Thread by @drdeanknight

I’m in the virtual gallery today, watching this judicial review challenge to the vaccination order for border workers.

Please note the applicant’s identity is suppressed (but not details of their former occupation and employer).

#bordervax

I'm also subject to the media's 10min delay rule -- which is not unexpected but challenging for an academic with a memory like a goldfish... 🐠

Kick-off. (This is a 10min delayed tweet...)

Churchman J clarifies suppression of plaintiff's name and details (strictly speaking, non-publication/anonymisation order, I think?) #bordervax

Fechney opens with reflective statement about her own journey as advocate, her disability and the challenges she faces. #bordervax

Border vax order "one of most significant decisions” made by govt; F raises rule of law concerns.

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F raises concerns about how s 11 of Covid-19 Public Health Response Act 2020 operates as a Henry VIII provision (ie, secondary legislation overriding primary legislation).

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Side note: Sure, s 11 must be a Henry VIII clause; s 13(1) gives it priority over primary legislation. However, s 13(2) expressly provides that the Bill of Rights Act still trumps any Covid-19 orders; in other words, the orders must be bill of rights consistent.

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F: Claim is about whether this vax order can legally be made under C19 Public Health Response Act, not directly about Bill of Rights (although the latter does feed in).

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Seems to be more in the style of the principle of legality claim -- power should be read narrowly, nudged by bill of rights and principle against Henry VIII-type effect.

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"Slippery slope"! 🚨

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Churchman: cautions F about ‘casting net too widely’; judicial review proceedings are narrow: focus on lawfulness, process, compliance with Bill of Rights.

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F: Raises concern about proportionality of order, both under Bill of Rights and C19 PHR Act purpose -- significant effect on non-vax folk

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[Urgh: My brain and tweets are 20min behind the proceedings. The 10min mandated lag is redundant!]

Churchman J: But no affidavit evidence on those effects? Court can't make those assumptions?

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F: Argument is that the s 9 checks-and-balances were not complied with when vax order was made.

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F: Vax order was prepared by Min for C19 response but was signed off by Associate Min of Health. Difficult to know what minister was "satisfied" about legal requirements.

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Side note: This is a thorny issue. Section 7 of Constitution Act allows another minister to exercise powers. But how does that square with legal mandate to consider such matters?

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Ultimately, probably, a factual question. And, perhaps, if necessary, extent to which collective ministerial deliberation can legally be aggregated.

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Churchman: Argument really is that no minister could have been satisfied that this vax order was bill of rights compliant?

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For the trainspotters, s 9(1)(ba) requires the minister to be satisfied that order is bill of rights compliant. But this doesn't really add anything to the usual principle that secondary legislation must be rights consistent (s 13(2) of this Act; Drew v AG generally).

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Key argument is revealed.

F: Vax order goes beyond what is necessary, esp in light of high vax rates in community. Order is too wide; didn't assess which workers were (un)safe etc.

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F: Blanket approach is wrong.

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Churchman: Court needs some rational basis to distinguish applicant from other border workers. What factors mean it is unlawful in relation to her?

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F: Applicant was assistant customs officer; never boarded ships; spend most time in vehicle; etc.

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Powell for Crown: Objection - evidence from bar.

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F: Health and safety protections would have been adequate. Thus vax order goes beyond what was necessary.

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F argues about inadequate process.
Churchman: Are you attacking mode of operation of Parl when this order made? Undemocratic operation (not sitting as per usual) means order itself unlawful? But nothing in pleadings setting out such a challenge?

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F moves to irrationality argument.

(Sad to see the geographical epithet did not get express mention...)

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F mounts a Tiriti argument; when pressed, argument is that there is a breach of principle of partnership.

(Seems to be more about passing of primary legislation than vax order.)

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Te Tiriti arguments seem to be about lack of consultation -- unclear whether that's re primary legislation or C19 order.

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F also suggests health and safety regime was sufficient to address public health concerns.

Churchman: But h&s regime not excluded; still operates in parallel.

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F raises concerns about effect of vax order of employment jurisdiction and specialist court.

Churchman: But that's for Parliament to decide?

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Extended exchange about employment matters, redundancy.

(Scribbles turn into doodles. Employment law was never my thing. Lost a $24m case once. Never went back.)

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F concludes. Orders are very wide. Unconstitutional. Gravity of orders means s 9 considerations could not be met; minister could not be satisfied about mandated matters. Effect of vax orders on rights significant; should not have been promulgated as secondary legn.

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🫖☕️

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Court resumes.

F continues.

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F: Sections 9 and 11, when interpreted with section 6 of Bill of Rights, mean vax order can't be made.

Churchman: Your argument is that vax order is not a justified limit on rights?

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Side note: I note that no right seems to have been identified but I presume it's s 11 of the Bill of Rights (right to refuse to undergo medical treatment).

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Churchman: Is the argument about about process or substantive effect?

F: Process, but order has substantive effect.

Side note: This exchange underplays a huge conundrum on bill of rights jurisprudence -- when the supervisory concern in procedural or substantive (ala Miss Behavin', I think?).

