An employment lawyer told the High Court that the mandatory vaccination order issued under the Covid-19 Public Health Response Act was unconstitutional and exceeded the Act’s original intent.
Ashleigh Fechney has been granted leave to appear in court on behalf of her client – a Customs worker who was dismissed from her job for refusing to get vaccinated.
Fechney said the vaccination order was an abuse of power under section 11 of the Response Act and the orders for mandatory vaccination were never an intention of the Act.
“The orders are too wide and go too far… it was never intended that section 11 would allow this,” she said.
“The applicant does not deny the efficacy of the vaccine, but the [order] goes beyond what is necessary.”
Section 11 of the Act gives the Covid-19 Response Minister Chris Hipkins or Director-General of Health Dr Ashley Bloomfield the power to create orders, including the restriction of people’s movement.
Fechney said there were protections in section 9 of the Act, and there was no way the minister could have been satisfied these were met when signing off on the order.
These included the provision the minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act.
Crown lawyer Austin Powell, acting for the Hipkins, said the Act allowed for “extraordinary power”, but these were “extraordinary times”.
He claimed that there were effective checks and balances against that power, such as section 9 and the right to judicial review.
Fechney also argued that her client’s identity should be protected because the issue at hand was larger than the worker’s employment status, and she did not want to be associated with the “anti-vax” movement.
The judicial review is scheduled to be heard in the High Court in Wellington for two days.
Justice Churchman has agreed to continue the worker’s interim non-publication orders while the case is being heard, but has stated that this will be reviewed.