NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL [2018] NZSC 59

NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL[2018] NZSC 59 [27 June 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 141/2016[2018] NZSC 59BETWEEN NEW HEALTH NEW ZEALANDINCORPORATEDAppellantAND SOUTH TARANAKI DISTRICT COUNCILFirst RespondentATTORNEY-GENERAL FOR AND ONBEHALF OF THE MINISTER OFHEALTHSecond RespondentHearing: 16 and 17 November 2017Court: Elias CJ, William Young, Glazebrook, O'Regan andEllen France JJCounsel: M T Scholtens QC, L M Hansen and T Mijatov for AppellantD J S Laing and H P Harwood for First RespondentA M Powell and S K Jameson for Second RespondentJudgment: 27 June 2018JUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the first respondent costs of$20,000 plus usual disbursements.C We make no award of costs in favour of the secondrespondent.____________________________________________________________________REASONSPara No.O'Regan and Ellen France JJ [1]Glazebrook J [147]William Young J [178]Elias CJ [211]O'REGAN AND ELLEN FRANCE JJ(Given by O'Regan J)Table of ContentsPara No.The appeals [1]Issues [9]Fluoridation [10]Does the Council have statutory power to fluoridate? [13]The Lower Hutt City case [16]Legislative history [20]Statutory provisions: analysis of High Court and Court of Appeal [22]Our analysis [35]Does fluoridating water engage s 11 of the Bill of Rights Act? [58]The decisions of the High Court and Court of Appeal [61]Issues [70]Natural meaning [72]Direct or indirect treatment [75]Conflict of rights [78]Conflict with art 12 [83]Common law [85]"Undergo" [96]Conclusion [97]Is the statutory power to fluoridate a justified limitation on thes 11 right? [101]Is the limit on the right guaranteed by s 11 prescribed by law? [106]Is the fluoridation power a justified limit on the s 11 right? [112]Approach to s 5 [113]Is the purpose sufficiently important? [123]Rational connection [127]No more than reasonably necessary [132]Is the limit proportionate to the objective? [135]Conclusion: justified limitation [144]Result [145]Costs [146]The appeals[1] This case raises for determination a number of issues relating to thefluoridation of water in New Zealand. Fluoridation is carried out in a number ofcommunities in New Zealand for the purpose of reducing tooth decay.1[2] The appellant, New Heath New Zealand Inc (New Health) is an incorporatedsociety that describes itself as "a consumer-focused health organisation which aims toadvance and protect the best interests and health freedoms of consumers". New Healthopposes fluoridation of water on the basis that fluoridation removes freedom of choiceby consumers, is potentially harmful and is not effective in preventing tooth decay.[3] In the decision under appeal, the Court of Appeal dealt with appeals by NewHealth against three separate judgments of the High Court relating to the legality ofthe fluoridation of water.2 This Court granted leave to appeal on all aspects of theCourt of Appeal's decision.3[4] The first appeal to the Court of Appeal was an appeal against a decision ofRodney Hansen J dismissing New Health's application for judicial review of thedecision of the first respondent, South Taranaki District Council (the Council) to addfluoride to the water supplies in Patea and Waverley.4 The Court of Appeal referredto this aspect of the appeal before it as the Council appeal and we will do the same.The issues that arose in relation to the Council appeal were summarised by the Courtof Appeal as follows:51 The Health Committee report on the Health (Fluoridation of Drinking Water) Amendment Billcurrently before the House of Representatives says about 54 per cent of the New Zealandpopulation receives fluoridated water: Health (Fluoridation of Drinking Water) Amendment Bill2016 (208-2) (select committee report) at 1. Counsel for New Health said 48 per cent.Fluoridation occurred for the first time in New Zealand in 1954.2 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017]2 NZLR 13 (Randerson, Wild and French JJ) [New Health (CA)].3 New Health New Zealand Inc v South Taranaki District Council [2017] NZSC 13.4 New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014]2 NZLR 834 [New Health (HC)].5 New Health (CA), above n 2, at [9].The issue in the Council appeal is whether the Judge was correct to find that:(a) The Council had statutory authority to fluoridate the water suppliesfor Patea and Waverley.(b) The fluoridation of water is not medical treatment for the purposes ofs 11 of the [New Zealand Bill of Rights Act 1990].(c) If the right to refuse medical treatment is engaged, fluoridation is ademonstrably justified limit prescribed by law in terms of s 5 of the[New Zealand Bill of Rights Act].[5] In its statement of claim, New Health also sought judicial review of theCouncil's decision to fluoridate the water supplies in Patea and Waverley on thegrounds that the Council had failed to take into account a number of considerationsthat it said were mandatory relevant considerations. The High Court found theconsiderations relied on were not mandatory relevant considerations.6 That aspect ofNew Health's claim was not before us and we say no more about it.[6] The second appeal before the Court of Appeal was against a decision of theHigh Court dismissing an application by New Health for declarations that twocompounds added to water supplies for fluoridation purposes, namelyhydrofluorosilicic acid (HFA) and sodium silicofluoride (SSF), were medicines interms of the Medicines Act 1981 (the Medicines Act judgment).7 We will call this theMedicines Act appeal. The sole issue arising in the Medicines Act appeal was whetherthe Judge had been correct to rule that HFA and SSF were not medicines in terms ofthe Medicines Act.[7] The third High Court decision that was under appeal to the Court of Appealfollowed on from the second. In the Medicines Act judgment Collins J said that, whilehe was confident his conclusion that HFA and SSF were not medicines was correct, hesuggested that the Ministry of Health might wish to consider recommending aregulation exempting HFA and SSF from the definition of medicines under theMedicines Act.8 The Ministry followed up on the suggestion and the MedicinesAmendment Regulations 2015 were made with effect from 30 January 2015. The6 New Health (HC), above n 4, at [113].7 New Health New Zealand Inc v Attorney-General [2014] NZHC 2487 (Collins J) [Medicines Actjudgment].8 At [51].effect of the Regulations was that both HFA and SSF were declared not to be medicinesfor the purposes of the Medicines Act. New Health commenced judicial reviewproceedings in the High Court challenging the validity of the Medicines AmendmentRegulations. New Health's application for judicial review was dismissed.9 The issuesthat arise in relation to this aspect of the appeal are whether the High Court was correctto find that the Medicines Amendment Regulations were valid and, if so, whether thatfinding rendered the Medicines Act appeal moot. We will call this the Regulationsappeal.[8] The Medicines Act appeal and the Regulations appeal are dealt with in aseparate judgment that will be issued contemporaneously with the present judgment.We say no more about them in this judgment.Issues[9] The issues for determination in this appeal are, therefore:(a) Whether the Council has the statutory power to fluoridate watersupplies in its territorial area.(b) Whether fluoridating water supplies engages s 11 of the New ZealandBill of Rights Act 1990 (Bill of Rights Act) on the basis that thefluoridation of water makes those accessing the public water supply inthe relevant area undergo medical treatment in breach of the right torefuse such treatment.(c) If s 11 of the Bill of Rights Act is engaged, whether fluoridation is alimitation on the s 11 right that is a reasonable limit prescribed by lawas can be demonstrably justified in a free and democratic society interms of s 5 of the Bill of Rights Act.(d) Whether the legislative power to fluoridate can be given a meaning thatis consistent with the rights and freedoms contained in the Bill of Rights9 New Health New Zealand Inc v Attorney-General [2015] NZHC 2138, [2015] NZAR 1513 (Kós J)[Regulations judgment].Act, and if so what the impact of that preferred meaning would be (s 6of the Bill of Rights Act).Fluoridation[10] As already mentioned, the objective of fluoridation is the reduction of toothdecay through promoting the mineralisation of tooth enamel. It is now generallyaccepted that fluoride works topically, that is by direct contact with tooth surfaces.10[11] Fluoridation in New Zealand is undertaken by adding HFA or SSF, bothfluoride-releasing compounds, to the water supply. Fluoride (in the form of calciumfluoride) occurs naturally as a trace element in water. In New Zealand, fluoride occursat a low level, below 0.3 parts per million (ppm). Fluoridation has the effect ofincreasing the level of fluoride in water to between 0.7 ppm and 1.0 ppm.[12] Opponents of fluoridation question its effectiveness and argue that it posesrisks to human health and infringes the civil liberties of consumers.Does the Council have statutory power to fluoridate?[13] Both the High Court and the Court of Appeal concluded that the Council hadpower to fluoridate water in communities within its jurisdiction.11 In general termstheir reasoning was that fluoridation was authorised under the Municipal CorporationsAct 1954 as a result of the decision of the Privy Council in Attorney-General v LowerHutt City.12 In that decision, which we discuss in greater detail below, the PrivyCouncil found that the Lower Hutt City Council was authorised under s 240(1) of theMunicipal Corporations Act to fluoridate water. Section 240(1) gave the Councilpower to construct waterworks for the supply of pure water for the use of itsinhabitants. The Privy Council found that the power to fluoridate was implicit in theterms of s 240.1310 It was previously thought that it worked systemically, that is by the swallowing of fluoridatedwater.11 New Health (CA), above n 2, at [58]–[59]; and New Health (HC), above n 4, at [25].12 Attorney-General v Lower Hutt City [1965] NZLR 116 (PC) [Lower Hutt City (PC)].13 At 124 per Lord Upjohn.[14] When the Municipal Corporations Act was replaced by the Local GovernmentAct 1974 (LGA 1974) the power continued under s 379 of the LGA 1974. When theLGA 1974 was replaced by the Local Government Act 2002 (LGA 2002) the provisionin the LGA 2002 which required local authorities to continue to provide water services(s 130) had to be interpreted as reflecting Parliament's knowledge that fluoridationwas lawful under the earlier legislation by virtue of the Lower Hutt City case and thuscould be seen to have authorised the continuation of the practice of fluoridating water.To the extent this was in doubt, the doubt was removed by the provisions introducedin Part 2A of the Health Act 1956, which we will discuss later. New Health arguedthat this line of reasoning was flawed because of an error in the reasoning of the PrivyCouncil and because s 130 of the LGA 2002 is materially different from s 240 of theMunicipal Corporations Act.[15] The starting point for an evaluation of this submission is a consideration of thedecision of the Privy Council in the Lower Hutt City case.The Lower Hutt City case[16] The issue in the Lower Hutt City case was whether the Lower Hutt City Councilhad legal authority to add fluoride to water. The statutory provision relied on by theCouncil was s 240(1) of the Municipal Corporations Act 1954, under which theCouncil had power to "construct waterworks for the supply of pure water for the useof the inhabitants of the district". Also relevant was s 288 of the MunicipalCorporations Act, which gave the Council power to do all things necessary for thepreservation of public health and convenience and for carrying into effect theprovisions of the Health Act 1956.[17] In the Supreme Court McGregor J found that s 240(1) did not give the Councilpower to add fluoride to the water supply but that s 288 did.1414 Attorney-General v Lower Hutt City [1964] NZLR 438 (SC). The reasons of McGregor J arediscussed in the reasons of William Young J below at [195] and those of the Court of Appeal arediscussed at [196]–[197].[18] The Court of Appeal dismissed an appeal against the decision of McGregor J,but decided that the authority for fluoridation was contained in s 240 of the MunicipalCorporations Act rather than s 288.15 Turner J dissented.[19] The Privy Council dismissed an appeal against the decision of the Court ofAppeal. Like the Court of Appeal, their Lordships considered that the provisionauthorising fluoridation was s 240 of the Municipal Corporations Act. The essence ofthe decision is contained in the following extract:16Their Lordships are of opinion that an act empowering local authorities tosupply "pure water" should receive a "fair large and liberal" construction asprovided by s 5(j) of the Acts Interpretation Act 1924. They are of opinionthat as a matter of common sense there is but little difference for the relativepurpose between the adjectives "pure" and "wholesome". Their Lordshipsthink it is an unnecessarily restrictive construction to hold (as did McGregor J)that, because the supply of water was already pure there is no power to add toits constituents merely to provide medicated pure water, i.e. water to which anaddition is made solely for the health of the consumers. The water of LowerHutt is no doubt pure in its natural state but it is very deficient in one of thenatural constituents normally to be found in water in most parts of the world.The addition of fluoride adds no impurity and the water remains not only waterbut pure water and it becomes a greatly improved and still natural watercontaining no foreign elements. Their Lordships can feel no doubt that powerto do this is necessarily implicit in the terms of s 240 and that the respondentcorporation is thereby empowered to make this addition and they agree withthe observations of North P and McCarthy J already quoted. They think toothat it is material to note that, while their Lordships do not rely on s 288,nevertheless that section makes it clear that the respondent corporation is thehealth authority for the area and s 240 must be construed in the light of thatfact; that is an additional reason for giving a liberal construction to the section.Their Lordships think it right to add that had the natural water of Lower Huttbeen found to be impure it would of course have been the duty of therespondent corporation to add such substances as were necessary to removeor neutralise those impurities; but that water having been made pure they cansee no reason why fluoride should not be added to the water so purified inorder to improve the dental health of the inhabitants.Legislative history[20] The Municipal Corporations Act was replaced by the LGA 1974. Section 379of the LGA 1974 was to the same effect as s 240 of the Municipal Corporations Actand, as recorded in both the High Court and Court of Appeal judgments, it is not15 Attorney-General v Lower Hutt City [1964] NZLR 445 (CA).16 Lower Hutt City (PC), above n 12, at 124–125.disputed that the provisions are not materially different.17 That being the case, thepower to fluoridate under the Municipal Corporations Act continued to apply underthe LGA 1974.18[21] The LGA 1974 was in turn replaced by the LGA 2002, which is the legislationthat now governs the operation of local authorities.Statutory provisions: analysis of High Court and Court of Appeal[22] Rodney Hansen J set out an extensive discussion of the LGA 2002 in hisjudgment.19 The important feature of the LGA 2002 is that it took a materiallydifferent approach in the provisions providing for the powers of local authorities fromthat taken in the Municipal Corporations Act and the LGA 1974. The prescriptiveempowering provisions in the earlier Acts were replaced by "a more broadlyempowering legislative framework that focuses councils on meeting the needs of theircommunities".20 There are however, specific provisions relating to the provision ofdrinking water.[23] An important provision of the LGA 2002 is s 12, which gives local authoritiesa general power of competence. This is expressed in s 12(2)(a) as "full capacity tocarry on or undertake any activity or business, do any act, or enter into any transaction"for the purposes of performing its role. Section 12(2)(b) provides that a local authorityhas "full rights, powers, and privileges" for the purpose of s 12(2)(a). Section 12(3)provides that s 12(2) is subject to the LGA 2002 itself, any other enactment, and thegeneral law.[24] Under s 125 of the LGA 2002, local authorities are required to assess from timeto time the provision within the district of water services. "Water services" is definedin s 124 as including "water supply", which in turn is defined as "the provision ofdrinking water to communities by network reticulation to the point of supply of each17 Section 379 of the Local Government Act 1974 was inserted by the Local GovernmentAmendment Act 1979.18 New Health (HC), above n 4, at [16]; and New Health (CA), above n 2, at [23].19 New Health (HC), above n 4, at [17]–[25].20 Local Government Bill 2001 (191-1) (explanatory note) at 1.dwellinghouse and commercial premise to which drinking water is supplied".Section 126 provides for the purpose of assessments under s 125. The purpose is: to assess, from a public health perspective, the adequacy of water and othersanitary services available to communities within a [local] authority's district,in light of—(a) the health risks to communities arising from any absence of, ordeficiency in, water services;(b) the quality of services currently available to communities within thedistrict; and(d) the extent to which drinking water provided by water supply servicesmeets applicable regulatory standards;[25] The Court of Appeal noted that the emphasis in this provision is on the role oflocal authorities in the delivery of water supplies from a health perspective, noting thatthere is a direct link made with applicable regulatory standards for drinking water.21[26] Both the High Court and Court of Appeal attached particular significance tos 130 of the LGA 2002. Section 130(1) and (2) provide:Obligation to maintain water services(1) This subpart applies to a local government organisation that provideswater services to communities within its district or region—(a) at the commencement of this section:(b) at any time after the commencement of this section.(2) A local government organisation to which this section applies mustcontinue to provide water services and maintain its capacity to meetits obligations under this subpart.[27] Rodney Hansen J noted that the LGA 2002 refers to "drinking water" ratherthan "pure water", the term used in both the Municipal Corporations Act and the LGA1974. He saw this as a largely semantic difference and said it could not be understoodas indicating an intention on the part of Parliament to narrow a local authority's power21 New Health (CA), above n 2, at [37].in relation to the supply of water.22 He considered that the use of the term "continueto provide water services" indicated that given the authorisation to fluoridate thatapplied under the Municipal Corporations Act and the LGA 1974, Parliament must betaken to have intended to empower local authorities to fluoridate water.23 The Courtof Appeal endorsed that reasoning.24[28] Both the High Court and Court of Appeal saw the provisions of the Health Act1956 as resolving any doubts about the interpretation of s 130.25 The Health Actassigns particular responsibilities to local authorities in relation to public health.Under s 23, local authorities are required to "improve, promote, and protect publichealth" within their districts.26[29] The Health Act was amended in 200827 to impose duties on suppliers ofdrinking water to, among other things, take all practicable steps to comply withdrinking-water standards issued by the Minister of Health.28 The 2008 amendmentinserted a new Part (Part 2A) into the Act.29 Section 69A(1) sets out the purpose ofPart 2A, which is "to protect the health and safety of people and communities bypromoting adequate supplies of safe and wholesome drinking water from all drinking-water supplies".