Four Aviation Security Service Employees v Minister of COVID-19 Response

This summary is provided to assist in the understanding of the Court’s judgment. It does
not comprise part of the reasons for that judgment. The full judgment with reasons is the
only authoritative document. The full text of the judgment and reasons can be found at
www.courtsofnz.govt.nz

The High Court has dismissed the challenge advanced by four former Aviation Security
Service employees to the order made by the Minister of COVID-19 Response under the
COVID-19 Public Health Response Act 2020 requiring them to be vaccinated when
undertaking their border security functions.

Justice Cooke accepted that the applicants had proper arguments to be brought to the Court,
and emphasised the importance of their ability to do so in an environment where those
opposed to vaccination were liable to criticism. He also acknowledged that the applicants
had put themselves at risk as border workers for the benefit of the public, that they had now
lost their jobs, and that “they should not be thought of as any less committed to the
community than any other New Zealander”.

The Court nevertheless addressed and rejected the three main arguments as to why the order
was said to be unlawful.

Firstly the Court accepted that a requirement that border workers be vaccinated fell within the
Minister’s powers under the Act as they were measures that contributed, or were likely to
contribute to preventing the risk of an outbreak, or the spread of COVID-19. Justice Cooke
nevertheless noted that it was of some surprise that such an important aspect of the response
was implemented through an empowering provision which made no express reference at all
to vaccination. His Honour observed that significant measures of this kind would be better
suited to legislation that squarely addressed the issues. Justice Cooke further said that his
decision should not be interpreted as clearing a path for more extensive use of this power for
other circumstances.

Secondly the Court held that although the applicants’ fundamental right under the
New Zealand Bill of Rights Act 1990 to refuse medical treatment had been limited, doing so
was demonstrably justified. The evidence showed that the Pfizer vaccine was effective in
reducing symptomatic infection, serious illness and death. While the evidence was less
certain on whether the vaccine limited transmission, it suggested it was likely to do so and
that it was appropriate to take a precautionary approach given the seriousness of the harm
caused by the spread of COVID-19.

Finally, the Court rejected the applicants’ argument that the Minister had failed to take into
account relevant considerations, or made an irrational decision in implementing the Order.
Justice Cooke was “satisfied that the vaccine is safe and effective, is significantly beneficial
in preventing symptomatic infection of COVID-19 including the Delta variant, … it
significantly reduces serious illness, hospitalisation and death” and that “it is likely to
materially assist in preventing the risk of an outbreak or the spread of COVID-19 originating
from border workers having contact with potentially infected persons from overseas”.
The Court reserved the question of costs

Media: High Court