If the protesters in front of New Zealand’s parliament have anything in common, it is a self-professed opposition to “Covid vaccination mandates”. These, they say, are an unacceptable burden on the individual rights of those who choose not to be vaccinated and so must be abolished immediately.
These protesters are correct about one thing. Although the various mandates, which mean around 40% of New Zealand’s workforce face losing their jobs if not vaccinated, are not strictly compulsory in the sense of making it an offence to not be jabbed, they do limit individual rights. Specifically, the right to refuse to undergo any medical treatment, as guaranteed by section 11 of the New Zealand Bill of Rights Act 1990.
However, noting that vaccination mandates limit a right is the easy part. The more difficult task is assessing whether that limit is, in the words of the Bill of Rights Act, a “demonstrably justified limit in a free and democratic society”. If it is so justified, then imposing it is a legitimate governmental choice in legal terms.
Such an approach makes intuitive sense. Imagine a person with a virulent form of tuberculosis that could be cured with antibiotics, but who won’t accept that treatment. It would be a kind of collective madness to say that they must remain free to mingle in society and spread the disease just because forcing them into quarantine limits their right to refuse medical treatment.
Equally, imposing costs on those who refuse, for whatever reason, to accept Covid vaccination is justifiable if doing so advances public health goals in a proportionate way. That assessment is, at its core, a balancing one between the importance of the right and the reasons for limiting it.
Three high court judges have so far been called upon to make exactly this assessment when hearing challenges to vaccine mandate requirements brought by unvaccinated border workers, teachers and healthcare professionals. In each case, after reviewing the evidence…