Government abandon appeal against High Court ruling on unlawful vaccine mandate order

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By United We Stand

On Tuesday 24 May the government abandoned its appeal against a High Court ruling that its vaccine mandate for Police and Defence staff was unlawful.

The ruling was made only days before the planned termination date for a number of staff. In addition, evidence that Minister Wood initially tried to suppress from the public is now being released. The evidence shows that the government was told by its own public health advisors that it is not justified on public health grounds to mandate vaccination for other workforces, including the NZDF and Police.

In the February 2022, ruling Justice Cooke set aside the order, declaring that: “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.”

The government initially chose to appeal this finding on the grounds that it didn’t apply a legal principle known as the ‘precautionary principle’ but this was not a strong argument given that Justice Cooke had talked specifically about his application of this principle in the ruling.

The decision to appeal the finding was criticized as being a waste of taxpayer resources given that the government had announced a removal of any remaining mandates on Police and Defence anyway.

The Attorney General has not provided the reason for the government abandoning the appeal, but a consideration would have been its low likelihood of success and the further embarrassment that this would cause the government.

The government’s appeal was being opposed by the group United We Stand which is made up of Defence, Police and now Fire and Emergency New Zealand Staff that have been affected by vaccine mandates.

The lawyer for the group, Matthew Hague said: “We don’t know why the government decided to abandon their appeal now, but it never should have been made. The appeal prolonged the division and hurt caused by the government’s unlawful vaccine mandate.”

In addition to abandoning the appeal, the government also abandoned its attempts to suppress parts of Minister Wood’s evidence. The government applied for suppression of the evidence after it lost the case in February.

United We Stand opposed the suppression, arguing that it was evidence given in open Court and it should not be kept secret from the public. When the government was notified that United We Stand opposed its attempt to keep the evidence secret, the government decided not to continue with its suppression application.

The Court agreed with United We Stand and ordered that the evidence not be suppressed. United We Stand says: “We are pleased that the Court upheld the principle of transparent justice…This government’s attempt to keep its own evidence secret makes a mockery of its claim to be the most open and transparent government ever.”

Evidence that the Minister sought to suppress, highlighted in yellow

Although the court ruling saw Police being largely integrated back into the workforce, the Defence Force has instead chosen to double down on a vaccine mandate, initiating an internal policy to achieve the same thing as the original order.

A directive was released by the Chief of Defence Force (CDF) to achieve this on 12 Apr 2022, which also included personnel not up to date with COVID-19 boosters directing for them to be discharged at short notice.

This is not only in contrast to the ruling but also wider government direction dropping mandates for most other workplaces. A recent OIA has also shown that the directive is likely to result in 774 (8.3%) of service members being discharged, based on current vaccination status and that over 30% of the Defence Force have already had COVID-19.

The CDF’s new directive was to be challenged by United We Stand in the Wellington High Court on 19 May, but instead of defending the directive, the CDF chose to cancel it only four working days prior to an interim hearing.

In a legal memorandum it was stated that steps taken in reliance on it had been paused but that it is intended to “…be replaced by another instrument or instruments, with similar effect, in the near term”.

In an internal email the Defence Chief People Officer has said the directive was cancelled to “amend aspects” of it and maintained that “…there is no intention to discontinue this process”.

The United We Stand members are disappointed that despite the vaccine mandate being ruled as unlawful, public officials have chosen to protract the process through appeals that are later abandoned, as well as poorly thought-out internal policies that then also get cancelled and rewritten.

These actions are detrimental to an already understaffed workforce, a breach of basic human rights and a waste of taxpayer resources. 

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