Description
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.
Date
Geographical Area
Asia Pacific
Countries
New Zealand
Case Name
High Court of New Zealand
Case Reference
[2021] NZHC 1107
Name of Court
High Court of New Zealand
Key Facts
In April 2021, the Ngā Kaitiaki Tuku Iho Medical Action Society (KTI) filed judicial review proceedings in an attempt to pause or prevent this vaccination programme
Decision and Reasoning
KTI’s applications required the Court to consider the wording of s.23(1). It was found that it was the clear intention of the Act that the Minister believed that it is desirable for the medicine to be used on a restricted basis and for the treatment of a limited amount of patients. The Court was of the view that as the vaccination programme was to be available to all people in New Zealand over the age of 16 (approx. 3.5 million), it was “well beyond what is contemplated” by s.23(1). Nor does the 9 month time limit on the consent amount to a relevant restriction, as the vaccine is to be available to everyone within the 9 months.
Therefore, it was found that it was reasonably arguable that the provisional consent was ultra vires s.23(1).
However, the Court also considered the private and public repercussions of granting the orders sought by KTI:
- The provisional consent was granted after a thorough assessment process that went above and beyond what was required by s.23(1);
- The consent was consistent with the decision taken by other health authorities overseas;
- The threat of Covid-19 to vulnerable communities in New Zealand;
- The potential for vaccine expiry and wastage were the vaccination programme to be paused;
- The wider social and economic costs brought on by alert level changes and border closures due to Covid-19; and
The impact of a pause of vaccine confidence.
Therefore, it was found that it was reasonably arguable that the provisional consent was ultra vires s.23(1).
However, the Court also considered the private and public repercussions of granting the orders sought by KTI:
- The provisional consent was granted after a thorough assessment process that went above and beyond what was required by s.23(1);
- The consent was consistent with the decision taken by other health authorities overseas;
- The threat of Covid-19 to vulnerable communities in New Zealand;
- The potential for vaccine expiry and wastage were the vaccination programme to be paused;
- The wider social and economic costs brought on by alert level changes and border closures due to Covid-19; and
The impact of a pause of vaccine confidence.
Outcome
The application for the interim orders was ultimately declined due to the private and public repercussions of pausing the vaccination programme.
After finding that it was reasonably arguable that the provisional consent granted was ultra vires s.23(1), the judge urged the Crown to consider this issue carefully. In response, the Medicines Amendment Bill 2021 (41-1) was introduced to Parliament the following day (19 May 2021). It amended s.23(1) so that the grant of provisional consents no longer requires a restricted basis or a limited amount of patients, it is enough that the Minister is of the opinion that it is desirable that the medicine be supplied. The amendment entered into law after receiving royal assent on 24 May 2021.
After finding that it was reasonably arguable that the provisional consent granted was ultra vires s.23(1), the judge urged the Crown to consider this issue carefully. In response, the Medicines Amendment Bill 2021 (41-1) was introduced to Parliament the following day (19 May 2021). It amended s.23(1) so that the grant of provisional consents no longer requires a restricted basis or a limited amount of patients, it is enough that the Minister is of the opinion that it is desirable that the medicine be supplied. The amendment entered into law after receiving royal assent on 24 May 2021.
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