Yardley v Minister for Workplace Relations and Safety – understanding the decision declaring the government’s NZDF and Police vaccination mandates unlawful.
Note - 23 March 2022: The Government has significantly loosened Covid-19 rules, removing vaccine pass requirements, most vaccine mandates, QR code scanning, and outdoor gathering limits. Full Stuff article here.
Introduction
The recent High Court decision of Yardley v Minister for Workplace Relations and Safety (“Yardley”) resulted in the “quashing” of the COVID-19 Public Health Response (Specified Work Vaccination) Order 2021 (“the Order”). The Order required all Police and Defence Force (“NZDF”) workers to be vaccinated by March 1, 2022.
The applicants in Yardley were three Police and NZDF workers who would have their employment terminated on 1 March 2022 if they remained unvaccinated. A number of arguments were advanced. Cooke J rejected all but one; that the mandate was not a justified limitation of the applicant’s rights under the New Zealand Bill of Rights Act 1993.
The applicants’ arguments
Te Tiriti o Waitangi claim
Although it was an unsuccessful aspect of the claim, it is important to note that a breach of the Treaty of Waitangi was an argument advanced by the applicants’. They argued that the Order was a breach of the Crown’s treaty obligations, and would have a disproportionate impact on Māori, who would be fired at a higher rate than other ethnicities, due to their lower rates of vaccination. Cooke J found no convincing evidence that Māori would suffer a disproportionate outcome from the Order. He noted that the Minister for Workplace Relations and Safety (“the Minister”) did take the Crown’s treaty obligations into account when making the Order.
Unjustified limitation on rights
The applicants’ successfully argued that the Order resulted in an unjustified limitation on their right to refuse medical treatment under section 11 of BORA, and their right to manifest religion or a belief under section 15 of BORA.
It was not contested that the right to refuse medical treatment had been limited by the mandate. Although it does not force any NZDF or Police staff to be vaccinated, it does coerce staff into being vaccinated by requiring it in order to continue employment. The argument that the right to manifest religion or a belief was based on evidence provided to the Court that the Pfizer vaccine had been tested on cells that were derived from a human foetus (although it was not certain whether these cells had come from an aborted foetus). However, Cooke J specified that this did not mean that the mandate limited this right generally; it only applied to those who objected to receiving vaccines that had been tested in this way.
The decision – not a justified limitation
The Minister’s reasons for the mandate
Controlling the spread of COVID-19 was not the purpose of the Order. Instead, the goals were to ensure the continuity of key public services and promote public confidence in those services. It was argued that continuity of these services was at risk due to a high number of staff being away from work due to COVID-19. Mandates were argued to promote public confidence in the Police and NZDF by ensuring that the public was being served by a fully vaccinated workforce, that was safe to interact with.
Number of affected Police and NZDF personnel
At the time the order came into effect, 164 Police staff and 115 NZDF staff were affected by the Order. There was no evidence that the number of unvaccinated staff would have differed across both services had there been no mandate introduced. Neither was there any suggestion that the continuity of service or public confidence would be affected by introducing a vaccination mandate.
The decision
Cooke J concluded that the mandate introduced by the Order was an unjustified limitation of the applicants’ rights under BORA. The judgment was based on the practical effectiveness of the Order in achieving its goals. Clearly the maintenance of public trust and continuity of the Police and NZDF is an important objective. However, there was a lack of evidence that vaccinating the small number of remaining unvaccinated staff would make a difference in limiting or controlling the spread of COVID-19. The infectiousness of the Omicron variant was also a factor, as it further limits the ability for vaccination to reduce the spread of the virus. Cooke J also noted that there was no evidence provided that the mandate increased vaccination rates, compared to rates which would have been achieved under the internal vaccination policies of the Police and NZDF.
Consequences
Cooke J stated in his judgment that “it confirms the importance of a booster dose given the waning effect of the first two doses of the vaccine.” Consequently, the decision may be seen as strengthening the importance of vaccination mandates, and in particular the need for booster doses. As case numbers continue to rise due to the infectiousness of Omicron, mandates may help prevent hospitals from being overwhelmed by severe illness from COVID-19, and also aid businesses, with fewer numbers of staff being severely unwell for long periods of time.
Yardley is a victory for those opposed to vaccination mandates, but it is too early to say whether it is the beginning of the end for the mandates. The judgment only relates to mandates that were introduced for the purposes of maintaining the continuity of public services and the public trust in those services, not for those designed to prevent the spread of COVID-19. Cooke J emphasised the importance of vaccination as a tool for managing COVID-19, and noted that the decision should not be seen as questioning the effectiveness of vaccination. There is no indication of any appeal of the decision at the time of writing this article, but it remains a possibility. Like most aspects of the pandemic, the future of government vaccination mandates will remain uncertain.
If this article has raised questions for you, we can help. Reach out for a chat to Mike Gould at mike.gould@gibsonsheat.com or 04 916 6302.
Disclaimer: The information contained here is of a general nature and should be used as a guide only. Any reference to law is to New Zealand law and legislation. We recommend before acting on it, you consult your accountant or tax adviser
