The New Zealand Defence Force Covid Mandate Case Decided: Lessons for Australia - A Legal Opinion Sought Out By Arnis Luks

The New Zealand Court of Appeal has ruled that the New Zealand Defence Force (NZDEF) had acted illegally with its Covid-19 vaccine mandate. A government public order had required New Zealand defence persons and police to receive the Covid-19 vaccine or be terminated. Three unvaccinated NZDEF challenged the order seeking a judicial review. Various grounds were advanced, but in this case known as the Yardley decision, CIV-2022-485-000001 [2022] NZHC 291,

the court accepted the grounds that the order disproportionately affected Māori people and was inconsistent with Treaty of Waitangi principles, and hence was an unjustified limit on rights, violating sections 11 and 15 of the Bill of Rights. These sections related to religious beliefs. The trial judge held that the mandates were not needed for vaccination compliance. As well according to the trial judge, the mandates "limits the right to manifest religious beliefs 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." But, even following this decision, the NZDF still held to the requirement that vaccination was needed in employment.

The case then went to the court of Appeal, where it was decided that "It should have been very clear to the NZDF, following the Yardley decision, that any materially less flexible response to a failure to be vaccinated would require clear justification."

The Court said that the NZDF "fell well short of providing justifications for the relevant measures that are sufficient to meet the s 5 NZBORA (New Zealand Bill of Rights) burden."

Deputy Prime Minister of New Zealand, Winston Peters, stated on X:

"New Zealand First campaigned on and fought for the removal of any and all remaining workplace mandates being enforced, and we ensured it was included in our coalition deal with National. This ruling by the Court of Appeal is evidence that it is the right and just thing to do to get rid of these remaining mandates."

While this case does not deliver a precedence for Australian law, it is strongly suggestive and may be influential. One issue of difference relates though to the New Zealand Bill of rights issue, which Australia does not have the equivalent of, with no similar protection of religious freedom. There is also the issue that the decisions seem to depend upon violations of Māori rights putting this case in the multiculturalism and law category.

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Saturday, 20 July 2024

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