New Health New Zealand Inc. v South Taranaki District Council and another

• Jurisdiction: New Zealand
• Judge: O'Regan,Ellen France JJ,O'Regan J,Glazebrook J,William Young J,Elias CJ
• Judgment Date: 27 June 2018
• Neutral Citation: [2018] NZSC 59
• Docket Number: SC 141/2016
• Court: Supreme Court
• Date: 27 June 2018

Between

New Health New Zealand Incorporated

Appellant

and

South Taranaki District Council

First Respondent

Attorney-General for and on Behalf of the Minister of Health

Second Respondent

[2018] NZSC 59

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 141/2016

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Local Government — appeal against a Court of Appeal (“CA”) decision which dismissed the appellant's application for judicial review of the decision of the first respondent to add fluoride to the water supplies in Patea and Waverley — whether fluoridating water engage s11 New Zealand Bill of Rights Act 1990 (“NZBORA”) (right to refuse to undergo medical treatment) — whether a statutory power to fluoridate was a justified limitation on s11 NZBORA

Counsel:

M T Scholtens QC, L M Hansen and T Mijatov for Appellant

D J S Laing and H P Harwood for First Respondent

A M Powell and S K Jameson for Second Respondent

• A The appeal is dismissed.

• B The appellant must pay the first respondent costs of $20,000 plus usual disbursements.

• C We make no award of costs in favour of the second respondent.

JUDGMENT OF THE COURT

REASONS

	Para No.
O'Regan and Ellen France JJ	[1]
Glazebrook J	[147]
William Young J	[178]
Elias CJ	[211]

O'Regan AND Ellen France JJ

(Given by O'Regan J)

Table of Contents

	Para No.
The appeals	[1]
Issues	[9]
Fluoridation	[10]
Does the Council have statutory power to fluoridate?	[13]
The Lower Hutt City case	[16]
Legislative history	[20]
Statutory provisions: analysis of High Court and Court of Appeal	[22]
Our analysis	[35]
Does fluoridating water engage s 11 of the Bill of Rights Act?	[58]
The decisions of the High Court and Court of Appeal	[61]
Issues	[70]
Natural meaning	[72]
Direct or indirect treatment	[75]
Conflict of rights	[78]
Conflict with art 12	[83]
Common law	[85]
“Undergo”	[96]
Conclusion	[97]
Is the statutory power to fluoridate a justified limitation on the s 11 right?	[101]
Is the limit on the right guaranteed by s 11 prescribed by law?	[106]
Is the fluoridation power a justified limit on the s 11 right?	[112]
Approach to s 5	[113]
Is the purpose sufficiently important?	[123]
Rational connection	[127]
No more than reasonably necessary	[132]
Is the limit proportionate to the objective?	[135]
Conclusion: justified limitation	[144]
Result	[145]
Costs	[146]

The appeals

1 This case raises for determination a number of issues relating to the fluoridation of water in New Zealand. Fluoridation is carried out in a number of communities in New Zealand for the purpose of reducing tooth decay. 1

2 The appellant, New Heath New Zealand Inc (New Health) is an incorporated society that describes itself as “a consumer-focused health organisation which aims to advance and protect the best interests and health freedoms of consumers”. New Health opposes fluoridation of water on the basis that fluoridation removes freedom of choice by consumers, is potentially harmful and is not effective in preventing tooth decay.

3 In the decision under appeal, the Court of Appeal dealt with appeals by New Health against three separate judgments of the High Court relating to the legality of the fluoridation of water. 2 This Court granted leave to appeal on all aspects of the Court of Appeal's decision. 3

4 The first appeal to the Court of Appeal was an appeal against a decision of Rodney Hansen J dismissing New Health's application for judicial review of the decision of the first respondent, South Taranaki District Council (the Council) to add fluoride to the water supplies in Patea and Waverley. 4 The Court of Appeal referred to this aspect of the appeal before it as the Council appeal and we will do the same. The issues that arose in relation to the Council appeal were summarised by the Court of Appeal as follows: 5

The issue in the Council appeal is whether the Judge was correct to find that:

• (a) The Council had statutory authority to fluoridate the water supplies for Patea and Waverley.

• (b) The fluoridation of water is not medical treatment for the purposes of s 11 of the [New Zealand Bill of Rights Act 1990].

• (c) If the right to refuse medical treatment is engaged, fluoridation is a demonstrably justified limit prescribed by law in terms of s 5 of the [New Zealand Bill of Rights Act].

