BORA vs pandemic mandate

The New Zealand Bill of Right Act 1990 (BORA) is an interesting act because it is what I would call a balancing act in that it enshrines certain rights but they are not absolutes. There are requirements that new or updated legislation are tested by the people responsible for making legislation and subsequently by the interpretation of the courts.

They balance the rights of individuals against state actions (ie not against employers or corporations) against the other needs of society.

There have been a number of recent cases taken using BORA arguments against the vaccine mandates. So far in the High Court they haven’t succeeded. I had a look at the most recent decision from November 8th.

Sections 4-6 state…

4 Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b)decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5 Justified limitations

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Legislation.govt.nz – New Zealand Bill of Rights Act 1990

This makes sure that BORA has a role in enactments by interpretation in the courts (s6). But it doesn’t override explicit enactments (s4) unless it can be shown that the limits are unreasonable in our society (s5).

So for a motion using BORA to succeed, the applicatents have to claim that the relevant legislation or the interpretation by the crown are unreasonable to them as individuals. The crown has to demonstrate that it is reasonable and justified on the needs of our society.

The high court challenges to date have been by aviation security employees, midwives, and a group representing some doctors and teachers who oppose mandatory vaccination orders. This is where the crown via the Ministry of Health has issued an order that their employers are required to make sure that their employees in certain positions are vaccinated before they are able to work in those positions.

The claims all assert a challenge to the validity of the orders under the Covid-19 Public Health Response Act 2020 and that they are therefore unlawful because they violate s11 of BORA.

11 Right to refuse to undergo medical treatment

Everyone has the right to refuse to undergo any medical treatment.

Legislation.govt.nz – New Zealand Bill of Rights Act 1990

The problem in law is that no-one is being forced to undergo a vaccination. It is a choice that the applicants are having to make between being vaccinated, demonstrating a reason for a very rare exemption, moving to a position that isn’t covered by the order (difficult with the professions in the cases), or not being employed by areas covered by those orders.

They are being coerced in that they may lose their jobs as a result of the orders. This appears to have been recognised by the both the courts and the crown’s lawyers in court.

It is interesting reading the latest decision.

[30] It is a matter of degree whether practical pressure to undergo a medical
treatment will be taken to have limited the right to refuse that treatment. Here the level
of pressure is significant and amounts to coercion. The employees are forced to be
vaccinated or potentially lose their jobs. This involves both economic and social
pressure. I accept that the right is accordingly engaged, and that it is limited by the
Order. The key question in this case is whether this limitation is demonstrably
justified.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

Other claims under BORA were rejected out of hand. The right to life (s8) sounds like complete bullshit since the risk of death walking a dog is higher than dying from this vaccination. The right to freedom of thought conscience and religion (s13) isn’t affected – people are welcome to believe what they like. The right to freedom of expression (s14) appears to be unrelated at all to employment – all employers can and usually do constrain that during work hours.

Essentially the Judge accepted the evidence that the Pfizer-BioNTech vaccine in use in NZ wasn’t experimental (s10 of BORA), had been provisionally approved for use with covid-19, and was used here. It had been fully tested, the provisional nature of the consent was due to the time it would take to go through the whole approval process in a ongoing pandemic.

Questions of s19 of BORA were raised by the judge on the basis of discrimination – however no evidence was proffered by the applicants.

BORA and other enactments provide nothing that asserts a right for an individual to be employed. Nor are any employers required to employ people who don’t fit the reasonable requirements for a position.

So what was left was the validity of the order under Covid-19 Public Health Response Act 2020, which got denied on the basis that it did conform to the legislation and that the vaccine was demonstrably useful for reducing the transmission of the pre-delta variants of Covid-19. It was also likely to reduce the transmission of delta. There was no requirement for the respondents to prove scientifically that it was able to do the latter. That would cause measures to be taken too late.

[68] In any event the second point is that the statutory prerequisite for making an
order is not that the measure will reduce transmission. Rather, the measures must
“contribute or [be] likely to contribute to preventing the risk” of outbreak or spread.
They are measures that only have to “contribute” to preventing a risk. These
provisions contemplate a risk minimisation approach. That is particularly clear when
the text of the enactment is interpreted in light of its purpose.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

Challenges on the basis of the medical act and employment law were given short shift.

[74] The answer to these submissions is found in the provisions of the Act.
Section 13(1)(a) provides that a COVID-19 order may not be held invalid just because
it authorises an act or omission that is inconsistent with the Health Act. More
generally, orders made under the Act can be taken to prevail over the provisions of the
Health Act because it addresses particular measures relating to COVID-19.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

[75] Finally Ms Grey argued that the Order improperly purported to delegate
statutory duties to employers or employees. She argued that this conflicted with the
general principle that a delegated power could not be sub-delegated. She referred
particularly to the duties of employers under cl 8 of the Order, and the obligation of
employees under cl 7 not to carry out work unless they have been vaccinated. The
answer to this argument is, again, in the wording of the empowering provision. This
expressly allows orders made under it to require persons to undertake specified actions or comply with specified measures associated with activities, provided that they meet
the statutory standards that I have already addressed. […] I do not accept
this involves any impermissible sub-delegation.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

Which really left s11 of BORA and if that was applicable. In a lot of respects that comes down to the question of who is required to provide a evidence and argument to the court to help it make a decision. The judge rightly points out that the burden falls to both sides.

