Why a minor decision may have major ramifications – & why we rely on the courage of a single judge.
Whistleblowers hold a key, but uncomfortable position in a constitutional democracy. Employees must have the freedom to speak out if they believe that they have observed wrongdoing, including the suppression of information.
By the time you read this, a pre-trial hearing will have occurred, aimed at deciding whether Barry Young can claim protected status as a whistleblower under the Protected Disclosures Act 2022 and will be immune from prosecution. The judge has to decide whether that Act applies to Young. Following today’s hearing, evidence now has to be submitted, however, the judge has to clarify what evident is relevant. The case looks like it will drag out.
It’s important to remember that judges do not operate in a vacuum. Judges ‘read the room’ when navigating questions of justice. Judicial reasoning reflects shifts in public values, constitutional culture, Treaty principles and evolving expectations of administrative fairness.
Administrative fairness in contestations regarding the risk of official activities, including public interventions, can be black boxed, i.e. the intention, capacity, or willingness of a government agency to disclose information and data that would contradict broader claims of safety, foster doubt in agency competence and create doubt as to future competency.
The new biological entity
Fairness and justice weave together, particularly when it concerns disclosure relating to the impact of exposure to new biological entity (product BNT162b2) and its emissions (in this case, to quote Pfizer, a viral antigen which is expressed by the vaccine recipient) – interacting with human biology. Risk and safety are negotiated concepts, because you and I, as humans, have different weak spots, depending on our age, gender, ethnicity, epigenetics and prior exposures and stressors. Context determines risk. Medicine is a hazard, but becomes a risk when an individual with discrete vulnerabilities is exposed to that technology. As an individual is exposed to more medicinal technologies, more adverse events, including from drug-drug interactions, can be expected.
Risk must be understood based on these issues, and safety claims by the same corporations who control the trial data cannot be trusted, because, by convention, the data and code which underlie the safety and efficacy claims are not disclosed.
Court documents show us that the judges focussed on the potential for the technology to prevent the spread of infection, yet this was never a trial endpoint. Judicial decisions, although nodding to the Health Act 1956, mirrored the Crown’s safe and effective position, but failed to address the individual risk-benefit ratios which would have driven to the heart of the Health Acts obligation to protect. Yet if we look back, although the new biologic entity BNT162b2 was authorised, neither Medsafe nor the Medicines Assessment Advisory Committee (MAAC) in their report, appear to have stated that it was ‘safe and effective’ – it was the Ministry of Health who claimed this. With each tranche of secondary legislation that tightened mandates – no risk benefit assessment was undertaken as time progressed.
Death from Covid-19 – Highly stratified to the aged & infirm
Transparency and fairness play critical roles if we are to understand risk in terms of medicines, medical devices and vaccines. Court documents contesting the mandates suggest that judges accepted the government’s elevated estimates of COVID-19 mortality, and those estimates formed part of the justification for mandates. In the case of COVID-19 and risk, by March 2020, epidemiologist Professor John Ioannidis confirmed that death risk was highly stratified and that it was the elderly and infirm who were most at risk,
‘with over 1000-fold variability between children and elderly nursing home residents. Median age of death with COVID-19 typically tracks average life expectancy in high-income countries.’
Yet strangely, New Zealand Ministry of Health officials and COVID-19 research groups did not cite Ioannidis’ work, yet he is one of the most widely cited epidemiologists in the world. By June 2020, Ioannidis and colleagues had confirmed that:
People <65 years old have very small risks of COVID-19 death even in pandemic epicenters and deaths for people <65 years without underlying predisposing conditions are remarkably uncommon.
Perplexingly, court transcripts from groups contesting the mandates made no meaningful use of Ioannidis’ work. He was either not mentioned, or the judges did not regard his analyses as authoritative.
If the government intended to protect health, it had an obligation to assess the absolute risk reduction of the BNT162b2 gene-therapy product by age and stage. That assessment never occurred.
Democratic transparency lost in the (medical) ether?
As a sociologist, my research interests throughout the COVID-19 period (just as I was finishing my masters research) centred on how risk was navigated, how policy, science and media were deployed, how protection varied by age and stage, and which forms of information were treated as legitimate or dismissed.
How do we know what we know, and what forms of science do we rely on to navigate risk?
Science is not immune to social, political and financial influence yet scientific ‘facts’ are used to justify policy and law. The information that can challenge or contradict public policy, especially in a fast-moving crisis, should not be concealed. As I discussed at the 2023 NZDSOS conference:
‘democratic values include transparency, accountability, deliberation and representation. These values are intimately related with how we prioritise information flows. Our legislation requires officials to respect individual dignity and promote freedom, and observe natural justice via procedural fairness. Issues of justice permeate human life. Issues of justice arise when our interests overlap. Just treatment is something that is due to each citizen, ‘the constant and perpetual will to render to each his due’. To be just is to be morally right and fair.’
