The 'managed' COVID-19 Public Consultation for Amendment Bill No.2 & the Secret Vaccinations Bill that Followed.

Was the passing of legislation between late November and early December 2021 appropriate?

This article provides an outline of COVID-19 lawmaking and public consultation in New Zealand during October-December 2021, and discusses actions and processes followed by officials. This was the subject of an interview with PSGR trustee Jodie Bruning on Reality Check Radio (March 22, 2024).

Lawmaking in COVID-19 was closely related to the government’s scientific and technical position on the risk of COVID-19 and the safety and efficacy of the biologic drug designated to be deployed population-wide.

Note: This is a brief summary. PSGR welcomes support and insight from legal experts, particularly experts in constitutional and administrative law to provide deeper context, or missing points.

The years of COVID-19, as for many organisations, were a challenging time for PSGR as many of our doctors were focussed on sensitively supporting their patients, which included high risk Pakeha and Māori communities. Informed consent is at the heart of medical practice.

In understanding and treating complex health conditions, doctors by convention communicate with colleagues and subject-matter experts, reviewing their expertise and findings; as well as turning to the published peer reviewed science and government guidelines, to assess how best to support patients with complex health conditions and often, complex medical regimes.

The key law, the May 13 Public Health Response Act 2020 that gave government officials powers, the empowering law, and the Orders in Council that followed, were produced outside public scrutiny. There was no consultation with the public, therefore the public could not provide the scientific information that differed from information provided by officials; or that provided by expert advisory groups who were limited by their terms of reference and who were not permitted to speak publicly.

Therefore, the COVID-19 Public Health Response Amendment Bill (No 2) which was opened to public consultation in October 2021, was the first time the New Zealand public were provided a chance to engage in the democratic process. It was an opportunity to provide a body of evidence to the Health Select Committee, chaired by medical doctor the Hon Liz Craig, evidence that was outside the frame of reference of officials and advisory groups, from when the COVID-19 pandemic declared.

The underpinning issue for PSGR was the concern that the government might fail to honour the obligations in the Health Act 1956 to improve, promote and protect health, by protecting the vulnerable and by preventing harm to healthy people.

The public were granted ten days to prepare a submission to Amendment Bill (No 2). PSGR sent in a 16-page report and made an oral presentation to the Select Committee (1hr 25min).

PSGR’s primary concern was that the most vulnerable should be protected, and from the earliest months the most vulnerable were identified as being the frail and elderly, and/or those with a wide range of multimorbid health conditions, often of low socio-economic status. Many of these groups were likely immunosuppressed and on complex drug regimes. PSGR expressed concern that a vaccine was an unsuitable therapeutic. Nutritional and repurposed drugs could more safely support complex health conditions for patients experiencing polypharmacy with which conventionally carry side effect and drug-drug interaction risks.

PSGR expressed concern that the policy formulation processes were deficient:

Policy formulation is required by law to identify all relevant options for achieving desirable endpoints that are in the public interest and which protect the person. There is no evidence, readily available, that shows that such policy formulation has been undertaken that complies with those requirements.

PSGR’s Charity Objectives included the following :

·       To educate physicians and scientists about issues of science, medicine and technology, particularly those involving genetics.

·       To provide scientific and medical information and analysis in the service of the public’s right to be independently informed on issues concerning genetics, including genetic engineering and biotechnology, and other relevant matters of science and technology.

·       To encourage scientists and physicians to engage in public debate on issues of science, medicine and technology, particularly those involving genetics.

PSGR did not turn away from the public debate regarding the safety and efficacy of the product, BNT162b2, that was selected as the dominant therapeutic intervention. Three of our seven objectives directly related to objectives that we would serve the public’s right to be independently informed.

The new technology was vastly different to conventional vaccine technology.

The product: a nucleoside-modified messenger RNA encoding the SARS-CoV-2 S-glycoprotein intended to provide immunisation against COVID-19 caused by the virus, SARS-Cov-2.

The Pfizer and BioNTech COVID-19 Vaccine is based on SARS-CoV-2 spike (S) glycoprotein antigens encoded in RNA and formulated in lipid nanoparticles (LNPs), referred to as COVID-19 Vaccine (BioNTech code number BNT162b2, Pfizer code number PF-07302048).