[30] Section 69O provides for the Minister of Health to issue or adopt standardsapplicable to drinking water.30 The drinking water standard issued pursuant to s 69Ospecifies that the maximum acceptable value (MAV) for fluoride is 1.5 ppm.31 Thestandard includes a comment in relation to fluoride that indicates that the Ministry ofHealth recommends that fluoride content for drinking water in New Zealand shouldbe in the range of 0.7–1.0 mg/L.3222 New Health (HC), above n 4, at [24]–[25].23 At [25].24 New Health (CA), above n 2, at [58].25 New Health (HC), above n 4, at [25]; and New Health (CA), above n 2, at [59].26 The Health Act 1920 contained a similar obligation in s 20.27 By the Health (Drinking Water) Amendment Act 2007.28 Health Act, s 69V(1).29 Health (Drinking Water) Amendment Act, s 7.30 Health Act, s 69O(1)(a).31 Ministry of Health Drinking-water Standards for New Zealand 2005 (Revised 2008)(October 2008) at 8 (Table 2.2).32 mg/L stands for milligrams per litre, and is the same as parts per million.[31] Water that complies with the standards is potable (as that term is defined ins 69G) which in turn means it is "drinking water" as defined in the same section.33[32] Section 69O(3)(c) provides that the drinking-water standards "must not includeany requirement that fluoride be added to drinking water". The reason for theinclusion of this provision in Part 2A was explained in the report of the SelectCommittee which considered the Health (Drinking Water) Amendment Bill 2006,which, when passed, introduced Part 2A into the Health Act.34 The Select CommitteeReport said:35New clause 69O sets out the process by which the Minister may issue, adopt,amend or revoke drinking-water standards. Although new clause 69O or thestandards were never intended to enable the mandatory fluoridation of water,in theory it is possible that they might be applied this way. To prevent such apossibility we recommend inserting a new subclause (3)(c).[33] The Report recorded that the Committee had made an amendment to the Bill"explicitly disallowing the mandatory fluoridation of water through the drinking waterstandards".36[34] Both the High Court and Court of Appeal saw this provision as a strongindication that Parliament specifically authorised the inclusion of fluoride in drinkingwater and that the purpose of s 69O(3)(c) was to avoid any suggestion that Parliamentwas requiring a drinking water supplier to fluoridate.37Our analysis[35] New Health took issue with all aspects of the reasoning of the Courts below.Its counsel, Ms Scholtens QC, argued that express authorisation for fluoridation ofwater was required, and that none appeared in either the LGA 2002 or the Health Act.3833 Potable is defined as water "that does not contain or exhibit any determinands to any extent thatexceeds the maximum acceptable values specified in the drinking-water standards". Fluorideis a determinand for the purposes of that definition.34 Health (Drinking Water) Amendment Bill 2006 (52-2) (select committee report).35 At 5.36 At 2.37 New Health (CA), above n 2, at [45]; and New Health (HC), above n 4, at [36].38 In her written submissions Ms Scholtens QC accepted fluoridation could be lawful if authorisedby necessary implication from a statutory provision but argued no such implication was"necessary" in this case.[36] For the Council, Mr Laing supported the reasoning of the Court of Appeal, withone addition. He argued that the starting point for the analysis of the Council's powerswas s 12 of the LGA 2002, the general competence provision.39[37] Mr Laing argued that s 12(2)(a) gives the Council full capacity to do any actfor the purpose of performing its role, which in the present context included its roleunder s 23 of the Health Act to improve, promote and protect public health within itsdistrict.40 The general power of competence in s 12(2) is subject to other provisionsof the LGA 2002, other enactments and the general law.41 Mr Laing argued that therewas nothing in the LGA 2002 or the Health Act limiting the Council's power ofcompetence in relation to fluoridation: in fact the indications in the Health Act aresupportive of the power to fluoridate.[38] From that starting point, Mr Laing adopted the analysis of the Court of Appeal,namely that s 130 provided for the continuation of the provision of water which, in thecase of councils fluoridating water, contemplated the continuation of the provision offluoridated water. Thus, he argued, when read together with s 12 (rather than as astandalone provision, as the Court of Appeal had done) s 130 indicated thatParliament's intention in enacting s 12 was that it included the power to fluoridate.That, in turn, was supported by s 23 and Part 2A of the Health Act, as the Court ofAppeal found.[39] Ms Scholtens argued that s 130 of the LGA 2002 merely provided for localauthorities that were providing water in their districts prior to the coming into force ofthe LGA 2002 to continue to provide water. She said there was no proper basis toimply that this authorised a local authority providing water containing fluoride thathad been added for a therapeutic purpose to continue to do so.[40] We accept that s 130 is essentially a continuation power focusing on ongoingsupply of water, rather than an express power to fluoridate. But we consider that s 130must be read against the background of the general competence power in s 12 of the39 Section 12 is discussed above at [23].40 See above at [28].41 Section 12(3), discussed above at [23].LGA 2002 and the broader public health powers and responsibilities set out inParts 2 and 2A of the Health Act. When read in that context, s 130 can be seen as anindication of Parliament's intention not to change the law in enacting the LGA 2002to remove from local authorities the power to fluoridate that they were recognised ashaving immediately prior to the LGA 2002 coming into force.[41] Ms Scholtens said there was nothing to indicate that Parliament addressed itsmind to fluoridation or that it was aware of the Lower Hutt City case when enactingthe LGA 2002. However, as Mr Laing submitted, a lack of debate about fluoridationin the parliamentary process leading to the enactment of the LGA 2002 can equally beseen as an indicator of an intention to maintain the status quo. We think it is mostunlikely that Parliament was not aware that local authorities serving almost half thepopulation of New Zealand were fluoridating water, following a government policy infavour of fluoridation that had been consistently promulgated for almost 50 years. Asnoted earlier, fluoridation of drinking water supplies in New Zealand had started in1954, so fluoridation itself had also been occurring for those 50 years. We considerthat a withdrawal of the power of local authorities to fluoridate water would have beenmore clearly signalled if Parliament had intended that outcome.[42] Anticipating that response, Ms Scholtens argued that, even if it had beenParliament's intention to continue the authorisation to fluoridate, it had failed to giveeffect to that intention when enacting the LGA 2002. As is apparent from the analysisabove, we do not agree.[43] Ms Scholtens argued that the Lower Hutt City case should no longer be seenas good law. She argued the Privy Council had been wrong that fluoridated waterremained "pure": she said HFA and SSF are silicofluorides so are different fromcalcium fluoride which occurs naturally in water. Their introduction into waterintroduces impurities. Mr Laing questioned this given the absence of any reference tothis in the Lower Hutt City judgments. We do not need to engage with this becausethe significance of the Lower Hutt City decision is not the detail of the reasoning butthat it established that fluoridation was lawful (and had been since the 1950s) and theLGA 2002 was passed against that background.[44] Ms Scholtens argued that a power to fluoridate would be regulatory or coercivein nature, and would therefore not come within a general power of competence. Sheargued that, if it were a regulatory power, one would expect to see it dealt withexpressly in Part 8 of the LGA 2002, which sets out other specific regulatory powersof local authorities. In the High Court, Rodney Hansen J found that the addition offluoride could not be classified as regulatory: to the extent there is a regulatory powerin relation to fluoridation, it is the power of the Minister of Health to set drinking-waterstandards.42 We agree.[45] Nor do we consider it to be a coercive power. Ms Scholtens also argued it wasa coercive power, because it coerced those living in the relevant area to consumefluoridated water. As Mr Laing pointed out, the same could be said about any measureto treat water to make it safe for drinking. The fluoridation power may be contrastedwith a power to require action on the part of a person, that is, a power that has similarcharacteristics to a regulatory power. We do not think a power to treat drinking waterto be provided to homes in a local authority area (whether with fluoride or any othersubstance) is a power of that kind.[46] Ms Scholtens argued that, because powers in relation to water supply are setout in Part 7 of the LGA 2002, it was necessary to identify a specific power tofluoridate in that part of the LGA 2002. We do not consider there is any reason to readdown s 12 in that way. Section 12(3) provides that s 12(2) is subject to otherprovisions in the LGA 2002 but we do not consider the provisions of Part 7 indicateany limitation on the general competence power in s 12(2).[47] We see s 23 of the Health Act as an important step in the reasoning, because itdefines the "role" of the Council for the purposes of s 12 of the LGA 2002. Section 23appears in Part 2 of the Health Act, which deals with the powers and duties of localauthorities. As already noted, s 23 imposes a duty on local authorities to "improve,promote, and protect public health" within their districts. Section 23(c) empowers anddirects local authorities to do various things, including:(c) if satisfied that any nuisance, or any condition likely to be injurious tohealth or offensive, exists in the district, to cause all proper steps to be42 New Health (HC), above n 4, at [43].taken to secure the abatement of the nuisance or the removal of thecondition:[48] Mr Laing argued that the duty to improve, promote, and protect public healtharises in this case given the evidence of a high level of dental decay among thepopulations of Waverley and Patea.43 He also argued that dental decay is a "nuisance"or "condition" coming within this provision. We accept that dental decay is a"condition likely to be injurious to health", but agree with Ms Scholtens that it cannotbe described as a "nuisance". We agree that s 23 supports the Council's position thatits public health duty under the Health Act includes a duty, with a concomitant powerin s 12 of the LGA 2002, to take steps to remove the condition of dental decay.[49] Part 2A of the Health Act is also an important aspect of the reasoning.Section 69A(1) of the Health Act says that the purpose of Part 2A is "to protect thehealth and safety of people and communities by promoting adequate supplies of safeand wholesome drinking water from all drinking-water supplies". The term "drinkingwater" is defined as water that is potable or held out as being suitable for drinking.44"Potable" means water "that does not contain or exhibit any determinands to anyextent that exceeds the maximum acceptable values specified in the drinking-waterstandards". Determinand is also defined in s 69G. It means:(a) a substance or organism in water in circumstances where the extent towhich any water contains that substance or organism may bedetermined or estimated reasonably accurately; or(b) a characteristic or possible characteristic of water in circumstanceswhere the extent to which any water exhibits that characteristic maybe determined or estimated reasonably accurately[50] "Wholesome" is defined in s 69G as meaning, in relation to drinking water,water that is potable and does not contain or exhibit any determinand in an amountthat exceeds the value stated in the guideline values for aesthetic determinands in thedrinking-water standards as being the maximum extent to which drinking water maycontain or exhibit the determinand without being likely to have an adverse aesthetic43 There was evidence before the High Court from Sandra Pryor, a dentist practising in Hawera andPatea, that she had undertaken a study that indicated the level of tooth decay in teenagers in Pateawas very high and tooth decay in Patea was considerably worse than in Hawera, where the wateris fluoridated.44 Section 69G.effect on the drinking water. Thus, wholesome water is not only water that is safe todrink (potable) but also is aesthetically pleasing to drink.[51] Section 69O of the Health Act provides for the Minister of Health to issuedrinking-water standards. The current standards are the Drinking-water Standards forNew Zealand 2005 (Revised 2008). Under s 69O(2), the standards adopted by theMinister may provide for a number of matters including the requirements for drinkingwater safety and composition.45 Section 69O(2)(h) provides that the drinking-waterstandards may deal with "any other matters relating to drinking water that mayaffect public health". Section 69O(3)(c) provides that the drinking-water standards"must not include any requirement that fluoride be added to drinking water".[52] Thus the provision allowing for drinking-water standards to provide formatters affecting public health is clarified and qualified by the prohibition on theinclusion in drinking-water standards of any requirement that fluoride be added todrinking water. The express exclusion of the possibility that the Minister wouldrequire a local authority to fluoridate its water supply makes sense only if a localauthority was permitted to fluoridate water, otherwise the provision would beredundant. This indicates that the "matters that may affect public health" that maybe provided for in the drinking-water standards include the public health concern thatprompted the Council's decision to fluoridate drinking water in Patea and Waverley,namely a high level of tooth decay.[53] We acknowledge the point made by Ms Scholtens that a provision excludingmandatory fluoridation is not the same as a provision authorising fluoridation. We donot see s 69O(3)(c) as an authorising provision. Rather, it provides support for theproposition that fluoridation is otherwise authorised because, unless that is so,s 69O(3)(c) makes no sense.45 Section 69O(2)(a) and (b).[54] It is also notable that the drinking-water standards set the maximum acceptablevalue for fluoride at 1.5 mg/L.46 The reference to the maximum acceptable value forfluoride is footnoted with the following footnote:For oral health reasons, the Ministry of Health recommends that the fluoridecontent for drinking-water in New Zealand be in the range of 0.7–1.0 mg/L;this is not a [maximum acceptable value].[55] Suppliers of drinking water are required under s 69V of the Health Act to takeall practicable steps to ensure that the drinking water they supply complies with thedrinking-water standards. Fluoridated water where the fluoride content is between0.7 and 1.0 ppm is well within the maximum acceptable value of 1.5 ppm.[56] We conclude that the Council (in common with other local authorities) haspower to fluoridate drinking water. The LGA 2002 was enacted against a backgroundthat fluoridation was, and had been for decades, lawful. The Council's generalcompetence power read against that background and alongside the expresscontinuation power in s 130 includes the power to fluoridate. That this is so isconfirmed by s 23 and Part 2A of the Health Act, in particular the explicit reference tofluoridation in s 69O(3)(c).[57] As mentioned earlier, s 12(3) of the LGA 2002 says that s 12(2) is subject tothe provisions of any other enactment. New Health argues that the Bill of Rights Actlimits the scope of s 12(2). We will revert to that argument after considering whethers 11 of the Bill of Rights Act is engaged.Does fluoridating water engage s 11 of the Bill of Rights Act?[58] Section 11 of the Bill of Rights Act provides:11 Right to refuse to undergo medical treatmentEveryone has the right to refuse to undergo any medical treatment.[59] Section 11 is one of four provisions grouped under the heading "Life andsecurity of the person". The others are s 8 (right not to be deprived of life), s 9 (right46 Drinking-water Standards for New Zealand, above n 31, at 8 (Table 2.2). 1.5 mg/L is the same as1.5 ppm.not to be subjected to torture or cruel treatment) and s 10 (right not to be subjected tomedical or scientific experimentation).[60] New Health's case is that fluoridation of drinking water involving the additionof a pharmacologically active substance for the purpose of treating and preventingdental decay amounts to medical treatment for the purposes of s 11. Residents of areaswhere water is fluoridated have no realistic alternative source of drinking water andtherefore cannot avoid ingesting the fluoridated water. This means they are unable torefuse to undergo this form of medical treatment, which breaches their right to refusemedical treatment under s 11.The decisions of the High Court and Court of Appeal[61] Rodney Hansen J accepted New Health's submission that the process offluoridation had a therapeutic objective.47[62] Rodney Hansen J considered that fluoridation could not be relevantlydistinguished from adding chlorine or any other substance for the purpose ofdisinfecting drinking water, as both involved adding a chemical compound to thewater, both were undertaken for the prevention of disease and it was not material thatone worked by adding something to the water while the other achieved its purpose bytaking unwanted organisms out of it.48 He also equated fluoridation with the additionof iodine to salt, the addition of folic acid to bread and the pasteurisation of milk.49He did not consider that a person drinking fluoridated water or ingesting iodised saltwould normally be described as "undergoing" medical treatment.50 He saw thecontrast between the use of the term "undergo" in s 11 and "subjected to" in ss 9 and10 as significant.51[63] Rodney Hansen J considered that the language of s 11 when read in contextsuggested that the right to refuse medical treatment was engaged only when treatmenttook place in the context of a therapeutic relationship in which medical services are47 New Health (HC), above n 4, at [58].48 At [80].49 At [81].50 At [82].51 At [83].provided to an individual.52 He considered that the extension of s 11 to cover publichealth measures intended to benefit all or a section of the populace would be asignificant step, and did not consider that the language of the Bill of Rights Actsupported such an extension, and nor did internationally recognised human rightsnorms require it.53 He concluded:54Section 11 ensures that within the context of a therapeutic relationship thereis a right to refuse medical treatment. To the extent that public health measuresmay lead to therapeutic outcomes and constitute medical treatment in thebroad sense, an individual has no right to refuse, at least not so as to produceoutcomes that will deny others the benefit of such measures.