The review of the NZDSOS Court case has been written by individuals with medical training, not legal backgrounds. Numbers in brackets refer to the paragraphs in Justice Cooke’s judgement. For a short read, see this post.
11 Right to refuse to undergo medical treatment
- Everyone has the right to refuse to undergo any medical treatment
5 Justified limitations
- Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
NZDSOS and NZTSOS filed a case in the courts of New Zealand to dispute the usefulness and validity of Covid-19 vaccine mandates for education staff and health workers in New Zealand. We challenged the Order (COVID-19 Public Health Response (Vaccinations) Order 2021) made under s11 of the Act (Covid-19 Public Health Response Act 2020).
Our claims were (35):
a) that the right to refuse medical treatment affirmed by s 11 of the Bill of Rights is an absolute right not subject to any limitations under s 5, and the Order ought to be set aside as invalid;
b) that the Crown cannot, or can no longer show that the Order involved a reasonable limit on this right that is demonstrably justified in a free and democratic society in accordance with s 5;
c) that the Order is unreasonable and/or irrational and ought to be set aside. This argument is likely subsumed within (b) above;
d) that the exemption criteria are unreasonable, irrational or being applied overly rigidly and the Order ought to be set aside, or other appropriate relief granted as a consequence.
Justice Francis Cooke presided over the case which was heard on 3, 4 and 7 March 2022.
Affidavit evidence from four international expert witnesses was presented by our lawyers:
- Associate Professor Byram Bridle (Canadian immunologist and virologist)
- Dr Geoff Cramp (NZ Medical Officer of Health in Waikato)
- Professor Nikolai Petrovsky (Australian vaccine developer and vaccine related immunology specialist)
- Professor Norman Fenton (UK Professor of Risk Information Management)
Dr Peter McCullough, cardiologist, with additional training in public health medicine also provided affidavit evidence but this does not seem to have been mentioned or considered.
Meanwhile, the Crown relied solely on written evidence from Dr Ian Town and Dr Ashley Bloomfield. The Crown did not put forward any evidence from experts in vaccine development, immunology, epidemiology, clinical medicine or any other relevant area. Why was that, were they only there for show and knew the outcome already?
The lawyers for NZDSOS presented first, followed by the lawyer for NZTSOS, then the Crown presented its evidence.
The judgement was released on Friday 8 April 2022. In his summary, Justice Cooke dismissed our claims, stating:
- that the evidence showed that vaccination (at least at the time the mandates were introduced in Oct 2021) reduced transmission sufficiently to justify a mandate,
- that there was no evidence of safety concerns relating to the vaccine that would detract from mandates,
- that the vaccine exemption criteria were adequate and were applied in a lawful way,
- that there was no significant adverse impact on staffing and morale in the health and education sectors as a result of mandates.
We would like to examine this NZDSOS court case ruling in more detail and describe where we disagree with the judge and point out deficiencies in his reasoning.
In the very first paragraph of his ruling the judge has shown his bias and mis-represented us by saying “… health practitioners who are opposed to vaccination…” What we have been opposed to is lack of informed consent and mandating of medical procedures. We do have significant questions and concerns about this particular vaccine (which is more akin to a gene therapy than a traditional vaccine) but we are not ‘opposed to vaccination’.
Background to the NZDSOS Court Case
In providing the background and setting the scene, the judge repeatedly stated that his role and that of the court (judiciary) was to determine whether vaccine mandates were “a reasonable limit of a right protected by the Bill of Rights Act 1990 (BORA) as can be demonstrably justified in a free and democratic society”. His role was to ensure that the stringent test (of proving the limits to be reasonable and demonstrably justified) was passed.
It might be important to consider that in a “free and democratic society” there would be the ability to discuss and debate and be free from censorship. This has not been the case for the last two years, so the judge living in this society has been exposed to only one side of the discussion (namely that we are in the middle of a global pandemic of unprecedented proportions, that a vaccine is the only option and that that vaccine is safe and effective) but has completely missed out on hearing any other points of view or evidence to the contrary (unless he has been sufficiently interested to seek them out).
