NZDSOS INC v MINISTER FOR COVID-19 RESPONSE [2022] NZHC 716

NZDSOS INC v MINISTER FOR COVID-19 RESPONSE [2022] NZHC 716 [8 April 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-595[2022] NZHC 716UNDER the Judicial Review Procedure Act 2016 andthe Declaratory Judgments Act 1908IN THE MATTER of the making and amendment of theCOVID-19 Public Health Response(Vaccinations) Order 2021 under s 11 of theCOVID-19 Public Health Response ActBETWEEN NZDSOS INCFirst ApplicantNZTSOS INCSecond ApplicantAND MINISTER FOR COVID-19 RESPONSEFirst RespondentDIRECTOR-GENERAL OF HEALTHSecond RespondentATTORNEY-GENERALThird RespondentHearing: 3, 4 and 7 March 2022Appearances: W C Pyke and N T C Batts for the First ApplicantS K Green for the Second ApplicantD Jones and R M McMenamin for the RespondentsJudgment: 8 April 2022JUDGMENT OF COOKE JTable of ContentsThe background [4]Nature of the claims [35]Is the s 11 right an absolute right? [40]The arguments [43]Assessment [46]Is the limit of the right by the Order demonstrably justified? [56]How the Bill of Rights directly controls the exercise of power [57]Framework for assessing justification [65]Justification for the health sector mandate [70]Justification for education sector mandate [77]The contested issues [83]The evaluation of the expert evidence [84]First Disputed Issue : Vaccine effectiveness in reducing transmission [94]Second Disputed Issue : Safety of the Pfizer vaccine [110]Third Disputed Issue : Adverse implications of mandate [120]Conclusions [130]Challenge to exemption criteria [145]Summary of the Court's conclusions [155][1] In this proceeding NZDSOS Inc, an incorporated society representing healthpractitioners who are opposed to vaccination (the first applicant), and NZTSOS, anincorporated society made up primarily of teachers and educators who are opposed tovaccination (the second applicant), challenge orders that were made under theCOVID-19 Public Health Response Act 2020 (the Act) imposing mandatoryvaccination for workers in the health and disability, and education sectors.[2] The challenges have been partly addressed at earlier hearings of the Court. Byjudgment dated 12 November 2021 Palmer J heard and dismissed the claim that therequirement to be vaccinated as established by the COVID-19 Public Health Response(Vaccinations) Order 2021 (the Order) was not within the empowering provisions ofthe Act.1 In addition, by judgment dated 12 November 2021 Palmer J dismissed anapplication for interim relief directed to the remaining claims.2 The remaining claims— including the claim that the Order is invalid as it is not a reasonable anddemonstrably justified limit of rights under the New Zealand Bill of Right Act 1990(the Bill of Rights) — were heard by me in March and are the subject of this judgment.1 Four Midwives, NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response [2021] NZHC3064.2 NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response [2021] NZHC 3071.[3] After the hearing before me the Prime Minister announced that the vaccinemandates imposed by the Order had been reviewed, and that a mandate would nolonger exist for education workers, and would potentially be narrowed for healthworkers. I will address the significance of that announcement below.The background[4] The COVID-19 global pandemic has given rise for the need for governmentsaround the world to introduce measures in an attempt to address its adverse effects. InNew Zealand this has led to an exercise of power by the executive government that isarguably unparalleled in New Zealand's history. Certainly the extent to which thegovernment has exercised control of what New Zealanders have been able to do intheir everyday lives extends well beyond any other exercise of power in livingmemory.[5] These circumstances put into stark focus the function of the Court. That is forat least two reasons. First, it is the constitutional role of the Court to ensure that theexercise of power by the executive remains within the bounds of the law. The rule oflaw underpins the legitimacy of democratic government. Secondly, the exercise ofextraordinary powers can be particularly significant for minority groups who opposethe measures introduced. That is so here as the applicants represent those who arestrongly opposed to vaccination, or at least mandatory vaccination. Yet vaccination,and mandatory vaccination have been regarded by the government as an integral partof the measures it has introduced in an attempt to minimise the harm caused by thepandemic.[6] It is accepted by the Crown that the measures imposed by the Order limit thefundamental rights of affected persons, including those represented by the applicants,particularly the right to refuse to undergo medical treatment as provided under s 11 ofthe Bill of Rights. As I will explain in greater detail below, the legality of the measuresintroduced by the Order then turn on whether they involve a reasonable limitprescribed by law as is demonstrably justified in a free and democratic society unders 5 of the Bill of Rights Act. It is the role of the Court to ensure that this stringent testis met.[7] The limitation on individual rights arising from executive orders did not beginwith the vaccination requirements, however. It began with the nationwide lockdownsimposed under the Health Act 1956 from March 2020. In July 2020 a full Court of theHigh Court was convened to hear a challenge brought to the legitimacy of thesemeasures in Borrowdale v Director-General of Health.3 By judgment dated 19 August2020 this challenge was largely dismissed. The full Court held, however, that the firstnine days of the lockdown were not lawfully imposed, and involved an unlawfullimitation of rights and freedoms. A declaration was made accordingly. That judgmentwas unsuccessfully appealed to the Court of Appeal.4[8] Whilst the lockdown limited rights and came at very considerable social andeconomic cost, history may judge it to have been highly successful. New Zealandmanaged to effectively eliminate the presence of COVID-19 at this stage. This is inpart because New Zealand communities were conscientious in acting for the greatergood by complying with the lockdown requirements. But a lockdown could not lastforever, and circumstances were quickly evolving. In Borrowdale the full Courtobserved that the exercise of powers to address the pandemic under existing legislationhad temporal limits, and that:5 When a public health crisis is ongoing, the democratic nature of ourconstitution means that there comes a point when Parliament ought to passbespoke legislation to ensure that critical policy decisions are made byordinary Cabinet decision-making. That is, in fact, exactly what happenedhere, when Parliament enacted the COVID-19 Public Health Response Act2020 on 13 May.[9] The Act was passed on 13 May 2020, with the Bill introduced only the daybefore.[10] The original form of the Act made no reference to vaccination, and it does notappear that measures including vaccination were contemplated on enactment. Novaccine had yet been developed, and neither does it appear to have been predicted bythe Act. That is apparent from the Attorney-General's report on the compliance of theproposed legislation with the Bill of Rights. The report dated 11 May 2020 made no3 Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864.4 Borrowdale v Director-General of Health [2021] NZCA 520.5 Borrowdale v Director-General of Health, above n 3, at [102].reference to compulsory vaccination, but did make reference to compulsory medicalexamination and testing, which was contemplated by the provisions, stating that theBill " does not require a person to undertake any particular ongoing form oftreatment. In this way, the Bill continues to preserve the scope of personal autonomyand bodily integrity as far as is possible while maintaining public health".6[11] Significant efforts were being made globally to find vaccines that wereeffective in preventing, or at least limiting COVID-19, however. A number of vaccineswere ultimately developed and along with many other countries New Zealand gaveapproval for their use and introduced a programme to make the vaccine available toNew Zealanders. A decision was made to primarily use the Comirnaty COVID-19vaccine, commonly referred to as the Pfizer vaccine, in New Zealand. Provisionalconsent for its use under the Medicines Act 1981 was given in February 2021.[12] This approval was challenged in the Court. In May 2021 Ellis J considered anapplication for interim relief in a judicial review challenge to the approval of thevaccine.7 As in Borrowdale a legal problem was identified. The Court accepted therequirement of s 23 of the Medicines Act that a provisional approval be for a "limitednumber of patients" did not appear to be satisfied as the vaccine was being rolled outfor all eligible adults. But Ellis J nevertheless concluded that the public and privaterepercussions militated against the grant of interim relief for a number of reasons,including that the vaccination programme was a key part of the country's plan to dealwith COVID-19.8 The application for interim relief was declined on that basis. Withina matter of days Parliament responded to the problem that the Court had identified bypassing amending legislation.9 Later in February this year Ellis J heard and dismisseda similar application directed to the Pfizer paediatric vaccine.10[13] During the period when the government considered using vaccination as ameasure to control an outbreak or spread of COVID-19 New Zealand remainedCOVID free. In March 2021 the Minister of COVID-19 Response decided that6 Hon Andrew Little "Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 PublicHealth Response Bill" (2020) at [33].7 Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107.8 At [71].9 Medicines Amendment Act 2021, s 23(1).10 MKD v Minister of Health [2022] NZHC 67.Cabinet should approve an amendment to the Act "so that it explicitly allows an orderto be made requiring specified high risk roles at the border only to be carried out byvaccinated workers and then issue an order under the Act".11 By April the positionhad changed and a decision was apparently made not to amend the Act before makingsuch an order. The view appears to have been taken that the provisions of the Act didnot need to be amended before such an order could be promulgated.[14] The Act was then used to implement what have come to be known as vaccinemandates. When the Order was first promulgated it only imposed a mandate on borderworkers. The first version came into effect on 30 April 2021, as later amended in July2021.[15] Once again the legality of the implementation of such measures was challengedbefore the Courts. The first challenge was heard by Churchman J in September 2021.In GF v Minister for COVID-19 Response he rejected arguments that the Order wasultra vires and/or irrational.12 When doing so Churchman J referred to the views ofthe European Court of Human Rights in Vavricka and Ors v The Czech Republic inrelation to mandatory vaccination of children attending pre-school facilities.13 Thatdecision did not concern vaccines developed to respond to COVID-19 butvaccinations against other infectious diseases. It nevertheless had significance. TheCourt held that such measures did not infringe against the rights under the EuropeanConvention. The European Court said:14The Court accepts that the exclusion of the applicants from pre-school meantthe loss of an important opportunity for these young children to develop theirpersonalities and to begin to acquire important social and learning skills in aformative pedagogical environment. However, that was the directconsequence of the choice made by their respective parents to decline tocomply with a legal duty, the purpose of which is to protect health, inparticular in that age group. As stated by the respondent Government, and bysome of the intervening Governments, who rely on extensive scientificevidence early childhood is the optimum time for vaccination. Moreover,the possibility of attendance at pre-school of children who cannot bevaccinated for medical reasons depends on a very high rate of vaccinationamongst other children against contagious diseases. The Court considers thatit cannot be regarded as disproportionate for a State to require those for whom11 See Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC3012 at [18].12 GF v Minister for COVID-19 Response [2021] NZHC 2526.13 Vavricka and Ors v The Czech Republic ECHR 47621/13, 8 April 2021.14 At [306].vaccination represents a remote risk to health to accept this universallypractice protective measure, as a matter of legal duty and in the name of socialsolidarity, for the sake of the small number of vulnerable children who areunable to benefit from vaccination. In the view of the Court, it was validlyand legitimately open to the Czech legislature to make this choice, which isfully consistent with the rationale of protecting the health of the population.The notional availability of less intrusive means to achieve this purpose, assuggested by the applicants, does not detract from this finding.[16] In October I then considered a further challenge brought by border workers inFour Aviation Security Service Employees v Minister of COVID-19 Response.15 Bythat stage circumstances had further evolved. The new Delta variant of COVID-19had emerged, and there was a fresh outbreak of that variant in Auckland leading tofurther lockdowns being employed in the Auckland region. I dismissed two keychallenges: the first that the vaccine mandates implemented by the Order was ultravires, and secondly that the mandates imposed a limit on the right to refuse medicaltreatment that was not reasonable and demonstrably justified in a free and democraticsociety. When doing so I said:16There is a last point of significance. This case concerns the measure that wasintroduced when New Zealand had eradicated the virus after the first outbreak,and was seeking to prevent a further outbreak (or delay a further outbreak untila greater proportion of the population is vaccinated, means of treating andmanaging the virus are better known, and the health system is better organisedto address such an outbreak). Since that time it is a matter of judicial noticethat an outbreak has occurred in Auckland, and that COVID-19 is spreading.It does not appear that this outbreak can be eliminated, reflecting the greatertransmissibility of the Delta variant. Whether the challenged measure wouldremain demonstrably justified on the basis that it contributes to addressing thespread of the virus in circumstances when the virus is endemic in at least partsof New Zealand is an open question. This question is not before me. I notethat under s 14(5) of the Act the Minister and Director-General are obliged tokeep their COVID-19 orders under review.I also note that given the uncertainties about the effect of the vaccine inreducing transmission it remains surprising that vaccination measures of thiskind have not been addressed in primary legislation. There are limits on thelegitimate use of generally expressed powers for measures that have verysignificant impacts, including impacts that involve limitation of fundamentalrights, in order to implement key national policies.