Information on COVID-19 Vaccine and Human Rights

Information on COVID-19 Vaccine and Human Rights

August 25, 2021

The following information addresses frequently asked questions about the Covid-19 vaccine and human rights in New Zealand.

Covid-19 vaccine roll out in Aotearoa New Zealand

In February 2021, the rollout of the COVID-19 vaccine started in Aotearoa New Zealand. According to the government, the plan aims to ensure that everyone will get free, fair and equitable access to COVID-19 vaccines. The plan prioritises people most at risk of harm if they get the virus and those who live and work in places where they are most likely to pick up COVID-19.

The Ministry of Health explains that the vaccine works by teaching the body’s immune system to respond quickly to infection without being exposed to that infection itself. It will not give you COVID-19 and it will not affect your DNA or genes. It does not contain any live virus, or dead or deactivated virus. Before vaccines are provided to the community, they must be approved by Medsafe. Medsafe is the New Zealand Medicines and Medical Devices Safety Authority, and is a part of the Ministry of Health.

In New Zealand, it is not mandatory to have the vaccine unless you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings.

The Ministry of Health emphasises that getting vaccinated “is an important step you can take to protect yourself, your kaumātua and whānau from the effects of the virus. It’s one way we can fight the COVID-19 pandemic and protect the welfare and wellbeing of our communities. By having the vaccine you’ll be playing your part to protect Aotearoa. The free COVID-19 vaccine will help protect the team of five million, and safeguard Aotearoa. It will save lives.” 

In New Zealand, it is not mandatory to have the vaccine, unless you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings. 

Which human rights are relevant when making decisions about vaccines?

Everyone needs to know what human rights are involved when thinking about vaccines. Human rights law is important in helping make decisions about medical care and treatment, including vaccination.

There are several legally protected rights involved under domestic and international human rights law regarding vaccines that involve a balance between public health and the protection of individual rights. Public health may constitute a legitimate purpose to limit the exercise of some rights. However, any restrictions on rights must be demonstrably justified under section 5 of the BORA. This means that they must be legal, proportionate, necessary.

Some of the relevant rights are found in:

What are the government’s human rights obligations concerning the COVID-19 vaccine?

Right to health (Article 12 International Covenant on Economic, Social and Cultural Rights)

Being vaccinated is a human rights measure in itself. Under the International Covenant on Economic, Social and Cultural Rights (ICESCR) the New Zealand government recognises the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (art 12). The government has also committed to taking steps necessary for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases” (art 12(1)(c)) and, in the context of access to medicines the right to “enjoy the benefits of scientific progress and its applications” (art 15(1)(b)).

The United Nations Committee that monitors the implementation of ICESCR has referred to the provision of immunisation against major infectious diseases occurring in the community as a “core obligation” of States and has said that “States must ensure the provision of healthcare, including immunization programmes against major infectious diseases."

The World Health Organisation (WHO) has also stated that immunisation is a “core health service” that should be prioritised and safeguarded during the Covid-19 pandemic, where feasible.

Right to life (Section 8 BORA; Article 6 International Covenant on Civil and Political Rights).

The right to life imposes a positive obligation on the New Zealand government to take appropriate measures to protect the life and health of New Zealanders. Public officials cannot deliberately take your life and have a duty to take proactive, reasonable steps to protect life.

The right to life is what we call an absolute human right, meaning that the government must protect this right. As an absolute right, the right to life cannot be lawfully restricted.

Rolling out the COVID-19 vaccine can be seen as a reasonable step to protect people from a real and immediate risk of COVID-19. Prioritising the order in which people receive their vaccine dependent on the level of risk that they face from becoming seriously ill from COVID-19 and/or by the likelihood that they will be exposed to the virus is about protecting the right to life.

The World Health Organisation has published a values framework for the allocation and prioritisation of COVID 19 vaccines.

As part of the New Zealand government COVID-19 vaccine programme, people who are not at immediate risk from COVID-19 are being encouraged to receive the vaccine to curb infection rates which will help to protect the lives of others.

Transparency and access to information (Art 19 ICCPR)

Transparency and access to information are essential components of human rights and go hand in hand with accountability.

