Yardley v Minister for Workplace Relations and Safety

• Jurisdiction: New Zealand
• Judge: Cooke J
• Judgment Date: 25 February 2022
• Neutral Citation: [2022] NZHC 291
• Docket Number: CIV-2022-485-000001
• Court: High Court

UNDER the Judicial Review Procedure Act 2016 and the Declaratory Judgments Act 1908

IN THE MATTER of an application for judicial review for the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021

Between

Ryan Yardley

First Applicant

Joshua Wallace

Second Applicant

Defence Force Worker

Third Applicant

and

Relations and Safety

First Respondent

Commissioner of Police

Second Respondent

Chief of Defence Force

Third Respondent

Attorney-General

Fourth Respondent

[2022] NZHC 291

Cooke J

CIV-2022-485-000001

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Employment, Judicial Review — Judicial review proceedings brought by three Police and Defence Force workers against the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 — New Zealand Bill of Rights Act 1990

Appearances:

M I Hague and A P Miller for the Applicants

V McCall and E Cameron for the Respondents

The Order was set aside, and the applicants entitled to seek an award of Court costs. The Court's orders are limited to the mandate relating to Police and Defence Force personnel and did not affect other mandates or the internal Police and Defence vaccination policies.

JUDGMENT OF Cooke J

Table of Contents

Background	[4]
The applicants' challenge	[17]
Consistency with purposes of the Act	[20]
Suspension of legislation	[29]
A failure to meet Treaty of Waitangi obligations	[35]
Unjustified limit upon fundamental rights	[41]
Right to refuse medical treatment	[43]
Right to work	[44]
Right to manifest religion	[47]
Right to be free from discrimination	[53]
Conclusion on affected rights	[57]
Is the limit on rights demonstrably justified?	[58]
Margin for appreciation or deference	[62]
The Court's approach	[66]
Number of affected Police personnel	[72]
NZDF's position	[82]
Health advice	[87]
The precautionary principle	[94]
The impact on the Order on those affected and the ultimate conclusion	[101]
Conclusion	[104]

1 By the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order) the Minister for Workplace Relations and Safety determined that work carried out by certain Police and Defence Force personnel could only be undertaken by workers who had been vaccinated. The Order was made under s 11AA of the COVID-19 Public Health Response Act 2020 (the Act). This allows such an order to be made if it is in the public interest, and it is appropriate to achieve the purpose of the Act. workers had been stood down but their employment had not yet been terminated, and that there was an agreement that the proceedings be heard urgently. 1 On that basis she declined the application for interim orders.

2 These judicial review proceedings are brought by three Police and Defence Force workers who do not wish to be vaccinated, and who face termination if they are not vaccinated by 1 March 2022. Thirty-seven additional workers in the same position have also sworn affidavits in support of the claim. The proceedings were filed on 6 January 2022. On 7 January the applicants applied for urgent interim orders. The application was considered by Cull J on 12 January who noted that the affected workers had been stood down but their employment had not yet been terminated, and that there was an agreement that the proceedings be heard urgently.1 On that basis she declined the application for interim orders.

3 This judgment deals with the substantive judicial review application which has now been heard by me. Given that the Order takes full effect on 1 March the judgment has been released with some urgency.

Background

4 Following the enactment of the Act in May 2020 a series of significant measures have been implemented under its provisions directed to addressing the effects of COVID-19, including orders implementing what can generally be described as vaccine mandates. The primary provisions utilised to implement such mandates have been ss 9 and 11 of the Act. These empower the Minister for COVID-19 Response to make orders that will contribute or likely contribute to preventing or limiting the risk of an outbreak or spread of COVID-19, or avoiding or remedying its actual potential adverse public health effects.

