NZTSOS Inc v Minister for Covid-19 Response - [2024] NZCA 74
Date of Judgment
26 March 2024
Decision
NZTSOS Inc v Minister for Covid-19 Response (PDF 1.2 MB)
Summary
Judicial review – New Zealand Bill of Rights Act 1990 – COVID-19 – vaccination mandate – proportionality Appeal dismissed. No order for costs.
In April 2021, the Minister for COVID-19 made an order under the COVID-19 Public Health Response Act 2020 (the Act) prohibiting “affected persons” from carrying out work unless they were vaccinated (the Vaccination Order). In October 2021, a further order was made, extending the scope of the Vaccination Order to cover education workers. Exemptions were originally to be determined by a suitably qualified health practitioner. This was amended in November 2021 to be a centralised exemption process whereby all exemptions would be granted by the Director-General of Health based on specified criteria. The exemption criteria were narrow and based solely on medical grounds.
NZTSOS Incorporated (the appellant) is an association of education sector professionals and workers. It sought judicial review in the High Court challenging the lawfulness of the Vaccination Order requiring affected workers in the education sector to be vaccinated. Their arguments were based on the Order’s interference with s 11 of the New Zealand Bill of Rights Act 1990 (BORA), the right to refuse to undergo medical treatment. The Judge found that while the right to be free to undergo medical treatment assured by s 11 of BORA is a fundamental right, it is not absolute and is subject to reasonable limits that are demonstrably justified under s 5 of BORA. Further, the Crown had met the onus of showing that the vaccination mandate was justified, and that the exemption criteria were not unduly narrow nor applied in an unreasonable, irrational or overly rigid way. The appellant appealed the decision.
Issue: did the High Court err in determining that the right affirmed by s 11 of BORA was not absolute?
Held: No. New Health New Zealand Inc v South Taranaki District Council authoritatively determined that the s 11 right is not absolute and may be subject to reasonable limits in terms of s 5 of BORA. The White Paper on BORA had contemplated that the right would be subject to what became s 5. This position is consistent with comparative jurisdictions. Mandatory vaccination requirements were found not to violate the United States constitution in Jacobson v Commonwealth of Massachusetts, and the European Court of Human Rights recently upheld the decision of Czech legislature to require pre‑school children to be vaccinated against infectious diseases as a condition of attendance in Vavřička v Czech Republic.
Issue: did the High Court err in determining that the exemption criteria were not ultra vires the Act?
Held: No. Counsel clarified that they did not seek the relief sought in the pleadings, namely an order quashing or setting aside the exemption criteria, which would have left the mandate in place but with the challenged exemptions removed. Counsel also clarified that the complaint on this aspect of the appeal is that the exemptions were so narrowly crafted that the measure as a whole was unduly restrictive and therefore not compliant with BORA. This is more appropriately addressed under the fourth ground. As the pleaded relief was not desired, and the exemption criteria were plainly not ultra vires the Act, this ground of appeal failed.
Issue: did the High Court err in determining that the exemption criteria were not too narrow, and were not being unreasonably applied by the second respondent?
Held: No. The complaint on this ground of appeal also elaborated on and reinforced the challenge to the adequacy of the exemption criteria. This is most appropriately addressed in the fourth ground of appeal. While the appellant had also asserted there were multiple individuals who were unreasonably denied an exemption, this proceeding is not an appropriate vehicle for considering individual cases.
Issue: did the High Court err in determining that the limitation on the s 11 right of affected education workers was demonstrably justified under s 5 of BORA?
Held: No. The question was considered under the Hansen approach.
With regards to when the Order was extended to education workers on 22 October 2021, the objective of providing a safe environment for children to return to school and protecting them and the wider community from serious illness or death, as well as minimising the risk of the public health system being overwhelmed, was sufficiently important to justify interference with the BORA protected right. It was rational to conclude on the basis of available scientific evidence that requiring education workers to be vaccinated would reduce the risk of infection and transmission as a result of large numbers of people congregating in schools on a near daily basis.
