Court determined it was not unlawful for the district council to comply with the director-general’s directive
The High Court has declined various groups' requests for an urgent injunction to halt the fluoridation of Hastings' urban water supply.
The court dismissed the application for judicial review, ruling it was not unlawful for the Hastings District Council to comply with the direction from the director-general, even while it was being reconsidered due to an error of law. Neither section 6 of the New Zealand Bill of Rights Act 1990 nor the principle of legality required that the council have the discretion to ignore the direction. The court found ample evidence supporting the council's decision not to seek an extension to comply with the direction and for the Director-General not to offer one.
In 2022, the director-general directed the Hastings District Council and 13 other local authorities to add fluoride to their water supplies. The council resumed fluoridation on April 8, 2024, in compliance with this direction. The legality of water fluoridation has been extensively debated in New Zealand courts, with challenges by New Health New Zealand Incorporated. In 2018, the Supreme Court concluded that fluoridation is lawful and legislation supported.
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In December 2021, the Health (Fluoridation of Drinking Water) Amendment Act 2021 granted the director-general the authority to direct local authorities to fluoridate drinking water. Local authorities must comply, facing significant penalties for contravention. In November 2023, during a judicial review of the direction, the court ruled that the director-general must reassess the directions' compliance with the Bill of Rights. This reassessment is ongoing, and the director-general and the attorney-general have appealed the decision.
The applicants argued that the council’s decision to fluoridate was unlawful without a proper Bill of Rights analysis by the director-general. They sought declarations that the council's compliance with the direction was unlawful. The court ruled that the direction remains valid despite the error of law. Consequently, acting on the direction was not presumptively unlawful.
The court also addressed whether section 6 of the Bill of Rights or the principle of legality supported the applicants' interpretation of section 116I. The applicants argued that the council had discretion not to comply with the direction due to the Bill of Rights. However, the court found that the legislative intent was clear: the director-general, as the senior public health expert, makes decisions about fluoridation, not local authorities.
The High Court rejected the applicants' arguments, ruling that the council's compliance with the direction was lawful. The court found no basis to interpret section 116I in a way that would provide the council with discretion contrary to the clear legislative intent. It also concluded ample evidence supported the council's decision not to seek an extension for compliance. Additionally, the court addressed the applicants' contention regarding the director-general’s failure to offer an extension. The judge found a rational basis for the director-general's decision not to offer an extension and noted this decision clarifies any uncertainty created by the previous decision.
The High Court dismissed the application for judicial review, upholding the legality of the Hastings District Council’s compliance with the director-general's direction to fluoridate the water supply.