Vaccine Mandate Case: Supreme Court

Vaccine Mandate Case: Supreme Court

Vaccine Mandate Case: Supreme Court

Re: the Legality of Vaccine Mandates

 

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Facts of the Case

  • Dates: May 2, 2022 (decided)
  • Location: India
  • Court: Supreme Court
  • Case #:
  • Petitioner: Dr.Jacaob Puliyel
  • Petitioner’s Lawyer: Prashant Bhushan
  • Respondent: Union & State Governments of Delhi, Madhya Pradesh, Maharashtra & Tamil Nadu
  • Trial Type: Supreme Court
  • Justices: L Nageswara Rao & BR Gavai
  • Status: Decided
  • Verdict: for the Petitioner


*updated May 8, 2022

 

Background

a PIL filed by Dr.Jacaob Puliyel, challenging the vaccine mandates and seeking publication of the clinical trial and adverse events of vaccination. [1]

Dr. Jacob Puliyel, a former member of the National Technical Advisory Group of Immunization had approached the Apex Court assailing the constitutional validity of the vaccine mandates imposed by States, in particular, Delhi, Madhya Pradesh, Maharashtra and Tamil Nadu. He had sought the indulgence of the Court to issue directions to the concerned authorities to disclose the data pertaining to clinical trials of the COVID-19 vaccines administered to adults as well as children in India, as per the requirement of International Medical norms. The petitioner also impelled the Court to revamp the Adverse Events Following Immunization Reporting System which he alleged was opaque, flawed and unknown to the public at large. [1]

Petitioner Jacob Puliyal has said that even though the central government is saying that vaccination is optional, it is not mandatory, but in states like Delhi, Tamil Nadu, Maharashtra and Madhya Pradesh, it has become mandatory.  [2]

lawyer Prashant Bhushan had said that when the central government has said on many occasions, in response to statements and RTI that vaccination is not compulsory but optional, then in many states to open a shop, enter a shop or establishment. Vaccination certificates are sought on occasions such as entry of employees and people working there, walking on the streets, entering an educational institution? The petitioner, in his petition, has also referred to the circulars issued by the Government of National Capital Territory of Delhi on October 8 last year, November 8 in Madhya Pradesh, November 27 in Maharashtra and November 18 in Tamil Nadu and clearly written guidelines in which vaccination should be done. Essential restrictions have been imposed. [2]

At the same time, the Central Government opposed the petition to give the data of the clinical trial of Corona vaccine and not to force the vaccine. In the Supreme Court, the central government had said that such petitions filed for the vested interest of some people can affect the vaccination process. Even an oral comment of the court can be harmful. [2]

The Center told the Supreme Court that till November 24, 2021, one billion 19 crore 38 lakh 44 thousand 741 doses of corona vaccine have been given. Out of these, 2116 cases of adverse event following immunization i.e. AEFI have been registered so far. A report of rapid review and analysis has been completed for 495 (463 Coveshield and 32 Covaxin). Another report of 1356 cases (1236 Covishield, 118 Covaxin and 2 Sputnik) of severe AEFI cases (including 495 cases already analyzed) has been submitted to NEGVAC. [2]

The remaining cases are under rapid review and analysis and will be completed soon. On behalf of the Central Government, Solicitor General Tushar Mehta had said that this petition should not be heard. This may increase hesitation for the vaccine. The country has come out of it with great difficulty. [2]

Justice Nageswara Rao had said that that is why we said that if you have some specific facts, then they should be heard. We also do not want that there should be any problem regarding vaccination. [2]

In fact, on 9 August 2021, the Supreme Court had issued a notice to the Central Government on the petition not to compel people to apply the vaccine and make the trial data public. However, the Supreme Court refused to impose an interim stay on forcing the vaccine to be administered. Justice L Nageswara Rao said that 50 crore people in the country have been vaccinated. The WHO has also said that vaccine hesitancy has done a lot of damage. [2]