The RNA-based vaccine encodes a viral antigen which is expressed by the vaccine recipient and can elicit protective immune responses. Unlike live attenuated vaccines, RNA vaccines do not carry risks associated with infection. RNA-based vaccines are manufactured by a cell-free in vitro transcription process, which allows easy and rapid production and the prospect of producing high numbers of vaccine doses within a shorter time period than could be traditionally achieved with conventional vaccine approaches.

There has been a lack of transparency regarding trial data, even though governments provided large funding injections to the pharmaceutical corporations. More information came from the United States via FDA disclosures.

By May 2021 the FDA had disclosed that more deaths occurred in the BNT162b2 group than the placebo group. The FDA post-marketing data revealed an extraordinary degree of adverse event data. In November 2021 PSGR observed in the supplementary appendix to Thomas et al 2021 paper which not only recorded that more deaths occurred in the BNT162b2 patients from heart attacks, than in the placebo arm; but that in that short 6-month time, Pfizer had observed a decline in efficacy.

The New Zealand government failed to communicate these recognised problems with safety and efficacy to the New Zealand public. This appears to have been a global phenomenon. In January-March 2021, myocarditis reports surged in the USA and Israel far beyond background rates, but this information remain obscured and not relayed to the general public.

SCIENTIFIC INFORMATION, POLICY & LAW

How is scientific and technical information developed, received and evaluated by the government of the day? The process of open public debate in a democracy requires an understanding of this occurs.

Strategies to impartially and fairly review apply the latest published information during COVID-19 were not procedurally integrated into policy-making.

During the COVID-19 pandemic, medicines regulators sourced data from the corporations producing the medical biologic and produced assessments of infection, hospitalisation and death from COVID-19 and from the mRNA product the nucleoside-modified messenger RNA encoding the SARS-CoV-2 S-glycoprotein. This information could be shared between regulators. The technology that would become the vaccine which in New Zealand was the Pfizer/BioNTech drug BNT162b2.

Official Information Act requests confirm that the Ministry of Health and the Minister for COVID-19 were not updated with regular reviews of the scientific literature which would reveal independent information on both the risk of SARS-CoV-2 to the public by age and health status, and the evidence on the capacity for the BNT162b2 to prevent transmission (efficacy) or to cause adverse events in days and months after injection.

Therefore there was no group of scientific researchers during COVID-19 charged with impartially and methodologically reviewing the literature to provide risk-based information. No were no cohorts of medical doctors invited to discuss the challenges presented by the SARS-CoV-2 virus and the knowledge published in the literature.

Ad hoc reviews, known as COVID-19 Science Updates (CSUs) were produced, as well as advice from the Technical Advisory Groups (TAGs). TAG advice aligned with vaccine rollout planning (such as masks in schools) and (for example) reflected the latest known advancements and approvals for new drugs. TAGs were not charged with methodologically reviewing the scientific literature to identify new knowledge on intervention efficacy or risk. Modelling reflected state presumptions regarding risk. Advice to Ministers and Cabinet harmonised with the government position that COVID-19 presented a large population risk and that the BNT162b2 technology was required to be deployed at scale to mitigate harm and provide certainty for business.

Laws were produced that legislated non-pharmaceutical and pharmaceutical interventions but they were decoupled from the independent literature.

Throughout COVID-19 years 2020-2021 PSGR served our role of providing independent information and analysis, and produced a quickly drafted (and largely unedited) website document which has not been updated as of November 2021. This information serves as a ‘snapshot’ as to what was approximately known and understood in relation to the risk of the respiratory infection SARS-COV-2 and the risk of the symptom presentation COVID-19, at the time the mandates and vaccine certificates were embedded in legislation in late 2021. Our concerns traversed the protection of extremely unwell people, the impact of food insecurity and the protection of health of healthy people, particularly children.

PSGR communicated with the Children’s Commissioner to establish if the commissioner was considering the wider scientific literature to establish risk to children and young people, they were dependent on Ministry of Health advice. We contacted the Coroner to ask if there was a specific protocol or test to support the coronial inquiry in assessing whether death following vaccination to support domestic investigations (none was established).

