Auckland Medical Officer of Health v Birthcare Auckland Limited
[2015] NZHC 2689
•30 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000755 [2015] NZHC 2689
BETWEEN AUCKLAND MEDICAL OFFICER OF
HEALTH Appellant
AND
BIRTHCARE AUCKLAND LIMITED Respondent
Hearing: 13 August 2015 Appearances:
Rachel Sussock and Gracey Campbell for the Appellant
No appearance for the Respondent
Alan Dormer as Counsel appointed to assist the CourtJudgment:
30 October 2015
JUDGMENT OF MOORE J
THIS JUDGMENT WAS RE-CALLED AND RE-ISSUED ON 3 NOVEMBER 2015 AT 2:00PM
This judgment was delivered by me on 30 October 2015 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
AUCKLAND MEDICAL OFFICER OF HEALTH v BIRTHCARE AUCKLAND LIMITED [2015] NZHC 2689 [30 October 2015]
Contents
Paragraph
Number
Introduction ..............................................................................................................[1] Background...............................................................................................................[7] Decision of the Authority .......................................................................................[23] Grounds of appeal ..................................................................................................[25] Approach to appeal ................................................................................................[28] The Sale and Supply of Alcohol Act 2012
Introduction ..........................................................................................................[33] Purpose and objects .............................................................................................[35] Licence and renewal applications ........................................................................[40] Causation: the nexus between the risk of harm and manner in which
the licence is operated........................................................................................[46]
Is there an onus on the applicant? .......................................................................[51]
The questions of law...............................................................................................[54]
Question (a): Did the Authority err by having regard to evidence of
alcohol-related harm during breastfeeding generally rather than focusing on the evidence of alcohol-related harm in the first few days of breastfeeding and during pregnancy (the relevant period for
Birthcare patients)?............................................................................................[63]
Question (c): Did the Authority err in upholding the [Committee’s] conclusion that the evidence of relevant harm to breastfed new borns was equivocal on the appellant’s evidence? .............................................................[71]
Question (d): Did the Authority err in rejecting the uncontroverted research-based evidence presented by the appellant, relating to the effects of alcohol on newborn breastfed infants, as providing an insufficient
causal nexus between alcohol-related harm and the way in which the licence
had been and would be operated? .....................................................................[78]
Question (b): Did the Authority err in not having regard to what it recognised was unequivocal evidence of harm to unborn infants in its
decision whether to renew the licence and, if so, on what conditions? .............[90]
Question (e): Did the Authority err in failing to have regard to the fact that the applicant’s primary business was the provision of maternity healthcare services, being services not generally associated with the
provision of alcohol?........................................................................................[100] The role of the MOH ............................................................................................[109] Result ..................................................................................................................... [118] Costs ...................................................................................................................... [119]
Introduction
[1] Birthcare Auckland Limited (“Birthcare”) operates a private maternity and post-natal care hospital in Parnell, Auckland. While some women are admitted to the hospital pre-partum in order to give birth at the premises the overwhelming proportion are admitted after they have given birth in a public hospital setting. Since
2001 the premises have been licensed for the sale and supply of alcohol. In March
2014 Birthcare applied for a renewal of its licence on essentially the same terms and conditions. The application for renewal was not opposed by the Police or the licensing inspector. It was, however, opposed by the Medical Officer of Health (“the MOH”).
[2] In support of the renewal of its licence Birthcare pointed out that the supply of alcohol was but a minor aspect of the wider services it provided, noting that only very modest quantities were sold to patients and their visitors and emphasising the safeguards which operated to mitigate the risk of harm.
[3] The only opposition came from the MOH. The MOH placed before the Auckland District Licensing Committee (“the Committee”) expert evidence that the consumption of alcohol during pregnancy was injurious to the foetus and that alcohol consumption by breastfeeding mothers had negative effects on the new born baby.
[4] The Committee concluded it was satisfied the level of control administered by Birthcare ensured the supply and consumption of alcohol was undertaken safely and responsibly. Without categorical evidence that the provision of alcohol by Birthcare would lead to the harms referred to in the object of the Sale and Supply of Alcohol Act 2012 (“the Act”) and in the absence of opposition from other quarters or any evidence that the premises were being operated in such a manner as to lead to alcohol harm the Committee determined the licence should be renewed.
[5] The MOH appealed the Committee’s decision to the Alcohol Regulatory and Licensing Authority (“the Authority”). The appeal was made on the basis that the Committee was wrong when it required categorical evidence that the provision of alcohol by Birthcare would lead to the harms referred to in the objects of the Act. However, the Authority determined that the Committee’s approach was correct and that the MOH had provided no evidence of such a link which, if it existed at all, was only of a tenuous nature.
[6] The MOH now appeals to this Court on the grounds that the Authority erred in law in several material respects.
Background
[7] Birthcare is a privately operated primary maternity facility. It provides primary birthing and post-natal care to women, their babies and families.1 The average length of stay is two days. Birthcare operates as a non-government organisation under contract to the Auckland District Health Board. It provides upgraded medical services and facilities which are not available within the public health sector. It is certified by the Ministry of Health for the provision of maternity facilities and services. It is accredited and is subject to regular auditing. In 2001, when it was established, it was the first maternity facility in New Zealand to attain
accreditation as a “Baby Friendly Hospital”. It is also regularly audited by ACC.
[8] The enhanced services which Birthcare provides include catering and liquor services. Patients as well as their visitors may order meals of a high standard from the menu. Part of that service includes the opportunity for what Birthcare referred to as “guests” to order wine with their meals. There is no alcohol trolley service and Birthcare discourages the consumption of alcohol by mothers who are breastfeeding.
Furthermore, highlighted in a box in the middle of the dinner menu2 is a health
warning. A copy of such a menu with the health warning is reproduced below:
1 Figures provided by the MOH reveal Birthcare provided services for approximately 400 deliveries on behalf of the Auckland District Health Board. Additionally, 2,800 women transferred to Birthcare from Auckland Hospital for two days of post-natal care. It is not evident what year these statistics relate to.
2 Alcohol is not offered at any time other than at the evening meal.
“Birthcare
Menu A
please tick (ü) to indicate your choice
Dinner
Moroccan Beef Stir Fry with Vegetables c
(gf, df)
OR Vegetarian Spring Rolls with
Sweet and Sour Sauce (df) c
……………………………………………………..
Desserts (select one)
Ice Cream with Fruit Salad (gf) c
Apple Crumble with Ice Cream c
……………………………………………………..
