Anti-mandate protesters in Napier. Photo / Paul Taylor
The Government has filed an appeal against a High Court decision that determined vaccine mandates imposed on the New Zealand Defence Force (NZDF) and police were an unjustified incursion on the Bill of Rights.
Crown Law and the Court of Appeal confirmed to the Herald this afternoon that an appeal has been filed.
"The Government has filed an appeal relating to the Yardley judgment on points of law," a Crown Law spokesperson said.
"The appeal is in no way an attempt to reverse the removal of mandates on the workforces covered by the Yardley decision and there is no intention to reinstate those mandates on those workforces."
The challenge, put forward by a group of Defence Force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees.
The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court.
Detective Senior Sergeant Ryan Yardley said the Crown's appeal notice stated even if it was a successful appeal, the outcome would have no effect on the revoked order of mandatory vaccinations.
He questioned the purpose of the appeal.
"The personal toll this entire process has taken on the affected officers and their families is beyond measure, and to have this process prolonged when there is no clear reason to do so, simply amplifies the serious harm that has already been caused."
NZDF employee Cherry Johnson said there has been no apology extended.
"No efforts have been made by NZDF to repair any of the damage caused. The Crown Law appeal shows no compassion to the people affected by the termination process, rather it feels like it supports ongoing discrimination and segregation."
Matthew Hague, counsel for the applicants, said the group was "saddened" by the Government's appeal.
"Rather than trying to save face, United We Stand encourages the Government to focus their resources on healing the divide that their policies have caused in our community."
Hague said the appeal is likely to be heard in the next three to six months.
The Yardley v Minister for Workplace Relations and Safety decision was released on February 25.
Justice Francis Cooke determined that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a "reasonably justified" breach of the Bill of Rights.
Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF chief people officer Brigadier Matthew Weston filed affidavits defending the mandate.
The judge said while it was clear the Government wasn't forcing Police and NZDF employees to get vaccinated against their will and they still had the right to refuse vaccination, the mandate presented an element of pressure.
"The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments," Justice Cooke stated.
Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act.
The court accepted vaccination had a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19.
"In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19.
"Indeed, health advice provided to the Government was that further mandates were not required to restrict the spread of Covid-19.
"I am not satisfied that continuity of these services is materially advanced by the order," the Judge said.