Last month, as has been widely reported, police and NZ Defence Forces staff who took the Government to court challenging a mandatory vaccination policy won a stunning victory at the High Court in Wellington.
A group of police officers and Defence Force members applied to the High Court for judicial review of the Government vaccine mandate that was imposed on them.
Justice Francis Cooke ruled at the High Court in Wellington that the mandate was unlawful. The groundbreaking decision sets a precedent in this country, being the first time a court has upheld a challenge of any vaccine mandate.
The decision is a ray of hope to the 1000s of New Zealanders who recently protested inside Parliament grounds within sight of the Beehive, and those supporting them all over the country.
Prime Minister Jacinda Ardern and her government can no longer fall back on a series of court decisions upholding vaccine mandates. The ruling sends the strongest of messages to this Government that the dark days of vaccine mandates must surely be coming to an end.
Two police applicants and one NZ Defence Forces applicant filed the challenge, representing and supported by a group of hundreds of affected uniformed professionals.
Because of the vaccine mandate, more than 100 uniformed professionals were given notice that they would be dismissed from 1 March 2022.
In his ruling, Justice Francis Cooke said he was not satisfied that the Crown had put forward sufficient evidence to justify the measures that have been imposed, “even giving it some benefit of the doubt.” He said that because it was apparent that the Omicron variant breaks through any vaccination barrier, he was not satisfied that there was a real threat to the continuity of police or NZDF services that the mandates purported to address.
“If there is a threat to these services it will arise precisely because vaccination and other measures are not able to prevent the risk that Omicron will sweep through workforces.
It was apparent from the evidence that Omicron is highly transmissible, and that it could affect a significant number of New Zealanders, and accordingly a significant number of Police and NZDF personnel.
“But it is apparent from such waves of infection in other countries that ultimately the levels of infection drop. In other words it has a relatively temporary but very significant impact. That is of importance in my view.”
He said that the order was not proportionate to the risk, because the threat of Omicron was temporary, whereas termination of employees was permanent. And that other means, such as temporary suspensions, could have achieved the same result.
Justice Cooke also highlighted that further Covid 19 variants could well arise and it was unknown what impact existing vaccines would have.
“Other variants may well emerge in time. It is presently unknown what impact vaccination may have on such future variants.”
He stated that Police and NZDF could handle this issue internally with their own policies, and “that no mandate is truly necessary”.
In his conclusion, Justice Cooke said the mandates were unlawful and was not aimed at stopping the spread of Covid 19.
“For the above reasons I conclude that the Order does not involve a reasonable limit on the applicants’ rights that can be demonstrably justified in a free and democratic society and that it is unlawful.”
“Indeed health advice provided to the Government was that further mandates were not required to restrict the spread of COVID-19.”
In a statement released after the judgment, the group of affected police officers and NZDF members said they asked the Court to declare the vaccine mandate unlawful, because it is an “unjustified limitation on the rights of the affected workers”.
“The Minister for Workplace Relations and Safety had received public health advice that there was no requirement for a vaccine mandate on public health grounds, but he decided to go ahead anyway on the grounds of ensuring continuity of services provided by the NZDF and Police.”
Spokesperson Gavin Scott-Petersen, a former police officer of 14 years experience, said he was delighted at the outcome, and confident it would be just the beginning of a wave of court judgements putting the era of vaccine mandates behind us forever.
“It’s awesome, fantastic. It had to happen though, we knew it was unlawful, now it’s been proved to be so. It is the first of many.
“If the Prime Minister had actually done her job right at the start in reducing these (mandates) like in every other country, Britain etc, then we wouldn’t be here would we?”
“At the end of the day she’s probably got a lot to answer for really.”
The group said that it was unfair that Members of Parliament have had the freedom to decide whether to be vaccinated without legal risk to their livelihood, and that those in uniform deserve the same.
“This government has forgotten that we are part of the team of five million as well. “The uniformed professionals affected by the Vaccine Order are committed professionals who have served New Zealanders for decades. Some have risked their lives domestically or deployed on operations overseas. Many have received commendations and awards for their work.”
Former National MP Matt King has been working with the group and is also speaking on behalf of the affected uniformed officers. He said he was honoured to support and work with the group, especially because of his police background.
Mr King said he hoped and dreamed the ruling today would trigger other successful legal challenges to mandates.
“Kudos to the judge for putting it out there and going against what the other rulings have been.
“…for me [it’s] a huge day, because not only will the Defence Forces and the police benefit from this decision, hopefully the precedent will be set across NZ and therefore the other challenges and professions, and everyone else affected, there might be a domino effect.”
He believed that a coroner’s ruling regarding the widely publicised vaccine death of Rory “The idea is that where there is risk there has to be choice, that’s a principle that’s pretty solid.
“And up until now, I don’t think the other judges had that to work on….I’m sure that is a factor in the decision making. There has to be choice when there is risk.”
Nairn might have added strength to the evidence in favour of overturning the mandates.
He had no kind words for Prime Minister Ardern however.
“I believe that the Government are collapsing. The Prime Minister, everywhere she goes, she has to have extra security, because there are people, regular everyday people protesting at every venue she goes to. I’m talking mums and dads here, not rent-a-crowd.
“She has come down from a massive high….I don’t think she can continue on being in the role she’s in. I don’t think it’s going to be practical. I do believe that she’s in a really hard place at the moment. Mr King said the only way for Government to repair the damage was to drop the mandates and the vaccine passes.
“Get rid of them and let everybody try to get back to normal and make their own decisions about their health.”
“Stop treating us like children, stop jabbing children. It’s just unbelievable.”
He said he couldn’t remember a Prime Minister who was more hated than Jacinda Ardern.
“I do not remember a Prime Minister that was as loved as this one, who has turned to be so hated.
“Zero to hero in record time, and for justifiable reasons.”
Mr King said events in Wellington recently, as the Freedom Convoy arrived at the Beehive with protesters camped in Parliament grounds, showed the depth of feeling across the nation.
“The widespread support of the opposition to mandates, the protests, may well have highlighted that to the judge”.
“People have commented to me that they did not realise how widespread the support was, the anti-mandate brigade, how much support they had. They didn’t realise until Convoy 22 went through.”
In their statement, the group said that keeping people safe is what drives the members of police and NZDF that challenged this mandate. However, the way that the mandate was imposed by the government was unjustified.
“It applied to everyone, including people who were working from home, and those who had genuine personal reasons to decline the vaccine.
“The vaccine mandate is wrong. It does not allow consideration of exceptional individual circumstances. The Vaccine Order does not allow other ways to keep people safe, for example regular testing or working from home.”
The police officers and NZDF members said they support the right of all New Zealanders to choose whether to be vaccinated.
“This case is not about being “anti-vaccine”. The police officers and NZDF members who challenged this mandate care about the health of all New Zealanders. By making the vaccine mandate in the way that they have, this government has turned what should be a health issue into an issue of fundamental human rights.”
The Court agreed that the mandate imposed on members of Police and NZDF limited their rights, and that the Government had not demonstrated that this limitation was justified in a free and democratic society.
Reporting on behalf of ‘United We Stand’ by independent journalist Gregg Wycherley.