Ananish Chaudhuri
Martin Lally
Ananish Chaudhuri is Professor of Experimental Economics at the University of Auckland. Martin Lally is Director of Capital Financial Consultants.
Vaccine mandates for Covid-19 are proving to be controversial. Consequently, New Zealand’s recent mandates have faced court challenges already and one expects more such challenges to come: particularly since the COVID-19 Response (Vaccinations) Legislation Bill was passed under urgency in Parliament, eliciting indignant responses both from legal scholars and the Human Rights Commission.
In this regard, a recent High Court case, involving Christchurch based aviation security officers arguing against vaccine mandates (CIV-2021-485-509 [2021] NZHC 3012), provides a foreshadowing of the contours of this debate. In that specific case, the judge ruled against the plaintiffs and in favour of the respondents (the Minister of Covid-19 Response representing the government).
Voluminous evidence suggests that the vaccines are relatively safe and significantly reduce the risks from Covid-19 for many people. Accordingly, it is natural and sensible for the government to exhort people to get vaccinated.
The problem lies with forcing people to get vaccinated. This is particularly salient since New Zealand does not mandate any other vaccines: not even for other highly contagious diseases such as measles. Furthermore, while the vaccine seems relatively safe, the risks of Covid-19 to young healthy people are so low that they are likely at greater risk from the vaccine than the virus.
The latest legislation makes amendments to the COVID-19 Public Health Response (Vaccinations) Order 2021 (Order) promulgated earlier which lay at the heart of the debate in the aviation security officers’ case. That order clearly limits the right to refuse medical treatment (s11 of the NZ Bill of Rights). The judge recognises the conflict when he writes that the “issue that is raised by the applicants in this challenge is clearly a legitimate one to raise with the Court.” (para 23). The judge goes on to say:
“The key question in this case is whether this limitation is demonstrably justified.”
(para 30)
The judge concludes that the Crown has satisfied the “demonstrably justified” test for border workers:
“I am satisfied that the benefits of the vaccine are demonstrably high, with there being a need to take a risk minimization approach to stop an outbreak or spread of the virus at the potential entry point of the virus into New Zealand”.
(para 119)
We consider that this line of reasoning is flawed in the sense of not defining the counterfactuals properly.
First, the judge believes that the vaccination of airport border workers would materially address the harm from Covid-19 because they are involved in the potential entry point of the virus into New Zealand. This might have been true prior to the arrival of the delta version in New Zealand. However, the hearing was held on 21 and 22 October, and the judgment was delivered on 8 November. At these points, the virus was well established in the upper half of the North Island.
Further, by 8 November, the Labour Government was in the process of moving away from its elimination strategy because it was no longer attainable. Under these conditions, the virus was very likely to eventually spread to the entire country even if no new cases arrived in Christchurch from overseas. Accordingly, the vaccination of border workers at Christchurch airport was not going to have a material impact on the spread of the virus. Remarkably, even the judge states that “It does not appear that this outbreak can be eliminated” and that it is an “open question” whether the Order would “remain demonstrably justified when the virus is endemic in at least parts of New Zealand” (para 128).
Second, international evidence shows that many people will willingly take the vaccine even in the absence of a mandate. In fact, at the time of writing Denmark has achieved more than 70% vaccination without any coercive interventions. Many other countries have achieved similar levels without coercion.
Thirdly, the judge believes that vaccination “materially contributes” to reducing the risk of airport border workers transmitting the virus from an arriving passenger to other New Zealanders (para 69). Yet the judge recognises and concedes the importance of PPE, tests of border workers, and requirements for physical distancing, none of which the applicants have contested (para 69). Strong evidence for the effectiveness of these other measures is that there have been no known cases of delta entering New Zealand by transmission through an airport border worker. This includes the entry of delta to New Zealand in July, from an infected passenger to another person at an MIQ hotel.
Fourthly, the judge effectively asserts that the personal cost of the Order to these workers is irrelevant to the “demonstrably justified” test. We do not agree. The need in principle to consider these costs is apparent by considering extreme cases in other situations. For example, suppose a government concluded that a virus was so serious that it ordered vaccination for all members of the population (by force if necessary) and the vaccine was likely to be fatal to people with specific medical conditions. In this case, we would expect that a judge would have to balance the cost to the individuals for whom the vaccine was likely to be fatal against the deaths that might result amongst the rest of the population if they were not vaccinated.
The same principle must then apply in the present case. The judge might argue that the costs to the individuals in question in the present case (loss of their jobs and likely considerable difficulty in finding an alternative in an environment where many employers are requiring vaccination for new employees) were less than the benefits to society from the vaccination Order, but in doing so they would still be balancing the two considerations. Ignoring the costs (and there are substantial costs) to the vaccine objectors is not appropriate.
In view of these points, it is not “demonstrably justified” that compelling whatever proportion of border workers who are resistant to vaccination to do so “materially contributes” to reducing the risk of the virus spreading through New Zealand. This is true even without consideration of the costs to the applicants from the Order. Consideration of the costs to them further tilts the balance away from the Order.
This argument regarding a careful weighing of the true costs and benefits from vaccine mandates applies with equal force to others. This is particularly so in light of the fact that both the judge in this case and other judges have repeatedly stressed that coercive mandates must be “proportionate”.
In fact, in the above-mentioned case, the judge highlights another potential inconsistency when he points out in Para 37 that the Order may violate s19 of NZ BORA, the right against discrimination.
In this instance, the judge decides to sidestep the logical inconsistency by arguing that the applicants did not raise this issue and therefore he is not going to consider it further. But the applicants did not need to raise this in their complaint! Given that the judge realises that the Order poses significant conflicts with s19 of NZ BORA, the judge could have, of his own accord, decided to address this question and seek a response from the government.
Each ruling creates a precedent. Subsequent to this ruling, the government has significantly expanded the scope of vaccination mandates via the latest legislation encompassing an ever-expanding set of citizens. Increasingly more of us are coming under the purview of such mandates.
The government, which enjoys a parliamentary majority, does not seem to be interested either in balancing the rights of the individual against the risks to the community or on the need for a “proportionate” response. One would think that it is the job of the judiciary to do this.
Most of us are keenly aware that the pandemic has exposed deep-seated problems in our public health system. Unfortunately, it has also exposed fundamental deficiencies in the workings of New Zealand’s systems of checks and balances.