Just days before the Prime Minister announces plans to phase out vaccine pass constraints, a cafe operator fined for flouting the rules is spearheading a court case to overturn the restrictions.
Locals with an appetite for risk can sit down at Ant Bates' New Plymouth cafe – no masks, no vaccine passes, no questions asked – for his signature fried chicken eggs benedict. If an elderly or vulnerable customer walks in, Bates says he'll socially distance to minimise any danger.
Worksafe isn't satisfied with his disregard for the Omicron framework; the workplace safety regulator has slapped him with two $4000 fines.
And some in his community are uncomfortable with him flouting the rules, too. Certainly, there's been a diminished clientele – but 42-year-old Bates puts that down to the vaccine pass rules, rather than customers voting with their feet.
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Now, his company ABC Catering is the lead claimant in a High Court action, suing Covid-19 Response Minister Chris Hipkins for "irrational" and "unjustified" vaccine pass regulations.
The case was filed on Friday. Other claimants include Danielle Zandbergen, a 41-year-old customer services worker who is frustrated she cannot take her six-year-old son to swimming lessons at Petone's open-air McKenzie Baths because she is not vaccinated. There's also a veterinary student unable to attend classes, and a 16-year old who's not allowed to go to music lessons and the gym.
Bates said his events catering business had been hard-hit by vaccine pass limits on how many people can attend gatherings like weddings and corporate events; many were being cancelled. And his cafe would go bust if he were to provide only contactless takeaways, as the rules required of non-vaccine pass businesses.
So he was ignoring the rules, refusing to display a poster in the window and not asking customers to show vaccine passes. Customers are allowed to sit down and eat their lunches in his cafe, #Antsnacks.
"Covid-19 remains a serious and potentially deadly virus. New Zealanders are getting through the Omicron peak better than other comparable countries so far because of our very high vaccination rates, and vaccine passes have played a role in keeping hospitalisations down, meaning care is there for those who really need it." – Chris Hipkins, Covid-19 Response Minister
When Bates has received the notices of $4000 fines from Worksafe, he has just posted them back with a note, "no contract, no consent".
"I don't understand how you can go to retailers and you don't have to have a vaccine passport, but to sit down and have a meal you do," he told Newsroom. "The vaccine passport is a piece of cardboard with a QR code on it. It doesn't mean you don't have Covid because you're vaccinated.
"It's just really unfair. It's basically blackmail, it goes against human rights."
The Ministry of Health has been highlighting three big new studies from the US Centers for Disease Control and Prevention that show the Pfizer and Moderna vaccines, with boosters, reduce the transmission of Omicron by 67 to 82 percent.
Asked why he chose not to be vaccinated, Bates said: "It's not health, it's not religious. It's just personal choice. I don't have the flu vaccine, I don't take antibiotics. I only take Panadol if I desperately need to, like a really bad headache.
"I don't know, man, like, I've got tons and tons of friends that are vaccinated and unvaccinated, and the vaccinated people seem to have more severe symptoms in the unvaccinated. Yeah. But that's just my personal case for people I know."
Matthew Hague, the lawyer who filed the court action, said the four were representative of many others in the community. Hague (who says he is himself vaccinated) has already acted for Police and Defence Force personnel, successfully arguing the High Court should overturn workplace vaccine mandates in those uniformed services.
After that ruling, he wrote to the Prime Minister with an ultimatum: announce an end to vaccine mandates and passed, or he'd file further court action. He received an acknowledgement, but no substantive response. "It doesn’t leave people with much choice but to take the matter to the courts, or unlawful protest," Hague said. "Obviously I am very much for the first option."
Now, Covid-19 Response Minister Chris Hipkins is responding. He told Newsroom that as the matter was before the courts, he wouldn't comment on the specifics.
"However we have always been clear that vaccine passes are a temporary measure," he added. "The Prime Minister has already said she will provide an update on vaccine pass and mandate settings this week.
"Covid-19 remains a serious and potentially deadly virus. New Zealanders are getting through the Omicron peak better than other comparable countries so far because of our very high vaccination rates, and vaccine passes have played a role in keeping hospitalisations down, meaning care is there for those who really need it.
"All of the vaccines available in New Zealand have been through a rigorous approval process. They are safe, and significantly reduce the chances of someone getting seriously sick and ending up in hospital."
"The common cold doesn’t hospitalise or kill healthy people ... The USA has had some of its highest numbers of deaths during the Omicron wave compared to other waves, just because of the sheer numbers of cases because this variant is so much more infectious." – Associate Professor Siouxsie Wiles
Danielle Zandbergen said the legal costs had been fundraised through United We Stand, a group started by the Police and Defence personnel who took the previous successful High Court challenge against employment mandates.
She was motivated to file the action by her frustration at not being able to take her son James to swimming lessons. Her husband is vaccinated, as a requirement of his job in the building industry, but she said there were days when James couldn't attend his swimming lesson because his father wasn't home from work. "It's just really, really unfair," she told Newsroom.
"I've got personal reasons for choosing not to be vaccinated. We live in a free country and we have the right to refuse medical treatments without being discriminated against, and what's happening with these vaccine certificates is just really just going against everything that our country stands for, freedoms and stuff like that."
"It's not religious reasons, honestly, it's because it's my body and it's my choice. And I do know people that have had serious adverse reactions to it.
"Especially with Omicron now, it's been likened to a mild cold. And the Government still brought in these vaccine certificates. So I decided that doesn't make any sense at all. And I just think the the government just needs to really get rid of them."
Associate Professor Siouxsie Wiles, a microbiologist at Auckland University, roundly rejected the claim that Omicron was no worse than a common cold, pointing to research and hospitalisation rates from around New Zealand and the world.
"The common cold doesn’t hospitalise or kill healthy people, so this is clearly an absurd statement," she told Newsroom.
"Omicron appears less severe because it is able to infect people who have some protection from a previous infection or vaccination. Doctors have also got better and better at treating patients with Covid-19 which is lowering the mortality rate.
"The USA has had some of its highest numbers of deaths during the Omicron wave compared to other waves, just because of the sheer numbers of cases because this variant is so much more infectious."
Wiles pointed to large studies showing that unvaccinated people were more likely to transmit the virus. She said hospitals were struggling, having to cut back on some types of care to be able to deal with the number of people presenting with Omicron.
She refuted claims that mRNA vaccines caused frequent and serious side effects. "This statement is disingenuous and should be compared to the serious effects of Covid-19 to give it context. Many studies have now shown the risk of serious side effects from the mRNA vaccines is very low compared to the risk of damage to organs like the heart, brain, and testicles, from even a mild infection."
