NEW HEALTH NEW ZEALAND INC v DIRECTOR-GENERAL OF HEALTH [2023] NZHC 3183_x000b_

NEW HEALTH NEW ZEALAND INC v DIRECTOR-GENERAL OF HEALTH [2023] NZHC 3183[10 November 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-330[2023] NZHC 3183UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesIN THE MATTER of an application for judicial review ofdirections made by the Director-General ofHealth under section 116E(1) of the HealthAct 1956BETWEEN NEW HEALTH NEW ZEALANDINCORPORATEDPlaintiffAND DIRECTOR-GENERAL OF HEALTHFirst DefendantATTORNEY-GENERALSecond DefendantHearing: 18 September 2023Counsel: L M Hansen and C F J Reid for PlaintiffA M Powell and K M Eckersley for First and Second DefendantsJudgment: 10 November 2023JUDGMENT OF RADICH JTable of ContentsParagraphIntroduction [1]The preliminary issue in context [4]Background [16]New Health v South Taranaki District Council – section 11 ofthe Bill of Rights Act is engaged [16]Part 5A of the Health Act [23]The Director-General's decision [27]Positions of the parties [31]Consideration of the issue in New Zealand [40]The position in the United Kingdom [55]The position in Canada [75]Discussion [84]Was the Director-General required to undertake a rights assessment? [84]Did the Director-General undertake a rights assessment? [104]Relief? [110]Result [116]_______________________Introduction[1] In a decision on 27 July 2022, the Director-General of Health (the Director-General) gave directions to 14 local authorities under s 116E of the Health Act 1956to add fluoride to their drinking water supplies (the decision).[2] Fluoridation is a limit on the right in s 11 of the New Zealand Bill of RightsAct 1990 (the Bill of Rights Act) to refuse medical treatment.1 The Director-Generalaccepts that there is no reference to the Bill of Rights Act in the decision-makingdocuments to which the decision relates. There is nothing on the record to show that,in making the decision, he turned his mind to whether, in terms of s 5 of the Bill ofRights Act, the limit is a reasonable limit prescribed by law such as can bedemonstrably justified in a free and democratic society.2[3] The issue that is addressed in this decision is whether, when a discretionarydecision has the potential to restrict a fundamental right in the Bill of Rights Act, thedecision-maker must in a procedural sense address the restriction and consider1 New Health v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 [New Healthv South Taranaki District Council (SC)] at [99]–[100] per O'Regan and Ellen France JJ, at [172]per Glazebrook J and at [243] per Elias CJ.2 The Director-General, when the decision was made, was Dr Ashley Bloomfield.whether it is demonstrably justified, quite apart from an assessment by the Court ofwhether any restriction is so justified.The preliminary issue in context[4] The proceeding raises a number of judicial review causes of action to challengethe decision. They include, for example, relatively orthodox judicial review groundssuch as a failure to consider relevant considerations and irrationality. They include anallegation that the decision is in breach of the Bill of Rights Act in a substantive sense.[5] In the second cause of action, it is alleged that:172. The [Bill of Rights Act] imposes a substantive constraint on the firstrespondent and before making the directions the [Director-Generalof Health] was required to turn his mind to and be satisfied that thedirections were a reasonable limit on the right to refuse medicaltreatment.173. The [Director-General of Health] failed to turn his mind to whetherthe directions were a reasonable limit on the right to refuse medicaltreatment.174. By so failing, the first respondent made an error of law and failed torecognise the application of s 3 of the NZBORA to his exercise ofthe statutory power under s 116E of the Health Act.[6] It is that cause of action alone that is the subject of this decision.[7] The parties agreed that this cause of action should be isolated and dealt with asa preliminary legal issue. Is, then, there an obligation, in a procedural sense on thoseto whom the Bill of Rights Act applies3 to consider the application of the Act if theirexercise of power might engage a protected right?[8] It might be thought that this is a question that has been addressed previously,given the Act's 33-year history. However, it would appear that it is an issue that hasnot been addressed in its own right.3 The New Zealand Bill of Rights Act 1990 applies to acts done by the legislative, executive orjudicial branches of the Government of New Zealand or by any person or body in the performanceof any public function, power, or duty conferred or imposed by that person or body by or pursuantto law; see s 3.[9] Not uncommonly, a decision-maker's assessments under the Bill of Rights Act– whether it relates to the engagement of a right or to a s 5 reasonable limits assessment– will be considered by a court alongside its own substantive assessments under theAct. But the issue that arises in this case is whether the Bill of Rights Act only goesso far as to create substantive obligations to act consistently with the rights itguarantees or whether, independently, it creates an actionable form of processobligation on a decision-maker to undertake a Bill of Rights Act assessment at somelevel if rights under the Act are engaged.[10] To put it another way, is a Bill of Rights Act assessment a mandatory relevantconsideration such that a failure to undertake it, in the event that rights are engaged, isa flaw which, in and of itself, could warrant a remedy? Or, is a Bill of Rights Actassessment by the decision-maker something that, while it might be useful all round,is not required on the basis that the Bill of Rights Act operates as a substantiveconstraint – exercisable through public law proceedings – to ensure that the ultimatedecision is rights-compliant?[11] In Moncrief-Spittle v Regional Facilities Auckland Ltd, the Supreme Court, inaddressing what it would expect to see from the decision-maker there when limitingthe right in question, said "We leave for an occasion on which it arises the approachto be taken by the courts in a situation where the decision-maker does not engage withthe effect of the Bill of Rights. That does not in any event affect the court's role".4[12] While Cooke J has, on two occasions since the Supreme Court's decision inMoncrief-Spittle, addressed the issue alongside a substantive rights assessment,5 thiscase calls for it to be addressed on a stand-alone basis.[13] New Health New Zealand Inc (New Health) is an incorporated society thatdescribes itself as a "consumer-focused health organisation whose objectives are toadvance and protect the best interests and freedoms of consumers". It is opposed to4 Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 atn 118.5 Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248 at [65] and NewHealth New Zealand Ltd v The Minister for COVID-19 Response [2023] NZHC 2647 [New Healthv Minister for COVID-19 (HC)] at [71].the fluoridation of drinking water. In a letter of 12 May 2023 to the Director-Generalin which reference was made to the intention to bring this proceeding, counsel for NewHealth asked whether or not the Director-General had considered the application ofs 11 of the Bill of Rights Act when it made the decision.[14] In a letter in response of 29 May 2023, it was said:We agree there is no explicit reference to NZBORA in the decision-makingdocuments. However, we do not agree that where a right is engaged the rightis a mandatory relevant consideration. The point is for the decision-maker toreach a rights-consistent conclusion, not to simply refer to relevant rights. InMoncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, theCourt left open the question of whether the failure to consider a relevant rightwould be a failure to consider a mandatory relevant consideration (thedecision-maker in that case had considered the relevant right) but the Crownwould argue that the United Kingdom position as outlined in Belfast CityCouncil v Miss Behavin' Ltd [2007] UKHL 19 is the proper one and should befollowed in New Zealand.[15] The Director-General's response frames the issue that is to be considered inthis decision.BackgroundNew Health v South Taranaki District Council – section 11 of the Bill of Rights Act isengaged[16] The first part of the background to this decision is legal in nature. It is theSupreme Court's decision in New Health v South Taranaki District Council.6 It is thatdecision which led to the introduction of the statutory powers under which the decisionwas made.