Judicial review of Hastings District Council’s decision to recommence fluoridation of its water supply in accordance with direction from Director-General of Health – Health (Flouridation of Drinking Water) Amendment Act 2021, ss 116E, 116I – New Zealand Bill of Rights Act 1990, ss 5, 6, 11 – was it unlawful for the council to comply with the direction when it was under reconsideration by the director-general? –  does the Bill of Rights, or the principle of legality, require s 116I to be interpreted as giving the council a discretion as to whether to comply? –  was there a rational basis for the council’s decision not to seek an extension of the deadline to comply and for the director-general not to offer one?

Flouride Action Network (NZ) Inc v Hastings District Council [2024] NZHC 1313 per La Hood J

On 27 July 2022, the Director-General of Health directed Hastings District Council, along with 13 other local authorities, to add fluoride to its water supply. The direction was made pursuant to the Health (Flouridation of Drinking Water) Amendment Act 2021, which provides that a local authority must comply (it being an offence to contravene a direction).

The director-general’s directions to all the local authorities were the subject of a judicial review challenge brought by New Health New Zealand Inc in 2023.  In November 2023, Radich J concluded that the director-general was required to turn his mind to whether the directions were a reasonable limit on the right to refuse medical treatment (s 11 Bill of Rights) and provide reasons if satisfied that they were. The director-general was instructed to undertake this analysis. This is ongoing.  The director-general and the Attorney-General appealed this judgment. The appeal is scheduled to be heard by a Full Bench of the Court of Appeal in June 2025.

In February 2024, Radich J issued a relief judgment. He declined to quash the direction and confirmed that it continued to have effect unless and until revoked or amended by the director-general.

On 8 April 2024, the Hastings District Council recommenced fluoridation in accordance with the direction. The following day, the Flouride Action Network (NZ) Inc and New Zealand Doctors Speaking Out with Science Inc applied for an urgent injunction to halt the fluoridation. The parties agreed to move to an expedited substantive judicial review hearing.

Applicable principles: Health (Flouridation of Drinking Water) Amendment Act 2021, s 116E, 116I – New Zealand Bill of Rights Act 1990, ss 5, 6, 11 – was it unlawful for the council to comply with the direction when it was under reconsideration by the director-general due to an error of law? – does the Bill of Rights, or the principle of legality, require s 116I to be interpreted as giving the council a discretion as to whether to comply with the direction? – was there a rational basis for the council’s decision not to seek an extension of the deadline to comply with the direction, and for the director-general not to offer one?

Held: The application for judicial review is dismissed.  The legal effect of Radich J’s decision is that acting upon the direction is not presumptively unlawful. Neither s 6 Bill of Rights, nor the principle of legality, require the legislation to be interpreted so as to give the council a discretion whether to comply with the direction. There is ample evidence to provide a rational basis for the council’s decision not to seek an extension of the deadline to comply and for the director-general to not offer one.

Flouride Action Network (NZ) Ltd v Hastings District Council [2024] NZHC 1313