OPINION
New Zealand Doctors Speaking Out with Science
The New Zealand Bill of Rights Act (BORA) provides crucial protection for human rights in New Zealand. The Act, passed in 1990, affirms, protects, and promotes our human rights and fundamental freedoms and was designed to protect New Zealanders against the actions of the State. In this commentary, we detail the recent court case and the significance of the BORA in this decades-old debate.
Report from Court (Wellington High Court 16 May 2024)
Does the NZ Bill of Rights mean anything?
That was the question asked by lawyer Sue Grey at the recent judicial review of the Hastings District Council (HDC) decision to fluoridate the Hastings water supply.
Legal Background
Hastings District Council (along with 13 other councils) was directed to fluoridate its water supply by the Director-General of Health (DGoH) Dr Ashley Bloomfield in July 2022.
Following a legal challenge by New Health NZ, the High Court in Wellington ruled on 10 November 2023 that the directives from the DGoH were unlawful as fluoridation is compulsory medical treatment that breaches section 11 of the New Zealand Bill of Rights Act (BORA).
On 16 February 2024, the judge ruled that the DGoH was required to undertake a BORA analysis of water fluoridation and to take into consideration the views of the plaintiff, New Health New Zealand.
Hastings
In the context of this background, the HDC and three other councils were sent a letter from Fluoride Free NZ (FFNZ) on 14 Mar 2024 advising them of the outstanding legal issues and asking that they write to the Ministry of Health and request that all plans to implement fluoridation be put on hold until the New Health New Zealand case had been completed, or at very least until 31 December 2024 when the situation could be reviewed.
The councils were advised that Nelson City Council had been granted an extension due to its concerns over potential legal action.
Members of the Hawkes Bay community had been asking for several months to be notified of the date that fluoridation would commence. However, the HDC only advised in early April 2024 that water fluoridation would be turned on the following week.
Fluoride Free Hastings asked the HDC on 5th April to refrain from restarting fluoridation and to apply for an extension until the legal BORA issues were sorted.
This overlapped with email communications from lawyer Sue Grey to HDC also asking that HDC not recommence fluoridation. She explained that there was no urgency after an 8-year hiatus.
However, HDC advised that it did ‘not intend to delay the reintroduction of supplementary fluoride into the main urban supply’. [It should be noted that fluoride is not a nutrient and therefore suggesting it is a ‘supplement’ is inaccurate.] Legal counsel for the Council explained that HDC was under instruction from the DGoH to fluoridate the water supply and it had no option but to comply with the directive (effectively it was ‘just following orders’).
The HDC was advised that legal action would be taken by citizens concerned about the harmful effects of fluoride on the brains of newborn and in utero babies if fluoridation commenced.
Fluoridation chemicals have been added to Hastings water supply since 8 Apr 2024.
NZDSOS and FFNZ moved quickly to write up and present evidence to protect the rights and well-being of Hastings citizens.
Court Hearing:
On 16 May 2024, His Honour Justice La Hood presided over the hearing in the Wellington High Court, in front of a packed gallery.
Applicant’s case:
Lawyer Sue Grey’s argument was that the purpose of the NZ BORA was to protect the citizens of NZ from government overreach and that in the hierarchy of NZ legislation NZ BORA is supreme and overrides other legislation such as Acts of parliaments and directives (both lawful and unlawful).
She explained that in the case of water fluoridation the chemicals being added to community drinking water ‘are not medicines’ for the purposes of the Medicines Regulations 1984 and are therefore not subject to assessment or regulation by Medsafe and do not have to conform to Good Manufacturing Practice.
The HDC is adding Hydrofluorosilicic acid (HFA) to the water supply which comes with an industrial Safety Data Sheet. There are no Medsafe datasheets for fluoridation chemicals to provide the sort of information that medical practitioners would usually want to know when recommending medications.
She described fluoride correctly as a neurotoxic waste product of the fertiliser industry.
Lawyer Grey pointed out that with medicines prescribed by doctors there is a dose and timing specified on the prescription that is individualised according to need, weight, kidney and/or liver function etc. In addition, the prescriber undertakes any monitoring that may be appropriate.
