Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291
Background
In May 2020, Parliament passed COVID-19 Public Health Response Act 2020 to provide a legal framework for dealing with the COVID-19 pandemic. The Act allowed Orders to be made to achieve the purpose of the Act.
On 13 December 2021, the Minister for Workplace Relations and Safety issued the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order). The Order said that work carried out by certain Police and Defence Force personnel must be undertaken only by vaccinated workers.
This led to an increase in vaccination rates within the Police and Defence Force personnel. In January 2022, 99% of Defence Force employees were fully vaccinated. The Police statistics were similar, with 98% vaccinated. In terms of numbers, the Court noted that at the time of the legal challenge brought by Yardley v Minister for Workplace Relations and Safety, there remained 164 unvaccinated Police workers out of 15,000, and 115 Defence Force personnel out of 15,000.
The important legislative history
One important fact was that in November 2021, so before the Order was made, Parliament adopted an Act called the COVID-19 Response (Vaccinations) Legislation Act 2021. This amended the COVID-19 Public Health Response Act 2020 and required that any Order made under the Act must be
in the public interest, which was defined as including (without limitation) four aspects: ensuring continuity of services that are essential for public safety, national defence, or crisis response; supporting the continued provision of lifeline utilities or other essential services; maintaining trust in public services; maintaining access to overseas markets.
On 6 January 2022, three Police and Defence Force workers challenge the legality of the Order.
On 11 February 2022, as a preliminary issue, the Court raised a question on what appeared to be a mismatch between the stated purpose of the Order and what the Minister said in evidence that he took into consideration when making the Order. The Minister responded quickly by adopting an amendment Order, the COVID-19 Public Health Response (Specified Work Vaccinations) Amendment Order 2022, which changed the stated purpose of the Order to match the Minister’s affidavit evidence.
What the Court took from that seems to be that the amended Order was mainly concerned with ensuring the continuity of services and maintaining trust in the public services, rather than preventing or limiting the risk of spreading COVID-19. This was significant because in the past cases, preventing the risk of spreading COVID-19 was the major objective of the vaccine mandates.
The challenge
The applicants challenged the Order on four grounds saying (1) that the Order was not made for the purposes of the Act; (2) that it was inconsistent with other legislative provisions including Defence Act 1990 and Policing Act 2008; (3) that it was inconsistent with the Treaty of Waitangi in that it disproportionally impacted Māori; (4) that the Order was unlawful as it involved an unjustified limit on rights protected by the New Zealand Bill of Rights (BORA).
The first three arguments failed.
However, the Court found that the Order was unlawful as it involved an unjustified limitation on rights protected by BORA, more specifically the right to refuse medical treatment and the right to manifest religion.
Discussion of the decision
There was no dispute that the Order infringed rights protected by BORA. In fact, the Minister accepted that the Order infringed the workers’ fundamental rights. However, BORA allows limitations on rights if the limitations are justified in a free and democratic society. So, the Court had to consider whether the limitations imposed by the Order were demonstrably justified.
The justification had to be tied back to the purpose of the Order – that was the crucial point. The Court assessed whether the existence of unvaccinated employees endangered the continuity of Police and Defence Force services or created a risk that the public would lose trust in the public services.
Importantly, the Court did not assess whether the presence of unvaccinated employees in the workplace created a health and safety risk to their colleagues or to the people they met in the course of their duties.
Right to manifest religion
There was evidence before the Court that the Pfizer vaccine was tested on cells that were derived from human foetuses, and this was accepted by the Crown’s medical expert. The disagreement was whether the foetuses were aborted. The applicants believed that the foetuses were aborted, so they did not want to take a vaccine which used aborted babies in their testing.
The Court held that forcing religious Christian applicants to take the vaccine involved a limitation on the manifestation of their religious belief. It was a “core principle” of the particular Christian religion to object to abortion. “The fact that others observing the same religion do not agree with the stance does not mean that the stance does not involve the observance of a religious belief.”
But the relevant belief must be religious and not secular. The Court said that the applicants must demonstrate that they sincerely believe that a certain practice or belief is required by their religion, or that they believe that it is required by the religion and it has the appropriate nexus with that religion.
While the Court accepted that the objective connection with a religion involves a “low threshold,” a belief in an individual’s bodily integrity and personal autonomy in itself was not a religious belief or practice.
