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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL CASE NO. HBM 059 OF 2021
IN THE MATTER of an application for Constitutional
Redress and interpretation made pursuant to the
High Court (Constitutional Redress) Rules, 2015
FIJIAN TEACHERS ASSOCIATION
Plaintiff
V
STATE
First Defendant
MINISTER FOR EMPLOYMENT, PRODUCTIVITY AND INDUSTRIAL RELATIONS
Second Defendant
THE ATTORNEY-GENERAL
Third Defendant
Counsel: Mr V Filipe and Mr V Rokodreu for Plaintiff
Mr V Chauhan for First, Second & Third Defendants
Hearing: 22 March 2024
Judgment :15 July 2024
JUDGMENT
[1] This proceeding concerns the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 (which will be referred to as the ‘2021 Regulations’). The 2021 Regulations came into force on 8 July 2021 and were repealed in March 2023. During its operation it provided that only employers and workers who had received the Covid-19 vaccinations were permitted to enter the workplace. Unvaccinated workers could be dismissed by their employers.
[2] These proceedings were filed on 2 August 2021, less than a month after the 2021 Regulations came into force. They were filed before the deadlines prescribed for receiving the vaccinations[1] and, therefore, before the impact was felt by the Fijian Teachers Association (which I will refer to as the FTA). Notwithstanding, during the operation of the 2021 Regulations many workers, including teachers, lost their employment where they chose not to receive the vaccination.
[3] The issue in this proceeding is whether the 2021 Regulations were lawful.
Background
[4] These proceedings are a product of the worldwide pandemic that came to be known as Covid-19. The initial impact of Covid-19 on the world was described by the High Court of New Zealand in the following terms:[2]
[1] At the time of finalising this judgment,[3] COVID-19 had infected over 21,500,000 people world-wide and killed over 760,000. Responding to the pandemic has tested the powers, resources and resolve of governments across the globe. Public health measures of varying degrees of restrictiveness have been officially imposed by different states; their relative appropriateness and effectiveness have been hotly debated...
...
[10] Viruses spread quickly – COVID-19 was no exception. On 30 January 2020, there were 7,818 cases worldwide. The Director-General of the World Health Organisation (the WHO) declared the outbreak of the novel coronavirus, later named “COVID-19,” to be a Public Health Emergency of International Concern.
[5] Fiji was not spared. The Fiji Government responded to the pandemic. The facts as they relate to this claim are, briefly, set out in the affidavit of Mr Paula Manumanunitoga.[4] He was the General Secretary of the FTA at the time his affidavit was filed in August 2021. He deposes to the following:
”No Jab, No Job”, is a Fijian Government initiative to ensure all vaccine eligible Fijians are vaccinated against the deadly COVID-19 disease. The Government has launched this initiative to encourage all vaccine eligible Fijians to get vaccinated and ensure they receive two doses of the COVID-19 vaccine. Vaccination is the best protection against the severe consequences from COVID-19 that include hospitalization and death.
Current Proceedings
[6] The FTA filed an originating summons and supporting affidavit on 2 August 2021. The FTA seeks the following orders and declarations:
are inconsistent with an/or contravened the following Articles of the Constitution of the Republic of FIJI (“the Constitution”) in relation to FTA by itself, its members and its workers:-
(a) Article 2 of the Constitution – the supremacy of the Constitution including:-
- (i) Invalidity of any law inconsistent with the Constitution;
- (ii) Upholding and respecting the Constitution by all;
- (iii) Fulfillment of obligations imposed by the Constitution; and
- (iv) Enforcement of the Constitution through the Courts to ensure that laws and conduct are consistent with the Constitution, rights and freedoms are protected and duties under Constitution are performed;
(b) Article 3(1) and (2 of the Constitution being constitution interpretation that:-
- (i) Promote the spirit, purpose and objects of the Constitution and the values that underlie a democratic society based on human dignity, equality and freedom; and
- (ii) Is consistent with the provisions of the Constitution over an interpretation that is inconsistent.