[64] Rodney Hansen J accepted that if the supply of fluoridated water amounted tomedical treatment, a consumer in the relevant area would not have the practical abilityto refuse treatment.55 However he saw the resulting intrusion on an individual's rightto refuse to undergo medical treatment as minimal. He regarded this as relevant to thedetermination of whether the s 11 right was engaged, rather than whether theinfringement was trivial or technical in nature, which would fall for considerationunder s 5 of the Bill of Rights Act.56[65] The Court of Appeal upheld the decision of Rodney Hansen J. It adopted theapproach to interpretation of the Bill of Rights Act articulated by Dickson J in relationto the Canadian Charter of Rights and Freedoms (the Canadian Charter) in R v Big MDrug Mart Ltd.57 In that case Dickson J emphasised that a purposive interpretationwas required, taking into account the purpose of the right or freedom in question, thelanguage chosen to articulate it, the historical origins of the concepts enshrined in theright and the meaning and purpose of other specific rights and freedoms with which itis associated. He said that the interpretation should be "a generous rather than alegalistic one" but qualified this by adding that "it is important not to overshoot theactual purpose of the right or freedom in question".5852 At [84].53 At [85].54 At [89].55 At [94].56 At [95].57 New Health (CA), above n 2, at [76], citing R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 344.58 At 344.[66] The Court noted that the common law had, prior to the enactment of the Billof Rights Act, accepted that consent of a patient was a fundamental prerequisite tomedical or surgical treatment.59 It referred to the reference in the White Paper thatpreceded the Bill of Rights Act to an anticipation that what is now s 11:60 would permit persons to be treated against their will only where this isnecessary to protect the health and safety of other persons, and not simplywhere their refusal of treatment will detrimentally affect their own health.The Court saw this reference as an indicator that the authors of the White Paper hadin mind the interrelated issues of consent to medical treatment or refusal of suchconsent in a therapeutic setting. The Court noted there was nothing in the White Paperto suggest the idea of medical treatment was being considered in any broader contextthan the common law already contemplated.61[67] The Court of Appeal considered that extending the scope of s 11 to publichealth measures would necessarily engage a conflict of rights. The Court referred toart 12 of the International Covenant on Economic, Social and Cultural Rights(ICESCR), which recognises the right to enjoy the highest attainable standard ofphysical and mental health.62 New Zealand gives effect to art 12 through the NewZealand Public Health and Disability Act 2000.[68] Taking all these factors into account, the Court of Appeal concluded thatRodney Hansen J had been correct to find that the right guaranteed by s 11 to refuseto undergo medical treatment did not extend to public health measures such asfluoridation of drinking water intended to benefit the public at large.63[69] The Court of Appeal also referred to the conclusion reached byRodney Hansen J that the addition of iodine to salt, folic acid to bread and thepasteurisation of milk were equivalent interventions to fluoridation of water in the59 New Health (CA), above n 2, at [79].60 At [80], citing Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985]I AJHR A6 [White Paper] at [10.166].61 At [81].62 At [83], citing the International Covenant on Economic, Social and Cultural Rights 933 UNTS 3(opened for signature 16 December 1966, entered into force 3 January 1976), art 12. New Zealandis a signatory to this Covenant.63 At [87].sense that they are all made to achieve public health benefits. The Court recorded itsagreement with that conclusion.64 The Court also agreed that if fluoridation is medicaltreatment, it is not realistic to suggest a person could avoid consumption of fluoridatedwater.65Issues[70] Ms Scholtens took issue with a number of aspects of the Court of Appeal'sdecision. She argued:(a) the natural meaning of the terms "medical" and "treatment" were broad,and included any activity involving medical method and medicalpurpose which included fluoridation;(b) if interpreted purposively, s 11 covered all medical treatment whetherprovided directly or indirectly;(c) the Courts below were wrong to take into account the potential conflictbetween s 11 and rights to good public health, because any such conflictfell to be resolved under s 5 of the Bill of Rights Act, rather than as partof the exercise of defining the right recognised in s 11;(d) in any event, there was, in truth, no conflict between s 11 and rights togood public health, which incorporate a respect for individualautonomy;(e) the Court of Appeal was wrong to limit the scope of s 11 by referenceto the common law that pre-dated the Bill of Rights Act; and(f) the Court of Appeal was wrong to say that the term "undergo" denotedsomething different from "subjected to", the words used in ss 9 and 10of the Bill of Rights Act.64 At [95]–[97].65 At [99].[71] Mr Powell, who led this aspect of the argument for the respondents, supportedthe Court of Appeal's analysis. His submissions were adopted by Mr Laing for theCouncil.Natural meaning[72] Ms Scholtens said that the natural meaning of the terms "medical" and"treatment" were broad. She noted that the White Paper referred to the term medicalbeing used in a "comprehensive sense".66 The Concise Oxford English Dictionarydefines medical as "of or relating to the science or practice of medicine".67 Similarly,the dictionary definition of "treatment" is "the process or manner of treating someoneor something in a certain way", "medical care for an illness or injury" and "the use ofa substance or process to preserve or give particular properties to something".[73] Ms Scholtens also referred to Mosby's Dictionary of Medicine,68 whichemphasises that medical treatment had two essential features, namely a medicalpurpose and a medical method. She said it was clear that fluoridation had these twofeatures, the purpose being to treat and prevent dental decay and the method being theuse of a pharmacologically active substance to promote mineralisation of toothenamel.[74] We agree that fluoridation falls within the description of the concept of medicaltreatment as defined in the dictionaries referred to by Ms Scholtens, but, as sheaccepted, the interpretive exercise in relation to s 11 involves a purposiveinterpretation. That is not necessarily assisted by dictionary definitions.Direct or indirect treatment[75] Ms Scholtens argued that a purposive interpretation of s 11 did not support thedistinction drawn by the High Court and Court of Appeal between direct and indirectmeans of administering medical treatment. She noted that s 11 was one of four66 White Paper, above n 60, at [10.167].67 Judy Pearsall (ed) Concise Oxford English Dictionary (10th ed rev, Oxford University Press,Oxford, 2002), definition of "medical" at 885, and "treatment" at 1527.68 Peter Harris, Sue Nagy and Nicholas Vardaxis Mosby's Dictionary of Medicine, Nursing andHealth Professions – Australian & New Zealand Edition (2nd ed, Elsevier, Chatswood (NSW),2009).sections included in the Bill of Rights Act relating to the life and security of a person(ss 8–11, noted earlier).69 All of these sections are directed towards securing bodilyintegrity. Section 11 is an example of the principle that every individual has the rightto determine for themselves what they do or do not do with their own body. There isno logical reason to exclude from the scope of s 11 indirect medical treatment whichcan affect bodily integrity as much as direct treatment.[76] Ms Scholtens said the purpose of fluoridating water is to treat and preventdental decay and that has the same purpose and effect as ingestion of fluoride tabletsprescribed by a doctor or purchased from a pharmacist. There is no doubt the latterwould amount to medical treatment and Ms Scholtens argued that there was nojustification for finding that the ingesting of fluoridated water was any different,merely because it was provided on a large scale and as part of a public healthprogramme. She argued there was nothing in the text of s 11 to justify that distinction:indeed, the reference to "any" medical treatment in s 11 suggests the contrary.[77] We accept that there is nothing in the text of s 11 to exclude indirect medicaltreatment, but we do not attach any significance to the term "any". There is in principleno difference between the provision of a pharmacologically active substance fortherapeutic purpose through an individual treatment to a single patient and globaltreatment of the kind resulting from fluoridation. So we accept New Health's positionthat the wording of s 11 does not support an exclusion of public health measures. But,as Mr Powell pointed out, the more important issue is whether the scope of s 11 shouldbe limited to exclude situations where the recognition of a right of an individual torefuse treatment through ingesting fluoridated water comes into tension with the rightsof others. We will revert to that later.Conflict of rights[78] New Health argues that the Courts below adopted an incorrect methodology totake into account the issue of competing rights when determining the scope of the rightrecognised in s 11 of the Bill of Rights Act.70 New Health argues that, to the extent69 See above at [59].70 Above at [67].there is a conflict between different rights, that was an issue that ought to be addressedin the context of s 5 of the Bill of Rights Act, rather than in the interpretation of thescope of the right itself.[79] New Health argued that the approach taken by the Court of Appeal wasinconsistent with that taken by a full Court of the Court of Appeal in Ministry ofHealth v Atkinson.71 Atkinson dealt with a case concerning s 19 of the Bill of RightsAct (the right to freedom from discrimination). In that case the Court rejected anargument advanced on behalf of the Ministry of Health that matters of justification fordiscrimination ought to be brought to bear in the determination as to whetherdifferential treatment of a person or group of persons amounts to discrimination, ratherthan left for consideration under s 5.72 The Court noted that the reference to"discrimination" in s 19 was not qualified in any way, contrasting it with s 21, whichdeals with the right to be free from "unreasonable" search and seizure.73 It is notablethat s 11 is also expressed in unqualified terms. The Court determined that the correctapproach was to interpret the right to be free from discrimination in light of the textand purpose of the Bill of Rights Act, and then consider matters of justification whendealing with the application of s 5 (determining whether the discrimination – or in thepresent case compulsory medical treatment – is justified in a free and democraticsociety). In R v Hansen, the Chief Justice said interpretation of the scope of rightsunder the Bill of Rights Act and the question of justification under s 5 should be keptseparate: the latter was not relevant at the interpretation stage.74[80] Mr Powell accepted that s 5 provides a context in which to balance thisconflict. However he argued that it was proper for the Court of Appeal to have askedwhether the immediate encountering of such a conflict meant that the s 11 right wasnot intended to be drawn in a way that engaged that conflict. He emphasised thesignificance of art 12 of the ICESCR, guaranteeing the right to a minimum standardof health. He said the upholding of an individual's right not to receive fluoridated71 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456.72 At [109]–[110].73 At [113].74 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [18]–[22]. See also Andrew Butler and PetraButler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015)at [6.6.1]–[6.6.10]; and Paul Rishworth and others The New Zealand Bill of Rights (OxfordUniversity Press, Melbourne, 2003) at 52–56.water necessarily would cause the health benefits that flow to the community fromfluoridation to cease.[81] Mr Powell also argued that reliance on s 5 to resolve the conflict of rights maybe inimical to the protection of human rights. He referred us to the observation ofProfessor Hogg about the close relationship between the scope of rights and thestandard of justification required for the purpose of s 1 of the Canadian Charter ofRights and Freedoms (equivalent to s 5 of the Bill of Rights Act). Professor Hoggnoted that the broader the scope of the rights, the more relaxed the standard ofjustification must be in order to ensure that the right does not protect that which isunworthy of a constitutional guarantee.75 He added that restricting the scope of rightsavoids concerns about "wasteful floods of litigation" and limits the occasions whenjudges have to review the policy choices of legislative bodies.76[82] We consider that the Court of Appeal was wrong to take into account theconflict of rights at the interpretation stage in this case. It is clear that the conflict wasa material factor in the Court's decision to restrict the scope of s 11 to exclude publichealth measures. That had the effect of potentially excluding from the protection ofs 11 public health measures that could, at least hypothetically, involve the massadministration of medication. In the present context, we consider that the resolutionof the conflict of rights is better done in the context of s 5. That allows the meaningof "medical treatment" to be determined on the orthodox approach based on text andpurpose, taking the generous approach that is adopted in interpreting the Bill of RightsAct. The Crown is then able, if necessary, to justify the provision under challengeunder s 5, which allows for a reasoned consideration of the justification and whetherit is "demonstrable". We do not consider that Professor Hogg's fear of an opening ofthe floodgates of Bill of Rights Act litigation (in cases involving public healthmeasures) is likely.75 Peter Hogg "Interpreting the Charter of Rights: Generosity and Justification" (1990) 28 OsgoodeHall LJ 817.76 Peter Hogg Constitutional Law of Canada (5th ed, Carswell, Toronto, 2007) at [36.8(b)].Conflict with art 12[83] New Health argues that the Court of Appeal was wrong to say that s 11 of theBill of Rights Act would, if interpreted to incorporate public health measures, conflictwith art 12 of the ICESCR. On the contrary, if correctly interpreted, art 12 supportsNew Health's interpretation of s 11 because it includes a right to be free fromnon-consensual medical treatment, and makes no provision for compulsory medicaltreatment. New Health points to General Comment No 14 to the Covenant, whichrefers to the right to health containing both freedoms and entitlements, one of whichis to be free from non-consensual medical treatment and experimentation.77[84] We accept this argument as far as it goes, but it seems to us to miss the pointthat was being made by the Court of Appeal. The underlying assumption made by theCourt of Appeal was that the majority of inhabitants in areas with fluoridated waterhave no objection to it and derive a health benefit from it. If the invocation of s 11 byone or more inhabitants of the area brings about a cessation of fluoridation, then theconsenting majority are deprived of the health benefit. If the individual seeking tochallenge fluoridation relies on art 12 itself, the same point arises. The objector canclaim to be exercising a right under art 12, as can a proponent of fluoridation whowishes to have access to the health benefits it brings.Common law[85] At the hearing of the appeal, Ms Scholtens challenged the Court of Appeal'sobservation that there was nothing in the White Paper to suggest that the idea ofmedical treatment in s 11 was being considered in any broader context than thecommon law already contemplated. She challenged both the basis of this observation(that the common law required a direct therapeutic relationship) and also theassumption that s 11 should do no more than enshrine the common law in the Bill ofRights Act.77 United Nations Committee on Economic, Social and Cultural Rights General Comment No 14 toArticle 12 of the International Covenant on Economic, Social and Cultural Rights E/C.12/2000/4(2000) at [8].[86] The Court of Appeal referred to the decision of the House of Lords in F v WestBerkshire Health Authority, which dealt with the lawfulness of a proposed sterilisationoperation on F, who was unable to consent due to her mental incapacity. Lord Goffnoted that the performance of a medical operation on a person without his or herconsent is both a trespass to the person and the criminal offence of battery.78[87] The White Paper acknowledged this general rule under existing law.79 This ledthe Court of Appeal to conclude that the authors of the White Paper had in mind theinterrelated issues of consent to medical treatment or the refusal of such consent in atherapeutic setting and then made the observation, referred to earlier, that there wasnothing to suggest that any broader context than this was contemplated by the WhitePaper.80[88] Mr Powell argued that the history behind s 11 supported the proposition thatthe reference to medical treatment in that section was intended to apply only to medicaltreatment involving the provision of treatment by a practitioner to an individual, whereconsent could be given or withdrawn. Thus he argued that public health measureswere not within s 11. This prompts the obvious concern that this would mean that theaddition to water of antibiotics or other medicines to deal with a public health situationwould also not be covered by s 11. Mr Powell's answer to this was that the fact thatthe scope of s 11 was limited to provision of medical treatment by a practitioner to anindividual does not mean that there is no legal control over the provision of, forexample, antibiotics through drinking water. Rather, Parliament has chosen toconstitutionalise the right to refuse medical treatment in an individual situation, butnot in relation to public health measures.[89] This is a much broader argument than that adopted by William Young J, whichexcludes fluoridation from the scope of s 11, given the widespread fluoridation thatwas occurring at the time of the enactment of the Bill of Rights Act and theunderstanding that this was lawful based on the Lower Hutt City case. The argumentput forward by Mr Powell would also exclude from s 11 other inoculation programmes78 New Health (CA), above n 2, at [79], citing F v West Berkshire Health Authority [1989] 2 All ER545 (HL) at 564.79 White Paper, above n 60, at [10.166].80 New Health (CA), above n 2, at [81].as well as the hypothetical situation referred to earlier, where a medicine is added tothe water supply to deal with a public health situation.[90] We see the position advocated by Mr Powell as placing the history of theprovision above the actual wording used in the provision and its underlying purpose.We do not see any basis for reading down the wording of s 11. There was no relevantcomment about the content of s 11 during the parliamentary debates that wouldsuggest that the background law was intended to influence the scope of the provision,and it is hard to see why s 11 would be limited in a way that excluded public healthtreatments, where issues of consent may well loom large.