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The courts have fallen on substantive appraisal, ie whether the action is compliant or not, not merely whether the govt properly considered rights in the course of deliberation.

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Here, I don't think it's matters, as the Bill of Rights bites both procedurally (s 9(1)(ba) and substantively (s 13(2)/Drew).

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F returns to non-publication order.

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Fechney concludes.

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Powell kicks off for the Crown.

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P: Power here is not a Henry VIII power. Simply a very wide power. Extraordinary power. But we are in extraordinary times.

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Side note: I think that underplays the effect of s 13(1); clearly, C19 orders prevail and thus "impliedly repeal" inconsistent primary legislation -- at least as long as they are in force? But the label might be by-the-bye.

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P: No particular implicated right identified in applicant's submission.
Churchman: But accept - as developed in oral argument - that the argument is that freedom of choice implicit in s 11 of the Bill of Rights is burdened by employment consequences that might flow.

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P: Crown accepts that. Section 11 is unique in international context – but elements of privacy and dignity etc

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P: Court should be wary of reading anything into fact that ministers may have taken a different view from officials on some (unknown) matters. That's life.

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P: Re order being signed by associate minister, see section 7 of Constitution Act 1986 (see above n # etc).

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P: Nothing in context here suggests that can't apply.

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P: Kicks off with run through written subs.

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Really important exchange about the applicable standard of review. Forgive the lack of verbatim reportage but it was so intoxicating I had to lean into it and think deeply about it...

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To paraphrase. Merits are usually off limits on judicial review. However, Bill of Rights consistency is a question of law and thus a matter the courts can assess. Section also imposes preconditions to exercise of power, ie matters the minister must be satisfied about.

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Some debate about the standard applicable to the latter. Crown says "satisfied" means "reasonably satisfied". Churchman ponders the extent to which court can second guess the decision, if doesn't think factual case made out.

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Churchman doubts courts can wade into weighing process, at the very least without any evidential foundation.

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More generally, Crown points to Pro-life Alliance: "considerable latitude" must be given to ministers and their assessment. Crown argues no basis for lowering threshold for substantive or irrationality review.

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P notes that Crown has, unusually, waived legal privilege over advice re vax orders in this case.

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The latter demands a big bowl of 🍿 or 🍿🍿🍿.

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P turns to the nature of the right: the right to refuse medical treatment.

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P: in answer to question, accepts, “on balance” in this case, the vax order coercively affects freedom of choice implicit in s 11 such that burden shifts to Crown to demonstrate that the limit is demonstrably justified.
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And that concession demands a flashing light or three too... 🚨🚨🚨

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Churchman: Accepts that is a proper concession. The focus thus needs to be on the justifiability of such a limit.

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Hansen! #bingo

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P: Hansen =/= universal approach. Sometimes a bit cumbersome.

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🥪

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Actually, I think that it was Denbigh High School? @DrTomPoole will know...

Court resumes.

(Commentary may be a bit more coherent after your narrator managed a quick dash to @vicbks for a cheeky flat white and toast baguette.)

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P takes Court through two border vax orders (as one made then amended), coverage, targeted exceptions, exemption power etc.

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Churchman J doubts the court can take account of subsequent amendments, as consequences for applicant arose in relation to original order.

Crown agrees (but may affect discretion re relief etc).

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P: Jettisons first 3 Hansen steps and focuses on 4th – ie, proportionality – as that’s what it all turns on. (Or, rather, "step (b)(iii)" under the original *dreadful* numbering in Hansen.)

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P: Consequences of risk not confined to border workers – rather, absorbed by community as a whole and borne disproportionality by certain vulnerable groups (elderly, immo compromised, etc).

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Exchange about nature of risk associated with not being vaxxed.

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Churchman: Statistically, all that can be said is vax folk are less likely to be infected and less likely to transmit etc. But not as a matter of certainty – deductive, albeit legitimate – reasoning based on likelihood.

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P: Agrees and points to Bloomfield affidavit explaining that.

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Churchman: Argument in applicant’s written subs that, because vaccination only had interim approval, administering vaccine amounted to medical experimentation. Unsure whether still advanced but invites response.

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P: Claim is incorrect. Points to Bloomfield affidavit etc.

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P: Nods to possible indirect discrimination re specific groups. But assessment of whether distinction actionable discrimination the same as section 5 justified limits calculus.

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They came back to the interaction with employment law and h&s again... #eyesglazeover

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Churchman: Re te Tiriti, nods to comments of Goddard in Trans-Tasman Resources that te Tiriti duties may arise even in absence of - or beyond - legislative reference.

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P: "Context is everything." #bingo 🤓

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P: Addresses whether section 6 Bill of Rights requires reading down s 11 power to make orders: Crown position is that that’s superfluous, as s 9 requires orders to be Bill of Rights consistent.

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Crown concludes.

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F in reply.

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F: Drew v Attorney-General. #Bingo

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F: Not a case of EITHER protect against the Covid OR protect rights. Both can be achieved.

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Hearing concludes. Decision reserved. Ruling expected by end of month, subject to other judicial demands.

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@threadreaderapp unroll