In the latest Covid-19 legal ruling from the Courts, the Court of Appeal has upheld an appeal by members of the New Zealand Defence Force and decided that the Defence Force's workplace Covid-19 vaccination mandate is unlawful.

In the Yardley judgment issued in February 2022, the High Court found that the government vaccine mandate for all New Zealand Defence Force and uniformed Police workers was unlawful.

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 judge said while it was clear the Government wasn't forcing Police and NZDF employees to get vaccinated against their will and they still had the right to refuse vaccination, the mandate presented 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 vaccination had 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.

Following Yardley, the Defence Force issued its own vaccine mandate requiring those in uniform to get vaccinated or lose their jobs. 

On Friday, the Court of Appeal ruled that in relation to the NZDF's own vaccination mandate, the Defence Force had limited the right to refuse medical treatment and to manifest religious belief.

The Court of Appeal decided that the Chief of the Defence Force was not justified in limiting those rights by imposing a vaccine mandate in the way that he did. 

In their decision, a bench of three Court of Appeal judges stated, "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 judgment states that the evidence provided by the Defence Force, "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."

The ruling comes at a time when the Defence Force is experiencing high levels of attrition and struggling to maintain its operational outputs due to record low numbers of service personnel.

Lawyer Matthew Hague who represented the appellants in the Court of Appeal said, "It is a fantastic result for the protection of fundamental rights in New Zealand."

"Members of our Armed Forces sacrifice much in the service of our country, which means upholding their fundamental rights all the more important.

"I call on the Chief of Defence to reinstate everyone who lost their jobs because of the unlawful mandate."

ACT Justice and Health spokesperson Todd Stephenson said, “The Court of Appeal’s ruling against the Defence Force's vaccination mandate demonstrates the need to open up the independent Covid inquiry,” says ACT Justice and Health spokesman Todd Stephenson.

“Jacinda Ardern stressed the independence of the Covid Royal Commission while at the same time hamstringing it by limiting its terms of reference, giving it very little scope to investigate whether major reductions to our freedoms were justified.

“All New Zealanders were affected by the previous government’s Covid response, and we shouldn’t have to rely on ad hoc challenges in the Courts to answer basic questions like whether government agencies were justified in curtailing our rights and freedoms.

“ACT was very pleased to secure a commitment in its coalition agreement to open up the terms of the inquiry. New Zealanders can now tell the Royal Commission exactly what they think it should investigate, whether it’s the justification of vaccine mandates and extended lockdowns, or the impact of lockdowns on business and kids’ schooling.

"ACT opposed the previous Government's heavy-handed mandates, proposing a vax or test alternative instead."

The NZDF did not respond to ZB Plus before publication.