PSGR were concerned about the large body of legislation that was being produced. As we stated:

There is no evidence that the government has considered the international data on hospitalisations in mRNA treated (vaccinated) populations, the increasing evidence that the treatment may have an increasingly marginal effect on reducing symptoms and preventing population transmission.

This March 2024, trustee Jodie Bruning was interviewed by Reality Check Radio on the production of legislation during the period August-December 2021, when mandates went from covering ‘essential workers’ to encompass most of the population. By December 3 New Zealanders over age 16 were expected to present a COVID-19 vaccine certificate to access public facilities.

The rest of this Substack provides content and links to the information discussed in the interview.

TURNING POLICY INTO LAW

Conventional law-making follows a clear process. Ideas turn into policy, policy is agreed upon and sent to the Parliamentary Counsel Office (PCO) for drafting.

The PCO provides a ‘Whole Step-by-Step Guide – this image shows the first stages of the policy-to-law process:

After the first reading, the select committee receives and hears submissions, the department (who will be directly impacted by the resultant law) prepares the departmental report. Then the PCO prepares a revision-tracked document which the committee deliberates on. The Bill goes to the second reading where the Bill is on principle agreed upon, final drafting, then the committee of the whole house, then third reading, then Royal assent and publication.

Sir Geoffrey Palmer recently discussed the problem of a weak Parliament and under-resourced select committees that ‘need to hold the Government to account more rigorously.’ Sir Geoffrey:

… thinks that committees are still under-powered and ministers’ officials still have too much sway.

“It worked quite well to begin with, but it has degraded… The departments have a monopoly on the advice [given to select committees] for the most part. And [departments are] part of the executive. The executive is so big and so powerful.”

His answers to this problem include bigger committees (possible because of the greater number of MPs); more dedicated membership and expertise (again possible with more MPs); and more resourcing for Parliament. 

Smith, P. Geoffrey Palmer: Strengthen Parliament to watch government, RNZ, July 16, 2023.

THE EXECUTIVE COUNCIL & ORDERS IN COUNCIL

‘Orders in Council are the main method, apart from Acts of Parliament, by which the government implements decisions that require the force of law.’ (Cabinet Manual p.9)

Orders in Council may be produced by the Executive Council in secret, with arrangements made between a very small group of people.

The Executive Council (E.C.) is the ‘highest formal instrument of government’. It is the institution that advises the Governor-General (who presides over, but is not a member of the E.C.). The E.C. carries out formal acts of state, including, the making of Orders in Council. The Governor-General appoints a Clerk of the Executive Council who attends E.C. meetings and carries out co-ordination and formal functions on behalf, of the Governor-General (the Clerk is also the Secretary of the Cabinet).

Cabinet Manual (p.12) provides that special meetings of the Executive Council can be held.

‘The submission of almost all matters for consideration by the Executive Council must first be approved by Cabinet. …. A few items, however, are drafted by the department concerned and are submitted directly to the Executive Council by the relevant Minister.’

As little as two Ministers may be involved in decision-making relating to Orders in Council:

In addition:

Executive Council proceedings are confidential. When members of the Executive Council are appointed, they swear or affirm an oath under the Oaths and Declarations Act 1957 that they “will not directly nor indirectly reveal such matters as shall be debated in Council and committed to [their] secrecy”. (p.13)

The drafting process between the PCO and the Cabinet and/or Executive Council is also subject to secrecy provisions:

‘draft legislation prepared by, or on behalf of, the Parliamentary Counsel Office is subject to legal professional privilege,’

SECONDARY LEGISLATION

Legislation Design and Advisory Committee Legislation Guidelines 2021 Edition

The LDAC Guidelines provides direction on the delegating of law-making powers, i.e. the production of secondary legislation, which has all the force of law but which doesn’t go through the parliamentary process.

FUNDAMENTAL HUMAN RIGHTS

As the Cabinet Manual (2023) states:

The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law and to propose action to remedy such matters. The New Zealand Bill of Rights Act 1990 requires the Attorney-General to report to Parliament if a bill appears to be inconsistent with this Act.

The Treaty of Waitangi is a founding document. Ministers must draw attention to aspects of a Bill that presents implications for the principles of the Treaty of Waitangi. Māori have a younger age structure than the average population. Many young Māori who did not have the average of 3 comorbid health conditions that placed younger people at risk, were then expected to be injected with the technology. The ethics of vaccinating not-at-risk people was never weighted by an ethics committee.