[17] In the meantime the government was reacting to the need to respond to theDelta variant. The Minister of COVID-19 Response, the Honourable ChristopherHipkins explains that in October 2021 Cabinet decided to move from an elimination15 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11.16 At [128] and [129].strategy to a strategy of minimisation and protection. This contemplated an expansionof the vaccine mandates so that they were not solely directed to the places where thevirus might enter New Zealand as was the case with border workers, but to otherworkplaces as part of a strategy to minimise its spread and the harm that it could cause.As early as August work had begun on developing a vaccine mandate in the health anddisability sector and this carried through September and early October. The Ministerexplains that similar work had taken place in the education sector, mainly in October,and in connection with the perceived need to get children affected by localisedlockdowns back into the school environment.[18] A decision was then made by Cabinet on 11 October to proceed with suchmandates, and the Minister then signed the order on 22 October 2021. It wasintroduced by amendment to the original Order through the COVID-19 Public HealthResponse (Vaccination) Amendment Order (No 3) 2021 (2021/325) with effect from25 October. This extended the Order previously made in relation to border workersso that it covered the health, disability and education sector workers. Clause 7 of theOrder, made under s 9 of the Act, materially provided:Duty of affected person not to carry out certain workAn affected person must not carry out certain work unless they are –(a) vaccinated; or(b) an exempt person.[19] The affected persons are identified by the definitions in s 4 and by sch 2.Schedule 2 was amended to include the following two groups:Part 7: Groups in relation to health and disability sector7.1 Health practitioners providing health services to patients in person7.2 Workers who carry out work where health services are provided tomembers of the public by 1 or more health practitioners and whoserole involves being within 2 metres or less of a health practitioner ora member of the public for a period of 15 minutes or more7.3 Workers who are employed or engaged by certified providers andcarry out work at the premises at which health care services areprovided7.4 Care and support workersPart 9: Groups in relation to affected education services9.1 Workers over the age of 12 years who carry out work at or for anaffected education service (including as a volunteer or an unpaidworker) and who—(a) may have contact with children or students in the course ofcarrying out that work; or(b) will be present at the affected education service at a time whenchildren or students are also present9.2 Providers of a home-based education and care service[20] At this stage the definition of "vaccinated" required all the doses of theCOVID-19 vaccine in sch 3 to be administered, which effectively mandated two dosesof the Pfizer vaccine for most persons. Clause 7 was later amended in January 2022to require a booster dose of the vaccine.17[21] It is important not to view these measures in isolation, as they were part of anoverall framework for responding to COVID-19. On 30 November the Ministerpromulgated the COVID-19 Public Health Response (Protection Framework) Order2021 establishing other measures including mask wearing, restrictions on gatheringsize, and the use of vaccine passes at various settings. These can be understood tomandate other measures relevant to an overall regime for controlling COVID-19.They formed an important part of the controls in place, including at schools, hospitalsand other similar places.[22] In November 2021 Palmer J heard the first part of the challenges advanced inthis proceeding along with a challenge brought by four midwives. He addressedwhether such vaccine mandates were within the empowering provisions in ss 9 and 11of the Act. Although the reasoning in Four Midwives, NZDSOS and NZTSOS isslightly different from that which I followed in Four Aviation Security ServiceEmployees Palmer J reached the same conclusion that the measures were contemplated17 By cl 11, COVID-19 Public Health Response (Vaccinations) Amendment Order 2022. See [106]below.by the empowering provisions. He did not see a need to read down those provisionsin light of the Bill of Rights Act. As he put it:18The s 6 interpretive direction requires, as far as possible, legislation to beinterpreted consistently with the Bill of Rights. That requires reference to boththe relevant right or freedom and to whether the limit is justified. The right torefuse to undergo medical treatment under s 11 of the Bill of Rights is engagedhere. No order can be made under the empowering provision that limits theright unless it is reasonable, prescribed by law and can be demonstrablyjustified in a free and democratic society under s 5 of the Bill of Rights. If alimit in an order is so justified, s 6 does not require the usual purposiveinterpretation of the empowering provision to be narrowed to mean the orderis outside its scope. That is the substantive position reached by the SupremeCourt in Hansen and New Health New Zealand. It is not contradicted by theother cases referred to. It is consistent with bringing the full, balanced effectof the Bill of Rights to bear holistically on the interpretation of legislation.[23] For this reason the key issue becomes whether the vaccine mandates arereasonable and a demonstrably justified limit on Bill of Rights rights.[24] The Act was also amended at this stage. The first amendments were made bythe COVID-19 Public Health Response Amendment Act 2021 on 19 November 2021.The second were made by the COVID-19 Response (Vaccinations) Legislation Act2021 on 25 November 2021. Although neither set of amendments had been madewhen the Order challenged in this case was promulgated, they involved materialchanges to the overall scheme of the Act and the orders made under it. The first set ofamendments added a series of additional purposes for which orders could be madeunder s 11 although these were not focused on vaccination. They also rearranged s 11.The new s 11(1) now provided:(1) The Minister or the Director-General may, in accordance with section9 or 10 (as the case may be), make an order under this section for 1 ormore of the following purposes:(i) To require persons to refrain from taking any specified actionsor to take any specified actions, or comply with any specifiedmeasures, so as to contribute or be likely to contribute to eitheror both of the following:(i) preventing, containing, reducing, controlling, managing,eliminating, or limiting the risk of the outbreak or spreadof COVID-19:18 Four Midwives, NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response, above n 1, at[50].(ii) avoiding, mitigating, or remedying the actual or potentialadverse public health effects of the outbreak of COVID-19 (whether direct or indirect):[25] The new s 11(1)(b) then gave a list of examples of orders that could be madeunder (a) and new detailed provisions were added in s 11(1)(c)–(g). The second set ofamendments added a series of powers that were focused on vaccination. They alsointroduced a new power in s 11AA of the Act. This was a power that could beexercised to introduce vaccine mandates for purposes other than those outlined in s 11.This power was available to the Minister of Workplace Relations and Safety ratherthan the Minister of COVID-19 Response.[26] These two sets of amendments can perhaps be taken to respond to the viewsexpressed in Four Aviation Security Service Employees and Four Midwifes thatlegislation be passed to directly authorise vaccine mandates, albeit that they did sosomewhat obliquely.19[27] The new power in s 11AA was then exercised to introduce vaccine mandatesfor the New Zealand Police and the New Zealand Defence Forces. These mandateswere not introduced to prevent the spread of COVID-19, but to ensure the continuityof the public services provided by the Police and Defence Forces given the risk ofabsenteeism caused by the pandemic. In February this year I heard and then upheld achallenge to these orders in Yardley v Minister for Workplace Relations and Safety.20By that stage the Omicron variant of COVID-19 had emerged. I held that the limit onfundamental rights, particularly the right to refuse to undergo medical treatment, hadnot been demonstrably justified. Whilst COVID-19, particularly its more infectiousDelta and Omicron variants, posed a threat to the continuity of those workforces I wasnot persuaded that greater continuity of those services was secured by the mandate.The very high rates of vaccination arising from the existing vaccination policiesapplicable to those workforces, and the very small number of employees affected bythe order when it was introduced, meant that the Crown had failed to show that themeasure was demonstrably justified in a free and democratic society.19 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11; FourMidwives, NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response, above n 1, at [74]-[75].20 Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291.[28] This decision also referred to the potentially significant change incircumstances arising from the Omicron variant of COVID-19 in particular. Omicronappeared to be a much more transmissible variant of the virus, albeit with whatappeared to be more moderate effects for most of those who contracted the illness.Moreover questions were arising on the continued effectiveness of vaccination tomeaningfully control the spread of the virus.21[29] It was in these circumstances that I heard this challenge in early March. Theevidence filed by the parties sought, at least to some extent, to keep apace with therapidly developing circumstances, but it was not possible to do so comprehensively.This has implications for the present challenge, for the reasons I will explain below.[30] The Minister explained in his affidavit of 3 March that the vaccine mandatesestablished by the Order were subject to review. He also said that advice had beencommissioned from the Strategic COVID-19 Public Health Advisory Group chairedby Professor Sir David Skegg. Following the hearing of this challenge the PrimeMinister made an announcement at a press conference on 23 March. She said that thevaccine mandate for the education sector would be revoked, and that the scope of themandate for the health and disability sector would be reviewed and potentiallynarrowed. Counsel for the respondents have subsequently filed a memorandum dated29 March confirming that the Prime Minister's statement represents the position of theCrown in this proceeding quoting the Prime Minister's words at the press conferenceconcerning vaccine mandates in the following terms:As vaccination rates increased, we reached out to Professor David Skegg andthe Public Health Advisory Group for his advice on their future use. Theiradvice was clear, stating: "The case for or against is now more finely balancedbecause of our relatively high vaccination coverage and increasing naturalimmunity, as well as the apparent lowering of vaccine effectiveness againsttransmission of the Omicron variant. While vaccination remains criticallyimportant in protecting New Zealanders from Covid-19, we believe thatseveral of the vaccine mandates could be dropped once the Omicron peak haspassed". [The Prime Minister having indicated that it was anticipated that itwould have passed by around 5 April] And so, on that basis and in line withthe Public Health Advisory Group advice, the Government will not requiremandates to be in place for education, police, and defence workforces andthose businesses operating vaccine passes, from 11.59 p.m. Monday, 4 April.Whether or not these workplaces will continue to need to be vaccinated to do21 At [91].their work will be a decision for their employers or those otherwiseresponsible for those workforces.[31] The memorandum advised that this decision had been made by Cabinet on21 March and that "at the same meeting, Cabinet also decided that the vaccinationmandate for health and disability workers should remain in place but considerationwill be given as to whether its ambit should now be narrowed".[32] In a memorandum of counsel for the second applicant dated 24 March(following the Prime Minister's announcement) counsel for the second applicantraised a number of matters, including that the second applicant wished to continuewith its claims, including the claim that the right to be free from medical treatmentwas an absolute right.[33] As I see it the second applicant's claims should still be determined, includingbecause of the potential for relief being granted by the Court that may have an impacton existing employment issues.[34] The impact of the announcements is less significant on the claim by the firstapplicant, but still important as it is a formal record of the Crown's view that the scopeof the vaccine mandate in that sector needs to be reviewed.Nature of the claims[35] Although there are additional matters of detail that I will address later below,the arguments advanced by each of the applicants involve three, or possibly four maingrounds of challenge:(a) that the right to refuse medical treatment affirmed by s 11 of the Bill ofRights is an absolute right not subject to any limitations under s 5, andthe Order ought to be set aside as invalid;(b) that the Crown cannot, or can no longer show that the Order involved areasonably limit on this right that is demonstrably justified in a free anddemocratic society in accordance with s 5;(c) that the Order is unreasonable and/or irrational and ought to be setaside. This argument is likely subsumed within (b) above;(d) that the exemption criteria are unreasonable, irrational or being appliedoverly rigidly and the Order ought to be set aside, or other appropriaterelief granted as a consequence.[36] A large number of affidavits have been filed by the applicants. A number ofhealth professionals, including doctors and dentists, have given evidence describingtheir objection to the vaccine mandate, the reasons why they do not wish to bevaccinated, and the adverse impact upon them arising from the mandate. A number ofaffidavits from experts have also been filed, including from:(a) Associate Professor Byram Bridle (an immunologist and virologist atthe University of Guelph, Ontario);(b) Professor Nikolai Petrovsky (a specialist in vaccine relatedimmunology and vaccine developer of Flinders University, SouthAustralia);(c) Professor Norman Fenton (a Professor of Risk InformationManagement at the University of London); and(d) Dr Geoffrey Cramp (the Medical Officer of Health of the WaikatoDistrict Health Board).[37] Their evidence is particularly relevant to the arguments directed to whethermandatory vaccination is demonstrably justified, although it may have indirectrelevance to the other claims. I did not understand that Professor Fenton's evidence,which is of more limited scope, was a particular focus of the applicants' arguments.[38] A very large number of affidavits have been filed by teachers and othereducation workers. These affidavits explain the individual circumstances affectingparticular teachers, their schools or education centres, and the affected communities.This evidence attempts to address the position of each education region ofNew Zealand. It also explains the reasons why particular education workers do notwish to be vaccinated, and the adverse impacts of the vaccine mandate for them, andfor associated communities. The second applicant also relies on the expert evidencefiled by the first applicant. The second applicant generally advances claims fallingwithin the same categories described above, although there are additional elements toconsider.[39] The respondents rely on affidavits from the Minister for COVID-19 Response,Dr Ashley Bloomfield (the Director-General of Health), Dr Ian Town (the Ministry ofHealth's Chief Science Advisor), Ms Rachel McKay (the Group Manager ofOperations and the National Immunisation Programme, Ministry of Health) andMs Helen Hurst (Head of COVID-19 Response within the Ministry of Education).Is the s 11 right an absolute right?