[17] New Health challenged decisions of the Taranaki District Council to addfluoride to the water supplies in Patea and Waverley. In broad terms, it alleged thatthere was no statutory power for it to do so, that it caused people to undergo medicaltreatment (in terms of s 11 of the Bill of Rights Act) and that the limitation on the rightof people to refuse treatment was not justified.6 New Health v South Taranaki District Council (SC), above n 1.[18] A majority7 of the Supreme Court dismissed New Health's appeal, but fordifferent reasons. Elias CJ, Glazebrook, O'Regan and Ellen France JJ all agreed thatfluoridation was a limit on the right in s 11 of the Bill of Rights Act to refuse medicaltreatment.8[19] Elias CJ allowed the appeal. She did not consider that the Local GovernmentAct and the Health Act provided any authority for local authorities to add fluoride towater and did not, therefore, go on to consider whether the addition of fluoride was ajustified limit on s 11.9[20] William Young J, while of the view that local authorities have the power to addfluoride to water, did not consider that fluoridation engaged s 11 of the Bill of RightsAct and did not, therefore, consider whether fluoridation was a justified limit on s 11.10[21] Glazebrook J found that local authorities had power to add fluoride to waterand that s 11 of the Bill of Rights Act was engaged. But she did not go on to considerwhether, in terms of s 5, the addition of fluoride was a justified limit because that issomething that may, in her view, depend upon local conditions.11 Elias CJ agreed onthis point, saying:12We are not called on in the present appeal to consider whether the decision ofthe Council to add fluoride was lawful if found to be authorised. Thechallenge brought by New Health to the substantive determination of thecouncil is not before us. The Court does not have available to it the materialswhich show how the council weighed the human right in s 11 in reaching itsdecision, as it was obliged to do even if authorised to limit rights on ajustifiable basis.[22] O'Regan and Ellen France JJ went further in finding that there was power toadd fluoride to water, that fluoridation engaged s 11 of the Bill of Rights Act and thatit was a justified limit on the right to refuse medical treatment under s 5 of the Bill ofRights Act. They found that the objective of preventing and reducing dental decaywas a significant problem in the South Taranaki area, was sufficiently important to7 William Young, Glazebrook, O'Regan and Ellen France JJ.8 See above, n 1.9 At [334], per Elias CJ.10 At [210], per William Young J.11 At [176], per Glazebrook J.12 At [223], per Elias CJ.justify a limitation on the right to refuse medical treatment, and that the right wasimpaired no more than was necessary to achieve the purpose sufficiently.13Part 5A of the Health Act[23] Following the decision of the Supreme Court in New Health v South TaranakiDistrict Council, on 13 December 2021, a new Part 5A of the Health Act came intoeffect.14 The purpose of the new part is to:15(a) enable the Director-General to direct a local authority to add fluorideor not to add fluoride to drinking water supplied through its localauthority supply; and(b) require the local authority to comply with the direction.[24] Section 116E of the Act is in the following terms:116E Director-General may direct local authority to add or not to addfluoride to drinking water(1) The Director-General may direct a local authority to add or not to addfluoride to drinking water supplied through its local authority supply.(2) The Director-General must seek and consider advice from theDirector of Public Health on the matters in subsection (3)(a) and (b)(i)before deciding whether to make a direction.(3) Before making a direction, the Director-General must consider—(a) scientific evidence on the effectiveness of adding fluoride todrinking water in reducing the prevalence and severity of dentaldecay; and(b) whether the benefits of adding fluoride to the drinking wateroutweigh the financial costs, taking into account—(i) the state or likely state of the oral health of a populationgroup or community where the local authority supply issituated; and(ii) the number of people who are reasonably likely toreceive drinking water from the local authority supply;and(iii) the likely financial cost and savings of adding fluoride tothe drinking water, including any additional financialcosts of ongoing management and monitoring.13 New Health v South Taranaki District Council (SC), above n 1 at [126], [131], [134], [143].14 Health (Fluoridation of Drinking Water) Amendment Act 2021.15 Health Act, s 116C.(4) For the purpose of subsection (3)(b)(i), the Director-General may takeinto account any evidence that the Director-General considersrelevant.(5) As soon as practicable after making a direction, the Director-Generalmust publish the direction and the reasons for the decision to makethe direction on the Ministry of Health's Internet site.[25] Before making a direction to add fluoride to drinking water, the Director-General must invite written comments from the local authority on the cost of addingfluoride and on the date by which the local authority could comply with a direction.16[26] A local authority that receives a direction from the Director-General unders 116E is not required to consult on any matter related to the direction.17 Furthermore,a local authority must comply with a direction from the Director-General unders 116E18 and, in the event that it does not, it commits an offence of a strict liabilitynature and is liable to a fine of up to $200,000 and to a further fine of up to $10,000for every day during which the non-compliance continues.19 Accordingly, a decisionof the Director-General requiring a local authority to add fluoride is not somethingthat is subject to local discussion, or that a local authority can resist. They aresignificant powers and they must, as such, be able to withstand careful scrutiny onreview.The Director-General's decision[27] On 27 July 2022, the Director-General wrote to 14 local authorities, directingeach of them under s 116E of the Health Act to add fluoride to its drinking watersupplies.20 In letters of a generic nature (but tailored to the circumstances of each localauthority) the local authority was advised that "in accordance with s 116I of the Act",it was required to ensure by a date specified in the letter that "you are fluoridating at16 Section 116G.17 Section 116H.18 Section 116I.19 Sections 116J and 116K.20 Directions were issued to Kawerau District Council, New Plymouth District Council, RotoruaLakes Council, Auckland Council, Tararua District Council, Tauranga District Council, WaitakiDistrict Council, Western Bay of Plenty District Council, Nelson City Council, Hastings CityCouncil, Far North District Council, Waipa District Council, Horowhenua District Council,Whangārei District Council.the optimum levels (between 0.7 ppm to 1 ppm, parts per million)" at the relevantwater supply.[28] The letter to each local authority said that it was "informed by the matters I amrequired to consider" and went on to describe those matters in the following way:In reaching my decision to issue this direction to you, I considered thescientific evidence on the effectiveness of adding fluoride to drinking water inreducing the prevalence and severity of dental decay. I am satisfied thatcommunity water fluoridation is a safe and effective public health measurethat significantly reduces the prevalence and severity of dental decay. Inreaching this conclusion, I considered: Water fluoridation to prevent toothdecay (Cochrane Collaboration 2015), Health effects of water fluoridation: Areview of the scientific evidence (PMCSA and Royal Society Te Aparangi2014) and Fluoridation: an update on evidence (PMCSA 2021).In reaching my decision, I also considered whether the benefits of addingfluoride to the drinking water outweigh the financial costs, taking intoaccount: the state or likely state of the oral health of your community servedby the [water supply relevant to the local authority]; the number of people whoare reasonably likely to receive drinking water from these supplies; and thelikely financial cost and savings of adding fluoride to the drinking water ofthe supplies, including any additional financial costs of ongoing managementand monitoring.[29] The matters identified in the quotation just set out are a reflection of thestatutory criteria in s 116E(3) of the Act. The Director-General's consideration of eachof those criteria was explained in a more extensive way in an appendix thataccompanied each letter.