PSGR have questioned (page 10) whether the Treaty of Waitangi:

principle of partnership may be undermined if the Crown adopts the decision of foreign regulators and institutions, when these institutions themselves primarily rely on corporate data, and are funded by organisations which are themselves funded by large private interests. The principle of Partnership may be undermined if the Crown fails to dedicate proportional and adequate resources to inform itself of the science of dietary nutrition for the protection of health, including mental health. The Hauora report has noted that:

‘As part of active protection, the Crown is required to keep itself informed of the relevant circumstances as they apply to Māori needs, including ensuring equitable access.’

THE COVID-19 LEGISLATIVE PROCESS

It was predetermined that the majority of the population would be at minimum, twice injected with the BNT162b2 mRNA product. The signing of the agreement by the Ardern government in March 8 2021 demonstrated that policy position. A week later the rollout plan was revealed, signalling the intention that by a certain date ‘most New Zealanders aged 16 and over will have been vaccinated.’

The March-April Operations or rollout plan was as follows: Tier 1 included the border workforce and household contacts, Tier 2 frontline, non-border workforce and at risk people in high risk settings, Tier 3 included older people and people with comorbidities and people living in custodial settings. Tier 4 were the generally healthy.

In May 2021 the Controller and Auditor-General released a paper Preparations for the nationwide roll-out of the Covid-19 vaccine. Tier 1 (border workforce) commenced vaccination from February 2021, Tier 2 (including frontline health workers) also started in February. At-risk people started from May 2021. The government intended to vaccinate the rest of the population aged 16 and over from July 2021. This paper did not discuss any need to re-evaluate the safety and the efficacy profile of BNT162b2 at any stage.

COVID-19 Public Health Response Act 2020

The original COVID-19 empowering Act did not go through the step-by-step process (described above). The COVID-19 Public Health Response Bill was presented to Parliament by the Attorney-General on May 12, and by May 13 2020 had received Royal Assent. The Purpose of the Act?

4 Purpose

The purpose of this Act is to support a public health response to COVID-19 that—

(a) prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the infectious nature and potential for asymptomatic transmission of COVID-19); and

(b) avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect); and

(c) is co-ordinated, orderly, and proportionate; and

(ca) allows social, economic, and other factors to be taken into account where it is relevant to do so; and

(cb) is economically sustainable and allows for the recovery of MIQF costs; and

(d) has enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also support that response.

Sections 9 and 11 of the Act would give Ministers the powers to release secondary, or delegated legislation, known as Orders in Council (in section 9).

‘Orders in Council are the main method, apart from Acts of Parliament, by which the government implements decisions that require the force of law.’ (Cabinet Manual p.9)

The secondary legislation was enabled through a new Act, the Secondary Legislation Act that had received Royal Assent in March 2021. This was also overseen by David Parker.

The Cabinet Manual (2017/2023) and Legislation Design and Advisory Committee, Legislation Guidelines, 2021 Edition described above reveal how quickly and confidentially legislation can be produced.

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ORDERS IN COUNCIL – MANDATES PRIOR TO NOVEMBER 19 2021.

Note: It was already currently within the scope of section 11 to create COVID-19 orders that mandate vaccination, as evidenced by duties to be vaccinated (mandates) which commenced April 2021.

1.     April 28, 2021. Duties of PCBUs (person conducting a business or undertaking) to be vaccinated and to maintain records within 35 days. Schedule 2 contains lists of affected persons.

2.     July 14, 2021. Schedule 2 list of affected persons expanded who must receive first vaccination by before the close of 26 August 2021.

3.     August 12, 2021. Amendments including service workers must have first injection (26 August 2021) and affected persons who are not service workers (30 September 2021).

4.     October 17, 2021. Amendments include Schedule 3, list of vaccines.

5.     October 25, 2021. Amendments affected workers: healthcare workers, prison staff, and ‘Workers over the age of 12 years who carry out work at or for an affected education service (including as a volunteer or an unpaid worker)’ including home-based education and care service. (Injected by 15 November 2021; with second injection by January 1, 2022).

6.     November 6, 2021. This Order consolidated Orders.

7.     November 7, 2021. Amendments Part 4, as transitional provisions for police who just have first injection (29 November 2021), and second injection by 14 January 2022.