Lawyer Prashant Bhushan had said that according to the sero report, 2/3 people have been infected with Covid. In such a situation, the anti body is more effective than the corona vaccine. Now a policy has been made that if the vaccine is not applied then one cannot travel. Many restrictions have been imposed. The government is not making clinical data public. Since the vaccine is voluntary, then if someone does not get the vaccine, then he should not be denied any facility. The petitioner’s lawyer Prashant Bhushan has filed an application asking that the clinical trial of the vaccine as well as the data regarding the adverse effect of the vaccine be made public. [2]

 

India made headlines last year when it refused to offer a liability shield to Pfizer or Moderna, unlike countries such as Canada — which still has a federal vaccine mandate and a ban on the unvaccinated for travel. As such, no contract was signed between India’s authorities and these vaccine manufacturers. Instead, India relied on their own domestically produced vaccines. [3]

Pfizer infamously wanted to hide their COVID trial-related data for seventy-five years but was forced by a court order to release it. As their data dumps are being made publicly available bit by bit, public outrage continues to grow. [3]

 

 

Significance

This case is the first in the Supreme Court to decide on the legality of Vaccine Mandates

 

Plaintiff’s Argument

Vaccine Mandates

The sheet anchor of Advocate, Mr. Prashant Bhushan’s argument against the vaccine mandates was that in the absence of clinical trial data people were restrained from providing informed consent and the same impinged on the right to self-determination protected under Article 21 of the Constitution of India, 1950. Relying on K Puttaswamy v. UOI (2017) 10 SCC 1 and Common Cause v. UOI (2018) 5 SCC1, he emphasised that informed consent is necessary for medical procedures and bodily integrity is an integral part of the right to privacy. The Court was apprised that though the Government of India had indicated that vaccines are to be administered voluntarily, the States have imposed mandated restricting movement, denying essential services and curbing the right to livelihood in derogation of Articles 19 and 21. Mr. Bhushan argued that when there exists scientific evidence to substantiate the claims that nature immunity is better than vaccine-immunity; vaccination does not prevent from getting infected or transmitting; vaccines are ineffective in preventing new variants; vaccines have serious adverse effects; long-effects of the vaccine are unknown, mandating vaccination is unconstitutional. [1]

“For any vaccine to be mandated, the public health rationale underlying such a policy must be based essentially on efficacy and safety of vaccination and prevention of transmission of the disease“, Mr. Bhushan submitted. [1]

He referred to the decision of the UK Parliamentary Committee; judgement of the High Court of New Zealand in Yardley v. Minister for Workplace Relations and Safety [2022] NZHC 291 and orders of Gujarat High Court and Meghalaya High Court sticking down vaccine mandates. [1]

 
Non-Disclosure of data

Mr. Bhushan submitted that the segregated data of clinical trials of vaccines must be disclosed through peer reviewed scientific journals. The disclosure would have a significant impact on determining the adverse effects of the vaccines. The significance of disclosure was asserted by placing reliance on the Nuremberg Code and Report Nos. 59 (2012) and 66 (2013) of the Parliamentary Standing Committee on Health and Family Welfare. [1]

He informed the Court that an RTI Application was filed enquiring whether the Subject Expert Committee had looked at the raw days and/or discussed it. Responding to the same, the Central Drugs Control Standard Organisation stated that the brief of interim clinical trial results along with Subject Expert Committee’s recommendations was publicly available on CDSCO website. Dissatisfied with the response, an appeal was filed and the First Appellate Authority refused to reveal any data stating that the manufacturers had refused to disclose data publicly. [1]

 
Adverse Effect Following Immunization Reporting System

Mr. Bhushan submitted that besides it being an opaque and flawed system, there was a lack of public awareness about the same. [1]

 
Children’s Vaccine Mandate

Citing articles published in scientific journals, Mr. Bhushan argued that the overall risk from COVID-19 for children being remarkably low, it is not reasonable to vaccinate them, that too, without providing an opportunity to the parents to provide informed consent [1]

 
Rebuttal Arguments of the petitioner

Mr. Bhushan contended that the non-disclosure of trial data is preventing independent experts from making their own determinations. He stressed upon the petitioner’s plea that disclosure would permit the independent experts to look into the veracity of the claims of the manufacturers. In this regard, he referred to a United States District Court judgment, wherein the regulatory body was directed to disclose all the information pertaining to the Pfizer vaccine. [1]