One alternative view is that there is a viral infection in circulation that affects mainly the frail elderly with a mortality similar to a bad flu, that it is treatable with existing medications and that there are numerous things individuals and society could do to mitigate the effects. Also, that a vaccine developed under Operation Warp speed, which is still in the clinical trial phase until 2024, might not be the most sensible thing to impose on the whole population of New Zealand, particularly on those who are young and healthy or those who want to retain their fertility.
According to the Courts of New Zealand the Judiciary are independent of the other branches of Government – Legislative and Executive, so in theory the judge was independent and not able to be influenced by government policy or decree.
The onus was firmly on the Crown to convince the judge that there was watertight evidence that the measures were justified. There should have been no wiggle room, no doubts or uncertainties. The Crown should have been able to refute our arguments.
This does not appear to have happened. The following goes through the ruling in detail and highlights the salient points.
The judge noted in relation to the Pfizer vaccine (11) that “Provisional consent for its use under the Medicines Act 1981 was given in February 2021.” The fact that it only obtained provisional consent, and only had provisional consent renewed in October 2021 rather than full consent granted, suggests that there are still some concerns about either its effectiveness or safety (or both), or still data missing such that it does not meet the required standards for full consent.
He refers to the 4 aviation workers case (16) and says the mandate was in place to contain the spread until a greater portion of the population was vaccinated, more was known about treatments and the health system was better able to cope. It is interesting to note that overseas there were effective treatments being used that were suppressed in NZ, and that not much, if anything at all, has been done to increase health system capacity. In fact, healthcare staff have been mandated out of jobs and residency applications for doctors have been paused causing many to return to their countries of origin. Our health system is now more compromised than it was prior to the pandemic.
“If an order is inconsistent with the Bill of Rights, including following any relevant justified limitation enquiry under s 5, then it is unlawful and can be set aside.” (41)
Our team set out to demonstrate that forcing someone to undergo a medical procedure was inconsistent with the Bill of Rights and could not be considered reasonable or demonstrably justified with the evidence available and with significant uncertainties regarding the safety of vaccination against Covid-19.
(67) When considering whether there was a justified limitation of a right, the court must undertake a proportionality analysis. This involves a series of four questions as follows:
- Does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?
- If so, then:
a) is the limit rationally connected with the objective?
b) does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
c) is the limit in due proportion to the importance of the objective?
Justice Cooke refers to this series of questions in his decision. However, he immediately undermines the process by stating that it should not be applied as a rigid test (68). Our legal advice indicates that this series of questions has been designed to be applied in a strict sense, rather than applying the general intent of it. These questions are internationally recognised when determining whether a limitation of a right is justifiable and are applied strictly within New Zealand when the Attorney General assesses the consistency of proposed bills against the rights contained in the Bill of Rights Act (BORA).
While questions 1 and 2(a) could be argued by the Crown (generally a low bar is set by courts with respect to these two questions), closer examination of 2(b) and (c) may be more challenging for the Crown to demonstrate. We believe there are a number of other measures that could have been put in place to achieve the objectives of the Covid Public Health Response Act 2020 that would not have impaired the rights and freedoms of New Zealanders in the way mandatory vaccination has.
The judge noted (81) that if there are other more rights-compliant ways of achieving the outcome, a measure may not be justified. At this point he could have considered regular testing, staying home when unwell and use of available treatments for Covid-19. However, those measures were not considered and so question 2(b) was passed over. We suggest the answer to question 2(b) should have been ‘no’. There are many actions that could have been taken to limit the spread and transmission of Covid-19 that were more effective than the leaky vaccination and would have resulted in a lesser limitation of the individual’s rights.
Equally, the crux of the proportionality process, in question 2(c), requires the court to weigh up the limitation of the right (to decline medical treatment) against the importance of the objective of the overarching law (to prevent the outbreak or spread of Covid-19). Given the extent of the infringement of a person’s rights by requiring mandatory vaccination, the limitation of this right (forcing someone to have a medical procedure to maintain employment) must be a proportionate response to the objectives of the overarching law (to prevent the outbreak and spread of Covid-19).
Even in October 2021 when the vaccination orders were put in place, there was ample evidence available that the vaccines did not prevent the outbreak and spread of Covid-19. Mandatory vaccination has proved to be an ineffective measure and amounts to a disproportionate limitation of a right. We suggest the answer to question 2(c) should also have been ‘no’.
