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Supreme Court dismisses appeal challenging legality of fluoridation of drinking water supply by local authorities

June 28, 2018

Contacts

Partners Jonathan Salter
Special Advisors Duncan Laing
Senior Associates Hamish Harwood

Water management Resource Management Act Local government

New Health New Zealand Incorporated v South Taranaki District Council [2018] NZSC 59, [2018] NZSC 60

On 27 June 2018 the Supreme Court issued two judgments of importance for local authorities across New Zealand. 

The judgments addressed several matters arising from a decision by the South Taranaki District Council (Council) to fluoridate the drinking water supply for Patea and Waverley. The Council’s decision was made on the basis of evidence of high levels of dental decay among the resident populations of those towns, consistent with the general approach to fluoridation across much of New Zealand. 

Simpson Grierson were involved throughout the proceedings, with Duncan Laing and Hamish Harwood successfully representing the Council.

The Supreme Court’s first judgment (the “Council appeal”, [2018] NZSC 59) considered:

  • The power of local authorities to fluoridate drinking water supply:
  • Whether the decision to fluoridate engages s 11 of the New Zealand Bill of Rights Act 1990 (BORA), which establishes the “right to refuse to undergo any medical treatment”; and
  • If the s 11 right is engaged, whether fluoridation is a limitation on that right that is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society in terms of s 5 of the BORA.

The second judgment (the “Regulations and Medicines Act appeals”, [2018] NZSC 60) also dismissed the appeal by New Health New Zealand Inc, addressing matters associated with the validity of the Medicines Amendment Regulations 2015 and the Medicines Act 1981. We do not consider those matters further in this update.

Of importance to local authorities, in the “Council appeal”, the following can be considered to have been established:

  • Local authorities have the power to fluoridate drinking water under the Local Government Act 2002 (LGA 2002) and the Health Act 1956, with the power primarily arising from the duties of local authorities relating to public health.
  • The LGA 2002 was enacted against a background that fluoridation was, and had been for decades, lawful.  The Council’s general competence power in section 12(2), read against that background and alongside the express continuation power in s 130, includes the power to fluoridate.
  • The fluoridation of drinking water is medical treatment for the purposes of s 11 of the BORA.
  • Despite fluoridation of water supply engaging s 11 of the BORA, the legislative provisions allowing such fluoridation limit that right to an extent that is demonstrably justified in a free and democratic society, for the purposes of s 5 of the BORA.
  • The “demonstrable justification” aspect of s 5 was established on the basis of the evidence before the High Court, and two other reports that were considered by the Court of Appeal, which indicated that dental decay in New Zealand is a significant problem and that the situation in Patea and Waverly worse than in other parts of the county. The Court held that the “objective of preventing and reducing dental decay is sufficiently important to justify a limitation on the s 11 right, assuming that this can be done in a manner that is otherwise justified. Given the minor limitation of the s 11 right inherent in fluoridation, we do not consider that this conclusion gives inadequate recognition to the values of bodily integrity inherent in the s 11 right”.

While the appeal was dismissed by a majority of the Supreme Court, the reasoning given varied. The joint judgment issued by O’Regan and Ellen France JJ is summarised above, with separate judgments by Glazebrook J and William Young J which depart from the O’Regan and Ellen France JJ on certain matters (including Glazebrook J, who considered that whether s 5 is satisfied depends on local conditions). The dissenting judgment was issued by Elias CJ, who held that local authorities do not have the authority to add fluoride to water.