[40] I deal first with the argument advanced by Mr Pyke, supported by Ms Green,that the right in s 11 is absolute and not capable of justified limitation in accordancewith s 5 of the Bill of Rights. Section 11 provides:11 Right to refuse to undergo medical treatmentEveryone has the right to refuse to undergo any medical treatment.[41] There are two preliminary points emerging from Mr Pyke's arguments. First,the applicants sought a declaration of inconsistency as part of the relief arising fromthis ground of challenge. Such relief would not have been apposite. Declarations ofinconsistency are relevant only when it is the legislation itself which is inconsistentwith the Bill of Rights. Here the Act itself does not impose a vaccine mandate. Themandate is imposed by subordinate orders made under its provisions. For the reasonsI explain more fully below, if an order is inconsistent with the Bill of Rights, includingfollowing any relevant justified limitation enquiry under s 5, then it is unlawful andcan be set aside.[42] Secondly, Mr Pyke noted that his argument might also be relevant to the firstground of challenge already addressed by Palmer J, and possibly on appeal againstthat decision. There may be a basis for that view based on the dissenting judgment ofElias CJ in New Health New Zealand Inc v South Taranaki District Council.22 But Irespectfully see the argument as falling more comfortably within this part of thechallenge. If the applicants are right and the s 11 right cannot be subject to limitsbecause of the nature of that right then the Order should be set aside as unlawfulsubordinate legislation. Moreover the argument for an absolute right may be rejected,but an argument that it is a right subject to only very confined limits may be accepted.The scope of any limitations are most appropriately dealt with in this phase of the case.The arguments[43] Both Mr Pyke and Ms Green argued that the right in s 11 was absolute.Mr Pyke pointed out that in international human rights instruments it is a right thatmore frequently forms part of the right to be free from torture, or cruel or inhumantreatment, which is incorporated under s 9 of the Bill of Rights.23 He argued that s 11had the same status as the right in s 9, and that the analysis of the Supreme Court inFitzgerald v R based on earlier authority that no limitation of the s 9 right could ariseapplied equally to the s 11 right.24[44] Mr Pyke also referred to international jurisprudence recognising that the rightto refuse medical treatment was a corollary of informed consent, and that it had itsroots in the notions of self-determination and the inherent dignity of the humanbeing.25 These sentiments are also reflected in New Zealand law, including in ss 6 and7 of Health and Disability Commissioner (Code of Health and Disability ServicesConsumers' Rights) Regulations 1996, and the ethical codes for health practitioners.It was also a concept generally contemplated as a fundamental one in medical health,reflected in the Universal Declaration on Bioethics and Human Rights referred to inDr Cramp's evidence.26 He relied on the judgment of Pankhurst J in Corrections v All22 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR948.23 For example International Covenant on Civil and Political Rights 999 UNTS 171 (opened forsignature 16 December 1966, entered into force 23 March 1976), art 7; see also Charter of HumanRights and Responsibilities Act 2006, s 10.24 Fitzgerald v R [2021] NZSC 131, (2021) 12 HRNZ 739 at [160].25 Airedale HS Trust v Bland [1993] AC 789 (HL); BST Holdings v Occupational Safety and HealthAdministration, United States Court of Appeals for the fifth circuit, No 21-60845, 12 November2021.26 The United Nations Education Scientific and Cultural Organisation (UNESCO) UniversalDeclaration on Bioethics and Human Rights SHS/EST/BIO/06/1, SHS.2006/WS/14 (October2005).Means All in which the Court declined to give a declaration that prison authoritiescould force a prisoner on hunger strike to receive medical treatment in the form ofhydration and nutrition given the fundamental importance of the right in s 11.27Pankhurst J indicated he was not persuaded that a justification existed to limit theprisoner's right in s 11. In doing so he said:28It seems to me that New Zealand has plotted its own course, at least in termsof the emphasis it has accorded to informed consent. Counsel's researchersrevealed no other country which has a provision equivalent to s 11, enshriningthe right to refuse medical treatment. In consequence, cases in otherjurisdictions which have had to consider this very issue do so, not by referenceto an express provision of their constitution or charter, but by reference toother more general of their fundamental rights.[45] In her supporting submissions Ms Green referred to what she called "culturalafront" arising from the vaccine mandate. Included within that argument was relianceon principles of tikanga, including that of personal tapu, which recognised that theconcepts of personal self-determination and mana were of high importance.29Assessment[46] I do not accept the arguments for the applicants. In my view the right in s 11can be subject to demonstrably justified limits.[47] There is no support for the proposition that a right to be free from medicaltreatment is an absolute right in the international material provided to me. Indeed, asindicated, the European Court of Human Rights has recently upheld a requirement forthose attending early education centres to be vaccinated against other illnesses for theprotection of others in Vavricka and Ors v The Czech Republic.30[48] New Zealand separated out this right from the other associated rights whenenacting the Bill of Rights. As Pankhurst J indicated in All Means All, New Zealandthereby charted its own path in separating out a right to refuse medical treatment. Inother human rights instruments this right is subsumed within other more generally27 Corrections v All Means All [2014] NZHC 1433, [2014] 3 NZLR 404.28 At [46].29 See Hirini Moko Living by Māori Values – Tikanga Māori (Huia Publishers, Wellington, 2003) at[49]–[51].30 Vavricka and Ors v The Czech Republic, above n 13.expressed rights. In so doing the Bill of Rights distinguishes this right from the rightnot to be deprived of life (in s 8), the right not to be subject to torture or cruel treatment(in s 9) and the right not to be subjected to medical or scientific experimentation (ins 10). The rights in ss 8–10 can be seen as more absolute in character, as the SupremeCourt has recently reiterated with respect to s 9 in R v Fitzgerald. But although theright in s 11 can be seen as belonging to the same family of rights, its separation outfrom the other rights, particularly the right to be free from medical or scientificexperimentation in s 10, has significance. When proposing a separate right in whatwas to become s 11 the authors of the White Paper said:31This provision has no equivalent in the International Covenant, nor in anyother international human rights instrument. It enacts as a general principlethat everyone has the right to refuse to undergo any medical treatment. Thisright is of course subject to Article 3, but it is anticipated that this would permitpersons to be treated against their will only where this is necessary to protectthe health and safety of other persons, and not simply where their refusal oftreatment will detrimentally affect their own health. [49] The fact the authors were of the view that the right was "of course" subject towhat is now s 5 is significant. By comparison the right reflected in what is now s 10was not noted by the authors as being subject to s 5.32 In Four Aviation SecurityService Employees I rejected the argument that the vaccine mandate limited the rightin s 10.33[50] The view that the right in s 11 can be subject to demonstrably justified limitswas also determined by the majority of the Supreme Court in New Health.34 HereO'Regan and Ellen France JJ found that the right to be free from medical treatmentwas limited by the fluoridation of water supplies, but concluded that this limitationwas demonstrably justified in a free and democratic society under s 5.35 GlazebrookJ agreed with this conceptual framework, but declined to address the question ofjustification under s 5 on the facts as it could depend on local conditions.36 The twodissenting judgments did not directly address this question — Elias CJ concluded that31 Geoffrey Palmer A Bill of Rights for New Zealand: A White Paper [1984–1985] 1 AJHR A6 at[10.166].32 At [10.164]–[10.165].33 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11, at [31]–[36].34 New Health New Zealand Inc v South Taranaki District Council, above n 22.35 At [101]–[144].36 At [176].fluoridation could not be imposed by subordinate legislation at all in the absence ofmuch clearer legislation, and William Young J concluded that the right to refusemedical treatment was not engaged by the fluoridation of water supplies.[51] The decision in New Health is accordingly in direct conflict with theapplicants' submission. The majority found that the s 11 right could be subject to s 5limits. I am bound by that decision. It is also inconsistent with my two previousjudgments in Four Aviation Security Service Employees and Yardley,37 and withChurchman J's judgment in GF v Minister for COVID-19 Response.38[52] That justified limits on the right in s 11 can arise is demonstrated by the currentcircumstances. The Crown properly acknowledges the right in s 11 is being limitedby the Order. But the affected workers are not being literally compelled to receive amedical treatment. They are not being physically restrained and inoculated. Bycontrast in All Means All the authorities sought to so compulsorily treat a prisoner.The workers here are being subject to considerable economic and social pressure toeither accept vaccination or face dismissal from their employment. But they still havethe right to decline. As I indicated in Yardley the pressure must be regarded asconsiderable partly because the right to retain existing employment is also one ofsignificance recognised in domestic law, and reflected in international instruments.39That right is also being limited by the Order as a consequence. The limitation arisesfor a public benefit of a similar kind to that recognised by the European Court inVavricka.40 This seems to me to be the kind of potential limitation of the s 11 rightthat the authors of the White Paper foreshadowed.[53] What the argument advanced by the applicants does support, however, is theview that the right in s 11 is well recognised in both legal and medical terms as beingfundamental. It is associated not only with the concept of personal autonomy that isat the heart of the relationship between the state and the individual, but also the conceptof informed consent that is deeply embedded in the principles of medical ethics and37 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11 andYardley v Minister for Workplace Relations and Safety, above n 20.38 GF v Minister for COVID-19 Response, above n 12.39 At [44]–[46].40 Vavricka and Ors v The Czech Republic, above n 13.practice. It is true that the vaccinators involved in the nationwide vaccinationprogramme should still have observed the principles of informed consent whenadministering the vaccine. But the pressure created by the mandates, and the generalcircumstances, have plainly reduced the significance that is otherwise so stronglyplaced on informed consent. I have sympathy for some of the views expressed by theapplicants' experts about this in that context.[54] What this means is that there is a very significant evidential burden placed onthe Crown to demonstrate that the measures implemented by the Order are reasonable,and demonstrably justified in a free and democratic society. I nevertheless remain ofthe view that this case turns on the question of justified limits, just as it did for FourAviation Security Service Employees and Yardley.[55] Before turning to that question I note there was some reference to other rightsin the materials before the Court. But they have not been the focus of argument, andI do not address them as any relevance they may have will not likely change theoutcome of this proceeding.Is the limit of the right by the Order demonstrably justified?[56] I accordingly turn to what I again apprehend to be the key issue in this case —whether the limitation of the right under s 11 of the Bill of Rights is demonstrablyjustified in a free and democratic society under s 5. In order to do so I need to considera number of matters.How the Bill of Rights directly controls the exercise of power[57] I begin by reiterating the line of analysis followed in Four Aviation SecurityService Employees, Yardley and also by Palmer J in the first stage of the present caseexplaining why the legality of the Order depends on the question of justified limitationunder s 5. The parties did not advance submissions disagreeing with the analysisundertaken in those cases, but I set it out for reasons of transparency.[58] In a line of cases beginning with Drew v Attorney-General through to NewHealth New Zealand Inc the Supreme Court and Court of Appeal have held thatsubordinate legislation that is inconsistent with the Bill of Rights cannot bepromulgated in the absence of an express provision in the empowering legislation.41If Parliament intends to authorise the making of regulations or other orders that are inconflict with fundamental rights then it needs to do so expressly and unambiguously.Otherwise this is treated as an inherent limit on the power to create that subordinatelegislation. As I said in Four Aviation Security Service Employees it is as if theempowering provision here expressly stated "provided that no order can be made thatis inconsistent with the New Zealand Bill of Rights Act 1990".42[59] There is clearly no legislative intention here to authorise orders in conflict withthe Bill of Rights. That is shown by a number of the provisions of the Act, mostnotably s 9(1)(a) which requires the Minister for COVID-19 Response to assess andconclude that an order made does not limit, or is a justified limit on the rights in theBill of Rights.[60] The fact that the Minister must reach that conclusion provides an additionallevel of protection. But it does not replace the requirement that an order be consistentwith the Bill of Rights. The Minister must ask and answer this question. TheMinister's decision can be challenged on what can be described as conventionaljudicial review grounds — for example that he had not asked himself the rightquestions, failed to consider the mandatory relevant considerations, or took intoaccount irrelevant considerations.43 But the additional prerequisite for the lawfulexercise of power — that the Order is consistent with the Bill of Rights — is a further,objective, requirement. It necessitates an assessment by the Court. The Court mustconsider whether the measures imposed by the Order limit the rights in the Bill ofRights and, if they do, whether that limit is demonstrably justified under s 5. In thepresent case the acknowledgement by the Crown that the measures in the Order limitthe s 11 right means that the question of the legality of the Order depends on whetherthat limitation is demonstrably justified under s 5.41 Drew v Attorney-General [2002] 1 NZLR 58 (CA); Cropp v Judicial Committee [2008] NZSC 46,[2008] 3 NZLR 774; Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289;Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745; and New Health New ZealandInc v South Taranaki District Council, above n 22 at [294]–[297].42 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11, at [56].43 These types of challenges were advanced, and dismissed, in GF v Minister for COVID-19Response, above n 12 at [95]–[127], and Four Aviation Security Service Employees v Minister ofCOVID-19 Response, above n 11, at [130]–[142].