What does the High Court vaccine mandate decision mean?

Guest post by an Anonymous social worker

What does the High Court vaccine mandate decision mean?

The decision released last week about the overturning of the vaccine mandate for Police and Defence personnel has sparked fresh debate about the validity of the mandates. The High Court decision is being lauded by those opposed to mandates as being evidence that all mandates were wrong.

What is very concerning is the uncritical analysis of the High Court decision, including by social workers. In a post within a social workers Facebook group where a news article relating to this decision was shared there were a lot of comments celebrating this decision. However, I will argue that this view is misinformed, naïve, and simply wrong.

Justice Francis Cooke has now heard 2 cases about the vaccine mandates (aviation security workers in October 2021 and now Police and Defence). Justice Cooke ruled differently on both cases. Justice Cooke’s decisions show that mandates can still be justified, but they must be carefully applied. Let’s now consider the question:

How can it be that the same Judge has ruled differently on the same issue?

Justice Cooke’s two decisions have been made at different points in time during the pandemic. Justice Cooke’s second judgement documents clearly the changing circumstances of the nature of the pandemic and how he has reached his decisions.

The initial case that Justice Cooke considered was in relation to aviation security workers in October 2021. The rationale for the vaccination mandate was to limit the spread of Covid-19. The aviation security workers, challenging the mandate, argued that the order limited their right to bodily autonomy and right to refuse medical treatment. Justice Cooke noted “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”[1]. The Judge ruled, that on balance, the benefits to the community and collective wellbeing outweighed the infringements on the individual’s rights.

In the second case, where Police and Defence Force personnel challenged the mandate, the situation was different. The mandate in this situation had not been implemented to prevent the spread of Covid-19 but instead had been implemented to ensure continuity of Police and Defence Force services. Justice Cooke concluded that there was no evidence that the mandate would make any material difference to Police or Defence Force services due to the mandate only affecting a small number of staff. The emergence of the Omicron variant has resulted in changes to the effectiveness of the vaccination preventing transmitability (although vaccination still reduces the chances of an individual from becoming seriously ill or dying). The vaccine was much more effective at reducing transmitability against the Delta variant.

Justice Cooke has considered the context within which the decision was made. Justice Cooke does not undermine the validity of vaccine mandates but instead, says that given the current circumstances and the rationale for the Police and Defence Force mandate, this mandate was not demonstrably justifiable. Justice Cooke suggests, given the circumstances, that internal vaccination policies would have been more appropriate as they allow greater flexibility in redeployment options.

Justice Cooke wrote:

I should make it clear what this case is not about. The Order being set aside in the present case was not implemented for the purposes of limiting the spread of Covid-19. Health advice was that such a further mandate was not needed for this purpose. Neither should the Court’s conclusion be understood to question the effectiveness and importance of vaccination. The evidence shows 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.[2]

The premises of the two decisions are therefore fundamentally different. In the first, limitations on rights are allowed as they aim to protect our collective health and wellbeing. In the second, they were not justified due to the limited impact the mandate will have on collective wellbeing, given the small numbers the mandate effects and the current Omicron outbreak. Justice Cooke has had to balance the collective versus individual rights.

The second decision does not undermine the first decision and is not evidence that the mandates were entirely wrong. In fact, the opposite is true. The second judgement is very clear that the mandates considered in the first decision were justifiable in a free and democratic society, however, the Crown had not met this threshold in the second case.

Do vaccine mandates breach human rights?

Social workers should absolutely be advocating and challenging human rights injustices. Before considering if vaccine mandates breach human rights let’s quickly remind ourselves about human rights. Human rights have typically been grouped into three generations, progressing from simpler to more progressive rights:

  • First-generation human rights essentially deal with liberty and participation in political life. They include right to life, freedom of speech, freedom of religion, right to a fair trial and voting rights.
  • Second-generation rights are related to equality and are fundamentally economic, social, and cultural in nature. They include rights to food, housing, health care, social security, and unemployment benefits.
  • Third-generation rights are progressive and go beyond individual rights to focus on collective concepts. These rights include rights such as right to a healthy environment, right to self-determination, and group and collective rights.

Human rights issues are complex and require careful analysis. Second and third generation rights are considered to be more holistic and collective and should be preferenced over individual rights. It is important we adopt a complex understanding of rights as social workers and the interconnected balancing act that occurs between individual and collective rights.