[91] Mr Powell also argued that other relevant human rights instruments such as theCanadian Charter (s 7), the Constitution of the United States (the 14th Amendment),the International Covenant on Civil and Political Rights81 (ICCPR) (art 17) and theEuropean Convention on Human Rights82 (ECHR) (art 8) contain provisionsrecognising a more generally expressed right to liberty or right to private life, underwhich the right to refuse to undergo medical treatment has been recognised. He arguedthat these provisions reflect the same underlying norms as s 11 of the Bill of RightsAct, but none had given protection for a right of the width contended for by NewHealth in the present case. He noted that arguments based on constitutional protectionagainst the fluoridation of drinking water had not succeeded elsewhere.[92] The relevant international authorities are summarised in the judgment of theHigh Court,83 and as Rodney Hansen J noted in that judgment, they do not providemuch assistance in the interpretation of s 11 of the Bill of Rights Act.84 We will referonly to the ICCPR and the ECHR.[93] Article 7 of the ICCPR recognises a right not to be subjected to torture or tocruel, inhuman or degrading treatment or punishment. That general description of theright is followed by the words "[i]n particular, no one shall be subjected without his81 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).82 Convention for the Protection of Human Rights and Fundamental Freedoms ETS No 5 (openedfor signature 4 November 1950, entered into force 3 September 1953).83 New Health (HC), above n 4, at [59]–[78].84 At [59].free consent to medical or scientific experimentation". It is obvious that s 10 of theBill of Rights Act is modelled on that aspect of art 7. It is generally recognised thatthe specific reference to medical experimentation in art 7 was in response to themedical experiments undertaken by Nazi doctors during World War II.85 Medicaltreatment without consent, when not reaching the level of degrading or inhumantreatment, was not intended to be covered by art 7.86 Sir Samuel Hoare from theUnited Kingdom delegation noted that there were "many instances of perfectlyharmless mass experiments which it might be necessary to carry out, such as theaddition of fluoride to a water supply".87 This observation can be seen as indicatingthat fluoridation was not intended to be within the scope of art 7, but it can also beseen as an acknowledgment that fluoridation was "medical". While it would supportan argument that fluoridation is not in breach of art 7, we do not see it as providingmuch assistance in determining whether fluoridation amounts to medical treatment interms of s 11 of the Bill of Rights Act.[94] Article 8 of the ECHR provides:(1) Everyone has the right to respect for his private and family life, hishome and his correspondence.(2) There shall be no interference by a public authority with the exerciseof this right except such as is in accordance with the law and isnecessary in a democratic society in the interests of national security,public safety or the economic well-being of the country, for theprevention of disorder or crime, for the protection of health or morals,or for the protection of the rights and freedoms of others.[95] This provision was relied on in a challenge to a fluoridation scheme inSwitzerland in Jehl-Doberer v Switzerland.88 The European Commission acceptedthat even minor medical treatment amounted to an interference with a person's rightto respect for private life if it was compulsory. But it did not go on to consider whetherfluoridation amounted to such medical treatment, because it saw the provision ofdrinking water as a general service as different from compulsory medical treatment85 Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev ed,NP Engel, Kehl, 2005) at 188.86 At 190.87 Summary Record of the 851st Meeting UN GAOR, 3rd Comm, 47th sess, 851st mtg, Agenda Iten32, UN Doc A/C.3/SR.851 (13 October 1958) at [32] per Sir Samuel Hoare.88 Jehl-Doberer v Switzerland (17667/91) First Chamber, EComHR 1 September 1993.and, in any event, considered that any interference with the right to respect for privatelife would be justified within the meaning of art 8(2). The European Commission onHuman Rights has, however, found that compulsory screening for tuberculosis,involving a chest x-ray and a tuberculin test amounted to medical treatment that wasprovided without consent, but also found that it was justified because it was aimed atprotecting the health of the child concerned and public health generally.89 TheEuropean Court of Human Rights has also found that compulsory vaccination againstdiphtheria was contrary to art 8(1) of the ECHR, but found it was justified because itwas aimed at the legitimate purpose of preventing the spread of diphtheria.90 Whilenot directly on point, the recognition of public health measures as amounting tomedical treatment without consent with the justification being dealt with at the secondstage of determining whether such treatment is justified under art 8(2) supports theapproach advocated by New Health in the present case."Undergo"[96] The Court of Appeal saw a distinction between the term "undergo" in s 11 andthe term "subjected to" in ss 9 and 10. We do not see this difference in wording ashaving the significance attributed to it by the Court of Appeal. If the administrationof fluoride to a person means that person undergoes medical treatment, as undoubtedlydoes occur where fluoride tablets are provided for the person to ingest them, then thereis no obvious logic in saying that the provision of the same chemical substance by adifferent methodology (through drinking water) does not also mean that the personundergoes medical treatment.Conclusion[97] We conclude that s 11 of the Bill of Rights Act applies to any compulsorymedical treatment, whether provided in the course of a practitioner/patient relationshipor as a public health measure. We consider that this represents a generousinterpretation of s 11 but does not "overshoot" the purpose of the s 11 right.89 Acmanne v Belgium (1984) 40 DR 251.90 Solomakhin v Ukraine (24429/03) Fifth Section, ECHR 24 September 2012.[98] Reading down s 11 to exclude public health measures would leave open thepossibility that compulsory mass medication as a public health measure would not bewithin the scope of s 11. There is nothing in the wording of s 11 or evident from thestatutory purpose to justify such a reading down of the provision. We accept that thisinterpretation of s 11 may bring within its net some public health measures that areobviously necessary and justified, but such justification is better dealt with under s 5than in the exercise of interpreting s 11.[99] Applying this approach, we find that fluoridation of drinking water is theprovision of medical treatment. It involves the provision of a pharmacologicallyactive substance for the purpose of treating those who ingest it for dental decay. Weagree with the Courts below that people who live or work in areas where fluoridationoccurs have no practical option but to ingest the fluoride added to the water. So thetreatment is compulsory. While drinking water from a tap is not an activity that wouldnormally be classified as undergoing medical treatment, we do not consider thatingesting fluoride added to water can be said to be qualitatively different fromingesting a fluoride tablet provided by a health practitioner.[100] We conclude that fluoridation of drinking water requires those drinking thewater to undergo medical treatment in circumstances where they are unable to refuseto do so. Subject to s 5, therefore, s 11 of the Bill of Rights Act is engaged.Is the statutory power to fluoridate a justified limitation on the s 11 right?[101] Section 5 of the Bill of Rights Act provides:Subject to section 4, the rights and freedoms contained in this Bill of Rightsmay be subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.[102] Both the High Court and the Court of Appeal adopted the guidance given inR v Hansen when addressing this issue.9191 New Health (HC), above n 4, at [98] and [101]; New Health (CA), above n 2, at [109] and [112].[103] In R v Hansen, Tipping J set out a summary of the approach adopted to theapplication of s 5 and the relationship between ss 4, 5 and 6 of the Bill of Rights Actin a number of steps. He summarised the approach as follows:92Step 1. Ascertain Parliament's intended meaning.Step 2. Ascertain whether that meaning is apparently inconsistent with arelevant right or freedom.Step 3. If apparent inconsistency is found at step 2, ascertain whether thatinconsistency is nevertheless a justified limit in terms of s 5.Step 4. If the inconsistency is a justified limit, the apparent inconsistencyat step 2 is legitimised and Parliament's intended meaning prevails.Step 5. If Parliament's intended meaning represents an unjustified limitunder s 5, the Court must examine the words in question againunder s 6, to see if it is reasonably possible for a meaning consistentor less inconsistent with the relevant right or freedom to be foundin them. If so, that meaning must be adopted.Step 6. If it is not reasonably possible to find a consistent or lessinconsistent meaning, s 4 mandates that Parliament's intendedmeaning be adopted.[104] Counsel's submissions in this Court were also directed to the approach outlinedin R v Hansen by Tipping J, with whom Blanchard and McGrath JJ agreed in generalterms.93 Given that, we will apply the same approach.94[105] We have already undertaken steps 1 and 2 in determining Parliament's intendedmeaning and ascertaining that the meaning is apparently inconsistent with s 11 of theBill of Rights Act. The issue now before us is step 3 of Tipping J's formulation. Thefirst aspect we will address is whether the limitation on s 11 is prescribed by law.92 R v Hansen, above n 74, at [92].93 At [62] per Blanchard J and [192] per McGrath J.94 The point was made in Hansen that the approach was not intended to be prescriptive: seeBlanchard J at [61] ("The Bill of Rights does not mandate any one method or sequence ofapplication "); Tipping J at [91] ("This approach, which I regard as principled rather thanprescriptive ") and at [93] ("The Moonen approach [referring to Moonen v Film and LiteratureBoard of Review [2000] 2 NZLR 9 (CA) (Moonen No 1)] was not intended to be mandatory"); andMcGrath J at [191] ("it will usually be appropriate for a court first to consider whether under s 5there is scope for a justified limitation ") and at [192] ("In [Moonen v Film and Literature Boardof Review [2002] 2 NZLR 754 (CA) (Moonen No 2) at [7]–[12]] the Court of Appeal confirmedthat the approach in Moonen (No 1) was not prescriptive and that other approaches were open").Is the limit on the right guaranteed by s 11 prescribed by law?[106] In R v Hansen, McGrath J wrote:95To be prescribed by law, limits must be identifiable and expressed withsufficient precision in an Act of Parliament, subordinate legislation or thecommon law. The limits must be neither ad hoc nor arbitrary and their natureand consequences must be clear, although the consequences need not beforeseeable with absolute certainty.[107] In the present case both the High Court and Court of Appeal adopted thatstatement of the law.96[108] Both the High Court and the Court of Appeal referred to the Canadian SupremeCourt decision in Slaight Communications Inc v Davidson and adopted the approachoutlined in that decision.97[109] Slaight concerned a decision by an administrative tribunal in relation to anemployee who claimed unjust dismissal. Lamer J explained how to approach an ordermade by the administrative tribunal when determining whether the "prescribed bylaw" requirement in s 1 of the Canadian Charter (the equivalent of s 5 of the Bill ofRights Act) applied. He said:98It would be useful, in my view, to describe the steps that must be taken todetermine the validity of an order made by an administrative tribunal, whichare as follows.First, there are two important principles that must be borne in mind:– an administrative tribunal may not exceed the jurisdiction it has bystatute; and– it must be presumed that legislation conferring an imprecise discretiondoes not confer the power to infringe the Charter unless that power isconferred expressly or by necessary implication.The application of these two principles to the exercise of a discretion leads toone of the following two situations:95 At [180] (footnote omitted).96 New Health (HC), above n 4, at [98] ; New Health (CA), above n 2, at [101].97 Slaight Communications Inc v Davidson [1989] 1 SCR 1038. See New Health (HC), above n 4,at [99]; and New Health (CA), above n 2, at [105]–[108].98 At 1079–1080 (emphasis in original). Although he was in dissent, the views of Lamer J wereadopted by the majority at 1048 and by Beetz J at 1058.1. The disputed order was made pursuant to legislation which confers,either expressly or by necessary implication, the power to infringe aprotected right.– It is then necessary to subject the legislation to the test set out ins 1 by ascertaining whether it constitutes a reasonable limit thatcan be demonstrably justified in a free and democratic society.2. The legislation pursuant to which the administrative tribunal made thedisputed order confers an imprecise discretion and does not confer,either expressly or by necessary implication, the power to limit therights guaranteed by the Charter.– It is then necessary to subject the order made to the test set out ins 1 by ascertaining whether it constitutes a reasonable limit thatcan be demonstrably justified in a free and democratic society.– if it is not thus justified, the administrative tribunal has necessarilyexceeded its jurisdiction;– if it is thus justified, on the other hand, then the administrativetribunal has acted within its jurisdiction.[110] In Wynberg v Ontario, this approach was applied by the Ontario Court ofAppeal to a case in which a Minister had exercised a broad discretionary power in away that was set to breach the rights of children under the Canadian Charter.99 TheCourt of Appeal in the judgment under appeal concluded that this was a case comingwithin situation one of the two categories set out by Lamer J.100 It concluded that theLGA 2002 and the Health Act, at least by necessary implication, clearly authorised(but did not compel) the fluoridation of drinking water. It added that the sameconclusion followed from the inclusion of a maximum acceptable value for fluoridein the Drinking-water Standards for New Zealand 2005 (Revised 2008) whichconstitute subordinate legislation authorised by the Health Act.101 It thus upheldRodney Hansen J's conclusion that any limitation on the s 11 right by the provisionsauthorising fluoridation of drinking water was prescribed by law.102[111] We have already set out our conclusion that the Council and other localauthorities have a power to fluoridate drinking water under the LGA 2002 and theHealth Act. We agree with the Court of Appeal that these legislative provisions99 Wynberg v Ontario (2006) 82 OR (3d) 561 (CA).100 New Health (CA), above n 2, at [108].101 Drinking-water Standards for New Zealand, above n 31.102 New Health (HC), above n 4, at [100].provide authorisation for the fluoridation of water which is sufficient to meet therequirement that a limitation be "prescribed by law" for the purposes of s 5.103Is the fluoridation power a justified limit on the s 11 right?[112] We now turn to consider whether the power to fluoridate is a reasonable limiton the s 11 right that can be demonstrably justified in a free and democratic society.In R v Hansen, Tipping J also set out what he called a methodology for the applicationof s 5.104 This was broadly based on the decision of the Supreme Court of Canada inR v Oakes.105 Having set out the approach adopted in R v Oakes, Tipping J added:106This approach can be said to raise the following issues:(a) does the limiting measure serve a purpose sufficiently important tojustify curtailment of the right or freedom?(b) (i) is the limiting measure rationally connected with its purpose?(ii) does the limiting measure impair the right or freedom no morethan is reasonably necessary for sufficient achievement of itspurpose?(iii) is the limit in due proportion to the importance of theobjective?Approach to s 5[113] A preliminary question is what approach the Court should take to the s 5analysis in this case.[114] The Court of Appeal expressed reluctance to enter the debate on the merits offluoridation. It noted that the courts are not equipped to determine disputed issues ofscientific or technical opinion.107 It referred to the observation by Tipping J inR v Hansen that the court performs a review function rather than substituting its ownview and noted that what it called the approach depends on a variety of circumstances,103 As noted above at [5], New Health's initial challenge to the Council's decision to exercise thepower to fluoridate was not before us.104 R v Hansen, above n 74, at [103].105 R v Oakes [1986] 1 SCR 103.106 R v Hansen, above n 74, at [104].107 New Health (CA), above n 2, at [111].including the subject matter.108 Given the nature of the subject matter and theappropriate degree of latitude to be given to parliamentary decisions, the Court ofAppeal decided its approach would be to outline the principal evidence before theCourt, which would "amount to a broad assessment of the preponderance of theevidence sufficient to address the key issues in terms of the test laid down inHansen v R".109[115] New Health challenged the Court of Appeal's approach. It submitted that theCourt erred in allowing latitude to parliamentary decisions because the decision tofluoridate was not debated in the House and there was no s 7 report from theAttorney-General. New Health also submitted that the Courts below erred by failingto require the Council to demonstrably justify the limit. It emphasised that theCouncil, as the party seeking to limit the right, bears the onus of justification.[116] New Health also took issue with the finding that there was a sufficientevidential basis to conclude that the benefits of fluoridation outweighed any potentialrisks. Ms Scholtens argued that "[a] broad assessment of the preponderance of theevidence should have led the court to a much less certain conclusion". She did nothowever articulate what standard was required in this case.[117] The Council submitted that the Courts below were correct not to resolve thedebate about the merits of fluoridation and argued that this Court should adopt thesame approach. The Council referred to Tipping J's comments in Hansen about the"spectrum" of review, "which extends from major political, social or economicdecisions at one end to matters which have a substantial legal content at the other".110The Council emphasised that the provision of a power to fluoridate is highly political.