[61] This kind of challenge is accordingly different from most judicial reviewchallenges as it involves less focus on the reasoning of the decision-maker. Here thequestion is whether the measures implemented by the Order are lawful, and thisdepends on the Court's assessment on whether the Crown has established that thelimitation of rights involved is demonstrably justified in a free and democratic societyunder s 5. It is still ultimately a challenge to a decision but with less focus on thereasoning of the decision-maker at the time. It is not so much the decision that is beingscrutinised as the measure itself.[62] Neither is the Court limited to assessing the matters that were before theMinister of COVID-19 Response when he signed the Order. The Crown is expectedto file evidence, and advance submissions, directed to whether the measure in theOrder is demonstrably justified. That is so whether or not they were before theMinister at the time. It is partly for this reason that I see reduced room for the conceptof deference.44 Strictly speaking there is nobody to defer to as it is the measure itself,rather than the decision implementing it, that must meet the standards set by the Billof Rights.[63] In addition, the Court is not inherently confined to the circumstances inexistence at the time the Order was made. If there are developments since that timethat mean that the Order is no longer demonstrably justified then the Court wouldlikely be obliged to make that finding and set it aside. That is a consequence of theconstitutional nature of review in this kind of case.45 The circumstances here are veryfast moving, and it is part of the applicants' challenge that the developments in relationto Omicron in particular mean the mandate is not, or is no longer justified. Indeed theCrown itself has now revoked one of the mandates relevant to these proceedings, andannounced it is reviewing the scope of the other, as a consequence of thesedevelopments.[64] But whilst the Court is not confined to the circumstances at the time the Orderwas made, it is also not possible for the Court to review matters contemporaneously.44 See Yardley v Minister for Workplace Relations and Safety, above n 20 at [61]–[64]; and FourAviation Security Service Employees v Minister of COVID-19 Response, above n 11, at [80]–[86].45 See M Ponomarenko Changed Circumstances and Judicial Review (2014) 89 NYULR Rev. 1419;and Yardley v Minister for Workplace Relations and Safety, above n 20, at [80].The inherent nature of Court proceedings, and the requirements for proceduralfairness, will mean that the Court can only take into account developments that can beaddressed in a procedurally fair manner. There are also limits on the Court's ability tomake findings on contested matters that may be important to the question of whetherthe measures are demonstrably justified. I will return to this important issue againbelow.Framework for assessing justification[65] I turn next to explain how the Court addresses whether the measures here areor are not demonstrably justified.[66] The existence of a separate justified limitations provision in s 5 of the Bill ofRights is unusual in international terms. A similar provision exists in the CanadianCharter, but most human rights instruments are not structured in this way. Thisstructure has the advantage of creating greater simplicity as there is no need to interpretrights in a manner that caters for such limitations. Overseas authorities need to beconsidered with care given this distinctive feature of the New Zealand regime.46[67] The approach to assessing justified limits under s 5 has traditionally involvedthe steps described by Tipping J in R v Hansen which in turn applied the approach ofthe Supreme Court of Canada in R v Oakes.47 This involves addressing the followingquestions:48(a) Does the limiting measure serve a purpose sufficiently important tojustify the limitation of the right or freedom?(b) Do the means chosen to achieve that objective pass a proportionalitytest, namely:(i) is the limiting measure rationally connected with its purpose?46 See A & P Butler The New Zealand Bill of Rights Act – A Commentary (2nd ed, LexisNexis NZLtd, Wellington 2015) at [6.22].47 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [108]-[111]; R v Oakes [1986] 1 SCR 103.48 R v Hansen, above n 47, at [64]; R v Chaulk [1990] 3 SCR 1303 at pp 1335 – 1336.(ii) does the limiting measure impair the right or freedom no morethan is reasonably necessary or sufficient achievement of thatpurpose?(iii) is the limit in due proportion to the importance of the objective?[68] This should not be applied as a rigid test, however. Rather it is a frameworkfor assessing whether the measure is demonstrably justified in a free and democraticsociety. Many of these questions seem to me to shade into one another. And theparticular circumstances before the Court may warrant a line of analysis that is notparticularly emphasised by the above steps. What is required is careful scrutiny of thejustification for the measure in question. Or as I put it to Mr Jones in argument, theCourt will "apply the blowtorch" and then examine if the measure has survived.[69] In the present case, for example, the key areas of contest arise more fromfactual disputes — and in particular in relation to the safety and efficacy of the vaccine,and the practical implications of the mandate. To some extent the resolution of thosedisputes answer the questions posed by the above steps, albeit not entirely. Forexample, if the applicants are correct that the vaccine is ineffective in limiting thespread of COVID-19 and/or it is unsafe, then the mandate will not likely bedemonstrably justified. On the other hand if the Crown's evidence is accepted andvaccination significantly reduces the spread of COVID-19 then a case for ademonstrably justified limitation arises, although it may still be necessary to addressthe kind of steps described above to ensure the specific measure is justifiable.Justification for the health sector mandate[70] I deal first with the Crown's justification for the mandate in the health anddisability sector. Two key justifications are advanced in the evidence of the Ministerand Director-General, and were the focus of the Crown's submissions:(a) that vaccination assists in limiting the risk of transmission from healthand disability workers to those for whom they care, and onwards intothe wider community; and(b) that full vaccination of all such workers limits the risk of absenteeismin this workforce at a time when the sector will be under strain.[71] It seems to me that the first of those factors is the more important one. Thereare a series of matters relevant to this workforce that I accept are significant:(a) First, health and disability workers may be at heightened risk of beinginfected and transmitting COVID-19 given that close contact, includingwith those who may be unwell, is part of the delivery of most healthand disability services.(b) Secondly, many of those that seek such services have other illnessesand conditions that may make them more vulnerable to COVID-19, orbe in close contact with such persons. A hospital is a location, forexample, that has patients with other illnesses and conditions that makethem vulnerable, and where a more pressing need to maximiseprotection from COVID-19 exists.(c) Thirdly, many who access health services do so out of a pressing needand without the ability to make choices. A patient admitted to hospitalmay not be able to make choices as the circumstances compel them toenter that environment. In those circumstances patients can reasonablyexpect that all steps reasonably available to minimise the risk of thembeing exposed to COVID-19 have been taken. Such patients canreasonably expect a zero tolerance approach. That is also so for thosewho attend health services more regularly. A cancer patient attendingfor a chemotherapy course, or a patient attending for regular dialysis,can reasonably expect the health professionals they engage with to havetaken all available measures to reduce the COVID-19 risks.(d) Finally, it is of vital importance that public confidence in the deliveryof health services remains high, particularly during a pandemic. So forthe health sector adopting a zero tolerance approach, and being seen tohave adopted that approach, is of importance to the overall system.[72] These arguments are less persuasive for some health and disability workerscovered by the mandate, however. Many of the members of the first applicant whobring this challenge are dentists, and some are general practitioners. A visit to adentist, or other health and disability workers who operate more autonomously, maynot involve patients accessing health services in a state of vulnerability, or withdiminished ability to make choices. It may not totally exclude the operation of factorsof this kind as those who access services of their general practitioner or dentist maystill legitimately expect a risk minimisation approach. I note that unvaccinated generalpractitioners are able to consult with patients by remote means.[73] Mr Batts argued for the first applicant that it was necessary to undertake thekind of analysis that the Court identified in Yardley to ascertain whether the mandatewas demonstrably justified for this sector.49 In particular it would be necessary toidentify whether the vaccine mandate materially changed the vaccination rates beforeit could be shown that it was justified. The evidence shows that the voluntaryvaccination rates were high, so that the mandate might achieve little in terms of anyadditional protection. He pointed out that no such analysis had been undertaken, andreferred to the evidence of Dr Cramp who had indicated in broad terms the kind ofassessment that could have been undertaken.[74] I agree that such an assessment could be relevant, but I do not accept that thiswas a pre-requisite for a demonstrably justified limit. The vaccine mandates in issuein Yardley were implemented for a different purpose — to ensure the continuity of theworkforces. That inherently involved a question of numbers — what did the mandateactually achieve in terms of the continuity of the workforces? But the reason for thismandate was different. It is based on inhibiting the spread of COVID-19, ensuring theavailability of critical health services, and sustaining the public confidence in thoseservices during the pandemic. A more refined assessment could have been relevant tothe justification for the measure, but I do not accept it was a pre-requisite. A zerotolerance approach may still be justified, particularly given the fact those accessingcritical health services will frequently be vulnerable, and often unable to make choices.49 Yardley v Minister for Workplace Relations and Safety, above n 20.[75] I am less convinced of the Crown's alternative reason for saying the measureis justified in the health sector — to ensure the continuity of health services by makingsure that the workers are not absent because of COVID-19 illness. That is more similarto the kind of justification for the mandate in issue in Yardley. The justification onlyhas substance if the mandate pressured health workers to vaccinate who would nototherwise have done so. If health workers were prohibited from working because ofthe mandate then it can hardly be argued that the mandate is justified because it limitedtheir absenteeism. I accept that this justification may have required a strongerevidential basis before it could be seen as having significance. That is not apparent onthe evidence before the Court. But the other reasons for the mandate do not requiresuch an analysis.[76] The justifications that I do accept have real significance still depend on certainfactual matters that are in dispute — principally whether mandatory vaccination doesin fact diminish transmission of the virus, whether it is safe, and whether there areother adverse impacts of the mandates that outweigh any such benefits. I address thosefactual disputes below before reaching final conclusions.Justification for education sector mandate[77] The justification for the existence of a mandate in the education sector issimilar to, but not the same as the health sector. Again there were two interrelatedjustifications advanced:(a) that schools and other facilities are places of regular gatherings ofpeople and that this creates a risk of community transmission whichshould be minimised; and(b) such an environment creates a risk to the children attending schools andeducation facilities, again warranting a risk minimisation approach.[78] In relation to the first factor, I accept the evidence from the Minister that it wasimportant that students be able to physically attend schools and other educationfacilities. The periods of lockdown, including the more recent lockdowns in theAuckland region, compromised learning and development. There was accordingly apressing need to get the students back into a physical environment.[79] In common with the health sector, such physical attendance effectively createdan environment where children and others were required to attend social gatherings ofrelatively high numbers of people. There is a degree of necessity or compulsion inattending such gatherings. These gatherings would be taking place daily, or at leastregularly during the week. Social gatherings of that kind present a risk of communitytransmission. I accept the evidence of Dr Town and Dr Bloomfield that studies showthat transmission does occur within school environments, although mostly on an adultto adult and adult to child basis rather than child to child. Dr Town explained thatevidence was emerging that the rate of community transmission from schools was nodifferent from community transmission generally. But it still remains a potentialtransmission point for the community more broadly.[80] I also accept that it is relevant to take into account the risk to the childrenthemselves. Whilst paediatric vaccination is now available it is not suggested thatchildren should be required to be vaccinated to attend education facilities. But I donot accept that the risk the virus presents to the children themselves is a particularlystrong factor. The evidence shows that COVID-19 is generally not a severe illness forchildren. That is a point emphasised by Professor Bridle in his evidence. It is alsonoteworthy that child to child transmission does not seem to be as significant as adultto adult or adult to child transmission. Having said that it needs to be rememberedthat there will be some children attending education facilities that will have underlyinghealth conditions or other vulnerabilities. It may also be that long COVID is a factorfor some children. So I accept the protection of the children remains a relevant partof the potential justification for a mandate. But the main public benefit arising fromthe vaccine mandate in the education sector was not so much the protection of children,but the protection of the community that the children then interact with. So it existedprimarily to potentially reduce the prospect of the school being a transmission pointfor a disease that could affect the carers, parents and grandparents of those who attendthe schools, and then the wider community.