A plain-language approach to deciding whether mandates were appropriate.
The role of a lawyer sometimes seems to be to make something that is simple and straightforward, as convoluted, complicated and unfathomable as possible by wrapping it in complex and deceptive language and arguing tangential issues while at the same time avoiding the key questions.
With the upcoming High Court appeal by NZTSOS of our combined case in March 2022 challenging the vaccine mandate, we thought a common sense, plain English commentary might be helpful. Sometimes common sense gets lost in the jargon.
When deciding whether mandating vaccines in 2021 was appropriate, an ordinary person might have asked:
Is the proposed measure up to the task? This could encompass three questions:
- Is it necessary?
- Is it safe?
- Is it effective?
Let’s consider these points in order.
Was a vaccine mandate necessary?
NZDSOS and NZTSOS argued they weren’t. By the time mandates were imposed on their sectors it was evident that:
- Covid was an illness with a mortality (death rate) and morbidity (illness rate) similar to the flu, (where draconian measures were already known to be ineffective),
- definitions of things such as ‘pandemic’, ‘case’, ‘vaccine’, ‘herd immunity’ had all been altered to make things appear much more serious than they were,
- PCR tests and other measures had been used to inflate the numbers of both cases and deaths artificially,
- Covid was a treatable illness with readily available medications for those cases where anything more than supportive measures were needed,
- doctors had been severely curtailed – even driven from medicine- for discussing the above or prescribing effective treatments,
- there were other ways to mitigate the perceived risks such as RATs, remote working, staying home when unwell and natural immunity.
Was the vaccine safe?
NZDSOS and NZTSOS argued that there was insufficient evidence to show this. By the time mandates were imposed on their sectors:
- the vaccine still only had provisional consent due to missing data,
- the Risk Management Plan (RMP) detailed a list of known and potential risks which included myocarditis, pericarditis and vaccine-associated enhanced disease,
- information detailed as missing in the RMP included long term safety data, use in pregnancy, the frail elderly, autoimmune and in inflammatory conditions,
- it was evident that some of the risks could be lethal as people had died from myocarditis,
- the three-month safety data provided to Medsafe had documented 1223 reports of death following vaccination,
- there was a lengthy list of other possible adverse effects in the same document,
- the NZ government was expecting 1% vaccinees to suffer a serious reaction requiring time off work,
- there were already 982 cases of serious adverse events and 91 deaths reported to NZ’s Centre for Adverse Reactions Monitoring (CARM) in Safety Report 32 as at 9 October 2021
- there was evidence of vaccine damage suffered by both health and education workers,
- those injured by jab one were denied exemptions and were being forced to get the second, despite Pfizer itself advising against a second if a significant reaction occurred.
Was the vaccine effective?
NZDSOS and NZTSOS argued that the evidence was not there to show this. By the time mandates were imposed on their sectors:
- it was known that the original clinical trial had not studied prevention of transmission,
- the absolute risk reduction in the clinical trial was only 0.84% (it was the relative risk reduction reflective of only 170 trial participants that was 95%)
- Chris James of Medsafe had said in February 2021 ‘I am not satisfied that I should give my consent to the distribution of the product’, because the benefit-risk balance was not clear to him,
- Dr Bloomfield had advised Chris Hipkins in February 2021: “We do not yet have conclusive evidence on the effectiveness of the Pfizer vaccine at preventing or reducing transmission to be confident of the public health value of this vaccination, beyond the individual level.”,
- Dr Bloomfield had also advised Minister Hipkins that ‘mandatory vaccination is unlikely to be a justified limitation of the right to refuse medical treatment under Section 11 of the BORA’ due to the lack of evidence about prevention of transmission,
- it was becoming increasingly obvious that vaccination did not prevent infection as ‘breakthrough’ infections were occurring,
- studies were finding just as much viral load in vaccinated as unvaccinated people.
The role of the court when conducting this judicial review for NZDSOS and NZTSOS in March 2022 was to determine whether the mandates were a ‘reasonable and demonstrably justified limitation’ (as per section 5 of the New Zealand Bill of Rights Act) on the right to decline medical treatment.
New Zealand has legislation in place to protect our fundamental rights, legislation such as the Bill of Rights Act (BORA) and Health and Disability Commissioner (HDC) Acts. If these fundamental rights are to be infringed upon, in a potentially lethal way, it is the job of the courts to ensure this is justified. Justice Cooke said there was a “very significant evidential burden placed on the Crown” to demonstrate this justification. Common sense disagrees.
In light of the above, would an ordinary person say that the mandates were a justified limitation of our right to decline medical treatment? We think not, and even more strongly so now, with excessive All-Cause Mortality and Sudden Adult (and Child) Death Syndrome being clearly caused by the jab rollout.