New Health New Zealand Inc v South Taranaki District Council
[2018] NZSC 59
•27 June 2018
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| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 141/2016 [2018] NZSC 59 |
| BETWEEN | NEW HEALTH NEW ZEALAND INCORPORATED |
| AND | SOUTH TARANAKI DISTRICT COUNCIL |
| Hearing: | 16 and 17 November 2017 |
Court: | Elias CJ, William Young, Glazebrook, O’Regan and |
Counsel: | M T Scholtens QC, L M Hansen and T Mijatov for Appellant |
Judgment: | 27 June 2018 |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must pay the first respondent costs of $20,000 plus usual disbursements.
CWe make no award of costs in favour of the second respondent.
____________________________________________________________________
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
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]
[1]The Health Committee report on the Health (Fluoridation of Drinking Water) Amendment Bill currently before the House of Representatives says about 54 per cent of the New Zealand population receives fluoridated water: Health (Fluoridation of Drinking Water) Amendment Bill 2016 (208-2) (select committee report) at 1. Counsel for New Health said 48 per cent. Fluoridation occurred for the first time in New Zealand in 1954.
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.
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]
[2]New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2 NZLR 13 (Randerson, Wild and French JJ) [New Health (CA)].
[3]New Health New Zealand Inc v South Taranaki District Council [2017] NZSC 13.
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].
[4]New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2 NZLR 834 [New Health (HC)].
[5]New Health (CA), above n 2, at [9].
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]New Health (HC), above n 4, at [113].
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]New Health New Zealand Inc v Attorney-General [2014] NZHC 2487 (Collins J) [Medicines Act judgment].
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]At [51].
[9]New Health New Zealand Inc v Attorney-General [2015] NZHC 2138, [2015] NZAR 1513 (Kós J) [Regulations judgment].
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
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
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]
[10]It was previously thought that it worked systemically, that is by the swallowing of fluoridated water.
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.
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?
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]
[11]New Health (CA), above n 2, at [58]–[59]; and New Health (HC), above n 4, at [25].
[12]Attorney‑General v Lower Hutt City [1965] NZLR 116 (PC) [Lower Hutt City (PC)].
[13]At 124 per Lord Upjohn.
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 continue to provide water services (s 130) had to be interpreted as reflecting Parliament’s knowledge that fluoridation was lawful under the earlier legislation by virtue of the Lower Hutt City case and thus could be seen to have authorised the continuation of the practice of fluoridating water. To the extent this was in doubt, the doubt was removed by the provisions introduced in Part 2A of the Health Act 1956, which we will discuss later. New Health argued that this line of reasoning was flawed because of an error in the reasoning of the Privy Council and because s 130 of the LGA 2002 is materially different from s 240 of the Municipal Corporations Act.
The starting point for an evaluation of this submission is a consideration of the decision of the Privy Council in the Lower Hutt City case.
The Lower Hutt City case
The issue in the Lower Hutt City case was whether the Lower Hutt City Council had legal authority to add fluoride to water. The statutory provision relied on by the Council was s 240(1) of the Municipal Corporations Act 1954, under which the Council had power to “construct waterworks for the supply of pure water for the use of the inhabitants of the district”. Also relevant was s 288 of the Municipal Corporations Act, which gave the Council power to do all things necessary for the preservation of public health and convenience and for carrying into effect the provisions of the Health Act 1956.
In the Supreme Court McGregor J found that s 240(1) did not give the Council power to add fluoride to the water supply but that s 288 did.[14]
[14]Attorney-General v Lower Hutt City [1964] NZLR 438 (SC). The reasons of McGregor J are discussed in the reasons of William Young J below at [195] and those of the Court of Appeal are discussed at [196]–[197].
The Court of Appeal dismissed an appeal against the decision of McGregor J, but decided that the authority for fluoridation was contained in s 240 of the Municipal Corporations Act rather than s 288.[15] Turner J dissented.
[15]Attorney-General v Lower Hutt City [1964] NZLR 445 (CA).
The Privy Council dismissed an appeal against the decision of the Court of Appeal. Like the Court of Appeal, their Lordships considered that the provision authorising fluoridation was s 240 of the Municipal Corporations Act. The essence of the decision is contained in the following extract:[16]
Their Lordships are of opinion that an act empowering local authorities to supply “pure water” should receive a “fair large and liberal” construction as provided by s 5(j) of the Acts Interpretation Act 1924. They are of opinion that as a matter of common sense there is but little difference for the relative purpose between the adjectives “pure” and “wholesome”. Their Lordships think it is an unnecessarily restrictive construction to hold (as did McGregor J) that, because the supply of water was already pure there is no power to add to its constituents merely to provide medicated pure water, i.e. water to which an addition is made solely for the health of the consumers. The water of Lower Hutt is no doubt pure in its natural state but it is very deficient in one of the natural constituents normally to be found in water in most parts of the world. The addition of fluoride adds no impurity and the water remains not only water but pure water and it becomes a greatly improved and still natural water containing no foreign elements. Their Lordships can feel no doubt that power to do this is necessarily implicit in the terms of s 240 and that the respondent corporation is thereby empowered to make this addition and they agree with the observations of North P and McCarthy J already quoted. They think too that it is material to note that, while their Lordships do not rely on s 288, nevertheless that section makes it clear that the respondent corporation is the health authority for the area and s 240 must be construed in the light of that fact; that is an additional reason for giving a liberal construction to the section.
Their Lordships think it right to add that had the natural water of Lower Hutt been found to be impure it would of course have been the duty of the respondent corporation to add such substances as were necessary to remove or neutralise those impurities; but that water having been made pure they can see no reason why fluoride should not be added to the water so purified in order to improve the dental health of the inhabitants.
Legislative history
[16]Lower Hutt City (PC), above n 12, at 124–125.
The Municipal Corporations Act was replaced by the LGA 1974. Section 379 of the LGA 1974 was to the same effect as s 240 of the Municipal Corporations Act and, as recorded in both the High Court and Court of Appeal judgments, it is not disputed that the provisions are not materially different.[17] That being the case, the power to fluoridate under the Municipal Corporations Act continued to apply under the LGA 1974.[18]
[17]Section 379 of the Local Government Act 1974 was inserted by the Local Government Amendment Act 1979.
[18]New Health (HC), above n 4, at [16]; and New Health (CA), above n 2, at [23].
The LGA 1974 was in turn replaced by the LGA 2002, which is the legislation that now governs the operation of local authorities.
Statutory provisions: analysis of High Court and Court of Appeal
Rodney Hansen J set out an extensive discussion of the LGA 2002 in his judgment.[19] The important feature of the LGA 2002 is that it took a materially different approach in the provisions providing for the powers of local authorities from that taken in the Municipal Corporations Act and the LGA 1974. The prescriptive empowering provisions in the earlier Acts were replaced by “a more broadly empowering legislative framework that focuses councils on meeting the needs of their communities”.[20] There are however, specific provisions relating to the provision of drinking water.
[19]New Health (HC), above n 4, at [17]–[25].
[20]Local Government Bill 2001 (191-1) (explanatory note) at 1.
An important provision of the LGA 2002 is s 12, which gives local authorities a general power of competence. This is expressed in s 12(2)(a) as “full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction” for the purposes of performing its role. Section 12(2)(b) provides that a local authority has “full rights, powers, and privileges” for the purpose of s 12(2)(a). Section 12(3) provides that s 12(2) is subject to the LGA 2002 itself, any other enactment, and the general law.
Under s 125 of the LGA 2002, local authorities are required to assess from time to time the provision within the district of water services. “Water services” is defined in s 124 as including “water supply”, which in turn is defined as “the provision of drinking water to communities by network reticulation to the point of supply of each dwellinghouse and commercial premise to which drinking water is supplied”. Section 126 provides for the purpose of assessments under s 125. The purpose is:
… to assess, from a public health perspective, the adequacy of water and other sanitary services available to communities within a [local] authority’s district, in light of—
(a)the health risks to communities arising from any absence of, or deficiency in, water … services;
(b)the quality of services currently available to communities within the district; and
…
(d)the extent to which drinking water provided by water supply services meets applicable regulatory standards;
…
The Court of Appeal noted that the emphasis in this provision is on the role of local authorities in the delivery of water supplies from a health perspective, noting that there is a direct link made with applicable regulatory standards for drinking water.[21]
[21]New Health (CA), above n 2, at [37].
Both the High Court and Court of Appeal attached particular significance to s 130 of the LGA 2002. Section 130(1) and (2) provide:
Obligation to maintain water services
(1)This subpart applies to a local government organisation that provides water services to communities within its district or region—
(a) at the commencement of this section:
(b) at any time after the commencement of this section.
(2)A local government organisation to which this section applies must continue to provide water services and maintain its capacity to meet its obligations under this subpart.
Rodney Hansen J noted that the LGA 2002 refers to “drinking water” rather than “pure water”, the term used in both the Municipal Corporations Act and the LGA 1974. He saw this as a largely semantic difference and said it could not be understood as indicating an intention on the part of Parliament to narrow a local authority’s power in relation to the supply of water.[22] He considered that the use of the term “continue to provide water services” indicated that given the authorisation to fluoridate that applied under the Municipal Corporations Act and the LGA 1974, Parliament must be taken to have intended to empower local authorities to fluoridate water.[23] The Court of Appeal endorsed that reasoning.[24]
[22]New Health (HC), above n 4, at [24]–[25].
[23]At [25].
[24]New Health (CA), above n 2, at [58].
Both the High Court and Court of Appeal saw the provisions of the Health Act 1956 as resolving any doubts about the interpretation of s 130.[25] The Health Act assigns particular responsibilities to local authorities in relation to public health. Under s 23, local authorities are required to “improve, promote, and protect public health” within their districts.[26]
[25]New Health (HC), above n 4, at [25]; and New Health (CA), above n 2, at [59].
[26]The Health Act 1920 contained a similar obligation in s 20.
The Health Act was amended in 2008[27] to impose duties on suppliers of drinking water to, among other things, take all practicable steps to comply with drinking‑water standards issued by the Minister of Health.[28] The 2008 amendment inserted a new Part (Part 2A) into the Act.[29] Section 69A(1) sets out the purpose of Part 2A, which is “to protect the health and safety of people and communities by promoting adequate supplies of safe and wholesome drinking water from all drinking-water supplies”.