[118] In terms of the standard of proof, the Council argued that the evidential inquiryunder s 5 is limited to whether Parliament's decision to empower local Councils tofluoridate water was one that was reasonably open to it. The Council referred to theCourt of Appeal decision in Ministry of Health v Atkinson, noting the Court's statement108 At [112], citing Hansen, above n 74, at [116]; and at [114], citing Wilson v First County Trust Ltd(No 2) [2003] UKHL 40, [2004] 1 AC 816 at [70] per Lord Nicholls.109 At [115].110 Hansen, above n 74, at [116].that "the context will affect the type of evidence required to meet the standard ofproof".111 In Atkinson, the Court of Appeal discussed the debate about the evidentialrequirements of the R v Oakes test used by the Supreme Court of Canada, citing anextract from an article by Professor Choudhry which acknowledges that public policydecisions are often based on approximations and extrapolations from the availableevidence.112 The Court in Atkinson also referred to the Canadian Supreme Courtdecision in RJR-MacDonald Inc v Canada, citing a passage from McLachlin J'sreasons where she stated that "proof to the standard required by science is notrequired", rather "the balance of probabilities may be established by the application ofcommon sense to what is known, even though what is known may be deficient from ascientific point of view".113[119] In response to New Health's points about latitude, the Council argued that therewas no requirement that Parliament debate a statutory regime which it had no intentionof changing. The level of latitude to be allowed to Parliament is therefore unaffected.Further, fluoridation has been considered by the Commission of Inquiry in 1957114 andby the Human Rights Commission in 1980.115 The Health Committee recentlyconsidered the Health (Fluoridation of Drinking Water) Amendment Bill which wasintroduced in 2016.116[120] We consider the background to the passing of the legislative provisionsauthorising fluoridation is important in this context. We accept that Parliament did notdebate fluoridation when the LGA 2002 was passed. But it was passed against abackground that some local authorities had been fluoridating water for 40 years ormore. This had been found to be lawful in the Lower Hutt City case and the practicehad been scrutinised by the Commission of Inquiry in 1957 and been found not to giverise to human rights issues by the Human Rights Commission in 1980. There is111 Ministry of Health v Atkinson, above n 71, at [166].112 At [165], citing Sujit Choudhry "So what is the real legacy of Oakes? Two decades ofProportionality Analysis under the Canadian Charter's Section 1" (2006) 34 SCLR (2d) 501 at524.113 At [166], citing RJR-MacDonald Inc v Canada [1995] 3 SCR 199 at [133] and [137].114 WF Stilwell, NL Edson and PVE Stainton "Report of the Commission of Inquiry on theFluoridation of Public Water Supplies" [1957] V AJHR H47. See William Young J below at [183]–[184].115 Human Rights Commission Report on Representations on Fluoridation of Water Supplies (August1980). See William Young J below at [185].116 Health (Fluoridation of Drinking Water) Amendment Bill 2016 (208-2) (select committee report).nothing to indicate Parliament intended any change to the pre-existing law in relationto the power to fluoridate when passing the LGA 2002 or the Health (Drinking Water)Amendment Act 2007, which inserted Part 2A into the Health Act.[121] It is obvious that the scientific evidence relating to fluoridation is contentious,in the sense that even apparently authoritative studies as to the benefits and detrimentsof fluoridation are called into question in other studies, in many cases on the groundsthat the writers are biased. The Court is not in a position to unpick these disputes noris it able to determine whether particular scientific reports are scientifically robust. Itcan, however, note that the benefits of fluoridation are considered to be significant andthe detriments insignificant by the World Health Organization and the Ministry ofHealth. It can also have regard to the fact that fluoridation of drinking water issanctioned by law and actually occurs in a number of free and democratic countrieswith which New Zealand compares itself including Australia, Canada, the UnitedStates of America and the United Kingdom.[122] Against that background, we consider the Court of Appeal was right not toattempt a definitive ruling on the scientific and political issues. We will undertake abroad assessment with a view to determining whether the evidence provides a properbasis for concluding that the limitation on the s 11 right resulting from fluoridationwas justified.Is the purpose sufficiently important?[123] The purpose of fluoridation is to reduce the incidence of tooth decay in thepopulation in the area in which fluoridation occurs. Rodney Hansen J referred to theevidence before him that the incidence of tooth decay in children living in Patea andWaverley was higher than in other areas where fluoridation occurs.117 The High CourtJudge concluded that the dental health of children was unarguably sufficientlyimportant to justify the curtailment of the right to refuse medical treatment, if that rightwere engaged.118117 New Health (HC), above n 4, at [102].118 At [103].[124] The Court of Appeal said it had no difficulty agreeing with the High CourtJudge's conclusion.119[125] New Health argued that the Courts below did not give adequate recognition tothe values of bodily integrity, dignity and autonomy underpinning the s 11 right. Itargued that the types of diseases that might justify treating a citizen without consentare limited to circumstances where the failure to treat puts other citizens as risk, andargued that tooth decay does not meet that high threshold because it is not contagious,is easily prevented and easily treated and poses no risk to third parties.[126] The evidence before the High Court indicated that dental decay inNew Zealand is a significant problem,120 and the situation in Patea and Waverley wasworse than in other parts of the country.121 This evidence cannot be reconciled withthe proposition that dental decay is easily prevented and easily treated withoutfluoridation. We do not consider that there is any immutable rule that treatment fordiseases that put others at risk is the only situation in which limiting the s 11 right isjustified. The issue is one of proportionality, as we explain below.122 We agree withthe Courts below that the objective of preventing and reducing dental decay issufficiently important to justify a limitation on the s 11 right, assuming that this canbe done in a manner that is otherwise justified. Given the minor limitation of the s 11right inherent in fluoridation, we do not consider that this conclusion gives inadequaterecognition to the values of bodily integrity inherent in the s 11 right.Rational connection[127] Both the High Court and Court of Appeal concluded without difficulty thatthere was a rational connection between fluoridation and the prevention or reduction119 New Health (CA), above n 2, at [152].120 This is evidenced by the conclusions in Ministry of Health "Our Oral Health: Key findings of the2009 New Zealand Oral Health Survey" (2010) <www.health.govt.nz/publication/our-oral-health-key-findings-2009-new-zealand-oral-health-survey>, cited by a witness for the Council,Dr Whyman.121 In the High Court Dr Gregory Simmons, a public health physician for the Taranaki District HealthBoard, referred in evidence to data that showed children residing in the South Taranaki Districtsuffer significantly worse oral health than those in the rest of Taranaki and levels of tooth decayin Patea and Waverley are some of the worst in South Taranaki.122 Below at [135].of dental decay.123 The Court of Appeal accepted that there was room for debate aboutthe extent of the reduction, but considered that the evidence produced showed it wassignificant.[128] Ms Scholtens argued that the Courts below erred in this conclusion because theevidence supporting fluoridation's benefits was, she said, weak and the Courts belowoverstated the significance of any reduction in tooth decay attributable to fluoridationof water supply.[129] In support of this submission, Ms Scholtens argued that the discovery thatfluoride works topically rather than systemically meant that it was now not clear thatthe beneficial effect on the incidence of dental decay was as great as once thought.This was because the concentration of fluoride in fluoridated water was too low tohave a significant topical effect and the resulting fluoride concentration in saliva wastoo low to have a cariostatic effect (an effect of inhibiting the formation of dentaldecay).[130] Ms Scholtens cited in support of this the evidence of Dr Litras, aWellington-based dentist who gave expert evidence on behalf of New Health.Dr Litras maintained that 2012 World Health Organization data indicated no differencein the rate of tooth decay between fluoridated and non-fluoridated communities. Healso argued that New Zealand data on the decline in tooth decay in New Zealand overa 40 year period showed the level was already falling before fluoridation and that thebenefit of fluoridation is, at best, insignificant. This view was contradicted byDr Whyman, a witness for the Council, whose opinion was that fluoridation waseffective in reducing both the incidence and severity of tooth decay among childrenand adults. As the Court of Appeal noted, the report cited by New Health in supportof its position acknowledged at least some reduction in tooth decay was achieved as aresult of the fluoridation of water.124[131] The Court of Appeal undertook a review of the evidence before it, as well astwo reports that were before the Court but had not been in evidence in the High123 New Health (HC), above n 4, at [104]–[105]; and New Health (CA), above n 2, at [153]–[155].124 New Health (CA), above n 2, at [154].Court.125 We do not propose to repeat the summary set out in the Court of Appealjudgment, but, having considered the affidavits and supporting material producedbefore the High Court, we agree with the Court of Appeal's assessment that there is arational connection between fluoridation of drinking water and the purpose ofpreventing dental decay.No more than reasonably necessary[132] In R v Hansen, Tipping J described the issue to be addressed under this headingas involving the Court considering whether Parliament might have sufficientlyachieved its objective by another method involving less cost to the right at issue.126Both the High Court and Court of Appeal saw the question in the present case as beingwhether fluoridation fell within the range of reasonably available alternatives.127 TheCourt of Appeal specifically adopted the observation by McLachlin J in the decisionof the Supreme Court of Canada in RJR-MacDonald Inc v Canada:128 the law must be carefully tailored so that rights are impaired no more thannecessary. The tailoring process seldom admits of perfection and the courtsmust accord some leeway to the legislator. If the law falls within a range ofreasonable alternatives, the courts will not find it overbroad merely becausethey can conceive of an alternative which might better tailor objective toinfringement On the other hand, if the government fails to explain why asignificantly less intrusive and equally effective measure was not chosen, thelaw may fail.[133] In R v Hansen, McGrath J described this question as an inquiry into "whetherthere was an alternative but less intrusive means of addressing the legislature'sobjective which would have a similar level of effectiveness".129 This approach wasalso adopted by the Court of Appeal in Atkinson.130[134] As the Court of Appeal acknowledged, there was evidence of alternativemeasures that address the problem of tooth decay, including the use of fluoridatedtoothpaste, good dental hygiene practices and reducing the consumption of foods and125 At [116]–[150]. Details of the two reports that were not in evidence follow: see below at [138].126 R v Hansen, above n 74, at [126].127 New Health (HC), above n 4, at [106]; and New Heath (CA), above n 2, at [156].128 RJR-MacDonald Inc v Canada, above n 113, at [160] (citations omitted).129 R v Hansen, above n 74, at [217].130 Ministry of Health v Atkinson, above n 71, at [154].drinks containing sugar.131 Dr Litras advocated those measures as well as the possiblefluoridation of salt in fast foods and of soft drinks in "at risk" areas and improvedaccess to dental care. Some of those possibilities would have their own Bill of RightsAct implications, however. The Council's witnesses accepted the desirability of suchmeasures, but argued that they are of limited efficacy, particularly in lowersocio-economic communities, because, at least in some cases, they depend on thewillingness of individuals to accept the measures and actively participate in them.Having considered the evidence and the submissions of New Health on this aspect ofthe case, we agree with the Courts below that the evidence establishes that fluoridationof drinking water is one of a range of reasonable alternatives to address the problemof dental decay and that the suggested alternatives, while more consistent with the Billof Rights Act than fluoridation, are of limited efficacy. They complement rather thanprovide an alternative to fluoridation.Is the limit proportionate to the objective?[135] In considering this aspect of the case, we think it is important to put intoperspective the nature of the limitation on the s 11 right constituted by the empoweringof local authorities to fluoridate drinking water. As noted earlier, fluoride occursnaturally in water and in New Zealand this is typically at a level in the region of0.3 ppm.132 In other countries, fluoride occurs naturally at much higher levels. Theaddition of fluoride to water in New Zealand is, therefore, adding to the fluoridenaturally occurring in water, rather than the introduction of a foreign substance.133 Therecommended level of fluoride after the addition of fluoride by councils is 0.7 ppm to1 ppm, which is considerably lower than the maximum acceptable value of 1.5 ppm.We see this as a minimal intrusion on the s 11 right. This can be contrasted with thehypothetical situations mentioned in argument before us, such as the addition ofantibiotics, tranquilisers or contraceptives to water, which would obviously amount to131 New Health (CA), above n 2, at [157].132 See above at [11].133 New Health argued that HFA and SSF are silicofluorides, and therefore chemically different fromcalcium fluoride, which occurs naturally in water, and that they may contain heavy metalimpurities. However, the Gluckman/Skegg Report says that the fluoride ions released from HFAand SSF are the same as the fluoride ions found naturally in water and any impurities are wellbelow the maximum allowable values in the Drinking-water Standards: Peter Gluckman andDavid Skegg Health effects of water fluoridation: A review of the scientific evidence (Office of thePrime Minister's Chief Science Advisor and the Royal Society of New Zealand, August 2014)[Gluckman/Skegg Report] at 5 and 23.serious limitations on the s 11 right, and require commensurately greater justification(if, indeed, they could ever be justified at all).[136] The Court of Appeal agreed with the High Court Judge that there was asufficient evidential basis to support the conclusion that the significant advantages offluoridation outweighed the increased risk of fluorosis, one of the negative effects offluoridation and that there was also an evidential foundation for concluding thatfluoridation did not give rise to any other significant health risk.134[137] New Health argued that the claimed benefits of fluoridation were overstatedand the adverse effects were understated. New Health pointed in particular to the studyknown as the York Review which was published in 2000, and which questioned thequality of the studies cited as demonstrating the health benefits of fluoridation.135 TheYork Review said that the best available evidence suggested that fluoridation doesreduce the prevalence of caries, but said that the studies suggesting this were ofmoderate quality and limited quantity. The Review expressed surprise at the lack ofhigh quality research undertaken into the safety and efficacy of water fluoridation.The Review found that evidence supported the existence of fluorosis as a negativeimpact, but found that many of the studies indicating that fluoridation caused bonefractures or cancers (which New Health said were negative impacts of fluoridation)were of low quality and with a high risk of bias.[138] Since the hearing of this case in the High Court, two further reports of somesignificance have been released, and both were considered by the Court of Appeal.These were:(a) The Cochrane Review which was published in 2015 and was an updateto the York Review.136134 New Health (CA), above n 2, at [164].135 Marian McDonagh and others A Systematic Review of Public Water Fluoridation (NHS Centre forReviews and Dissemination, University of York, September 2000) [York Review].136 Z Iheozor-Ejiofor and others Water fluoridation for the prevention of dental caries (prepared byThe Cochrane Collaboration, published by John Wiley & Sons, 2015) [Cochrane Review].(b) The Gluckman/Skegg Report, a report of the Office of the PrimeMinister's Chief Science Advisor and the Royal Society ofNew Zealand on the health effects of water fluoridation, published inAugust 2014.137 The report was prepared by a scientist in the office ofthe Chief Science Advisor, reflecting the conclusions of a panel ofexperts appointed for the Report. It was then peer reviewed by aNew Zealand reviewer and international reviewers.[139] As just noted, neither of these reports was before the High Court and Mr Laingfor the Council urged caution before attributing weight to the Cochrane Review,because the Council had not been given the opportunity to respond to it. We acceptthe need for caution, which we see as also applying in relation to the Gluckman/SkeggReport.[140] The Cochrane Review was, like the York Review, critical of the standard ofstudies indicating the health benefits of fluoridation. It also said there was evidencethat fluoridation of water to the level of 0.7 ppm caused fluorosis in 12 per cent ofpeople that could cause concern about their appearance (although this evidence wasalso considered to be at risk of bias and reflected the variation in the studiesconsidered).[141] In contrast to this, the Gluckman/Skegg Report, having reviewed the evidence(but not the Cochrane Review, which was published after the Gluckman/SkeggReport) was clear in its conclusions:(a) Fluoridation of water is recommended as the most effective publichealth measure for the prevention of dental decay by the World HealthOrganization and other international health authorities.(b) A large number of studies and systematic reviews have concluded thatwater fluoridation is an effective preventive measure against tooth137 Gluckman/Skegg Report, above n 133. Sir Peter Gluckman is the Office of the Prime Minister'sChief Science Advisor and Sir David Skegg was the President of the Royal Society of NewZealand.decay that reaches all segments of the population and was particularlybeneficial to those most in need of improved oral health.(c) The prevalence of fluorosis of aesthetic concern is minimal inNew Zealand and is not different between fluoridated andnon-fluoridated communities.(d) Extensive analyses of other potential adverse effects have not foundevidence that levels of fluoride used for community water fluoridationschemes contribute any increased risk to public health.(e) The current fluoridation levels appear to be appropriate.[142] The Report reaches the following conclusion:138This analysis concludes that from a medical and public health perspective,water fluoridation at the levels used in New Zealand poses no significanthealth risks and is effective at reducing the prevalence and severity of toothdecay in communities where it is used.