We need more government whistleblowers – particularly in the pharmaceutical and medical device domains. Why? Under-reporting of adverse event is a well-established phenomenon. Government agencies that hold adverse event data, who are then meant to process that information and report on it, are part of the regulatory system. But the regulatory system is there to ensure that the public can trust that they are safe.
It increasingly appears that the public are being denied access to the information that we have a right to see. Concerns from young women about contraceptive-device harms, drug–drug interactions that create misery, SSRIs and akathisia risk, deaths following ignored patient requests, trauma among ethnic minorities, and the disproportionate burden of metabolic and mental-health conditions among lower-income groups, these constitute a quiet tsunami of problems that are being black-boxed rather than examined.
Suppression of information can be overt, but it can also occur subtly — by merging data in ways that average risk across broad populations, by failing to resource staff to investigate emerging signals, and by failing to undertake systematic reviews of the scientific literature, from mechanistic studies to case reports and cohort analyses. This evidence can then be triangulated against corporate claims.
To understand why a functioning regulatory system matters, (rather than acting like an agent for the industries that it is meant to regulate), please appreciate these words from epidemiologist and professor Dr David Michaels (2020):
‘Our regulatory system is the response to these market failures. The objectives of the new laws and the agencies empowered to enforce them is not only to stop the damage and prevent future harm; it is to maintain and strengthen the free market system. Although many advocates of free market economics refuse to acknowledge this dynamic, law and regulations are the underpinnings of our economic system. They define market structure and property rights while attempting to ensure that property rights don’t intrude on our civil liberties. Without the regulatory apparatus of the state, our modern economy could not exist. The state fosters a safe space for market growth.’
This is a Ministry of Health habit – long-term obfuscation over medical injury?
We now inhabit a society in which multimorbidity is increasingly the norm. When people live with two or more chronic conditions, the medical system cost is not just additive, it is multiscalar. Polypharmacy follows and adverse events scale up. Some New Zealanders are prescribed dozens of medications; in an extreme case, up to fifty-three.
Our own regulatory system appears to shy away from reporting adverse events. New Zealand’s Medicines Act 1981 refers only to “untoward effects”; it does not explicitly address adverse side-effects. Under the Health Act 1956, the Ministry of Health is required to protect public health. Yet adverse-event risk is downplayed in both legislation and policy.
Medsafe, as an agency within the Ministry, shares this duty. Yet its annual reports do not present adverse-event data by age, gender or drug class. Medsafe does not systematically review scientific literature to detect evolving risk patterns by age, sex or multimorbidity, nor does it update corporate-sponsor safety claims against emerging evidence. Instead, data are averaged across broad populations, obscuring signals that may affect specific groups.
I have been unable to locate any Medsafe annual reports that present adverse events by age, sex or pregnancy status by product. A meaningful safety report would include these variables alongside total prescriptions dispensed, allowing risk ratios to be understood by age, sex and pregnancy status.
In 2023 the responsibility for handling suspected adverse event reports was transferred from the Centre for Adverse Reactions Monitoring (CARM) to Medsafe. On paper, CARM still exists, but it now operates under contract to Medsafe. Medsafe triages all adverse-event reports before deciding which to send to the New Zealand Pharmacovigilance Centre (NZPhvC) and CARM. Medsafe effectively controls what information will be considered an adverse event.
In practice, the Ministry of Health, which already holds established positions on the safety of drugs and devices, now fully controls what is classified as an adverse event.
The Suspected Medicine Adverse Reaction Search (SMARS) does not allow searches by drug class (e.g., SSRIs) or by brand name, and many reported issues concern vague categories such as “product use issue” or “decreased therapeutic response,” including for widely used ADHD medications. Crucially, SMARS does not disclose age or biological sex, making pattern detection impossible.
The Health Quality & Safety Commission (HQSC, Te Tāhū Hauora) which monitors services’ and disseminates information about service quality and safety. However, its statutory functions do not extend to requiring government agencies to communicate concerns upstream to pharmaceutical and device manufacturers. Its objectives concern activities aimed at helping service providers improve safety, not on scrutinising product-level risk.
The quality of HQSC’s own reporting does little to illuminate harm from medicines or devices. The last substantive report appears to date from 2014/15. Since then, HQSC has retreated from in-depth reporting in favour of infographics and high-level annual summaries, which emphasise issues such as falls but not medical error. The revised Adverse Event Policy places greater emphasis on apologising to injured patients than on ensuring that hazards are not repeated. It states that reporting must be accompanied by meaningful analysis leading to system improvement, yet only a single page outlines this expectation, and there is no evidence that clinicians are given access to the analyses that would enable learning and prevention.