The judge has acknowledged (69) that “if the applicants are correct that the vaccine is ineffective in limiting the spread of COVID-19 and/or it is unsafe, then the mandate will not likely be demonstrably justified.”
He states that the determination of this “depends on certain factual matters that are in dispute — principally whether mandatory vaccination does in fact diminish transmission of the virus, whether the vaccine is safe, and whether there are other adverse impacts of the mandates that outweigh any such benefits” (76)
In order to assess whether the mandates were justified (83) he needed to assess the disputed evidence in the following areas:
- the extent to which vaccination inhibited the spread of COVID-19, particularly in light of the Omicron variant;
- the extent to which the Pfizer vaccine has safety concerns; and
- whether there were adverse effects from a mandate that outweigh any public benefit in vaccination.
He noted that the Crown had “a reasonably high threshold to meet”, as should be expected if limiting the rights of a significant part of the population.
The crux of the matter is summarised (87) when the judge says: “There is plainly a contest of expert evidence between Doctors Town and Bloomfield on the one hand, and Professors Bridle and Petrovsky and Dr Cramp on the other.” He omitted, ignored or glossed over the evidence from Professor Fenton and Dr Peter McCullough.
This evidence from Professor Fenton included that all-cause mortality (rather than just deaths from Covid-19) was higher in the vaccinated than the unvaccinated in the UK and that both the Covid-19 mortality rates in the UK, and the safety and effectiveness of the vaccines were exaggerated, meaning that, on purely statistical grounds, there was no clear reason for mandating vaccines, especially to healthy people.
The judge noted that the ability to cross examine may have been useful but then goes on to explain why this did not occur. NZDSOS did not pursue this option on the basis of legal advice, and the judge declined the application submitted by NZTSOS as he felt it was too wide ranging.
The Crown did not apply to cross examine our witnesses. Maybe they would have learned something if discussion was allowed. Were they fearful of being shown up?
He discusses some of the shortcomings in the case (88) which essentially meant the court was unable to make findings on some of the more technical aspects of the case – no conferral between expert witnesses, affidavits not directed to precise questions, our expert evidence more broad-ranging, our submissions apparently not sufficiently focussed on the issues arising from expert evidence.
“The Crown did not file independent expert evidence addressing the questions that had been addressed by the applicants’ expert witnesses. The evidence filed by the Crown did not seek to respond to all the issues the expert evidence filed by the applicants addressed. The Crown’s evidence did engage on some issues — for example the safety of the Pfizer vaccine — but many of the opinions expressed by the applicant’s experts were not responded to. Rather Drs Bloomfield and Town put forward their own views explaining why the vaccine was safe and effective. In effect I had two sets of expert evidence, effectively in parallel, on many of the important issues rather than evidence that directly responded to each other.”
This paragraph (89) seems to us to demonstrate the limited usefulness of the courts for deciding the outcome in such a case. The judge is not a scientist or a doctor, he is not bound by the moral or ethical values of the medical profession, there was no cross examination to help him understand the issues at play, the two sets of evidence were in parallel rather than addressing each other, there were significant points in our evidence that the Crown just ignored so they were not considered, the Crown did not want to engage in cross examination (lest it be found lacking?) so basically the judge had to decide who to believe instead of understanding the science and scientific evidence with its various limitations and foibles.
What is the point of providing evidence if it can just be ignored and not responded to?
He did allude to ethics of medicine when discussing Dr Cramp’s evidence: “A key aspect of his evidence is that there is uncertainty about the safety of the vaccine, and that mandates are fundamentally inconsistent with usual medical practice and the principle of informed consent”.
The judge assessed the evidence on vaccine efficacy first.
He contradicts his previous statements, in which he admitted that factual matters were in dispute and there was a contest of expert evidence, with the assertion (95): “The evidence is clear that vaccination reduced both infection and onward transmission of the original versions of COVID-19, and also reduced the seriousness of illness when it occurred (and accordingly hospitalisation and death rates).”
We state that even with the original version of Covid-19 the evidence was not clear that there was a significant effect from the vaccine on transmission or illness severity. The clinical trials for the Pfizer vaccine were not designed to assess the effect of vaccination on transmission of infection.