[143] We set out the conclusions of the Gluckman/Skegg Report because it is themost recent New Zealand-based information about fluoridation. But we acknowledgethat the conclusions are challenged and stand in contrast to the conclusions of theCochrane Review, and we also reiterate the need for caution in reliance on both ofthose reports given that they were not in evidence before the High Court. We agreewith the Court of Appeal, however, that the evidence that was before the High Courtprovided a proper basis for concluding that the limit on the s 11 right constituted bythe empowerment of local authorities to fluoridate water is a justified limit. We referin particular to the evidence of two of the witnesses called on behalf of the Council,Dr Whyman, the Clinical Director of Oral Health Services at the Hawkes Bay DistrictHealth Board and the Principal Dental Officer for the Whanganui District HealthBoard and Dr Haisman-Welsh, the Chief Dental Officer for the Ministry of Health.We acknowledge that New Health's experts strongly question the evidence of theCouncil's experts and point to international reports and journal articles that maintain138 At 10.that the health benefits of fluoride at the levels of fluoridated water are subject toquestion and the insignificance of the side effects are equally subject to question.Conclusion: justified limitation[144] For these reasons, we conclude that the provisions authorising the fluoridationof drinking water limit the s 11 right only to an extent that is demonstrably justified ina free and democratic society for the purposes of s 5 of the Bill of Rights Act.Result[145] In accordance with the views of William Young, Glazebrook, O'Regan andEllen France JJ, the appeal is dismissed. On the approach taken in this judgment andthat of William Young J, the Council has the legal authority to fluoridate the watersupplies in Patea and Waverley and that power is not constrained by s 11 of the Bill ofRights Act. On our approach, that is because the authorising provisions limit the s 11right only to an extent that is demonstrably justified in a free and democratic societyand on the approach of William Young J because s 11 of the Bill of Rights Act is notengaged.Costs[146] New Health must pay the Council costs of $20,000 plus the Council's usualdisbursements.139 Although the Attorney-General was formally a party to the appeal,his counsel accepted that his role was akin to that of an intervener and did not seek anaward of costs. We therefore make no award of costs in his favour.GLAZEBROOK J[147] The issue in this appeal is whether local authorities have the power to fluoridatewater in light of s 11 of the New Zealand Bill of Rights Act 1990 (the Bill of RightsAct). I propose first to consider whether there is power to fluoridate water, absent theBill of Rights Act. Before I do this, I outline the legislative background.139 Supreme Court Rules 2004, r 44(5).Legislative backgroundPowers, duties and functions of local authorities[148] Before the Local Government Act 2002 (LGA 2002) was passed, a localauthority had to be specifically empowered by law to carry out a particular activity,although activities incidental to specified activities were also lawful.140 Therequirement for specific authorisation led to a complex and detailed legislativeframework governing local authorities, which caused increasing frustration,particularly in light of the strict application of the doctrine of ultra vires.141[149] The solution chosen in the LGA 2002 was to confer a power of generalcompetence on local authorities, to be exercised in accordance with broadly expressedpurposes and also in furtherance of specific powers and functions conferred by statute.As the Hon Sandra Lee, the then Minister of Local Government, said on theintroduction of the Bill:142[T]hrough its prescriptive nature [the old Local Government Act] precludesthe councils from doing things that make common sense; rather, it says thatunless something is prescribed it simply cannot be done. We want to move from a detailed, prescriptive form of law to one that isempowering and flexible. [150] Another aspect of the LGA 2002 related to the democratic process. As the HonSandra Lee said:143Above all, the bill is about the empowerment of New Zealanders withintheir local communities to exercise even greater control over their electedrepresentatives and councils, and over the environments and communities inwhich they live. To be successful, the councils must in future be drivenless by the need for strict compliance with a detailed statute, and more by theneed to deliver the results that local communities demand.140 For more see Kenneth Palmer Local Authorities Law in New Zealand (Brookers, Wellington,2012) at 8 and 52–58.141 See Grant Hewison "A Power of General Competence – Should it be Granted to Local Governmentin New Zealand?" (2001) 9 Auckland U L Rev 498 at 499.142 (18 December 2001) 597 NZPD 14126–14127.143 (18 December 2001) 597 NZPD 14127.[151] Section 3 of the LGA 2002 sets out the purpose of the Act as follows:1443 PurposeThe purpose of this Act is to provide for democratic and effective localgovernment that recognises the diversity of New Zealandcommunities; and, to that end, this Act—(a) states the purpose of local government; and(b) provides a framework and powers for local authorities todecide which activities they undertake and the manner inwhich they will undertake them; and(c) promotes the accountability of local authorities to theircommunities; and(d) provides for local authorities to play a broad role in meetingthe current and future needs of their communities for good-quality local infrastructure, local public services, andperformance of regulatory functions.[152] Part 2 of the LGA 2002 contains the purposes of local government and definesthe role and powers of local authorities.145 Section 10 provides:14610 Purpose of local government(1) The purpose of local government is––(a) to enable democratic local decision-making and action by, andon behalf of, communities; and(b) to meet the current and future needs of communities forgood-quality local infrastructure, local public services, andperformance of regulatory functions in a way that is mostcost-effective for households and businesses.[147]144 Section 4 sets out what can be seen as a further purpose of facilitating participation by Māori inlocal authority decision-making processes in terms of the Crown's responsibilities under the Treatyof Waitangi: see Chris Murray and John Lulich (eds) Local Government (looseleaf ed, LexisNexis)at [LGA4.4]. I note also that s 3(d) was amended in 2012. The previous text read: "provides forlocal authorities to play a broad role in promoting the social, economic, environmental, andcultural well-being of their communities, taking a sustainable development approach".145 LGA 2002, s 9.146 Section 10(2) was inserted by s 7(2) of the Local Government Act 2002 Amendment Act 2012.147 As originally enacted, s 10(b) was broader. It provided that the purpose of local government was"to promote the social, economic, environmental, and cultural well-being of communities, in thepresent and for the future". Its scope was narrowed by the Local Government Act 2002Amendment Act 2012 to concentrate on "outputs" rather than "outcomes", although terms like"public services" are still open to broad interpretation: see Murray and Lulich, above n 144,at [LGA10.4].(2) In this Act, good-quality, in relation to local infrastructure, localpublic services, and performance of regulatory functions, meansinfrastructure, services, and performance that are—(a) efficient; and(b) effective; and(c) appropriate to present and anticipated future circumstances.[153] The role of a local authority,148 under s 11(a), is to give effect to the purposesset out in s 10 in its district or region and, under s 11(b), to "perform the duties, andexercise the rights, conferred on it by or under this Act and any other enactment".Under s 11A, local authorities must have particular regard to certain core services (notall of which are mandatory) when performing their role.149 These core services includenetwork infrastructure, which is defined in s 197(2) as meaning "the provision of roadsand other transport, water, wastewater, and stormwater collection and management".[154] Also relevant to this appeal is s 23 of the Health Act 1956, which provides thatit is the duty of every local authority to "improve, promote, and protect public healthwithin its district". For that purpose local authorities are "hereby empowered anddirected" to do a number of things, including, under s 23(c):150if satisfied that any nuisance, or any condition likely to be injurious to healthor offensive, exists in the district, to cause all proper steps to be taken to securethe abatement of the nuisance or the removal of the condition:[155] The general competence provision is in s 12(2) of the LGA 2002:12 Status and powers(1) A local authority is a body corporate with perpetual succession.(2) For the purposes of performing its role, a local authority has—(a) full capacity to carry on or undertake any activity or business,do any act, or enter into any transaction; and148 Local authority is defined in s 5 of the LGA 2002 as meaning a regional council or territorialauthority. Regional council is further defined as the councils named in Part 1 of Schedule 2, withterritorial authorities defined as a city council or a district council named in Part 2 of Schedule 2of the Act.149 Section 11A was inserted with effect from 27 November 2010.150 Examples of specific instances of nuisances for the purpose of the Act are set out in s 29.Section 29 is not relevant to this appeal.(b) for the purposes of paragraph (a), full rights, powers, andprivileges.[156] Under s 12(4) a territorial authority must exercise its powers wholly orprincipally for the benefit of its district.151 Section 12(2) "is subject to this Act, anyother enactment, and the general law".152 In addition, s 13 provides that ss 10and 12(2) apply to a local authority performing a function under another enactment tothe extent that the application of those provisions is not inconsistent with that otherenactment.Water services[157] Part 7 of the LGA 2002 sets out specific obligations and restrictions on localauthorities, including relating to water supply. The relevant part of s 123 provides:123 Outline of PartThis Part contains provisions that set out specific obligations andrestrictions on local authorities and other persons as follows:(a) the obligation to assess water and sanitary services and thepurpose of those assessments:(b) the obligations and restrictions on local authorities and otherpersons in relation to the delivery of water services:[158] Under s 125(1)(a) a territorial authority must, from time to time, assess theprovision of water services (defined in s 124 as water supply and wastewater services)within its district. Water supply is in turn defined in s 124 as "the provision of drinkingwater to communities by network reticulation to the point of supply of eachdwellinghouse and commercial premise to which drinking water is supplied".Section 126 provides that the "purpose of an assessment under section 125 is to assess,from a public health perspective, the adequacy of water and other sanitary servicesavailable to communities within a territorial authority's district".153151 Under s 12(5) a regional council must exercise its powers wholly and principally for the benefitof all its region or a significant part of its region and not for the benefit of a single district.152 Section 12(3).153 The current formulation of s 126 was introduced by the Local Government Act 2002 AmendmentAct 2014 to replace the specific information assessment provisions for water and sanitary servicesthat were found in ss 126 and 127 respectively of the original Act.[159] In regard to water services, s 130 of the LGA 2002 requires local authoritiesproviding water services to communities within their district at the commencement ofthe section or any time after the commencement of the section to continue to do so.154Divestment to another local governmental organisation is, however, permissible.155[160] The supply of drinking water is regulated by Part 2A of the Health Act 1956.156Under s 69G drinking water means water that is potable.157 Under s 69G potable, inrelation to drinking water, means "water that does not contain or exhibit anydeterminands to any extent that exceeds the maximum acceptable values (other thanaesthetic guideline values) specified in the drinking-water standards".[161] The purpose of Part 2A of the Health Act, as set out in s 69A(1), is to "protectthe health and safety of people and communities by promoting adequate supplies ofsafe and wholesome drinking water from all drinking-water supplies". Part 2A, amongother things,158 provides for a register of all drinking-water suppliers;159 provides forthe issue of drinking-water standards;160 and imposes a range of duties ondrinking-water suppliers.161[162] Under s 69O(1) of the Health Act the Minister is empowered to issue, adopt,amend or revoke drinking-water standards. These can include, under s 69O(2),requirements for drinking water safety,162 requirements for drinking watercomposition163 and any other matters relating to raw water or drinking water that may154 In the first reading of the Local Government Bill, at (18 December 2001) 597 NZPD 14127, theHon Sandra Lee said: "There are important provisions in this bill that say 'No' to the propositionof further privatisation of water in New Zealand society. We are not going to agree to allow thecouncils to sell what is not a commodity—access to clean water—but a fundamental human right."155 For example, s 131 allows a local government organisation to close down or transfer small waterservices in certain circumstances. Under s 136 contracts relating to the provision of water servicesmay be entered into.156 Inserted on 1 July 2008. See the reasons of Elias CJ at [255] for a discussion of the regime whenthe LGA 2002 was first passed.157 There are also various extensions and exclusions not relevant to this appeal. The term"wholesome" is also defined in s 69G, as is the term "determinand": see the reasons of O'Reganand Ellen France JJ at [49]–[50].158 In terms of s 69A(2).159 The drinking water registration provisions are contained in ss 69J–69N of the Health Act.160 Drinking water standards are provided for in ss 69O–69R.161 Duties of suppliers in relation to the provision of drinking water and various regulatory matters,including offences, are provided for in ss 69S–69ZZZE of the Act.162 Section 69O(2)(a).163 Section 69O(2)(b).affect public health.164 Under s 69O(3), standards may include guideline values foraesthetic determinands for avoiding adverse aesthetic effects in drinking water.165They must not, however, include any requirement that fluoride be added to drinkingwater.166[163] The current standards adopted under s 69O of the Health Act are theDrinking-water Standards for New Zealand 2005 (Revised 2008). Under thosestandards, the "[m]aximum acceptable values for inorganic determinands of healthsignificance" are set.167 The level for fluoride is 1.5 mg/L. There is a footnoterecommending168 that for "oral health reasons" the fluoride content for drinking watershould be in the range of 0.7–1.0 mg/L.169[164] Under s 69V(1) of the Health Act every drinking-water supplier must take allpracticable steps to ensure that the drinking water supplied complies with thedrinking-water standards.Do local authorities have the power to fluoridate water?[165] As indicated above, under the LGA 2002 the general competence provision ins 12(2) means that there is no longer any need to find an explicit or necessarily implicitstatutory power authorising fluoridation. Local authorities are free to decide tofluoridate water, as long as fluoridation is not outside the purposes and role set out inss 10 and 11 of the LGA 2002 or comes within any other specific powers or duties inthe LGA 2002 or in any other enactment.170[166] The most obvious specific provision applicable to fluoridation is s 23 of theHealth Act which imposes a duty on a local authority to "improve, promote, andprotect public health within its district". I accept that dental decay is a condition that164 Section 69O(2)(h).165 Section 69O(3)(a).166 Section 69O(3)(c).167 Ministry of Health Drinking-water Standards for New Zealand 2005 (Revised 2008)(October 2008) at 8.168 This cannot be a requirement because of s 69O(3)(c). I agree, however, with the comments ofO'Regan and Ellen France JJ in relation to this provision: see at [52]–[53] of their reasons.169 See at [54] of O'Regan and Ellen France JJ's reasons.170 Section 13. Further, the decision would need to be otherwise valid, including all relevantconsiderations being taken into account and any consultation duties fulfilled.a local authority would be entitled to consider injurious to public health. Thus, therewould be a specific power under s 23(c) of the Health Act to "cause all proper steps tobe taken to secure the removal of the condition".171[167] I also accept Mr Laing's submission172 that there is nothing in the LGA 2002or the Health Act limiting local authorities' general power of competence contained ins 12(2) of the LGA 2002 when fulfilling the duty under s 23 of the Health Act.173 Localauthorities would be entitled to take the view that the fluoridation of water is a measurethat will improve, promote and protect public dental health in terms of s 23 of theHealth Act. I agree with the conclusion reached by O'Regan and Ellen France JJ that,despite the fact that the scientific evidence related to the benefits of fluoridation maybe contested, there is nevertheless a rational connection between the fluoridation ofdrinking water and preventing tooth decay.174[168] As noted by O'Regan and Ellen France JJ, both the World Health Organizationand the New Zealand Ministry of Health consider the benefits of fluoridation to besignificant and the detriments insignificant.175 Indeed, the Drinking-water Standardsthemselves recommend a certain range for the level of fluoride in the water for oralhealth purposes.176 A review, published in August 2014 by the Office of the PrimeMinister's Chief Science Advisor and Royal Society of New Zealand, reportedpositively on the health benefits and lack of detriment of water fluoridation.177[169] I accept that other studies, including the Cochrane Review published in2015,178 came to a contrary view but it would be for the local authority to assess the171 It follows that I disagree with the Chief Justice's analysis on this point at [312]–[316] of herreasons.172 Outlined by O'Regan and Ellen France JJ above at [37].173 In particular I agree with O'Regan and Ellen France JJ that this is not a regulatory or coercivepower: see at [44] and [45] of their reasons. I also agree with their comments at [46].174 At [131] of their reasons.175 See at [121] of their reasons.176 See above at [163]. See also at [54]–[55] of O'Regan and Ellen France JJ's reasons.177 See the discussion at [138](b) and [141]–[142] of O'Regan and Ellen France JJ's reasons.178 Z Iheozor-Ejiofor and others Water fluoridation for the prevention of dental caries (prepared byThe Cochrane Collaboration, published by John Wiley & Sons, 2015). See also at [138] ofO'Regan and Ellen France JJ's reasons.validity of the competing views.179 The fact that there are competing views does notmake the powers under s 23(c) of the Health Act or s 12(2) of the LGA 2002inapplicable.