[81] I see the potential justification for the mandates here as less compelling thanin the health sector, however. There may still be a basis to say that a risk minimisation,or zero tolerance approach was appropriate. But there are also alternatives that aremore rights compliant. For example a requirement for unvaccinated teachers to stayhome if unwell, to have daily rapid antigen testing in the school, and to follow theother measures such as mask wearing and social distancing might be regarded as analternative set of measures that provides adequate protection. As Tipping J's list ofquestions from Hansen suggests, if there are other more rights compliant ways ofachieving the outcome, a measure may not be justified.[82] In any event, as with the health and disability sector there are factual disputesthat are important when assessing the Crown's justification for the mandate. As withthe health and disability sector they involve the effectiveness of the vaccine to inhibitthe spread of COVID-19 (particularly the Omicron variant), the safety of the vaccine,and the adverse effects arising from the mandate which are said to be greater than thepublic benefit obtained by the mandate. Again I will address these disputed issuesbefore reaching final conclusions.The contested issues[83] In order to assess whether the mandates are justified I need to make findingson factual matters that have been placed in issue by the evidence that has been filedby the applicants. As indicated the disputes appear to arise in three main areas:(a) the extent to which vaccination inhibits the spread of COVID-19,particularly in light of the Omicron variant;(b) the extent to which the Pfizer vaccine has safety concerns; and(c) whether there are adverse effects from a mandate that outweigh anypublic benefit in vaccination.The evaluation of the expert evidence[84] Before addressing these three matters there is a preliminary point ofsignificance. It is an essential element of the Crown's contention that both mandatesare, or were justified, that vaccination is safe, and that it materially reduces the spreadof COVID-19. This is disputed by the applicants who have filed evidence from fourwitnesses with relevant expertise, with the views of Professor Bridle, ProfessorPetrovsky and Dr Cramp being relied upon in particular. In those circumstances it isappropriate to first address what the Court's approach should be when there arecontested questions of expert evidence of this kind in a judicial review proceeding.[85] First, the Crown has the burden to demonstrate that a measure that limits afundamental right is demonstrably justified under s 5. As I indicated at [54] above,given the fundamental nature of the right in s 11, the Crown has a reasonably highthreshold to meet here.[86] The Crown has provided evidence to support the justification which ischallenged by the applicants. The High Court is accustomed to dealing with issues ofcontested expert evidence, sometimes in highly technical areas. It is required to makefindings on such contests in the civil cases before it. It has well-established proceduresto do so. There is the code of conduct for expert witnesses in Schedule 4 of the HighCourt Rules 2016. Conferral between experts is often directed, and the experts areoften cross-examined at trial. It is not common for contests of expert evidence to becentral to a judicial review proceeding however, and it is uncommon to have cross-examination in judicial review. But leave to cross-examine can be granted if it isnecessary to fairly address a claim for judicial review.50[87] The present case might have been a case where cross-examination could havebeen appropriate. There is plainly a contest of expert evidence between Doctors Townand Bloomfield on the one hand, and Professors Bridle and Petrovsky and Dr Crampon the other. No application was made by the Crown to cross-examine the applicants'expert witnesses. Initially the first applicant made an application to cross-examineDr Town, but that application was not pursued. The second applicant pursued anapplication to cross-examine the Minister and Dr Bloomfield, but by minute dated1 March 2022 I declined that application as I was not satisfied that it met the standardsrequired for cross-examination in judicial review. The proposed cross-examination of50 As summarised in Geary v Psychologists Board [2009] NZSC 67, (2009) PRNZ 415.the Minister and of Dr Bloomfield was more wide-ranging in nature and not focusedon the disputed questions of medical science that are potentially important to this case.[88] Neither was there any conferral between the expert witnesses which may havebeen appropriate if the Court was to make findings on some of the more technicalquestions in issue. It can also be observed that the affidavit evidence was not directedto precise questions on which the experts gave opinions. The applicants' expertevidence involved more broad-ranging expressions of opinion about COVID-19vaccination, including the Pfizer vaccine. Neither were the written or oral submissionsof the applicants focussed on an analysis of the issues arising from the expert evidenceand the conclusions that the applicants wished me to draw based on that evidence.[89] There is a further significant factor. The respondents did not file independentexpert evidence addressing the questions that had been addressed by the applicants'expert witnesses. For example, the Crown did not file any evidence from an expertepidemiologist. It limited itself to evidence from the Director-General of Health,Dr Bloomfield, and the Ministry's Chief Science Advisor, Dr Town. In addition theevidence filed by the Crown did not seek to respond to all the issues the expertevidence filed by the applicants addressed. The Crown's evidence did engage on someissues — for example the safety of the Pfizer vaccine — but many of the opinionsexpressed by the applicants experts were not responded to. Rather Drs Bloomfieldand Town put forward their own views explaining why the vaccine was safe andeffective. In effect I had two sets of expert evidence, effectively in parallel, on manyof the important issues rather than evidence that directly responded to each other.[90] All of this means that there is considerable difficulty involved in the Courtmaking definitive findings on the disputed questions. In New Health New Zealand Incv South Taranaki District Council the Supreme Court referred to the disputed issuesof science in relation to fluoridation that arose in that case. There Ellen France andO'Regan JJ said:51It is obvious that the scientific evidence relating to fluoridation is contentious,in the sense that even apparently authoritative studies as to the benefits anddetriments of fluoridation are called into question in other studies, in manycases on the grounds that the writers are biased. The Court is not in a position51 New Health New Zealand Inc v South Taranaki District Council, above n 22, at [121]–[122].to unpick these disputes nor is it able to determine whether particular scientificreports are scientifically robust. It can, however, note that the benefits offluoridation are considered to be significant and the detriments insignificantby the World Health Organization and the Ministry of Health. It can also haveregard to the fact that fluoridation of drinking water is sanctioned by law andactually occurs in a number of free and democratic countries with whichNew Zealand compares itself including Australia, Canada, the United Statesof America and the United Kingdom.Against that background, we consider the Court of Appeal was right not toattempt a definitive ruling on the scientific and political issues. We willundertake a broad assessment with a view to determining whether theevidence provides a proper basis for concluding that the limitation on the s 11right resulting from fluoridation was justified.[91] I will approach this case adopting the same broad assessment approach forsimilar reasons. This will involve considering the Crown's evidence for the benefitsof vaccination whilst at the same time taking into account the different views advancedby the applicants' experts.[92] There is a final factor of importance. In both Four Aviation Security ServiceEmployees and Yardley I made reference to the precautionary principle and how itapplied in this context. I referred to the description of that principle by the FederalCourt of Ontario in Spencer v Attorney-General of Canada where Pentney J said:52 The precautionary principle is a foundational approach to decision-makingunder uncertainty, that points to the importance of acting on the best availableinformation to protect the health of Canadians. The Order is a public healthmeasure that was adopted based on available scientific evidence from Canadaand abroad, and it gives effect to the precautionary principle in a manner thatreflects the Government of Canada's overall assessment of the risks posed bythe previously circulating virus and variants, and the lack of alternatives tomitigate it given the current state of knowledge of the virus.Viewed in light of the precautionary principle, the fact that the Order may notprovide perfect protection is not particularly significant. The evidence showsthat the challenged measures are a rational response to a real and imminentthreat to public health, and any temporary suspension of them wouldinevitably reduce the effectiveness of this additional layer of protection. This,in turn, would have a significant – perhaps deadly – effect on the widerCanadian public, based on the experience thus far.[93] Mr Pyke argued that Spencer should not be followed, identifying particularfeatures of that decision, including that it was only at the interim relief stage. But theprecautionary principle described in Spencer is one of general application, although52 Spencer v Attorney-General of Canada [2021] FC 361 at [113]–[114].its nature and scope is subject to debate. It is a principle that is relevant in other areasof New Zealand law.53 For the reasons I addressed in Four Aviation Security ServicesEmployees it seems to me that it applies here.54 Again it does not remove, or reducethe burden that is placed on the Crown, but it is a principle that applies when there isuncertainty, as is the case here.First Disputed Issue : Vaccine effectiveness in reducing transmission[94] Against that background I will first address the evidence relating to theeffectiveness of the vaccine to limit the spread of COVID-19, including the Omicronvariant.[95] The evidence is clear that vaccination reduced both infection and onwardtransmission of the original versions of COVID-19, and also reduced the seriousnessof illness when it occurred (and accordingly hospitalisation and death rates). That isapparent from the studies that have been referred to in evidence. That is also what Ifound in Four Aviation Security Service Employees.55 I also accept that this was thestate of the scientific evidence when the Order was implemented in October 2021.[96] The applicants' experts make the point that unlike many vaccines the COVID-19 vaccines do not prevent a person contracting and succumbing to the illness — it isnot a "sterilising" vaccine. Moreover the protection it provides wanes and only lastsfor a period of months. But I accept Dr Bloomfield's evidence that the fact that it isnot a "magic bullet" does not prevent it being an effective tool in limiting the spreadof the virus particularly in combination with other measures.[97] What is of significance, however, is that the Omicron variant has reduced theability of vaccination to prevent community transmission. The applicants' expertsexpressed views that called into question the effectiveness of vaccination in limitingthe spread of the Omicron variant in particular. By way of summary:53 Particularly in environment law; see Trans-Tasman Resources Ltd v Taranaki-WhanganuiConservation Board [2021] NZSC 127 at [107]–[113].54 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11, at[111]–[112].55 At [109]–[110].(a) Professor Petrovsky accepts there is some benefit to the individual frombeing vaccinated because of reducing the risk of serious disease, but hedoes not accept that vaccination can realistically reduce transmission,particularly with the Omicron variant. He emphasises that vaccinationonly has partial protection against transmission and only for limitedperiods of time. In his view being vaccinated will not reducetransmissibility over time particularly given a reproduction (or R0) ratefor Omicron of between five and eight. He also sees the prospect ofsome increased transmission risk arising from the vaccinated havingless severe symptoms, and accordingly not taking steps to avoidcommunity interaction.(b) Professor Bridle's evidence is to the effect that natural human immunityto COVID-19 is superior to the protections arising from vaccines. Healso refers to the waning effect of the vaccine and argues that statisticalanalysis of countries with and without high vaccination rates does notshow that higher vaccinated countries have lower COVID-19 caserates. He also expresses the view that vaccination may ultimately harmthe natural responses to infection, and that it will be adverse in thelonger term.(c) Dr Cramp's views are consistent with these views, but are more wide-ranging. His evidence is striking, however, because he is the MedicalOfficer of Health at Waikato District Health Board. He has concernsabout the safety of the Pfizer vaccine, and he significantly doubts itsefficacy and has chosen not to be vaccinated himself, putting his job atrisk. A key aspect of his evidence is that there is uncertainty about thesafety of the vaccine, and that mandates are fundamentally inconsistentwith usual medical practice and the principle of informed consent.Otherwise he argues along similar lines to Professors Petrovsky andBridle in terms of questioning the effectiveness of the vaccine.[98] The applicants' experts also emphasise the role of other measures such asphysical distancing, facemasks, and regular testing as effective measures. I see thatthe key aspect of all this evidence is that the benefit of vaccination is likely to betemporary, and that the Omicron variant will still ultimately make its way through thecommunity in any event such that vaccination has little beneficial effect, and may infact be harmful.[99] Both Drs Town and Bloomfield have given evidence that vaccination maycontinue to limit the spread of the Omicron variant, however. These views are basedon the international studies that continue to become available. Dr Bloomfieldsummarised the conclusions of these studies in his second affidavit sworn 1 March2022 in the following terms:The vaccine efficacy is around 55% or more soon after 2 doses of Pfizer andthat this wanes to levels unlikely to reduce infection risk and transmissionwithin 5–6 months of the second dose.The vaccine efficacy is around 55% to 69% after the booster dose of Pfizer.The data also suggest while there is some waning of efficiency after thebooster dose, this occurs more slowly than after the primary course, withefficiency remaining above 50% in those who had received a booster morethan 10 weeks prior.Data about the impact of the vaccine on onward transmission of Omicron isstill developing, due to the time since discovering this variant and being ableto observe the effects of booster dosing. As such, data are only available thatassess the effect of 'all vaccines', not Pfizer alone. However, non-peerreviewed data from a small study suggests that vaccinated people infect fewerpeople in their household, which is a setting where many 'exposure events'are likely to occur (meaning that this setting would generally tend to reducethe observed vaccine effectiveness, and that the effect of the vaccine is likelyunderestimated in this study).