Avsec Workers Lose High Court Covid-19 Challenge

November 11th, 2021 - Barbara Buckett

The High Court has dismissed the challenge of 4 former aviation security workers to the Covid -19 Order.

Whilst, recognizing the workers’ rights to challenge the legality of the order and the importance of doing so the court rejected their arguments that the order was unlawful.

In rejecting the challenge, the court made 3 main arguments supporting the lawfulness of the government’s actions.

  1. The requirement for vaccination was within the Minister’s power under the Act as they were measures that contributed or were likely to contribute to the prevention of risk of an outbreak or the spread of Covid- 19. In doing so the Court did express surprise that the Order itself made no mention of the word vaccination; that it had not “squarely addressed the issue it was tackling. However, the Court also cautioned that his observation was not to be interpreted as a pathway for more extensive use of the power in other circumstance.

  2. The Court held that although the applicants fundamental right under the Bill of rights 1990 to refuse medical treatment had been limited by the order the doing so was “demonstrably” justified. The evidence was that the Pfizer vaccine was effective in reducing infection serious illness and death. However, the Court did note that the evidence was less equivocal on the effectiveness on transmission but that the order was justified in this respect as a precautionary measure given the seriousness of the spread. 

  3. The Court rejected the argument that the Minister had failed to consider relevant consideration or made an irrational decision in implementing the order. The court said it 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, hospitalization and death” and that it is likely to material 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” 

Will this end the debate about mandatory vaccination, AKA (no job no jab)?

I doubt it! Challenges will still come although the grounds for such have been severely limited virtually obliterated by the High Court decisions. The public good approach is a significant hurdle. However the clue may lie in whether the vaccine remains the most beneficial way to reduce the covid risk.

Will this end the rights-based challenge?

I doubt it! Those against the intrusion into their right are firmly entrenched in their principles so much so that they are willing to sacrifice their jobs and livelihood. 

Challenges should come as the High Court acknowledged challenge is good. Unbridled power is an anathema to democracy. Challenges ensure that the rule of law is for the benefit of everyone.

Note: BuckettLaw takes no responsibility for the consequences of any actions taken on the basis of our articles. Any views expressed or comments made in an article are the writers option only. The content in our articles does not constitute legal advice. If you need legal or expert advice you should obtain specific advice about your case or matter from a professional. For legal advice based on your individual situation please contact us to speak with one of our expert lawyers.

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Barbara Buckett

Barbara Buckett is a highly experienced senior employment lawyer with over 35 years of practice in New Zealand. She provides expert advice on all areas of employment law and has a proven track record of delivering excellent results for clients. Barbara has extensive experience in resolving workplace issues and is an experienced litigator. In her free time, she enjoys reading, traveling, working out, and fine wine and dining with friends.

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