With water fluoridation the dose can be very variable and there is no consideration for individual variation or ability to metabolise and excrete the product and no monitoring of health effects. Without Medsafe oversight there need to be other protections in place for citizens.
Grey argued that Radich J in Feb 2024 could not have meant that councils should follow an unlawful directive by actually adding fluoride to the water. However, by not quashing the directive, he allowed councils to continue with infrastructure work in case the BORA assessment found that adding fluoride was a demonstrably justified limitation on the right to decline medical treatment.
Grey also argued that in the absence of a BORA assessment by the DGoH, the onus was on the HDC to do its own BORA analysis prior to adding medication to drinking water. She also noted it had been 6 months since the directive was deemed unlawful and 3 months since the DGoH was ordered to undertake a BORA assessment and there was no sign of an assessment pending.
She posed the question, where else do the citizens go when their voices are not being heard?
Respondent’s case:
The Crown lawyer (Jason Varuhas) argued that although the directive to add fluoride to the water had been deemed unlawful (due to no BORA assessment), it was still valid as Radich J had not quashed it. And by being ‘valid’ it continued to have legal effect.
He argued repeatedly that the HDC was bound to follow the directive even though it was unlawful because that is what the legislation stated. In fact, he used the word ‘comply’ in various forms more than 25 times during his oral submission. ‘Comply’ was also liberally sprinkled throughout written submissions:
- are required to comply
- legally required to comply
- local authority must comply
- making a failure to comply with a direction an offence
- would act unlawfully if it did not comply
- does not have a choice or discretion whether to comply
- statutory responsibility to comply
- bodies simply “must comply”
The crown labelled the omission of a BORA assessment as a ‘procedural error’ and proceeded on the basis that the BORA assessment would determine that fluoridation of community water was justified. It did not seem to occur to the Crown and HDC lawyers that the DGoH’s BORA assessment might find that the neurotoxic effect of fluoride on babies’ brains, or the endocrine disruption to thyroid glands (especially when fluoride and chlorine are used in combination) or other adverse effects might outweigh any perceived benefits on children’s teeth, or that there were alternative, more effective and more rights’ compliant ways of reducing the rates of childhood dental decay.
The Crown lawyer explained that the reason for the decision being moved to the DGoH was that councils were increasingly being approached by concerned citizens (labelled by him as ‘minority groups’, ‘anti-fluoride campaigners’, ‘significant local opposition’). Generally, these were citizens who understood and could articulate the scientific concerns. Meanwhile, the councils felt inadequately resourced to respond to their concerns. The councils did not want to be making medical decisions that they did not feel equipped to make (and perhaps did not want to be practising medicine without a licence!).
It was noted that with this centralisation of power and decision making, input from communities and concerned citizens was not possible.
The HDC lawyer (Hamish Harwood) argued that there was no decision amendable to judicial review. The HDC had not made a decision, rather it was merely following the directive and had no choice or power to apply for an extension. He noted that the HDC would have fallen into the category of councils which were directed to continue water fluoridation had the Campylobacter outbreak of 2016 not occurred.
Judge’s comments:
The judge made a good point that there are provisions in the Act that allow councils to make independent decisions to fluoridate their water but they are unable to make an independent decision NOT to fluoridate the water.
He also pointed out that a decision NOT to fluoridate might be reached when the BORA analysis is finally completed.
Summing up:
In her summing up, Sue Grey was very clear that the judge needed to put the Bill of Rights in its rightful place in the hierarchy of laws and uphold one of the few protections citizens of NZ have from overreach by their government. She read out s5 of BORA* and emphasised that by approaching the councils of NZ with their concerns the citizens were exercising their democratic rights, but they were not being heard and hence the need to turn to the courts for help.
She noted that other NZ councils had stepped up to protect citizens and had asked for extensions until the BORA assessment had been completed.
She left the court with the question:
Does the NZ Bill of Rights matter or not?
That is a question we all want to know the answer to, particularly in light of the last four years. We look forward to Justice La Hood’s judgment.
* s5 of BORA
5 Justified limitations
“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.”