[27]By the Health (Drinking Water) Amendment Act 2007.
[28]Health Act, s 69V(1).
[29]Health (Drinking Water) Amendment Act, s 7.
Section 69O provides for the Minister of Health to issue or adopt standards applicable to drinking water.[30] The drinking water standard issued pursuant to s 69O specifies that the maximum acceptable value (MAV) for fluoride is 1.5 ppm.[31] The standard includes a comment in relation to fluoride that indicates that the Ministry of Health recommends that fluoride content for drinking water in New Zealand should be in the range of 0.7–1.0 mg/L.[32]
[30]Health Act, s 69O(1)(a).
[31]Ministry of Health Drinking‑water Standards for New Zealand 2005 (Revised 2008) (October 2008) at 8 (Table 2.2).
[32]mg/L stands for milligrams per litre, and is the same as parts per million.
Water that complies with the standards is potable (as that term is defined in s 69G) which in turn means it is “drinking water” as defined in the same section.[33]
[33]Potable is defined as water “that does not contain or exhibit any determinands to any extent that exceeds the maximum acceptable values … specified in the drinking-water standards”. Fluoride is a determinand for the purposes of that definition.
Section 69O(3)(c) provides that the drinking‑water standards “must not include any requirement that fluoride be added to drinking water”. The reason for the inclusion of this provision in Part 2A was explained in the report of the Select Committee which considered the Health (Drinking Water) Amendment Bill 2006, which, when passed, introduced Part 2A into the Health Act.[34] The Select Committee Report said:[35]
New clause 69O sets out the process by which the Minister may issue, adopt, amend or revoke drinking‑water standards. Although new clause 69O or the standards were never intended to enable the mandatory fluoridation of water, in theory it is possible that they might be applied this way. To prevent such a possibility we recommend inserting a new subclause (3)(c).
[34]Health (Drinking Water) Amendment Bill 2006 (52-2) (select committee report).
[35]At 5.
The Report recorded that the Committee had made an amendment to the Bill “explicitly disallowing the mandatory fluoridation of water through the drinking water standards”.[36]
[36]At 2.
Both the High Court and Court of Appeal saw this provision as a strong indication that Parliament specifically authorised the inclusion of fluoride in drinking water and that the purpose of s 69O(3)(c) was to avoid any suggestion that Parliament was requiring a drinking water supplier to fluoridate.[37]
Our analysis
[37]New Health (CA), above n 2, at [45]; and New Health (HC), above n 4, at [36].
New Health took issue with all aspects of the reasoning of the Courts below. Its counsel, Ms Scholtens QC, argued that express authorisation for fluoridation of water was required, and that none appeared in either the LGA 2002 or the Health Act.[38]
[38]In her written submissions Ms Scholtens QC accepted fluoridation could be lawful if authorised by necessary implication from a statutory provision but argued no such implication was “necessary” in this case.
For the Council, Mr Laing supported the reasoning of the Court of Appeal, with one addition. He argued that the starting point for the analysis of the Council’s powers was s 12 of the LGA 2002, the general competence provision.[39]
[39]Section 12 is discussed above at [23].
Mr Laing argued that s 12(2)(a) gives the Council full capacity to do any act for the purpose of performing its role, which in the present context included its role under s 23 of the Health Act to improve, promote and protect public health within its district.[40] The general power of competence in s 12(2) is subject to other provisions of the LGA 2002, other enactments and the general law.[41] Mr Laing argued that there was nothing in the LGA 2002 or the Health Act limiting the Council’s power of competence in relation to fluoridation: in fact the indications in the Health Act are supportive of the power to fluoridate.
[40]See above at [28].
[41]Section 12(3), discussed above at [23].
From that starting point, Mr Laing adopted the analysis of the Court of Appeal, namely that s 130 provided for the continuation of the provision of water which, in the case of councils fluoridating water, contemplated the continuation of the provision of fluoridated water. Thus, he argued, when read together with s 12 (rather than as a standalone provision, as the Court of Appeal had done) s 130 indicated that Parliament’s intention in enacting s 12 was that it included the power to fluoridate. That, in turn, was supported by s 23 and Part 2A of the Health Act, as the Court of Appeal found.
Ms Scholtens argued that s 130 of the LGA 2002 merely provided for local authorities that were providing water in their districts prior to the coming into force of the LGA 2002 to continue to provide water. She said there was no proper basis to imply that this authorised a local authority providing water containing fluoride that had been added for a therapeutic purpose to continue to do so.
We accept that s 130 is essentially a continuation power focusing on ongoing supply of water, rather than an express power to fluoridate. But we consider that s 130 must be read against the background of the general competence power in s 12 of the LGA 2002 and the broader public health powers and responsibilities set out in Parts 2 and 2A of the Health Act. When read in that context, s 130 can be seen as an indication of Parliament’s intention not to change the law in enacting the LGA 2002 to remove from local authorities the power to fluoridate that they were recognised as having immediately prior to the LGA 2002 coming into force.
Ms Scholtens said there was nothing to indicate that Parliament addressed its mind to fluoridation or that it was aware of the Lower Hutt City case when enacting the LGA 2002. However, as Mr Laing submitted, a lack of debate about fluoridation in the parliamentary process leading to the enactment of the LGA 2002 can equally be seen as an indicator of an intention to maintain the status quo. We think it is most unlikely that Parliament was not aware that local authorities serving almost half the population of New Zealand were fluoridating water, following a government policy in favour of fluoridation that had been consistently promulgated for almost 50 years. As noted earlier, fluoridation of drinking water supplies in New Zealand had started in 1954, so fluoridation itself had also been occurring for those 50 years. We consider that a withdrawal of the power of local authorities to fluoridate water would have been more clearly signalled if Parliament had intended that outcome.
Anticipating that response, Ms Scholtens argued that, even if it had been Parliament’s intention to continue the authorisation to fluoridate, it had failed to give effect to that intention when enacting the LGA 2002. As is apparent from the analysis above, we do not agree.
Ms Scholtens argued that the Lower Hutt City case should no longer be seen as good law. She argued the Privy Council had been wrong that fluoridated water remained “pure”: she said HFA and SSF are silicofluorides so are different from calcium fluoride which occurs naturally in water. Their introduction into water introduces impurities. Mr Laing questioned this given the absence of any reference to this in the Lower Hutt City judgments. We do not need to engage with this because the significance of the Lower Hutt City decision is not the detail of the reasoning but that it established that fluoridation was lawful (and had been since the 1950s) and the LGA 2002 was passed against that background.
Ms Scholtens argued that a power to fluoridate would be regulatory or coercive in nature, and would therefore not come within a general power of competence. She argued that, if it were a regulatory power, one would expect to see it dealt with expressly in Part 8 of the LGA 2002, which sets out other specific regulatory powers of local authorities. In the High Court, Rodney Hansen J found that the addition of fluoride could not be classified as regulatory: to the extent there is a regulatory power in relation to fluoridation, it is the power of the Minister of Health to set drinking‑water standards.[42] We agree.
[42]New Health (HC), above n 4, at [43].
Nor do we consider it to be a coercive power. Ms Scholtens also argued it was a coercive power, because it coerced those living in the relevant area to consume fluoridated water. As Mr Laing pointed out, the same could be said about any measure to treat water to make it safe for drinking. The fluoridation power may be contrasted with a power to require action on the part of a person, that is, a power that has similar characteristics to a regulatory power. We do not think a power to treat drinking water to be provided to homes in a local authority area (whether with fluoride or any other substance) is a power of that kind.
Ms Scholtens argued that, because powers in relation to water supply are set out in Part 7 of the LGA 2002, it was necessary to identify a specific power to fluoridate in that part of the LGA 2002. We do not consider there is any reason to read down s 12 in that way. Section 12(3) provides that s 12(2) is subject to other provisions in the LGA 2002 but we do not consider the provisions of Part 7 indicate any limitation on the general competence power in s 12(2).
We see s 23 of the Health Act as an important step in the reasoning, because it defines the “role” of the Council for the purposes of s 12 of the LGA 2002. Section 23 appears in Part 2 of the Health Act, which deals with the powers and duties of local authorities. As already noted, s 23 imposes a duty on local authorities to “improve, promote, and protect public health” within their districts. Section 23(c) empowers and directs local authorities to do various things, including:
(c)if satisfied that any nuisance, or any condition likely to be injurious to health or offensive, exists in the district, to cause all proper steps to be taken to secure the abatement of the nuisance or the removal of the condition:
Mr Laing argued that the duty to improve, promote, and protect public health arises in this case given the evidence of a high level of dental decay among the populations of Waverley and Patea.[43] He also argued that dental decay is a “nuisance” or “condition” coming within this provision. We accept that dental decay is a “condition likely to be injurious to health”, but agree with Ms Scholtens that it cannot be described as a “nuisance”. We agree that s 23 supports the Council’s position that its public health duty under the Health Act includes a duty, with a concomitant power in s 12 of the LGA 2002, to take steps to remove the condition of dental decay.
[43]There was evidence before the High Court from Sandra Pryor, a dentist practising in Hawera and Patea, that she had undertaken a study that indicated the level of tooth decay in teenagers in Patea was very high and tooth decay in Patea was considerably worse than in Hawera, where the water is fluoridated.
Part 2A of the Health Act is also an important aspect of the reasoning. Section 69A(1) of the Health Act says that the purpose of Part 2A is “to protect the health and safety of people and communities by promoting adequate supplies of safe and wholesome drinking water from all drinking-water supplies”. The term “drinking water” is defined as water that is potable or held out as being suitable for drinking.[44] “Potable” means water “that does not contain or exhibit any determinands to any extent that exceeds the maximum acceptable values … specified in the drinking‑water standards”. Determinand is also defined in s 69G. It means:
(a)a substance or organism in water in circumstances where the extent to which any water contains that substance or organism may be determined or estimated reasonably accurately; or
(b)a characteristic or possible characteristic of water in circumstances where the extent to which any water exhibits that characteristic may be determined or estimated reasonably accurately
[44]Section 69G.
