A case about putting fluoride in water supplies led to a High Court decision that would impose a new level of complexity on all kinds of decision makers, the Court of Appeal has been told.
A “full court” of five judges — reserved for cases of exceptional importance — was convened to hear legal argument on Wednesday. For the first time all five judges were women.
The Director-General of Health and the Attorney-General appealed against a High Court judgment that former Director-General Sir Ashley Bloomfield should have considered the Bill of Rights implications before directing 14 local authorities to add fluoride to water supplies.
Opponents said drinking fluoridated water amounted to medical treatment which, under the Bill of Rights, they had the right to refuse.
The High Court decided the fluoridation directions had to be reconsidered to assess whether they were reasonable limits on the right.
Lawyer Jason Varuhas, for the director-general and the attorney-general, said if the High Court decision was upheld it meant a decision could be unlawful no matter correct it was.
He said it would add complexity at all levels of government from Conservation rangers to the Governor General. The duty to consider Bill of Rights factors when making decisions would fall on thousands of decision makers, he said.
It would impose a legalistic requirement on all officials regardless of whether they had legal training. He gave the example of corrections officers having to make a range of decisions affecting rights, and having to keep a written record of factors they took into account.
It was overkill to overturn a decision for “want of form” when the decision substantively complied, Varuhas said.
The background to the fluoride decision was that Parliament had passed a law giving the director-general the power to tell local authorities to add fluoride to water systems, on the basis that it complied with the Bill of Rights.
The appeal was against New Health New Zealand, a group that has lobbied and taken other court cases objecting to fluoridation.
Its lawyer, Lisa Hansen, said the Crown’s approach would mean decision makers would disregard Bill of Rights factors and take their chances on whether people or organisations who were affected had the resources to challenge the decisions.
Previous court decisions made clear that Bill of Rights considerations were part of the decision-making process, she said.
The Crown over-stated the practical problems that might arise, she said.
And while fluoridation had been approved in principle, the director-general still had to make his own assessment of whether it was needed, or whether something like a tooth brushing programme in schools might be a suitable alternative, Hansen said.
After 35 years of working with the Bill of Rights Act the public service had no excuse to ignore a legal obligation, she said.
The Human Rights Commission supported the High Court decision. Its lawyer Andrew Butler, KC, said the practical problems the Crown suggested could be addressed if they arose.
A human rights focus favoured a duty to consider Bill of Rights factors as part of the decision making process.
The court of president Justice Christine French, Justice Patricia Courtney, Justice Sarah Katz, Justice Jill Mallon, and Justice Susan Thomas, reserved its decision.
Original article online at: https://www.thepost.co.nz/nz-news/360710744/legal-firsts-fluoride-case