20 Sep 2021

Mandatory vaccination order under spotlight in High Court

5:46 pm on 20 September 2021

An employment advocate has told the High Court the mandatory vaccination order made under the Covid-19 Public Health Response Act was unlawful and went over and above what the Act ever intended.

18072016 Photo: Rebekah Parsons-King. Wellington High Court.

Photo: RNZ / Rebekah Parsons-King

Ashleigh Fechney has been granted leave to appear in court on behalf of her client - a Customs worker who was dismissed from her job for refusing to get vaccinated.

Fechney said the vaccination order was an abuse of power under section 11 of the Response Act and the orders for mandatory vaccination were never an intention of the Act.

"The orders are too wide and go too far... it was never intended that section 11 would allow this," she said.

"The applicant does not deny the efficacy of the vaccine, but the [order] goes beyond what is necessary."

Section 11 of the Act gives the Covid-19 Response Minister Chris Hipkins or Director-General of Health Dr Ashley Bloomfield the power to create orders, including the restriction of people's movement.

Fechney said there were protections in section 9 of the Act, and there was no way the minister could have been satisfied these were met when signing off on the order.

These included the provision the minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act.

Crown lawyer Austin Powell, acting for the Hipkins, said the Act allowed for "extraordinary power", but these were "extraordinary times".

There were effective checks and balances against that power, including section 9 and the right to judicial review, he said.

Fechney also argued her client should remain anonymous as the issue being raised was bigger than the worker's employment status and she did not want to become a part of the "anti-vax" movement.

The judicial review is being heard in the High Court in Wellington and has been set down for two days.

Justice Churchman has agreed to continue interim non-publication orders for the worker while the case is being heard, but said this would be reviewed.