Beverage
Juice c
Wine can be purchased at your request: Chardonnay $8.50 each c Merlot $8.50 each c
“You should avoid drinking alcohol while you’re breastfeeding. This is particularly important during the first month, when breastfeeding is being established.”
……………………………………………………..
Cut Off Times for Meal Cancellations:
Lunch 10:30 am Dinner 03:30 pm
Supper and Hot Beverages will be served from the trolley
Name: …………………………… Date: ……………… Guest Name: ……………………………………………. Meal received: ……………………………... (signature) Room number: …………….. Bed No: ……..”
[9] Wine is offered only with the evening meal. It is offered in one small 185 ml bottle of wine; a choice of either red or white. The use of small bottles recognises, Birthcare says, the important health principle that over consumption of alcohol is not considered a healthy medical choice, particularly for new mothers.
[10] Before the Committee, Birthcare provided statistics on its recent wine sale volumes. In 2013 a total of 155 bottles were sold and up until September 2014, 87 bottles were sold. To place this in context, in 2013 Birthcare provided pre- and post- natal services to 3,800 women. These sale figures do not assist in identifying what the sale volumes to these women were. Understandably, the sales figures permit only a limited insight into the actual consumption levels. The figures do not assist in discriminating who actually consumed the wine sold; in other words what proportion of the sales related to consumption by patients, or their partners or their families. Furthermore, the figures do not disclose actual consumption levels, or who consumed what or how much (i.e. a full bottle or only part).
[11] Birthcare has held an on-licence for the sale and supply of alcohol since
2001. When it applied to the Committee for a renewal of its on-licence,3 as required, a copy of the application was sent to the Auckland Council’s licensing inspector, the Police and the MOH.4 The licensing inspector is required to enquire into and file with the Committee a report on the application.5 In this case the licensing inspector observed there was no reason to believe that Birthcare was not a suitable applicant to hold a licence and thus did not object to the renewal.
[12] Under the Act the Police and the MOH must enquire into the application but are only required to file a report if they have matters in opposition.6 The Police advised the Committee they had no opposition.
[13] The MOH advised it opposed the application.7 The MOH observed that the provision of maternity services for birthing and post-natal care was not compatible with the provision of alcohol and recommended that the licence be granted with the discretionary condition that alcohol would not be made available to the maternity
service’s patients during pre-birth, during child birth and when breastfeeding.
3 Section 127(2) of the Act.
4 Section 129 provides that the obligations of the Police, MOH and licensing inspector as set out in s 103 (which relates to their obligation to enquire into applications for licenses), also apply to applications for renewals.
5 Section 103(2) of the Act.
6 Sections 103(2) and 129 of the Act.
7 In its notice of opposition dated 3 July 2014 the MOH stated that it opposed the application because Birthcare did not provide a low alcohol option. On 24 July 2014 the MOH advised it maintained that ground of opposition but also widened its opposition to the grounds now relied on.
Alternatively, if alcohol was to remain available for partners and visitors, the MOH
submitted a low alcohol option should be included as a discretionary condition.
[14] In support of the renewal, Birthcare filed two statements in the form of letters. One, written by Liquor Concepts Limited, which described itself as agent for Birthcare, explained the way in which the wine was offered. It attached a copy of the menu including the health warning. The other letter was written by the General Manager of Birthcare. She described Birthcare’s operation including the fact that food and wine services were provided to both patients and their visitors. Reference was also made to the availability of the low alcohol option should it be requested. The letter concluded by observing that Birthcare took its responsibilities for all compliance seriously but in offering alcohol wished to be able to provide an option for families to celebrate the birth of babies and the beginning of parenthood.
[15] In opposition the MOH filed her own brief of evidence and a brief by Dr Rosevear, a senior obstetric and gynaecological consultant. The contents of these statements are summarised below.
[16] Dr Barnfather is the MOH for the Auckland region. She said that the business of a maternity care facility which is engaged in providing health professional services for child birth and post-natal care is entirely inconsistent with the provision of alcohol. She said that best clinical practice dictates that pregnant and breastfeeding women do not consume alcohol and it thus follows no hospital, maternity centre or other institution providing such services for women should make alcohol available to them. She explained that alcohol is a teratogen, meaning that it can affect the development of the foetus. Alcohol passes freely through the placenta and reaches concentrations in the foetus which are as high as those in the mother. The foetus has no ability to regulate consumption and a very limited ability to metabolise alcohol compared to the mother. This can lead to levels of alcohol in the foetus which can cause lifelong disabilities and disadvantages. She listed the various complications and adverse consequences of alcohol consumption during pregnancy not only to the foetus but also, following birth, the child. On the question of the dangers of alcohol consumption in pregnancy she observed that no studies have definitively established a so-called “safe level”. By reference to academic literature
she noted that there was extensive and reliable evidence that drinking excess amounts of alcohol during pregnancy can damage foetal development and thus the best clinical evidence supports the proposition that the consumption of alcohol by pregnant women cannot be undertaken in a manner which will not cause harm to the foetus.
[17] In relation to breastfeeding, she noted that alcohol can reduce a woman’s supply of breast milk and that breast milk can contain higher concentrations of alcohol than in the mother’s blood stream if moderate to high amounts of alcohol are consumed. At lower rates of consumption the alcohol in breast milk will be at levels comparable to those in the blood stream. The MOH observed that the best available evidence shows that alcohol in breastfeeding mothers is associated with various risks and negative consequences including the reduction of a mother’s milk supply, the reduction of the amount of breast milk a baby consumes, shortening the duration of breastfeeding, disrupting a baby’s sleeping patterns and impairing the development of motor skills. She observed that during the limited post-natal care phase provided by Birthcare, women are in the process of transitioning between delivery and returning home with their newborn. It is intended to be a time of recovery from child birth, a time for ascertaining whether health complications may arise, a time for bonding and learning infant-caring skills and a time for establishing breastfeeding and breastfeeding patterns. She observed that in this context there was no place for alcohol which offers no therapeutic benefit and can also cause particular harm at this stage. Reference was made to the impact which alcohol can have on the formation of attachment, an important step in infant development.
[18] Dr Rosevear has practised obstetrics and gynaecology for nearly 30 years. She is a Fellow of both the Royal College of Obstetricians and Gynaecologists and the Royal Australia and New Zealand College of Obstetricians and Gynaecologists. In her brief she emphasised it is well settled that the consumption of alcohol during pregnancy poses severe, but completely avoidable, risks to the unborn baby and that alcohol intake in pregnancy is one of the leading preventable causes of birth defects and neuro-developmental disorders including foetal alcohol spectrum disorder.
