A New Zealand High Court challenge questioning the legality of Covid vaccination mandates for Police and Defence Force employees has been upheld, with the court determining that the government mandate is an unjustified incursion on that country’s Bill of Rights, as well as being unreasonable under its Public Health Response Act.

In a decision handed down on February 25 in the matter of Yardley v Minister of Workplace Relations and Safety, Justice Francis Cooke held the mandates were not demonstrably justified.

As reported in the New Zealand Herald, the applicant police officers and defence force employees relied on two aspects of the NZ Bill of Rights – the right to decline a medical procedure (section 11) and the right to religious freedom (section 15).

‘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,’ Justice Cooke said.

More specifically with regard to the right to decline a medical procedure, Justice Cooke stated that while it is clear the government isn’t forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure.

‘The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments,’ Justice Cooke declared.

On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Covid vaccines, given that they were tested on the cells that were derived from a human foetus.

Justice Cooke agreed with the claim, saying that ‘an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief.’

With regard to the arguments concerning the lawfulness of the mandates under the Public Health Response Act, the court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid.

‘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,’ his Honour stated.

‘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.’

Critically, as noted by RNZ, Justice Cooke observed that: ‘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.’

Matthew Hague, counsel for the applicants, said that the affected workers must be allowed to return to work immediately.

National Party leader Christopher Luxon said all police officers and defence personnel who lost their jobs over the Covid vaccine mandates should be re-employed.

He said the ruling also had implications for vaccine mandates more generally, saying the mandates did not make sense in the Omicron-era and should be phased out after the peak of the outbreak.

Workplace Relations and Safety Minister Michael Wood released a statement following the decision, saying the government will take time to consider the decision and seek advice.

‘The judgment is clear that it is not questioning the efficacy of vaccines nor the role of mandates per se, but whether they were justified specifically for Police and Defence business continuity,’ the Minister said, while adding: ‘No Defence and Police terminations will proceed at this time.’

While this decision is a positive step forward, the million-dollar question, as it were, is whether it will have any persuasive effect regarding are the Australian cases challenging vaccine mandates.

While Bill of Rights-style arguments may be difficult to mount, particularly following the decisions in Larter v Hazzard and Kassam v Hazzard, there do remain the questions of proportionality and rationality, which are key elements in the Falconer case in Western Australia and the Varnhagen/Police case in South Australia, among others. Indeed, in Falconer, Justice Jeremy Allanson of the WA Supreme Court declared that there was a serious question to be tried regarding the legal irrationality, including arguments based on proportionality, of the mandatory vaccination directions as a response to Covid. As Justice Cooke noted, if vaccination does not prevent infection and transmission, what is the argument for denying someone employment over their refusal to get the jab?

Additionally, in terms of proportionality, there is the consideration of the fact that these mandates have become exploding cigars. Nurses were on strike and protesting in Sydney earlier this month over staffing issues. Yet around the country, some hundreds of nurses and hospital staff are not allowed to work because they’re not vaccinated. In this regard, NSW Nurses and Midwives’ Association general secretary Brett Holmes said the government needed to give serious consideration to the potential implications of a mandate, including ‘several steps … taken to ensure that we don’t lose too many more healthcare workers.’

Such an observation could be applied not only to nurses and police officers, but teachers, truck drivers, indeed, all types of workers. It now remains to be seen whether the courts in this country will agree.

Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School. The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.