8.     November 12, 2021. Amendment includes Part 5, transitional provisions for fire services (FENZ) who just have first injection by 29 November 2021, and second injection by 14 January 2022.

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TIMELINE: PRODUCTION OF LEGISLATION AUGUST 2021 ONWARDS

21 Aug 2021 Minister for COVID-19 Chris Hipkins (Nov 20, 2020-Jun 2022) introduces COVID-19 Amendment Bill (No.2) (Bill Digest 2656).

14 Sept 2021 Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the COVID-19 Public Health Response Amendment Bill. Bill No.2 would not impact the rights and freedoms of New Zealanders.

30 Sept 2021 Public Submission opens Amendment Bill No.2

Oct 11 2021 Public Submissions close Amendment Bill No.2.

Oct 15 2021 – Health Select Committee, chaired by the Hon Liz Craig hear oral submissions – Select Committee broken in 2 to speed process. COVID-19 Public Health Response Amendment Bill (No 2) – hearing of evidence. Subcommittees A and B, (15 October 2021, part IV)

Oct ?? 2021 - Departmental Report Prepared by the Ministry of Health & the Ministry of Business, Innovation and Employment October 2021.

Nov 11 2021 – Final Report of the Health Committee presented.

Nov 16 2021 – Second Reading.

Nov 19 2021 – Chris Hipkins Amendment Bil no.2 receives Royal assent.

Nov 20 2021 – Chris Hipkins COVID-19 Public Health Response (Vaccinations) Order 2021 (LI 2021/94)

Nov 23 2021 - Chris Hipkins introduces COVID-19 Response (Vaccinations) Legislation Bill. 5,500-word bill was passed in one day.

COVID-19 AMENDMENT BILL (NO.2)

This Bill expanded the purpose for which COVID-19 Orders could be made and widened the Ministers powers to delegate authority to the Director-General of Health and the chief executive of the Ministry of Health.

The Health Select Committee Final Report summarises the Bill’s aims to:

• extend the expiry date of the Act by one year, from May 2022 to May 2023

• improve the flexibility for making COVID-19 orders

• strengthen the infringement regime and deter non-compliance with orders

• support the effective management and operation of managed isolation and quarantine facilities (MIQF) enable a limited group of enforcement officers to stop vehicles at checkpoints.

Regulatory Impact Statements (RIS) would be provided. Safety and efficacy of the BNT162b2 technology was not mentioned, nor age stratified risk, nor were ethics discussed. The Amendment Bill No.2 would support prevention and risk of outbreaks even as increasing information in the scientific literature demonstrated that breakthrough infections were recognised from trial stage. Breakthrough infection risk was not reviewed or discussed.

-       RIS: May 2021 Legislative Framework for Managed Isolation and Quarantine cabinet paper.

-       RIS: Ministry of Health Aug 2021 extending powers.

Public comments were invited to be sent to the Health Select Committee regarding the COVID-19 Amendment Bill (No.2) (Bill Digest 2656) between September 30 – October 11 2021. In those ten days 14,626 groups and individuals sent in their submission. A further 91 submitter’s presented at video conference hearings.

The Health Select Committee Final Report did not discuss the evidence forwarded, context or rationale, nor concerns presented in the public submissions.

An earlier October 2021 Departmental Report Prepared by the Ministry of Health (MoH) and the Ministry of Business, Innovation and Employment (MBIE) provided an overview of submissions. The Amendment Bill was expanding the powers of officials in the Ministry of Health (MoH).

The issue of conflict of interest where government agencies review and summarise the submissions of society to Select Committees, which then informs the Select Committees and the law-making process is not well described in the HASS, legal and scientific literature.

The MoH and MBIE Departmental Report discussion of the majority of submissions, fits on one page, and so is reproduced here:

The approximately 14,000 remaining submissions did not relate directly to the legislative changes proposed in the Bill… our role as advisers to the Committee is to assist the Committee in the consideration of the Bill. The remainder of this report will focus on the minority of submissions (around 1000) which related directly to the Bill itself, and especially those in which submitters made specific recommendations to improve the bill.

