Ruling prompts inquiry calls

There was an interesting decision last week on the part of the Court of Appeal, which ruled – again – in favour of NZ Defence Force [NZDF] personnel who’ve been penalised – up to and including being discharged – for not being vaccinated against covid-19.

In his decision, Justice David Goddard ruled that the NZDF’s use of what is referred to as “mandatory retention reviews” had not been shown to be reasonably justifiable.

“It is, to that extent, inconsistent with the New Zealand Bill of Rights Act and unlawful,” he said.

The Court has now directed the Chief of Defence Force to reconsider its Temporary Defence Force Order regarding covid-19 vaccinations for personnel.

This isn’t a piece of post facto legality either, mind you – despite the last vaccine mandates having officially ended on September 26, 2022, the NZDF has discharged a couple of dozen Army, Navy, and Air Force personnel since then for declining ‘the jab’.

As such, Justice Goddard’s ruling isn’t about mandates per se, but about the NZDF’s ongoing prescriptive measures against covid vaccine refuseniks.

Or, to put it in somewhat simpler terms, what NZDF has been found to have done wrong is that the sanctions against personnel for not taking the covid-19 vaccine were harsher/out of whack compared to sanctions against personnel for not taking any of the other vaccines – for measles, for example – that those working for NZDF are required to take as part of their employment. As such, NZDF’s policy is in breach of the Bill of Rights, Section 11 of which says, “Everyone has the right to refuse to undergo any medical treatment” [although the Act also says these rights may be subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, NZDF failed to provide any such justification to the Court].

So just how significant is this ruling?

Well, it’s obviously good news for any NZDF personnel who aren’t keen on taking [or taking more of] the covid-19 vaccine but, beyond that, it certainly doesn’t appear to be a resounding repudiation of the vaccine mandates of the government of the time, or any other related policies.

However, the decision possibly indicates – as lawyer Stephen Franks has opined to independent media outlet The Platform – that “there’s no longer the hysteria about vax-resistant people” that was so evident in New Zealand just a few years ago [in Franks’ view, “the government as a whole was going way over the top against people resisting vaccination”].

Interestingly, the Court’s decision has been seized on by two of the current government’s coalition partners – NZ First and Act.

According to Winston Peters, “This ruling has significant ramifications for the current covid inquiry, not only highlighting the inadequate terms of reference that were previously created under the last government, but also the significant ramifications for the justification of all previous and remaining mandates in all workplaces.”

Act Justice and Health spokesman Todd Stephenson concurs, claiming it “demonstrates the need to open up the independent covid inquiry”, while arguing that “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”, and encouraging Kiwis to “to have their say on the covid inquiry at www.covid19inquiry.nz”.

And it would be a worthwhile exercise to get greater clarity about the rationales that underpinned this very recent episode in our country’s history – wouldn’t it?