and to promote public confidence in the Police and Defence Force, not to prevent the spread of COVID-19. This makes it distinct from other Government Orders such as those relating to the education and healthcare sectors.

The Court did not accept that mandatory vaccinations would meet the purpose of this particular Order, or that continuity of services was materially advanced by the Order. The actual number of affected staff (164 Police staff and 115 Defence Force staff) was small compared to the size of the overall workforce. The Court held there was no evidence that this number would be any different had the matter been addressed by internal vaccination policies.

The Court concluded that the Crown had not sufficiently demonstrated that in the current context of COVID-19, requiring mandatory vaccinations would meet the Order’s purpose. Justice Cooke stated that, although the Omicron variant poses a threat to the continuity of workforces, this was the case “for the vaccinated as well as the unvaccinated”. He was not convinced mandatory vaccination would make any material difference, including because of the expert evidence before the Court on the effects of vaccination on COVID-19.

The applicants referenced their particular objection to receiving the vaccine on the basis that it was tested on cells derived from a human foetus (potentially aborted foetuses).The Court upheld the claims that the Order was an unjustified limit on rights under the BORA, specifically, the right to refuse medical treatment and the right to manifest religion. Accordingly, the Order was declared invalid and unenforceable for these workers.

What this means for employers

The Court was clear that it was not questioning the effectiveness and importance of vaccination against COVID-19. The Court accepted the evidence shows that vaccination significantly improves the prospects of avoiding serious illness and death, even with the Omicron variant of COVID-19.

It is important to note this does not mean the end of all vaccine mandates. The Court’s decision does not affect other Orders that were introduced for other reasons.  It also does not mean that policies implemented by private businesses are unenforceable.  In fact, the Court indicated a preference for internal vaccination policies over government mandates, which have more flexibility and allow for greater individual assessment.

What it does mean is that in this rapidly changing environment, employers should be regularly reviewing their own vaccination policies to ensure they are fair and reasonable, and achieving the purpose they have been implemented for.

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


Want to know more?

If you have any questions about the implications of the High Court’s decision, please contact our specialist Employment Team.

PDF version: here.

For more information contact:

Jessica Higgins (née Frame)