[30] As the Director-General accepts, there is no explicit reference to the Bill ofRights Act in the decision-making documents.Positions of the parties[31] New Health says that, before making the decision, the Director-General wasrequired to be satisfied that any limitation on the s 11 right was justified. He was, it issaid, required explicitly to consider and justify the limitation on s 11 as part of hisdecision-making process. It says that the omission on the part of the Director-Generalto turn his mind to the right to refuse medical treatment, and then to justify his decisionunder s 5 of the Bill of Rights Act by being satisfied that the limitation on the rightwas reasonable and proportionate, constitutes an error of law.[32] It adds that a s 5 analysis requires among other things an analysis ofcontemporary societal values, including tikanga principles.[33] Mr Powell, for the Director-General, expressed the position in the followingway:The question here, one not yet finally settled in New Zealand, is how theNZBORA fulfils its aims when it applies to administrative decision-makersand whether it imposes a procedural obligation on them to consider relevantrights or whether it operates as a substantive constraint to ensure the ultimatedecision is rights-consistent.[34] It is said that the plaintiff can only succeed if there was a procedural obligationon the Director-General to undertake an acceptable proportionality assessment beforemaking the direction, regardless of whether the direction is substantively consistentwith the Bill of Rights Act. It is said that the experience in other jurisdictions suggestsstrongly that no such procedural obligation should be recognised.[35] Whether or not a decision is consistent with the Bill of Rights Act is, it is saidfor the Director-General, an issue of law for the Court to determine. It is said thatcomplex issues arise and that to require decision-makers to correctly contextualisetheir decision among the guaranteed rights that are relevant, and to attempt to balancethem against the competing state interest, would unnecessarily complicate andencumber administrative decision-making at all levels of government with nocorresponding benefit to the affirmation, protection and promotion of human rights.[36] Acting in breach of the Bill of Rights Act has, it is said, legal consequencesand that adverse rulings from the courts on questions of law can be expected to resultin adjustments in future behaviour.[37] Given that the aspirations in the Bill of Rights Act were fulfilled by elevatinghuman rights above the status of relevant considerations and making them enforceablelegal rights, the focus, it was said, must be upon substantive assessments from thecourts on rights compliance, rather than on the creation of procedural obligations.[38] The path that New Zealand law should take, it was said, is illuminated byrelevant overseas experience, particularly in decisions from the United Kingdom.[39] The Crown agrees that tikanga values or principles may be relevant to a s 5analysis in some cases, depending on the issue, if analysis identifies its relevance andif information about the tikanga consideration is obtained from an appropriatelyauthoritative source. However, because tikanga was referenced for the first time inthe applicants' written submissions on this preliminary question, and because noparticular tikanga value or principle has been identified, it is not, the Crown says, amatter that can be advanced through the consideration of this preliminary question.Consideration of the issue in New Zealand[40] The Supreme Court in Moncrief-Spittle v Regional Facilities Auckland Ltd,considered the directly related point as to whether, in a judicial review proceeding, theapplication of the Bill of Rights Act imposes a substantive constraint on a decision-maker or whether it is simply a procedural obligation in the sense of being a mandatoryrelevant consideration to be taken into account. 21 In the following passages, the Courtexpressed the view that the rights in the Bill of Rights Act are not just mandatoryrelevant considerations as had been suggested in that case. Rather, they imposesubstantive constraints on decision-makers; the assessment of which is to beundertaken by the Court:22[81] We have found that RFAL was required to act consistently with theBill of Rights. The first issue arising from the parties' submissions is whether,in a judicial review proceeding, the application of the Bill of Rights imposesa substantive constraint on the decision-maker or simply a proceduralobligation. This issue has been the subject of debate in academic commentary.[82] This Court's decision in Zaoui v Attorney-General (No 2) supports theview that the correct approach is to treat the right as constraining the outcomethe decision-maker may reach, rather than simply a mandatory relevantconsideration. That case, unlike the present, involved a right which the Courtconsidered was not subject to the limits in s 5 but, for present purposes, we donot see that difference as material. There is also support for this approach inthe United Kingdom decisions in a similar context. The Supreme Court ofCanada in Doré v Barreau du Québec adopted an approach which, to someextent at least, merges consideration of both substantive and procedural issues.21 Moncrief-Spittle, above n 4.22 At [81]–[84] citing Zaoui v Attorney-General (No. 2) [2005] NZSC 38, [2006] 1 NZLR 289 at[93]. Zaoui was concerned with whether the principle of non-refoulment was to be taken intoaccount when a minister decided to ask the Governor-General to order deportation of a refugeefound to be a threat to national security. The Court in that case referred to the need for the ministerto be satisfied in a substantive way that the person would be in danger of being subjected to tortureor cruel, inhumane or degrading treatment or punishment if deported.[83] The logic of an approach which treats the right to freedom ofexpression in the Bill of Rights as a substantive constraint on a decision-makeris hard to challenge, given both the constitutional status of the Bill of Rightsand the fact the effect of s 3(b) is that the Act "applies" to RFAL. We considerthe result of doing so in this case is that Mr Macrae had to turn his mind toand engage with the question of whether it was reasonable to limit the freespeech interest in play by cancelling the event, albeit what that required in thatregard must reflect the context in which he was operating.[84] It also logically follows that if the decision is challenged by way ofjudicial review, the Court must be satisfied that the decision was a reasonablelimit. The extent of any reasonable limits is a legal question. The correctapplication of that legal standard in any particular case will involve mixedquestions of fact and law. In a case such as this one, we would expect to seeevidence that Mr Macrae had identified and weighed the right, and gaveconsideration to whether the reasons to cancel (the security and safetyconcerns) were such as to outweigh the right. That will assist the court in itstask.[footnotes omitted][41] Paragraph [84] of the Court's decision ended in a footnote in which the Courtsaid that the approach to be taken by the courts in a situation where the decision-makerdoes not engage with the effect of the Bill of Rights Act would be left for a futureoccasion.[42] The point left open by the Supreme Court for a future occasion has beenaddressed by Cooke J in Wallace v Chief Executive of the Department of Corrections.23Wallace involved a challenge to a decision to transfer prisoners from Arohata Prisonto Christchurch Women's Prison or to Auckland Regional Women's CorrectionsFacility. One issue was whether the decisions involved unlawful discrimination onthe basis of gender in contravention of s 19 of the Bill of Rights Act.[43] The Court found that the decision did limit that right and that the limitationwas not demonstrably justified. It found that, in addition, the decision-maker neededto have taken into account and to have addressed – but did not – the question oflimiting a fundamental right. Cooke J expressed the position in the following way:[65] The way in which fundamental rights in the NZBORA constraindiscretionary decision-making has recently been confirmed by the SupremeCourt in Moncrief-Spittle v Regional Facilities Auckland Ltd. When a right isbeing limited by such a decision:23 Wallace, above n 5.(a) The decision-maker must turn their mind to this, and engage withthe question whether the limitation involves a reasonable limit onthat right.(b) The outcome that the decision-maker may reach is alsoconstrained. If the Court concludes that the decision is anunjustified limitation on the right it is unlawful.