The Human Rights Commission wrote, “the Covid-19 pandemic raises complex questions about when these restrictions are justified, and where the balance lies between individual rights and freedoms and the right to health, which includes public health and safety”.[3]

Individual rights can be limited when there are situations that justify them. Limitations on human rights commonly occur when there may be significant risks to others. For example, lockdowns significantly limited our right to freedom to ensure the collective right to health and to ensure our health system was not overrun. Had the Government prioritised the individual’s right to freedom, the results would have been catastrophic. It is important that human rights are balanced within the context which they are occurring.

The argument that vaccine mandates breach human rights typically uses the premise that individuals are being coerced or forced into taking the vaccine and they have lost the right to refuse medical treatment. This is fundamentally not true. Everyone still retains the right to refuse the vaccine. No one has been forced (and by forced, I mean being held down and forcibly injected) in Aotearoa New Zealand.

There has been an impact on those who have made the decision to not be vaccinated. However, for a period of time, we must focus on the collective good of keeping as many people healthy and well and ensuring our health system is able to cope. We all have the right to health care. Those who are not vaccinated pose a risk to our health system and there are some limitations as a result. These limitations will not last forever.

Requiring certain workforces who were more likely to encounter the virus or worked with vulnerable populations to be vaccinated made good public health policy sense. Vaccine passes were introduced to limit the spread of Covid-19 and to protect our (already stretched) health system. These decisions have been made for the collective good.

Living in a democratic and free society means we must follow the rules to keep each other safe and to live harmoniously together. Within the workforce, there are requirements for professionals to keep people safe. For example:

  • I can’t practice medicine without having a degree and being registered.
  • I can’t practice social work without an annual practising certificate.
  • I can’t work in the health system without having certain immunisations (for example, Hepatitis B, Varicella (Chicken pox), Measles, Pertussis (Whooping cough) and Tuberculosis (TB)).

There are not cries to remove all requirements for professionals. The removal of requirements to be vaccinated is only for Covid-19.

The difference with the Covid-19 vaccine boils down to the spread of misinformation and disinformation.


Vaccine mandates were necessary within the context of a public health crisis to protect our collective rights to health and wellbeing. Vaccine mandates will be time limited. The time is fast approaching when vaccine mandates are unlikely to be justified and the Government has already signalled these will be removed following the Omicron peak.

The decision of Justice Cooke does not reinforce mandates were wrong to begin with (as some social workers are now arguing). Instead, it demonstrates the tensions that exist with human rights issues. The Court set this mandate aside because the mandate was made for the wrong reasons. We must consider decisions such as vaccine mandates as being complex and nuanced issues and we should focus on third-generation human rights.

Social workers will find the ANZASW guidance about vaccinations for social workers useful.[4] Based on the ANZASW values and the Code of Ethics, the guidelines show how they intersect together to help guide our thinking around the vaccine.

No doubt, in time, this guidance will become redundant as we begin to live with Covid-19. We must see human rights issues within the context they occur and balance individual rights against collective rights.

Photo by Tingey Injury Law Firm on Unsplash





8 replies on “What does the High Court vaccine mandate decision mean?”

Kia ora Anonymous social worker,

It is a shame you felt the need to be anonymous. Hopefully it isn’t out of some sense of what our fellow brothers and sisters would say. I would have hoped we could all just have a conversation regarding this no matter what our thoughts are, but anyhow I get it.

Kia kaha

A disclaimer (as I always do with this discussion) – I am not anti-vax, I am immunized against a number of viruses (including Covid) and so are my children however I fundamentally disagree with the ‘collective vs the individual’ argument with this particular vaccine.

I’ll explain why:

Vaccine development, testing and regulation normally takes 10 – 15 years. Why? Because it takes time to test, test, and test again against all scenarios and cohorts. We wouldn’t want to inject / pop something into us that will cause issues down the line.

I am not at all convinced that the 6 months (correct me if I am wrong) it took to bring this vaccine to market was anywhere near long enough to test every scenario and then inject 9 billion people with.

So, I disagree with the judge’s ruling when they said “that on balance, the benefits to the community and collective wellbeing outweighed the infringements on the individual’s rights”

There is no way of knowing that. Why? Because there has not been enough testing and the ‘collective and community wellbeing’ they mention, could well be a collective tsunami of future medical ailments.

To be mandated to take something that seems, to me, fundamentally flawed in the way it ended up getting to market doesn’t sit well for me

I understand why people feel the way they do; I understand their fear and I wouldn’t say they are wrong…

To end I’ll share a little story – I was in a social service community meeting about 4 months and the safety of the Covid vaccines were being discussed. Some people became so heated, even knowing that there were no anti-vax people in the room, that they screamed we should all ‘take one for the team’ and get on with it.