He submitted that even considering the Government’s submission on privacy of the patients who participated in the trials, it ought to have made available segregated data. He emphasised that the assertion, vaccines significantly reduce the risk of transmitting the disease, had to be established by the Government by adducing evidence. Mr. Bhushan argued that by merely stating there exists a robust system for granting approval, it cannot be taken outside the ambit of judicial scrutiny. Mr. Bhushan asserted that the information available on the website pertains only to recommendations made by the expert bodies, but does not indicate the material on the basis of which such recommendations were made. [1]

With respect to the adverse reporting system, he pointed out that only the vaccinator can report such effects; the public at large have no knowledge about the reporting system and only known adverse effects can be reported. [1]

 

Defendant’s Argument

Argument from State Government of the Union Government

Solicitor General, Mr. Tushar Mehta at the outset, had questioned the bona fides of the petitioner. He contended that by way of a Public Interest Litigation, the petitioner cannot seek raw data of the clinical trial of the COVID-19 vaccines, merely to satisfy his curiosity, nor can he sit in judgment of the wisdom of domain experts. He refuted the claim of serious adverse effects. According to the official record till 13.03.2022, 1,80,13,23,547 doses had been administered and 77314 people or 0.004% of the vaccinated population had been adversely affected. Refuting the submissions made by Mr. Bhushan, alleging irregularities in the vaccine approval process, he took the Court through the statutory framework and submitted that the same had been adhered to while granting approval. Referring to the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005, he demonstrated the wide ambit of power entrusted upon the Central Government to take measures during a pandemic. [1]

Mr. Mehta vehemently opposed the claim of the petitioner that there was a lack of mechanism for addressing adverse effects from immunization. On the issue of disclosure of clinical trial data, it was asserted that the same was in the teeth of confidentiality provisions. It was highlighted that the Helsinki Declaration and the WHO statement relied upon by the petitioner to seek raw clinical trial data only refers to the obligation to disclose final results, findings and outcomes which have already been disclosed.

Addressing the issue of children’s vaccine mandate, it was argued that evidence provided by the petitioner is based on mRNA vaccine, whereas the vaccine being administered in India was inactivated virus vaccines. It was further pointed out that for pediatric vaccines there is a statutory regime in place, which is being strictly followed. [1]

Mr. Mehta referred to a catena of foreign judgments with respect to vaccination in general, and the vaccination during the COVID-19 pandemic in particular to indicate that individual liberty is not absolute and is subject to other factors, like legitimate aim; and the necessity to achieve that aim.

Moreover he argued that the vaccine mandate is a matter of policy; a matter of scientific adjudication and the scope of judicial review in policy matters, especially when the executive decision is based on expert opinion, is limited. [1]

 

Argument from State Government of Tamil Nadu

Appearing for the State of Tamil Nadu, its Additional Advocate General, Mr. Amit Anand Tiwari submitted that the State Government has exercised power under Tamil Nadu Public Health Act, 1939 and the Disaster Management Act, 2005 to mandate vaccination for accessing public spaces. The mandate was justified, broadly on three grounds : [1]

  1. It prevents mutation

  2. Unvaccinated people causes health risk and

  3. Economic impact.

 

Argument from State Government of Maharashtra

Advocate, Mr. Rahul Chitnis, appearing for the State of Maharashtra, submitted that the Government has mandated vaccination to enter shops, malls etc., and also to avail public transportation, but the same would pass the test of proportionality as expounded by the Apex Court in Modern Dental College And Research Centre And Ors. v. State of Madhya Pradesh. [1]

 
Argument from State Government of Madhya Pradesh

The Counsel adopted the submissions made by the Solicitor General about the need to balance rights. It was also clarified that the Government did not intend to make vaccines mandatory to avail ration. On the contrary, the purpose of the notification was to encourage individuals to get vaccinated. [1]

 
Argument from the Vaccine Manufacturers

Senior Advocate, Mr. Guru Krishnakumar, appearing for Bharat Biotech, controverted Mr. Bhushan’s argument that Phase III Trial of the vaccine has not been published. Moreover, it was emphasised that WHO guidelines referred to by the petitioner do not mandate the disclosure of the primary data and only the analysis of the data. Reliance was placed on Section 8(1)(d) of the Right to Information Act which exempts the disclosure of information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. The Counsel appearing for SII also opposed the petitioner’s plea for disclosure. [1]