“Wholesome” is defined in s 69G as meaning, in relation to drinking water, water that is potable and does not contain or exhibit any determinand in an amount that exceeds the value stated in the guideline values for aesthetic determinands in the drinking‑water standards as being the maximum extent to which drinking water may contain or exhibit the determinand without being likely to have an adverse aesthetic effect on the drinking water. Thus, wholesome water is not only water that is safe to drink (potable) but also is aesthetically pleasing to drink.
Section 69O of the Health Act provides for the Minister of Health to issue drinking‑water standards. The current standards are the Drinking‑water Standards for New Zealand 2005 (Revised 2008). Under s 69O(2), the standards adopted by the Minister may provide for a number of matters including the requirements for drinking water safety and composition.[45] Section 69O(2)(h) provides that the drinking-water standards may deal with “any other matters relating to … drinking water that may affect public health”. Section 69O(3)(c) provides that the drinking‑water standards “must not include any requirement that fluoride be added to drinking water”.
[45]Section 69O(2)(a) and (b).
Thus the provision allowing for drinking‑water standards to provide for matters affecting public health is clarified and qualified by the prohibition on the inclusion in drinking‑water standards of any requirement that fluoride be added to drinking water. The express exclusion of the possibility that the Minister would require a local authority to fluoridate its water supply makes sense only if a local authority was permitted to fluoridate water, otherwise the provision would be redundant. This indicates that the “matters … that may affect public health” that may be provided for in the drinking‑water standards include the public health concern that prompted the Council’s decision to fluoridate drinking water in Patea and Waverley, namely a high level of tooth decay.
We acknowledge the point made by Ms Scholtens that a provision excluding mandatory fluoridation is not the same as a provision authorising fluoridation. We do not see s 69O(3)(c) as an authorising provision. Rather, it provides support for the proposition that fluoridation is otherwise authorised because, unless that is so, s 69O(3)(c) makes no sense.
It is also notable that the drinking‑water standards set the maximum acceptable value for fluoride at 1.5 mg/L.[46] The reference to the maximum acceptable value for fluoride is footnoted with the following footnote:
For oral health reasons, the Ministry of Health recommends that the fluoride content for drinking‑water in New Zealand be in the range of 0.7–1.0 mg/L; this is not a [maximum acceptable value].
[46]Drinking‑water Standards for New Zealand, above n 31, at 8 (Table 2.2). 1.5 mg/L is the same as 1.5 ppm.
Suppliers of drinking water are required under s 69V of the Health Act to take all practicable steps to ensure that the drinking water they supply complies with the drinking‑water standards. Fluoridated water where the fluoride content is between 0.7 and 1.0 ppm is well within the maximum acceptable value of 1.5 ppm.
We conclude that the Council (in common with other local authorities) has power to fluoridate drinking water. The LGA 2002 was enacted against a background that fluoridation was, and had been for decades, lawful. The Council’s general competence power read against that background and alongside the express continuation power in s 130 includes the power to fluoridate. That this is so is confirmed by s 23 and Part 2A of the Health Act, in particular the explicit reference to fluoridation in s 69O(3)(c).
As mentioned earlier, s 12(3) of the LGA 2002 says that s 12(2) is subject to the provisions of any other enactment. New Health argues that the Bill of Rights Act limits the scope of s 12(2). We will revert to that argument after considering whether s 11 of the Bill of Rights Act is engaged.
Does fluoridating water engage s 11 of the Bill of Rights Act?
Section 11 of the Bill of Rights Act provides:
11 Right to refuse to undergo medical treatment
Everyone has the right to refuse to undergo any medical treatment.
Section 11 is one of four provisions grouped under the heading “Life and security of the person”. The others are s 8 (right not to be deprived of life), s 9 (right not to be subjected to torture or cruel treatment) and s 10 (right not to be subjected to medical or scientific experimentation).
New Health’s case is that fluoridation of drinking water involving the addition of a pharmacologically active substance for the purpose of treating and preventing dental decay amounts to medical treatment for the purposes of s 11. Residents of areas where water is fluoridated have no realistic alternative source of drinking water and therefore cannot avoid ingesting the fluoridated water. This means they are unable to refuse to undergo this form of medical treatment, which breaches their right to refuse medical treatment under s 11.
The decisions of the High Court and Court of Appeal
Rodney Hansen J accepted New Health’s submission that the process of fluoridation had a therapeutic objective.[47]
[47]New Health (HC), above n 4, at [58].
Rodney Hansen J considered that fluoridation could not be relevantly distinguished from adding chlorine or any other substance for the purpose of disinfecting drinking water, as both involved adding a chemical compound to the water, both were undertaken for the prevention of disease and it was not material that one worked by adding something to the water while the other achieved its purpose by taking unwanted organisms out of it.[48] He also equated fluoridation with the addition of iodine to salt, the addition of folic acid to bread and the pasteurisation of milk.[49] He did not consider that a person drinking fluoridated water or ingesting iodised salt would normally be described as “undergoing” medical treatment.[50] He saw the contrast between the use of the term “undergo” in s 11 and “subjected to” in ss 9 and 10 as significant.[51]
[48]At [80].
[49]At [81].
[50]At [82].
[51]At [83].
Rodney Hansen J considered that the language of s 11 when read in context suggested that the right to refuse medical treatment was engaged only when treatment took place in the context of a therapeutic relationship in which medical services are provided to an individual.[52] He considered that the extension of s 11 to cover public health measures intended to benefit all or a section of the populace would be a significant step, and did not consider that the language of the Bill of Rights Act supported such an extension, and nor did internationally recognised human rights norms require it.[53] He concluded:[54]
Section 11 ensures that within the context of a therapeutic relationship there is a right to refuse medical treatment. To the extent that public health measures may lead to therapeutic outcomes and constitute medical treatment in the broad sense, an individual has no right to refuse, at least not so as to produce outcomes that will deny others the benefit of such measures.
[52]At [84].
[53]At [85].
[54]At [89].
Rodney Hansen J accepted that if the supply of fluoridated water amounted to medical treatment, a consumer in the relevant area would not have the practical ability to refuse treatment.[55] However he saw the resulting intrusion on an individual’s right to refuse to undergo medical treatment as minimal. He regarded this as relevant to the determination of whether the s 11 right was engaged, rather than whether the infringement was trivial or technical in nature, which would fall for consideration under s 5 of the Bill of Rights Act.[56]
[55]At [94].
[56]At [95].
The Court of Appeal upheld the decision of Rodney Hansen J. It adopted the approach to interpretation of the Bill of Rights Act articulated by Dickson J in relation to the Canadian Charter of Rights and Freedoms (the Canadian Charter) in R v Big M Drug Mart Ltd.[57] In that case Dickson J emphasised that a purposive interpretation was required, taking into account the purpose of the right or freedom in question, the language chosen to articulate it, the historical origins of the concepts enshrined in the right and the meaning and purpose of other specific rights and freedoms with which it is associated. He said that the interpretation should be “a generous rather than a legalistic one” but qualified this by adding that “it is important not to overshoot the actual purpose of the right or freedom in question”.[58]
[57]New Health (CA), above n 2, at [76], citing R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 344.
[58]At 344.
The Court noted that the common law had, prior to the enactment of the Bill of Rights Act, accepted that consent of a patient was a fundamental prerequisite to medical or surgical treatment.[59] It referred to the reference in the White Paper that preceded the Bill of Rights Act to an anticipation that what is now s 11:[60]
… would permit persons to be treated against their will only where this is necessary to protect the health and safety of other persons, and not simply where their refusal of treatment will detrimentally affect their own health.
The Court saw this reference as an indicator that the authors of the White Paper had in mind the interrelated issues of consent to medical treatment or refusal of such consent in a therapeutic setting. The Court noted there was nothing in the White Paper to suggest the idea of medical treatment was being considered in any broader context than the common law already contemplated.[61]
[59]New Health (CA), above n 2, at [79].
[60]At [80], citing Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 [White Paper] at [10.166].
[61]At [81].
The Court of Appeal considered that extending the scope of s 11 to public health measures would necessarily engage a conflict of rights. The Court referred to art 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognises the right to enjoy the highest attainable standard of physical and mental health.[62] New Zealand gives effect to art 12 through the New Zealand Public Health and Disability Act 2000.
[62]At [83], citing the International Covenant on Economic, Social and Cultural Rights 933 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976), art 12. New Zealand is a signatory to this Covenant.
Taking all these factors into account, the Court of Appeal concluded that Rodney Hansen J had been correct to find that the right guaranteed by s 11 to refuse to undergo medical treatment did not extend to public health measures such as fluoridation of drinking water intended to benefit the public at large.[63]
[63]At [87].
The Court of Appeal also referred to the conclusion reached by Rodney Hansen J that the addition of iodine to salt, folic acid to bread and the pasteurisation of milk were equivalent interventions to fluoridation of water in the sense that they are all made to achieve public health benefits. The Court recorded its agreement with that conclusion.[64] The Court also agreed that if fluoridation is medical treatment, it is not realistic to suggest a person could avoid consumption of fluoridated water.[65]
Issues
[64]At [95]–[97].
[65]At [99].
Ms Scholtens took issue with a number of aspects of the Court of Appeal’s decision. She argued:
(a)the natural meaning of the terms “medical” and “treatment” were broad, and included any activity involving medical method and medical purpose which included fluoridation;
(b)if interpreted purposively, s 11 covered all medical treatment whether provided directly or indirectly;
(c)the Courts below were wrong to take into account the potential conflict between s 11 and rights to good public health, because any such conflict fell to be resolved under s 5 of the Bill of Rights Act, rather than as part of the exercise of defining the right recognised in s 11;
(d)in any event, there was, in truth, no conflict between s 11 and rights to good public health, which incorporate a respect for individual autonomy;
(e)the Court of Appeal was wrong to limit the scope of s 11 by reference to the common law that pre‑dated the Bill of Rights Act; and
(f)the Court of Appeal was wrong to say that the term “undergo” denoted something different from “subjected to”, the words used in ss 9 and 10 of the Bill of Rights Act.
Mr Powell, who led this aspect of the argument for the respondents, supported the Court of Appeal’s analysis. His submissions were adopted by Mr Laing for the Council.