(c) Article 6 (1 – Bill of Rights chapter binds the legislative and executive including the 2nd Defendant;
(d) Article 6(2) – all the Defendants must respect, protect, and promote and fulfil the rights and freedoms in the Bill of Rights;
(e) Article 11 (3) o the Constitution – the right to freedom from medical treatment or procedure without an order of the court or without his or her informed consent (it is a matter of choice for the employer and worker);
(f) Article 16(1) (a) and (b) of the Constitution as follows:-
- (i) The right to executive and administrative justice or action that is lawful, rational, proportionate, procedurally fair, reasonably prompt; and
- (ii) The right to be given written reasons for the Vaccination Regulations;
(g) Article 26(3) (a) and (b) of the Constitution – right to equality and freedom from unfair discrimination against a person like FTA members and workers on the grounds for his or her health status, religion, conscience, opinions or beliefs; and
(h) Article 127 (8) of the Constitution – authority of the Permanent Secretaries with the agreement of the minister, of the State to govern all matters pertaining to the employment of staff in the ministries including the Ministry of Education, Heritage and Arts under whom FTA members work.
And are, accordingly invalid to the extent of the inconsistency and of no effect due to the contravention.
An Order that they are therefore null, void and of no effect.
[7] The defendants have filed an affidavit in opposition for Mr Osea Naitura Cawaru, the Permanent Secretary for Employment, Productivity and Industrial Relations dated 15 December 2021. Mr Cawaru deposes that it is the choice of the individual whether to receive the Covid-19 vaccination. It is not mandatory.
[8] The proceeding was originally heard on 10 March 2022 by the previous Chief Justice, Kumar J. A decision was to be issued on notice. Sadly, Kumar J passed away before issuing a decision.
[9] I convened a fresh hearing on 22 March 2024. At the conclusion of the hearing, the FTA sought an opportunity to file a further affidavit to explain the impact of the 2021 Regulations on its members. I allowed this and timetabled the filing of additional affidavits by both parties along with further submissions on any relevant overseas authorities. The matter was called for mention on 30 May 2024. As none of the Court’s timetabling had been followed, FTA lost its opportunity to file any further affidavit. The parties were directed to file written supplementary submissions by 14 June. The Plaintiff has not availed itself of this opportunity. I have, however, received supplementary submissions from the defendants.
The Parties Positions
[10] The FTA’s position is as follows:
[11] The defendant’s position is summarized as follows:
[12] Mr Filipe argued in his reply that any procedural defects (such as the filing of an Originating Summons instead of a Motion) could be cured by the court exercising its power under O.2 of the High Court Rules 1988.
Decision
[13] The FTA seeks multiple orders and declarations pertaining to the legality of the 2021 Regulations. The narrow issue for determination, however, is whether the 2021 regulations are ultra-vires. Are they an unlawful infringement on the constitutional rights of the FTA and its members?
[14] The 2021 Regulations were a response to the COVID-19 pandemic. They came into force on 8 July 2021. A worker was not permitted to enter a workplace without having received the first and second COVID vaccinations by 1 August and 1 November, respectively. Pursuant to s 52F a worker who had not received the two vaccinations by specified dates committed an omission that ‘constitutes a basis for dismissal’. Employers were permitted, in such circumstances, to terminate the worker's employment.
[15] The Plaintiff argues that the 2021 Regulations limit the following rights under the 2013 Constitution:
Every person has the right to freedom from scientific or medical treatment or procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.
[16] Section 6(5) of the Constitution provides that the rights under Chapter 2 may be restricted by ‘limitations expressly prescribed, authorized or permitted (whether by or under a written law) in relation to a particular right or freedom in this Chapter’.
[17] There are, in my view, three questions for the court to consider:
What rights under the 2013 Constitution are engaged (limited) by the 2021 Regulations?
[18] The Plaintiff argues that its rights under ss 11(3), 16(1) and 26(3) are restricted by the 2021 Regulations.
[19] Unquestionably, the 2021 Regulations do restrict a worker’s rights under s 26. A worker who has chosen not to be vaccinated is treated differently to a worker who is vaccinated. The discrimination is on the basis of the health status of the worker. I do not think that the rights under s 16(1) add anything to the discussion in this case. The executive action under scrutiny here is the Minister’s exercise of his power under s 62 of the Health and Safety at Work Act. The Minister must, of course, act lawfully and in line with the power. The need for proportionality is a matter that must be considered by this court if it is satisfied that the 2021 Regulations limit a constitutional right.