 

Relevant Prior Judgements/ Cases

decision of the UK Parliamentary Committee; judgement of the High Court of New Zealand in Yardley v. Minister for Workplace Relations and Safety [2022] NZHC 291 and orders of Gujarat High Court and Meghalaya High Court sticking down vaccine mandates. [1]

 

Decision

The Supreme Court on Monday held that no individual can be forced to get vaccinated and the right to bodily integrity of a person under Article 21 of the Constitution include the right to refuse vaccinate. [1]

The Court also held that the vaccine mandates imposed by various state governments and other authorities in the context of COVID-19 pandemic are “not proportionate. The Court held so as no substantial data has been produced on record to show that the risk of transmission of COVID-19 virus from the unvaccinated persons are higher than from vaccinated persons. [1]

The Government is entitled to impose restrictions on individual rights in public health interests, but the restrictions should meet the 3-fold requirement legality, need and proportionality laid down by the Supreme Court in the Puttaswamy judgment. [1]

“No data has been provided by the Union of India or States before us controverting the material placed by petitioner which indicates that the risk of tranmission by unvaccinated is at par with vaccinated.In light of this the vaccine mandates cannot be said to be proportionate till the infection rate remains low and new development of research emergence which justifies the mandate”, the Court stated. [1]

Therefore, the Court suggested that all authorities, including private institutions and educational institutions, should review the restrictions on the unvaccinated. The Court however clarified that this direction is confined to the present context of the COVID pandemic situation. It further clarified that it does not extend to any other directions on COVID-19 appropriate behaviour issued by the authorities. [1]

 
Union’s vaccine policy not unreasonable or arbitrary.

The Court also held that the policy of the Union Governemnt on COVID-19 vaccination policy is reasonable. It also held that the clinical trial data of the vaccines have been published in accordance with the relevant norms. The material provided by the Union of India does not support the conclusion that emergency use approval has been granted in haste. [1]

 
Publish reports on Adverse Events

The Court also directed the Union of India to publish reports on Adverse Events Following Immunisation (AEFI) from public and doctors on a publicly accessible system without compromising data of the individuals who are reporting the same. [1]

 
Vaccination for children approved

Regarding vaccine for children, the Court said that it is not possible for us to second guess the opinion of experts and the vaccination indeed follows the global standards and practices. [1]

“On pediatric vaccine, it is in tune with international standards. We direct the Union of India to make sure the key findings of the stages of trial already approved for children be made public at the earliest”, the Court said. [1]

The Court rejected the arguments against the maintainability of the writ petition. Though executive has wide latitude in policy matters, it does not bar the Courts from scrutinizing if the policy is beyond the pale of arbitrariness.

 

Aftermath

…More information is needed…

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:

On Corona Cases

 

Media


Supreme Court of India rules against vaccine mandates

source: RebelNews


Yohan Tengra: India Supreme Court Stops C19 Vaccine Mandates

source: WorldCouncilForHealth


Supreme Court Upholds Individual’s Right Against Forcible Vaccination

source: NDTV


Pfizer Vaccine Data Analyzed

source: canadiancovidcarealliance.org


12 yr old Vaccine Trial Victim, Maddie

source: shortXXvids


source: …

 

References


 

Keyword

Adverse, Adverse Events Following Immunisation, AEFI, Bharat Biotech, Bhushan, constitution, Delhi, Disaster Management Act, Effects, Epidemic Diseases Act, India, informed consent, Madhya Pradesh, Maharashtra, Mehta, Nuremberg Code, Puliyel, Reporting, Reporting System, Side, Supreme Court, System, Tamil Nadu, Unconstitutional, Vaccine Mandate 


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SA Mandate Case: Supreme Court

SA Mandate Case: Supreme Court

SA Mandate Case

Re: the Legality of Violating the Rights of a person’s Medical Autonomy via a state enforced injection

 

