Govt faces legal ultimatum: End mandates and vaccine passes, now
After overturning Police and Defence vaccine mandates in court, a lawyer for 200-plus uniformed personnel has written to the Prime Minister today giving her till Friday to remove ‘discriminatory’ vaccine certificates too.
When 25-year police veteran Detective Senior Sergeant Ryan Yardley reported to Taupō police station this month to receive his termination notice, his wife Victoria and their three children came with him. There were tears.
He and four other officers went into the station with their families, and sat down and talked with Inspector Phil Gillbanks. “And he served us with our terminations. And that was obviously a very emotional day,” Yardley says. “We were all there as a family because we wanted to support each other. I mean, the kids have been around police stations – they’re part of the bigger, wider police family.”
Victoria Yardley chimes in: “It’s taken such a toll on all the officers affected,” she says. “I don’t see how anyone would make it through this without a strong foundation of support.”
The senior police detective says the family’s decision to not get the Covid vaccine exposed them all to unfair treatment, unable to work, to go to restaurants and cafes, or to associate with friends.
On Friday, the High Court ruled in his favour to overturn the Police and Defence Force vaccine mandates. Potentially hundreds of personnel – some sacked, some who took leave without pay – must be allowed to return to work.
And this morning, his lawyer, Matthew Hague, who says he represents 200-plus uniformed staff, has written to the Prime Minister giving her till Friday to remove “discriminatory” vaccine certificates too, or face further court action.
To be clear, Justice Francis Cooke emphasises that his ruling applies only to the Police and Defence mandates – but Hague and those he represents argue the implications of the judgment are more sweeping than that.
Cooke says the evidence continues to show that vaccination significantly improves the prospects of avoiding serious illness and death, even with the Omicron variant. It confirms the importance of a booster dose given the waning effect of the first two doses of the vaccine.
Omicron does pose a threat to the continuity of workforces because it is so transmissible, he says – but this is the case for the vaccinated as well as the unvaccinated. Vaccination is less effective in reducing infection and transmission of Omicron than it was with other variants.
This places Prime Minister Jacinda Ardern in a difficult position. She and her responsible ministers must make a quick call: whether they accept the High Court judgment and will accordingly move speedily to set an end date to most vaccine mandates, or whether they disagree and can find legal grounds to appeal the judgment.
“If the Covid vaccination certificates requirement is not removed by 4 March 2022, United We Stand has instructed us to apply for judicial review of the order.”Hague wrote that he was not just representing the three police and defence officers who took the High Court actions, but also a much bigger group of uniformed personnel dubbed United We Stand, who oppose the mandatory use of Covid vaccination certificates.
– Matthew Hague, Frontline Law
The High Court had ruled that the Government’s vaccine mandate for Police and Defence Force personnel was unlawful. It determined that although vaccination could reduce the severity of symptoms, it was significantly less effective at preventing the transmission of Covid-19 – now endemic in New Zealand.
“The Covid vaccination certificates requirement does not prevent or limit the risk of the outbreak or spread of Covid-19,” he wrote. “United We Stand ask that you immediately revoke the order or amend it to remove the Covid vaccination certificates requirement.”
If the requirement for vaccine passes was not removed by this Friday, March 4, then he had instructions to apply for a judicial review of the order.
He has also written to Police Commissioner Andrew Coster and Chief of Defence Air Marshal Kevin Short, saying it was not enough to just pause the termination processes. Those who have taken leave without pay should now be allowed to return to work, and those who resigned under threat of dismissal should be allowed to get their old jobs back.
He pointed out that Police and Defence had previously mitigated risk, allowing unvaccinated personnel to continue working as recently as January 17 – and there was no reason why they could not resume managing any risk the same way.
There were a number of unvaccinated personnel who had no option but to resign or go on unpaid leave, he wrote. “These actions were not voluntary and were done because of an ultimatum of being dismissed from their employment or released from their service.
“Now that the High Court has determined that the order is unlawful and should be set aside, there is no basis for the ultimatum given to these workers. They must immediately be given the option of being reinstated with backpay.”
Hague and Yardley confirmed there were ongoing discussions about the next steps – which may include the steeper legal challenge of suing the Government for damages. But first, they want an apology for the “enormous amount of harm” done to the officers and their families.
The court heard evidence of 164 police, and 115 defence staff, who were still refusing to be vaccinated at the start of this month. It’s thought the full number of affected personnel (uniformed and civilian) is higher than that, because some simply resigned rather than face dismissal.
“The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations. No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.”
– Michael Wood, Workplace Safety Minister
It’s not immediately clear how many Police and Defence personnel, uniformed or civilian, may seek their jobs back. The police said they had retracted 42 termination letters – but acknowledged there were at least 100 more who had taken leave without pay, and more still who had resigned.
Workplace Relations and Safety Minister Michael Wood said the High Court judgment was clear that it was not questioning the efficacy of vaccines nor the role of mandates per se, but just whether they were justified specifically for Police and Defence business continuity.
“As the decision has only just been released, we will take time to consider it and seek advice on next steps,” he said. “The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations.
“No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.”
All three of the Police and Defence personnel leading the court challenge were motivated by their Christian faiths, said Yardley.
Only the police officers can be named; the member of the Defence Forces has name suppression.
The other police officer, Joshua Wallace, is not yet 30. He has previously told of making the shift from being an unmotivated teenage “ratbag”, to study at Te Wānanga o Aotearoa before joining the police to help others.
Wallace has Māori heritage and grew up on the Coromandel. He got in trouble and left school at 16 but, as an adult, he became a Christian, married and had children. “Heaps has changed for me from back in the day,” he told the Wānanga newsletter, two years ago.
The police force gave him the chance to be of real service to the community. “It’s got professionalism, a good team environment and values. There are also lots of opportunities to be in a position to help others.”
His was one of the affidavits that expressed a fundamental objection to taking the Pfizer vaccine, because he said he believed it was tested on cells that were ultimately derived from a human foetus, that he believed to be an aborted foetus.
“I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society.”
– Ryan Yardley, NZ Police
Some of those who gave evidence said the requirement to be vaccinated was inconsistent with other Christian values – and that was backed by Rev Raharuhi Koia, a Minister in the Presbyterian Church.
But Rev Peter Olds, the principal chaplain for the New Zealand Defence Force, gave evidence that the mandates were not in conflict with the free exercise of religious belief.
Ryan Yardley told Newsroom that for him, a core principle of Christianity was accepting everyone – not discriminating against particular groups like those who refused to be vaccinated.
When asked, the 44-year-old said his Christian commitment to inclusion, and avoiding discrimination, extended to men and women, age, ethnicity, gender identity and sexuality.
Yardley said the mandates went against everything he believed in – his personal faith, and 25 years as a police officer adhering to the Bill of Rights. “To have something so fundamental stripped away from you, as that right to refuse any kind of medical treatment, just didn’t sit well.
“And then I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society. Just from talking to friends and other people and hearing everyone’s stories. And that does not align with my values. And then the fact that people started getting separated and discriminated in society in relation to where they can and can’t go.”
He and his family were not just opposed to the vaccine mandate – they were also personally against being vaccinated. “Everyone has to weigh that up for themselves personally and try and figure out the benefit versus risk scenario,” he said.
“Because obviously, there are some known side effects that are coming out, myocarditis and other ones and I think it’s affecting more of the younger guys. I’m just slightly above that that age bracket, but it’s enough to make me concerned.”