Natural meaning
Ms Scholtens said that the natural meaning of the terms “medical” and “treatment” were broad. She noted that the White Paper referred to the term medical being used in a “comprehensive sense”.[66] The Concise Oxford English Dictionary defines medical as “of or relating to the science or practice of medicine”.[67] Similarly, the dictionary definition of “treatment” is “the process or manner of treating someone or something in a certain way”, “medical care for an illness or injury” and “the use of a substance or process to preserve or give particular properties to something”.
[66]White Paper, above n 60, at [10.167].
[67]Judy Pearsall (ed) Concise Oxford English Dictionary (10th ed rev, Oxford University Press, Oxford, 2002), definition of “medical” at 885, and “treatment” at 1527.
Ms Scholtens also referred to Mosby’s Dictionary of Medicine,[68] which emphasises that medical treatment had two essential features, namely a medical purpose and a medical method. She said it was clear that fluoridation had these two features, the purpose being to treat and prevent dental decay and the method being the use of a pharmacologically active substance to promote mineralisation of tooth enamel.
[68]Peter Harris, Sue Nagy and Nicholas Vardaxis Mosby’s Dictionary of Medicine, Nursing and Health Professions – Australian & New Zealand Edition (2nd ed, Elsevier, Chatswood (NSW), 2009).
We agree that fluoridation falls within the description of the concept of medical treatment as defined in the dictionaries referred to by Ms Scholtens, but, as she accepted, the interpretive exercise in relation to s 11 involves a purposive interpretation. That is not necessarily assisted by dictionary definitions.
Direct or indirect treatment
Ms Scholtens argued that a purposive interpretation of s 11 did not support the distinction drawn by the High Court and Court of Appeal between direct and indirect means of administering medical treatment. She noted that s 11 was one of four sections included in the Bill of Rights Act relating to the life and security of a person (ss 8–11, noted earlier).[69] All of these sections are directed towards securing bodily integrity. Section 11 is an example of the principle that every individual has the right to determine for themselves what they do or do not do with their own body. There is no logical reason to exclude from the scope of s 11 indirect medical treatment which can affect bodily integrity as much as direct treatment.
[69]See above at [59].
Ms Scholtens said the purpose of fluoridating water is to treat and prevent dental decay and that has the same purpose and effect as ingestion of fluoride tablets prescribed by a doctor or purchased from a pharmacist. There is no doubt the latter would amount to medical treatment and Ms Scholtens argued that there was no justification for finding that the ingesting of fluoridated water was any different, merely because it was provided on a large scale and as part of a public health programme. She argued there was nothing in the text of s 11 to justify that distinction: indeed, the reference to “any” medical treatment in s 11 suggests the contrary.
We accept that there is nothing in the text of s 11 to exclude indirect medical treatment, but we do not attach any significance to the term “any”. There is in principle no difference between the provision of a pharmacologically active substance for therapeutic purpose through an individual treatment to a single patient and global treatment of the kind resulting from fluoridation. So we accept New Health’s position that the wording of s 11 does not support an exclusion of public health measures. But, as Mr Powell pointed out, the more important issue is whether the scope of s 11 should be limited to exclude situations where the recognition of a right of an individual to refuse treatment through ingesting fluoridated water comes into tension with the rights of others. We will revert to that later.
Conflict of rights
New Health argues that the Courts below adopted an incorrect methodology to take into account the issue of competing rights when determining the scope of the right recognised in s 11 of the Bill of Rights Act.[70] New Health argues that, to the extent there is a conflict between different rights, that was an issue that ought to be addressed in the context of s 5 of the Bill of Rights Act, rather than in the interpretation of the scope of the right itself.
[70]Above at [67].
New Health argued that the approach taken by the Court of Appeal was inconsistent with that taken by a full Court of the Court of Appeal in Ministry of Health v Atkinson.[71] Atkinson dealt with a case concerning s 19 of the Bill of Rights Act (the right to freedom from discrimination). In that case the Court rejected an argument advanced on behalf of the Ministry of Health that matters of justification for discrimination ought to be brought to bear in the determination as to whether differential treatment of a person or group of persons amounts to discrimination, rather than left for consideration under s 5.[72] The Court noted that the reference to “discrimination” in s 19 was not qualified in any way, contrasting it with s 21, which deals with the right to be free from “unreasonable” search and seizure.[73] It is notable that s 11 is also expressed in unqualified terms. The Court determined that the correct approach was to interpret the right to be free from discrimination in light of the text and purpose of the Bill of Rights Act, and then consider matters of justification when dealing with the application of s 5 (determining whether the discrimination – or in the present case compulsory medical treatment – is justified in a free and democratic society). In R v Hansen, the Chief Justice said interpretation of the scope of rights under the Bill of Rights Act and the question of justification under s 5 should be kept separate: the latter was not relevant at the interpretation stage.[74]
[71]Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456.
[72]At [109]–[110].
[73]At [113].
[74]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [18]–[22]. See also Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [6.6.1]–[6.6.10]; and Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 52–56.
Mr Powell accepted that s 5 provides a context in which to balance this conflict. However he argued that it was proper for the Court of Appeal to have asked whether the immediate encountering of such a conflict meant that the s 11 right was not intended to be drawn in a way that engaged that conflict. He emphasised the significance of art 12 of the ICESCR, guaranteeing the right to a minimum standard of health. He said the upholding of an individual’s right not to receive fluoridated water necessarily would cause the health benefits that flow to the community from fluoridation to cease.
Mr Powell also argued that reliance on s 5 to resolve the conflict of rights may be inimical to the protection of human rights. He referred us to the observation of Professor Hogg about the close relationship between the scope of rights and the standard of justification required for the purpose of s 1 of the Canadian Charter of Rights and Freedoms (equivalent to s 5 of the Bill of Rights Act). Professor Hogg noted that the broader the scope of the rights, the more relaxed the standard of justification must be in order to ensure that the right does not protect that which is unworthy of a constitutional guarantee.[75] He added that restricting the scope of rights avoids concerns about “wasteful floods of litigation” and limits the occasions when judges have to review the policy choices of legislative bodies.[76]
[75]Peter Hogg “Interpreting the Charter of Rights: Generosity and Justification” (1990) 28 Osgoode Hall LJ 817.
[76]Peter Hogg Constitutional Law of Canada (5th ed, Carswell, Toronto, 2007) at [36.8(b)].
We consider that the Court of Appeal was wrong to take into account the conflict of rights at the interpretation stage in this case. It is clear that the conflict was a material factor in the Court’s decision to restrict the scope of s 11 to exclude public health measures. That had the effect of potentially excluding from the protection of s 11 public health measures that could, at least hypothetically, involve the mass administration of medication. In the present context, we consider that the resolution of the conflict of rights is better done in the context of s 5. That allows the meaning of “medical treatment” to be determined on the orthodox approach based on text and purpose, taking the generous approach that is adopted in interpreting the Bill of Rights Act. The Crown is then able, if necessary, to justify the provision under challenge under s 5, which allows for a reasoned consideration of the justification and whether it is “demonstrable”. We do not consider that Professor Hogg’s fear of an opening of the floodgates of Bill of Rights Act litigation (in cases involving public health measures) is likely.
Conflict with art 12
New Health argues that the Court of Appeal was wrong to say that s 11 of the Bill of Rights Act would, if interpreted to incorporate public health measures, conflict with art 12 of the ICESCR. On the contrary, if correctly interpreted, art 12 supports New Health’s interpretation of s 11 because it includes a right to be free from non‑consensual medical treatment, and makes no provision for compulsory medical treatment. New Health points to General Comment No 14 to the Covenant, which refers to the right to health containing both freedoms and entitlements, one of which is to be free from non‑consensual medical treatment and experimentation.[77]
[77]United Nations Committee on Economic, Social and Cultural Rights General Comment No 14 to Article 12 of the International Covenant on Economic, Social and Cultural Rights E/C.12/2000/4 (2000) at [8].
We accept this argument as far as it goes, but it seems to us to miss the point that was being made by the Court of Appeal. The underlying assumption made by the Court of Appeal was that the majority of inhabitants in areas with fluoridated water have no objection to it and derive a health benefit from it. If the invocation of s 11 by one or more inhabitants of the area brings about a cessation of fluoridation, then the consenting majority are deprived of the health benefit. If the individual seeking to challenge fluoridation relies on art 12 itself, the same point arises. The objector can claim to be exercising a right under art 12, as can a proponent of fluoridation who wishes to have access to the health benefits it brings.
Common law
At the hearing of the appeal, Ms Scholtens challenged the Court of Appeal’s observation that there was nothing in the White Paper to suggest that the idea of medical treatment in s 11 was being considered in any broader context than the common law already contemplated. She challenged both the basis of this observation (that the common law required a direct therapeutic relationship) and also the assumption that s 11 should do no more than enshrine the common law in the Bill of Rights Act.
The Court of Appeal referred to the decision of the House of Lords in F v West Berkshire Health Authority, which dealt with the lawfulness of a proposed sterilisation operation on F, who was unable to consent due to her mental incapacity. Lord Goff noted that the performance of a medical operation on a person without his or her consent is both a trespass to the person and the criminal offence of battery.[78]
[78]New Health (CA), above n 2, at [79], citing F v West Berkshire Health Authority [1989] 2 All ER 545 (HL) at 564.
The White Paper acknowledged this general rule under existing law.[79] This led the Court of Appeal to conclude that the authors of the White Paper had in mind the interrelated issues of consent to medical treatment or the refusal of such consent in a therapeutic setting and then made the observation, referred to earlier, that there was nothing to suggest that any broader context than this was contemplated by the White Paper.[80]
[79]White Paper, above n 60, at [10.166].
[80]New Health (CA), above n 2, at [81].
Mr Powell argued that the history behind s 11 supported the proposition that the reference to medical treatment in that section was intended to apply only to medical treatment involving the provision of treatment by a practitioner to an individual, where consent could be given or withdrawn. Thus he argued that public health measures were not within s 11. This prompts the obvious concern that this would mean that the addition to water of antibiotics or other medicines to deal with a public health situation would also not be covered by s 11. Mr Powell’s answer to this was that the fact that the scope of s 11 was limited to provision of medical treatment by a practitioner to an individual does not mean that there is no legal control over the provision of, for example, antibiotics through drinking water. Rather, Parliament has chosen to constitutionalise the right to refuse medical treatment in an individual situation, but not in relation to public health measures.
