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BORA vs pandemic mandate

Written By: - Date published: 2:30 pm, November 23rd, 2021 - 13 comments
Categories: covid-19, health, law - Tags: , ,

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(a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or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

13 comments on “BORA vs pandemic mandate ”

  1. Chris 1

    Yes, it will be extremely interesting to see how the SC approaches these kinds of challenges, both under the BORA and the HRA. It does look as though the nature of the subject matter gives the Crown a real advantage defending its actions, but it will also mean that the strength of the specific protections will get a good work out. That said, my feeling is that even if an applicant manages to shoehorn their claim into the statutory framework, for example by raising valid comparisons for a discrimination claim, or showing their situation is captured by one of the 13 grounds under the HRA, the importance of the particular policy will prevail. I just can't see the SC wanting to interfere with the government's covid response. Courts don't like to do that, and the medical health of the nation gives them an easy reason to hold back and let the government do its job.

  2. In times such as these is when the usually unsung legal writing 'heroes' such as Parliamentary Counsel in the Law Drafting office come into their own with their focus on Bora and how legislation and regulations (orders) fit together. There was a piece of land related law that needed working on in dead of night under urgency and it was just such a privilege for me as an adviser to see these people from Parliamentary Counsels office. Crown Law and departmental solicitors plus a very knowledgeable constitutional lawyer who happened to be deputy PM at the time, hammer out the draft legislation.

    I think if there are any obiter dictum statements coming out or any concerns from a judgement they would be dealt with very quickly under urgency to fix them up. The health issue is so important.

  3. Ad 3

    Supreme Court is the right place for it legally and I look forward to it.

    Over 92% of New Zealanders have been part-vaccinated so there is no issue with the courts being a proper mirror to what is socially acceptable.

    Perhaps rather than expanding the NZ underclass, over 2022 the employment mandates coupled with the "traffic light system" will drain the swamp of irrationality and our outsiders.

    It is remarkable that our great feared waves of social media contrarian opinion actually dissolves to nothing when faced with the stark facts of your job, your rent and your mortgage.

    • RedLogix 3.1

      It is remarkable that our great feared waves of social media contrarian opinion actually dissolves to nothing when faced with the stark facts of your job, your rent and your mortgage.

      May however remain a resolutely undissolved lumpen in the ballot booth.

      • Ad 3.1.1

        Even with all Melbourne's protests storming the National Memorial, in the cold light of Parliament yesterday Pauline Hansen still got the slapdown when it came to the vaccine mandate debate.

    • Julian Richards 3.2

      I hope they're right.?!

      *also a correction to your statement is required: "over 92% of New Zealanders have been part vaccinated so there's no issue…."

      92% of eligible New Zealanders have been partly vaccinated. Of that the actual total % of New Zealanders partly vaccinated once you include the under 12 year olds (approx 16-17%) in the equation of 'New Zealanders' total population party vaccinated is an approx modest 75%.

      "Oh won't somebody think of the children…. " the non-vaccinated will be blamed for their vaccination/protection even though the youth are at highly minimal risk of covid19 and in a very good position to end the generational viral pandemic. Then New Zealand will achieve 92%.

      #notantivax

      Just thinking out loud

      • Julian Richards 3.2.1

        Excerpt from Lancet medical journal;NZs vaccination strategy… 'Note the contributors'

        "Where vaccination is not allocated to the 0–15 year olds[5] or the 0–11 year olds, the maximum attainable total population vaccine coverage is 79.8% or 84.9%. At a high R0 value of 4.5 or higher, these maximum total coverage levels are not enough to achieve HIT. Therefore, opening borders without vaccinating the under-12 group or the under-16 group were predicted to result in a large number of cases, hospitalisations, and deaths. For instance, where 0–11 year olds are not vaccinated and R0=4.5, the high-risk targeting strategy with a high uptake level 80% (over the maximum 84.9%) and a vaccine of 90/80% effectiveness was predicted to have lower deaths and total hospitalisations and more community cases."

        https://www.thelancet.com/journals/lanwpc/article/PIIS2666-6065(21)00165-6/fulltext

        The return to normal is NOT around the corner. Traffic lights ahead for quite some time… More discussions needed?

        • Julian Richards 3.2.1.1

          "and a vaccine of 90/80% effectiveness" … Six months down the track %effectiveness NOT looking so good. Not tracking well, 'red light'. Guaranteed mandatory boosters for all, 'green light'. And so on?

          Thinking… 

          • Ad 3.2.1.1.1

            So let me see …

            – Lowest .5% worldwide per capita for COVID mortality

            – Lowest 1% worldwide per capital for COVID infections

            – Health system adequately managing the stress of a 1-in100 year event

            – Lowest unemployment rate and plummeting underutilisation rate in the OECD

            – Booming economy, simultaneously weaned off multiple bulk low quality exports

            – One of the most popular governments in the world

            – In short New Zealand's government (particularly for its size and capacity) has been for nearly two years the best managed in the world.

            Wherever your "thinking aloud" is going, I challenge you right now to show how your "thinking aloud" will deliver better results than that.

            • Julian Richards 3.2.1.1.1.1

              Your 'challenge' is little more than ego. No single person is holy right or has the golden ticket!

              This is why A.i will be so much better than humans at anything and everything, A.i works together to problem solve just as a super organism should! And humans have this capability, but compromise and corrupt on our accent to the dizzying economical hieghts of monetary 'success'.

              To qoute Wal-E "I don't want to survive, I want to live"

            • Julian Richards 3.2.1.1.1.2

              Emotions don't care for facts. As seen by your triumphant display.

  4. DS 4

    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).

    OK. There's a wee misunderstanding here. Ironically, it's (partly) the same misunderstanding advanced by the plaintiffs (see paragraphs 54-58 in the decision).

    For regulations and administrative decisions, you don't get to s6 and s4 of BORA. Basically, unless a statute has explicitly authorised unjustified BORA violations, subordinate decisions and orders made under that statute are thrown out under s5. Game over, unless the respondents can justify the infringement on rights. Which, in this case, they can, of course.

    Here, the plaintiffs were trying to get a reinterpretation of the Order under s6. But s6 doesn't apply to regulations and administrative decisions. It only applies to statutes themselves, and this case does not concern the primary statute, only the downstream Orders.

    Incidentally, if you can't reinterpret a statute to make it consistent with BORA, the statute is applied anyway under s4. There is no scope for courts overturning statutes, thank goodness.

  5. Foreign Waka 5

    You could add this for emphasis. I personally belief that people should have the right to chose but also the obligation to wear the consequences.

    https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-13-16

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