Covid 19 Delta Outbreak: Mandatory vaccination order under scrutiny in Supreme Court

Delta variant is a highly contagious type of SARS-CoV-2 virus.


An employment lawyer told the Supreme Court that the mandatory vaccination order under the Covid-19 Public Health Response Act was illegal and went beyond what the Act intended.

Ashleigh Fechney was allowed to appear in court on behalf of her client, a customs employee who was fired for refusing to be vaccinated.

Fechney said the vaccination order was an abuse of power under section 11 of the Intervention Act, and mandatory vaccination orders were never the purpose of the Act.

“The orders are too broad and go too far… Chapter 11 was never intended to allow that,” he said.

“The applicant does not deny the effectiveness of the vaccine, but [order] goes beyond what is necessary.”

Section 11 of the law authorizes the Minister of Response to Covid-19, Chris Hipkins, or the director-general of health, Dr Ashley Bloomfield, to create orders, including restriction of movement of people.

Fechney said that there are guards in section 9 of the Act and that there is no way for the minister to be satisfied that these were met when signing the order.

These included the provision that the minister had to be satisfied that the order did not limit or was a justifiable limitation of rights and freedoms in the New Zealand Bill of Rights.

Crown attorney Austin Powell, acting on behalf of Hipkins, said the law allows for “extraordinary power” but these are “extraordinary times”.

He said there are effective checks and balances against this power, including Chapter 9 and the right to judicial review.

Fechney also argued that his client’s identity should remain anonymous, as the issue raised was greater than the worker’s employment situation and he did not want to be part of the “anti-vaccine” movement.

The forensic review is pending in the Supreme Court in Wellington and has been delayed for two days.

Judge Churchman agreed to continue with the temporary broadcast ban orders for the worker while the case was pending, but said it would be reviewed.



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