Justice Cooke has made other statements that suggest the evidence is not so clear:
- “… given the uncertainties about the effect of the vaccine in reducing transmission…” (16) this when discussing his previous court case with four aviation workers in October 2021
- “…questions were arising on the continued effectiveness of vaccination to meaningfully control the spread of the virus.” (28), when referring to the police and NZDF case in Feb 2022
- “…the Omicron variant has reduced the ability of vaccination to prevent community transmission.” (97)
- “I am not able to make definitive findings on the continued effectiveness of vaccination to suppress the transmission of the Omicron…” (108)
Both the Pfizer and Moderna CEOs have publicly stated that their vaccines are not particularly effective against Omicron.
His summary of our witnesses’ views on the efficacy of the vaccine (98) is “the key aspect of all this evidence is that the benefit of vaccination is likely to be temporary, and that the Omicron variant will still ultimately make its way through the community in any event such that vaccination has little beneficial effect, and may in fact be harmful.”
In contrast both Drs Town and Bloomfield gave evidence “that vaccination may continue to limit the spread of the Omicron variant.” Dr Bloomfield has stated that vaccine efficacy after the booster is 55-69%. Well surely that in itself should mean that mandates are illogical. Not everyone is going to be protected even if they are vaccinated. A sizeable number of vaccinated people will still be susceptible and able to transmit a viral infection. This is what we are and have been experiencing. And ‘may continue to limit’ is not watertight or demonstrably justified. It is wishful thinking.
Dr Bloomfield tried to suggest that slowing the spread of Omicron would prevent the health system from being overwhelmed. The health system was overwhelmed and unable to function optimally well before Covid-19 and nothing has been done to strengthen and support it.
The judge at least noted that Dr Town appeared to be urging some caution: “[He] stresses that evidence concerning the effectiveness of [sic] Omicron is still emerging, and it was important not to express certainty when that is not warranted.” Presumably he meant “…effectiveness against Omicron…”
The judge accepts (103) that the studies provided by Drs Bloomfield and Town back up what they have stated. Does that mean he read or understood them or just accepts the evidence from the doctors?
He accepted (105) that the proposition that vaccination materially limits transmission of the Omicron variant is now much more debatable, but then goes on to ignore rather than engage with, the debate.
He made a good point (106), in that he stated he was perplexed by the requirement to have a booster 6 mths after the second dose if the evidence was showing that (boosted) immunity waned much more quickly. “Indeed this period of time seems to me to be irrational if the whole purpose of the mandate is to ensure maximum protection against transmission.” If he thought this was irrational, perhaps he could have expanded his thinking to enquire whether the rest of the recommendations were also irrational or illogical.
He reiterated (113) the difficulties posed by having two sets of evidence in parallel without the capacity for expert conferral or cross examination. It makes a mockery of the whole process and is an extension of what has occurred in society over the past two years – the lack of discussion or debate. Disagreement, discussion and debate are the underpinnings of science. Science is never settled. It is always evolving, unless funding conflicts of interest determine otherwise.
However, a new dogmatic and fundamentalist religion has appeared: “scientism”. As illustrated by the government’s statements, this disallows for debate or even acknowledgement of opposing evidence, and simply says “My science is settled, yours upsets me so you have to shut up”. Sounds familiar, as an illustration of the the snowflake crybully tactic that has shut down debate in all areas of society’s life, which can only thrive on debate and testing of established values. Plainly the judge came up against this, but deferred from giving proportionate weight to the side that presented wide-ranging evidence over the one insulting the court with a desultory submission (again, in our view).
Justice Cooke moves on to discuss the safety of the vaccine and agrees this “could be highly material to an assessment of whether mandating it was demonstrably justified”. It is our opinion that this is the key concern, much more so than efficacy. If a medical procedure can harm or kill a person then it MUST be voluntary and should NEVER be mandated.
So far in New Zealand, CARM has accepted that 3 deaths are likely due to the vaccine. These three deaths are in young people who are highly unlikely to have been adversely affected by Covid infection – a teenager, a 26 yr old man and a woman in her 50s. That is three deaths too many. It is our contention that there are also many more deaths that need investigating as potentially caused by the vaccine. And that does not take into account all the others who have been seriously injured.