Practical inquiry, not a theoretical one
The Court rejected a theoretical or abstract approach to justification and stated that the assessment must be by reference to actual evidence of the impact of the measures. This meant assessing whether the measures made any difference to reducing absenteeism or avoiding loss of confidence in the public services.
The Court held that the small number of unvaccinated workers could not be said to have an impact on the workforce, and thus the limitation on these workers’ fundamental rights was unjustified.
The Court was also critical of the Minister’s decision to issue an Order at the time when only a small number of personnel remained unvaccinated. It rejected the Police’s argument that it would not have been practical to deal with each employee on a piecemeal basis, saying this was bordering on “administrative convenience”, which was not a compelling justification for limiting rights. The judge noted that there were about 5,000 civilian Police officers not covered by the Order, and whose circumstances still had to be considered individually. By comparison, adopting an Order which covered 164 Police officers looked like a disproportionate measure.
The Court also noticed that the Order afforded no flexibility to consider individual circumstances of the employees involved, something that they would have had if the vaccine would have been mandated through an internal policy, rather than through the Order.
Health advice
The Crown’s medical expert gave evidence that the Pfizer vaccine is “somewhat less effective
against viral infection and transmission” and that its effectiveness declined “rapidly after the first month”.
After considering the medical experts’ evidence, the Court concluded that it is “clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant. It is equally clear that it does still provide protection from serious illness and death, although this effect wains after the second dose, and seems to wain in a similar way after the booster.”
While certain Crown witnesses gave evidence that unvaccinated individuals were more likely to contract and transmit COVID-19 and become more seriously ill, the Court pointed out that there was no evidence put to the Court to support such statements.
In fact, it appears that before adopting the Order, the Minister received advice that further vaccine mandates were not needed for health reasons.
In the end, the Court found that if there is a threat to these public services “it will arise precisely because vaccination and other measures are not able to prevent the risk that Omicron will sweep through workforces.”
Temporary vs permanent losses
A significant factor for the Court was that the impact of Omicron infections on the Police and Defence Force workers, while significant, would only be temporary (the Court estimated between three to six months), while the terminations of employment arising out of the Order were permanent. That suggested that the measures imposed by the Order were disproportionate. The Court indicated that alternatives to termination, such as suspensions, should have been considered.
Past cases
The Court distinguished Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012 – which held that a similar vaccination mandate was lawful – on the basis that the justification for the Order in that case was a public health need to suppress the spread of the virus. Here the justification for the Order was to maintain the continuity of services, rather than the spread of the virus. On the facts, the Order related to Police and Defence Force personnel was unjustified.
The Court concluded that the limitations on the applicants’ rights were not demonstrably justified and that the Order was unlawful.
Comments
The Court was careful to draw a difference between this case and other cases where Orders were justified on public health reasons.
However, this judgment is significant in setting out a precedent for the Court approaching a government mandate of this type. Following the judgment, on 3 March 2022, the Order was revoked. We understand that the Government has suspended vaccination-related terminations across various departments, not just Police or Defence Force services.
While private employers that have introduced vaccine mandates in their workplaces are not explicitly impacted by this decision, the judgment gives some food for thought, at least in five respects.
First, theoretical assessments of risks might not be acceptable – employers might be expected to show how their mandates make a real difference in achieving their health and safety objectives.
Second, individual assessments seem to be required, considering the particular circumstances of each employee, rather than considering the unvaccinated collectively. The Court in this case pointed out that it expected the internal policies would be based on individual assessments, rather than one-size-fits-all policies such as the Order.
Third, the number of unvaccinated vs vaccinated employees might become relevant, as it was here. If 98% of the workforce is vaccinated, how much of an impact can an unvaccinated person have in terms of health and safety.
Fourth, the risk assessment needs to be kept under review because what was relevant under Delta might no longer apply under Omicron. The evidence before the Court was that vaccination does not prevent employees from getting and spreading Covid. With Omicron, unvaccinated seem to be just a danger to themselves, rather than to others. That might change the health and risk profile. It was in evidence that the Minister received advice that vaccine mandates were not needed for health reasons. If that is correct for a large government workforce, why would it be different for a private employer?
Finally, the Court was quick to point out that alternatives to termination need to be considered. COVID-19 would not be here forever. Suspensions, alternative work arrangements need to be considered where possible. The Courts might find that a policy which stipulates termination as the only way to deal with unvaccinated employees might be disproportionate and unlawful.