This is a much broader argument than that adopted by William Young J, which excludes fluoridation from the scope of s 11, given the widespread fluoridation that was occurring at the time of the enactment of the Bill of Rights Act and the understanding that this was lawful based on the Lower Hutt City case. The argument put forward by Mr Powell would also exclude from s 11 other inoculation programmes as well as the hypothetical situation referred to earlier, where a medicine is added to the water supply to deal with a public health situation.
We see the position advocated by Mr Powell as placing the history of the provision above the actual wording used in the provision and its underlying purpose. We do not see any basis for reading down the wording of s 11. There was no relevant comment about the content of s 11 during the parliamentary debates that would suggest that the background law was intended to influence the scope of the provision, and it is hard to see why s 11 would be limited in a way that excluded public health treatments, where issues of consent may well loom large.
Mr Powell also argued that other relevant human rights instruments such as the Canadian Charter (s 7), the Constitution of the United States (the 14th Amendment), the International Covenant on Civil and Political Rights[81] (ICCPR) (art 17) and the European Convention on Human Rights[82] (ECHR) (art 8) contain provisions recognising a more generally expressed right to liberty or right to private life, under which the right to refuse to undergo medical treatment has been recognised. He argued that these provisions reflect the same underlying norms as s 11 of the Bill of Rights Act, but none had given protection for a right of the width contended for by New Health in the present case. He noted that arguments based on constitutional protection against the fluoridation of drinking water had not succeeded elsewhere.
[81]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
[82]Convention for the Protection of Human Rights and Fundamental Freedoms ETS No 5 (opened for signature 4 November 1950, entered into force 3 September 1953).
The relevant international authorities are summarised in the judgment of the High Court,[83] and as Rodney Hansen J noted in that judgment, they do not provide much assistance in the interpretation of s 11 of the Bill of Rights Act.[84] We will refer only to the ICCPR and the ECHR.
[83]New Health (HC), above n 4, at [59]–[78].
[84]At [59].
Article 7 of the ICCPR recognises a right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. That general description of the right is followed by the words “[i]n particular, no one shall be subjected without his free consent to medical or scientific experimentation”. It is obvious that s 10 of the Bill of Rights Act is modelled on that aspect of art 7. It is generally recognised that the specific reference to medical experimentation in art 7 was in response to the medical experiments undertaken by Nazi doctors during World War II.[85] Medical treatment without consent, when not reaching the level of degrading or inhuman treatment, was not intended to be covered by art 7.[86] Sir Samuel Hoare from the United Kingdom delegation noted that there were “many instances of perfectly harmless mass experiments which it might be necessary to carry out, such as the addition of fluoride to a water supply”.[87] This observation can be seen as indicating that fluoridation was not intended to be within the scope of art 7, but it can also be seen as an acknowledgment that fluoridation was “medical”. While it would support an argument that fluoridation is not in breach of art 7, we do not see it as providing much assistance in determining whether fluoridation amounts to medical treatment in terms of s 11 of the Bill of Rights Act.
[85]Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev ed, NP Engel, Kehl, 2005) at 188.
[86]At 190.
[87]Summary Record of the 851st Meeting UN GAOR, 3rd Comm, 47th sess, 851st mtg, Agenda Iten 32, UN Doc A/C.3/SR.851 (13 October 1958) at [32] per Sir Samuel Hoare.
Article 8 of the ECHR provides:
(1)Everyone has the right to respect for his private and family life, his home and his correspondence.
(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
This provision was relied on in a challenge to a fluoridation scheme in Switzerland in Jehl‑Doberer v Switzerland.[88] The European Commission accepted that even minor medical treatment amounted to an interference with a person’s right to respect for private life if it was compulsory. But it did not go on to consider whether fluoridation amounted to such medical treatment, because it saw the provision of drinking water as a general service as different from compulsory medical treatment and, in any event, considered that any interference with the right to respect for private life would be justified within the meaning of art 8(2). The European Commission on Human Rights has, however, found that compulsory screening for tuberculosis, involving a chest x‑ray and a tuberculin test amounted to medical treatment that was provided without consent, but also found that it was justified because it was aimed at protecting the health of the child concerned and public health generally.[89] The European Court of Human Rights has also found that compulsory vaccination against diphtheria was contrary to art 8(1) of the ECHR, but found it was justified because it was aimed at the legitimate purpose of preventing the spread of diphtheria.[90] While not directly on point, the recognition of public health measures as amounting to medical treatment without consent with the justification being dealt with at the second stage of determining whether such treatment is justified under art 8(2) supports the approach advocated by New Health in the present case.
“Undergo”
[88]Jehl‑Doberer v Switzerland (17667/91) First Chamber, EComHR 1 September 1993.
[89]Acmanne v Belgium (1984) 40 DR 251.
[90]Solomakhin v Ukraine (24429/03) Fifth Section, ECHR 24 September 2012.
The Court of Appeal saw a distinction between the term “undergo” in s 11 and the term “subjected to” in ss 9 and 10. We do not see this difference in wording as having the significance attributed to it by the Court of Appeal. If the administration of fluoride to a person means that person undergoes medical treatment, as undoubtedly does occur where fluoride tablets are provided for the person to ingest them, then there is no obvious logic in saying that the provision of the same chemical substance by a different methodology (through drinking water) does not also mean that the person undergoes medical treatment.
Conclusion
We conclude that s 11 of the Bill of Rights Act applies to any compulsory medical treatment, whether provided in the course of a practitioner/patient relationship or as a public health measure. We consider that this represents a generous interpretation of s 11 but does not “overshoot” the purpose of the s 11 right.
Reading down s 11 to exclude public health measures would leave open the possibility that compulsory mass medication as a public health measure would not be within the scope of s 11. There is nothing in the wording of s 11 or evident from the statutory purpose to justify such a reading down of the provision. We accept that this interpretation of s 11 may bring within its net some public health measures that are obviously necessary and justified, but such justification is better dealt with under s 5 than in the exercise of interpreting s 11.
Applying this approach, we find that fluoridation of drinking water is the provision of medical treatment. It involves the provision of a pharmacologically active substance for the purpose of treating those who ingest it for dental decay. We agree with the Courts below that people who live or work in areas where fluoridation occurs have no practical option but to ingest the fluoride added to the water. So the treatment is compulsory. While drinking water from a tap is not an activity that would normally be classified as undergoing medical treatment, we do not consider that ingesting fluoride added to water can be said to be qualitatively different from ingesting a fluoride tablet provided by a health practitioner.
We conclude that fluoridation of drinking water requires those drinking the water to undergo medical treatment in circumstances where they are unable to refuse to do so. Subject to s 5, therefore, s 11 of the Bill of Rights Act is engaged.
Is the statutory power to fluoridate a justified limitation on the s 11 right?
Section 5 of the Bill of Rights Act provides:
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Both the High Court and the Court of Appeal adopted the guidance given in R v Hansen when addressing this issue.[91]
[91]New Health (HC), above n 4, at [98] and [101]; New Health (CA), above n 2, at [109] and [112].
In R v Hansen, Tipping J set out a summary of the approach adopted to the application of s 5 and the relationship between ss 4, 5 and 6 of the Bill of Rights Act in a number of steps. He summarised the approach as follows:[92]
Step 1. Ascertain Parliament’s intended meaning.
Step 2.Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
Step 3.If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
Step 4.If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament’s intended meaning prevails.
Step 5.If Parliament’s intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
Step 6.If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.
[92]R v Hansen, above n 74, at [92].
Counsel’s submissions in this Court were also directed to the approach outlined in R v Hansen by Tipping J, with whom Blanchard and McGrath JJ agreed in general terms.[93] Given that, we will apply the same approach.[94]
[93]At [62] per Blanchard J and [192] per McGrath J.
[94]The point was made in Hansen that the approach was not intended to be prescriptive: see Blanchard J at [61] (“The Bill of Rights does not mandate any one method or sequence of application …”); Tipping J at [91] (“This approach, which I regard as principled rather than prescriptive …”) and at [93] (“The Moonen approach [referring to Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) (Moonen No 1)] was not intended to be mandatory”); and McGrath J at [191] (“it will usually be appropriate for a court first to consider whether under s 5 there is scope for a justified limitation …”) and at [192] (“In [Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (CA) (Moonen No 2) at [7]–[12]] the Court of Appeal confirmed that the approach in … Moonen (No 1) was not prescriptive and that other approaches were open”).
We have already undertaken steps 1 and 2 in determining Parliament’s intended meaning and ascertaining that the meaning is apparently inconsistent with s 11 of the Bill of Rights Act. The issue now before us is step 3 of Tipping J’s formulation. The first aspect we will address is whether the limitation on s 11 is prescribed by law.
Is the limit on the right guaranteed by s 11 prescribed by law?
In R v Hansen, McGrath J wrote:[95]
To be prescribed by law, limits must be identifiable and expressed with sufficient precision in an Act of Parliament, subordinate legislation or the common law. The limits must be neither ad hoc nor arbitrary and their nature and consequences must be clear, although the consequences need not be foreseeable with absolute certainty.
[95]At [180] (footnote omitted).
In the present case both the High Court and Court of Appeal adopted that statement of the law.[96]
[96]New Health (HC), above n 4, at [98] ; New Health (CA), above n 2, at [101].
Both the High Court and the Court of Appeal referred to the Canadian Supreme Court decision in Slaight Communications Inc v Davidson and adopted the approach outlined in that decision.[97]
[97]Slaight Communications Inc v Davidson [1989] 1 SCR 1038. See New Health (HC), above n 4, at [99]; and New Health (CA), above n 2, at [105]–[108].
Slaight concerned a decision by an administrative tribunal in relation to an employee who claimed unjust dismissal. Lamer J explained how to approach an order made by the administrative tribunal when determining whether the “prescribed by law” requirement in s 1 of the Canadian Charter (the equivalent of s 5 of the Bill of Rights Act) applied. He said:[98]
[98]At 1079–1080 (emphasis in original). Although he was in dissent, the views of Lamer J were adopted by the majority at 1048 and by Beetz J at 1058.
It would be useful, in my view, to describe the steps that must be taken to determine the validity of an order made by an administrative tribunal, which are as follows.
