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Public officials must consider Bill of Rights Act head-on when exercising powers

8 Mar 2024

| Author: Sonia Pinto

Judicial review – New Zealand Bill of Rights Act 1990 – fluoridated water – Health Act 1956 – right to refuse medical treatment – demonstrably justified limit – procedural obligation and substantive constraint – failure to consider Bill of Rights Act before issuing decision – error of law

New Health New Zealand Incorporated v Director-General of Health & Attorney-General [2023] NZHC 3183 per Radich J.

 

A recent High Court decision has determined the then Director-General of Health (DG), Dr Ashley Bloomfield, acted unlawfully by failing to consider the New Zealand Bill of Rights Act 1990 before directing that 14 local authorities introduce fluoride into their communities’ drinking water.

On a preliminary question of law, one which hadn’t specifically been addressed in the Act’s 33-year history, Radich J ruled that such a consideration was a procedural obligation before the DG issued his directives under s 116E of the Health Act 1956.

Consumer-focused health organization New Health, which is opposed to fluoridated drinking water, asked the DG in May 2023 whether he had considered the application of s 11 of the Bill of Rights Act – the right to refuse medical treatment – when he issued his fluoridation directives.

The DG accepted that no explicit reference to the Act was made in the decision-making documents. However, it wasn’t the case that he had to consider the Bill of Rights Act. Based on legal advice, an engaged right wasn’t a mandatory relevant consideration as there was nothing in Part 5A of the Health Act (which empowered the DG to issue directions) requiring the DG turn his mind to it.

New Health NZ filed judicial review proceedings challenging the legality of the orders. The parties agreed to address an initial legal question: whether public officials exercising discretionary powers had to consider the impact of the Bill of Rights Act on their decisions.

The plaintiff argued the DG was obliged to explicitly consider and justify any limitation on s 11 as part of his decision-making process. His failure to turn his mind to the right to refuse medical treatment, and then to justify his decision as a reasonable limit under s 5 of the Bill of Rights Act, was an error of law.

Counsel for the DG said the question was whether the Bill of Rights Act imposed a procedural obligation on decision-makers to consider relevant rights or worked as a substantive constraint to ensure the ultimate decision was rights-consistent. The experience of overseas jurisdictions suggested no such obligation should be recognised. Given the legally enforceable nature of human rights, the focus must be on substantive assessments of rights compliance – not on the creation of procedural obligations.

Radich J held it was “sufficiently clear”, based on New Zealand case law, that a mixed approach of process and outcome has been followed. Where discretionary decisions made by public officials might restrict rights under the Act:

  • the decision-makers must address the restriction and consider whether it is demonstrably justified under s 5; and
  • the court must be satisfied that any such restriction is so justified.

Radich J deemed the first of the two requirements a mandatory relevant consideration, although both would often go hand in hand and should be pleaded, and considered by the court, together.

Even if the first of the two requirements is pleaded as an isolated question, both requirements would need to be addressed by the court because it would have to consider the exercise of its discretion to grant relief if the claimant succeeded. One of the factors for granting relief is that it must serve a possible practical value. “A Court will not be likely to exercise its coercive powers to no purpose,” Radich J said.

The decision-maker’s initial rights assessment will, and should, help the court’s own independent assessment. Radich J said an essential part of the Bill of Rights Act scheme is that “a shot must be taken at the target by the decision-maker in the first instance before the Court comes to see where it lands”.

The Crown argued such an approach would overburden the administrative decision-making process. However, the court disagreed – an obligation to consider rights and freedoms and whether the limits can be demonstrably justified if they might be impugned, need not be an undue burden and would enhance rights by promoting a “culture of justification”. “It should be perceived as a positive and integral part of a society in which fundamental rights are defined and cannot be limited arbitrarily,” Radich J said.

“While the Court must make the ultimate decision under the Bill of Rights Act, an essential component of New Zealand’s Bill of Rights Act obligations is for decision-makers to use rights-focused lenses when making decisions and to demonstrate that the lenses have been attached.”

 

Applicable principles: judicial review – New Zealand Bill of Rights Act 1990 – right to refuse medical treatment – demonstrable limit – whether decision-maker turned his mind to whether each direction was a reasonable limit on the right to refuse medical treatment – whether the decision-maker needed to be satisfied of the reasonable limit – whether the decision-maker had to explain why he was satisfied.

 

Held: The Director-General was required to turn his mind to whether the directions given to the 14 local authorities under s 116E of the Health Act were in each case a reasonable limit on the right to refuse medical treatment, he needed to be satisfied that they were and, if satisfied he needed to say why so.

The parties didn’t address the question of relief if the ground of review was made out. The prayer for relief was “an order setting aside each direction”. A balanced assessment of the nature and the extent of both procedural and substantive shortcomings was needed. Radich J left it to the parties to consider whether agreement on outcome could be reached under r10.17 of the High Court Rules 2016.

 

New Health New Zealand Incorporated v Director-General of Health [2023] NZHC 3183.

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