[86] When it is alleged that statutory powers have been exercised in a manner that
limits fundamental rights in a way that is not demonstrably justified, and it is
established (or, as here, admitted) that the right is in fact limited, the burden falls on
the Crown to put forward evidence that the limitation is demonstrably justified. But
if the applicant then wishes to establish that what that Crown’s evidence establishes is
factually wrong, it still has the burden to persuade the Court of this.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

From the judgement it appears that the Crown fulfilled this requirement, but the applicants did not.

[87] In the present case the Crown has filed relevant evidence from Dr Bloomfield,
Dr Town and from Mr James (the Group Manager of Medsafe). The evidence of
Dr Bloomfield and Dr Town, and the underlying information to which they have
referred, forms the evidential basis for the Crown’s argument that the measure is
demonstrably justified. The applicants initially filed no expert evidence of this kind.
Dr Febery put relevant publications and articles before the Court, particularly in her
evidence in reply. I accept that that material is to be properly considered by the Court
in its assessment of whether the measures are demonstrably justified, but it is not
expert evidence of the kind filed by the respondents.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

Further opinion was provided outside of the normal court processes and was considered but not tested in court.

The rest of the judgement was pretty routine from there on, and lot of judges commentary was focused on on what I’d describe as incoherent blathering by the applicants and their witnesses. It amused me. For instance on the evidence about the ability of the vaccine to reduce the risk of transmission of Delta

[106] This evidence was disputed by Dr Thornley, who said that Dr Town’s evidence
failed to “recognise or address the many studies which now confirm that the Pfizer
vaccine is ineffective at stopping transmission of the Delta variant”. I have looked
carefully at Dr Thornley’s evidence to understand the basis for that conclusion. One
of the key studies he referred to had been addressed by both Dr Febery and Dr Town.
It is from the University of Oxford involving significant community surveillance. But
that study does not seem to me to stand for Dr Thornley’s conclusion. […]

[107] I do not take evidence from this study as confirming that the vaccine is
“ineffective at stopping transmission” as suggested by Dr Thornley. Moreover his
evidence then went on to say, in relation to the various studies that have been presented
in evidence, that “there is clearly a mix of epidemiological evidence, some suggesting
some effectiveness of the COVID-19 vaccine [in reducing transmission], some
suggesting none”. That is very different from saying that the evidence now confirms
that the vaccine is ineffective at stopping the transmission of the virus.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

So when it came to considering s11 of BORA.

[125] Apart from the factors I have already addressed it is also important to note that
those in the position of the applicants are not actually compelled to be treated. They
retain the option to refuse vaccination. The implication is that, if they are unable to
be redeployed by their employer, their employment may be terminated. That has
happened for the applicants. But what they have lost is their job, rather than their right
to refuse to be vaccinated. That is relevant to assessing the proportionality of the
measures imposed here. The Act is not being used to literally compel vaccination for
anybody

[126] I accept that the evidence that the vaccine materially reduces transmission of
the Delta variant is uncertain. This has not been proved in a scientific sense. I
conclude that it does contribute to reducing transmissibility, and that it accordingly
contributes to minimising the risk of the outbreak or spread of COVID-19. But it is
an open question that may be more readily demonstrated as further evidence comes to
light. On the scientific evidence as it currently stands the measure can be justified on
a risk minimisation basis given the implications of an outbreak, or the spread of
COVID-19.

[127] I accordingly conclude that the measure is demonstrably justified, and the
Order is accordingly not invalid for being inconsistent with the Bill of Rights.

Four Aviation Security Service Employees v Minister of Covid-19 Response – [2021] NZHC 3012 8 November 2021.

Which perfectly sums up the current course of this pandemic and the trade offs with between the community needs and those of individual rights. You can’t manufacture a individual right that doesn’t actually exist in the legislation to countervail the right of the Crown to protect the overall community.

In the absence of the kind of absolute certainty, of the type that we currently have in the course of a rolling set of waves of a pandemic, then the assessment of community risk lies with the Crown and they make orders on that basis.

And in any case the Crown are required by the relevant legislation to continue to assess risk and to adapt their orders to quit.

The other recent decisions on various issues around mandates were similar in nature.

I’m pretty sure that these decisions will keep moving up the legal system. I can’t see that the Court of Appeal would have much to say because it appears that the High Court dealt with a urgent matter as well as could be expected and most of the procedural issues were from applicants side. So eventually it will be interesting to see how the Supreme Court deals with it.

BTW: My interest in this post comes from a article by Michael Andrew writes about recent cases in “The unvaccinated v Chris Hipkins” (paywalled at BusinessDesk). I’d have liked to have quoted from my subscription to it – however there is an bloody obnoxious javascript copy blocker on the site. Unlike the NZ Herald there is content worth reading on BusinessDesk. So I’m not planning on dumping my subscription. But I am irritated by whatever dimwitted dickhead added that junk javascript to that site. I’ll see if I have time to find or code and publish a counter measure.