The impairment of the right was no greater than necessary, considering that pleaded alternative measures that could have been used, such as RAT tests, social distancing, mask wearing and staying at home if unwell, do not involve any impairment of the right. The exemption criteria were specifically designed to cater for those few individuals who were at risk of suffering serious or life-threatening adverse side effects if vaccinated and were appropriately informed by international studies and worldwide experience of the Pfizer vaccine. Given the emphasis on achieving the highest practicable level of vaccination as a key protection against COVID-19, the Minister was entitled to reject more widely drawn criteria.
At that time, children under the age of 12 were not eligible to be vaccinated, and young people aged between 12 and 18 had only become eligible for vaccination in September 2021. Schools were therefore likely to be places where significant numbers of unvaccinated people would be present. The Minister also took into account that Māori and Pacific people traditionally have lower than average vaccination rates and were also likely to be disproportionately affected. Advice provided on 28 October 2021 was that 72 per cent of the eligible population and 50 per cent of Māori had received two doses of the vaccine. For those reasons, the mandate was a proportionate measure at the time it was made.
With regards to the Vaccination Order following the emergence of Omicron, despite the reduced protection through vaccination against what had become the dominant strain of COVID-19, vaccination was still an important tool to protect the vulnerable, slow the inevitable spread of the virus and reduce the risk of overwhelming the health system. The Minister was entitled and arguably required to take a precautionary approach in his decision-making. For that reason, it was held that the Order remained proportionate and demonstrably justified prior to mid-February 2022.
While this is sufficient to dispose of the appeal, it was also noted that potential downstream risks of the vaccine are relevant to the question of proportionality but do not in this case displace the overall conclusion. There is ample evidence that the Pfizer vaccine is generally safe. However, the narrow scope of the exemption criteria meant that a small number of affected workers experienced particularly harsh outcomes. Considering that only around three per cent of teachers remained unvaccinated, it was expected that there should be consideration of whether the incremental benefit of maintaining the Vaccination Order continued to justify the impairment of their fundamental right to refuse to undergo medical treatment. No discussion of this was seen in memoranda or briefing materials or Cabinet papers.
In April 2021, the Minister for COVID-19 made an order under the COVID-19 Public Health Response Act 2020 (the Act) prohibiting “affected persons” from carrying out work unless they were vaccinated (the Vaccination Order). In October 2021, a further order was made, extending the scope of the Vaccination Order to cover education workers. Exemptions were originally to be determined by a suitably qualified health practitioner. This was amended in November 2021 to be a centralised exemption process whereby all exemptions would be granted by the Director-General of Health based on specified criteria. The exemption criteria were narrow and based solely on medical grounds.
NZTSOS Incorporated (the appellant) is an association of education sector professionals and workers. It sought judicial review in the High Court challenging the lawfulness of the Vaccination Order requiring affected workers in the education sector to be vaccinated. Their arguments were based on the Order’s interference with s 11 of the New Zealand Bill of Rights Act 1990 (BORA), the right to refuse to undergo medical treatment. The Judge found that while the right to be free to undergo medical treatment assured by s 11 of BORA is a fundamental right, it is not absolute and is subject to reasonable limits that are demonstrably justified under s 5 of BORA. Further, the Crown had met the onus of showing that the vaccination mandate was justified, and that the exemption criteria were not unduly narrow nor applied in an unreasonable, irrational or overly rigid way. The appellant appealed the decision.
Issue: did the High Court err in determining that the right affirmed by s 11 of BORA was not absolute?
Held: No. New Health New Zealand Inc v South Taranaki District Council authoritatively determined that the s 11 right is not absolute and may be subject to reasonable limits in terms of s 5 of BORA. The White Paper on BORA had contemplated that the right would be subject to what became s 5. This position is consistent with comparative jurisdictions. Mandatory vaccination requirements were found not to violate the United States constitution in Jacobson v Commonwealth of Massachusetts, and the European Court of Human Rights recently upheld the decision of Czech legislature to require pre‑school children to be vaccinated against infectious diseases as a condition of attendance in Vavřička v Czech Republic.