First, there are two important principles that must be borne in mind:
–an administrative tribunal may not exceed the jurisdiction it has by statute; and
–it must be presumed that legislation conferring an imprecise discretion does not confer the power to infringe the Charter unless that power is conferred expressly or by necessary implication.
The application of these two principles to the exercise of a discretion leads to one of the following two situations:
1.The disputed order was made pursuant to legislation which confers, either expressly or by necessary implication, the power to infringe a protected right.
–It is then necessary to subject the legislation to the test set out in s 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.
2.The legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise discretion and does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter.
–It is then necessary to subject the order made to the test set out in s 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.
– if it is not thus justified, the administrative tribunal has necessarily exceeded its jurisdiction;
–if it is thus justified, on the other hand, then the administrative tribunal has acted within its jurisdiction.
In Wynberg v Ontario, this approach was applied by the Ontario Court of Appeal to a case in which a Minister had exercised a broad discretionary power in a way that was set to breach the rights of children under the Canadian Charter.[99] The Court of Appeal in the judgment under appeal concluded that this was a case coming within situation one of the two categories set out by Lamer J.[100] It concluded that the LGA 2002 and the Health Act, at least by necessary implication, clearly authorised (but did not compel) the fluoridation of drinking water. It added that the same conclusion followed from the inclusion of a maximum acceptable value for fluoride in the Drinking‑water Standards for New Zealand 2005 (Revised 2008) which constitute subordinate legislation authorised by the Health Act.[101] It thus upheld Rodney Hansen J’s conclusion that any limitation on the s 11 right by the provisions authorising fluoridation of drinking water was prescribed by law.[102]
[99]Wynberg v Ontario (2006) 82 OR (3d) 561 (CA).
[100]New Health (CA), above n 2, at [108].
[101]Drinking‑water Standards for New Zealand, above n 31.
[102]New Health (HC), above n 4, at [100].
We have already set out our conclusion that the Council and other local authorities have a power to fluoridate drinking water under the LGA 2002 and the Health Act. We agree with the Court of Appeal that these legislative provisions provide authorisation for the fluoridation of water which is sufficient to meet the requirement that a limitation be “prescribed by law” for the purposes of s 5.[103]
Is the fluoridation power a justified limit on the s 11 right?
[103]As noted above at [5], New Health’s initial challenge to the Council’s decision to exercise the power to fluoridate was not before us.
We now turn to consider whether the power to fluoridate is a reasonable limit on the s 11 right that can be demonstrably justified in a free and democratic society. In R v Hansen, Tipping J also set out what he called a methodology for the application of s 5.[104] This was broadly based on the decision of the Supreme Court of Canada in R v Oakes.[105] Having set out the approach adopted in R v Oakes, Tipping J added:[106]
This approach can be said to raise the following issues:
(a)does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)(i) is the limiting measure rationally connected with its purpose?
(ii)does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(iii)is the limit in due proportion to the importance of the objective?
Approach to s 5
[104]R v Hansen, above n 74, at [103].
[105]R v Oakes [1986] 1 SCR 103.
[106]R v Hansen, above n 74, at [104].
A preliminary question is what approach the Court should take to the s 5 analysis in this case.
The Court of Appeal expressed reluctance to enter the debate on the merits of fluoridation. It noted that the courts are not equipped to determine disputed issues of scientific or technical opinion.[107] It referred to the observation by Tipping J in R v Hansen that the court performs a review function rather than substituting its own view and noted that what it called the approach depends on a variety of circumstances, including the subject matter.[108] Given the nature of the subject matter and the appropriate degree of latitude to be given to parliamentary decisions, the Court of Appeal decided its approach would be to outline the principal evidence before the Court, which would “amount to a broad assessment of the preponderance of the evidence sufficient to address the key issues in terms of the test laid down in Hansen v R”.[109]
[107]New Health (CA), above n 2, at [111].
[108]At [112], citing Hansen, above n 74, at [116]; and at [114], citing Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816 at [70] per Lord Nicholls.
[109]At [115].
New Health challenged the Court of Appeal’s approach. It submitted that the Court erred in allowing latitude to parliamentary decisions because the decision to fluoridate was not debated in the House and there was no s 7 report from the Attorney‑General. New Health also submitted that the Courts below erred by failing to require the Council to demonstrably justify the limit. It emphasised that the Council, as the party seeking to limit the right, bears the onus of justification.
New Health also took issue with the finding that there was a sufficient evidential basis to conclude that the benefits of fluoridation outweighed any potential risks. Ms Scholtens argued that “[a] broad assessment of the preponderance of the evidence should have led the court to a much less certain conclusion”. She did not however articulate what standard was required in this case.
The Council submitted that the Courts below were correct not to resolve the debate about the merits of fluoridation and argued that this Court should adopt the same approach. The Council referred to Tipping J’s comments in Hansen about the “spectrum” of review, “which extends from … major political, social or economic decisions at one end to matters which have a substantial legal content at the other”.[110] The Council emphasised that the provision of a power to fluoridate is highly political.
[110]Hansen, above n 74, at [116].
In Zaoui (No 2) a wide discretion to order deportation by Order in Council under the Immigration Act 1987 was held by the Court, in a unanimous decision written by Keith J, to require consistency with the rights and freedoms contained in the New Zealand Bill of Rights Act (in that case, the rights not to be arbitrarily deprived of life or subject to torture).[334]
[334]Zaoui (No 2) at [90]–[91].
Similarly, in Dotcom, McGrath, William Young, Glazebrook and Arnold JJ proceeded on the basis that “[t]he Bill of Rights Act plays an important role in the interpretation of the scope of powers affecting protected rights that are expressed in broad or general terms”.[335] Referencing Drew v Attorney‑General, they said:[336]
Legislative provisions conferring discretions and powers are, like all statutory provisions, to be read in accordance with s 6 of the Bill of Rights Act, … .
Applying this approach to the interpretation of s 44 of the Mutual Assistance in Criminal Matters Act 1992, they concluded that “[w]hile the terms of s 44 apparently confer broad and unfettered powers of search and seizure, to give effect to such a meaning would constitute an unreasonable and unjustifiable limit on the s 21 right to be free from unreasonable search and seizure”:[337]
In accordance with s 6 of the Bill of Rights Act, s 44 should, so far as possible, be given a meaning consistent with that right.
[335]Dotcom at [100].
[336]At [100] citing Drew v Attorney-General at [68].
[337]At [161].
The application of s 6 in this way is not inconsistent with the approach taken in R v Hansen.[338] The Judges in the majority in Hansen did not purport to lay down an inflexible rule as to methodology in the application of s 6.[339] Nor is such methodology inflexibly applied in the cases, as Cropp, Zaoui (No 2) and Dotcom all indicate.
[338]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
[339]See at [61] per Blanchard J, [91] per Tipping J and [192] per McGrath J.
Hansen was a case where all members of the Court considered that there was only one possible meaning of the provision in question. Blanchard J considered that to be a point of distinction with Moonen (No 1)[340] which explained the different methodology there used.[341] If there had been a continuum of meaning available (as in the assessment in issue in Moonen (No 1) of what is “objectionable”), Tipping J considered that the same approach would have been appropriate.[342]
[340]Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) [Moonen (No 1)].
[341]R v Hansen at [61].
[342]At [94]. Tipping J considered Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 to be such a “continuum” case where the methodology in R v Hansen was not of assistance (see Morse at [68]).
It seems to me that the interpretation point in issue in the present case (whether implication is “necessary” or “proper”) is indeed an assessment of meaning based on a “continuum”, if that distinction is sound (a point on which I have considerable doubt, being of the view that interpretation in conformity with s 6 is required whenever there are different available meanings[343]). In any event, although Tipping J considered that, “logically”[344] the initial task for the court is “to identify the meaning which the statutory provision bears without reference to the preference with which s 6 is concerned” (which he thought arose only in the case of inconsistency), he was of the view that the “initial interpretation exercise”:[345]
… should proceed according to all relevant construction principles, including the proposition inherent in s 6 that a meaning inconsistent with the rights and freedoms affirmed by the Bill of Rights should not lightly be attributed to Parliament.
[343]For the reasons I gave in R v Hansen at [10]–[25].
[344]Since he took the view that s 6 is concerned with meanings which are inconsistent with the rights and freedoms contained in the Bill of Rights (a starting point I think is difficult to take from the language of s 6).
[345]At [88]–[89].
Both Blanchard and McGrath JJ took the view in Hansen that the s 6 preference did not arise until the “natural meaning” of the statutory provision being applied and which “appeared” to be inconsistent with a protected right had been ascertained and found to be an unreasonable limitation not able to be justified in a free and democratic society.[346] Because Hansen was a case where there was only one meaning of the provision which they considered reasonably available, neither Blanchard or McGrath JJ dealt with the way in which the “natural” meaning of the provision was to be ascertained in cases of doubt. They did not need to consider whether the principles of interpretation available in ascertaining the “natural meaning” of a provision included a presumption against limiting rights and freedoms as a principle of legality and a “proposition inherent in s 6”, in the manner allowed by Tipping J.
[346]At [57]–[60] per Blanchard J and [190]–[192] per McGrath J.
In Cropp, the Court held that the statutory rule‑making power authorising rules for the purposes of safety in racing was to be interpreted to be consistent with the requirements of the New Zealand Bill of Rights Act as to freedom from unreasonable search and seizure. As Blanchard J there accepted, if a tenable meaning is consistent with the right or freedom, the correct approach is that taken in the earlier decision of the Court of Appeal in Drew. Under it, a tenable meaning consistent with the right or freedom is “to be preferred to any other meaning”.
In the present case, where the interpretation in issue consists of the implication of authority to act inconsistently with the rights contained in s 11, a presumption against infringement of rights could be displaced only by strong textual and contextual indications that the implication is necessary to fulfil functions unmistakeably conferred. In the absence of such necessity to augment the statute by implication, an interpretation which does not entail such enlargement is clearly one that “can” be given.
This approach seems to me to be supported by the structure and content of the New Zealand Bill of Rights Act and the New Zealand constitution. In New Zealand, Parliament is not prevented from enacting limits or in authorising limitation of rights through subordinate legislation or administrative discretion if it does so clearly. (This is a position to be contrasted with that in Canada where legislation authorising limitation of rights is invalid unless the limitation authorised is justifiable under s 1 of the Charter of Rights and Freedoms.) Strong presumptions against interpretations of legislation that limit rights, including a requirement of necessity before implication of authority to affect rights, are in this way reconciled with the priority given to legislation under s 4 of the New Zealand Bill of Rights Act.