In any case, if there is a risk of death from a procedure then surely a mandate can’t be demonstrably justified. If that statement is contested, then there must be a discussion of how many collateral deaths are acceptable for the ‘greater good’, if indeed we are in a free and democratic society.
The judge has agreed with this to an extent: “For the state to pressurise particular categories of employees to vaccinate when there were safety concerns might be hard to justify.” (114) We state again that there are significant safety concerns including a risk of death, and there is no “might” about it.
However, the judge was not satisfied that there were unaddressed safety concerns even though he acknowledged that there was no long-term safety data. He stated that any safety concerns would have revealed themselves by now! Does he not know about thalidomide or diethylstilboestrol and many other drugs whose adverse effects were only ‘discovered’ a long time after approval? In any case, we do not need to wait any longer. One look at the Medsafe Safety Reports shows there are numerous adverse events. The latest one has 3,287 serious reports (potentially life-changing events such as strokes, blood clots, heart attacks, myocarditis) listed and a total of 62,086 reports. This is echoed in worldwide databases.
Very early in the rollout Medsafe would have been aware of the initial Pfizer 3-month post marketing data. This was approved for release by Pfizer in April 2021. So according to condition 57 of the provisional consent, Medsafe would have had that data within a short period of time. This showed that in the first three months of post marketing surveillance there were 1223 deaths and over 42,000 case reports of adverse events disclosed to Pfizer. This is a red flag, an alarm that should have been heeded. Historically a vaccine program would have been halted on the basis of far fewer fatal outcomes.
Medsafe is well aware of under-reporting and this is well known internationally also. Medsafe states on its own website that only 5% of events are expected to be reported. This would be consistent with our experience and what we are hearing from colleagues and many patients.
The Government itself was expecting 1.1% of vaccine recipients to experience a severe adverse event that could necessitate a week off work when discussing vaccine uptake among border workers. If a medical procedure has a 1.1% risk of severe adverse event, how can mandating it possibly be reasonable and demonstrably justified in a free and democratic society? That is Russian roulette.
He has spoken about the ‘pressing need’ to find vaccines but he has not explored the evidence around effective treatments. We state that there is, and was, no pressing need as Covid-19 could be treated with readily available medications for those that needed more than supportive care. In addition, there were, and are, measures individuals could have taken to reduce the impact of infection on them or their family members. We have written and posted extensively on these, and such evidence has been heard in NZ courts.
Effects of Mandates on Sectors
After glossing over the significant safety aspects, which is why many people are reluctant to be vaccinated, and why the mandates are so egregious, the judge moves on to the effect of the mandates on the respective sectors.
There was discussion about the effect the mandates had on the well-being of employees in both healthcare and education. The education sector presented more evidence about the adverse impacts on both staff and schools but the judge also noted that patients were adversely affected by the loss of their doctor or dentist or by reduction in hospital specialist staff.
The lawyer for the Crown suggested that the communities affected by reduced school staffing may be the very same communities most vulnerable to serious outcomes from Covid-19 infection. (126)
There was brief consideration of whether the exemption criteria were unreasonable or irrational or being applied in an overly rigid manner. The judge dismissed this saying Dr Bloomfield considered that “a small number of medical practitioners were providing medical exemptions when they were not clinically justified”. (146) A centralised system was set up “to make sure the system was not abused”. There was no consideration given here to the doctor-patient relationship or other moral values that medical practitioners have or any respect of patient self-determination. Many people sought exemptions due to significant, often life-threatening adverse events following the initial injection, which in our opinion were clinically justified. A number of others sought exemptions for personal beliefs which is usually perfectly acceptable in medical practice. For a number of New Zealanders, being forced to undergo this medical procedure was perceived as akin to torture or rape. With such a degree of emotional distress, most medical practitioners previously would have considered this sufficient grounds to provide an exemption.
The Crown case was that clinical criteria were used for exemptions (152). “The respondents’ evidence establishes that the exemption criteria are based on clinical grounds.” These particular clinical grounds are not consistent with usual medical practice and have been narrowed to such an extreme extent that virtually no-one qualifies.