[110] As the Supreme Court confirmed in Moncrief-Spittle, discretionarydecision-making which limits fundamental rights in the NZBORA requires thedecision-maker to take into account the limitation and whether it is justified.I have already addressed whether the decisions did so limit the right providedfor in s 19, and concluded that it did for the three reasons identified. I havealso concluded that that limitation was not demonstrably justified. But it isalso necessary for the decision-maker [to] take into account, and address thequestion of limiting a fundamental right.[44] Cooke J found that no such consideration was given and that there was noreference in the relevant documents to any appreciation that the decision had anapparently discriminatory effect.24[45] The consideration that needed to be given to the potential limitation of afundamental right needed, it was said, to be a matter of substance, rather than a matterof form. As Cooke J said:25The fact that a decision-maker does not expressly refer to the particular sectionof the NZBORA is not what is most important. What is necessary was aconsideration recognising, as a matter of substance, that the decisions haddiscriminatory effect on women prisoners, and addressing whether that wasjustified. That did not occur, and I uphold this ground of review.[46] Relief in Wallace is to be the subject of separate consideration and so whetherthat procedural finding alone would warrant relief in the circumstances of that case isyet to be determined. However, Cooke J's view that a decision-maker must turn theirmind to and engage with the question of rights limitation, with which I concur, isdirectly on point.[47] The topic came before Cooke J again in New Health New Zealand Ltd v TheMinister for COVID-19 Response.26 In that case, Cooke J repeated the points made inWallace set out in [43] above, that where a discretionary decision restricts a24 At [111].25 At [111].26 New Health v Minister for COVID-19 (HC), above n 5.fundamental right in the Bill of Rights Act, the decision-maker must address thatrestriction and consider whether it is demonstrably justified and the Court must, inaddition, be satisfied that any restriction is so justified. Cooke J referred to the firstof the two requirements as being subjective and to the second as being objective.27[48] In many ways, this formulation of the dual components of the Bill of RightsAct rights assessment confirms an understanding that has always been implicit. Forexample, in Moonen v Film and Literature Board of Review, a Full Bench of the Courtof Appeal, in finding that the Board of Review had failed to have proper regard to ss 5and 6 of the Bill of Rights Act, said:28Furthermore, in applying the concepts of promotion and support to thepublications in question, s 5 of the Bill of Rights Act requires that suchapplication favours freedom of expression over objectionability if the case ismarginal. It is not clear how the board approached the construction andapplication of the concepts of promotion and support in the present case.There is, however, a likelihood, by reason of the board's reference to, and itsbeing bound by the decision of, the Full Court in News Media, that the Boarderroneously regarded Bill of Rights Act considerations as having no part toplay. For these reasons the board should reconsider the book on the correctbasis as outlined in the next paragraph.[49] Accordingly, rather than making a substantive rights-based finding, the Courtwas critical of the board for not having considered the Bill of Rights Act and sent itback there for that to occur.29[50] Similarly, in Schubert v Wanganui District Council, Clifford J found that, inmaking a bylaw prohibiting the display of gang insignia at certain public places, theCouncil had failed in its decision to consider the significance of the right to freedomof expression.30 The fact that a right was engaged required, the Court found, theCouncil to consider it and to express its conclusions in the first instance.27 At [71] and [82].28 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at [28]; The Court was referringhere to News Media Ltd v Film and Literature Board of Review (1997) 4 HRNZ 410, which theCourt overruled in this decision.29 At [40].30 Schubert v Wanganui District Council [2011] NZAR 233 at [160], [162] and [171].[51] The same point was made by Asher J in TVNZ v West.31 In that case, theBroadcasting Standards Authority had decided that two broadcasts breachedbroadcasting standards under the Broadcasting Act 1989. In doing so, in each case,the authority had acknowledged that upholding the complaints would limit TVNZ'sright to freedom of expression under s 14 of the Bill of Rights Act but found that touphold the complaint placed a justified and reasonable limit on that right. However,in both cases, its reasons were given only very briefly. Asher J said:[86] The application of the provisions of the NZBORA is a mandatoryrelevant consideration, and must be taken into account by the Authority if it isconsidering upholding a complaint. While the Courts in earlier decisions wereprepared to accept that the consideration was implicit, it is now clear that theconsideration, and in particular the s 5 NZBORA analysis, should bearticulated in the Authority's decision.[52] While, it was said, the degree of formalism required of a decision-making bodywill vary according to the nature of the body and of the decision in question, a pure"boiler-plate" consideration which records only, without reasons, that weight has beengiven to the provisions of the Bill of Rights Act is unlikely to be adequate.32[53] The importance of decision-makers undertaking, themselves, a rightsassessment is emphasised by the authors of The New Zealand Bill of Rights Act: ACommentary.33 They support the promotion of a "culture of justification"; a phraseused by South African constitutional law professor, the late Etienne Mureink.34 Theauthors explain what is meant by a "culture of justification":35A "culture of justification" means a culture in which citizens are entitled tocall upon the provision of reasons for measures that affect their rights, areentitled to challenge those reasons, and in a sense more importantly, areentitled to expect that in advance of impairment thought will have been givento the reasonableness of a particular limit. The culture of justificationcontributes to principles of good government, such as transparency,accountability, rational public policy development, attention to differinginterests, and so on.31 Television New Zealand v West [2011] 3 NZLR 825 (TVNZ v West).32 At [97], [98], [103] and [104].33 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at 181.34 E Mureinik "Emerging from Emergency: Human Rights in South Africa" (1994) 92 Mich L Rev1977.35 Butler and Butler, above n 33, at 181.[54] With those principles in mind, the authors make the point that the use of a two-stage process by decision-makers (first, delineating the scope and purpose of the right,and secondly, the s 5 reasonableness inquiry) will lead to a position, when rights areimplicated, where interferences are deliberate, measured and closely scrutinisedbefore the interference occurs.36The position in the United Kingdom[55] As mentioned in [38] above, the Crown says that the path that New Zealandlaw should take should be illuminated by that taken in the United Kingdom, whereprocedural error as a judicial review ground when the Human Rights Act 1998 (UK)is engaged has been rejected.[56] In the leading United Kingdom decision of R (SB) v Governors of DenbighHigh School, the House of Lords held that the ultimate question for the courts whensupervising the discharge of the obligation in s 6 of the UK Human Rights Act37 wasnot whether the public authority used a defective reasoning process but whether theactions of the public authority were incompatible in a substantive way with rightsguaranteed under the European Convention on Human Rights (the Convention).38 InDenbigh High School, the school's board of governors had refused to allow theplaintiff, a Muslim student, to wear a jilbab rather than a prescribed school uniformthat had been approved by local Muslim religious leaders. The student claimed thedecision to be an unjustified infringement upon her freedom to manifest her religiousbeliefs.