[170] This means that both s 12(2) of the LGA 2002 and s 23(c) of the Health Actprovide the authority for a local authority to fluoridate water in fulfilment of the publichealth duties imposed by s 23 of the Health Act.180[171] It is also likely that the power to fluoridate water arises out of the obligationunder s 130 for the continuation of the provision of water services, in light of thehistory of fluoridation in New Zealand.181 It may be too that fluoridation of water isnot inconsistent with the general purposes relating to local infrastructure and publicservices contained in s 10(1)(b) of the LGA 2002 but it is not necessary to decide thispoint.Effect of the Bill of Rights Act[172] I now turn to the effect of s 11 of the Bill of Rights Act. The first issue in thisregard is whether fluoridation of water is medical treatment for the purposes of s 11.I consider that it is, for the reasons given by the Chief Justice at [225]–[243] and forthose given by O'Regan and Ellen France JJ at [72]–[97].182 I also agree with theconclusion reached by the Chief Justice and O'Regan and Ellen France JJ that, as179 The decision-making process under the LGA 2002 is provided for in ss 76–81. Among otherthings s 78 provides that a local authority must give consideration to the views and preferences ofpersons affected, or likely to be affected, by the matter. Section 79 provides that a local authorityhas the discretion to make judgments concerning the matter before it.180 See at [47]–[48] of O'Regan and Ellen France JJ's reasons. I also agree that s 69O(3)(c) supportsthe view that local authorities have the power to fluoridate water: see at [52] of O'Regan andEllen France JJ's reasons. I accept that s 69O(3)(c) (and the standards) cannot be seen asauthorising provisions (see the Chief Justice's discussion at [319]–[322]), but O'Regan andEllen France JJ do not suggest they are: see at [53]. I also consider that s 69O(3)(c) is consistentwith the purpose of the LGA 2002 that local authorities, with the appropriate consultation, makethe decisions for their local area.181 For the reasons set out by O'Regan and Ellen France JJ at [40]. It follows that I do not agree withthe Chief Justice that the scheme of Part 2A of the Health Act precludes a power to fluoridate: seeat [325] of her reasons.182 I do not, however, consider the interpretation to be a generous interpretation of s 11 but the naturaland ordinary meaning of the term "medical treatment" in light of the purpose of s 11: contrast thecomment at [97] of O'Regan and Ellen France JJ's reasons.people in the particular area where water is fluoridated have in practice no choice butto drink from the water supply, they are being medicated without their consent.183[173] The next issue is the effect that fluoridation being medical treatment has on theconclusion arrived at above that, absent the Bill of Rights Act, local authorities havethe power to fluoridate water.[174] There is no specific power to fluoridate water in the LGA 2002 or the HealthAct. As discussed above, such a specific power (or one arising by necessaryimplication) is no longer necessary under the LGA 2002. The power to fluoridateprimarily arises from the duties of local authorities relating to public health and comeswithin s 12(2) of the LGA 2002, the general competence provision, as well as s 23(c)of the Health Act. While s 23(c) is a specific power, it relates to public health generallyand not specifically to fluoridation.[175] There is a principle of interpretation that any general power is assumed to besubject to the Bill of Rights Act.184 Further, local authorities perform public functionsand are bound by the Bill of Rights Act.185 They must exercise their powers inaccordance with the Bill of Rights Act.186 The power to fluoridate water can thereforeonly be exercised if to do so would be consistent with the Bill of Rights Act.[176] This means that local authorities can only fluoridate water if the prior consentof all possible consumers is sought and obtained187 or if fluoridation in the particulardistrict without consent is, in terms of s 5 of the Bill of Rights Act, demonstrablyjustified in a free and democratic society. Whether s 5 is satisfied may depend on localconditions. For this reason, I would prefer not to comment on the analysis of s 5 by183 See at [225] of the Chief Justice's reasons and [99] of O'Regan and Ellen France JJ's reasons.184 This principle is set out in the cases discussed at [296]–[297] of the Chief Justice's reasons. Iagree there is nothing to displace that presumption in this case.185 New Zealand Bill of Rights Act 1990, s 3(b); Geoffrey Palmer "A Bill of Rights for New Zealand:A White Paper" [1984–1985] I AJHR A6 at [6.23].186 The general competence provision power in s 12(2) of the LGA 2002 is in any event subject to theprovision of any other enactment. This must include the Bill of Rights Act.187 I accept this is unlikely to be practicable in most cases.O'Regan and Ellen France JJ.188 The validity of the Council's decisions to fluoridateare not before us in this appeal.189Result[177] For the above reasons, I agree that the appeal should be dismissed. I also agreewith the costs orders.WILLIAM YOUNG JTable of ContentsPara No.My approach to the appeal [178]Overview of my approach [180]Are those whose drinking water is fluoridated denied a "right torefuse" to drink such water? [185]Fluoridating water/"undergo medical treatment": generalconsiderations [188]The Commission of Inquiry into fluoridation [191]Fluoridation in the courts [193]The regulatory position [199]Drawing the threads together [203]My approach to the appeal[178] As will become apparent, I am of the view that s 11 of the New Zealand Billof Rights Act 1990 (Bill of Rights Act) is not engaged by the fluoridation of drinkingwater. On this basis, the appeal comes down simply to a question of statutoryinterpretation: whether the statutory provisions discussed by O'Regan andEllen France JJ empower the South Taranaki District Council to fluoridate the water itsupplies within its territorial district. On this aspect of the case, I agree with theanalysis of the statutory scheme which appears at [13]–[56] of their reasons. I wouldtherefore dismiss the appeal.[179] In the balance of my reasons I will explain my conclusion in respect of s 11.188 See at [113]–[144] of O'Regan and Ellen France JJ's reasons. Their analysis relates to the powerto fluoridate. I do not consider it necessary to subject the power to fluoridate to a s 5 analysis. Asthat power can only be exercised in a rights consistent manner, the existence of the power isconsistent with the Bill of Rights Act.189 See at [5] of O'Regan and Ellen France JJ's reasons and [223] of the Chief Justice's reasons.Overview of my approach[180] Section 11 provides:Everyone has the right to refuse to undergo any medical treatment.[181] The background to s 11 is discussed by O'Regan and Ellen France JJ. For mypurposes the salient points are that s 11:(a) reflects the pre-existing common law, which, via the law of torts givesindividuals autonomy as to how others treat them physically and whatthey can and cannot be required to do;(b) is, in a very loose sense, a development of art 7 of the InternationalCovenant on Civil and Political Rights which was, as O'Regan andEllen France JJ note,190 a response to medical experimentation carriedout in Nazi Germany; and(c) falls to be considered in light of other international human rightsinstruments which provide protection of private and family life.[182] The particular legislative history of s 11 is of limited assistance beyond ananticipation that the expression "medical treatment" would be construed broadly, asindeed it has been, so as for instance to include forced feeding.191[183] The fluoridation of drinking water has been controversial in New Zealand formany decades. It was the subject of a Commission of Inquiry which reported in 1957.This report rejected the view that the fluoridation of water involved massmedication.192 As well, there was significant litigation in the 1960s involving thefluoridation of water by the Lower Hutt City Council. I will discuss shortly thejudgments which were delivered in that case. At this point, it is sufficient to say that190 Above at [93], citing Manfred Nowak UN Covenant on Civil and Political Rights: CCPRCommentary (2nd rev ed, NP Engel, Kehl, 2005) at 188.191 Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985] I AJHR A6at [10.167]; and see the discussion, and cases cited, in Andrew Butler and Petra Butler TheNew Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at424–426.192 See below at [191].the result was the fluoridation of water was held to be within the powers of territorialauthorities. Since then the addition of fluoride to drinking water and more generaluses of fluoride have been subject to regulation under legislation addressed to thesupply of water, the regulation of medicines and the supplementation of food. As thereasons of O'Regan and Ellen France JJ demonstrate, the legislation addressed to thesupply of water authorises the addition of fluoride to drinking water. And, as I willexplain later, I am of the view the regulatory regimes in relation to medicines andsupplemented food proceed on the basis that neither fluoride which is added todrinking water nor fluoridated drinking water is a "medicine" for the purposes of thoseregimes.[184] Against that background, the question whether the fluoridation of drinkingwater engages s 11 seems to me to raise a very particular question of interpretation.In resolving this question, it is necessary to have regard to the particular words usedin s 11 and I will do so in these reasons. I do, however, consider that the question mustbe determined by reference to the statutory language construed as a whole. As withany interpretation exercise, this requires consideration of what is conveyed by thelanguage in question in terms of ordinary English usage, both generally and in termsof the subject matter of the particular dispute, which in this case concerns thefluoridation of drinking water. For this reason, I consider that the issue whether s 11is engaged in this case cannot be sensibly determined without reference to relevantcommunity and legal understandings as to whether fluoridation results in compulsorymedical treatment. Accordingly, I see the general background in respect offluoridation to which I have just referred as material. This includes the 1957Commission of Inquiry and Lower Hutt City litigation along with the way in whichthe use of fluoride, both in drinking water and more generally, has been regulated.Are those whose drinking water is fluoridated denied a "right to refuse" to drinksuch water?[185] It is possible to use filters for drinking water which eliminate added fluoride.As well, in some areas, it may be possible to arrange for alternative sources of watersupply. These considerations were seen as significant by the Human RightsCommission in its 1980 report to Parliament on the fluoridation of water:193The argument about mass medication or forced medication appears to bebased on false analogy of the forced feeding that occurs in respect to peoplewho have gone on hunger strikes. There are, however, no real similaritiesbetween the two situations as no attempt is made to force people in any directphysical way to drink water that has been fluoridated. There may bedifficulties and even a considerable degree of inconvenience in obtainingunfluoridated water by those to whom this is a matter of importance, but thereis no sense in which it can be alleged that they are forced to drink fluoridatedwater except as a matter of their own convenience.[186] I accept that those who live in areas of New Zealand in which drinking wateris fluoridated would find it difficult to avoid drinking fluoridated water. Indeed myimpression is that only those who are extremely concerned about fluoridation wouldbe prepared to put up with the inconveniences associated with drinking onlyunfluoridated water. I nonetheless have some reservations whether practical, but notinsurmountable, difficulties of this kind mean that there is a denial of "the right torefuse" to drink fluoridated water. In particular, it seems to me that the fluoridation ofdrinking water results in compulsion at a level sufficiently removed from what isprimarily contemplated by s 11 as to at least raise a question whether that section istruly engaged in this case.[187] Despite what I have just said, I propose to address the appeal on the basis thatif those who drink fluoridated water thereby "undergo medical treatment", thefluoridation of drinking water by a territorial authority would sufficiently detract fromtheir practical ability to refuse such treatment as to breach s 11.Fluoridating water/"undergo medical treatment": general considerations[188] The argument against the view that those who drink fluoridated water therebyundergo medical treatment is as follows. Fluoride occurs naturally in drinking waterat varying levels. In areas where the drinking water is fluoridated, those levels areadjusted so that the fluoride content is around one part per million. At this level,fluoride has beneficial effects on tooth enamel without significant health193 Human Rights Commission Report on Representations on Fluoridation of Water Supplies (August1980) at 3.disbenefits.194 Fluoride added to water is therefore properly to be seen as asupplement, rather as iodine in salt and folic acid in bread are supplements. Further,and in any event, fluoridated water which is supplied to consumers is not in the natureof a medicine as the primary purpose of supply is to provide drinking water rather thanto protect dental health. "Medical treatment" characteristically involves treatmentsolely for therapeutic purposes. It also characteristically involves a one-on-onerelationship between a health professional and a patient. In areas of the world in whichfluoride occurs naturally in water, the supply of such (naturally) fluoridated water tothose without water could not sensibly be regarded as medical treatment. This beingso, why should supply of water which is materially identical in chemical constitutionbe differently regarded?195[189] These aspects of the case were developed by Dr Robin Whyman in hisevidence:Fluoridation of water, is in my view, a supplement rather than medication:(a) Fluoride ions already exist naturally, both in the human body,primarily in bone and enamel, and in drinking water. Waterfluoridation increases the quantity of these ions present in water – andtherefore the body – by a small amount. The additional fluoride addedto New Zealand drinking water supplies recreates naturally occurringlevels in other areas of the world and is therefore in my view asupplement rather than a form of medication.(b) The situation is analogous to adding iodine to salt to prevent thyroiddifficulties. Like fluoride, iodine and salt have associated nutrientreference values derived by the New Zealand Ministry of Health andthe Australian National Health and Research Medical Council.Water fluoridation is not in my view "medical treatment":(a) Water fluoridation is a population health, or public health, measurethat works in a prophylactic, or preventive way.194 Peter Gluckman and David Skegg Health effects of water fluoridation: A review of the scientificevidence (Office of the Prime Minister's Chief Science Advisor and the Royal Society ofNew Zealand, August 2014).195 Where the natural water supply contains levels of fluoride which are inimical to health, the watersupplier will reduce the fluoride content. Is the resulting supply of water medical treatment if thereduction is to an optimal therapeutic level which is beneficial but not if it is sub-optimal? Andwhat if the water supplier has a choice of two natural supplies, one naturally fluoridated and onenot? Is it medical treatment if the water supplier uses the water supply which is naturallyfluoridated?(b) Water fluoridation increases the community's environmentalexposure to fluoride in a way that replicates normal environmentalexposure levels in some parts of the world.(footnotes omitted)[190] Those who oppose fluoridation have a number of arguments in response. ThusAssociate Professor David Menkes, a witness for the appellant, observed: there is no physiological reaction in the human body that requires fluoride.Nor is fluoride required for any aspect of human growth, development, orreproduction.On this basis, he asserted that "fluoride cannot be considered a nutrient or dietarysupplement". And Professor Martin Ferguson made what seems to me to be the samepoint when he said:While topical or systemic fluoride has been shown to have some effect inreducing dental caries, there is no disorder recognised that is due to adeficiency of fluoride. Therefore it cannot be classified as a supplement.The Commission of Inquiry into fluoridation[191] Water fluoridation was the subject of a 1957 report of a Commission of Inquiryin which the Commission specifically addressed the question whether fluoridation ofwater was in the nature of mass medication. Its conclusions (and the associatedreasons) were as follows:196223. Supporters of fluoridation have stated that the term "massmedication" is a misnomer. They pointed out that fluoride is not used to treatdental decay but to reduce the incidence of the disease. This fact was notdisputed. According to them, the process consists of adding to water, whichno one has disputed is itself a food, a sufficient amount of another foodsubstance (fluoride ions) already naturally present in it to raise the totalconcentration to the optimum nutritional level. On this reasoning, they haveargued that the process is food fortification completely analogous to examplesmentioned in the evidence of Professor Gregory and Dr Muriel Bell andreferred to in the following paragraph.224. Well recognised examples of food fortification are the addition ofcalcium carbonate to "national flour" in Great Britain, the compulsoryaddition of vitamins A and D to margarine in Great Britain, the compulsorynutritional enrichment of bread and flour with B-group vitamins in some partsof the United States, the addition to some salt of iodide and the addition ofsynthetic vitamin C to a lemon-flavoured powder used by the New Zealand196 WF Stilwell, NL Edson and PVE Stainton "Report of the Commission of Inquiry on theFluoridation of Public Water Supplies" [1957] V AJHR H47.Navy. The addition of trace elements to the soil for the benefit of animals(e.g., the addition of cobalt to deficient pasture to combat bush sickness insheep or cattle) or of plants (e.g., the addition of boron, manganese,molybdenum, or zinc to deficient soils) are examples of the way in which fooddeficiencies are supplemented in these cases for animals or for plants.225. At the concentrations under discussion, fluoride is not a poison and iseither a drug on the one hand or a food on the other. There is no doubt that itis beneficial to the human body just as the substances mentioned by ProfessorGregory and Dr Bell are beneficial. It is certain, however, that it neither"counteracts the effects of disease nor reinforces the tissues in their struggleto maintain their functions when these are rendered abnormal". It does notcounteract the effects of dental decay nor does it assist the teeth to maintaintheir functions after they are decayed.226. We are satisfied that the process by which fluoride achieves itsbeneficial result is that a trace of the substance is utilised by the active tissuesof the tooth germ as a foodstuff while they are forming the mineral substanceof the tooth. Any effect subsequent to eruption of the tooth is an incidentalion-exchange at the surface exposed to drinking water.227. Some authorities (see for example the evidence of Mr Needham(9J 3)) regard fluorine as an indispensable trace element in the diet, whereasothers question its indispensability but do not categorically deny that it is afood. (Mitchell & Edman, 1953; McLester & Darby, 1952). None, however,questions the usefulness of dietary fluorine to civilised man in reducingsusceptibility to dental decay, and the evidence has shown that the usefulnessof fluoride arises from its incorporation into the organised structure of toothenamel (para. 74). In this regard, therefore, we consider that whateveracademic discussion may revolve around the question of indispensability, it iscertainly no less than common sense to make use of the beneficial propertiesof this trace element. If the intake is insufficient the deficiency should bemade up in imitation of nature by fortification of the drinking water (cf.Waldbott, 1955 a).228. For the foregoing reasons we express our conclusion that fluoride isnot a drug but a nutrient and that fluoridation is a process of food fortification.As a process it is quite analogous to the compulsory addition of fat solublevitamins to margarine, of vitamin B1 (thiamine) to bread, or thenon-compulsory addition of potassium iodide to salt. For this reason there areno valid grounds for calling the process "mass medication", a term which hasacquired a certain emotional content in the course of controversy. In reachingthis decision, we believe we are applying to the word medication the meaningmost people attach to it.