[19] On the issue of consumption of alcohol in breastfeeding women, Dr Rosevear listed the negative consequences as including reduced milk production, inhibiting the milk let down mechanism, disruption of sleep cycles for babies and decreased psycho-motor development where breastfeeding mothers have consumed as little as two standard drinks a day. She noted that the more alcohol consumed the longer it takes to clear from the mother’s blood stream.
[20] She pointed to the Ministry of Health guidelines on alcohol and breastfeeding which indicated that mothers should avoid drinking alcohol while breastfeeding, particularly in the first month when breastfeeding is being established. The guidelines also state that if it is not possible to abstain altogether the limit should be one to two standard drinks occasionally. The guidelines conclude with the direction, “Do not binge drink”.
[21] Dr Rosevear observed that the average length of stay at Birthcare is two days. She noted that the majority of delivered women using Birthcare would not have been drinking alcohol during pregnancy and that most women also continue to abstain during the post-partum period. She said that to serve alcohol would risk breaking that habit because of its easy availability. There was a danger of creating an implicit assumption that if alcohol is offered in a maternity hospital it must be safe.
[22] In conclusion, Dr Rosevear observed that in the immediate post-partum period there is no therapeutic benefit for a mother to take alcohol. She noted it was not recommended to feed for two to four hours after a single drink and that while moderate drinking (i.e. one to two glasses) may be perceived as not harmful, there is no evidence it is not. The impact of even a small amount of alcohol in the immediate post-partum period may not be trivial.
Decision of the Authority
[23] The Authority examined the Committee’s decision and, in particular, the Committee’s conclusion that while the adverse effects of alcohol consumption by pregnant mothers on unborn infants was indisputable, the evidence of harm caused by alcohol consumption by a nursing mother on her baby was “more equivocal”. The Authority noted that on the MOH’s evidence, the Committee was entitled to
reach this conclusion. It observed that the basic principles expressed by the MOH’s witnesses were not in dispute. What was in dispute was how the Committee treated the evidence.
[24] The Authority concluded that the Committee was correct when it observed that without categorical evidence that the provision of alcohol would lead to the harms outlined in the objects of the Act, Birthcare’s application for renewal should have been granted. The Authority determined that the Committee was correct when it found there needed to be a link between the manner in which the premises have operated their licence and the MOH’s evidence of alcohol-related harm. The MOH failed to adduce evidence of such a link and thus the Committee was correct in recognising that if such a link existed at all it was only tenuous. The appeal was dismissed.
Grounds of appeal
[25] The MOH advances five grounds of appeal, namely that the Authority:
(a) erred by failing to identify correctly the nature of the harm that was relevant to the application for renewal of the licence;
(b)erred by upholding the Committee’s conclusion that the evidence presented by the MOH of alcohol-related harm was equivocal when the evidence of relevant harm was not equivocal and was uncontroverted;
(c) erred by concluding that the research-based evidence presented by the MOH failed to provide the necessary causal nexus between alcohol- related harm in the manner in which the licence had been and would be operated;
(d)as a result, the Authority failed to have regard to a mandatory consideration, namely information from the designated public health official, the MOH, concerning harm caused by excessive or inappropriate consumption of alcohol; and
(e) failed to have regard to a further mandatory consideration, the statutory criteria in s 105(1)(g) of the Act and the primary services provided by the applicant, namely maternity healthcare services.
[26] The MOH submits that these errors have given rise to the following questions of law on the appeal:
(a) Did the Authority err by having regard to evidence of alcohol-related harm during breastfeeding generally rather than focusing on the evidence of alcohol-related harm in the first few days of breastfeeding and during pregnancy (the relevant period for Birthcare patients)?
(b)Did the Authority err in not having regard to what it recognised was unequivocal evidence of harm to unborn infants in its decision whether to renew the licence and, if so, on what conditions?
(c) Did the Authority err in upholding the Authority’s conclusion that the evidence of relevant harm to breastfeed new born was equivocal on the appellant’s evidence?
(d)Did the Authority err in rejecting the uncontroverted research-based evidence presented by the appellant, relating to the effects of alcohol on new born breastfed infants, as providing an insufficient causal nexus between alcohol-related harm and the way in which the licence had been or would be operated?
(e) Did the Authority err in failing to have regard to the fact that Birthcare’s primary business was the provision of maternity healthcare services, being services not generally associated with the provision of alcohol?
[27] Thus the MOH asks for the Authority’s decision to be reversed or modified
by:
(a) refusing to grant the application for a renewal of the licence in respect
of Birthcare’s premises; or
(b)granting the application for renewal subject to the condition that alcohol is not sold or supplied to maternity service’s patients during pre-birth, delivery or post-delivery unless the patient’s baby is fully formula fed.
Approach to appeal
[28] This is an appeal on a question of law. A number of authorities have discussed the approach which applies to such appeals.8 Generally on such an appeal the Court is not invited to make a decision afresh, but only to address the particular points on appeal. In this regard, the approach bears a strong resemblance to the error principle.
[29] There is a long line of authority which predates Austin, Nichols & Co Ltd v Stichting Lodestar9 showing that superior Courts have long been reluctant to interfere with the decisions of the Licensing Control Commission (the Authority’s predecessor under the 1962 legislation) and the Liquor Licensing Authority (its predecessor under the Sale of Liquor Act 1989 (“the 1989 Act”)).10
[30] More recently that approach has found approval. In My Noodle Limited v
Queenstown Lakes District Council11 French J observed:
“The Liquor Licensing Authority is a specialist body and the High Court should pay proper deference to that fact. The High Court should have clear and convincing reasons for reversing a conclusion reached by a specialist tribunal within its province of special expertise.”
8 These are set out in Berry v Blackbull Liquor Hasting Ltd [2014] NZHC 314 at [19].
9 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 A R Cabarets Limited v Hawkes Bay Development Co Limited (1985) 5 NZAR 477; Gordon v Auckland District Licensing Agency HC Auckland, HC 29/97, 7 July 1997; Lopdell v Adiophile Bar and Café Company Limited HC Auckland, AP81/01, 18 February 2002 at [26].
11 My Noodle Limited v Queenstown Lakes District Council [2008] NZAR 481 (HC) at 487.
[31] In Triveni Puri Limited v The Commissioner of Police12 Kós J summarised the position in the following way:
“It has been observed by the Courts that there is limited scope for appeal from the Authority. The Act puts responsibility for enforcement decisions largely in the hands of the Authority, reflecting Parliament’s view of its central importance to the licensing system. This Court is nevertheless bound to reach its own independent conclusion. It may give such weight as it thinks fit to the opinion of the Authority, but must not regard itself as bound by the Authority’s opinions, merely because it is a specialist tribunal. However, the Authority is an experienced body, well able to assess evidence and has the advantage of actually seeing and hearing the witnesses in question and listening to the cross-examination.”