[57] The Court of Appeal had found, unanimously, that the school's decision shouldbe set aside because of the way in which the school approached the decision-makingprocess.39 Brooke LJ was of the view that the high school board needed to have inplace a decision-making structure that addressed six quite complex questions. The36 At 181.37 The Human Rights Act 1998 (UK) provides that (subject to override by primary legislation) it isunlawful for a public authority to act in a way which is incompatible with the rights and freedomsprotected by the Convention for the Protection of Human Rights and Fundamental Freedoms 2889UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953).38 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 [Denbigh HighSchool (UKHL) at [29]–[31]; European Convention on Human Rights, above n 37.39 R (SB) v Governors of Denbigh High School [2005] EWCA Civ 199, [2005] 1 WLR 3372.questions would have involved the board identifying Convention rights, determiningpotential violation and justification, determining whether interference was prescribedby law and whether it had a legitimate aim, balancing considerations, and consideringwhether interference was justified under relevant Convention articles.40 In addition, arange of factual considerations and questions were identified which, it was said, theBoard would "no doubt need to consider".41[58] The House of Lords did not accept that the quality of the school's decision-making process could be determinative and found, in a substantive sense, that, whilethe decision was an infringement of the plaintiff's right to be free to manifest herreligious beliefs, the infringement was justified. Lord Bingham was persuaded thatthe Court of Appeal's approach was mistaken for three main reasons.42 The first wasthat the focus of the European Court of Human Rights had never been on whether achallenged decision or action was the product of a defective decision-making processbut on whether an applicant's Convention rights had been violated substantively.43[59] Secondly, it was said that the Court's approach to an issue of proportionalityunder the Convention must go beyond that traditionally adopted for a judicial reviewsetting. The Courts must, in proceedings like this, themselves make valuejudgments.44[60] Thirdly, it was thought that the Court of Appeal's approach would introduce "anew formalism" and be a "recipe for judicialisation on an unprecedented scale".45[61] Lord Bingham's reasons demonstrate some real differences between theposition in the United Kingdom, through Denbigh High School, and our own position.First, we do not look to the approach of the Strasbourg Court, or to a similar body, inconsidering rights under the Bill of Rights Act. Secondly, while aspects of the40 At [75] and [78].41 At [81].42 Denbigh High School (UKHL), above n 38, at [29]. It was said that the purpose of the HumanRights Act (UK) was not to enlarge the rights or remedies of those in the United Kingdom whoseConvention rights had been violated but to enable those rights and remedies to be asserted andenforced in domestic courts.43 At 115–116. The Human Rights Act (UK) was seen to be a measure which enabled thoseConvention rights to be asserted and enforced in domestic courts.44 At [30].45 At [31].principles we employ in judicial review cases can adopt a proportionality assessment,we do not use the proportionality approach taken in judicial review in the UnitedKingdom. Thirdly, the extent of the reasoning on the part of the decision-maker thatwas thought to be necessary by the Court of Appeal in Denbigh High School goesbeyond the level of engagement with rights limitations on the part of a decision-makerthat is proposed here.[62] In any event, the House of Lords returned to the topic in Belfast City Councilv Miss Behavin' Ltd.46 In that case, the applicant sought, unsuccessfully, a licence tooperate a sex shop from its premises and sought judicial review on the basis of analleged procedural failure on the council's part to consider properly its right to freedomof expression.[63] Lord Hoffman rejected the Court of Appeal's finding that the council had notdemonstrated a consciousness of the Convention rights that were engaged. He said:[13] This approach seems to me not only contrary to the reasoning in therecent decision of this House in R (SB) v Governors of Denbigh High School[2007] 1 AC 100 but quite impractical. What was the council supposed tohave said? "We have thought very seriously about your Convention rights butwe think that the appropriate number of sex shops in the locality is nil"? Or:"Taking into account article 10 and article 1 of the First Protocol and doingthe best we can, we think that the appropriate number is nil"? Would it havebeen sufficient to say that they had taken Convention rights into account, orwould they have had to specify the right ones? A construction of the 1998 Actwhich requires ordinary citizens in local government to produce suchformulaic incantations would make it ridiculous. Either the refusal infringedthe applicant's Convention rights or it did not. If it did, no display of humanrights learning by the Belfast City Council would have made the decisionlawful. If it did not, it would not matter if the councillors had never heard ofarticle 10 or the First Protocol.[64] It would seem that the United Kingdom approach comes close to eliminatingprocess-based considerations from an assessment by the courts of decisions whichengage fundamental rights. However, it does not do so entirely. In Denbigh HighSchool, Lord Hoffman said:47The most that can be said is that the way in which the school approached theproblem may help to persuade a Judge that its answer fell within the area ofjudgment accorded to it by the law.46 Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420.47 Denbigh High School (UKHL), above n 38, at 68.[65] Along similar lines, Lord Rodger in Belfast City Council said:48Of course, where the public authority has carefully weighed the variouscompeting considerations and concluded that interference with a Conventionright is justified, a court will attribute due weight to that conclusion in decidingwhether the action in question was proportionate and lawful.[66] The principles in Denbigh High School and Belfast City Council have not beenadjusted in subsequent authorities in the United Kingdom49 and so it can be said thatthe position in the United Kingdom is that, while there will not be an actionable flawin the event that a decision-maker does not address a potential restriction on afundamental right and consider whether it is demonstrably justified, it will be arelevant consideration for the reviewing court. And a challenger's task will be harderif a decision-maker has paid attention to relevant human rights considerations.[67] This was a point that Asher J picked up on in 2011 in TVNZ v West.50 Havingreferred to the point made by Lord Bingham in Denbigh High School that aprescriptive obligation to address UK Human Rights Act issues on decision-makerswould be unwarranted as introducing "a new formalism" (a point referred to in [60]above), Asher J went on to discuss the level of the "analytical requirements" on adecision-making body.[68] He saw the Broadcasting Standards Authority, whose decisions were beforehim in that case, as being a more legally sophisticated body than the school board inDenbigh High School. While, he said, there "must be caution in imposing tooformalistic and detailed analytical requirements on such a body" and that "toexcessively judicialise the process of the authority" would be unwise, there must bean obligation on the Authority to "clearly and transparently explain the reasons for itsdecision" – including on rights compliance under the Bill of Rights Act.51[69] In this way, Asher J did not see Denbigh High School, in the New Zealandcontext, as adjusting the need for a decision-making body to explain the considerationit has given to ensuring that its actions do not disproportionately limit protected rights.48 Belfast City Council v Miss Behavin' Ltd, above n 46, at 26.49 See, as a further example, In the Matter of B (a Child), [2013] UKSC 33, [2013] 1WLR 1911 at[84] (per Lord Neuberger).50 TVNZ v West, above n 31.51 At [98].Rather, he used it as a basis for making the point that different levels of explanationwill be required of different bodies, depending on the nature of the decision-makingbody, its workload, and the importance of the type of right that is being restrained.52[70] In her 2014 article Process and Outcome in Judicial Review of Public AuthorityCompatibility with Human Rights: A Comparative Perspective, Professor ClaudiaGeiringer considered – in a critique of the United Kingdom approach that came out ofDenbigh High School – "a set of competing policy concerns that may arise from themarginalisation of process-based inquiry."53 Professor Geiringer highlighted fourprimary policy concerns.54 The first is that a judicial focus on outcomes rather thanprocess may do little to advance the project of developing a 'human rights culture' ingovernment.