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 requiring frontline employees to be jabbed is a breach of the Bill of Rights.
In a release released today, 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 lawyer for the police and defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs.
The challenge, put forward by a group of defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees.
As it stands, 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.
The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court.
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.
Minister of Workplace Relations Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate.
In his decision, Justice Cooke 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.
Justice Cooke agreed with the right to religious freedom, saying that "an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief."
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."
But in considering the two claims, Justice Cooke also considered whether or not the small number of unvaccinated staff could pose a risk to the continuity of the work of the two forces.
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.
An additional claim put forward by the group was dismissed by Justice Cooke, claiming the mandate would disproportionately affect Māori.
Affected employees should be allowed to return to work - lawyer
Speaking to NZME, 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.
He said they've actually not been fired yet, and are currently in a "suspension" period.
"In my view, they should immediately be able to return to work."
New Zealand Defence Force workers were given notice that they would be dismissed on March 1 and police workers would be dismissed on March 7, he said.
"They asked the court to rule that the order was unlawful which the court has now done and what that means is that the notice of dismissal that has been given to Police and defence force workers is now no longer in effect, so the police and the defence force workers should be able to return to work."
"I think they are committed to their jobs and these are people who have worked decades in the service of their community, they risk their lives domestically and when deployed on operation overseas. Many have received commendation and rewards for their work and their commitments to serving New Zealand."
"The affected workers feel let down and betrayed by this Government who attempted to dismiss them from their jobs based on an unlawful order or an order that has now been held to be unlawful."
He said there would be no further civil proceedings.
Police respond to judgment
In a statement on Friday, a Police spokesperson 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.
"As the judicial decision has only just been released, we will be taking time to consider the decision. We will be communicating with staff about next steps," the spokesperson said.
"In the meantime terminations of employment will not proceed at this time."
The vaccination order deemed unlawful by the court required all frontline Police staff to be fully vaccinated by March 1, or face the possibility of termination.
NZDF and Workplace Relations and Safety Minister Michael Wood have also been approached for comment.
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