Appendix One (from page 40) reveals the extent to which MBIE and MoH officials disagreed with public suggestions to moderate the legislation to reduce vaccination obligations. For example, some submitters requested that the Bill explicitly state that vaccination cannot be mandated under section 11. The government disagreed stating (page 42):

Disagree. Vaccination is one of the most important public health measures available to help combat COVID-19. It is important that the Government can support organisations and businesses whose staff are at a higher risk of being infected with COVID-19 to require vaccination of their staff.

This provides a strong legal basis for those organisations to redeploy or terminate staff who refuse to be vaccinated and pose a risk to others in doing so. COVID-19 orders which mandate vaccination also provide New Zealand with an extra layer of protection.

Any mandatory vaccination provision within a COVID-19 order must be a justified limitation on the rights and freedoms under the NZBORA.

The report recognised that many of the 14,000 people and groups expressed fears and concerns about the government’s approach, but these concerns were claimed to be outside the scope of the Bill under review. Form submissions from two different civil society groups appeared to be dismissed.

The Departmental Report did not discuss concerns (known at this date), presented by many groups, and cited by PSGR.

The vaccinated and unvaccinated had similar viral loads (and here). Natural immunity conferred longer lasting and stronger protection against infection that breakthrough infections after vaccination was increasingly common (also here and here). Young people were at especially low risk (and here), and myocarditis was a recognised identified adverse event (here and here and here).

Many at-risk people were at risk of a complex uncontrolled response which was exacerbated by existing complex conditions, including old age and obesity, and poverty and inequality, and nutrient deficiencies. However, vaccine failure was known to be associated with age and immunosuppression.

This was why multitarget treatments which could be pre-dispensed for people at home, (including Vitamin D) had been recommended for infected or vulnerable people.  

The concerns raised by submitters including PSGR were ignored.

Heart risk was recognised at clinical trial stage, and evidence continued to accrue, but this information was not actively considered by officials.

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HIPKINS ONE-DAY COVID-19 RESPONSE (VACCINATIONS) LEGISLATION BILL

On November 23, 2021 Minister for COVID-19 Chris Hipkins introduced the COVID-19 Response (Vaccinations) Legislation Bill which passed through all stages by the Labour government in one day. However it appears that the greatest driver was ‘certainty for business’ – rather than to prevent people from hospitalisation and death.

 Chris Hipkins explained:

The next phase of our response here in New Zealand focuses on the framework that allows for much greater freedom due to the success of our roll-out of the vaccination. The vaccination programme is the greatest public health tool that we have now in our fight against COVID-19, and it is the most effective way for us to open up the country again safely, without the need to resort to the restrictions we've had in the past.

…

The bill includes the ability to make orders that differentiate between people who are vaccinated against COVID-19 and people who aren't, and so to achieve that, the bill amends the order-making provisions in the COVID-19 Public Health Response Act. The orders that will be made will provide for the issue of COVID-19 protection certificates to use within New Zealand, which will be known as My Vaccine Pass. It'll allow us to specify the information required in the process for people to get a vaccine pass. It will prohibit people from entering certain places if they're not vaccinated or exempted from vaccination—i.e., if they don't have a vaccine pass.

…

The bill will support our future vaccination mandates where there's a strong public interest in doing so, rather than solely for public health reasons—and this is something that employers have asked for clarity and greater certainty on for some time now, and we've been working very hard to provide them with that greater certainty.

…

But vaccination is a really important tool for mitigating the risk in workplaces, and we're seeing greater demand from employers who want greater clarity about their ability to require vaccination or not, and we're also seeing a much greater demand from workers who want to see that requirements are put in place so that they know whether or not the people that they are working alongside have been vaccinated. So employers need the ability to manage the risks associated with COVID-19, and this bill goes a great deal of the way to giving them the certainty that they are looking for.

…

My hope is that all eligible New Zealanders will take up the opportunity to be vaccinated, and I hope that while we disagree on many aspects of the COVID-19 response, as we have done over the course of the last year and a half, Parliament will remain unified in its very strong message, that all parties in Parliament have sent so far, that the vaccine is safe, it is effective, and everybody should make the informed choice to be vaccinated.

There was no Regulatory Impact Statement (RIS). The Bill’s Explanatory Note simply explained that a RIS was ‘not required’. There was no comment by the Attorney-General as to whether the legislation would infringe human rights. As the legislation already stated (section 9):

The Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990.