I really hope we haven’t collectively ‘taken one for the team’ and that we find out in years to come the price in the future is more than the price we’re paying now.

Take care and stay safe

Kia ora Luis,

Thanks for the comment and thoughts. It’s important we have conversations about these topics (but in the right forum where views can be carefully considered and communicated).

There are a few reasons why the vaccine was produced so rapidly (see ANZASW’s webinar with Siouxsie Wiles – she explained this there from memory). My understanding is that on shortcuts were taken or steps skipped that a normal vaccine would go through.

1. The technology the vaccine was developed on is not new. This allowed for it to be developed rapidly.

2. There was widespread worldwide interest in a vaccine being quickly and safely developed. This meant there was co-operation and sharing of knowledge never seen before.

3. All of the usual trials that a medication/vaccine undergoes before going to market were completed. They completely these simultaneously and there were no delays. Amazing how bureaucracy can stop itself from getting in the way when there’s a need to!

4. There were more participants in the trials than there usually are. Recruiting for the trials was easy and quick given the worldwide interest in the vaccine.

I’m curious as to what you would suggest an alternative solution might be?

Do we wait for there to be enough time to determine possible long-term side effects? This wasn’t really an option given the widespread and serious impact the virus was having on the world. It’s also impossible to test for every scenario but see 4 above.

I do wonder of the impact social media has had on perceptions of the vaccine. I am not an immunologist or virologist and cannot even begin to understand the complexity of the virus – so given this, I trust these experts to tell me that it’s safe (I totally get the arguments about experts being wrong or unethical but I still can’t see a way forward other than having some trust). Yet everyone seems to know a heck of a lot more about this topic. I wonder if a lot of fear comes from misinformation and disinformation?

Anonymous social worker

P.S. I’m anonymous because not all of the rhetoric has been nice out there around this topic and I’d just rather not deal with any backlash!

Kia ora ASW,

Thanks for the reply and the chance to keep this discussion going in a manner that all discussions should go – respectful, transparent, honest, forthright while also staying open to new thoughts and ideas.

I do think that social media plays a big part in formulating and disseminating falsehoods and that is a reason why I am not on it. It seems to me that both sides of this argument, and all arguments for that matter, live in a vacuum of likeminded individuals on social media so there is no room for dissenting voices. When there is a sound that isn’t familiar it gets drowned in insults.

Mind you, a vast proportion of keyboard warriors wouldn’t act as they do online in the real world and that is why a great number of structural issues continue being a problem. They think that by liking or sharing a post or arguing with someone they don’t know or have never spoken to in person it is going to change the issue. I digress, that is another thread to discuss at a later date.

You asked me two very important questions:

I’m curious as to what you would suggest an alternative solution might be?
Do we wait for there to be enough time to determine possible long-term side effects?

Two big questions that I cannot separate so I’ll answer it the best I can without sending back a thesis.

Trust plays a big part in this, as it does in our role as social workers when working with our clients. A huge part of initial assessment and engagement with clients is gaining their trust so that any future engagement is solidly embedded with trust and openness.

Break that trust and you have lost them forever (more often than not) and if not, then it takes a very long time to bring it back, by which time things may have gotten worst for them. Continue breaking their trust, or even being seen as breaking trust and there is no coming back.

Asking (or forcing – depending on how you see this) people to inject a vaccine into themselves they see / feel has not been tested enough isn’t too dissimilar when you couple this with the fact that the messaging is coming from Government via big Pharma. The latter has a litany of lies and lawsuits that have cost them billions of dollars and their victims their lives, and the former (the world over) have had a spotty history as well to say the least. Granted the NZ Government is a minnow when it comes to controversies however, they do get lumped into the giant pond we call governments.

The last paragraph can be backed up with dozens of peer reviewed links and books however I am sure you know about this already.

The people are being asked to do something from two organisations where there is no trust – or very little. So, when I get asked to trust these two organisations, I personally don’t, and a multitude of others don’t either.

This goes beyond conspiracy theories and ‘quack jobs’ which is how it is sometimes portrayed. It is multi-layered and comes from different viewpoints.

As an aside and to underline the last comment, I am Uruguayan, my country and the entire continent of South American has had, for many many decades a history of coups, corruption and lies all formulated and implemented by Governments (mainly foreign but some domestic) and is a big reason why my self and my siblings did not grow up in our own homeland. (Lets not forget Operation Condor – but again I digress).