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Facts of the Case

  • Dates: March, 2022
  • Location: South Australia
  • Court: Supreme Court
  • Case #:
  • Plaintiff: Varnhagen, police, education & health workers
  • Plaintiff’s Lawyer: Loretta Polson
  • Defendant:
  • Trial Type:
  • Judge:
  • Status: Ongoing
  • Verdict: TBD


*updated March 11, 2022

Background

Nurse and AFLW Adelaide Crows player Deni Varnhagen is among a group of four education and health workers seeking a judicial review of the mandates, which they claim are invalid. In addition, The Supreme Court heard two police officers who also want to be added to the case, challenging the mandatory vaccination policy for SA Police. [1]

Two healthcare workers and two education workers all claim to have lost their jobs due to vaccine mandates introduced under SA’s Emergency Management Act. [3] Dual Adelaide AFLW premiership defender Deni Varnhagen will not be allowed to play in the competition this season after refusing to receive the COVID-19 vaccination. [4]

The applicants are seeking an expedited hearing and have asked for a three-day trial during the week beginning March 14, which falls five days before the state election. [1]

Nurse Deni Varnhagen, the primary Plaintiff said: [2]

“We are all just here for freedom of choice basically, we all deserve the right to decide what we put into our bodies,” Ms Varnhagen said. 

“Coercion is not consent. We shouldn’t be losing our jobs or even be forced. 

“I wish I was at work caring for people, doing the things that I’m good at.” 

  •  

The mandatory vaccination direction came into effect yesterday (Nov 1, 2021), but hundreds of staff across the health system have not met the deadline. On Tuesday (Nov 2, 2021), Women’s and Children’s Hospital CEO Lindsay Gough confirmed that at her hospital alone 133 people had not been vaccinated. [1]

  •  

Lawyers for the state government said although they agreed the matter needed to be heard urgently, they may apply for an application to vacate that trial date depending on preparations and the ability to get its own expert witness. [1]

  •  

A lawyer for the applicants also foreshadowed an application to have an auxiliary judge — either retired or from interstate — hear the trial due to any perceived bias arising out of the Courts Administration Authority imposing its own vaccination mandate. [1]

The court heard the applicants would call Flinders University Professor Nikolai Petrovsky to give evidence about “technical matters relating to the vaccine”. [1]

The group’s lawyer, Loretta Polson, said outside court that “compelling, scientific, medical evidence” would be presented “to demonstrate that vaccination does not prevent COVID-19 transmission”. [1]

She also questioned the power of SA Police Commissioner Grant Stevens — the state coordinator during the coronavirus pandemic — to impose mandates. [1]

“We are amending the application to challenge a further mandate directed to police officers,” Ms Polson said. [1]

“Police officers are now being advised that they need to be vaccinated at the risk of losing their livelihood and careers. [1]

How many more insidious mandates are to be imposed upon the workers of South Australia by a public servant?” [1]

At a directions hearing on Thursday (Feb 17 2022), the court set down four days to hear the case starting on March 17. [5]

 

Significance

This case challenges the right of a government or employer to force unwanted substances into its citizens/employees

 

Plaintiff’s Argument

…More information is needed…

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

…More information is needed…

 

Decision

…More information is needed…

 

Aftermath

…More information is needed…


Further Research

Court Documents:
  • Read the Court Ruling
In the news:
  • …More information is needed…

 

Media


……

source: ….


SA Police Join Mandate Challenge

source: 7NEWS Australia


….

source: ….

 

References

  1. SA Police officers want to join Adelaide Crows AFLW player in vaccination mandate appeal
  2. More than 100 staff at Adelaide’s Women’s and Children’s Hospital refuse to get vaccinated against COVID-19
  3. AFLW Crows player Deni Varnhagen challenges SA’s COVID vaccine mandate in court
  4. Unvaccinated Crow Deni Varnhagen out of AFLW season
  5. Trial over SA vaccine rules next month
  6.  