[32] Thus, by way of summary, while the scope on appeal may be limited and the Court is bound to reach its own independent conclusion, I am entitled to take into account the Authority’s view in recognition of its specialised role in the area of liquor licensing. However, the conclusions which I reach are to be my own.
The Sale and Supply of Alcohol Act 2012
Introduction
[33] The Act was passed following the Law Commission’s report, “Alcohol in Our Lives: Curbing the Harm”.13 The Law Commission noted that the new legislation should “strengthen public health participation in the licensing framework”.14
[34] The policy objectives of the Alcohol Reform Bill 2010 were recorded in the report back from the Justice and Electoral Committee as including:15
(a) to reduce the harm caused by alcohol use including crime, disorder, public nuisance, and the negative public health outcomes; and
(b)support the safe and responsible sale, supply and consumption of alcohol; and
12 Triveni Puri Limited v Commissioner of Police [2012] NZC 2913, [2013] NZAR 88 at [19].
13 Law Commission “Alcohol in Our Lives: Curbing the Harm” (NZLC R114, 2010).
14 At 10.40.
15 Alcohol Reform Bill 2010 (236-2) (select committee report) at 1-2.
(c) reducing the harm caused by alcohol use including negative public health outcomes and supporting the safe and responsible sale, supply and consumption of alcohol.
Purpose and objects
[35] The purpose and objects of the Act are set out in ss 3 and 4.
[36] As to purpose, s 3 provides:
“(1) The purpose of Parts 1 to 3 and the schedules of this Act is, for the benefit of the community as a whole,—
(a) to put in place a new system of control over the sale and supply of alcohol, with the characteristics stated in subsection (2); and
(b) to reform more generally the law relating to the sale, supply, and consumption of alcohol so that its effect and administration help to achieve the object of this Act.
(2) The characteristics of the new system are that—
(a) it is reasonable; and
(b) its administration helps to achieve the object of this Act.”
[37] As to the object, s 4 states:
“(1) The object of this Act is that—
(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and
(b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.
(2) For the purposes of subsection (1), the harm caused by the excessive or inappropriate consumption of alcohol includes—
(a) any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and
(b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a).”
[38] The object reflects a shift of emphasis from the 1989 Act. Whereas the purpose of the 1989 Act was:
“to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means”
[39] The new Act places emphasis on the minimisation of harm caused by the excessive or inappropriate consumption of alcohol.
Licence and renewal applications
[40] As was the case under the 1989 Act, a licence is required for the sale of alcohol.16 Where the alcohol is to be sold and consumed at the place from which a business is carried out, as in the present, an on-licence is required.
[41] The role of MOHs under the Act is not defined. Under the 1989 Act any applications for on-licences and club licences were required to be notified to the MOH. However, under the new statutory regime the MOH is required to review applications for off-licences as well. The mechanism by which applications for licences and renewals are made has already been discussed.
[42] The Committee or Authority, with the leave of the chairperson of the
Authority, decides any application for a licence.17
[43] The Act does not articulate a specific test for the Committee or Authority to apply when deciding whether to grant a licence but instead sets out a series of criteria which must be taken into account in this exercise. These are contained in s 105 of the Act which provides as follows:
“105 Criteria for issue of licences
(1) In deciding whether to issue a licence, the licensing authority or the licensing committee concerned must have regard to the following matters:
(a) the object of this Act:
16 Apart from the specific exemptions set out in ss 8 to 12 of the Act.
17 Sections 104 and 130 of the Act.
(b) the suitability of the applicant:
(c) any relevant local alcohol policy:
(d) the days on which and the hours during which the applicant proposes to sell alcohol:
(e) the design and layout of any proposed premises:
(f) whether the applicant is engaged in, or proposes on the premises to engage in, the sale of goods other than alcohol, low-alcohol refreshments, non- alcoholic refreshments, and food, and if so, which goods:
(g) whether the applicant is engaged in, or proposes on the premises to engage in, the provision of services other than those directly related to the sale of alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which services:
(h) whether (in its opinion) the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of the licence:
(i) whether (in its opinion) the amenity and good order of the locality are already so badly affected by the effects of the issue of existing licences that—
(i) they would be unlikely to be reduced further (or would be likely to be reduced further to only a minor extent) by the effects of the issue of the licence; but
(ii) it is nevertheless desirable not to issue any further licences: ...
(j) whether the applicant has appropriate systems, staff, and training to comply with the law:
(k) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made under section 103.
…”
[44] Where the application is for a renewal, rather than the issue of a new licence
(as is the case here), s 131 provides that all of the s 105(1) criteria remain relevant
except for the criterion relating to amenity and good order.18 The Committee and/or
Authority must also consider:
“(1) In deciding whether to renew a licence, the licensing authority or the licensing committee concerned must have regard to the following matters:
…
(c) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made by virtue of section 129:
(d) the manner in which the applicant has sold (or, as the case may be, sold and supplied), displayed, advertised, or promoted alcohol.
…”
[45] The criteria engaged in the present appeal are the object of the Act19, the other services that the respondent engages in20 and the matters dealt with in the report by the MOH. The MOH, as noted earlier, proposed that the renewal be granted subject to a condition that alcohol was not made available to patients during
pre-birth, child birth and when breastfeeding.
Causation: the nexus between the risk of harm and manner in which the licence is operated
[46] The terms “nexus” or “causal nexus” appear in a number of decisions of the Authority under the 1989 Act. These were discussed by Heath J in Otara- Papatoetoe Local Board v Joban Enterprises Limited,21 a decision made under the
1989 Act.
18 Section 105(1)(h) and (i)) of the Act are replaced by a reduced amenity and good order provision
(s 131(1)(b)).
19 Section 105(1)(a) of the Act.
20 Section 105(1)(g) of the Act.
21 Otara-Papatoetoe Local Board v Joban Enterprises Ltd [2012] NZHC 1406, [2012] NZAR 717.
[47] His Honour discussed the approach to be taken when the Authority is considering the question of whether or not to grant an off-licence. His Honour said:22
“...In my view, the Authority is required to undertake an evaluative exercise which brings to bear both the factors set out in s 35(1) … :
(b) The reports presented by the Police and the inspector. Such report should be directed to both the s 35(1) criteria and the extent to which the grant of an application might offend against the object of the Act; and
(c) Public objections that are directed to s 35(1) criteria.
