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National | Novel Coronavirus / COVID-19

Why urgent legislation was required to mandate the vaccine rollout

The Whole Truth: Covid-19 Vaccination   By Stuff political reporter Thomas Manch

The Government has pushed through urgent legislation that changes the Medicines Act to make sure the rollout of the Covid-19 vaccination can go ahead. But does this mean the Covid-19 vaccine rollout has until now been illegal? Not exactly. Does it mean the vaccine is unsafe? Certainly not.

The problem lies within the Medicines Act, a piece of law that was written 40 years ago. It arose at the High Court in Wellington in May, when a little-known advocacy group challenged a provision of the act related to the vaccine rollout.

The court challenge posed a question about the “provisional consent” given to the Pfizer vaccine by the Minister of Health, which allows the vaccine to be supplied here.

A section of the act empowers the minister to provisionally approve the sale or supply of medicine where it is desirable to do so. It has previously been used for two types of contraceptives, two flu vaccines, and an electrolyte solution used in hospitals.

But where it came unstuck for the Government was in the detail of the law. Section 23 of the act was written to allow for provisional consent “on a restricted basis for the treatment of a limited number of patients''.

The consent allowed the vaccine to be supplied for a nine-month period, for every New Zealander over 16 years of age.

Justice Rebecca Ellis found the use of Section 23 was arguably “ultra vires” — beyond the power of the law — because of the large, and not limited, number of patients the consent applied to. That means the legislation could not be used to provide consent for the supply of the Pfizer vaccine in a nationwide rollout.

She asked the Government to “consider that question”, but declined to order the vaccine rollout be halted because the vaccine had gone through a thorough approval process and any pause in the rollout could have significant, detrimental effects to public health.

Health Minister Andrew Little said Section 23 had lacked clarity in how it should be applied. The Government, with the full support of all political parties, changed the legislation during an urgent sitting of the House on Wednesday, May 19, to allow the provisional consent to apply to the entire population.

This isn’t the first time the laws governing the health system have proven to be inadequate for handling the Covid-19 pandemic: When the Government put the country into lockdown last year, there was an argument about whether the Health Act 1956 allowed for such a pandemic-related order to be applied to the whole country.

This was challenged in court, and a panel of judges ruled the lockdown was justified but went beyond the actual Health Act order issued by Director-General of Health Dr. Ashley Bloomfield at the time. In other words, the Government had exceeded its powers for the first nine days of the lockdown, at which point Bloomfield issued another order remedying the technical legal issue.

Both cases were technical issues with the law that could have been anticipated. Ellis even described the latest case as “an accident waiting to happen”.