 

Keyword

AFLW, Adelaide, Australia, Crows, Deni, education, Flinders University, health workers, judicial review, Loretta Polson, mandates, Nikolai, Nurse, Petrovsky, player, professor, South Australia, Supreme Court, Vaccine, Varnhagen


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PoliceMandateCase:HighCourt

PoliceMandateCase:HighCourt

Police Mandate Case: High Court

Re: the Legality of mandating vaccines to the “Frontline Employees” (NZDF & police) of New Zealand

 

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Facts of the Case

  • Dates: Jan 6, 2022 (filed)
  • Location: New Zealand
  • Court: High Court
  • Case #: CIV-2022-485-000001/ [2022] NZHC 291
  • Plaintiff: Yardley, Wallace & a Defence Force Worker
  • Plaintiff’s Lawyer: M I Hague & A P Miller
  • Expert Testimony: Dr Petrovsky
  • Defendant: Minister for Workplace Relations & Safety, Commissioner of Police, Chief Of Defence Force, & the Attorney General
  • Trial Type: High Court
  • Justice: Francis Cooke
  • Status: Decided (Feb 25, 2022)
  • Verdict: for the Plaintiff


*updated March 10, 2022

 

Background

The challenge, put forward by a three Defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees. [1]

and who face termination if they are not vaccinated by 1 March 2022. [2]

The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court. [1]

Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate. [1]

As it stands, 164 of the overall police workforce of nearly 15,700 were affected by the mandate after choosing not to be vaccinated. For NZDF, the mandate affected 115 of its 15,500 staff. [1]

The Police and Defence Force mandate was introduced by the Minister for Workplace Relations and Safety by the COVID19 Public Health Response (Specified Work Vaccinations) Order 2021 in December 2021. It required all Defence Force personnel and all Police constables, recruits and authorised officers to receive two doses of the vaccine by 1 March 2022. It was additional to existing vaccination policies Police and Defence had already introduced internally.  [3]

 

The 25-year police veteran Detective Senior Sergeant Ryan Yardley says the family’s decision to not get the Covid vaccine exposed them all to unfair treatment, unable to work, to go to restaurants and cafes, or to associate with friends. [4]

“And then I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society. Just from talking to friends and other people and hearing everyone’s stories. And that does not align with my values. And then the fact that people started getting separated and discriminated in society in relation to where they can and can’t go.” [4]

He and his family were not just opposed to the vaccine mandate – they were also personally against being vaccinated. “Everyone has to weigh that up for themselves personally and try and figure out the benefit versus risk scenario,” he said. [4]

“Because obviously, there are some known side effects that are coming out, myocarditis and other ones and I think it’s affecting more of the younger guys. I’m just slightly above that that age bracket, but it’s enough to make me concerned.”[4]

 

Significance

The landmark case means that the police and NZDF cannot be fired for refusing to take the experimental covid vaccine. This case may be used to overthrow all of PM Ardern’s mandates in New Zealand. [1]

 

Plaintiff’s Argument

The applicants challenge the Order on four main grounds: [2]

(a) that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and

(b) that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and

(c) that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and

(d) that the Order is unlawful as it involves an unjustified limit on rights protected by the NewZealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion).

The group relied on two aspects of the Bill of Rights – the right to decline a medical procedure and the right to religious freedom. [1]

On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Pfizer vaccine, given that it was tested on the cells that were derived from a human foetus. [1]

expert testimony

expert evidence from Dr Nikolai Petrovsky. DrPetrovsky is presently the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation. In this latter role he has developed a vaccine for COVID19 which is presently in use in Iran. Finally the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa NewZealand. [2]

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

Three judicial review proceedings have been heard in the High Court challenging such orders. [2]

1. In September 2021 in GF v Minister of COVID19 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. Two arguments were addressed that the order was ultra vires the Act, and that it was irrational. [2]

2. In October in Four Aviation Security Service Employees v Minister of COVID19 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: [2]

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 COVID19 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 DirectorGeneral are obliged to keep their COVID19 orders under review. [2]

3. Finally in November in Four Midwives v Minister for COVID19 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. 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. 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. [2]

 

Decision

The Order made in the present case is nevertheless unlawful and is set aside. [2]

Justice Francis Cooke ruled that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a “reasonably justified” breach of the Bill of Rights. [1]

Justice Cooke agreed with the claim, saying that “an obligation to receive the 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.” [1]

However, Justice Cooke disagreed with the claimants’ broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally. [1]