Having considered all of that information, the Authority must stand back and determine whether the application should be granted (whether on conditions or not) or refused. This step requires the Authority to form a view on whether there is any evidence to suggest that granting the application will, contrary to s 4(1), increase the risk of alcohol abuse. While a causal nexus is required between such evidence and the relevant risk, it is unnecessary to qualify the nature of the link by reference to such words as ‘powerful’ or
‘direct’.”
(citations omitted)
[48] Section 131 makes it plain that the renewal of a licence is not automatic and is to be approached in much the same manner as the grant of an initial licence.23
[49] Section 131 also requires a reflective analysis which recognises that the best evidence of suitability for the renewal of a licence will likely be the manner in which the applicant has operated its licence in the past and, more particularly, the way in which it has sold, supplied, displayed, advertised or promoted alcohol.24
[50] There is no reason in principle why the “causal nexus” approach adopted under the 1989 Act and approved in decisions of this Court, should not continue to be relevant and applicable under the new Act. Indeed, it was not suggested in argument that a different legal test should be adopted. Under both Acts the relevant enquiry is the same; the Authority is required to have regard to the s 105 criteria (or in the case of a renewal the s 105 criteria as modified by s 131) and then step back
and consider whether there is any evidence to suggest that granting the application
22 At [31].
23 See Linwood Food Bar Limited v Davison Joy [2014] NZHC 2980.
24 Section 131(d) of the Act.
will be contrary to the object of the Act contained in s 4(1), namely that the sale, supply and consumption of alcohol should be undertaken safely and responsibly and the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.
Is there an onus on the applicant?
[51] Where the object of the Act may not be met by the granting of a renewal the question arises as to whether there is an onus on the applicant to satisfy the Authority that in undertaking the required evaluative exercise there is no sufficient evidence to support any causal nexus between the risk of harm and the manner in which the licence has been operated.
[52] Heath J, in Re Venus NZ Limited25 examined whether the applicant in that case bore an onus to satisfy the Authority that in granting an off-licence there would be no likely reduction to the amenity and good order of the locality if the off-licence were granted.26 Although dealing with different provisions in the Act which require the Authority to form an opinion on the effect the licence may have on the amenity and good order of the locality, his Honour described the Authority’s role as essentially an inquisitorial one where notions of onus of proof may not be helpful or appropriate.
[53] His Honour stated:27
“[59] … s 105(1) of the 2012 Act contemplates the same type of
evaluative exercise as is undertaken under s 106(1). The factors listed in s
105(1) are taken into account by the Authority in determining whether the application succeeds.
[60] There is an underlying assumption (which I take from the way in which criteria are expressed) that the Authority will exercise an inquisitorial role in determining the appropriateness of the grant of a particular licence having regard to all relevant factors. Although the 2012 Act does not express the powers of the Authority in that way, the breadth of its functions28 (which go beyond judicial determinations) suggests that the application of rules involving onus of proof may not be appropriate. For example, powers
25 Re Venus NZ Limited [2015] NZHC 1377.
26 Sections 105(1)(h) and 106(1) of the Act.
27 At [59] and [60].
28 The functions and powers of the Authority are set out in ss 170 to 176 of the Act.
of investigation are explicitly conferred by s 174, albeit ones that are
delegated to one of its members or some other qualified person.”
The questions of law
[54] On this appeal the MOH is confined to questions of law. This is because where an application has first been decided by the Committee and that decision has been appealed to the Authority, any subsequent appeal is limited to questions of law.29
[55] The MOH poses five questions which it claims are questions of law in respect of which the Authority erred. I propose to deal with each question in turn. However, as Mrs Sussock accepts, there is a substantial overlap between the questions; each relates to the degree of harm likely to result from the renewal of the licence.
[56] Questions (a), (c) and (d) each relate to alleged errors in the receiving and treatment of evidence. Although the questions focus on different errors, they all relate to the same evidence and the claimed fallibility of the common consequent conclusion, namely that the evidence of harm from consumption of alcohol during breastfeeding was equivocal.
[57] Questions (b) and (e) focus on whether the Authority failed to have proper regard to relevant factors namely:
(a) as to (b), the evidence of harm from the consumption of alcohol during pregnancy;
(b)as to (e), the other services provided by Birthcare, being maternity services, and whether it is consistent with the object of the Act for a person who provides those services to sell and supply alcohol.
[58] The MOH submits that if I determine the Authority erred in respect of any of these questions it will then be necessary to reconsider the application and for the
Court to reach its own conclusion on its merits. This is because Mrs Sussock
29 Section 162 of the Act.
submits this Court only has the power to confirm, modify or reverse the decision of the Authority.30 She submits there is no power to remit the matter back to the Authority for reconsideration.
[59] The first four questions relate to two criteria, the object of the Act31 and the matters dealt with in the report by the MOH.32 The final question relates to the “provision of other services” criterion33.
[60] Heath J recently discussed the correct approach to licence applications in Re Venus NZ Limited. Although dealing with an off-licence the principle is the same and the Judge’s observations deserve repeating. He said:34
“Although the ‘object’ of the 2012 Act is stated as one of the 11 criteria to be considered on an application for an off-licence, it is difficult to see how the remaining factors can be weighed other than against the object of the new legislation. It seems to be that the test may be articulated as follows:
Is the Authority satisfied, having regard to all the relevant factors set out in s
105(1)(b)-(k) of the 2012 Act, that the grant of an off-licence is consistent
with the object of the Act?”
[61] I agree with Mrs Sussock, for the MOH, that there is significant overlap therefore, in the consideration of these criteria. The “other services” criterion must be measured against the object of the Act and the matters dealt with in the MOH’s report.
[62] In submissions, the parties addressed the various questions in a different order than the notice of appeal. I intend to deal with the questions in the order in
which they were argued rather than in cardinal order.
30 Section 161(7) of the Act.
31 Section 105(1)(a) of the Act.
32 Section 105(1)(k) of the Act.
33 Section 105(1)(g) of the Act.
34 Re Venus NZ Ltd, above n 25, at [20].
Question (a): Did the Authority err by having regard to evidence of alcohol-related harm during breastfeeding generally rather than focusing on the evidence of alcohol-related harm in the first few days of breastfeeding and during pregnancy (the relevant period for Birthcare patients)?
