Was Justice Served in the NZDSOS and NZTSOS Court Case 2022?

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For a full and detailed assessment of the court case, see this post. The full judgement can be found here.

A Short Review of the Court Case

New Zealand Doctors Speaking Out with Science (NZDSOS) and New Zealand Teachers Speaking Out with Science (NZTSOS) recently challenged the vaccine mandates in court. The court case was heard in March 2022, by Justice Francis Cooke.

The original Covid-19 Public Health Response Act 2020 that enabled the Vaccination Order was introduced into parliament on 12 May 2020.  It was read three times over two days and passed without going through the usual consultation or select committee processes and became law on 13 May 2020.  There were no checks or balances or ability for those with different views to be heard.  This Act is legislated to automatically repeal on 13 May 2023.

The COVID-19 Public Health Response (Vaccinations) Order 2021 was made under the above Act and an amendment dated 25 October 2021 meant that healthcare and education workers no longer had the right to refuse to undergo medical treatment (the right enshrined in the Bill of Rights Act) if they wanted to continue employment in their roles. 

The Bill Of Rights Act 1990, Section 11 discusses the right to refuse to undergo medical treatment. It states “Everyone has the right to refuse to undergo any medical treatment”.

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 this 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?

In the court case, we challenged the Crown and demanded that they demonstrate that the limitations on the Right to Decline Medical Treatment were reasonable and demonstrably justified.

We presented affidavit evidence from four international expert witnessesAssociate Professor Byram Bridle (Canada), Dr Geoff Cramp (NZ), Professor Nikolai Petrovsky (Australia) and Professor Norman Fenton (UK).

Meanwhile, the Crown relied solely on written evidence from Dr Ian Town and Dr Ashley Bloomfield (both employees of the NZ Government). The Crown did not put forward any evidence from experts in vaccine development, immunology, epidemiology, clinical medicine or any other relevant area.

The judgement was released on Friday 8 April 2022.  In his summary, Justice Cooke dismissed our claims, stating, the evidence showed that vaccination reduced transmission sufficiently to justify a mandate, there was no evidence of safety concerns that would detract from mandates, that the vaccine exemption criteria were adequate and were applied lawfully and there was no significant adverse impact on staffing and morale as a result of mandates.

NZDSOS stated, and submitted evidence to show, the efficacy of the vaccine was questionable and not consistent with any benefit from mandating it. More importantly we submitted evidence of harm caused by the vaccine, harm that included death. We have scrutinised Justice Cooke’s ruling and determined there are multiple deficiencies in his reasoning and that the court process is fundamentally flawed in this situation.

Below are some of the comments from the court case that demonstrate these deficiencies.

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

When large portions of scientific evidence can be ignored and not responded to, and when evidence of significant harm to New Zealanders can be glossed over, the public of NZ need to question whether justice is being done within our legal system.

We find it hard to reconcile comments such as those above with the stance the judge 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.

These points in particular call the safety of the vaccine into question:

  • The clinical trial ongoing until 2024 so vaccine still experimental
  • Pfizer’s Risk Management Plan – highlighted significant risks and missing information
  • Govt anticipated a 1.1% rate of severe adverse reactions as early as Feb 2021
  • 3mth safety data from Pfizer in Apr 2021, had reports of 1223 deaths and over 42,000 adverse events, as well as over 8 solid pages of adverse effects
  • Latest Medsafe Safety Report showing 3,287 serious adverse events in NZ and 160 reported deaths, with many assessments in limbo due to ‘insufficient information’
  • Medsafe knowing that only about 5% of adverse events get reported

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

How many dead and injured New Zealanders are acceptable for the greater good?

Other related issues that were not covered in court include: natural immunity, medical ethics, other ways of managing the pandemic, suppressed treatment of Covid 19 (which would negate the need for vaccine mandates), conflicts of interest of those making the decisions and censorship of any discussion or debate.

In light of the above comments, we have decided not to pursue further court action.  We are of the opinion that the courts, particularly without the ability to engage in debate, are not the place to resolve this issue.

If the Government can pass draconian laws in under 48 hours with no discussion or scrutiny and these laws cannot be meaningfully challenged in the legal system, do we really live in a democracy? Does a court case mean anything now?

If this right to decline a medical treatment is not absolute, are we at the top of the slippery slope of forced medical procedures?  What will be next? 

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