“I do not accept that a belief in an individual’s bodily integrity and personal autonomy is a religious belief or practice. Rather it seems to me, in the circumstances of this case, to be a belief in the secular concept referred to in section 11 of the New Zealand Bill of Rights Act.” [1]

Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure. [1]

The judge said that while it’s clear the government isn’t forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure. [1]

“The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments,” Justice Cooke stated. [1]

But in considering the two claims, Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act. [1]

The court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19. [1]

“In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order,” the Judge said. [1]

“Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants.” [1]

An additional claim that the mandate would disproportionately affect Māori was dismissed by Justice Cooke. [1]

 

Aftermath

Nzherald.co.nz reports: The lawyer for the police and Defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs. [1]

 

Response from the Plaintiffs

After overturning Police and Defence vaccine mandates in court,  lawyer Matthew Hague, for 200-plus uniformed personnel has written to the Prime Minister today giving her till Friday to remove ‘discriminatory’ vaccine certificates too. [4]

“The Covid vaccination certificates requirement does not prevent or limit the risk of the outbreak or spread of Covid-19,” he wrote. “United We Stand ask that you immediately revoke the order or amend it to remove the Covid vaccination certificates requirement.”

“If the Covid vaccination certificates requirement is not removed by 4 March 2022, United We Stand has instructed us to apply for judicial review of the order.” [4]

He has also written to Police Commissioner Andrew Coster and Chief of Defence Air Marshal Kevin Short, saying it was not enough to just pause the termination processes. Those who have taken leave without pay should now be allowed to return to work, and those who resigned under threat of dismissal should be allowed to get their old jobs back. [4]

“Now that the High Court has determined that the order is unlawful and should be set aside, there is no basis for the ultimatum given to these workers. They must immediately be given the option of being reinstated with backpay.” [4]

Hague and Yardley confirmed there were ongoing discussions about the next steps – which may include the steeper legal challenge of suing the Government for damages. But first, they want an apology for the “enormous amount of harm” done to the officers and their families. [4]

The court heard evidence of 164 police, and 115 defence staff, who were still refusing to be vaccinated at the start of this month. It’s thought the full number of affected personnel (uniformed and civilian) is higher than that, because some simply resigned rather than face dismissal. [4]

Ryan Yardley told Newsroom that for him, a core principle of Christianity was accepting everyone – not discriminating against particular groups like those who refused to be vaccinated.  Yardley said the mandates went against everything he believed in – his personal faith, and 25 years as a police officer adhering to the Bill of Rights. [4]

“To have something so fundamental stripped away from you, as that right to refuse any kind of medical treatment, just didn’t sit well. [4]

Response from the Defendant

It’s not immediately clear how many Police and Defence personnel, uniformed or civilian, may seek their jobs back. The police said they had retracted 42 termination letters – but acknowledged there were at least 100 more who had taken leave without pay, and more still who had resigned. [4]

Workplace Relations and Safety Minister Michael Wood said the High Court judgment was clear that it was not questioning the efficacy of vaccines nor the role of mandates per se, but just whether they were justified specifically for Police and Defence business continuity. [4]

“As the decision has only just been released, we will take time to consider it and seek advice on next steps,” he said. “The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations. [4]

“No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.” [4]

 

 

Media


NZ High Court Stops Police Mandate

source: Truths Uncensored


NZ High Court Stops Police Mandate for Religion

source: Faith Reporters


NZ Military & Police Mandate Stopped

source: AussieFighter.


NZ High Court Rules against Mandate

source: Lawyer Sue Gray

 

References

  1. New Zealand High Court ENDS Jacinda Ardern’s Vaccine Mandate: “It’s a Gross Violation of Human Rights”
  2. Court Ruling
  3. High Court Official Media Release
  4. Govt faces legal ultimatum: End mandates and vaccine passes, now

 

Keyword

Arden, Bill of Rights, bodily integrity, Cooke, Covid-19 Public Health Response Act, foetus, freedom, High Court, Jacinda, Justice, Mandate, New Zealand, New Zealand Bill of Rights Act, NZDF, personal autonomy, PM, Religious, Supreme Court, Vaccine


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