New Zealand’s Court of Appeal has upheld a ruling against the New Zealand Defence Force (NZDF) over the legality of the COVID-19 vaccine mandate imposed during the pandemic.
Announced in November 2021, a government public health order required unvaccinated NZ defence and police staff to receive the COVID-19 vaccine before March 1, 2022, or likely face termination. The order affected around 300 of the over 30,000 staff across the agencies.
Action was initiated on the Jan. 6, 2022, by three unvaccinated NZDF staff with affidavits from other service personnel whose goal was to action the court to compose a judicial review of the mandate.
The applicants challenged the Order on four grounds, including that the Health order was inconsistent with legislation such as the Defence Act 1990 and the Policing Act 2008, that the order disproportionately affected Māori and was inconsistent with Treaty of Waitangi principles, and that it was an unjustified limit on rights.
Within what is known as the Yardley decision, Justice Francis Cooke agreed with some, but not all, of the applicant’s claims, ruling sections 11 and 15 of the Bill of Rights, which pertained to religious beliefs had been breached.
He also agreed that evidence showed vaccination significantly improved the prospects of avoiding serious illness and death, but noted “health advice was that such a further mandate was not needed for this purpose.”
“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.
Justice Cooke said the court’s decision did not affect the internal vaccination policies of the police or defence force, and post-decision, the NZDF reshaped its policy but still required uniformed staff to get vaccinated or be let go from the service.
On Feb. 16 this year, the Attorney-General brought the case to the Court of Appeal where three Judges upheld the ruling, saying that the NZDF should have been more flexible with the unvaccinated and was not justified in limiting their rights.
The panel added the NZDF “fell well short of providing justifications for the relevant measures that are sufficient to meet the s 5 NZBORA (New Zealand Bill of Rights) burden.”
In the lead-up to the 2023 general election, Prime Minister Chris Luxon, then National Party leader, said he was in favour of giving sacked personnel their jobs back and said all police officers and defence personnel who lost their jobs should be re-employed, and the mandates phased out after the pandemic’s peak.
Coalition partner the ACT Party was vocal in their opposition to mandates. Speaking on the new ruling to uphold, Justice and Health spokesperson Todd Stephenson said “ACT opposed the previous government’s heavy-handed mandates, proposing a vax or test alternative instead.”
“The Court of Appeal’s ruling against the Defence Force’s vaccination mandate demonstrates the need to open up an independent COVID inquiry,” he added.
“All New Zealanders were affected by the previous government’s COVID response, and we shouldn’t have to rely on ad hoc challenges in the Courts to answer basic questions like whether government agencies were justified in curtailing our rights and freedoms.”
