It is widely recognised that the recent vaccine mandates go against s.11 of the New Zealand Bill of Rights Act 1990 providing citizens with the right to refuse medical treatment.
University of Auckland
However, it is also clear that the right may be circumscribed in extenuating circumstances on considerations of public health or the common good.
A recent High Court verdict makes this clear. A border worker sought judicial review of the vaccine mandate for those working in that sector. Ultimately, the High Court came to the conclusion that “the Court’s task, in this case, is to balance the benefit of the vaccine and the risk of being unvaccinated against any discrimination in relation to those affected”. The court found against the plaintiff and suggested that, in this case, the public health argument trumps the worker’s individual right.
But in doing so the court also recognised that the decision was not carte blanche for such mandates. “One of the factors considered by the court was proportionality – the fact that mandatory vaccination was found to be justifiable for a relatively small group of “affected workers”, does not mean that it will necessarily be justifiable for others.”
This brings us to the broader mandate for teachers and healthcare workers.
Do they also pass the proportionality test?
A recent scientific paper suggests that there is little correlation between vaccination rates and cases. This implies that vaccinated people may easily catch and pass the disease on as well. The authors write:
“At the country-level, there appears to be no discernable relationship between percentage of population fully vaccinated and new COVID-19 cases in the last 7 days.”
Further, evidence suggests that children are not at much risk of falling gravely ill from Covid. In fact, the UK Joint Committee on Vaccinations and Immunisations does not recommend universal vaccination of those younger than fifteen. The JCVI points out that while the risks of such vaccination are small, they are still “being described” and the benefits are small too. Given this, there is no compelling reason to embark on a program of universal vaccination of children. NCIRS Australia reports that a majority of children diagnosed with COVID-19 during the current outbreak, including those who caught the infection in educational settings, experienced mild or no symptoms.
So, who is being protected by these mandates?
We have two conflicting objectives here: the abrogation of a fundamental right against the rights of those potentially vulnerable.
If so, then the government needs to be up-front about this and lay out a specific case in favour of this mandate.
In the absence of such clear guidelines, it is not clear why we should be willing to sacrifice a fundamental right.
We note that in recent times the US Supreme Court has struck down two challenges to vaccine mandates. Justice Sonia Sotomayor turned down a challenge against New York while Justice Amy Coney Barrett denied a suit by students objecting to mandatory vaccines at Indiana University.
But there are two very important differences. First, while the actual requirements vary, vaccinations are mandatory in the US. All states mandate vaccines against diphtheria, tetanus, pertussis (whooping cough), polio, measles, rubella and chickenpox and all but Iowa also require vaccination for mumps.
Second, the US Bill of Rights does not spell out the right to refuse medical treatment; neither does the 14th amendment, which formed the basis of the challenge by students at Indiana.
New Zealand does not require mandatory vaccination; not even for measles, which arguably is a far more deadly disease than Covid-19. And, as already noted, New Zealand’s Bill of Rights explicitly provides citizens the right to refuse medical treatment.
But there is a broader point here.
For a long time our government aimed at elimination. This proved elusive. Now they are reaching for vaccination mandates assuming that this will be the panacea.
What if this next set of vaccinations proves inadequate especially as other mutant strains evolve?
It is worth reiterating that Covid-19 has a recovery rate of nearly 99% and the overall infection fatality rates and rates of asymptomatic transmission are much lower than previously assumed. Given our lack of land borders and low population density, Covid-19 poses less of a threat to us than has been suggested by modelling which does not account for a host of contributing factors.
Sooner or later we will need to come to terms with endemic Covid-19. No amount of coercion or abrogation of civil rights will change that fact. Realising this sooner and making appropriate adjustments in the public health response, such as by increasing capacity in hospitals, will spare the citizens the ongoing pain and suffering from increasingly draconian measures, the latest of which is vaccine mandates.
Ananish Chaudhuri, PhD.
Professor of Behavioural and Experimental Economics | University of Auckland
Author: Behavioural Economics and Experiments (Routledge) | Experiments in Economics (Routledge)