The approach is also consistent with the general obligations imposed by s 3 of the New Zealand Bill of Rights Act that all exercising public power are bound by the New Zealand Bill of Rights Act (a result reached in Canada under the Charter not by direct obligation but by cascading effect of the constitutional fetter on Parliament, as Lamer J explained in Slaight Communications Inc v Davidson[347]). Unless the legislation under which they act clearly authorises them to limit rights, all exercising public power are bound to observe the rights and freedoms in the New Zealand Bill of Rights Act and may not limit rights to achieve ends they might otherwise lawfully seek to achieve. The concept of fundamental rights would otherwise be undermined.
[347]Slaight Communications Inc v Davidson [1989] 1 SCR 1038 at 1077–1079.
It is not appropriate for rights to be limited in application by administrative decision in individual cases unless those making the decisions are clearly authorised by law to limit rights. Legislation which is unmistakeable is valid even if it is inconsistent with the rights and freedoms in the New Zealand Bill of Rights Act or fundamental values of the common law, but such effect must be expressed or a matter of necessary implication.
This approach is also consistent with the requirement in s 5 of the New Zealand Bill of Rights Act that any limitation of rights should be “prescribed by law” as well as being demonstrably justified in a free and democratic society. The reference to “prescribed by law” can only be sensibly understood as a reference to enacted or common law rules, ascertainable in advance, as the policy of prescription in the international covenants is explained.[348] Such rules may be prescribed by primary or subordinate legislation or under rule-making powers (at least where the power to make subordinate legislation or rules permits encroachment on rights explicitly or by necessary implication). They may also be derived from common law remedies such as the defamation remedies provided for protection of reputation or the rules of court which affect the rights to justice contained in s 27 of the New Zealand Bill of Rights Act.
[348]See Steel v United Kingdom (1998) 28 EHRR 603 (EComHR) at 627; and Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 (ECHR) at 256, considered in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [39]. See also Ostrovar v Moldova (2005) 44 EHRR 378 (Section IV, ECHR) at [98]–[101].
The requirement of prescription of law is necessary discipline which prevents the justification under s 5 being treated as a general dispensing power for all those exercising public powers, enabling them to limit rights ad hoc on the basis that the limit proposed in a particular case is “justified in a free and democratic society”. That is inconsistent with the obligations in s 3. The scheme of the New Zealand Bill of Rights Act is that those exercising public powers must observe the rights and freedoms contained in the Bill of Rights unless they are clearly authorised by an enactment to limit rights (in which case the context provided by the authorisation will limit the discretion exercised, as will the “restraint” on wide discretion derived from s 5 of the New Zealand Bill of Rights Act[349]). If the enactment can be given a meaning that does not entail encroachment on rights through individual decision-making, that meaning is to be preferred under s 6.
The Council had no implied statutory authority to add fluoride
[349]As acknowledged by McGrath and Arnold JJ, delivering reasons of themselves and William Young and Glazebrook JJ in Dotcom at [161], importing the “restraint” on wide discretion provided by s 5 of the New Zealand Bill of Rights Act when interpreting the search and seizure powers contained in s 44 of the Mutual Assistance in Criminal Matters Act 1992.
Given the earlier discussion about the statutory powers relied on as the source of an implied authority to add fluoride to water, the context in which they fall to be applied, and the general approach to be taken to interpretation, I can be brief in explaining my conclusion that the Council had no implied statutory authority to add fluoride to the water it supplied.
The scheme of the legislation under the Health Act and the Local Government Act is that the quality of water supplied by local authorities has been controlled since 2008 by the provisions of Part 2A of the Health Act, introduced by s 7 of the Health (Drinking Water) Amendment Act 2007. Where a local authority supplied drinking water as at 25 December 2002, it has been obliged by s 130 of the Local Government Act to continue supply. But neither that Act nor the general powers in s 23 under Part 2 of the Health Act to abate nuisances and remove conditions likely to be injurious to health impose responsibility for setting the standards for potable and wholesome water on local authorities. Nor do they empower local authorities to treat the population of the district for conditions likely to be injurious to health. Standards for water quality are set nationally by the Minister by reference to measurement of identified determinands and on the basis that the standards adopted by the Minister “must not include any requirement that fluoride be added to drinking water”. The public health powers of local authorities under the Health Act are limited to nuisances and conditions in land and waters which are likely to be injurious to health.
(a) Section 130 of the Local Government Act
The requirement of continuity of supply of drinking water contained in s 130 of the Local Government Act does not authorise the fluoridation of the water supplied. Section 130 is contained in Part 7 of the Local Government Act which, as is described above at [271], is concerned with ensuring adequacy of water supply and sanitary services as well as the provision of other public amenities (such as parks, reserves and library membership).[350] Adequacy of water services is assessed in terms of the amount of water available to households and “the extent to which drinking water provided by water supply services meets applicable regulatory standards”.[351] The applicable regulatory standards are those set under s 69O of the Health Act. For the reasons given below at [319]–[322], their purpose is potable water, not wider public health interests affecting the population.
(b) Section 23 of the Health Act
[350]See s 123.
[351]Section 126 (the legislative history of which is discussed above at n 297).
Section 23 of the Health Act (the text of which is set out above at [269]) provides local authorities with broad powers and duties in respect of public health. They include duties to provide reports as required by the Director‑General of Health and, subject to the direction of the Director‑General, to enforce regulations made under the Act and to appoint environmental health officers and other officers (including at the direction of the Director‑General). Section 23 is contained in Part 2 of the Act, concerning the “powers and duties of local authorities”. Section 25, within Part 2, obliges local authorities to provide “sanitary works” if requisitioned to do so by the Minister, including drainage works, sewerage works, waterworks, swimming baths and cemeteries and such other works as it is required to undertake by Order in Council, and under supervision of the Director-General.
The power in s 23 relied upon as supporting an implied power to add fluoride to water supplied by the Council is that contained in s 23(c) which authorises a local authority to take “all proper steps … to secure the abatement” of any “nuisance” or any “condition likely to be injurious to health or offensive” in the district. Lack of fluoride cannot be described as a “nuisance”, a term defined non‑exclusively in s 29 but by reference to conditions likely to be injurious to health, such as through accumulation of rubbish or through the condition of drains or watercourses. All conditions identified as nuisances or potential nuisances are conditions found on land in the district which are or may be injurious to health.
Section 23(c) itself must be read in the context provided by the powers and directions given to a local authority “to improve, promote, and protect public health within its district”. The powers “to secure abatement of nuisances or conditions likely to be injurious to health or offensive” which precede para (c) are the powers in para (a) to “appoint … environmental health officers and other officers” and in para (b) “to cause inspection of its district to be regularly made for the purpose of ascertaining if any nuisances, or any conditions likely to be injurious to health or offensive, exist in the district”. Paragraph (c) follows on from para (b) and uses the same language in providing that the local authority is empowered and directed to secure abatement of any “nuisance or the removal of the condition”, if “satisfied that any nuisance, or any condition likely to be injurious to health or offensive, exists in the district”. In the context of para (b) it is clear that the “condition” the local authority is empowered to remove is similarly one that might be found on inspection of the district. These are not terms readily applicable to aspects of the health of the population in the district. Nor do the terms of the provision suggest that the powers of removal or abatement could include medication of the population.
The remaining paragraphs, (d), (e) and (f), are concerned, respectively, with enforcement of regulations “subject to the direction of the Director‑General”, the making of bylaws for the protection of public health, and the furnishing of reports to the medical officer of health “as to diseases, drinking water, and sanitary conditions within its district as the Director‑General or the medical officer of health may require”. Again, none of these provisions suggest that the local authority could make bylaws for medical treatment of the population in its district.[352] The indications that enforcement of regulations under the Act are under the supervision of the Director‑General and the reporting required to the Director‑General and the medical officer of health as to diseases, drinking water and sanitary conditions within the district suggest that responsibility for public health within the district (except in the limited ways described for elimination of nuisances and conditions likely to be injurious to health or offensive) are reserved to the Director‑General and medical officer of health acting under their powers.
[352]It may be noted additionally that s 155(3) prevents the making of bylaws inconsistent with the New Zealand Bill of Rights Act “notwithstanding section 4 of that Act”.
I consider that s 23(c), read in its own terms and in its immediate context, does not authorise the addition of fluoride to treat dental decay. North P and Turner J were I think right in Attorney-General v Lower Hutt City to take the view that s 23 did not provide the Council with authority to add fluoride.[353] Nor do I accept that s 23(c) describes a function to address health through provision of treatment of the population which justifies use of the general powers of competence contained in s 12 to add fluoride to water.
(c) Section 12 of the Local Government Act
[353]See above at [216] and [254].
I have already described the terms and effect of s 12 above at [274]–[278]. The general competencies provided under s 12 do not enlarge the scope of the functions of local authorities. They are powers which are necessary to enable such functions to be carried out. I take the view that s 130 of the Local Government Act and s 23 of the Health Act do not implicitly confer on local authorities general responsibilities in relation to the health of the population in the district which could justify use of s 12 to add fluoride or other medical treatment to water. Such implied power would be inconsistent with s 12(3) because local authorities are bound to observe s 11 of the New Zealand Bill of Rights Act. The implication of a power to add medical treatment to water, without practical ability of the population to which the water is reticulated to avoid such treatment, is inconsistent with the presumptions of interpretation where fundamental values are affected. Such implication is not necessary in order to make the legislation work, as is required where rights are affected, as is explained above at [282]–[283].
The explanatory note to the Local Government Bill referred to above at [278] indicates that s 12 was not thought to provide “coercive or regulatory powers” over others. That is not easy to square with the view that s 12 would permit treatment without consent through the water supply. An implied power in local authorities to undertake the addition of fluoride or other medical treatment is also inconsistent with the overall legislative scheme in which the Minister of Health has responsibility for regulating the quality of water and local authorities have responsibility for meeting the standards set and providing assessments and reports to demonstrate compliance.
