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The Supreme Court (SC) of NZ has recently dismissed the application by New Zealand Teachers Speaking Out with Science (NZTSOS) for leave to appeal the decision of the Court of Appeal, which found in accordance with the High Court, that the C-19 vaccine mandates for education (and healthcare) workers were justified.
A brief history
3, 4, 7 Mar 2022
NZDSOS/NZTSOS High Court hearing challenging the vaccine mandates in the health and education sectors, heard by Justice Cooke
8 Apr 2022
Decision: that mandates were a reasonable and demonstrably justified limitation on the right to decline medical treatment
19 Apr 2023
NZTSOS Court of Appeal hearing heard by Justices Gilbert, Collins, and Goddard
26 Mar 2024
Decision: 11 months after the hearing, appeal dismissed, no costs
23 May 2024
Application to appeal to Supreme Court (SC)
30 Jul 2024
Decision: application for leave to appeal to Supreme Court dismissed, costs of $2,500 against NZTSOS, determined by Justices Glazebrook, Ellen France, and Miller
In making their decision, the judges “were not persuaded that the application for leave raised a question of general or public importance”.
Really?? What is more important than being able to say NO to a medical treatment, particularly one that may be experimental, unnecessary or carry a significant risk of illness or death?
Every Kiwi should be very concerned about this decision as it effectively means that the Bill of Rights Act (BORA) – and HDC-enshrined right to decline medical treatment – does not exist. New Zealanders do not have a right to say NO to medical procedures they disagree with or do not want.
The judicial system has demonstrated that it is unwilling to uphold that right in both this NZTSOS case and the fluoride challenge against Hastings District Council.
Section 5 of the BORA says that the only time the right to decline medical treatment can be limited is when it is ‘reasonable and demonstrably justified in a free and democratic society’. Perhaps we don’t live in a free and democratic society as there is no ability to debate what is ‘reasonable’ and no requirement on the Crown to demonstrate any justification.
It seems the justification does not have to be provided up front, it only has to satisfy a rather inappropriate and flimsy test when challenged in court.
The test that has been used to assess ‘reasonable and demonstrably justified’ is the Hansen test* which is completely inadequate for determining whether an irreversible medical procedure should be foisted upon the population or an individual. It does not take into account medical ethics, individual risks and benefits, alternatives or the unknowns about the procedure or illness.
Although the judges waxed lyrical about the very significant evidential burden and the high threshold the Crown had to meet when providing evidence to justify limiting the rights of Kiwis, in reality the court just has to determine whether the desired outcome (preventing Covid infections) is important; whether there is a rational connection between the limiting measure (vaccine mandates) and the outcome; whether the limiting measure impairs the right (to decline medical treatment) no more than necessary; and whether the limit is in proportion with importance of the outcome.
There is nothing in the Hansen test that requires specific consideration of the potential harm that a medical procedure can cause.
Judges and lawyers are not scientists or medically trained, and we have witnessed them shy away from examining the scientific evidence.
The SC decision also commented on the fact that it is now over two years since the education mandates were dropped and public interest may be less as a result. However, no mention was made of the 11 months it took for the Court of Appeal to release its decision thus delaying the opportunity to approach the SC in a timely manner.
In addition, the judges were not persuaded that there was a miscarriage of justice regarding the lack of disclosure of information contained in the Oct 2021 Science and Insights report or the misrepresentation of the number of people receiving exemptions. They went so far as to suggest that these issues could have been raised in the Court of Appeal in April 2023. We struggle to see how this could be the case when both these issues were only uncovered recently, well after the appeal hearing. It seems there is now no way to address these significant concerns.
We think New Zealanders are in a precarious position currently with no ability to challenge mandated medical procedures.
We also think the Hansen test is inappropriate and inadequate for medical decision making. ‘Demonstrably justified’ should mean that the justification has to provided up front in a format that is accessible to everyone and challengeable. If the BORA right to decline medical treatment is being overridden, there needs to be consideration of the various features of informed consent – potential benefits but also the risks, the alternatives and the uncertainties.
In this case, the medication was not a drug that would be metabolised by the body and excreted allowing the body to return to normal. With mandated mRNA Covid vaccinations a product was given that has produced an irreversible fundamental change to the body and immune system. Surely a much higher level of demonstrable justification needs to be provided in this situation.
Where are the lawyers and legal minds commenting on this important decision? We are not trained in the law but, like many alert Kiwis, do have degrees in the bleedin’ obvious, and we are utterly disgusted at the judiciary’s mute deference to the command and control structure over it emanating from the Beehive. The stark result has been needless suffering and loss of life, and that we are qualified to recognise and fiducially obligated to speak out on.
See below for the NZTSOS press release on the matter.
NZTSOS-media-releaseFeb23Download
For more information about the Science and Insights report and its significance, listen to the interview with NZTSOS members Mike Shaw and Bruce Gillard on RCR here.
For more information about the SC dismissing the application for leave to appeal, listen to the very informative interview with NZTSOS researcher Bruce Gillard.
We’re On Our Own
The courts do not have our backs. Each individual person (preferably collectively in large groups) must say NO if they do not want future medical procedures.
NZTSOS Court Judgements
1) Judgement April 2022
workspace___SpacesStore_a8fb454c_b755_493b_ba5b_c1006c880e51Download
2) Judgement March 2024
workspace___SpacesStore_6da9015b_a976_4ce0_8f85_7b34a40405f2Download
3) Judgement July 2024
* The Hansen test involves addressing the following questions:
- Does the limiting measure serve a purpose sufficiently important to justify the limitation of the right or freedom?
- Do the means chosen to achieve that objective pass a proportionality test, namely:
- i) Is the limiting measure rationally connected with its purpose?
- ii) Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of that purpose?
- iii) Is the limit in due proportion to the importance of the objective?
This article was originally published by New Zealand Doctors Speaking Out With Science.