While the Minister was required to simply ‘be satisfied’. There was no requirement publish the Ministers’ reasoning.

Hansard notes reveal that the Hon Liz Craig, who had chaired the Health Select Committee, relayed none of the concerns of the submitters to the Amendment Bill regarding the efficacy or the safety of the BNT162b2 product. Rather, Craig was concerned that vaccine certificates were an important tool for business.

This is a very significant bill that will underpin the new COVID protection framework, and I commend this bill to the House.

The Labour government controlled the House, and Hansard (first reading) reveals that members of Parliament did object:

Chris Bishop expressed concerns at the Bill stating:

I invite you to read the departmental disclosure statement, which makes it very clear that there has been very little consultation, very little analysis, and very little work done in advance of this. In fact, the drafting instructions for this bill were only issued on 27 October, five days after the actual framework was announced. And now we find it's not going to a select committee. In fact, it will be law sometime this week.

Again, if you doubt that this has been developed in a rush, I point you to the legal advice given to the Attorney-General for the consistency of the bill under the New Zealand Bill of Rights Act. I quote, "This advice has been prepared in an extremely short time frame due to late receipt of the bill that was not in compliance with Cabinet Office Guidance." I'll tell you what that guidance was. The guidance says "All bills or all policy proposals that go to Cabinet have to have a New Zealand Bill of Rights Act." Guess what? The traffic light framework when it went to Cabinet on the Monday preceding the Friday announcement had had no such analysis done on it by the Ministry of Justice officials. How disgraceful. And if you doubt that this bill has New Zealand Bill of Rights Act implications, just read the legal advice, because it impacts at least eight, and you could probably think of more.

Debbie Ngarewa-Packer stated:

This bill is not compliant with Te Tiriti. The process for developing the traffic light system, which received the explicit opposition of many Māori leaders, is a breach of Te Tiriti, as it does not have the active consent of tangata whenua. Upholding Te Tiriti rights and ensuring we can live together collectively is a fundamental part of who we are and how we live. It is the difference between individualised Westernisation and indigenous peoples. This Government has forgotten tangata whenua are the most protocolled people in this country and we always have been. We understand the need to adapt and evolve tikanga to deal with pandemics.

Simon Watts:

We've also had a number of comments, just looking at some of the media that's come out about this bill today. Dr Dean Knight from Victoria University has used the quote "constitutional disgrace"—that's what they referred to this legislation as. This legislation is being passed urgently without adequate consultation and that is unacceptable.

Hansard (In Committee) reveals that Attorney-General David Parker stated that a Bill of Rights Act ‘vet’ occurs up until a Bill is introduced and that people have appeal rights if they are ‘dissatisfied with executive decisions’.

The importance of this goes to the integrity of the justice system and the courts being able to hold the executive to account. Members will be aware that in the COVID response Act more generally, we have a New Zealand Bill of Rights Act provision there that limits the power of the executive to make COVID orders, and it is the courts that are the body to whom citizens who are dissatisfied with executive decisions as to whether they go too far in respect of New Zealand Bill of Rights Act issues—it is the courts to whom they go to resolve those issues—

Attorney-General Parker appears to consider that the appeal process is a relatively easy to access process, while downplaying the importance the Bill of Rights Act.

However, Chris Bishop responded to state:

… we know it wasn't in compliance with Cabinet Office guidance because when the framework went to Cabinet on the Monday before it was announced on Friday, 22 October, it had not had any New Zealand Bill of Rights Act analysis done, and that's what that reference is to.

As the Attorney-General knows and as the Minister knows, all Cabinet submissions have to have a New Zealand Bill of Rights Act framework applied through them and some analysis done. The Ministry of Justice did not do that, and hence we find ourselves in this lamentable situation where we have the legal advice prepared at the last minute, and that legal advice is of course contestable by the Parliament.