[20] The other right identified by the Plaintiff is at s 11(3). Does the 2021 Regulations impinge on a person’s right to freedom from medical treatment? The defendants refute this, arguing that it is a person’s choice whether or not to receive the COVID-19 vaccination. Cooke J considered this issue in the New Zealand High Court decision of Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012. That case also involved a termination of employment where the workers had not been vaccinated. Cooke J offered a timely reminder about the court’s role in these kinds of cases. The learned Judge stated:
[22] The COVID-19 pandemic, and the Governmental response to it, has had a very significant impact on the lives of all who live in New Zealand. Restrictive measures have been introduced to seek to address the threat to New Zealand communities arising from the virus. It has dominated public discourse, particularly when measures have been most restrictive, and the threat of the virus has seemed to be the most concerning.
[23] In recent times there has been a very strong emphasis on vaccination, and the benefits of as many New Zealanders as possible being vaccinated for the overall public good. It is a matter of observation that in public discourse those who are not in favor of vaccination can be subject to criticism, and at times public condemnation. Within that environment the Court plays an important role. The issue that is raised by the applicants in this challenge is clearly a legitimate one to raise with the Court. A fundamental right in the Bill of Rights is being limited. In their affidavits the applicants have explained why they did not wish to be vaccinated, and the reasons that they have put forward are understandable, particularly in specific cases. They have lost their employment as a consequence of the challenged measures. It may also be appropriate to record that the applicants have been on the front line in the public health response to COVID-19, including when deployed in managed isolation facilities, putting themselves at risk for the public benefit. Their evidence also describes the difficult circumstances they have had to face, including in those facilities. They should not be thought of as any less committed to the community than any other New Zealander.
[24] The function of the Court is to ensure that the rights of minority groups are properly protected when measures such as those in issue are implemented, including measures that appear to have widespread public support. The Court must ensure that the rule of law is observed. There should also be no doubt that persons in the position of the applicants have the right to access the Court to challenge the legitimacy of the measures imposed. The right of access to the Court is fundamental to the very legitimacy of the measures implemented.
[21] With respect to whether the equivalent legislation in New Zealand engaged (limited) the right to freedom from medical treatment, Cooke J stated:
[28] The respondents accept that the applicants’ rights under s 11 of the Bill of Rights — the right of everyone to refuse to undergo any medical treatment — are limited by the Order. That was recognized when the Order was made, and was accepted in argument before the Court. The respondents say, however, that this limitation is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society in accordance with s 5 of the Bill of Rights.
[29] I agree that the Order limits the applicants’ rights under s 11. Vaccination is a medical treatment. Whilst persons in the position of the applicants are not being forcibly treated in the sense that they can decline to be vaccinated, they are required to be vaccinated as a condition of their employment and to decline to do so can, and has, led to termination. A right does not need to be taken away in its entirety before it is regarded as having been limited. A limitation short of removal is still a limitation. A similar issue arose in New Health New Zealand Inc v South Taranaki District Council which concerned the fluoridation of community water supplies. The Supreme Court held that when the water supply was fluoridated those who lived and worked in the affected area had no practical option but to ingest the fluoride that had been added to the water, and that the right under s 11 was accordingly being limited.
[30] It is a matter of degree whether practical pressure to undergo a medical treatment will be taken to have limited the right to refuse that treatment. Here the level of pressure is significant and amounts to coercion. The employees are forced to be vaccinated or potentially lose their jobs. This involves both economic and social pressure. I accept that the right is accordingly engaged, and that it is limited by the Order. The key question in this case is whether this limitation is demonstrably justified.
[22] I, respectfully, agree.
[23] Accordingly, in my view the 2021 Regulations engaged (or limited) the following constitutional rights of the FTA and its members:
Is the limit allowed by written law?
[24] As per s 6(5) of the Constitution, the rights under Chapter 2 may be limited where expressly prescribed or authorized under a written law.
[25] The 2021 Regulations were enacted by the Minister for Employment, Productivity and Industrial Relations exercising his power under s 62 of the Health and Safety at Work Act 1996 (H&SW Act). Was the Minister properly and lawfully exercising his power under the H&SW Act to enact the 2021 Regulations?
[26] I am satisfied that he was. The objectives of the H&SW Act are wide and include reform of the law relating to the safety and health of workers. Section 9 (1) requires every employer to ensure the health and safety at work for all its workers as regards the workplace and maintaining the workplace in a condition that is safe and without risk to health. Workers also have a duty, under s 13, to take all reasonable care in their workplace and to cooperate with the employer.