[63] This is a claim that the Authority failed to identify the relevant harm. Mrs Sussock submits that the object of the Act includes the minimisation of the harm caused by the excessive or inappropriate consumption of alcohol. She places emphasis on the consumption being inappropriate. She submits that when weighing this criterion, the Authority is required to focus on the harm which is relevant to the application in question. She submits that if the licence is renewed the relevant consumers will be maternity services patients. These patients will either be about to have, or will have been delivered of a baby very recently with the length of stay at Birthcare being on average two days. She thus submits that the harm to be considered is the harm which would occur if a person in those circumstances consumed alcohol. She submits the evidence is clear that the consuming of alcohol during pregnancy can harm an unborn infant. This was accepted by both the Committee and the Authority.
[64] Specifically Mrs Sussock referred to the harm a newborn would be exposed to by reference to the unchallenged evidence of Dr Rosevear. She thus submits that both the Committee and the Authority erred in failing to identify the relevant harm which could occur as a result of the supply of alcohol by Birthcare. As a consequence, she submits, the Authority asked itself the wrong question because it asked whether consumption of alcohol during the entire period of breastfeeding was likely to cause harm rather than the correct and more specific inquiry which is whether harm would be caused within the first few days. She submits that had the Authority focused on the relevant period of harm there could be no question of finding a link evidence between the way in which the licensee operated the licence and the alcohol-related harm.
[65] Mr Dormer, as counsel appointed to assist the Court, submits there was minimal evidence as to the way Birthcare operates the licence, let alone anything adverse. He submits that even if the Authority had been more explicit and referred to the potential for harm caused by breastfeeding mothers consuming alcohol in
greater than minimal quantities in the first few days after delivery, that would not have related, in any way, “to the way in which the licensee operates the licence”. He submits that it is not the nature of the harm which is relevant to this enquiry but rather the adequacy of the evidence as to the way in which the licence has been operated. On this basis he submits that the MOH has not shown the required nexus.
[66] I am not satisfied the Authority did focus on the risk of harm to breastfeeding mothers generally to the detriment of considering the evidence of harm to neonates during the first few days of breastfeeding.
[67] The Authority expressly noted that:
“the basic principles expressed by [the] witnesses for the appellant are not in dispute.”
[68] It is plain, reading both the judgment of the Authority and the Committee, that it stood back and examined the evidence as a whole in determining whether the licence should be granted. While it is correct that neither decision makes express reference to the concerns of the MOH, particularly those associated with breastfeeding in the two day post-partum period, the Authority’s reference to the basic principles advanced by the appellant’s witnesses not being in dispute indicates the Authority did consider this evidence.
[69] Indeed, as the Committee noted when describing Birthcare’s operation, about
400 births occur at the facility every year and another 4,000 or so patients are transferred to the facility after giving birth for “two (2) days of post-natal care”. The observation that most patients stay for two days after giving birth was followed by a reasonably detailed description of the evidence of the MOH and Dr Rosevear. It can be inferred that when referring to Birthcare’s patients and the risk of harm the Authority was necessarily considering the position of babies and patients in the first day or two after birth. Dr Rosevear also made specific reference to maternal alcohol ingestion, breastfeeding and the effect on the neonate. The Committee noted Dr Rosevear’s comment that one would expect a policy in a birthing institution which reflects the caveat that ingestion of alcohol in pregnancy is zero tolerant. By
inference this necessarily related to patients and babies in Birthcare’s care during
immediate post-partum period.
[70] It follows I am not satisfied that the Authority erred and the answer to this
question must be, “No”.
Question (c): Did the Authority err in upholding the [Committee’s] conclusion that the evidence of relevant harm to breastfed new borns was equivocal on the appellant’s evidence?
[71] Mrs Sussock submits that this question needs to be dealt with separately because it is conceptually different. She submits that the reason the Committee found the evidence of harm to breastfed babies was equivocal was because the Committee relied on a statement on a website and did not differentiate between breastfeeding in the first month and breastfeeding in later months. The website in question made reference to a claim that moderate occasional alcohol consumption is not likely to pose a problem to the infant but heavy consumption is to be avoided.
[72] The Authority was critical of the Committee for undertaking its own research when examining the weight to be attributed to the MOH’s evidence. It observed that it was the Committee’s task to test the evidence of the witnesses and their own interpretation of academic research rather than locate other material and attempt to interpret it. Mrs Sussock submits that neither the Committee nor the Authority had contrary evidence before it. She thus submits that the Authority erred because it upheld the conclusions of the Committee which were based upon these errors and that while recognising they were errors did not go on to reconsider the evidence of harm itself.
[73] Mrs Sussock repeats her submission that concluding the evidence was equivocal was not open to the Authority if the focus had been on the two day post- natal period, as it should have been.
[74] Mr Dormer submits that the Authority’s conclusion was open to the Committee. He says the evidence on how the consumption of alcohol by a nursing mother might detrimentally affect a newborn baby was, in fact, more equivocal than
the evidence of the harms on an unborn infant. In support of that submission he
refers to Dr Rosevear’s evidence and in particular her observation that:
“While ‘moderate drinking’ – one to two glasses may be perceived as not harmful there is no evidence that it is not and hence this would be the reason for the perception.”
[75] This evidence, Mr Dormer submits, illustrates the difference between the two bodies of research; that relating to effects on the unborn child which are unequivocal and that relating to the effects on the neonate which is more equivocal.
[76] I agree with Mr Dormer. The evidence of harm caused to the foetus by alcohol consumed by the pregnant mother is plain, uncontroversial and settled. However, the evidence of alcohol consumption in the immediate post-partum period is “more equivocal”. In making this observation I do not ignore the nine features of harm Mrs Sussock lists in support of her submission that the evidence shows any consumption of alcohol may cause harm to newly born babies. However, the extract from Dr Rosevear’s evidence referred to above does support the conclusion that the harm alcohol poses to neonates is “more equivocal” than the evidence of the harm posed on a foetus.
[77] I am not satisfied that the Authority erred in this respect. As a result the
answer to this question must be, “No”.
Question (d): Did the Authority err in rejecting the uncontroverted research-based evidence presented by the appellant, relating to the effects of alcohol on newborn breastfed infants, as providing an insufficient causal nexus between alcohol-related harm and the way in which the licence had been and would be operated?
[78] Although this question seems indistinguishable from others, Mrs Sussock submits that it raises two possible errors of law. The first is that it was a conclusion unsupported on the evidence and the second is that, in any event, there was no requirement to prove actual harm.
[79] Mrs Sussock’s submission is that the evidence of alcohol consumption during pregnancy and in early breastfeeding is harmful was unrefuted. She submits that the Authority, despite accepting the basic principles were not in dispute, upheld the
Committee’s conclusion there was no causal nexus between the evidence of alcohol- related harm adduced by the MOH and the way in which the licence was operated. She submits, however, that once the appellant’s evidence is accepted the causative link between the manner in which Birthcare sells and promotes alcohol and the alcohol-related harm is made.