Later in the Third Reading (continued) Chris Bishop stated:

Well, here we are on Wednesday afternoon, and the House is about to pass one of the most far-reaching and significant pieces of legislation that this Parliament will consider, and the House has had precisely 24 hours to look at it—24 hours for the first reading, the second reading, the committee of the whole House stage, and now the third reading. As Dr Dean Knight of Victoria University, that very fine law school, says, it is a constitutional disgrace. The Human Rights Commission has criticised it. The Council for Civil Liberties has criticised the speed with which this bill is being passed, and it reflects an arrogance of the highest order from this Government, that they think they can pass this legislation in just 24 hours without scrutiny. I put it to the Parliament that this is contemptuous of the Parliament. It is contemptuous of the people of New Zealand, and it is contemptuous of the rule of law.

The Government says in its own press releases that 40 percent of people working will potentially be covered by vaccine mandates as a result of this legislation—40 percent. That is hundreds of thousands of New Zealanders. A bill that significant deserves scrutiny. We deserve to get the details right. This bill gives the Government enormous, broad, sweeping powers, in some ways never seen before, to create different categories of New Zealanders. The vaccinated will have different rights and freedoms compared to the unvaccinated. Now, there may well be a justification for some of those limits and for some of that differential treatment, but those are issues for Parliament to consider properly through a robust select committee process. This bill allows the Government to say that if you are an unvaccinated person in a red area of the country—because it also allows the traffic light framework, apparently—who wants to go and get a haircut in Auckland, you can't. It says if you're an unvaccinated person who wants to go and buy a beer and meet someone in a bar once the red system kicks in, you can't.

Now, there is an argument as to whether or not that should be allowed, but the point is there should be a debate about that. We should have a thorough investigation of those issues. These are not issues that are open and shut, where the Government necessarily has it right. But what the Government is asking the Parliament to do is just to assume that the Government does have all the answers and that the framework is correct, and that everything they want to do is going to be fine, and, actually, we don't necessarily agree on this side of the House.

This debate on Hansard is worth reading. David Parker appears to consider that appeal rights to higher courts ensure that The Labour government viewed the legislation as putting in place the tools for the Traffic Light Framework. The personal impact on people was not considered, this is evident from Liz Craig’s comments, who despite listening to concerns on safety and efficacy had apparently dismissed them.

Newsroom would publish Attorney-General’s response to Victoria University of Wellington associate law professor Dr Dean Knight’s comments – who described the legislative process as “a constitutional disgrace” :

The minister replied that the Government had signalled in advance its plans for the traffic light system and vaccine certificates, while ministerial orders around the certificates would receive the same constitutional protections as from the original Covid-19 Public Health Response Act.

“When the country faces a significant crisis – be it war, natural disaster or in the current case a pandemic – the Government does need to move quickly,” he said.

“When legislation is required at pace, urgency throughout the policy and law making process is essential, in the public good.

“There is huge complexity under the hood, and in some ways legislation is the last output when all of the complex practicalities and policy issues have been resolved.”

“We have got baked in so many Bill of Rights Act protections into the empowering legislation…we’ve seen those protections being activated through challenges in the courts and in most of these cases, we’ve prevailed as a Government.”
– David Parker, Attorney-General

Parker suggested fraying social licence for the Auckland lockdown had also been a factor in the fast-tracked process, noting “society’s need to urgently adopt new rules in substitution for existing lockdown restrictions”.

“This involves political as well as legal judgements, which include maintaining the necessary social consensus which every day of a prolonged lockdown puts at risk.”

Speaking about the constitutional implications of treated vaccinated people from those who were unvaccinated in some settings, Parker said the Government was aware of the infringement on people’s rights but believed it was a fair limitation.

“Taken too far, collective rights are used by communist, fascist, or theocratic regimes to suppress minorities and individual liberties.

“Conversely, extreme use of individual liberties ‘trumping’ community rights beget unjust outcomes too.

“For now, the only way we can protect the public in the Covid environment without lengthy lockdowns curtailing many liberties is through higher vaccination rates.”

He believed all New Zealanders eligible for the vaccine had been given a fair opportunity to consider whether they wished to receive it, while “people who choose to be unvaccinated do not always have free choice of employment”.

Sachdeva, S. Rights protections 'baked in' to hasty Covid legislation – Attorney-General. Newsroom, December 2, 2021.

Later in The Guardian, Professor Michael Baker would confirm publicly that the traffic light system was not designed to dampen transmission:

 “The traffic light system won’t help us very much because it was never designed to dampen down transmission, it was only designed to nudge people towards vaccination.”