So, while I am vaccinated, I felt forced to do it and did it from a place of distrust as both organisations I have an inbuilt distrust of. I am not sure, if I am being honest, I would have rushed out to get vaccinated if I wasn’t going to lose my job and therefore not be able to provide for my family, pay my mortgage etc. I would have waited to see whether there were any side effects before moving forward.

Does that make sense?

On that last point, the biggest thing in my life, and I am sure the life of others, is family. My wife and children – my sunrise and sunset. As I have very little trust in both organisation, I loathed having to see them forced into the same thing just so that they can be part of our society.

The other area that is part and parcel of this answer, I am sorry that this is getting quite long, is that while the technology isn’t new, the vaccine is and while you do quite rightly state the truth around your points, I cannot get past the fact that there wasn’t enough time to test the long term affects of this drug.

There just wasn’t and I would never forgive myself if, in 10 – 15 years, my children develop something because I did not have the moral courage to say ‘No, wait – let me change jobs and we will just get by for a while’.

If I needed to ‘take one for the team’, then fair enough, but not my family, or any other child for that matter. And… there are a great number of documented side affects coming out now that isn’t conspiracy but facts. Let us hope that we’ll be ok but we just don’t know.

What was the alternative? Apart from time ASW I am not sure, but my mind then wanders to:

Chagas disease (American trypanosomiasis), Chikungunya, Dengue, Cytomegalovirus, HIV/AIDS, Hookworm infection, Leishmaniasis, Malaria, Respiratory Syncytial Virus and Schistosomiasis.

Diseases that vaccines have only recently been developed / in trials or are still killing hundreds of thousands a year, a vast majority of deaths are in the global south. Why hasn’t the world been pulling out all stops in fighting these? The answer is simple, it is mainly in the global south, not in Melbourne, Washington DC, Vienna, London or Auckland.

So I am not amazed at “how bureaucracy can stop itself from getting in the way when there’s a need to”, I am amazed at the blatant racism that the world shows even when we’re talking about vaccines and no one is talking about it.

We seem to have all the time in the world for these diseases! To test all manner or outcomes and cohorts.

Why is that? (rhetorical)

My last quick point – Bugger the backlash ASW – speak the truth, be respectful, stand your ground, be honest and transparent and if people don’t like it, then they’re not worth it.

Kia kaha


Kia ora Luis

I just want tautoko your response and korero. I have felt that this issue around mandated has resulted in quite a black and white narrative from people who are usually well balanced, and understand the nuances around public health and well-being. I feel like people are being shut down whenever they present with an alternative approach or response to the mainstream one.

I personally am vaccinated and am putting my trust in health experts who say that it’s best to get vaccinated. However I am not in favour of the mandates anymore as I feel they have divided us and silence those who think differently, including academics and well researched individuals.

I’m not sure what the answer is, but I do know there our response to covid has been inconsistent when it comes to other public health measures and we need to ask ourselves why.

Ngā mihi
Ps sorry for the typos, my phone won’t let me edit this!!

Kia ora Bex,

I’m glad to hear that you’re vaccinated and have decided to put your trust in health experts. My whānau and I made that choice too, and we have no regrets. The debate around vaccines, mandates and vaccine passes has indeed become very heated. I don’t think this is surprising given the levels of stress associated with the pandemic and the public health restrictions required to manage it.

I guess we all know some individuals who disagree passionately with the measures taken but this does seem to be a particularly vocal minority. Not that we should invalidate a point of view just because it’s held by a minority, but I guess I don’t believe the debates are deep or divisive. Nor do I believe that, because some people vocally disagree with them, we should remove the (temporary) mandates.

The pandemic and measures required to manage it have been extraordinary. But similar, if less fiery, debates have been associated with other policies, such as assisted dying and smacking children. These debates are ethical and moral, they are about what we as individuals and as a society believe to be right and wrong. We almost never have all of the evidence required to support a choice, but we can weigh the evidence we have, listen to the claims made and make a choice.

Moral choices aren’t like choices about which clothes to wear or which music to listen to. You might not like your neighbour’s choice in music or clothing but when they make a choice in relation to a matter of public health that has a direct impact on the health of the wider community. It’s a concern for the collective and cannot be reduced to an individual’s right to choose, their freedom should always be constrained by wider public concerns.

There are a couple of articles below on the moral issues associated with the pandemic that you might find interesting?

Many thanks for your continued interest in and contribution to the RSW blog.