[71] The second concern is that an exclusive focus on outcomes sits uncomfortablywith the expectation that the 'constitutionalisation' of administrative law should fostera 'culture of justification' in which administrative decision-makers must give (good)reasons for their decisions.[72] The third concern relates to the desirability of equipping courts with flexibilityto manage their delicate institutional relationship with the elected branches ofgovernment. It is noted that the Denbigh High School approach enables the courts togive credit for a good process by according weight to the judgements of a publicdecision-maker. But this does not provide the assistance a court needs where theprocess followed was poor but where there are nevertheless strong institutionalreasons to accord deference to a decision-maker.[73] And the fourth concern relates to the bifurcated relationship between humanrights law and administrative law. As Professor Geiringer said, human rights law andadministrative law should not necessarily part company in terms of the principles tobe applied by the courts.52 At [103].53 Professor Claudia Geiringer "Process and Outcome in Judicial Review of Public AuthorityCompatibility with Human Rights: A Comparative Perspective" in H Wilberg and M Elliott (eds)The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (Hart Publishing,Oxford, 2015) at 334.54 At 334–338.[74] There are, as I see it, sound reasons for us not to push the pendulum away froma process obligation to the same extent as has been the case in the United Kingdom.The position in Canada[75] The Crown has referred to two decisions of the Supreme Court of Canada insupport of the proposition that the courts there will make their own analysis ofcompliance with the Canadian Charter of Rights and Freedoms (the Charter), much asthe House of Lords in Denbigh High School would have done.[76] I do not know that the decisions can be said to support a proposition entirelyin those terms. In Doré v Barreau du Québec the Court was considering a decision ofthe Lawyers Disciplinary Council relating to an intemperate letter sent by Mr Doré (abarrister) to a judge before whom he had appeared.55 The Court asked whether itshould apply a reasonableness standard of the type that would be applied in a judicialreview proceeding, or whether it should apply a 'correctness standard' using theproportionality assessment devised in R v Oakes.56[77] The Court essentially applied a reasonableness standard. It did so by referenceto the type of assessment that an administrative decision-maker should undertake inthe first place. Abella J said that the decision-maker needed to balance Charter valueswith the relevant statutory objectives and that it should then ask how the Charter valueat issue will best be protected in view of the statutory objectives. That, it was said, iswhere the role of judicial review for reasonableness aligns with the proportionalityapproach the Court would then undertake.57[78] The Judge said:58Though this judicial review is conducted within the administrative framework,there is nonetheless conceptual harmony between a reasonableness review andthe Oakes framework, since both contemplate giving a "margin ofappreciation", or deference, to administrative and legislative bodies inbalancing Charter values against broader objectives.55 Doré v Barreau du Québec 2012 SCC 12, [2012] 1 SCR 395.56 At [59], citing R v Oakes [1986] 1 SCR 103.57 At [55] and [56].58 At [57].[79] In other words, the Court must undertake the ultimate assessment of a Charterissue in a substantive sense but it will assess, also, the decision-maker's Charterassessment for reasonableness. That a decision-maker should give reasons in the firstplace is implicit in the Court's approach.[80] Doré related to adjudicated administrative decisions.59 However, the CanadianSupreme Court's subsequent decision in Loyola High School v Québec (Attorney-General) demonstrates that the same principles will apply to a conventional non-adjudicated administrative decision.60 That case concerned a decision by a minister towithhold approval for a private Catholic school to provide a Catholic-basedprogramme on ethics and religious culture rather than the secularised programme thatwas to be used under the Canadian Government's education policy at the time.[81] Abella J said that the case "squarely engages the framework set out in Doré".61While in that case the minister's decision did not demonstrate that he had consideredthe Charter, and while there is no reference to there having been a procedural error asa result, it would seem that a challenge on that basis was not made.[82] Accordingly, the position in Canada would not appear to be inconsistent withthe position in New Zealand in which a discretionary decision-maker is to address anyrestriction on a fundamental right under the Bill of Rights Act and in which, inaddition, the Court should be satisfied that any restriction is so justified.[83] The point that arises in this case is whether the first of those requirements,alone, is essentially a mandatory relevant consideration such that it can give rise torelief in its own right.59 At [3].60 Loyola High School v Québec (Attorney-General) 2015 SCC 12, [2015] 1 SCR 613.61 At [35].DiscussionWas the Director-General required to undertake a rights assessment?[84] It seems sufficiently clear on the basis of New Zealand authorities that, whendiscretionary decisions on the part of those captured by s 3 of the Bill of Rights Actmight restrict a right protected under the Act:(a) the decision-maker must address that restriction and consider whetherit is demonstrably justified under s 5; and(b) the Court must be satisfied that any such restriction is so justified.62[85] It is a mixed process and outcome approach. It is an approach that is in myview adopted in the New Zealand authorities referred to. And, while the UnitedKingdom authorities do not impose the first of the two requirements referred to aboveon a mandatory basis, they have indicated at least a preference for a decision-maker tohave addressed rights issues to form the basis for consideration by the Court. To theextent that the approach in New Zealand, as addressed in this decision, differs fromthe position in the United Kingdom, the points that I go on to discuss provide, as I seeit, a sound basis for maintaining the process-related half of the equation.[86] It follows as a matter of course that a finding in favour of a claimant on eitherof the two requirements mentioned in [84] above would enable the Court to go on andconsider the question of relief. In that sense, it can be said that the first of the tworequirements is a mandatory relevant consideration.[87] Having said that, the two requirements will more often than not go hand inhand and so they should be pleaded and considered by the Court alongside each other.Typically, the Court will move from looking at the decision-maker's assessment of therights restriction to making its own assessment. In this sense, even in the face of thefirst of the two requirements being seen as a mandatory relevant consideration, theCourt will reach its own, independent, view on the issue. But, as was said in Denbigh62 As explained in Wallace, above n 5 at [65] and in New Health v Minister for COVID-19 (HC),above n 5 at [82].High School, the decision-maker will be assisted by, and will attribute due weight to,the decision-maker's views in the course of its own assessment.[88] What if the allegation pleaded is the first of the two requirements alone: thatthere has been a failure on the part of a decision-maker to consider whether afundamental right has been engaged, whether it has been restricted and, if so, whetherthe restriction is justified? Is that, alone, an actionable flaw that could give rise torelief?[89] In this case, the point falls to be addressed because it has been isolated as aseparate question of law. In many cases, even if it is pleaded as an isolated question,both of the requirements referred to in [84] will need to be addressed by the Court inany event. I say that because, in the event that there was a finding in favour of aclaimant on the first of the two requirements, the Court will need to consider theexercise of its discretion to grant relief. One of the factors for a Court in exercisingthat discretion is that relief must be of a possible practical value. A Court will not belikely to exercise its coercive powers to no purpose.63 And so, if, despite a proceduralerror, the substantive Bill of Rights Act outcome is sufficiently clear – one way oranother – the Court may simply say so. There may be no point in those circumstancesin sending it back to be reconsidered.