In summarising here, the judge has repeated his incorrect assessment of us stating that “It is apparent from this very challenge that there are general practitioners, and other health professionals, who are strongly opposed to vaccination.” (153) We reiterate that we are not opposed to vaccination. We are opposed to this gene therapy masquerading as a vaccine being forced on the whole population. We are also concerned by the lack of informed consent and the coercion to undergo this medical procedure when it carries significant risk, including the risk of death. Collectively we have prescribed, administered and taken many vaccines. In our humble view, Justice Cooke’s incorrect and his reductionist assertion is a fallacy and raises questions of independence, as even he himself has been subjected to the relentless and derogatory epithets put out by the government to depict and dismiss Comirnaty sceptics as “anti-vaxxer” dogmatists on principle.
This raises a vital point that is pertinent to every court action involving the Covid vaccination and it’s mandates. The judges’ very presence in their courts demonstrates their own vaccine choices, and it is of note that the six high court challenges so far have been heard by only three of them, our Justice Cooke having heard half himself. These highly intelligent people have made personal health decisions that the appellants in these cases come along to attempt (indirectly) to undermine. Is it appropriate to request “Judge, know thyself” here, especially when it seems so many doctors don’t either? How can these judges know the extent to which their behaviours and views have been “nudged” by military -grade manipulation techniques, unless they are trained psychologists, or have reflected deeply on the inner mind and it’s immensely complex hidden defence mechanisms against the shame and fear of making mistakes, or even of potentially harming their own kids? Can we even expect them to go there, given the huge personal emotional stakes?
The judge admitted that circumstances had changed significantly since the mandates were imposed (134). He noted that “the Act itself contemplates such changing circumstances through s 14(5) which obliges the Minister and the Director-General to keep the Order under review.” (135c) He also admitted that “…the point may have been reached where the reduced benefits mean that the measures are no longer demonstrably justified.” (136) It would be good to see evidence that the Minister and Director-General were keeping the order under review, particularly with the significantly changed landscape we are now in.
“When the Attorney-General first reported to Parliament on the compliance of the proposed Act with the Bill of Rights one of the reasons why the proposed legislation was assessed as compliant was that it did not require a person to undertake any particular ongoing form of treatment.” (141) This surely demands further scrutiny as boosters (ongoing forms of treatment) are now being included in the orders made under the Act.
“The kind of measures contemplated by the Order involve more immediate threats justifying an emergency response in order to justify the significant limitation of fundamental rights.” (142) Are we really in an ongoing emergency? Over 95% of the population has been vaccinated and possibly half the population has been infected. Who declares the ‘emergency’ over and when?
Decision and Summary
The judge dismissed our claims stating that the right to refuse medical treatment, which is enshrined in the Bill of Rights Act 1990, is a significant one but it is not absolute. It can be subject to ‘reasonable limits’ if they can be ‘demonstrably justified in a free and democratic society’. (156)
“I accept that the right to be free to refuse medical treatment is a significant one which is based on individual autonomy. It is also reflected in the concept of informed consent that is central to the practice and ethics of medicine. But I do not accept that it is an absolute right. It is subject to reasonable limits, prescribed by law, that are demonstrably justified in a free and democratic society under s 5 of the Bill of Rights.”
He did not accept our expert evidence that there were significant safety concerns (161) with the Pfizer vaccine, both known and unknown. He stated that there was “no basis to conclude that the adverse effects were actually more significant”. We strongly disagree with this. Even Medsafe knows that only 5% of events get reported in a free and uncensored climate. Currently discussion and reporting are heavily censored. Regardless of this censorship, both nationally and internationally, databases are demonstrating unprecedented numbers of severe adverse reactions, including deaths in close proximity to this vaccine.
Neither did he accept (162) that there were “adverse effects from the vaccine mandate for health and education professionals, and for the wider community, that mean that the mandate was and is not justified.”
He has warned that if the order does not reduce in scope, it may no longer be justified (163) and that mandates can only be justified as emergency measures (165).
He states an assessment is needed as to “whether vaccination requirements can be satisfactorily addressed by existing employment and other measures that mean that the emergency measures contemplated by the Act are not necessary” (164).