[100] The last paragraph referred to onward transmission, whereas the first two arereferring to the efficacy of the vaccine in reducing initial infection. But reducing initialinfection in itself limits the transmission of the virus in the community. A vaccinatedteacher or doctor is less likely to contract COVID-19 in the first place irrespective ofthe limitation on his or her likelihood of spreading it to others. Dr Bloomfield alsoresponds to the argument that the Omicron outbreak is so pervasive that vaccinationcan do no more than slow the infection rates down. He says that he does not acceptthis, but that even if that is so slowing down the spread of the virus will prevent thehealth system being overwhelmed.[101] Dr Cramp explains in his affidavit that the percentages used to describe thisefficacy can be misleading. If the vaccine is assessed as having 50 per cent efficacyagainst infection it only means that relatively less vaccinated people will be expectedto be infected all other things being equal. For example, if there is a unvaccinatedgroup that has 100 infected people within it, the expectation will be that only 50 peoplewill be infected in an equivalent vaccinated group. But for an individual this reductionin risk might be small. If the 100 infected people represent only one per cent of a totalpopulation the reduction in individual risk is only .5 per cent. I accept this point as faras it goes, but in my view it does not go far. The Omicron variant may be much moredifficult to control, and significant numbers of New Zealanders seem likely to beinfected by it. I note that Professor Petrovsky is of the view that at least 50 per cent,and more likely a larger majority of the New Zealand population will become infectedby COVID-19. If vaccination reduces the relative chances of infection by 50 per centthen this is a material contribution. That would be even more so if the efficacy againstinfection is 55–69 per cent, although as Professor Petrovsky emphasises thiseffectiveness may only be temporary.[102] Dr Town stresses that evidence concerning the effectiveness of Omicron is stillemerging, and it was important not to express certainty when that is not warranted.He says:In relation to Omicron, studies show that vaccination provides someprotection against symptomatic disease, however, vaccine effectiveness isreduced compared to Delta. Rapid waning of vaccine effectiveness occursagainst Omicron, but a booster dose restores protection. [103] Whilst I see that as broadly consistent with Dr Bloomfield's views, Dr Town'sviews are expressed more cautiously. Dr Town appended the most recent summariesof the international studies at the date of his affidavit, including a summary as at 3February 2022. There are a number of studies that are referred to in this materialwhich I accept supports the conclusions that both he and Dr Bloomfield have outlined.[104] One of the studies referred in the evidence was subject to more attention by theexpert witnesses, and submissions from the parties. In a Danish population studythrough to December 2021 the authors reported vaccine effectiveness against Omicroninfection at 55 per cent in the first month after vaccination which declined rapidly overa few months. Booster doses re-established effectiveness to similar levels. This wasone of the studies relied on by Dr Town and is broadly consistent with Dr Bloomfield'sevidence. Dr Cramp emphasised however, that this study shows that 91-150 days aftervaccination the risk of infection increased for the vaccinated compared with theunvaccinated at greater than 50 per cent. Dr Cramp said that this demonstrated thatvaccination had an adverse effect in the longer term. This is consistent with the viewof Professor Petrovsky who explained that vaccination could increase the risk ofinfection because the vaccinated modify their behaviour believing they haveprotection. The authors of the study expressed the view that this data " arguablysuggests different behaviour and/or exposure patterns in the vaccinated andunvaccinated cohorts causing underestimation of the [vaccine effectiveness]. This waslikely the result of Omicron spreading rapidly initially through single (super-spreading) events causing many infections among young, vaccinated individuals".56[105] I accept based on this, and other evidence, that the proposition that vaccinationmaterially limits transmission of the Omicron variant is now much more debatable.At the time when the mandate was decided upon in October 2021 the complicationscaused by Omicron were not apparent. I accept that the Crown rightly saw vaccinationas providing significant protection against community transmission of Delta at thatstage. But the question is now less certain because of the nature of the Omicron variantand the emerging information.[106] There is a further factor of note. Schedule 3 of the Order requires the personto have had two doses of the Pfizer vaccine, with the second within 35 days of the firstdose. Clause 7 of the Order was amended on 23 January 2022 so that the affectedpersons were also required to have received a booster dose.57 Schedule 4 specifiesthat the person must receive the booster dose of the Pfizer vaccine before carrying outthe work "within 183 days of being vaccinated". The requirement to be boosted onlywithin 183 days (that is six months) of being vaccinated is very difficult to understand.The evidence is clear that the benefit that vaccination has in reducing rates oftransmission wanes quickly after the first 30 days, but is restored by the booster. To56 Hansen C H and others "Vaccine effectiveness against SARS-CoV-2 infection with the Omicronor Delta variants following a two-dose or booster BNT162b2 or mRNA-1273 vaccination series:a Danish cohort study" (Denmark, 23 December 2021).57 See n 17 above.only mandate the booster within six months of being vaccinated is inconsistent withsecuring the benefits of vaccination imposed through a mandate. Indeed this periodof time seems to me to be irrational if the whole purpose of the mandate is to ensuremaximum protection against transmission. I am, to say the least, perplexed by this.[107] For the reasons I have outlined I nevertheless find it difficult to make definitivefindings on the extent to which mandatory vaccination still meaningfully reduces thespread of the Omicron variant based on the evidence and submissions I have received.It would appear that New Zealand is experiencing a wave of Omicron infection inmuch the same way as other countries have. But I have not been provided withevidence on the dynamics of such waves of infection, and the effects of vaccinationon them. Neither do I have evidence about any secondary waves, or the risks of furthervariants emerging apart from Dr Bloomfield's comment that any further variantswould need to be even more infectious to outcompete with Omicron.[108] As I have explained there is a limit on the ability of the parties, or the Court toassess these issues contemporaneously. I am not able to make definitive findings onthe continued effectiveness of vaccination to suppress the transmission of the Omicronvariant in current circumstances. I am able to find that it did based on the evidence inexistence when the mandates were put in place, but the position is now far morecontestable. I accept that an arguable basis for continued effect in materiallysuppressing transmission may still exist. I can go no further than this given what isbefore me.[109] I will address how these findings affect the Court's ultimate conclusions laterbelow.Second Disputed Issue : Safety of the Pfizer vaccine[110] The expert evidence filed by the applicants also raised questions relating to thesafety of the Pfizer vaccine. I agree this is also potentially relevant to the justificationfor the mandates.[111] The Pfizer vaccine has been approved in New Zealand under the MedicinesAct. As explained above, Ellis J considered and dismissed an application for interimrelief associated with the approval although she identified an issue with the generalavailability of the vaccine under a provisional consent. She concluded that interimrelief should not be granted.58 When doing so she said:59 it must be recognised that the process gone through here was not anorthodox provisional consent process—it went above and beyond. Although s23 applications are not required to provide the s 21 particulars about the safetyand efficacy of the vaccine, it is clear that those particulars were, in fact,provided by Pfizer, in part (no doubt) because an application for full consentwas also made. And it is difficult to see how the assessment process could, inthe circumstances, have been more thorough. As set out above, Mr James'evidence makes it clear that there were a number of layers of reflection andreview in addition to those that would ordinarily be expected in a provisionalconsent assessment. The risks with which s 23 is concerned—and the reasonfor the restrictions around granting a provisional consent—have thereforebeen considerably diminished.[112] In Four Aviation Security Service Employees I considered an argument thatmandating the Pfizer vaccine when it had only obtained provisional consent meantthere had been a breach of the right not to be subjected to medical or scientificexperimentation under s 10 of the Bill of Rights. When doing so I referred to theabove passage indicating that I agreed with it.60 Later in the judgment I expressed theview based on the evidence I received in that case that the Pfizer vaccine was safe andeffective.61[113] The applicants' experts nevertheless question the safety of the Pfizer vaccine.There are difficulties in assessing this evidence for the reasons I have already outlined.There has not been a focus on the particular points being taken by the applicants, withexpert evidence directed to these particular points, and expert conferral and cross-examination directed to them. Neither were particular issues identified and explainedin submissions. Unlike other aspects of the case, Drs Town and Bloomfield did engagewith the evidence filed by the applicants' experts on the safety of the vaccine, althoughno evidence from an independent expert was filed by the Crown. I neverthelessaddress the disputes between the experts having regard to the way they have beenpresented to the Court.58 Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health, above n 7.59 At [69].60 Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 11, at [35]-[36].61 At [143].[114] I accept that a concern about the safety of the vaccine could be highly materialto an assessment of whether mandating it was demonstrably justified. As I have earlierexplained the right in s 11 is closely associated with the right of informed consent. Forthe state to pressurise particular categories of employees to vaccinate when there weresafety concerns might be hard to justify.[115] Having considered the evidence I am not satisfied that the Pfizer vaccine hasunaddressed safety issues. I accept the views of the applicants' experts that there is nolong-term safety data. Given the pressing need to find effective vaccines, and todeploy them once they were developed, it is inevitable that this was done without long-term data. But nothing in the materials I have been provided suggest to me that anyuncertainties in the long-term are likely to give rise to the identification of unforeseenadverse effects. Dr Town refers to the considerable domestic and international workdirected to ensuring that the Pfizer vaccine is safe. This includes the fact that it hasbeen approved for use in at least 130 countries and that more than 10 billion doseshave been administered worldwide. He says:Because of the exceptionally high level of national and international scrutiny,testing and reporting to which the Pfizer vaccine has been subject and ourongoing analysis of the available evidence, I am satisfied that the vaccine issafe. In particular, I am satisfied that the claims that receiving the vaccine is agreater health risk for any gender, ethnicity or age cohort than the health risksposed by the virus itself, are not correct. There is a small group of people forwhom the vaccine does present potential health risks. It is for that reason thata procedure for granting of health-based exemptions to the mandates has beenprovided.[116] The applicants' evidence includes criticisms of the extent and conditions of thetrials undertaken by Pfizer when developing the vaccine. To the extent that it ispossible for me to make findings about those criticisms I do not accept that they giverise to a safety concern. I am satisfied any unforeseen problems arising from thisinitial work, or otherwise, would have revealed themselves by now. The globalpandemic, and the response to it with vaccination programmes, must be one of themost highly scrutinised medical events in human history. I am not satisfied thatDr Town's evidence on this point is wrong.[117] This point also addresses the criticism that there is only a passive programmefor assessing adverse events arising out of the administration of the vaccine. Byrelying on the reporting of adverse events, rather than by actively conducting lines ofenquiry it is suggested that there will be an underreporting of adverse events. Forexample Dr Cramp suggested that there should have been fuller investigation ofreported deaths arising in the period following administration of the vaccine. I agreethat a more active programme to investigate potential adverse effects would likelyhave been more accurate, and this could have been appropriate. But I do not acceptthat this demonstrates that there has been significant underreporting of adverse effectsresulting in a greater level of adverse effects from that anticipated. For under reportingto have occurred in a material way it would have needed to have occurred on aworldwide basis because the vaccine is being administered on that basis. As I say,vaccination programmes have been subject to intense scrutiny. If there had been anyevidence emerging of problems with the vaccination this would be known.[118] As Dr Town accepts there are adverse side effects from the vaccine. That isapparent from Pfizer's own materials. Dr Cramp emphasised this in his evidence. Heidentified the adverse events that have been recorded to 20 November 2021 inNew Zealand, including 92 people having anaphylaxis, 46 people who have had heartattacks, 277 people having myocarditis or pericarditis, 80 people who have hadstrokes, and 31 people who have had spontaneous miscarriages (amongst other adversereactions). Individually such events can seem startling. But it must be rememberedthat over 96 per cent of the New Zealand population over 12 years of age have receivedat least one dose, and 95 per cent have received two doses. As Dr Cramp said, as at20 November 2021 when he assessed the number of adverse events, there had beenover 7.3 million doses of the Pfizer vaccine administered in New Zealand. So theseevents fall within the very low percentage of adverse events expected by Pfizer's data,and confirmed by worldwide experience.