25 February, 2022
Police and Defence Force personnel have won a case against the Covid-19 vaccination mandate on religious grounds and the right to refuse medical treatment.
It is the first time a High Court judge has granted an application to set aside the vaccine mandate – and he has made it clear it’s for police and defence force personnel only.
The mandate required all Defence Force personnel and all police constables, recruits and authorised officers to receive two doses of the vaccine by 1 March 2022.
The group of police and defence force personnel had asked Justice Francis Cooke to judicially review the mandate, have it declared invalid and set aside.
Part of the group’s concerns were religious objections about the use of aborted fetal cells.
The cells, collected decades ago, are used to grow cells that the vaccines are tested on. There are no fetal cells in the vaccine.
It also included the vaccine mandate disproportionately affected Māori workers.
Justice Cooke upheld the applicants’ claims that two rights in the New Zealand Bill of Rights Act 1990 had been limited by the mandate – the right to refuse a medical treatment and the right to manifest religious beliefs.
“I accept [the lawyers] submission, however, that an obligation to receive a 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 in “observance, practice, or teaching” of religion.”
He found the limitation of their fundamental rights was not reasonable, and demonstrably justified in a free and democratic society.
“I am not satisfied that the Crown has put forward sufficient evidence to justify the measures that have been imposed, even giving it some benefit of the doubt.”
Justice Cooke said the mandate affected only a small number of personnel. There was 164 police in an overall workforce of 15,682 the order affected 164 personnel and 115 in an overall Defence workforce of 15,480.
He also found there was no evidence those numbers would be different to the normal vaccine policies used by police and defence.
Justice Cooke concluded there was no real evidence that the effect of the order on the small number of personnel made any material difference to the continuity of police or defence services.
He said in those circumstances the Court found the significant adverse effects for those personnel who faced termination meant the measure was not a reasonable limit on their rights demonstrably justified in a free and democratic society so the order was unlawful.
He said it was apparent that Omicron was highly transmissible and could affect a large number of police or Defence temporarily but termination of jobs was permanent.
“I should make it clear what this case is not about. The order being set aside in the present case was not implemented for the purposes of limiting the spread of Covid-19.”
Instead, it was about the continuity of service of police and Defence.
In November last year the same judge decided the rights of some aviation security workers to refuse medical treatment had been limited but in that case the judge found it was a limit demonstrably justified under the Bill of Rights Act because vaccination contributed to minimising the risk of outbreak or spread.