Education and health sector staff launch fresh High Court challenge to vaccination mandates

A group of education and health employees have returned to the High Court in Wellington to challenge the sectors' vaccination mandate. Photo / NZME

A legal challenge questioning the lawfulness of the Government's Covid-19 vaccination mandate for educators and health workers has begun at the High Court in Wellington, as a new group of anti-mandate protesters gathers in the capital to support the challenge.

The judicial review, brought to the court by New Zealand Teachers Speaking Out with Science (NZTSOS) and an affiliated group of doctors (NZDSOS), is seeking that High Court Justice Francis Cooke strike down the vaccination order, claiming the mandate breaches the Bill of Rights Act.

The group claims the vaccination mandate is not a "demonstrably justified" breach of the Bill of Rights, namely the right to decline medical treatment.

The High Court challenge also questions the usefulness of vaccination mandates in an Omicron environment, pointing to comments from some medical professionals suggesting that the variant's extreme transmissibility renders mandates unnecessary.

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The challenge to the vaccination order is the second brought to the High Court by the two groups - the first having been dismissed by High Court Justice Matthew Palmer in November.

Supporting the new challenge is a portfolio of 81 affidavits filed by teachers and health workers across the country - a number of whom have lost their jobs after refusing to be vaccinated.

This week's challenge is similar to that made by a group of Police and Defence Force employees, also in front of Justice Cooke. That group was last week successful in their claim that the mandate affecting that sector was an unjustified incursion on the Bill of Rights.

Both Police and the NZDF have since suspended all terminations of unvaccinated staff as a result of the decision.

Protesters supporting the challenge of education sector vaccination mandates gathered in Wellington on Thursday. Photo / Mike Scott

According to December figures, there are 1461 employees across all 20 district health boards who have been affected by the mandates. Some of those staff chose to resign, while 814 had their employment terminated.

But the number of staff affected in the education sector isn't clear, with school boards themselves holding information on affected staff, rather than the Ministry of Education.

Not every school responded to a Ministry survey that attempted to paint a more detailed picture on the scale of staff affected.

Acting for the applicants, lawyer Warren Pyke read the court a number of affidavits from affected education and health staff, including GPs, occupational therapists, and early childhood teachers, detailing the effect of the mandates.

A number of those who filed affidavits detailed that they would be comfortable to be tested daily if it meant they could return to work.

Others detailed the effect that the mandate had on patients - particularly those who lost their GP in the wake of terminations.

"People will lose their family doctor, people will lose their GP. Continuity of care is likely to be compromised," an affected employee submitted to the court.

Another affidavit detailed claims of multiple reactions to the first vaccine dose, leading to the person making a decision to not receive a second dose.

Pyke also told the court that the concept of vaccination mandates was summed up best by Prime Minister Jacinda Ardern herself, when she accepted in an interview with the Herald that the mandates created two classes of people.

"That is, with respect to the Honourable Prime Minister, an accurate observation. That is what it is."

While Thursday's hearing predominantly heard from lawyers acting for the applicants, it's expected representatives for Covid-19 Response Minister Chris Hipkins are to submit to the court tomorrow.

A large group of protesters gathered outside the Wellington Railway Station on Thursday morning, in support of the challenge.

With the High Court situated over the road from Parliament, the continued closure of Molesworth St meant protesters could not gather directly outside the court.

In a statement to Open Justice, a NZTSOS spokesperson said there are protests planned over the next five days, but assured the public they would be peaceful, unlike the violent conflict between police and protestors seen on Wednesday.

The challenge is expected to conclude on Monday.