Many people are familiar with the Medical Council of New Zealand, the body responsible for handling complaints against medical practitioners. It is important to recognise that COVID-19 is far from over for doctors who raised concerns about the risk–benefit profile of Pfizer’s BNT162b2 gene-therapy vaccine, particularly by age group and pregnancy status. Doctors are still facing proceedings before the Council, an institution that has acknowledged it never reviewed the scientific literature to determine whether BNT162b2 posed disproportionate risks to specific populations.
Uncomfortable knowledge that can undermine public trust
Whistleblowers are rare precisely because they risk their reputations and careers. Doctors have recently expressed concern that a proposed law will further suppress the capacity for doctors to speak out when they have safety concerns. A couple of years ago, whistleblower Dr Bryan Wolf, a radiologist, lodged a complaint with the Ombudsman. Wolf considered that Health New Zealand should have informed the public about safety risks in radiology services. How that complaint unfolded cannot be found in mainstream media or on the Ombudsman’s website.
Adverse event data and medical failure is highly political because it contains information that suggests that medicines and medical devices can and do cause harm, and that hospital systems may be faulty. There’s a increasing range of sociological literature exploring the suppression of knowledge and the promotion of ignorance. Why would agencies supress knowledge?
Adverse event data is what Steve Rayner described as uncomfortable knowledge – knowledge out of place. Rayner theorised that such knowledge is dangerous in at least two ways. First, simply acknowledging such potential information by admitting it to the realm of what is ‘known’, can undermine the organizational principles of a society or organization. Secondly, once acknowledged, the information can generate serious institutional harm, either directly or by exposing agencies to criticism that they ought to have known. This could result in ‘serious deleterious effects on institutions, either directly or by making them prone to criticism from other parts of society that they ‘ought’ to have known’. I.e. it would undermine trust in these institutions and the institutions that gained from those relationships.
It’s no wonder that adverse event data (uncomfortable knowledge) on medical device, general medicines and vaccines is often unavailable, opaque and/or difficult to access. It is equally unsurprising that we lack clear information on risk by age, sex and underlying health status, including multimorbidity.
The problem is sustained not only by agencies that obscure or downplay such information, but by mainstream media that avoid investigative scrutiny and fail to treat these matters as genuine public-interest concerns.
Health agencies that ignored risk by age & gender as Covid mandates progressed
Medsafe’s annual reports disclose vaccine-related harms, including for Pfizer’s BNT162b2 injectable. But we still do not know whether these harms are concentrated among people who were never at meaningful risk from COVID-19 in the first place, due to their age, sex or underlying health status. Without this information, we cannot meaningfully understand the risk–benefit ratio, nor can clinicians or the public exercise informed consent.
In a paper presentation during the Australian Sociological Association (TASA) conference, I discussed the taboo nature of criticising the Pfizer BNT 162b2 gene therapy vaccine. Everyone recognises that discussing vaccine risk in social or professional settings is regarded as social suicide. To raise concerns is to touch what the literature calls ‘forbidden knowledge’ – knowledge considered too sensitive, dangerous, or taboo to produce.
As COVID-19 wore on, the mainstream media failed to engage with the issues that mattered to many: that the technology was a novel gene therapy designed to instruct human cells to produce a known toxic and inflammatory protein; that, because it was classified as a ‘vaccine’, it bypassed mutagenicity and carcinogenicity testing; and that its mechanism involved altering cellular function. The media did not challenge government claims of safety and efficacy, even as emerging scientific literature (prior to mandates) showed the product caused harm and did not prevent transmission. Many were shocked that children from age 12, and healthy young adults, were required to receive this technology simply to participate in society. By September 2021 it was recognised that natural immunity provided stronger protection against reinfection than vaccine-induced immunity, yet mandates removed the option.
As the secondary legislation was released in the second half of 2021, following the Ministry of Health’s February-March decision to stage a ‘roll-out’ to the entire population, the responsible Ministers Hipkins and Verrall never once demanded a reassessment of the risk and hazard profile by age and stage as time progressed. They simply rolled out the legislation in line with the policy, established six months earlier.
In a now deleted June 2021 advisory memo, Nicholas Steyn and colleagues at Te Punaha Matatini, the scholars, accepting that immunity would wane over time (but not considering the effect of vaccine waning), stated:
It is worth noting that in all scenarios, a significant proportion of infections, hospitalisations and deaths occur in vaccinated individuals, which is the expected outcome when vaccine coverage is high and effectiveness is less than 100%.’
These scholars, funded by the Department of the Prime Minister and Cabinet (who was also deeply involved in the roll-out), acknowledged their model ‘ignored the effects of seasonality, waning immunity and population dynamics.’ Yet these were treated as authoritative voices justifying the rollout, even though the celebrated 95% efficacy figure referred only to reductions in mild respiratory symptoms over a two-week period. Prevention of hospitalisation and death was not part of the original efficacy claim. Pfizer’s own six-month data showed a higher death rate in the placebo group than in the BNT162b2 group.