[80] Mrs Sussock submits that the test in Re Venus NZ Limited requires the authority to undertake an evaluative exercise bringing to bear the criteria set out in the Act as assessed against the object of the Act; the minimisation of harm. Mrs Sussock also relies on Otara-Papatoetoe Local Board35 observing that the MOH’s evidence should have been considered as part of the evaluative exercise rather than being rejected as not being relevant to that exercise on the basis there was no link between it and the application for renewal.
[81] Ms Sussock also relies upon the observations of the Court of Appeal in My Noodle Limited v Queenstown Lakes District Council36 and the comments of French J in the High Court where her Honour recognised that the weight to be attached to competing views was an issue within the specialist expertise of the Authority and that even where there may be criticisms of the alleged paucity of factual material before the Authority, these need to be tempered by the fact that the
Authority is entitled to draw inferences as a matter of common sense. The Court of
Appeal agreed with this approach.
[82] Mrs Sussock submits that contrary to the approach of the Authority in My Noodle Limited, in the present case the Authority took no steps to weigh the appellant’s evidence before rejecting it as irrelevant to the evaluative exercise and thus concluding there was no evidence of a causative link between alcohol-related harm and Birthcare’s application for renewal.
[83] Mrs Sussock observes that this places the MOH in an impossible position. Proving actual harm is simply unrealistic. It would require an analysis of what an
infant’s development would have been without maternal alcohol consumption as
35 Otara-Papatoetoe Local Board above n 21.
36 My Noodle Limited v Queenstown Lakes District Council [2009] NZCA 564, [2010] NZAR 152.
compared to its development where the mother consumed alcohol. Furthermore, she submits that the best evidence is the epidemiological studies. She also points to the ethical issues which would be engaged in such a study, the likelihood of statistical error given the small population sample and the insurmountable difficulties the MOH would encounter if she was required to undertake this sort of analysis every time a licence or renewal application was made.
[84] Mr Dormer submits that had there been evidence of supply to breastfeeding mothers in more than minimal quantities and if there were sufficient academic studies to show that this would cause harm, it may well have been sufficient to prove the causal nexus. But in the present case there was no evidence as to who consumed the 155 small bottles sold in 2013.
[85] He also submits, on the authority of My Noodle Limited, that an overly rigid approach should not be adopted and the Authority is required to evaluate the evidence and not uncritically accept it.
[86] In my view there are two difficulties with the MOH’s argument on this question. The first is that neither the Committee nor the Authority concluded that the evidence of harm was equivocal. The wording used by the Authority was that the evidence of harm in breastfeeding mothers was “more equivocal”. Neither decision concluded that alcohol consumption by breastfeeding mothers posed no risk of harm. The observation, as earlier noted, was that the evidence supporting the conclusion around harm to breastfeeding mothers was not as clear as the evidence of harm to foetuses. For that reason I am satisfied the Authority did not err in this respect.
[87] Secondly, this question invites the Court to draw its own conclusion of the evidence. The question is thus one of fact rather than law. While an appellate Court on such an appeal may consider whether there is sufficient evidence to reach a particular conclusion it is not open to substitute its own view for that of the original decision maker unless the factual finding was so unsupportable on the evidence and clearly so untenable as to amount to an error of law.
[88] The Authority’s decision does not fall into that category. It was open to the Authority to give the evidence of risk of harm to breastfeeding mothers at Birthcare limited weight in the evaluative exercise. I agree with Mr Dormer that the MOH’s evidence was not rejected. It was simply not given determinative weight when considered together with the other factors relevant to the manner in which Birthcare was operating its licence. That was a conclusion open to the Authority on the evidence.
[89] In the circumstances I am satisfied that the conclusion the Authority reached concerning the evidence was one which was open to it. It did not err. As such, the answer to this question must be, “No”.
Question (b): Did the Authority err in not having regard to what it recognised was unequivocal evidence of harm to unborn infants in its decision whether to renew the licence and, if so, on what conditions?
[90] As Mrs Sussock accepts, there is significant overlap between this question of law and the first question. Both rely on the alleged failure to identify the relevant harm.
[91] For this reason Mr Dormer, in response, repeats his earlier submissions.
[92] This question claims that the Authority rejected uncontroverted evidence in concluding that there was no causal nexus between alcohol-related harm and the way in which the licence had been operated. Again, this question involves issues of fact and thus must be treated with some caution.
[93] In analysing the question, two questions are posed as follows
(a) Did the Authority reject uncontroverted evidence?
(b) Was it entitled to conclude there was an insufficient causal nexus?
[94] In relation to the first I am satisfied the Authority did not reject the MOH’s
evidence for the reasons I have already discussed.
[95] Secondly, the Authority concluded there was no sufficient causal nexus between the putative harm and the way in which the licence had been operated. In short, the Authority upheld the finding of the Committee that the licence was operated in a way that minimised this harm.
[96] This was a finding which was open to the Authority on the facts. In particular the following factors are relevant in the Authority’s determination that the way in which the licence had been operated was such that a causal nexus with the harm was not made out:
(a) the provision of alcohol is a very minor part of the total services provided by Birthcare;
(b) the quantities of alcohol sold by Birthcare are very modest;
(c) there is no evidence of actual consumption figures and, more particularly, how many patients (whether pre-natal or post-natal), if any, consume alcohol and if so, how much;
(d) the prominent health warning on the menu;
(e) the highly controlled and regulated environment in which alcohol is offered for sale.
[97] It was no doubt in the context of these considerations that the Committee made the following observation with which I agree:
“[54] In our opinion it is hard to envisage any other premises for which an on-licence is held, that would be more controlled in its delivery of alcohol to patrons of any sort, be they be patients or visitors to the facility.”
[98] I agree with Mr Dormer that this question, as it is posed, is predicated on a misstatement of the Authority’s treatment of the evidence. The Authority did not reject the research-based evidence presented by the MOH. It did not reject the evidence of the negative effects of alcohol on either unborn or new born breastfed infants. It did, however, conclude that there was an insufficient causal nexus
between this and the way in which the licence had been or would be operated. For the reasons previously discussed this was a conclusion open to the Authority on the evidence before it.
[99] For these reasons I conclude that the answer to this question must be, “No”.
Question (e): Did the Authority err in failing to have regard to the fact that the applicant’s primary business was the provision of maternity healthcare services, being services not generally associated with the provision of alcohol?