Issue: did the High Court err in determining that the exemption criteria were not ultra vires the Act?
Held: No. Counsel clarified that they did not seek the relief sought in the pleadings, namely an order quashing or setting aside the exemption criteria, which would have left the mandate in place but with the challenged exemptions removed. Counsel also clarified that the complaint on this aspect of the appeal is that the exemptions were so narrowly crafted that the measure as a whole was unduly restrictive and therefore not compliant with BORA. This is more appropriately addressed under the fourth ground. As the pleaded relief was not desired, and the exemption criteria were plainly not ultra vires the Act, this ground of appeal failed.
Issue: did the High Court err in determining that the exemption criteria were not too narrow, and were not being unreasonably applied by the second respondent?
Held: No. The complaint on this ground of appeal also elaborated on and reinforced the challenge to the adequacy of the exemption criteria. This is most appropriately addressed in the fourth ground of appeal. While the appellant had also asserted there were multiple individuals who were unreasonably denied an exemption, this proceeding is not an appropriate vehicle for considering individual cases.
Issue: did the High Court err in determining that the limitation on the s 11 right of affected education workers was demonstrably justified under s 5 of BORA?
Held: No. The question was considered under the Hansen approach.
With regards to when the Order was extended to education workers on 22 October 2021, the objective of providing a safe environment for children to return to school and protecting them and the wider community from serious illness or death, as well as minimising the risk of the public health system being overwhelmed, was sufficiently important to justify interference with the BORA protected right. It was rational to conclude on the basis of available scientific evidence that requiring education workers to be vaccinated would reduce the risk of infection and transmission as a result of large numbers of people congregating in schools on a near daily basis.
The impairment of the right was no greater than necessary, considering that pleaded alternative measures that could have been used, such as RAT tests, social distancing, mask wearing and staying at home if unwell, do not involve any impairment of the right. The exemption criteria were specifically designed to cater for those few individuals who were at risk of suffering serious or life-threatening adverse side effects if vaccinated and were appropriately informed by international studies and worldwide experience of the Pfizer vaccine. Given the emphasis on achieving the highest practicable level of vaccination as a key protection against COVID-19, the Minister was entitled to reject more widely drawn criteria.
At that time, children under the age of 12 were not eligible to be vaccinated, and young people aged between 12 and 18 had only become eligible for vaccination in September 2021. Schools were therefore likely to be places where significant numbers of unvaccinated people would be present. The Minister also took into account that Māori and Pacific people traditionally have lower than average vaccination rates and were also likely to be disproportionately affected. Advice provided on 28 October 2021 was that 72 per cent of the eligible population and 50 per cent of Māori had received two doses of the vaccine. For those reasons, the mandate was a proportionate measure at the time it was made.
With regards to the Vaccination Order following the emergence of Omicron, despite the reduced protection through vaccination against what had become the dominant strain of COVID-19, vaccination was still an important tool to protect the vulnerable, slow the inevitable spread of the virus and reduce the risk of overwhelming the health system. The Minister was entitled and arguably required to take a precautionary approach in his decision-making. For that reason, it was held that the Order remained proportionate and demonstrably justified prior to mid-February 2022.
While this is sufficient to dispose of the appeal, it was also noted that potential downstream risks of the vaccine are relevant to the question of proportionality but do not in this case displace the overall conclusion. There is ample evidence that the Pfizer vaccine is generally safe. However, the narrow scope of the exemption criteria meant that a small number of affected workers experienced particularly harsh outcomes. Considering that only around three per cent of teachers remained unvaccinated, it was expected that there should be consideration of whether the incremental benefit of maintaining the Vaccination Order continued to justify the impairment of their fundamental right to refuse to undergo medical treatment. No discussion of this was seen in memoranda or briefing materials or Cabinet papers.