[27] The Minister’s power to make regulations is expressly contained at s 62. The provision empowers the Minister:
...on the recommendation of the Permanent Secretary in consultation with the Board[5] [to] make regulations, not inconsistent with this Act, prescribing matters-
(a) required or permitted by the Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
[28] The 2021 Regulations were designed to prevent and contain any spread of the Covid-19 virus in the workplace. Clearly the health and safety of workers is central to the enactment of the 2021 Regulations. The 2021 Regulations were enacted to ensure a safe working environment free from the risk of catching or spreading the COVID-19 virus. The COVID-19 pandemic, and the availability of the vaccination from early 2021, justified the imposition of the 2021 regulations.
[29] Accordingly, not only is there a written law limiting the constitutional rights under Chapter 2, as required under s 6(5) of the Constitution, but I find that the H&SW Act empowered the Minister to make the regulations.
[30] The Plaintiff argues that the Government ought to have consulted with the public and the stakeholders, given the far-reaching implications of the 2021 Regulations. There is no requirement under the H&SW Act for the Minister to do so. It sufficed under s 62 that the Minister receive the recommendation of the Permanent Secretary in consultation with the Board. There has been no suggestion that the Minister did not do this. Indeed, the 2021 Regulations expressly provided:
In exercise of the powers conferred on me by section 62 of the Health and Safety at Work Act 1996, and acting on the recommendation of the permanent secretary responsible for employment, productivity and industrial relations, after consultation with the National Occupational Health and Safety Advisory Board, I hereby make these Regulations -[6]
[31] The Plaintiff is critical that the authorizing legislation, that limited rights under the Constitution, was mere subsidiary regulations and not primary legislation such as a statute. Further, the FTA argues that the H&SW Act was not the appropriate legislation to utilize for this purpose. Given the public health implications of the COVID-19 pandemic the FTA argues that health legislation ought to have, instead, been used. As I have found, s 62 does authorize the Minister to make the 2021 Regulations. I am satisfied that the Health and Safety at Work Act was a suitable legislative vehicle to restrict the spread of the COVID-19 virus in the workplace.
Are the 2021 Regulations a proportionate and justified limitation on the FTA’s constitutional rights?
[32] The authorities that have been brought to my attention make it clear that it does not suffice that there is a written law authorizing a limitation on a constitutional right. The court must also be satisfied that the limitation is justified and proportionate. The Fiji Court of Appeal considered the issue in Chaudhry v Attorney-General [1999] FJCA 27. The issue in that proceeding concerned the compatibility of the common law on contempt with the right under the 1990 Constitution to freedom of expression. The Court of Appeal, adopting the test from the Canadian decision in R v Oakes [1986] 26 DLR (4th) 200, stated:
In Canada the principles to be adopted in determining the limits were enunciated in R v Oakes [1986] 26 DLR (4th) 200 and summarised by the Supreme Court of Canada in R v Chaulk [1991] 2 CR (4th) 1, 27-28 as follows:
In New Zealand Richardson J adopted broadly similar considerations in Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA)....
[33] A similar test was applied by the High Court of New Zealand in GF v Minister of COVID-19 Response [2021] NZHC 2526. The High Court was considering whether rights under the New Zealand Bill of Rights Act which had been limited by Covid related legislation was permitted under s 5 of that Act as being ‘demonstrably justified in a free and democratic society’. The High Court stated at [75]:
The most commonly applied test under s 5 was articulated by Tipping J in Hansen v R, adapted from the approach of the Supreme Court of Canada in R v Oakes:
(a) the limit must serve a sufficiently important objective or purpose, which warrants overriding a protected right or freedom;
(b) the means chosen to achieve the objective must be proportionate, which encompasses concepts of:
- (i) rational connection – the means chosen must be rationally connected to the objective in that they logically tend to advance the objective;
- (ii) minimal impairment – the means chosen should impair the right or freedom no more than is reasonably necessary; and
- (iii) proportional effect – the benefits achieved by the measure must not be outweighed by the significance of the limitation of the right.
[34] The objective of the 2021 Regulations was to limit the spread of the covid virus in the workplace and around Fiji. It was justified given the serious health risks of the virus to the entire community. The 2021 Regulations were rational, fair and proportionate. The 2021 Regulations required employers to preclude workers from the workplace who were not vaccinated. However, allowance was made for workers (and employers) who were under 18 years, had a history of severe allergic reaction to the vaccine or had any other legitimate medical reason for exemption of the vaccine. An employer was not compelled to terminate the worker’s employment (if they were unvaccinated) but it was permitted under the 2021 Regulations to treat the failure to be vaccinated as a basis for dismissal.