[90] On the other hand, there may be circumstances in which the Court would preferto have the decision-maker consider, or reconsider, rights compliance in the firstinstance. TVNZ v West is an example of that.64[91] Whichever pathway is chosen, the Court will, and should, be assisted by thedecision-maker's rights assessment in the first place. In Hansen v R, Tipping J lookedcarefully at the way in which a court in considering a Bill of Rights Act issue will haveregard to the decision-maker's rights assessment.65 He said that, in evaluating whethera rights restriction is demonstrably justified under s 5, the courts do "perform a reviewfunction rather than one of simply substituting their own view".66 Using the metaphor63 Turner v Pickering [1976] 1 NZLR 129 at [141]–[142].64 TVNZ v West, above n 31 at [110].65 Hansen v R [2007] NZSC 7, [2007] NZLR 1.66 At [116] and [124].of a shooting target, Tipping J expressed the Court's consideration of a decision-maker's rights assessment in the following way:[119] This general approach, with which I respectfully agree, can befiguratively described by reference to a shooting target. The Court's view maybe that, in order to qualify, the limitation must fall within the bull's-eye.Parliament's appraisal of the matter has the answer lying outside the bull's-eyebut still on the target. The size of the target beyond the bull's-eye will dependon the subject matter. The margin of judgment or discretion left to Parliamentrepresents that area of the target outside the bull's-eye. Parliament's appraisalmust not, of course, miss the target altogether. If that is so Parliament hasexceeded its area of discretion or judgment. Resort to this metaphor may benecessary several times during the course of the proportionality inquiry;indeed the size of the target may differ at different stages of the inquiry. Thecourt's job is to delineate the size of the target and then say whetherParliament's measure hits the target or misses it.[92] It is in my view an essential component of the Bill of Rights Act scheme that ashot must be taken at the target by the decision-maker in the first instance before theCourt comes to see where it lands.[93] The Supreme Court in Moncrief-Spittle appears to have expressed a similarview in saying that "while the Court must satisfy itself of the reasonableness of thelimit, some regard may be had and respect given to where the decision-maker saw thebalance as lying."67[94] The Crown has argued that an approach of this sort should not be supported onfour grounds. The first two of them can be considered together. It is said that limitingBill of Rights Act obligations to a substantive assessment on the part of the Court alonewould avoid the overjudicialisation and the overburdening of the administrativedecision-making process. The point is made that a rights assessment will often requirecomplex analysis as cases before the courts have demonstrated. Not all decision-makers are, it is said, imbued with or have access to the kind of legal knowledge thatwould be needed to make a proper attempt at determining them. In many cases, it issaid, that it is not even clear that a human right has been engaged. And, it is said,regardless of how well a decision-maker goes about giving Bill of Rights Act rightsproper consideration, the Court will be required to undertake the exercise itself in anyevent.67 Moncrief-Spittle, above n 4, at [86].[95] As Cooke J said in Wallace v Chief Executive of the Department of Corrections,the Bill of Rights Act consideration by a decision-maker must be a matter of substance,rather than of form. The fact that a decision-maker does not refer expressly to aparticular section of the Bill of Rights Act is not the most important thing.68 It is notsuggested that a prescriptive analysis of the type required by the Court of Appeal inthe Denbigh High School case is needed.69 An obligation to consider rights andfreedoms and whether, if they might be impinged, the limits can be demonstrablyjustified, need not be an undue burden. The extent of the consideration to be givenmust be sensitive to the range of decision-making contexts in which human rightsmight apply. Relevant factors will include:(a) the nature of the decision and the nature of the rights involved;(b) the number of people whose rights are affected and the precedent thatthe decision will create for others;(c) the nature and expertise of the decision-maker;(d) the relevance of human rights issues to the purpose and functions of thedecision-maker;(e) the time frame in which the decision needs to be made;(f) the resources available to the decision-maker; and(g) the extent to which reasons could generally be expected to be given bya decision-maker of the type in question..[96] For example, one might not expect a reasoned analysis to be given by the publiclibrarian who requires a library user wearing an arguably offensive T-shirt to leave thelibrary and so limits their freedom of expression. But one would expect the librarianto turn his or her mind to the issue and to explain why the T-shirt crosses the line, evenif they do not use rights-based language to do so. At a mid-point, one would expect aminister or a person occupying a position of responsibility within a governmentdepartment who makes a decision that might impinge upon the freedom of association68 Wallace, above n 5, at [111].69 As described in paragraph [57] above.of members of an organised group to demonstrate in a handful of sentences that he orshe has considered the nature of the right involved, the extent to which it is infringedby the restriction and the reasons for believing that the restriction is justified.[97] Towards the upper end of the spectrum, one would expect a tribunal imposinga rights restriction to identify the right, its infringement and its justification for theinfringement in a more complete way.[98] The obligation should not be seen as a burden. It should be perceived as apositive and integral part of a society in which fundamental rights are defined andcannot be limited arbitrarily.[99] I mention here the suggestions made by Ms Hansen as to the type of analysesthat are required under s 5. She referred to the need to consider contemporary societalvalues including, in this case, the likes of bodily integrity, informed consent,democratic principles, efficacy and safety of fluoridation, the precautionary principleand alternative measures. She went on to say that, since the decision of the SupremeCourt in Ellis v R, those values should include tikanga principles.70 As mentionedearlier, the Crown does agree that tikanga values or principles may be relevant to a s 5analysis in some cases. However, as the Crown has said, in order to assess the valuethat an aspect of tikanga might bring to a s 5 analysis, the tikanga value or principlewould need to be identified and there would need to be some explanation of thedifference that it would make to the s 5 assessment. That has not been done here. Thepoint was raised but not developed. Accordingly, the framework that would benecessary for the Court to consider the point is not present.[100] The third ground advanced by the Crown in support of its position in this caseis that a substantive-only obligation is simple and can be applied universally to alldecision-makers. However, the broad array of rights, limits and decision-makersinvolved are such that a one-size-fits-all approach would in itself be unworkable.[101] The fourth ground advanced by the Crown is that a substantive-only obligationwould be consistent with administrative law in New Zealand in the sense that70 Ellis v R [2022] NZSC 14.inconsistency with the Bill of Rights Act will render a decision ultra vires, whereas,otherwise, public law grounds are more procedural in nature.[102] Certainly, a Bill of Rights Act assessment is more expansive than will be thecase in a non-Bill of Rights Act judicial review proceeding. That must be so because,at the end of the day, while procedural and legal flaws must be examined by the Court,the courts are the final guardians of fundamental rights in a substantive way. But thedecision-maker's involvement in the rights assessment is part and parcel of that. It isnot enough to excuse decision-makers from the process and to leave it to those fewcases in which a challenge is actually brought to the Court.71[103] 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 fordecision-makers to use rights-focused lenses when making decisions and todemonstrate that the lenses have been attached. There must be an expectation on thepart of New Zealanders that, when rights are engaged, any interferences are, to use thewords of the authors of Butler and Butler, deliberate, measured and properlyscrutinised before the interference occurs.72Did the Director-General undertake a rights assessment?