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From the The Health Forum NZ



The Health Forum NZ

Dear Lynda,

regarding your post on FB 6 hours ago re teachers. Please read this as you have a huge forum, and we need to act with care. To be honest with you, I believe that there is a good chance this Ministerial Order will be seen to be ultra vires: ie beyond the power provided to the Minister by the CoVid-19 Public Health Response Act 2020.

The Act requires that he act within the confines of the Bill of Rights Act 1990. Having spoken to a lawyer several weeks ago, that lawyer did not believe that there were powers available to force vaccinations on teachers under current legislation. The Bill of Rights Act 1990 would override such legislation, including Ministerial powers under such legislation.

I am of the view, that, unless the New Zealand justices are weak, that to mandate New Zealand teachers to be vaccinated for CoVid-19, this Parliament will be required to pass legislation that mandates teachers to be vaccinated for CoVid-19. And that would cause uproar.

The teachers who do not want to be vaccinated need to stand their ground, and remain unvaccinated, and make a legal case as a class action (s) (possibly one each for primary school, intermediate, high school, and tertiary educators) to appeal this Ministerial Order as being ultra vires.

I have contacted **** (lawyer) in relation to several different employment and legal matters over the past few weeks and have found him to be extremely helpful. The mandates to workers in the construction industry for mandatory vaccination were most likely unlawful. The mandates to those in the retail sector for vaccinations were most likely unlawful.

If you look at the CoVid-19 Public Health Response Act 2020, the powers granted to Ministers are confined to the Bill Of Rights Act 1990. They are therefore required to justify any limitations ordered on those rights.

**** (lawyer) could not see how people in the building industry could be seen to be able to legally be required to be vaccinated three weeks ago, and I strongly suspect that will remain the case today. He said that the threshold for mandatory vaccination was high. What is the public good of the vaccination?

He could understand border workers and those working in ICU units, and possibly those in the aged care sector being mandatorily vaccinated, but that was the limit. Will give him a call tomorrow, and will give you an update (via PM) after the call. But given the size of your forum, it is hugely important that people (especially teachers and students) know their legal rights in this. We will lose our legal rights if we don’t know that we have them.

Hi Lynda! As promised last night, I have spoken to *** (lawyer) He hasn't yet seen the Ministerial Order: it appears to have not yet been published! Teachers currently have two Two options for teachers:

1. First: Deal with the employment situation at the moment. If not wishing to take the jab, obtain legal advice as to how to best respond to the Ministerial Order. If someone has taken judicial review, you may be able to request an injunction on the dismissal. (Not likely, as it will depend on what the Ministerial Order says. If it mandates termination of employment, then termination will likely occur, but legal advice is best to be obtained regarding this.) If judicial review by a fellow former employee (in 2 below) is successful, there is a decent chance that most teachers in (1) will be able to have their jobs reinstated. The likelihood of job reinstatement would depend on how quickly a successful judicial review determination is made.

2. Second: Someone takes judicial review to advocate. If people lose their jobs and the Ministerial Order is determined to be unjustified and ultra vires in the High Court, then there is a decent chance that the terminated jobs could be reinstated. **** (lawyer) said that for the judicial review, he would want one ideal candidate that would be least likely to be legally challengeable, and most likely to show the Order as being an unjustified limitation on the rights contained in the New Zealand Bill Of Rights Act 1990. Judicial review would not be a 'fun' or 'enjoyable' experience for the applicant, so an applicant for judicial review would need to be made of fairly strong stuff. When talking to a lawyer, the lawyer will be able to advise the person as to his or her best options legally, and the pros and cons of judicial review. On a side note: a judicial review will be necessary if the Ministerial Order is to be overturned.

Personally, I’m not sure if the review in (2) above may need to be classified into one individual teacher per sector, where sectors are divided between: pre-school age, primary school, intermediate, high school, tertiary sectors. I’m of the view that the Crown may be able to advocate more strongly for vaccination for teachers of children for whom vaccination is available, compared to those for whom vaccination is unavailable. Particularly when the statistics show that children are very much non-susceptible to this virus.

On a practical note: Matthew Hague recommended that it would be advisable for teachers affected by this Order, to group together, for moral and financial resource support.

If you could let teachers know that legal remedies are potentially available, and it’s best they speak to a lawyer, that would be great. I’m sure **** (lawyer) would be happy for the information above to be submitted in a public manner. It’s essentially ‘get legal advice, there are options available, form support groups’.

Final personal comment:

As a New Zealander, I’m very concerned re the legal aspects of where this is going. I believe that there is a good chance, that if over 90% of the NZ population is vaccinated for CoVid-19, the government will then say they have a ‘mandate’ to essentially force the remainder of New Zealanders to be vaccinated.