[35] I take judicial notice of the measures that were taken in other countries around the world, including New Zealand, to address the impact of COVID-19. In New Zealand, similar limitations were legislated for unvaccinated workers resulting in their termination of employment. In Four Aviation Security Service Employees v Minister of COVID-19 Response, four aviation security workers did not wish to be vaccinated and were dismissed. Cooke J concluded in that case:
[124] Given the above findings I return to the ultimate question — whether the limit upon the s 11 right prescribed by law is demonstrably justified in a free and democratic society. I apply the steps from R v Oakes adopted in New Zealand in R v Hansen to do so. My conclusions are that:
(a) The compulsory vaccination of these workers serves a purpose sufficiently important to justify curtailment of the right.
(b) The means chosen to achieve the objective of minimising the risk of an outbreak of, or spread of COVID-19 in New Zealand is proportionate as:
- (i) the measure is rationally connected with its purpose;
- (ii) the measure impairs the right of freedom no more than is reasonably necessary for the sufficient achievement of that purpose; and
- (iii) the limitation is in due proportion to the importance of the objective.
[125] Apart from the factors I have already addressed it is also important to note that those in the position of the applicants are not actually compelled to be treated. They retain the option to refuse vaccination. The implication is that, if they are unable to be redeployed by their employer, their employment may be terminated. That has happened for the applicants. But what they have lost is their job, rather than their right to refuse to be vaccinated. That is relevant to assessing the proportionality of the measures imposed here. The Act is not being used to literally compel vaccination for anybody.
[36] A similar issue arose in GF v Minister of COVID-19 Response (supra). The High Court of New Zealand aptly described that case as addressing ‘the intersection between the legislation designed to achieve the public benefit of preventing or limiting the risk of the spread of the COVID-19 virus and the private interests inherent in an employment relationship’.[7] That case involved an unvaccinated employee of the New Zealand Customs Service who had their employment terminated. GF argued that a Vaccination Order made by the Minister under the primary covid legislation was invalid. Arguments included that the Vaccination Order was inconsistent with certain rights under NZ Bill of Rights Act; such rights included the right to refuse to undergo treatment and the right to freedom from discrimination. GF also argued that the Minister did not consult with Maori. Churchman J found that there was no statutory obligation on the Minister to consult with Maori. The learned Judge rejected each of GF’s arguments determining that the Vaccination Order was not ultra vires. Churchman J also noted:
[118] The Vaccinations Order does not purport to override or oust the jurisdiction of the Authority or Employment Court. Indeed, the right to challenge a dismissal which has occurred as a result of the implementation of the Order remains and was exercised by the applicant in this case. If the applicant had been able to demonstrate in the Employment Relations Authority that there was an alternative available position to which she could have been redeployed but was not, then her unjustified dismissal proceedings would have been successful.
[119] Because the statutory processes to challenge an alleged unjustifiable dismissal remain available, it cannot be said that the “right to work” has been breached. Neither have employment relationships been interfered with in an unlawful way.
[37] I am, therefore, satisfied that the 2021 Regulations were proportionate and justified. I note that this conclusion is consistent with the determination by Sharma J in State v Minister for Employment, Ex-Parte Vasiti Toga [2024] FJHC 39 (25 January 2024) wherein the learned Judge was considering an application for leave for judicial review. The applicant was seeking orders that the 2021 Regulations were in breach of her rights under the Constitution. The applicant did not wish to be vaccinated as she did not believe vaccines worked. She forfeited her employment with Fiji Revenue and Customs Services and sought orders from the court that the 2021 Regulations were invalid. Sharma J found that the application should have been brought by way of constitutional redress instead of judicial review. Notwithstanding, Sharma J determined:
...
[38] Finally, there are a number of other matters that were raised by the parties. These can be dealt with, briefly, as follows:
Orders
[39] The following orders are made:
.....................................
D. K. L. Tuiqereqere
JUDGE
Solicitors:
Valenitabua & Associates for Plaintiff
Office of Attorney-General’s Chambers for the defendants
[1] The first dose was required to be received by 15 August 2021 and the second dose by 1 November 2021.
[2] Borrowdale v Director-General of Health [2020] NZHC 2090.
[3] The judgment was issued in August 2020.
[4] The affidavit was executed on 2 August 2021.
[5] National Occupational Health and Safety Advisory Board.
[6] My emphasis.
[7] At [1].
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