Crown appeals High Court decision that requires Bill of Rights to be considered

On Wednesday (4th June) the Court of Appeal heard the appeal by the Crown that a High Court Ruling made in November 2023, that decision makers had to consider the New Zealand Bill of Rights Act (BORA) before making a decision, should be overturned. The Crown argued that there should be no mandatory analysis of BORA and that courts can decide whether a decision breaches BORA or not, without the decision maker having to provide their reasoning on why they consider it a justified limitation (i.e. they consider their decision, which overrides of a right in BORA, to be justified).

The Human Rights Commission sought to intervene as it considered the case involved an important principle of BORA law. Its submissions were essentially on the basis that Justice Radich’s High Court decision was right – that every decision maker needs to consider NZBORA when making a decision. This was on a proportionate scale – that a librarian considering whether a T-shirt logo was offensive enough to ban an individual from the library compared with a senior Government official with a full legal team adding a known neurotoxin to the water supply affecting millions of people.

This would probably seem axiomatic in a country like the USA where the Bill of Rights is supreme law, being part of the Constitution.

The Crown’s position, as expressed in Court, appears to be that it is too much of a burden to consider rights when making decisions and this requirement should be thrown in the “too hard basket”. It argued that the librarian would be put to the same standard as the Government official, yet the High Court decision under appeal clearly precluded that.

Part of the argument was that once parliament has passed a law (such as s116E of the Health Act, being the relevant one in this case) that it must automatically conclude that Parliament must have done an adequate BORA analysis. Yet we have section 7A of BORA that sets out a procedure to cater for cases where the Court issues a declaration that legislation is inconsistent with BORA. There would be no need for this section (added in 2022) if Parliament was not aware that legislation could be enacted but later declared by a court to be inconsistent with BORA.

Under the Crown’s submissions it is difficult to see how a case would come before the Court to be able to issue such a declaration since they argued that the court should assume a NZBORA analysis was already completed.

The Crown lawyer was trying to put the cart before the horse, saying that the Court should only consider the substantive issue of whether there actually was a breach of BORA, without there being available to it any analysis by the decision maker as to why they had come to that decision.
Alternatively, the decision maker should just assume there is no breach (as per the argument above) and let anyone affected find $100K+ to take it to Court. Lawyer for New Health New Zealand argued this would put justice out of the reach of most New Zealanders.

Existing case law before the Court (regarding a local Council banning gang patches) completely contradicts the Crown’s position, holding that the decision maker still needed to consider the scope of the ban and whether that scope was justified under s5 BORA.

Background: in 2018 the NZ Supreme Court ruled that water fluoridation constituted compulsory medical treatment for the purposes of BORA, but did not reach a consensus on whether it was a justified limitation or not (under section 5).

In responding to the statement of claim in the current New Health New Zealand case against the Director General of Health’s (DGH) directives, the Crown claimed it didn’t have to address section 5 of BORA as the Supreme Court had already ruled in 2018 that fluoridation was a justified limitation on the right to refuse medical treatment. In fact, it had ruled no such thing. The High court wanted the issue resolved so that appropriate arguments could be presented to it at the substantive hearing. This BORA issue was therefore considered on its own as a preliminary issue. The ruling by Justice Radich was the (correct in our view) finding that of course the DGH had to consider BORA and ordered the new DGH to do so. The directives were not put on hold (for primarily practical reasons). As an aside, this addresses the Crown’s false submission that this approach would lead to halting every decision on a whim. To follow the Crown’s position in the appeal hearing would mean that the High Court would hear the substantive case without any input from the DGH as to the basis of claiming the directives were BORA-consistent – a clearly untenable position for the Court.

The Director-General did prepare a BORA analysis after being ordered to by the High Court, but it is still for the Court to decide whether the limitation on the right to refuse to undergo medical treatment is justified.

A US Federal Court ruled in 2024 that water fluoridation posed an unacceptable risk to human health, and the latest gold standard review on alleged benefit found little to no scientific basis for fluoridation promoters’ claims.