(d) The standards set under Part 2A of the Health Act
The argument for the respondents entails treating the maximum acceptable value as setting a ceiling below which an implied power to add fluoride necessarily arises.[354] The provenance of the maximum level in World Health Organization guidelines applicable to countries with naturally occurring levels of fluoride is not a sound basis for an implied power to add fluoride up to the maximum level specified. The argument would treat the addition of any other determinand as available to a local authority if it promotes public health.
[354]The Council in its submissions says that the Health Act “expressly contemplates that fluoride may be added to drinking water in accordance with drinking water standards”. It says that even if fluoridation limits the s 11 right to refuse medical treatment, “there is no possible alternative interpretation of the [Local Government Act], Health Act, and the drinking water standards that confer the power to fluoridate”.
Nor is such an implied power readily reconcilable with the statutory prohibition on requiring the addition of fluoride in setting standards. I am unable to agree with the view that the fact that the Minister is explicitly prohibited from requiring the addition of fluoride is indication of implicit conferral of such power on the local authority. The only mention of fluoride in Part 2A itself is in respect of s 69O(3)(c). The prohibition on requiring the addition of fluoride through standards would be a very backhanded way to suggest by implication that local authorities nevertheless have a discretion to add fluoride. That is not an explanation given by the Select Committee. The better view is, I think, that the maximum acceptable value simply specifies the levels of fluoride that are treated as contaminants which prevent drinking water attaining the requirements set for safety.
There is in my view no logical inconsistency if a local authority cannot add a substance up to the maximum value allowed by the Minister and the Minister is prevented from requiring addition below that maximum acceptable value. The maximum value set does not carry the necessary implication of a power at the discretion of the supplier to add a determinant up to the maximum value. I do not consider that s 69O says anything about the capacity of local authorities to add fluoride at their discretion relying on their general powers of competence and general and limited responsibilities in relation to public health in their districts.
The purpose of the standards is to set the maximum values for water in order to ensure that it is safe to drink. There is nothing in Part 2A of the Act to suggest a wider public health purpose in regulating the treatment of water. The scheme of the legislation is that regulation to achieve safe drinking water is the responsibility of the Minister while the obligation to supply, maintain existing services, and set up the infrastructure to do so is the responsibility of local government.
(e) Section 11 of the New Zealand Bill of Rights Act
An interpretation of the legislation which recognises an implied power to add fluoride to water is inconsistent with s 11 of the New Zealand Bill of Rights Act. In line with both the common law presumption of interpretation in accordance with fundamental values and the direction contained in s 6 of the New Zealand Bill of Rights Act, the general provisions contained in ss 12 and 130 of the Local Government Act and s 23 of the Health Act cannot properly be construed to contain an implied power to add a substance for health reasons in the absence of explicit statutory authority.
(f)The background provided by Attorney-General v Lower Hutt City does not justify implied power
I am of the view that the background provided by the decision in Attorney‑General v Lower Hutt City (even if correct when decided) does not justify an implication of authority to provide medical treatment without consent in the legislative context since enactment of s 11 of the New Zealand Bill of Rights Act. Attorney‑General v Lower Hutt City was decided at a time when it was thought that fluoridation of municipal water supplies did not engage any protected rights. That is apparent from the report of the 1957 Commission of Inquiry and the Human Rights Commission’s report of 1980 (discussed above at [241]), both of which preceded enactment of the New Zealand Bill of Rights Act and neither of which addressed the right now enacted as s 11.
The provisions of the Local Government Act and the Health Act also now fall to be applied in the legislative context of the scheme of regulation of water to ensure that it is potable contained in Part 2A of the Health Act. Since 2008, Part 2A has made it clear that the obligations on local authorities supplying water are to take reasonable steps to ensure that the standards set by the Minister are met. Those standards are clearly addressed only to the safety of drinking water and not to its “improvement”, as the Privy Council thought available to local authorities obliged to supply “pure” water.[355] I indicate under the next heading that I do not consider that there was a secure foundation for necessary implication of a power to “improve” water that was safe under s 240(1) of the Municipal Corporations Act. The point may perhaps have been clearer under the subsequent legislation with its substitution of an obligation to provide “potable” water instead of “pure” water. But, in any event, the scope of the obligation under Part 2A of the Health Act now makes it quite clear that the standards set by the Minister are concerned with water safety, not more general public health benefits. Still less are they consistent with the imposition of treatment without consent. Compulsory treatment would be a significant power which is inappropriate for implication, as is suggested by the care taken under Part 3A of the Act to ensure compulsion is undertaken only “within a human rights framework” (as described above at [220]).
[355]See the extract quoted above at [253].
Most importantly of all, however, the provisions of the Local Government Act and the Health Act relied on as the sources of implied power now fall to be interpreted in the context of s 11 of the New Zealand Bill of Rights Act.
(g) In any event, Attorney-General v Lower Hutt City is doubtful authority
Quite apart from the basis on which I would distinguish Attorney-General v Lower Hutt City in application of the contemporary provisions, I think there is reason to doubt whether the interpretation of s 240(1) of the Municipal Corporations Act that was accepted in the case could prevail today. Attorney-General v Lower Hutt City was decided at a time when the courts acquiesced in the unrestricted exercise of wide discretionary powers in public law. Such powers have since come to be understood to be constrained by statutory purpose, following cases such as Padfield v Minister of Agriculture, Fisheries and Food[356] and Fiordland Venison Ltd v Minister of Agriculture and Fisheries.[357]
[356]Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL). See also William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press, Oxford, 2014) at 12–13, describing the “deep gloom settled upon administrative law” from which the courts began to emerge in the 1960s.
[357]Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA).
I do not doubt that a power to “construct waterworks for the supply of pure water for the use of the inhabitants of the district” (and for that purpose to draw on the water from rivers, lakes, etc) necessarily entailed obligations to render the water “pure” (or “potable”, as the succeeding legislation had it). That does not seem to me however to do more than empower the council to render the water safe to drink. No wider public health purpose in the supply of water is suggested by the legislation, even when read in the context of s 288 of the Municipal Corporations Act 1954 and s 23 of the Health Act 1956. They describe very general responsibilities in relation to public health with no suggestion of powers to impose fluoride or other medication on the inhabitants of the district.
The Privy Council in Attorney‑General v Lower Hutt City upheld the decision of the Court of Appeal on the basis of what it acknowledged to be a “liberal” construction of the section and on the view that the addition of fluoride “adds no impurity”.[358] A purposive interpretation of the section it seems to me would recognise that “pure water” in context has the meaning “potable water” (as the subsequent legislation made clear) and that the end it sought was safe water. I doubt that an implication of a power to “medicate” (and so “improve”) water could be justified on the current approach to implication of powers (discussed above at [282]–[283]) on the basis that the water “remains not only water but pure water and it becomes a greatly improved and still natural water containing no foreign elements”. The question was not whether “natural water containing no foreign elements” was “pure”. Instead, the real question was whether the Council’s discretionary powers under s 240(1) were limited to making the water potable, that is to say safe to drink.
(h) The presumption of rights-consistent interpretation is not rebutted
[358]See the extract quoted above at [253].
Construing the provisions relied on here as providing power to add fluoride or other medical treatment to water is contrary to the presumption of rights-consistent interpretation. Such presumption cannot be rebutted except by express language or necessary implication. Otherwise rights acknowledged to be fundamental would be “overridden by general or ambiguous words”. Rebuttal may follow however from the purpose of the powers conferred.
In Cropp, the issue for the Court was whether s 29 of the Racing Act 2003, in authorising rules regulating the conduct of racing through rules for “the conduct and control of race meetings, including safety requirements”, authorised the rules in issue which required jockeys to supply samples for the purpose of drug testing. The Court considered that the critical question was whether the drug-testing rules were authorised by the Act “interpreted in accordance with the general law and the Bill of Rights Act”.[359]
[359]Cropp at [24] per Blanchard J giving the reasons of the Court.
Despite the presumption of rights-consistent interpretation, the Court was satisfied in Cropp that a power to make rules for safety in the conduct and control of race meetings, by necessary implication, “authorises the creation of a drug‑testing regime intended to deter drug taking”.[360] The risk to safety in use of drugs by jockeys was very great and the rule‑making authority “expressly authorises rules directed to the safety of racing”[361]:
[31] The “safety requirements” of race meetings on any sensible reading must encompass measures designed to eliminate, or at least minimise, the taking by jockeys of drugs which may induce unsafe riding practices or behaviour, both by detecting and deterring drug taking.
[360]At [32].
[361]At [27].
No comparable contextual rebuttal of the presumption, such as was provided in Cropp by the explicit power to make rules for safety in racing, arises here. The principal source of authority to add fluoride here was a general power of competence in the context of functions which touch on public health in the physical supply of water but in which the safety of the water supplied is the subject of detailed rules made under the statutory scheme contained in Part 2A of the Health Act.
Conclusion
For the reasons given at [323]–[326] and [330]–[333], I do not accept that the presumption of interpretation in conformity with the values contained in s 11 of the New Zealand Bill of Rights Act is displaced by the background provided by the decision in Attorney‑General v Lower Hutt City. That decision is suspect in its own terms, as explained above at [327]–[329]. But in any event it is now inconsistent with the contemporary scheme for water treatment in Part 2A of the Health Act as well as with s 11 of the New Zealand Bill of Rights Act. I consider for the reasons given at [311]–[318] there is no basis upon which to interpret ss 12 and 130 of the Local Government Act and s 23 of the Health Act as providing authority under which local authorities may add fluoride to water. If Parliament wishes to empower local authorities to add fluoride to reticulated water for public health purposes, it can do so clearly. I would accordingly allow the appeal and make a declaration that the Council has no power to add fluoride to the water it supplies.
Solicitors:
Wynn Williams Lawyers, Christchurch for Appellant
Simpson Grierson, Wellington for First Respondent
Crown Law Office, Wellington for Second Respondent
424–426.
[2007] 3 NZLR 91 at [63] per Blanchard J: in relation to interpretation of statutes, “[l]ittle guidance can now be obtained from pre-Bill of Rights cases”.
R v Lord Chancellor, ex parte Witham [1998] QB 575 (QB). It was applied by the High Court of Australia in X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92 and by three members of the Court of Appeal in R v Pora [2001] 2 NZLR 37 (CA).
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