The original Covid-19 Public Health Response Act 2020 that enabled the Vaccination Order was introduced into parliament on 12 May 2020 and received royal assent on 13 May 2020, so it did not go through the usual consultation or select committee process. It was read three times over two days and passed without any checks or balances and without the ability for those with different views to be heard.
That Act has also been amended on a number of occasions and there has been no consultation or select committee process on any of these bills except one. The Act is legislated to be automatically repealed on 13 May 2023. It can be repealed earlier by parliament. The orders made under that legislation would automatically repeal on that date too.
Under this Act the COVID-19 Public Health Response (Vaccinations) Order 2021 was brought into being. This order meant that people no longer had the right to decline a medical treatment if they wanted to continue their employment in certain roles.
We brought this case to the court on behalf of a large number of healthcare and education workers, as well as on behalf of the people of NZ who may not realise what is at stake. If the Right to Decline Medical Treatment is not absolute then the question has to be asked, who gets to determine what is a ‘reasonable and demonstrably justified’ limitation?
The onus was on the Crown to demonstrate that the overriding of this right was reasonable and demonstrably justified.
The judge has accepted that there is a global pandemic without scrutinising this assumption. Who made this declaration and was discussion allowed? We suggest that there is a pandemic of positive PCR and now RAT tests that has very little to do with clinically unwell people. Do we have a free and democratic society if we can’t discuss and debate the issues that lead to the declaration of an emergency? Who gets to decide what constitutes an emergency?
Despite the ruling of the judge, we assert that the Crown failed to demonstrate to the court , that the limitation on the right to decline medical treatment was demonstrably justified.
The judge stated:
- that there were factual matters that are in dispute,
- that there is plainly a contest of expert evidence,
- that many of the opinions expressed by the applicant’s experts were not responded to,
- that he had two sets of expert evidence, effectively in parallel,
- that the court was unable to make findings on some of the more technical aspects,
- that he was perplexed by the timing of the boosters “Indeed this period of time seems to me to be irrational…”
- that mandates are fundamentally inconsistent with usual medical practice and the principle of informed consent
- that there was no long-term safety data
- that even Dr Town (witness for the Crown) had advised it was important not to express certainty when that is not warranted.
- that if there are other more rights-compliant ways of achieving the outcome, a measure may not be justified
Despite this evidence of lack of certainty, the presence of other more rights-compliant ways of achieving the outcome and while appreciating that medical ethics were being abrogated, the judge chose to believe Drs Town and Bloomfield over our four specialist expert witnesses in matters relating to both vaccine efficacy and safety.
We find it hard to reconcile comments such as those above with the stance he has taken.
If there is that level of uncertainty or inability to assess the evidence surely the limitation of the right (to decline medical treatment) is not reasonable and hasn’t been demonstrably justified.
Although we do not believe the efficacy of the vaccine is anywhere near what the Crown asserted, our main concern was that the judge did not engage sufficiently with the evidence of harm caused by the vaccine.
We remain steadfast that where there is a risk of harm, there must be choice. Otherwise, there must be a discussion of how much harm or collateral damage we, as a society, are willing to accept.
Another aspect that has been completely forgotten or ignored in this case is natural immunity. From time immemorial it has been known that catching an infection provides immunity. This involves the innate and adaptive immune response to a wide variety of antigens (microbes). It is far more intricate than just the development of measurable antibodies. Consideration of whether naturally immune healthcare and education workers should be able to work has been absent until recently and now provisions allow only for a very short window of time in which to work. The naturally immune, of all people, are likely to be the most protected and least likely to transmit infection, and this protection is likely to last significantly longer than any immunity provided by vaccination.
Likewise, there has been no discussion of other ways of managing the ‘pandemic’ and no discussion about early treatment which would make the significance of this infection much less. Conflicts of interest have not been considered either. Who is funding all the ‘experts’ we have been exposed to over the past 2.5 years?
In light of the above comments and the previous paragraph in green, we have decided not to pursue further court action. We are of the opinion that the courts, particularly without the ability to cross examine and engage in debate are not the place to resolve this issue.
We have been shocked by how inadequate and unfit for purpose our legal system seems to be. It does not appear to have the best interests of citizens at heart. Perhaps it is just as broken as the health system and mainstream media are. As alluded to above, can we trust that the judiciary is impartial and that it is in fact independent of the other branches of government? Our trust in the government has been lost over the past two and a half years.