How protesters demanding ‘freedom’ from Covid restrictions ignore the way liberty really works

COVID-19 and Human Freedom

Medical Autonomy and Vaccines: A Kantian Imperative

Kia ora Luis!
I’m not the author of this piece but thought I would reply anyway. You’re right, there is always a small chance of any vaccine or medicine having an unknown future negative consequence, nothing is 100% safe. But now, more than any point in history, we can be reasonably assured that vaccines, including this one, have undergone rigorous testing and development. Just because it was over a short timeframe doesn’t necessarily point to ‘shortcuts’: the amount of resources and collaboration brought to bear on its speedy development were huge. So, while I agree we should always check the potential side effects of any medical treatment, some of which are unknown, in this instance the ‘tsunami of medical ailments’ potentially caused by the vaccine are unlikely to outweigh the tsunami of immediate illness and death, and estimates of 1/3 of people with long covid, caused by the illness itself if we had no vaccine.

Kia ora Luis,

You’ve raised a few valid points but unfortunately none of them really answer the questions – what is the alternative? How long is long enough to test? Sorry this feels like a bit of a lecture (and please don’t take it as being one as I get where you’re coming from but there are a couple of points I want to stress).

I absolutely acknowledge your points about Government and drug countries. People (including Governments) are known for corruption around the world. But these are just reflections on the state of society and explain why there is distrust but do little in the way of proposing a solution to move forward. In relation to trust, I’d say, if we don’t have trust, what do we have? Society is built on foundations of trust that we will not harm each other. I think that there needs to be incredible work done to restore our trust in each other (especially after yesterday’s events).

We cannot deny the incredible privilege that we have. We’re incredibly privileged that our Government has purchased enough vaccinations for us. We’re incredibly privileged that we have not had significant outbreaks of COVID-19 in Aotearoa (which I’ll remind you is due to our Government’s leadership and us demonstrating our trust in them whilst we followed the rules). We’re incredibly privileged that we have the luxury of finding other jobs that mean we can provide for our whānau. We’re incredibly privileged that we have free, (mostly) accessible, quality public health care.

I wonder how people in other countries feel? Do those who lost a loved one to COVID in the early stages of the pandemic wish that there was a vaccine that could have possibly prevented them from dying? I’d say so. I’d say there are plenty of people throughout the world right now who would trade their place with any person living in Aotearoa in a heartbeat and to live in a country where we have choices, access to vaccines, and freedom. We’re incredibly privileged. The mandate restricts our privileges (for a limited time) not our fundamental rights. We need to keep this in perspective. We need to keep in perspective that the mandates were never going to be long-term (in fact it’s looking like they will be in place for less than a year).

Your second point about the other diseases you mention, is again valid and I absolutely agree. However, again, it’s a reflection of where society is at (and this must be challenged) but it does nothing in the way of providing any solutions to the questions I posed originally. There needs to be a hard look at how vaccines and treatments are funded and researched. I’d suggest that pointing to the co-operation around COVID as a template to increasing the progression of other diseases is a possible solution. But this doesn’t change the situation with COVID.

Of course, no one wants anyone to have adverse long-term effects from this vaccine (especially their loved ones). But what happens if your loved ones became seriously ill or died from COVID, or had to live with the impact of long COVID in the meantime whilst we wait for the vaccine to be “sufficiently tested”? It’s a chicken or egg scenario. However, I think unlike the paradox, we have an answer to our question at hand. The evidence is overwhelming that lives are saved and people become less sick as a result of the vaccine.

So, sadly, there’s not really an alternative. I truly wish there was, but there’s not. This is probably the jadedness as a result of yesterday speaking: but we probably just need to keep the realities I’ve outlined above in perspective (our privileges are restricted for less than a year in the context of a health crisis), reflect on how we can address structures of society that result in the incredible privilege we have, be kind to each other, and find ways to rebuild our trust in each other and our Government.


Kia Ora Emily and ASW,

Thanks for your replies and for keeping this going for a little longer. It’s always nice to be able to have a korero on topics that are controversial in a way that Is respectful and gives space for the other person to speak their mind.

It is interesting that this is being conducted by three people who, I assume, are all vaccinated however have come to it from different pathways.

I am writing this on the phone so I’ll keep it brief.

My apologies for not answering the question ASW.. I thought I had but it must have got lost somewhere 🙂

In short…. There is / was no alternative however that doesn’t make it any safer (long term) or more palatable in peoples minds.. Even for some that went ahead and got it done it – as I have stated above – leaves a nagging dread of what may come.

One last point, I never thought that corners were cut, I am sure all processes were followed.. if I mentioned that then I didn’t mean to, but there is no substitute for time when it comes to testing regimes in medicine so I dearly hope that my fears don’t come to fruition.

Take care both of you and I hope one day we can all speak up about whatever we want without fear of backlash.

Kia kaha


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