5 In its statement of claim, New Health also sought judicial review of the Council's decision to fluoridate the water supplies in Patea and Waverley on the grounds that the Council had failed to take into account a number of considerations that it said were mandatory relevant considerations. The High Court found the considerations relied on were not mandatory relevant considerations. 6 That aspect of New Health's claim was not before us and we say no more about it.

6 The second appeal before the Court of Appeal was against a decision of the High Court dismissing an application by New Health for declarations that two compounds added to water supplies for fluoridation purposes, namely hydrofluorosilicic acid (HFA) and sodium silicofluoride (SSF), were medicines in terms of the Medicines Act 1981 (the Medicines Act judgment). 7 We will call this the Medicines Act appeal. The sole issue arising in the Medicines Act appeal was whether the Judge had been correct to rule that HFA and SSF were not medicines in terms of the Medicines Act.

7 The third High Court decision that was under appeal to the Court of Appeal followed on from the second. In the Medicines Act judgment Collins J said that, while he was confident his conclusion that HFA and SSF were not medicines was correct, he suggested that the Ministry of Health might wish to consider recommending a regulation exempting HFA and SSF from the definition of medicines under the Medicines Act. 8 The Ministry followed up on the suggestion and the Medicines Amendment Regulations 2015 were made with effect from 30 January 2015. The

effect of the Regulations was that both HFA and SSF were declared not to be medicines for the purposes of the Medicines Act. New Health commenced judicial review proceedings in the High Court challenging the validity of the Medicines Amendment Regulations. New Health's application for judicial review was dismissed. 9 The issues that arise in relation to this aspect of the appeal are whether the High Court was correct to find that the Medicines Amendment Regulations were valid and, if so, whether that finding rendered the Medicines Act appeal moot. We will call this the Regulations appeal

8 The Medicines Act appeal and the Regulations appeal are dealt with in a separate judgment that will be issued contemporaneously with the present judgment. We say no more about them in this judgment.

Issues

9 The issues for determination in this appeal are, therefore:

• (a) Whether the Council has the statutory power to fluoridate water supplies in its territorial area.

• (b) Whether fluoridating water supplies engages s 11 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) on the basis that the fluoridation of water makes those accessing the public water supply in the relevant area undergo medical treatment in breach of the right to refuse such treatment.

• (c) If s 11 of the Bill of Rights Act is engaged, whether fluoridation is a limitation on the s 11 right that is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society in terms of s 5 of the Bill of Rights Act.

• (d) Whether the legislative power to fluoridate can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights

  Act, and if so what the impact of that preferred meaning would be (s 6 of the Bill of Rights Act).

Fluoridation

10 As already mentioned, the objective of fluoridation is the reduction of tooth decay through promoting the mineralisation of tooth enamel. It is now generally accepted that fluoride works topically, that is by direct contact with tooth surfaces. 10

11 Fluoridation in New Zealand is undertaken by adding HFA or SSF, both fluoride-releasing compounds, to the water supply. Fluoride (in the form of calcium fluoride) occurs naturally as a trace element in water. In New Zealand, fluoride occurs at a low level, below 0.3 parts per million (ppm). Fluoridation has the effect of increasing the level of fluoride in water to between 0.7 ppm and 1.0 ppm.

12 Opponents of fluoridation question its effectiveness and argue that it poses risks to human health and infringes the civil liberties of consumers.

Does the Council have statutory power to fluoridate?

13 Both the High Court and the Court of Appeal concluded that the Council had power to fluoridate water in communities within its jurisdiction. 11 In general terms their reasoning was that fluoridation was authorised under the Municipal Corporations Act 1954 as a result of the decision of the Privy Council in Attorney-General v Lower Hutt City. 12 In that decision, which we discuss in greater detail below, the Privy Council found that the Lower Hutt City Council was authorised under s 240(1) of the Municipal Corporations Act to fluoridate water. Section 240(1) gave the Council power to construct waterworks for the supply of pure water for the use of its inhabitants. The Privy Council found that the power to fluoridate was implicit in the terms of s 240. 13

14 When the Municipal Corporations Act was replaced by the Local Government Act 1974 (LGA 1974) the power continued under s 379 of the LGA 1974. When the LGA 1974 was replaced by the Local Government Act 2002 (LGA 2002) the provision in the LGA 2002 which required local authorities to...