5 Three judicial review proceedings have been heard in the High Court challenging such orders. In September 2021 in GF v Minister of COVID-19 Response and Others Churchman J dismissed a challenge to an order bought by a former employee of the New Zealand Customs Service who had had her employment terminated. 2 Two arguments were addressed — that the order was ultra vires the Act, and that it was irrational. In October in Four Aviation Security Service Employees v Minister of COVID-19 Response I then heard and dismissed a challenge to the order relating to Customs Service employees of broader scope, which included an argument that the order breached the New Zealand Bill of Rights Act 1990 by being an unjustified limit on the right to refuse to undergo any medical treatment as affirmed by s 11. 3 I concluded that the order was a justified limit on that right. In doing so I noted: 4

There is a last point of significance. This case concerns the measure that was introduced when New Zealand had eradicated the virus after the first outbreak, and was seeking to prevent a further outbreak (or delay a further outbreak until a greater proportion of the population is vaccinated, means of treating and managing the virus are better known, and the health system is better organised to address such an outbreak). Since that time it is a matter of judicial notice that an outbreak has occurred in Auckland, and that COVID-19 is spreading. It does not appear that this outbreak can be eliminated, reflecting the greater transmissibility of the Delta variant. Whether the challenged measure would remain demonstrably justified on the basis that it contributes to addressing the spread of the virus in circumstances when the virus is endemic in at least parts of New Zealand is an open question. This question is not before me. I note that under s 14(5) of the Act the Minister and Director-General are obliged to keep their COVID-19 orders under review.

6 Finally in November in Four Midwives v Minister for COVID-19 Response Palmer J heard and dismissed a claim advanced by certain midwives affected by a vaccine mandate, together with the first part of a challenge to the mandate brought by certain teachers and doctors. 5 Palmer J rejected the argument that the orders were not within the empowering provision of the Act notwithstanding it did not explicitly refer to vaccination. Palmer J endorsed the observation made in Four Aviation Security Services Employees that it was surprising that the legislation had not specifically addressed vaccination and the issues it raised. 6 The second claim in the proceedings brought by teachers and doctors that the relevant order is not a justified limit on the right under s 5 of the Bill of Rights is to be heard shortly. That question was not addressed by Palmer J.

7 The Minister for Workplace Relations and Safety, the Hon Michael Wood explains in his affidavit that in October 2021 Cabinet made decisions to amend the Act to allow vaccine mandates for other reasons, such as “preventing services from being unable to function because large numbers of people are away sick for long periods”. He explains that he lodged a Cabinet paper that was considered by Cabinet on 26 October 2021 seeking legislative amendments to authorise such vaccine mandates. That paper recorded that there was public health advice that additional vaccine or testing mandates were not required. I understand this to be advice that such mandates were not considered necessary to contribute to addressing the risk of the outbreak or spread of COVID-19. The Minister explained, however, that there were other

justifications for mandates. The Police were given as an example of key public services where a vaccine mandate might be justified

8 Cabinet agreed with these recommendations, and proposed amendments were then introduced to the House of Representatives and the COVID-19 Response (Vaccinations) Legislation Act 2021 was duly passed in November 2021. 7 The new s 11AB allows the Minister for Workplace Relations and Safety to make orders specifying work that must only be undertaken by a worker who is vaccinated. The key prerequisites for making such an order are set out in the following terms:

11AA Requirements for making COVID-19 orders under section 11AB

(1) The Minister may make a COVID-19 order under section 11AB in accordance with the following provisions:

(a) the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990; and

(b) the Minister—

(i) must have consulted the Prime Minister, the Minister for COVID-19 Response, the Minister of Justice, and the Minister of Health; and

(ii) may have consulted any other Minister as the Minister thinks fit; and

(c) before making the order, the Minister—

(i) may consult the Director-General; and

(ii) must be satisfied that the order is in the public interest and is appropriate to achieve the purpose of this Act.

(2) For the purposes of subsection (1)(c)(ii), public interest includes (without limitation)—

(a) ensuring continuity of services that are essential for public safety, national defence, or crisis response:

(b) supporting the continued provision of lifeline utilities or other essential services:

(c) maintaining trust in public services:

(d) maintaining...