Article 19 of the International Covenant on Civil and Political Rights notes that the right to freedom of expression includes the freedom to seek, receive and impart information from the State.

People have the right to know what is happening in a public health crisis. Transparency is essential in the vaccination process. The United Nations Office for the High Commissioner for Human Rights has stated that “Information regarding processes of acquisition distribution and application of vaccines in a transparent and responsible manner is required.”

Information about the vaccine should be available in readily understandable formats and languages. Being open and transparent, and involving those affected in decision-making is key to ensuring people participate in measures designed to protect their own health and that of the wider population.

Equal and non-discriminatory access

Vaccination programs should be developed on the human rights principles of equality and non-discrimination, which guarantees access, availability and accessibility of resources without any distinction due to economic situation, ethnicity, gender or any other human or social conditions.

This would mean access to vulnerable communities including stateless people, migrants, refugees without discrimination.

Will everyone have to have the vaccine or can you choose whether to have it?

In New Zealand, having a COVID-19 vaccine is voluntary and vaccines will not be forcibly administered. However, if you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings receiving the vaccine is a requirement of the job.

Right to refuse medical treatment (Section 11 BORA)

Section 11 of the BORA provides that “Every person has the right not to be subjected to medical or scientific experimentation without that person's consent.”

The High Court in New Zealand has described the right to refuse medical treatment as an element of the general right to privacy and the right to bodily integrity, recognised by the common law as a fundamental right.

The Supreme Court of New Zealand has found that, in some instances, the right to refuse medical treatment may be restricted. The Court in the case of New Health v South Taranaki District Council considered fluoridation was “compulsory medical treatment” and in breach of section 11 BORA. However, the Court found that this was a justified limitation under s 5 of the BORA. The Court concurred with the finding of the lower Court that the evidence of the public health benefits justified the limitation on rights.

Can my employer require me to have a vaccine?

New Zealand's primary workplace health and safety regulator, Worksafe, has produced a guide to assess whether a specific role needs to be performed by a vaccinated worker. The guidance states:

Businesses and services can’t require an individual to be vaccinated. However, you can require a specific role be performed by a vaccinated person - if you have done a health and safety risk assessment to support this.

Worksafe provides general guidance about carrying out health and safety risk assessments, involves consideration of two factors:

  • the likelihood of a worker being exposed to COVID-19 while performing the role, and
  • the potential consequences of that exposure on others (e.g. community spread).

If there’s a high likelihood that the person performing the role may be exposed to COVID-19 and the consequences would be significant for other people, it’s likely the role needs to be performed by a vaccinated person.

If a decision is made that a role needs to be performed by a vaccinated person, the Ministry of Business, Employment and Innovation (MBIE) has provided the following guidance:

  • Employers can make changes to an employee’s duties for health and safety reasons if an employee is not vaccinated. Any such process must be fair and reasonable and carried out in good faith. Employers must avoid the unfair disadvantage. Employers, in consultation with employees, must consider options, such as changing work arrangements, alternative duties or leave. If leave is used, this must be agreed upon, and we encourage this to be paid. Employers and employees may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances.
  • Employers and employees can negotiate variations to existing conditions of employment to require vaccination. Employers can also require vaccination as a condition for new employees, but this must be reasonable for the role. Employers must follow good faith processes under existing employment agreements (individual or collective) and contracts to make any changes to them.

MBIE also encourages all discussions between employers, workers and unions about Covid-19 vaccination must be done in good faith and employers to offer paid work time for employees to be vaccinated.

MBIE has also published questions and answers for employers on the employment implications of COVID-19 vaccination.

As of 30 April 2021, the COVID-19 Public Health Response (Vaccinations) Order 2021 made it a requirement that all work in MIQ and other government officials at high-risk border settings must be undertaken by people who have received the COVID-19 vaccine. The order made it an offence and a person may be liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 COVID-19 Public Health Response Act 2020 if they intentionally fail to comply with the Order.

Can the government require me to have a COVID-19 “digital certificate” or “vaccine passport”?

While there have been proposals introduced overseas for COVID-19 “digital certificates” or “vaccine passports” as a way for people to prove their COVID-19 vaccine status to be able to travel or access public spaces, the government has not introduced these measures in New Zealand.

You can find more information on your rights on our website.