If this right to decline a medical treatment is not absolute, do we need to be considering what other medical procedures can be deemed to be reasonable and demonstrably justified, and by whom?
Thank you to all those who have supported us with this court action.
We note that NZTSOS are planning to continue with the appeal of this judicial review and we support them taking this action. The right of New Zealanders to self-determine is hanging in the balance. Although the action is officially on behalf of the education sector, it is actually relevant to every citizen of New Zealand. We are at the top of the slippery slope of forced medical procedures.
New Zealand’s Legal Framework
The Constitution Act 1986 recognises the three branches of government – the Legislature (Parliament), the Executive (Cabinet and Ministers outside Cabinet, plus government departments), and the Judiciary. Each operates independently of the others. This is known as “the separation of powers“.
An Act of Parliament is a law that has been passed by parliament. A proposed Act is a bill. The bill will be scrutinised and read in parliament three times before becoming an Act. After each reading, there is a vote as to whether the bill should proceed to the next stage. During this process, an Act will usually go to a select committee (a sub-committee of parliament) and may be subject to public consultation and independent advice being received. Only after this process is complete and the majority of the members of parliament vote to pass the bill, does the bill become an Act which forms part of our law. The bill becomes a law once it is signed by the Governor General of New Zealand – this is the Royal Assent.
The original Covid Public Health Response Act 2020 was introduced into parliament on 12 May 2020 and received royal assent on 13 May 2020. It was read three times over two days and passed.
That Act has been amended on a number of occasions and there has been no consultation or select committee process on any of these bills except one.
An order is also known as ‘subsidiary legislation’. An order does not go through the parliamentary process discussed above. An order comes about through ‘order in council’ which is an executive council comprising all Ministers of the Crown. It is more like a regulation than a law. Orders must be made under the authority of an Act of Parliament. For example, all the Covid orders are made under the Covid-19 Public Health Response Act 2020. Section 11 of this Act gives the Minister for COVID-19 Response and the Director General of Health the power to make orders under the Act. The vaccination orders and protection framework orders fall under the jurisdiction of that Act. They did not need to go through the parliamentary process as they are subsidiary legislation.
If a member of the public is not happy with the decision of a government body, he or she can apply to the courts to review the decision (hence ‘judicial review’). The courts focus on the procedure under which the decision was made rather than the outcome of the decision. Within the review, the court may consider whether the decision-maker considered all the relevant information, and whether they acted within their legal power. If the decision-making body has failed in the process in some way, a number of remedies are available including making a declaration that the decision is unlawful.
- https://legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html#DLM225501Bill of Rights Act 1990
- https://www.legislation.govt.nz/regulation/public/2021/0094/latest/whole.html Vaccinations Order
- https://legislation.govt.nz/act/public/2020/0012/latest/LMS344177.html Section 11 Covid-19 Public Health Response Act
- https://www.courtsofnz.govt.nz/about-the-judiciary/role-of-courts/government Branches of Government
- https://www.justice.govt.nz/assets/Documents/Publications/20211123-NZ-BORA-Advice-COVID-19-Vaccinations-Legislation-Bill.pdf Assessment of compliance with BORA
- https://legislation.govt.nz/act/public/2020/0012/latest/LMS344139.html Section 4 Purpose of Covid-19 Public Health Response Act
- https://www.medsafe.govt.nz/COVID-19/safety-report-43.asp#death Medsafe safety report 43
- https://phmpt.org/wp-content/uploads/2021/11/5.3.6-postmarketing-experience.pdf 3 mth safety data, table 1 on page 7 shows 1223 fatal outcomes
- https://www.medsafe.govt.nz/COVID-19/Comirnaty-Gazette.pdf original provisional consent
- https://www.medsafe.govt.nz/Profs/PUarticles/ADRreport.htm 5% reactions reported
- https://nzdsos.com/wp-content/uploads/2022/04/OIA-re-Maximising-Vax-Uptake-in-Tier-1-Border-Workers-2021-2.pdf 1.1% severe adverse event rate expected, points 57 and 60