[104] At one level, there is little discussion to be had under this head. In the letterwritten on behalf of the Director-General on 29 May 2023, and referred to in [14]above, it was agreed that "there is no explicit reference to NZBORA in the decision-making documents". The letter went on to say that it was not agreed, however, thatthe Bill of Rights Act needed to be considered.[105] Similarly, in the affidavit of Dr Old, the Deputy Director-General of the PublicHealth Agency, filed in this proceeding, it was said that:7371 Given in particular the cost barrier involved in litigation; see, for example, Law CommissionDelivering Justice for All (Law Commission, Report 85, March 2004) at 36.72 Butler and Butler, above n 33 at 181.73 At [12] and [22] of the affidavit.(a) In 2018, the Supreme Court determined that fluoridation was ademonstrably justified limit on the right to refuse medical treatment –a finding made with reference to relevant scientific evidence; and(b) The issue was not revisited in making the decision because nothing ofsubstance had changed in the intervening period.[106] However, in the Crown's submissions, the point was put on the basis that theSupreme Court in New Health v South Taranaki District Council had ruled thatfluoridation was a demonstrably justified limit on the right to refuse medical treatmentif there was credible scientific evidence that it was a safe and effective treatment toprevent or inhibit tooth decay in the area served by the water supply in question. Itwas said that in making the decision the Director-General had correctly turned hismind to that science, in respect of which there had been no material change. It wassaid that Dr Old's evidence showed that the Director-General had before him evidencethat addressed the number of people affected and the relative health inequities in termsof poor dental outcomes for Māori and Pasifika children who are distributedthroughout the population and updated information on scientific support for waterfluoridation. However:(a) it is not quite right to say that the Supreme Court found that there wasa demonstrably justified limit if there was credible scientific evidenceabout safety and effectiveness in the relevant area; and(b) while there is evidence that the Director-General turned his mind to thescience, there is no evidence that he turned his mind to the relevantterms of the Bill of Rights Act.[107] I look at each point in turn. On the first point, only O'Regan andEllen France JJ in New Health v South Taranaki District Council went so far as toconsider the application of s 5. As discussed in [18]–[21], Elias CJ and William Youngand Glazebrook JJ did not consider that issue. Elias CJ said that the Court did nothave available to it materials that would enable it to make that assessment.74Glazebrook J said that the application of s 5 would depend upon local conditions.75[108] O'Regan and Ellen France JJ did agree with the Court of Appeal that there wasevidence to establish that fluoridation of drinking water is one of a range of reasonablealternatives to address the problem of dental decay76 but they did not put it on the basisthat if there was credible scientific evidence that it was safe and effective in therelevant area, then the s 5 test would be met. The Director-General needs to turn hisor her mind to the Bill of Rights Act considerations on the basis of local conditions ineach area in which s 116E directions might be given. There is no evidence that thatoccurred here.[109] While, as the Crown says, the Director-General did turn his mind to relevantscientific evidence, he did so for the purpose of meeting the requirements of s 116E ofthe Health Act. Considering scientific evidence on the effectiveness of adding fluorideto drinking water under s 116E(3), for example, is not the same as the judgement thatis required under s 5 of the Bill of Rights Act in considering whether a restriction isdemonstrably justified in a free and democratic society. There is in my view no gettingaway from the fact that the Director-General did not turn his mind to Bill of RightsAct considerations when making the decision.Relief?[110] The question of relief in the event that, as is the case here, the second groundof review is made out was not addressed by either party.[111] The preliminary issue that was referred to the Court was "the second groundof review". For the reasons given, the second ground of review succeeds.[112] But, as in all judicial review proceedings, whether the Court should exerciseits discretion and grant relief is to be assessed separately. The prayer for relief towhich the second cause of action relates is "an order setting aside each direction". In74 New Health v South Taranaki District Council, above n 1 at [223].75 At [176].76 At [134] and [143].the memorandum of counsel which accompanied the application for determination ofthe preliminary issue of law, it was said that "if the applicant is correct [on theallegations in the second ground] the directions are invalid and should be set aside".But an order of that sort does not follow as a matter of course. As mentioned in [87]above, the requirement for a decision-maker to address Bill of Rights Actconsiderations and the Court's own assessment of those considerations will more oftenthan not go hand in hand and be considered by the Court alongside each other.Accordingly, when it comes to considering relief, a balanced assessment may be madehaving regard to the nature and extent of both procedural and substantiveshortcomings. Therefore, in many ways, it is artificial to separate a procedural and asubstantive assessment.[113] Having said that, in the face of a finding of the type that has been made here –that the Bill of Rights Act assessment is a mandatory relevant consideration – there iscertainly the ability for a substantive remedy to be given. However, whether or not togrant a remedy, particularly in the case of a procedural flaw, requires the Court tobalance a number of factors. They include an assessment of the gravity of the error,the degree of prejudice for an applicant, the potential for significant prejudice to publicadministration, prejudice to third parties, events subsequent and, as mentioned in [89],the need for relief to be of possible practical value.[114] I make no comment on whether factors of this sort are relevant here, but Iidentify them to make the point there are factors that need to be considered before, inthe light of the findings that have been made on the second cause of action, an ordercould be made setting aside the decision or sending it back for consideration.[115] Accordingly, I leave it to the parties at this stage to consider whether or notagreement on outcome could be reached under r 10.17 of the High Court Rules 2016.Otherwise, a brief hearing on relief can be convened. If a hearing is required, adirections teleconference can be convened to fix a timetable.Result[116] The answer to the preliminary legal question in this proceeding is: yes, theDirector-General was required to turn his mind to whether the directions given to the14 local authorities under s 116E of the Health Act were in each case a reasonable limiton the right to refuse medical treatment, he needed to be satisfied that they were and,if satisfied, he needed to say why that was so. Accordingly, the second cause of actionin the proceeding is made out.[117] Costs were not addressed in the submissions for either party. It has been saidthat, given that the determination of a preliminary question forms just one part of thesuite of considerations in a proceeding as a whole, it would be inefficient to deal withcosts following the determination of a preliminary issue.77 That may well be anappropriate principle to apply here. I leave it for the parties to consider. But costscould not in any event be considered until the steps referred to in [115] above arecomplete. I ask that, when they are ready to do so, the parties file a joint memorandumon their preferred approach to dealing with issues of relief and costs._____________________Radich JSolicitors:Maxwell Law, Wellington for PlaintiffCrown Law, Wellington for First and Second Defendants77 Pascoe v Minister for Land Information [2023] NZHC 795 at [6] and [7].