In brief

• A group of home carers (people living with those they cared for, usually family) sued the Government, arguing their vaccine mandate was illegal.
• The Government agreed and has promised to reimburse the lost income.
• PM Hipkins has not apologised.

An illegal and nonsensical order

In the case of Wright v Minister for COVID-19 Response, a group of home/family carers sued the Government over the vaccine mandate ordered by Chris Hipkins (then Minister for COVID-19 Response), and won in the Wellington High Court on 10 March 2023.

It is essential to understand these home carers already lived with the people they looked after, usually family, and were going to continue to do so regardless of vaccine status. Could any case be more clear the Government thinks they know best and that everyone should follow their one size fits all brilliance?

By way of background, on 25 October 2021 New Zealand’s vaccine mandate for border workers was extended to cover health, disability and education sector workers. However the home carers group was excluded.

Nine days later Hipkins was advised, apparently by someone not qualified, to remove the exemption for family carers. This was not public health advice, as required by the COVID-19 Public Health Response Act. Hipkins followed the advice anyway, and removed the exemption on 6 November.

This caused family carers throughout the country to either stop being paid, or to be coerced into vaccination in order to continue their income and be able to continue looking after disabled family members. Their vaccine mandate continued until 26 September 2022.

An irrational change to a sensible exemption?

The reasons given for removing the exemption were to support “the move towards having a workforce that is vaccinated against COVID-19” and to be “consistent with the Government’s overall response to the Family Carers’ litigation”.

From a public health perspective, the people being cared for were at no greater risk with no vaccination for the workers since they already lived with them. Perhaps this is why no public health advice was given.

The judge for the case was Gerard van Bohemen, formerly President of the UN Security Council. In true bureaucratic fashion he refused to say the order was improper or irrational. To the contrary, he said the objective of having an entirely vaccinated workforce was consistent with the COVID Act. He also argued it was possible Hipkins did consider the Bill of Rights in his (unlawful) decision. 

The consequence of the judge’s position is to deem consistency of rules within Government more important than basic rights or common sense.

However, Justice van Bohemen did agree Hipkins’ order was invalid, since the respondents of the case, Chris Hipkins and Attorney-General David Parker, had already admitted this. They also agreed the mandate was therefore invalid, and to reimburse carers for their lost income.

It’s encouraging the Government acknowledged its error instead of fighting it in court, but why did it have to take so long?

No apology yet

Matthew Hague, the lawyer representing the carers, said:

We call for the Prime Minister to apologise to the hundreds of care and support workers who had vital financial support unlawfully withheld from them. Vaccines are medical treatment, the New Zealand Bill of Rights Act guarantees all New Zealanders the right to decide what medical treatment they receive.