New Zealand High Court decision

WHY THE LATEST HIGH COURT CHALLENGE IN NEW ZEALAND SUCCEEDED WHERE SO MANY OTHERS HAVE FAILED

New Zealand’s High Court recently upheld the challenge of a group of police and defence force workers, facing termination if not fully vaccinated by 1 March 2022.

Justice Cooke was tasked with finding whether the limitation on the workers’ fundamental rights was “reasonable” and “justified in a free and democratic society”, in accordance with s5 of the NZ Bill of Rights.

Ultimately, the Judge upheld the  challenge on the basis that the Order was an ‘unreasonable’ and ‘unjustified’ infringement on the group’s right to refuse a medical treatment under s 11, and the right to manifest religious beliefs under s 15.

Many people have questioned why this particular case succeeded where so many others have failed.

Justice Cooke, after all, had previously dismissed similar claims from Customs and Aviation workers who had also challenged the mandates’ ‘reasonableness’.

Having now read the Judge’s ‘Summation’, I think the deciding factor that won it for these workers, was the expert evidence presented by Dr Nikolai Petrovsky showing the vaccines’ limited “effectiveness” when it came to the new Omicron variant.

The Judge also devoted a considerable amount of time to some of the workers’  objections to receiving a vaccine that was developed and tested using cells derived from an aborted human foetus.

The Judge’s reasoning on the religious freedom issue was, therefore, very narrow.

The Order, he said, “limits the right to …manifest religious beliefs under s 15 for those who decline to be vaccinated because the vaccine has been tested on cells derived from a human foetus which is contrary to their religious beliefs”.

“I do not see any other rights as being relevant.”

The Judge said he accepted that this very specific objection was grounded on a core principle of religious belief, particularly for Christians – one which amounted to a “primacy of conscience”.

“The fact that others, even those within the same religion, may not agree with the objection or stance”, he said, “DOES NOT MEAN THAT THE OBJECTION DOES NOT INVOLVE THE OBSERVANCE OF A RELIGIOUS BELIEF”.

In considering whether the limitation on fundamental rights was “justified in a free and democratic society”, Justice Cooke referred to the expert testimony given by Dr Petrovsky, in finding that it was not.

While Omicron did pose a threat to the “continuity of workforce”, the Judge said,  the threat was clearly the case for “BOTH THE VACCINATED AND THE UNVACCINATED”.

Ultimately Justice Cooke said:

“It is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant”.

The Order was accordingly found to be unlawful and set aside.