[100] Mrs Sussock submits that the Authority failed to have regard to a mandatory consideration, namely a consideration of the nature of the other services provided by Birthcare.
[101] She emphasises the object of the Act, including s 4(1)(b) which states that one of the objects of the Act is that the harm caused by excessive or inappropriate consumption of alcohol should be minimised. She points out that the Authority did not refer to this criterion in its decision other than in a passing reference to the matters required to be considered in an application for renewal.
[102] The MOH’s opposition is based on Birthcare’s role as a maternity hospital. Mrs Sussock submits the fact that other private hospitals may operate an on-licence does not assist in the proper consideration of Birthcare’s application where the evidence of potential harm relates to the effects on unborn and newly born infants.
[103] She points out that it is a mandatory consideration under s 105(1)(g) of the Act for the Committee to have regard to the provision of services other than those directly related to the sale of alcohol and, if so, which services.
[104] Mrs Sussock submits that had this factor been considered by the Authority, it would have weighed against the granting of the renewal.
[105] In response, Mr Dormer points out that it can hardly be contended that the Authority was ignorant of Birthcare’s primary business. This fact was expressly acknowledged in the first paragraph of the Authority’s decision.
[106] He also submits it is well settled that simply because a decision maker may not refer to every point raised or every submission made, it does not logically follow it was not considered. A tribunal is not obliged to refer to every piece of evidence adduced or every argument advanced.37
[107] Given that the Authority largely adopted the reasons of the Committee, reference can be made to the Committee’s decision which expressly referred to the nature of Birthcare’s business and the controlled environment within which alcohol was sold, supplied and consumed. The Committee considered the nature of the premises and determined that the environment created one which was consistent with the objectives of the new Act. The reference to other private medical hospitals holding on-licences was made in the context of a general description of the nature of the controlled environment in which alcohol was sold and supplied.
[108] For these reasons I am satisfied the Authority did consider the mandatory
factors set out in s 105 and did not err. The answer to this question must be, “No”.
The role of the MOH
[109] In the course of her helpful and extensive submissions, Mrs Sussock emphasised that by confirming the Committee’s decision that there was no sufficient causal nexus between the risk of harm and the manner in which Birthcare operated its licence, the Authority placed the MOH in an impossible position.
[110] She observed that apart from the obvious difficulty, if not impossibility, of proving causation, the MOH is necessarily required to carry the onus of establishing the causal link. Some of the ethical and practical impediments have already been discussed. But, additionally, as Mrs Sussock pointed out, MOHs are involved in the licensing process because of their public health responsibilities and expertise. Their ability to advise the Authority on the public health implications of a particular application is a central feature of their extended responsibilities under the Act. The MOH is uniquely placed to put before the Authority relevant and specialised
evidence which may assist the Authority in discharging its functions under the Act.
37 Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58 (HC).
[111] Mrs Sussock points out that requiring the MOH to undertake individual studies focused on each applicant every time a licence or renewal is applied for cannot be how the legislature envisaged the Act would operate. Even if the MOH had the resources, any report by the MOH in opposition to an application must be filed with the Committee within 15 working days. This does not allow time for detailed investigations to be completed (assuming such studies were even possible).
[112] Furthermore, the MOH does not possess any investigatory or compulsive powers which would enable it to make such enquiries. She cannot compel the provision of evidence or undertake searches under compulsion. And even if she did, given the framework of the legislation, it would not be possible to marshal this evidence in a timely way and on every application where the MOH, after enquiring into the application, determines there are matters in opposition which require the MOH to file a report.
[113] I agree with Mrs Sussock that to impose on the MOH an onus to prove a causative link is not only unrealistic but is contrary to the correct legal position as I have already discussed. There is no onus on the MOH to prove anything.38
[114] In the present case I am satisfied the MOH properly and responsibly discharged her responsibilities under the Act when she placed before the Committee the comprehensive body of evidence which described the risks associated with alcohol consumption by pregnant and breastfeeding women, including breastfeeding women in the two day post-partum period. The MOH does not bear any onus of proof to demonstrate the causative link. Where there is evidence adduced by the MOH (or any other party opposing) it is for the Authority to evaluate it in terms of the criteria and object of the Act.
[115] It is noteworthy that the stated objects in s 4(1) are that the sale, supply and consumption of alcohol should be undertaken safely and responsibly and the harm
caused by the inappropriate consumption of alcohol should be minimised.
38 This is implicit in s 107 of the Act which empowers the Committee or Authority to refuse a licence even in circumstances where the application is unopposed. Where the MOH objects and adduces evidence in opposition the onus remains on the applicant to satisfy the Committee that notwithstanding those objections the application should be granted.
“Minimise” is not the same as eliminate. As the Law Commission’s report recognised39 alcohol is the most commonly used recreational drug in New Zealand. It is a psychoactive substance. Parliament has long recognised the need to regulate its consumption by statute, the most recent iteration of which is the new Act. Section 3(2) sets out the characteristics of the new system which underpins the Act. It provides:
“(2) The characteristics of the new system are that—
(a) it is reasonable; and
(b) its administration helps to achieve the object of this Act.”
[116] The Act’s new system is intended to be reasonable. This means some sense of proportionality must characterise its operation. This principle is reflected in the way evidence is received by the Authority. The evaluative exercise requires the Authority to consider the pool of evidence available to it against the criteria and the Act’s object. In this case it included Birthcare’s statements about how the sale of alcohol operated, the limits on consumption and the modest levels of sale. It also included evidence on how Birthcare had operated its licence in the past. The MOH’s evidence formed part of that available pool.
[117] Taking the criteria and statutory object into account the Authority’s decision to review Birthcare’s licence was entirely reasonable. Given Birthcare’s operation the risk of harm was minimised albeit not eliminated.
Result
[118] The appeal is dismissed.
Costs
[119] In the circumstances of this case I am of the view that the MOH has acted properly and responsibly in bringing this appeal. Given the comments of the Authority made in the context of applying the principles of the new Act, it was
reasonable for the MOH to bring this appeal to clarify her role. Furthermore,
39 ”Alcohol in Our Lives: Curbing the Harm”, above n 13 at [3.7].
Birthcare has taken no part in these proceedings. Mr Dormer, as counsel appointed to assist the Court, has assumed the role of contradictor and I thank him for the considerable assistance he has provided.
[120] In the circumstances I am not inclined to award costs. If any party seeks costs, written memoranda are required to be filed and served within 10 working days
of the date of this judgment and I shall determine costs on the papers.
Moore J
Solicitors:
Wilson Harle, Auckland
Mr Dormer, Auckland
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