A consumer advocacy group successfully challenged directions by the Director-General of Health ordering 14 local councils to fluoridate their water supply.
New Health NZ is an incorporated society that describes itself as a ‘consumer-focused health organisation”. It is opposed to water fluoridation.
In 2021, Parliament enacted Part 5A of the Health Act 1956, which enabled the Director-General of Health to issue directions requiring local councils to fluoridate their water supply. Nothing in Part 5A required the Director-General to consider whether such directions limited the right to refuse medical treatment under s 11 of the New Zealand Bill of Rights Act 1990 (“BoRA”) and whether any such limitation was reasonably justified.
On 27 July 2022, the Director-General gave directions to 14 local authorities to fluoridate their drinking water supply to a specified concentration (“Orders”). The Director-General did not explicitly consider the BoRA implications of the decision as they had received legal advice that they were not required to do so.
The New Health NZ filed judicial review proceedings challenging the legality of the orders. Among other things, the plaintiff argued that the Director-General had failed to turn his mind whether the orders were compliant with BoRA rights or were reasonably justified limitations of those rights.
Did the Director-General have to turn their mind to BoRA matters when making the Orders?
At the time of the case, it was unclear whether public officials exercising discretionary powers were obliged (as a matter of decision-making procedure) to consider the BoRA impacts of their decisions. The parties agreed to address this preliminary legal question separately from the main proceeding.
The Crown, in their arguments, relied heavily on UK authorities, in particular the Denbigh decision of the House of Lords. In that case, the court rejected a requirement for decision-makers to explicitly consider the relevant human rights law in their decisions. The court, they reasoned, already had extensive powers to review the merits of administrative decisions for compliance with human rights law. An additional procedural requirement to consider such rights added nothing to the court’s oversight powers, and risked imposing a costly tick-box exercise on public officials.
In this case, Radich J held that the legal context in New Zealand was different to that in which Denbigh was decided, and agreed with New Health NZ’s argument that public officials not only had a duty to comply with the BoRA, but were also required to consider how their decisions impacted on BoRA rights.
Contrary to the Denbigh court (which had emphasised administrative efficiency), Radich J held that the consideration requirement would enhance rights by promoting a ‘culture of justification’ among public decision-makers – a culture where officials were obliged to explicitly consider how their decisions affected rights and give good reasons for departing from those rights.
How does the requirement apply?
Radich J noted that there was now effectively a two-stage approach for assessing the relevance of BoRA to discretionary public power.
First, the court would assess whether the decision-maker had turned their mind to appropriate BoRA matters. Failure to do so would render a decision unlawful in circumstances where BoRA matters were a relevant consideration.
Second, the court would consider whether a decision did in fact breach a BoRA right and, if so, whether that breach was reasonably justified. Where the decision breached the right without reasonable justification, the court could grant relief in accordance with remedies established in prior BoRA case law.
Asher J noted that there would ordinarily be significant overlap between the two-stages, and given the overlap, it would be expected that a decision-maker’s consideration of breach of the right and justifications for the breach would inform the courts analysis at the second stage.
The level of consideration would vary depending on the nature of the decision, the decision-maker, and the degree of relevance of BoRA rights to the decision. The court emphasised that consideration of BoRA rights was a matter of substance rather than a mere formality.
It was clear that the Director-General had never turned his mind to BoRA considerations when issuing the directions, and the decision was accordingly unlawful. However, the court declined to grant relief, instead leaving it to the parties to agree on next steps.
The case has significance to the public sector as a whole. Decision-makers are now required to address BoRA head on when exercising their powers. It remains to be seen whether this will promote a ‘culture of justification’ that enhances protection of fundamental rights, or whether it will merely add an unnecessary formal burden to administrative decision-making.
Due to the potentially wide-ranging impacts, there is a strong possibility that the Crown will appeal the decision.
To understand more about this issue, please contact Director Brigitte Morten