[119] I should not be taken to dismiss the evidence from the applicants' experts onthese issues out of hand. I accept that these are genuinely held views by well-qualifiedspecialists in their respective areas. There was some criticism in the Crown'ssubmissions of Dr Cramp's objectivity, but I do not accept it. He is no more or lessobjective than Drs Bloomfield and Town. It is just he has a different view and hasconcerns. He is sufficiently concerned not to yet get vaccinated himself with thepotential adverse implications for him personally. But I am not satisfied from theevidence that the adverse effects of the Pfizer vaccine are other than as assessed in theapproval of the vaccine as a medicine.Third Disputed Issue : Adverse implications of mandate[120] In their submissions and evidence both applicants emphasised significantadverse effects arising from the vaccine mandates within each of the sectors. Suchadverse implications are relevant, and go into the mix in terms of whether the publicbenefits derived from the mandate provide justification for the infringement of thefundamental rights involved.[121] Much of the evidence I was referred to related to the education sector, with anumber of affidavits filed by the second applicant, and submissions advanced byMs Green by reference to particular impacts in that sector. But it is not limited to theeducation sector. Affidavits were filed by health professionals outlining the adverseeffects of the mandate for some of those involved. That included evidence of practicessuch as dental practices needing to cease operation, with the considerable adverseimplications for the practice and its patients.[122] Evidence relating to the education sector was provided by Helen Hurst, theHead of Covid Response at the Ministry of Education. Based on her evidence therewere approximately 72,000 teachers and day relievers, and approximately 40,000teacher aides, administrators and other non-teaching staff in schools in 2020. A surveyconducted between December 2021 and January 2022 suggests that just short of 3,000such workers remained unvaccinated at that time. Other evidence suggested that 294teachers/day relievers and 427 teacher aides, administrators and non-teaching staffgave "COVID" as a reason for termination of their employment. Ms Hurst said thatthe Ministry is unaware of any schools that have had to close down or cease operatingas a result of the vaccine mandate, but that there were four schools that were requiredto provide online teaching for a short period of time. She emphasised, however, thatthe Ministry was not the employer of the workers, and that the Ministry may not havecomplete information on the implications that the mandate could have had.[123] The number of education workers who were pressured into vaccination topreserve their position is not known by the Ministry. Ms Hurst's evidence suggeststhat something in the order of three per cent of teachers remained unvaccinated,leading to a potential loss of employment. But Ms Green argued that the number wasfar higher than this, and that the true implications of the mandate were moresignificant, including because of the adverse implications for the teachingenvironment in particular schools and other education centres.[124] Ms Green took me through a number of affidavits filed by the second applicantin that respect. I refer to some of the evidence by way of example. A teacher at a HighSchool in Northland described the position there. Commissioners have been appointedto replace the Board at this school. She said that at her school and the wider regionthere were six teaching staff, including herself who at the date of her affidavit haddecided not to be vaccinated. She said that in the region there were 17 vacanciesadvertised and that her school was in a dire position with vacancies as it stood, andthat other schools were in a similar position. She also said the effect on social cohesionhad been significant in the region. She used the situation at another school as anexample. This school is also described in the affidavit of its proprietor. It is anintegrated composite special character school. He said about 20 per cent of theteaching staff and 30 per cent of board staff had said they did not wish to be vaccinated,and if the staff had to leave the school the teaching programme would have suffereddramatically. He explained that 80 to 90 per cent of their students were Māori. Healso said that the school would not want to make the parents feel alienated by theirdecision not to be vaccinated as this would create whakama. He said "to even askanother person (should they be a visitor for sport or music, or a parent helper) whattheir private health information is and then ask them to leave, should they not bevaccinated, is against the [our] tikanga of manaakitanga ". A similar situation isexplained by a deputy principal of a Northland school who said there were 13 staffwishing not to be vaccinated, and that this presented a very difficult situation for the70 per cent Māori students and families. She explained that the effects had beentraumatic. It was evidence of this kind that was used in support of Ms Green'sargument that the vaccine mandate involved what she said was a cultural afront.[125] There is other evidence of a similar kind concerning other schools andeducation establishments throughout the country. The above are just examples. Iaccept that based on this evidence a significant adverse effect for schools and otherestablishments potentially arose out of the mandate. And I accept that these potentiallyadverse implications are relevant and need to be taken into account.[126] But as the Crown argued there are equally important countervailingconsiderations. The communities described in this evidence include the type ofcommunities that are more at risk from COVID-19. That is a point not only stressedin the Crown's evidence, but it has been referred to by the Waitangi Tribunal's reportinto the Government's management of the COVID-19 pandemic.62 I note that theTribunal itself concluded that vaccines were safe and effective in responding to thethreat caused by COVID-19.63 The Tribunal also noted that Māori had been subjectedto "prolonged exposure to misinformation" about vaccination.64 It seems to me thatsome of the misunderstandings about COVID-19, and vaccination, were reflected inthe evidence and submissions of the second applicant. And the underlying findings ofthe Tribunal are that the government should have recognised the features of the Māoripopulation in order to achieve a more successful programme of vaccination amongstMāori. In my view the Tribunal's report must be treated as authoritative.[127] An outbreak of COVID-19 in the type of communities described in theevidence could have severe adverse implications for them. The views in the Tribunalreport might suggest that mandates are a blunt instrument when dealing withcommunities of this kind, but there is nevertheless a pressing need to seek to findmeasures to minimise the risk to these communities by maximising vaccination andthereby minimising the risks of transmission.[128] I see it as significant that a number of the witnesses filing evidence on behalfof the second applicant said that they had been pressurised into becoming vaccinated.I recognise that their evidence is that they have done so notwithstanding their right torefuse to undergo a medical treatment. But this evidence also establishes that affectedworkers have become vaccinated as a consequence of the mandate. This confirms thebenefit of the mandate in securing a more fully vaccinated education workforce,including in the more vulnerable communities.62 Waitangi Tribunal Haumaru-The COVID-19 Priority Report (WAI 2575, 2021) [preliminaryversion].63 At [2.2.3].64 At [4.4.9].[129] Ms Green also argued for the second applicant that there was a particular issuein relation to the timing of the vaccine mandate introduced by the Order, coming as itdid right at the end of the 2021 academic year when students were facing pressuressuch as exams. I see very little substance in this point. The timing of the measure wasa consequence of the COVID-19 pandemic, and particularly the emergence of theDelta variant which rendered the elimination strategy unsustainable. The Governmentthen introduced different measures in October 2021 to seek to control the spread ofthe virus within New Zealand communities. The fact that this coincided with the endof the academic year is unfortunate, but many adverse effects of the pandemic are.This is not a factor relating to the legitimacy of the measures employed that has anysignificance.Conclusions[130] Given all the above considerations, including my views on the matters that arein dispute, I come to make findings on whether the Crown has demonstrated that thevaccine mandates established by the Order are demonstrably justified in a free anddemocratic society.[131] I have already found that, subject to the disputed factual matters that I havenow addressed, both mandates involve a potentially justifiable limit on the s 11 right.I accept they meet standards of the kind set out by Tipping J in R v Hansen. That isso in the health and disability sector although there is an issue about the scope of themandate. Similarly in the education sector a justification appears to exist albeit thatthe argument is less powerful than in the health and disability sector.[132] Having now addressed the disputed matters I accept that when the challengedmandates were put into effect in October 2021 they were demonstrably justified forboth sectors. At this stage the Omicron variant had not yet emerged and the measureswere more directed to the Delta variant. At that stage there was clear evidence thatvaccination both protected the vaccinated from more serious illness, and that itmaterially reduced rates of community transmission. I do not accept that there wereunanticipated safety concerns, or that the adverse impacts of the mandate were moresignificant than the public benefits to be obtained. On that basis they were justified.[133] Even when implemented the justification for the education mandate was lessclear cut than for the health mandate, however. Moreover there could be a legitimateargument about the scope of the health mandate given that it covered particular healthworkers who were not dealing with vulnerable persons as patients, or with personswho were unable to make informed choices on accessing such services. But Inevertheless find that both of the mandates in their terms were demonstrably justifiedat the time they were implemented.[134] But circumstances have significantly changed since the mandates were put intoeffect. The Omicron variant is far more transmissible, and vaccination (and thereforemandatory vaccination) is a less effective measure for controlling the spread of thevirus. So, for example, ensuring all teachers are vaccinated made real sense whenseeking to control the spread of the Delta variant of COVID-19. But the Omicronvariant means that COVID-19 is, or will be, endemic in the community. It is spreadingin a largely uncontrolled way such that the unvaccinated status of a teacher (forexample) now provides relatively less meaningful protection. It may be thatsufficiently equivalent protection exists by the teacher taking other steps, such asstaying away if unwell, wearing a mask, maintaining social distancing, and testing.The extent of community transmission in existence may mean that comparatively littleis gained by requiring educators to be vaccinated.[135] For reasons I have already explained it may be the function of the Court toconsider whether a change in circumstances means that an order that has been put intoeffect is no longer demonstrably justified in a free and democratic society. But thereare three relevant factors that need to be considered when assessing that issue here:(a) First is that there is an inherent limitation on the Court's ability toaddress matters contemporaneously. It can only address issues thathave been properly advanced by fair procedures.(b) Secondly, in this particular case there have been limitations on theevidence and submissions presented to the Court.(c) Finally, the Act itself contemplates such changing circumstancesthrough s 14(5) which obliges the Minister and the Director-General tokeep the Order under review. That is the appropriate place where sucha re-assessment should occur given the fast changing nature of thepandemic and the need to respond to it by prompt action. Here thegovernment itself has now announced that the education sector mandatewill be removed, and the scope of the health and disability sectormandate will be reviewed and potentially narrowed.[136] Against that background the precautionary principle also remains one of keysignificance. I recognise the view of the applicants' experts that vaccination may makematters worse rather than better. But I am not persuaded of this. I accept thatvaccination has apparent benefits in reducing transmission. I do so notwithstandingthe requirement for a booster, which is critical to retain beneficial effect, has been setat a period of time that may not have a rational basis. I also accept the benefits nowseem less apparent and the point may have been reached where the reduced benefitsmean that the measures are no longer demonstrably justified.[137] The Omicron variant has significantly changed the assessment, and hasrequired the Order to be reconsidered. That has now occurred, at least in part. Theeducation sector mandate has now been revoked, and the scope of the health anddisability sector mandate is to be reviewed. So ultimately the critical issue is one oftiming.[138] Given the significant limitations I have explained I do not accept that theeducation mandate was not demonstrably justified at the time of trial,65 andaccordingly at any material time before it was revoked. I accept that it was justifiedwhen it was put into effect in October 2021, and that has been reviewed and thenrevoked as appropriate given changed circumstances. It remained a demonstrablyjustified measure for that period.65 Or perhaps, more accurately, a point before trial when the parties had had a fair opportunity toaddress the issues in their evidence.[139] The position concerning the health mandate is more complex as the Crown'sstance is that this mandate will continue, but its scope will be reviewed. I accept thatthe mandate was demonstrably justified as at the time of trial notwithstanding a changein circumstances created by the Omicron variant. I agree that its justification is lessapparent for some currently captured by the Order such as dentists or other healthprofessionals for whom the factors in paragraph [71] are not all applicable. It may bethat any justified mandate would be limited to particular health and disability sectorenvironments such as hospitals and aged residential care facilities. But the Court isnot in a position to reach a definitive finding on this given the limitations in theevidence and submissions before it.[140] It is also appropriate to record that even a more limited health and disabilitysector mandate may need an assessment on whether a mandate under the Act is trulynecessary given the alternative vaccination measures that would otherwise beavailable. Hospitals and aged care facilities, for example, are likely have very highvaccination rates in any event, and an ability to impose vaccination requirementswithout the need for an order under the Act. That will likely need to be considered aspart of the review.[141] Mandates under the Act should not be imposed to introduce measures thatconcern business as usual. The measures implemented under the Act must beconsidered as emergency measures only. When the Attorney-General first reported toParliament on the compliance of the proposed Act with the Bill of Rights one of thereasons why the proposed legislation was assessed as compliant was that it did notrequire a person to undertake any particular ongoing form of treatment.66 TheAttorney-General's report also stated:67In our view, for a public health crisis to justify significant intrusions onprotected rights and freedoms the situation must:(a) be of an exceptional and temporary nature;(b) pose an actual or imminent threat; and(c) affect all branches of the life of the community.66 Hon Andrew Little "Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 PublicHealth Response Bill", above n 6, at [33].67 At [21].The last two factors are taken from the decision of Lord Bingham in A vSecretary of State for the Home Department.68 Although that case concerneda terrorist threat, we consider that the same criteria need to be satisfied in thecase of a public health threat.