'The gap remains': Whānau Ora Commissioning Agency back in High Court

8:53 pm on 25 November 2021

The Whānau Ora Commissioning Agency was back in the High Court in Wellington fighting for access to data of all unvaccinated Māori in Te Ika a Maui - saying its a matter or urgency to get the information to get lift vaccination rates before Auckland borders open up.

Whānau Ora Commissioning Agency chief executive John Tamihere says the Ministry of Health is running out of time to release data on unvaccinated Māori after losing a landmark decision in the High Court on Monday.

Whānau Ora Commissioning Agency chief executive, John Tamihere Photo: Stuff / Jason Dorday

The agency first took the Ministry of Health to court in late October to get the information for all unvaccinated Māori in the North Island.

In the judicial review, the judge told the Ministry to reconsider its refusal to release the data taking into account its Te Tiriti o Waitangi obligations.

But the Ministry of Health refused to give over the data citing privacy as among their reasons.

In a letter after the initial ruling, Director-General of Health Dr Ashley Bloomfield said the ministry's view was that if they released that breadth of data, it would not be effective in other areas, due to variations in WOCA coverage. He also said he had had discussions with other Māori leaders and iwi about the decision. He said he wanted to work with the agency and other Māori to find a solution.

Since then the Ministry released a portion of data about unvaccinated Māori in Waikato and Auckland.

But that would not suffice and the Whānau Ora Commissioning Agency filed fresh legal papers for individual data for each unvaccinated Māori person to better target vaccination efforts.

Only 66 percent of Māori are currently fully vaccinated.

In the High Court hearing today, the agency's lawyers, spoke about how time is running out to get Māori vaccination rates to get to 90 percent before Auckland borders open.

"Whānau Ora would need at least seven weeks really for the information to be used in a way to allow people to be fully vaccinated by 15 December.

In order for them to be fully vaccinated the last date to have their second dose would be 1 December, "which would take us back to November 10 as when they should have had their first dose," the lawyers said.

"That's why the applicant [the agency] has been asking since late August and continue to do so today.

"In a world where we aren't time constrained we could wait and see what decisions are made, but we don't have the luxury of time in this case."

The equity gap between Māori and non-Māori is not closing, the lawyers said.

"Come 15 December there is going to be a lower percentage of Māori vaccinated than non-Māori vaccinated.

"This really underpins it all... that gap remains and is the significant issue."

The court heard if the Ministry needed more time they could have come back to court and said they have to consult and say there are futher steps needed before making a final decision.

"That issue could have been ventilated before going forward. It would have been far more appropriate for them to do that."

"Each passing day it becomes more urgent with the window becoming smaller before Auckland borders are opened up."

They spoke about how some iwi have opposed the release of information, but this is something they have the right to do and if iwi, or individuals want to be excluded from the data they can request to the Ministry to not share it with Whānau Ora.

Some iwi members live outside of their rohe and that becomes a "live" question about whether it would be appropriate to remove those people from the data.

Also a lot of people whakapapa to multiple iwi, some iwi might say yes to having the info shared but another might say no. "So it will mean it might get a bit confusing."

The issue of data sovereignty was raised but the applicants argued it is a wider issue to look at rather than in this case.

They calculated it would take six weeks and four days to get to 90 percent of second doses for Māori.

They reminded the Court about the increasing impact the delta outbreak is having on Māori, with five deaths being Māori and 2031 cases that are Māori.

Crown lawyers say there has been hui with iwi around the North Island and some have made it clear they don't want the data shared, but others say they don't mind.

"Some iwi have suggested the data go to iwi first and then have it shared," Crown lawyers said.

They reiterated that this isn't an "either, or" situation and they will share some information.

They did inform the Court that a decision was made today to share data on Māori who are eight weeks or over on needing their second dose.

The Crown lawyer did acknowledge this situation has shown deep complex issues around data.

They said day by day the agency is getting access to what they originally asked for.

Justice Gwyn reserved her judgement and will get it to the parties as soon as possible.

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