Not demonstrably justified': High Court upholds challenge to Police and NZDF vaccination mandates, terminations suspended | NZ Herald - Ethan Griffiths & Caitlan Johnston:
February 24, 2022 - "A High Court challenge questioning the legality of Covid-19 vaccination mandates for Police and Defence Force employees has been upheld, with the court determining that the government mandate is an unjustified incursion on the Bill of Rights.... Justice Francis Cooke determined 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.....
"The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court. 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.... 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.
"The group relied on two aspects of the Bill of Rights - the right to decline a medical procedure and the right to religious freedom. 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. Justice Cooke agreed with the claim.... However, Justice Cooke disagreed with the claimants' broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally.
"'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.'
"Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure. 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. '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....
"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.
"'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. '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'....
"Matthew Hague, counsel for the applicants, said that the affected workers must be allowed to return to work. He said he doesn't see why they won't be allowed to return on the grounds that they are currently still in a suspension period and because the basis of their dismissal was the mandate which has now been overruled.... In two separate but identical statements on Friday, spokespeople for both Police and NZDF said that any move to terminate staff contracts as a result of the vaccination order will be suspended while the decision is considered by government.... Workplace Relations and Safety Minister Michael Wood also released a statement on the decision, saying the government will take time to consider the decision and seek advice on next steps."
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