Many of us, including the Physicians and Scientists for Global Responsibility, sent in detailed information to the Health Select Committee during the pivotal consultation and subsequent legislative shift that would enable the cascade of legislation that would tighten the regulatory net and accelerate compulsory injection across the population via the ‘traffic light system’ that was only supposed to ‘nudge people towards vaccination’.
But risk by age, gender and health status, and evidence of vaccine waning, was not a concern. In COVID-19, science was suppressed and instead, enlisted to follow the politics.
But, as the discussion above shows, the political and regulatory structures that prevent the public from understanding medical risk, by age, sex and health status, were already firmly in place. This brings us to the ethical and moral dilemma at the heart of truth and justice in healthcare: doctors routinely prescribe medicines without genuinely knowing the risk profile, relying instead on selectively disclosed and often outdated trial data supplied by the manufacturer. It is increasingly evident that hazard and risk is not transparently disclosed, because scientifically rigorous processes do not underpin the information that supports medical claims of safety.
It is increasingly evident that hazard and risk are not transparently disclosed, because scientifically rigorous processes do not underpin many of the claims used to assure safety. And if we cannot openly discuss the risks associated with vaccines, medicines or medical devices, then the patient sitting in a clinic can never truly exercise informed consent. The risks and benefits cannot be meaningfully weighed if the risks themselves are obscured.
As time passes, more researchers and clinicians are drawing attention to the shortcomings of drug trials once accepted as authoritative. In vaccine trials, it is now more widely recognised that so-called placebos may contain toxic components, so long as they do not include the ‘active ingredient’ that regulators focus on. We are increasingly learning that drugs prescribed for brain-related ‘disorders’ are rarely studied for long-term efficacy, and that children and adolescents remain chronically under-represented in trials.
‘Believes on reasonable grounds’ – being game by the Crown?
If we return to the case of Barry Young, it is increasingly difficult to view the hearing process as fair or even-handed. Young was arrested weeks after his disclosure, in December 2023, and his devices and files were confiscated. In a recent interview with former TVNZ journalist Liz Gunn, Young disclosed that some two years later, and only three days before the December 11, 2025 hearing, Crown lawyers sent him a 19-page report to Young. The document was formatted as an image file, preventing word searches and blocking the ability to copy and paste quotations. Such formatting inevitably slows a respondent’s ability to analyse material and prepare a defence.
In a December 9 interview, Young also claimed that retired epidemiologist Professor Robert Scragg, contracted by the Crown to review the evidence, did not meaningfully examine the data due to an alleged Excel spreadsheet problem. According to Young, Scragg’s report stated:
‘a measure of the safety of Covid-19 vaccines is that Medsafe non longer maintains reports on them…. If it had been the vaccine … Medsafe would have continued to monitor its safety.’
Most New Zealanders assume that all medicines and vaccines remain under active monitoring; the suggestion that BNT162b2 falls outside government oversight is unusual and runs counter to basic pharmacovigilance norms. If accurately represented, Scragg’s comment indicates a predetermined view of the safety of the Pfizer/BioNTech BNT162b2 gene-therapy product and an inclination to accept government assurances without scrutiny.
Gunn, a trained lawyer, argues that by bringing higher bar of evidence ‘expert’ to provide advice, rather than a lay ‘reasonable grounds’ standard, raises the evidentiary bar beyond what the Protected Disclosures Act intended. If so, this would set a troubling precedent for future whistleblower cases.
Throughout the Covid-19 mandate period, the Ministry of Health, its Ministers and its officials did not meet the basic obligation to assess risk by age, sex or underlying health status even as the Pfizer’s own data clearly showed in early 2021 that the drug was inflammatory, a central nervous system risk, and a risk to reproductive health.
New Zealand authorities were in a position to scrutinise such material, as Pfizer was required to supply post-marketing safety reports to the Ministry within five days. Yet, despite repeated requests, none of this information has been released to the public.
Given that regulators overseas were already seeing substantial numbers of adverse-event reports before New Zealand’s mandates were implemented, Barry Young’s decision to act as a whistleblower, and his suspicion that there were mortality ‘hotspots’ deserves full and respectful consideration, whatever one makes of his conclusions.
There is, however, reason to worry that the judge may once again default to the Ministry of Health’s ‘safe and effective’ framing. Past COVID-19 cases show a consistent judicial reluctance to engage with contested safety claims, and judges cannot be unaware that the government prefers uncomfortable information not to surface. This may implicitly and explicitly make it harder for Young to receive a fair hearing under the Protected Disclosures Act.
All we can hope for now is that the judge summons the courage and independence to ask the simplest and most important question: Would a reasonable person consider Barry Young’s actions to meet the threshold for whistleblower protection?
