New Zealand, High Court of New Zealand, 1 February 2022, NZHC 67
Case overview
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Deciding body (English)
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Link to the full text of the decision
General Summary
Judicial review was sought in relation to the decision by the Minister of Health to grant provisional consent to the use of the Pfizer paediatric vaccine in New Zealand and to approve the roll out of the paediatric COVID-19 vaccine for children aged 5 to 11 years. Interim orders were also sought suspending the rollout of the vaccine. It was argued that the provisional consent was based on an error of law because the vaccine posed a greater risk to a child’s health as opposed to the public health benefits promised. It was also argued that the decision failed to take into account relevant considerations (namely the Convention on the Rights of the Child) and was motivated by irrelevant considerations (being that vaccinating children aged 5 to 11 would assist in preventing community spread, protecting older of vulnerable adults, and enabling schools to open). Furthermore, the decisions were challenged on the basis that they were made for an improper purpose (namely to prevent the transmission of COVID-19 and protect older or vulnerable adults when the best interests of the children should be the first and paramount and only consideration). The application was dismissed. The Court determined that the Minister applied the correct statutory test and considered all relevant evidence as to the risks and benefits of the paediatric COVID-19 vaccine.
Facts of the case
Applicants sought judicial review of the Minister of Health’s decision to provisionally approve the vaccine and the subsequent rollout of a COVID-19 vaccine to children aged 5 and 11. It was argued that the Minister failed to consider evidence that the risk of the vaccine outweighed the benefits. It was further claimed that the Convention on the Rights of the Child was not considered by the Minister in making the decision to approve the vaccine.
Type of measure challenged
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Individual / collective enforcement
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Reasoning of the deciding body
In reviewing the Minister’s decision to approve the vaccine and the rollout, the Court determined that the applicants did not have a “position to preserve” as required in the Judicial Review Procedure Act 2016. The position that the applicants sought to preserve by their application was “their unvaccinated children’s ability to have full access to school and community facilities.” The Court found that even if this could be said to amount to a qualifying (protectable) right or interest, the evidence did not lead to a conclusion that this “right” had been placed in jeopardy by the consent or roll-out. The Court determined that the applicant’s concerns relating to the social and educational difficulties they believed that their children would face if they remained unvaccinated in the face of the roll-out of the paediatric vaccine (such as being shunned or bullied by other children or adults, or denied access to school and community facilities) were subjective and lacked any factual foundation. The Court held that here the applicants do have a genuine choice: the fact that its exercise may give rise to consequences they would prefer to avoid does not mean that the choice is not a real one. In relation to the “lawfulness” of the provisional consent, the applicant’s argument was based on their submission that the Minister’s conclusion as to the relative therapeutic value and potential risks of the paediatric vaccine was scientifically wrong. The Court declined to engage on a “merits based” review of the Minister’s decision. The Court found that the Minister did apply the relevant statutory test in making the decision to approve the vaccine for children aged 5 to 11 years. Max 500 words
Conclusions of the deciding body
The applications for an interim declaration that the provisional consent to approve the COVID-19 vaccine for children aged 5 to 11 was unlawful and illegal and an application for judicial review of the Minister’s decision for provisional consent of the vaccine and rollout to children aged 5 to 11 were both dismissed. The Minister applied the relevant statutory test in deciding to approve the vaccine for children aged 5 to 11 years. Despite sincerely held views to the contrary, there was ample, cogent, information supporting the decision to approve the paediatric vaccine. There was no basis for a merits review.
Fundamental Right(s) involved
- Right to an effective remedy
- Right to bodily integrity
- Right to good administration
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court determined that, where there exists more than one view of certain facts and both views are reasonable but the relevant decision maker has followed the relevant statutory test, then a merits based challenge is unlikely to be successful. If the decision of the Minister was irrational, then a challenge is more likely to succeed but that was not the case here. There was nothing in the evidence to establish that it is arguable that the Minister made an error of fact of such moment that his conclusion was not one that was reasonably available to him. That is particularly so where the relevant decision is made in the context of a government response to a global pandemic.
Impact on Legislation/Policy
Not specifically; however, the decision of Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107 by the same Judge resulted in an amendment to Section 23 (1) of the Medicines Act 1991 as it related to “provisional consent”. This case was distinguished in this case as it related to the “required position to preserve”.