[142] Without expressly endorsing this criteria I agree with the general thrust of thepoint. The fact that COVID-19 continues to pose a threat justifying a notice under theEpidemic Preparedness Act 2006 may not be sufficient in itself. The kind of measurescontemplated by the Order involve more immediate threats justifying an emergencyresponse in order to justify the significant limitation of fundamental rights.[143] Vaccine mandates, as emergency measures, need a justification of this kind.The evidence as it is emerging may suggest that a sufficient justification of this naturemay no longer exist. Normal measures imposed by employers by usual requirementsmay be sufficient. They are also potentially more flexible, including on issues such asbooster or further doses, and in relation to exemptions. But I am not in a position toconclude that this point was reached before the Prime Minister's announcement thatthe mandates would be removed for the education sector, and potentially narrowed forthe health and disability sector. Neither am I able to conclude that any narrowermandate in the health and disability sector cannot be justified. The state of theevidence, as presented, means I do not make that finding. For these reasons I acceptthat the measures in the Orders remained a demonstrably justified limit on the rightsin the Bill of Rights at the time of trial, and that the Order is not unlawful on this basis.The applicants' claims on this basis are accordingly dismissed.[144] Finally, and for the avoidance of doubt, I dismiss the applicants' challengesbased on unreasonableness or irrationality on the same basis. They do notmeaningfully add to the challenge focussed on whether the Crown has demonstrablyjustified the limitation of rights.Challenge to exemption criteria[145] The applicants' final head of challenge is that the criteria for obtaining anexemption to the vaccination requirements established by the Order were unreasonableor irrational, or applied in an overly rigid way such that the Order should be set aside.68 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.[146] The primary obligation in cl 7 of the Order is that an affected person not carryout certain work unless they are vaccinated. That was later amended to also requirethe booster. When initially enacted on 25 October 2021 cl 7A of the Order establisheda process for medical exemptions to be granted by suitably qualified healthpractitioners. That clause has since been revoked. Dr Bloomfield explains that therewas a concern that a small number of medical practitioners were providing medicalexemptions when they were not clinically justified. A decision was made to move toa centralised system in order to ensure consistency of decision-making, and to makesure the system was not abused.[147] The Order was accordingly amended on 5 November to introduce cl 9B and atable specifying the categories of person who could be exempted from the vaccinationrequirement. The new procedure contemplated a medical practitioner or nursepractitioner applying to the Director-General for an exemption in accordance with thecriteria in the table. The exemption criteria in the table were developed by the ClinicalAdvisory Group at the Ministry of Health chaired by Dr Town. The criteria were firstgazetted on 12 November 2021 and were then reviewed. The criteria were amendedon 19 January 2022.[148] When originally established the power to grant an exemption was contained inthe Order itself, utilising the power in s 12(1)(d) of the Act. This section provides thatorders under s 9 could authorise the Director-General to determine that the order didnot apply in particular circumstances. The position was made clearer by amendmentsmade to the Act on 25 November 2021.69 The amendments inserted s 5(3) of the Actwhich provides:(3) The Director-General may make a notice specifying (for the purposesof all or any legislation in, or made under, this Act)—(a) COVID-19 vaccination exemption criteria:(b) for the purposes of a COVID-19 vaccination, the required dosesfor each COVID-19 vaccine or combination of COVID-19vaccines.69 COVID-19 Response (Vaccinations) Legislation Act 2021.[149] Part of the applicants' challenge included an allegation that the Director-General did not have the power to issue the exemption criteria although the argumentwas not pressed by the applicants in their submissions. Section 5(3) of the Act makesit quite plain that he could do so. I also accept that prior to the introduction of s 5(3)it was likely within s 12(1)(d) of the Act for the Director-General to do so. There isno need to read down that provision.[150] The real thrust of the applicants' arguments was that the exemption criteriawere unreasonable, or are being applied overly rigidly or arbitrarily/unreasonably.Ms Green took me to cases of individuals who had not been granted an exemptionnotwithstanding their personal circumstances. Some of those who filed affidavitsbelieve that they were harmed by the vaccine. For example, one teacher said he washarmed by his first vaccination in November 2021 and was admitted to hospital inDecember with pericarditis. He applied through his GP for an exemption in earlyDecember but was declined. Other witnesses describe similar adverse reactions. Yetothers had concerns given their own health background. For example, one schoolprincipal has had three heart attacks and does not wish to be vaccinated. He appliedfor and was declined an exemption. There are other cases of this kind.[151] I accept that these people, and others have understandable concerns aboutvaccination because of their own health background, or a concern that they may havehad an adverse reaction to the vaccine (or some other vaccine). But the Court is notwell placed in a judicial review to make decisions about individual cases, and I did notapprehend that I was being asked to do so. Rather the evidence was put forward insupport of the argument that the exemption criteria themselves were unreasonable, orwere being unreasonably applied.[152] I do not accept these arguments. The respondents' evidence establishes thatthe exemption criteria are based on clinical grounds. If there was an additional clinicalcriteria that should have been included then that would need to be established by theapplicants filing appropriate expert evidence about that further category. It is difficultfor the Court to uphold a challenge to clinical criteria based on individual assertionsabout personal circumstances in affidavit evidence.[153] I agree with the respondents that it was appropriate to assess exemptions onclinical grounds. To allow exceptions when circumstances were understandable, butnot clinically indicated, would have been difficult. More generally I accept that therewas a relevant concern that allowing exemptions on a basis permitted by individualhealth practitioners was open to abuse. It is apparent from this very challenge thatthere are general practitioners, and other health professionals, who are stronglyopposed to vaccination. In those circumstances it was understandable that theMinistry made the decision to centralise the exemption process, and to do so onlythrough clinically prescribed criteria. That is what the procedures followed haveinvolved, and it is expressly authorised by the Act under s 5(3).[154] For these reasons I dismiss the applicants' challenge that the exemption criteriaare unreasonable, irrational or applied in an unreasonable, irrational or overly rigidway. I note, however, that one of the reasons why any narrower health and disabilitysector mandate may be more appropriately implemented under normal employmentobligations rather than by orders under the Act may be precisely because of the greaterflexibility that is possible in that context by comparison to the more hard edgedapproach mandated by orders under the Act.Summary of the Court's conclusions[155] For the above reasons I dismiss the applicants' claims.[156] I accept that the right to be free to refuse medical treatment is a significant onewhich is based on individual autonomy. It is also reflected in the concept of informedconsent that is central to the practice and ethics of medicine. But I do not accept thatit is an absolute right. It is subject to reasonable limits, prescribed by law, that aredemonstrably justified in a free and democratic society under s 5 of the Bill of Rights.That view is not only consistent with international authority, but is consistent with theapproach that has been adopted in New Zealand in separating out the right to refusemedical treatment from other more absolute rights in the Bill of Rights.[157] I also accept that, subject to the disputed questions raised by the applicants,justification existed in the health and disability sector, and education sector for themandates when they were implemented in October 2021. In the health and disabilitysector the close interaction between health professionals and patients, the patientspotential vulnerability, the limitation on the ability of patients to make informedchoices, and the need to keep public confidence in health services providedjustification for the mandate. These arguments are less significant for some healthprofessionals, such as dentists, but the potential justification nevertheless arises.[158] I also accept that such justifications existed in the education sector. It wasimportant for students to be able to learn in a school environment, and thatenvironment created a potential transmission risk. In effect the community wasrequiring significant numbers of children to congregate with others, and with adults.There was a risk of COVID infection for the children, but more particularly a risk tothe community that the children interacted with. That potentially justified a riskminimisation approach, albeit the justification is less clear cut than in the health sector.[159] I have considered three main factual matters the applicants have contested,particularly through their expert evidence, but also their evidence more broadly giventhese justifications.[160] First, it is clear that vaccination had a significant role in minimising thetransmission of the virus at a time when the mandates were in place in October 2021.The emergence of the Omicron variant at the end of November calls into question thelevel of protection arising from the vaccine mandates, however. The evidence stillsuggests, on the basis of clinical studies, that vaccination has an effect in reducingtransmission. But the largely uncontrolled community spread of Omicron may makeany benefit from measures such as the mandatory vaccination of teachers relativelyless significant and accordingly less justified. It was factors of this kind that have ledthe government to recently revoke the education sector mandate. Based on theevidence and argument before the Court it is not possible for me to conclude that theremaining benefits of vaccination are non-existent, or that any limited benefit meansthe measure was unjustified at a point of time prior to the Government's decision torevoke the mandate in the education sector, and potentially limit it in the health anddisability sector.[161] Secondly, I do not accept the applicants' expert evidence that there areunknown safety concerns relating to the Pfizer vaccine that mean that mandating it isnot justified. There are known side effects from the vaccine in a limited number ofcases. There is no basis to conclude the adverse effects are actually more significant.The vaccine went through a very thorough process when originally obtaining approval.Moreover the extent to which vaccination has taken place internationally would meanthat any unanticipated adverse effects would have revealed themselves by now. I donot accept the applicants' arguments about safety for these reasons.[162] Thirdly, I do not accept the applicants' argument that there have been adverseeffects from the vaccine mandate for health and education professionals, and for thewider community, that mean that the mandate was and is not justified. There haveplainly been adverse effects. This is particularly apparent in the education sector giventhe onward affect for wider communities. But some of those communities areprecisely the communities that may be most at risk from COVID-19. So the adverseeconomic and social effects by prohibiting unvaccinated teachers from working, forexample, is not out of proportion to the benefit to these communities in reducing thepotential harm caused by COVID-19 itself.[163] For these reasons I accept that the education sector mandate was, and remainedjustified through to when it was revoked. The position in the health and disabilitysector is more complicated as the Crown has advised that it intends to continue themandate in that sector, but with a potentially narrower scope. I agree that the currentscope of the Order may be too broad. But I am nevertheless satisfied that, at the pointof trial, the Order as implemented remained justified. That view proceeds on the basisthat there will now be a full assessment of the scope of the Order. If the Order is notreduced in scope it may become unjustified.[164] Moreover the continuation of the health and disability sector mandate for evennarrower areas such as hospital and aged residential care facilities may need to involvean assessment of whether vaccination requirements can be satisfactorily addressed byexisting employment and other measures that mean that the emergency measurescontemplated by the Act are not necessary.[165] Ultimately the question concerning the justification for the COVID-19mandates now comes down to a question of timing. Such mandates can only bejustified as emergency measures. At the time they were introduced in October 2021the Delta variant was the dominant variant. The emergence of the Omicron varianthas changed the dynamics, and on 23 March 2022 the Prime Minister announced thatthe education mandate would be removed, and the health mandate potentiallynarrowed. I am not persuaded that these changes were too late, or that the mandateshad become unjustified prior to that point. I accept that there remains an issue aboutthe scope of the health and disability sector mandate and its continuation, but that willneed to be addressed in light of the dynamics of the Omicron variant, and thecontinuing public benefit from mandatory vaccination under the Act. The Court is notin a position to conclude that any remaining mandate in the health and disability sectoris unjustified, at least at the time of trial.[166] I also conclude that the challenge to the exemption criteria should bedismissed. I am not persuaded that the criteria themselves were unduly narrow, or thatthey have been applied in an unlawful way. But a more flexible approach toexemptions under employment arrangements may be more appropriate for anynarrower health and disability sector vaccination requirements.[167] For these reasons the applicants' judicial review challenges are dismissed. Ifthere is any issue in relation to costs I will receive memoranda (no more than fivepages plus a schedule for each party).Cooke JSolicitors:Haigh Lyon, Auckland for the First ApplicantMcKenna King, Hamilton for the Second ApplicantCrown Law, Wellington for the Respondents