The High Court quashed the Covid-19 mandate for police and defence force staff as unlawful. The mandate required defence force personnel, and police constables, recruits, and authorised officers to have two doses of vaccine or face termination. Less than 300 of the more than 31,000 staff affected by the mandate across the organisations remain unvaccinated and three of those unvaccinated staff sought a judicial review of the mandate.

In a judicial review proceeding, a judge is asked to review the actions or decisions of a public or private administrative body (including the executive branch of government) to see whether they acted within the powers given to them by the law. In this case, the three unvaccinated staff were affected by the decision of government and asked for a review of the process used to reach the decision. They thought the decision-maker did not act within the law and deemed the decision unreasonable. The case was supported by affidavits from 37 colleagues in the same situation.

Vaccination Order a Breach of Rights

The victory for the police and defence force staff means that the executive branch of government will be asked to reconsider their decision. However, they could appeal. Justice Cooke upheld the police and defence force claims that the vaccination order breached their rights under the Bill of Rights Act. Justice Cooke agreed that the mandate infringed Section 11 and Section 15 of the Bill of Rights Act. Section 11 states: “Everyone has the right to refuse to undergo medical treatment” and Section 15 states: “Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.”

The deal-breaker was the testing of a human foetus which is contrary on many levels beyond religious beliefs. Justice Cooke pointed out that the court’s decision did not affect any other vaccine mandates nor internal vaccination policies of the police or defence force. He stated: "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. Justice Cooke was not satisfied that continuity of these services is materially advanced by the order."

The ruling will have implications for vaccine mandates more generally and it will encourage others affected by the same or a similar situation to apply to the High Court for a judicial review. It does not guarantee that a judicial review will be favourable but that infringements of the Bill of Rights Act challenges the mandates imposed on people against their freedoms and liberties.