[192] It will be observed that this discussion records the conflicting positions insimilar terms to those proposed by Associate Professor Menkes andProfessor Ferguson, on the one hand, and Dr Whyman on the other, with theCommission coming down on the same side as Dr Whyman.Fluoridation in the courts[193] Around the same time as the Commission of Inquiry was addressingfluoridation in New Zealand, the legality of such fluoridation was being challenged inCanada in Toronto (Municipality) v Forest Hill (Village).197 In this litigation both theCourt of Appeal of Ontario and the Supreme Court of Canada held that a bylaw enactedto provide for the fluoridation of the metropolitan water supply was invalid. Suchfluoridation was for "medicinal purposes" (as it was put in the Court of Appeal)198 orfor "a special health purpose" (as it was put by Rand J in the Supreme Court)199 orinvolved the "compulsory preventive medication of the inhabitants of the area" asCartwright J described it (also in the Supreme Court).200[194] The Forest Hill case was considered in the litigation involving the fluoridationof water by the Lower Hutt City Council, a case which gave rise to judgments in theSupreme Court, Court of Appeal and Privy Council.201[195] In the Supreme Court, McGregor J rejected the Council's argument that it wasentitled to fluoridate by reason of its general power under s 240 of the MunicipalCorporations Act 1954 to supply "pure water". He held that this provision did notempower the supply of what he called "medicated pure water".202 In doing so, herelied on the judgment of the Court of Appeal of Ontario in Forest Hill.203 Despitethis, however, he upheld the validity of the Lower Hutt City Council's fluoridation ofits water supply and, in doing so, relied on s 288 of the Municipal Corporations Actwhich provided:The Council may do all things necessary from time to time for the preservationof public health and convenience, and for carrying into effect the provisionsof the Health Act 1956 so far as they apply to the district.197 Toronto (Municipality) v Forest Hill (Village) [1957] SCR 569 [Forest Hill (SC)] which affirmedthe decision of the Court of Appeal of Ontario: see Toronto (Municipality) v Forest Hill (Village)[1956] OR 367 [Forest Hill (CA)].198 Forest Hill (CA), above n 197, at 377.199 Forest Hill (SC), above n 197, at 574.200 At 580.201 Attorney-General v Lower Hutt City [1964] NZLR 438 (SC) [Lower Hutt City (SC)];Attorney-General v Lower Hutt City [1964] NZLR 445 (CA) [Lower Hutt City (CA)]; andAttorney-General v Lower Hutt City [1965] NZLR 116 (PC) [Lower Hutt City (PC)].202 Lower Hutt City (SC), above n 201, at 441.203 At 441–442.He took the view that the adding of fluoride to water "has the effect of guarding teethfrom decay or destruction in later life"204 and he went on to say:205This seems to me to amount to the preservation of health, and, as it may affecta considerable proportion of the public, it is a preservation of the public health.Furthermore, fluoridation treatment seems to me to be necessary or needfulowing to the deficiency in the natural water, the high incidence of dentalcaries, the need for the prevention or reduction thereof in the interests of publichealth, and the absence of any other satisfactory method of administeringfluoride. Although I may be adopting a liberal construction, I consider that inthe interests of the general public the Legislature intended a liberalconstruction to be applied to an Act empowering a local authority to exercisepublic services for the public benefit. In my opinion, therefore, fluoridationof water supply is necessary for the preservation of the public health.[196] The judgment of McGregor J is thus at least consistent with the view that thesupply of fluoridated water is in the nature of medical treatment. And to the samegeneral effect was the dissenting judgment of Turner J in the Court of Appeal:206In my opinion what [s 240] authorises is the collection of ground waterreasonably suitable for drinking purposes, and its purification by removingfrom it deleterious and contaminating substances which it naturally contains.If the removal of these substances involves incidentally the addition of someother harmless or beneficial substance necessarily added in the course of theprocess of purification, this incidental addition will not invalidate theprocedure, which is still one essentially of purification. The use of chlorineand of lime, as I have already indicated, may perhaps be justified by thisreasoning. But, in my opinion, water can never be purified, using anyreasonable interpretation of that word, by adding to it a substance not therebefore, simply by way of additive for the purpose of compulsorily improvingthe diet of the consumer.It can make no difference, in my opinion, that the additive is conclusivelyshown — as it is shown here — to be wholesome or beneficial in theproportions used. If one substance can be added on this ground, so cananother; and it is impossible to see where such a construction of the sectioncould stop, short of authorising any amount of compulsory medication whichthe council might reasonably consider beneficial to the inhabitants of itsdistrict.[197] The majority in the Court of Appeal (North P and McCarthy J) took a differentview. Each indicated disagreement with the majority's conclusion in Forest Hillincluding the view that fluoridation involved mass medication. Their reasons for soconcluding were that fluoride is naturally found in water and that increasing its204 At 444.205 At 444.206 Lower Hutt City (CA), above 201, at 458–459.concentration should not be seen as adding anything "foreign" to the water which wassupplied.207[198] The advice of the Privy Council was to the same general effect as that of themajority of the Court of Appeal:208The water of Lower Hutt is no doubt pure in its natural state but it is verydeficient in one of the natural constituents normally to be found in water inmost parts of the world. The addition of fluoride adds no impurity and thewater remains not only water but pure water and it becomes a greatlyimproved and still natural water containing no foreign elements.The Privy Council also made it clear that it disagreed with the approach taken in theForest Hill case and in particular it approved the remarks made in the Court of Appealby North P.209The regulatory position[199] The Medicines Act 1981 defines medicine in this way:3 Meaning of medicine, (1) In this Act, unless the context otherwise requires, medicine—(a) means any substance or article that—(i) is manufactured, imported, sold, or supplied whollyor principally for administering to 1 or more humanbeings for a therapeutic purpose; and(ii) achieves, or is likely to achieve, its principal intendedaction in or on the human body by pharmacological,immunological, or metabolic means; and(b) includes any substance or article—(i) that is manufactured, imported, sold, or suppliedwholly or principally for use as a therapeuticallyactive ingredient in the preparation of any substanceor article that falls within paragraph (a); or(ii) of a kind or belonging to a class that is declared byregulations to be a medicine for the purposes of thisAct; but207 See at 453–456 per North P and 465–468 per McCarthy J.208 Lower Hutt City (PC), above n 201, at 124.209 At 125.(c) does not include—(ii) any food within the meaning of section 2 of the FoodAct 1981; or(vi) any substance or article of a kind or belonging to a class thatis declared by regulations not to be a medicine for thepurposes of this Act.[200] Section 2 of the Food Act 1981210 defines "food" in this way:Food means anything that is used or represented for use as food or drink forhuman beings; and includes—(a) any ingredient or nutrient or other constituent of any food ordrink, whether that ingredient or nutrient or other constituentis consumed or represented for consumption by human beingsby itself or when used in the preparation of or mixed with oradded to any food or drink; and(b) anything that is or is intended to be mixed with or added toany food or drink; [201] I think it clear that fluoridated water was never a medicine. First, it is notsupplied "wholly or principally [for administration] for a therapeutic purpose".Rather, it is supplied for general household use. Secondly, I regard fluoridated wateras within the s 2 definition of "food" in the Food Act 1981. Regulation ofsupplemented foods (including foods to which fluoride has been added) was providedfor under the Dietary Supplements Regulations 1985 and has subsequently been morespecifically addressed in various New Zealand Food (Supplemented Food) Standards,the most recent of which was issued in 2016.211 I am likewise of the view that thefluoridating compounds are "food" for the purposes of the Food Act definition as beingwithin the expression "any ingredient or nutrient or other constituent of any drink",namely fluoridated water. In any event, the Medicines Amendment Regulations 2015210 This was in force at the time of the hearings and judgments in the High Court. The currentdefinition of "food" in s 9 of the Food Act 2014 is, in material respects, the same in substance asthe earlier definition as it includes "anything that is used for human consumption" and includes"any ingredient or other constituent of any food or drink".211 These standards were issued under s 11C of the Food Act 1981 and the continuation and status ofthe 2016 standards is provided for in s 421(2) of the Food Act 2014.have put it beyond any doubt that neither fluoridating agents nor fluoridated water aremedicines.[202] At this point it may be helpful to record the main respects in which the use offluoride is regulated:(a) Fluorides are specified as prescription medicines in the MedicinesRegulations 1984 in this way:212Fluorides; for internal use in medicines containing more than 0.5milligrams per dose unit except in medicines containing 15 milligramsor less per litre or per kilogram; except in parenteral nutritionreplacement preparations; for external use in medicines containingmore than 5.5 grams per litre or per kilogram except when supplied toa dental professional registered with the Dental Council(b) Fluorides are specified as pharmacy-only medicines in the sameregulations in this way:213Fluorides; for internal use in medicines containing 0.5 milligrams orless per dose unit; except in parenteral nutrition replacementpreparations; for external use in liquid form in medicines containing1 gram or less per litre or per kilogram and when sold in packsapproved by the Minister or the Director-General for distribution aspharmacy-only medicines except in medicines containing220 milligrams or less per litre or per kilogram and in packscontaining not more than 120 milligrams of total fluoride; exceptwhen supplied to any dental professional registered with theDental Council; except in medicines containing 15 milligrams or lessper litre or per kilogram(c) The use of fluorides in dietary supplements is regulated by reg 3 of theDietary Supplements Regulations 1985 (which refers to the currentedition of Recommended Dietary Allowances, published by the Foodand Nutrition Board of the National Academy of Science and NationalResearch Council, Washington DC, USA). These RecommendedDietary Allowances encompass drinking water where fluoridation isperformed or natural fluorides are present and, as I have noted, the212 Medicines Regulations 1984, Schedule 1, Part 1.213 Schedule 1, Part 3.Dietary Supplement Regulations 1985 as first promulgated extended tothe regulation of supplemented food.(d) Since 2010, supplemented food has been regulated by New ZealandFood (Supplemented Food) Standards made under the Food Act1981.214(e) Fluoridation of drinking water is addressed by ss 69O–69R of theHealth Act 1956 in terms which make it clear that the legislaturecontemplated that fluoride might be added to drinking water (sees 69O(3)(c)). As well, the Drinking-water Standards for New Zealand2005 (Revised 2008) also contemplate such addition of fluoride.215I see this pattern of regulation as predicated on, and incorporating, the view that neitherfluoridating compounds nor fluoridated water are medicines.Drawing the threads together[203] I see the much cited comments of Professor HLA Hart as to the "core of settledmeaning" and "penumbra" as illustrative of the problem which must be addressed:216A legal rule forbids you to take a vehicle into the public park. Plainly thisforbids an automobile, but what about bicycles, roller skates, toy automobiles?What about airplanes? Are these, as we say, to be called "vehicles" for thepurpose of the rule or not? If we are to communicate with each other at all,and if, as in the most elementary form of law, we are to express our intentionsthat a certain type of behavior be regulated by rules, then the general wordswe use — like "vehicle" in the case I consider — must have some standardinstance in which no doubts are felt about its application. There must be acore of settled meaning, but there will be, as well, a penumbra of debatablecases in which words are neither obviously applicable nor obviously ruled out.[204] A patient receiving electroconvulsive therapy is well within the s 11 conceptof undergoing medical treatment and is thus within the "core of settled meaning" ofthe expression. And it is easy enough to give other similar examples which wouldlikewise not be susceptible to debate. Such examples will typically involve direct214 See the Dietary Supplements Amendment Regulations 2010 (explanatory note).215 Ministry of Health Drinking-water Standards for New Zealand 2005 (Revised 2008)(October 2008).216 HLA Hart "Positivism and the Separation of Law and Morals" (1957) 71 Harv L Rev 593 at 607.engagement between a medical professional and a patient and the provision of services(perhaps, but not necessarily, involving medicines) for therapeutic purposes. Outsidethat paradigm, scope for debate emerges. Is a passer-by who provides CPR to a personwho has collapsed in the street providing medical treatment? While I would see thisas outside the core settled meaning of "medical treatment", I accept that it is withinthe penumbra and, depending on the statutory context, might be held to be "medicaltreatment".217 The more routine the activity, the less it might be thought to involvemedical treatment. It would be odd to regard a parent who rubs sunscreen onto a childor brushes that child's teeth as providing medical treatment. It would also not be inaccordance with the ordinary understanding of the expression to say that such a childis "undergoing medical treatment". Indeed, I do not think that such categorisationsare even debatable. They would be, to use Professor Hart's terms, outside thepenumbra.[205] I am of the view that an interpretation of "undergo medical treatment" whichencompasses the supply of fluoridated water is well outside the core settled meaningof "undergo medical treatment". But given the number of those who have espousedthe view that fluoridation does involve mass medication, I have to accept that it is apossible meaning. In other words, I accept that an interpretation of "undergo medicaltreatment" which encompasses drinking fluoridated water is within the penumbra,albeit that I would say, right on the outer edge. There is thus a question whether suchan interpretation is appropriate in the context of s 11.[206] As I have already indicated, the legislative history of s 11 is not particularlyilluminating on this point. On the other hand, there is nothing in that history to suggestthat the legislature had it in mind that those who consume fluoridated water therebyundergo medical treatment. This I see as being of some significance. If the argumentof the appellant is correct, New Zealanders who live in fluoridated areas – around halfthe population – are being compelled to undergo medical treatment, in apparent breachof s 11. In the absence of some clear indication that this consequence was within thelegislative purpose, I would be reluctant to construe s 11 so as to bring it about.217 It would not be "medical treatment" for the purposes of a statute regulating the provision ofmedical services and licensing medical practitioners.[207] It has never been suggested that the supply of naturally fluoridated waterinvolves medical treatment. I do not see why the supply of fluoridated water which ismaterially the same in chemical composition as naturally fluoridated water should beregarded differently. Fluoridated water is not a medicine in either the ordinaryunderstanding of the word or as it is used for regulatory purposes. Local authoritieswho supply water are not medical professionals. So we have something which is nota medicine supplied by parties who are not medical professionals. I see thefluoridation of water as closely analogous to the iodisation of salt. And I do not regardthose who ingest iodised salt or bread made with iodised salt as undergoing medicaltreatment. Fluoridated water is supplied primarily for the purpose of consumption aswater and the therapeutic consequences are very much ancillary to that purpose. I amnot able to think of anything comparable – that is the provision of food or drink forconsumption but with incidental therapeutic purposes – which could sensibly beregarded as medical treatment.[208] I consider that the views I have just expressed are reinforced by the contextualmaterial to which I have referred. The question whether fluoridation is in the natureof mass medication was addressed by the Commission of Inquiry in 1957. Itconcluded that it was not. The reasons for this conclusion do not seem to me to havebeen undermined by subsequent developments. The view taken by the CanadianCourts in Forest Hill that fluoridation involved mass medication was not accepted bya majority in the Court of Appeal and by the Privy Council in the Lower Hutt Citylitigation. And, as I have explained, the regulatory regimes around the use of fluoride,both as they were in 1990 when the Bill of Rights Act was enacted and as they arenow, are premised on the understanding that neither fluoridated water nor thefluoridating compounds used in the fluoridation process are medicines.[209] I do not see as helpful the question, sometimes raised in the context offluoridation, whether it would be permissible to put antibiotics or other medicines intodrinking water. This question is, of course, hypothetical. And, in the unlikely eventthat something of this sort were to be proposed, it would fall to be assessed against ahistorical and regulatory background which would be entirely different from the one Ihave been discussing.[210] As will by now be apparent, I construe s 11 of the Bill of Rights Act as notengaged by the fluoridation of drinking water.ELIAS CJTable of ContentsPara No.The appeal [211]Approach and summary of conclusions [212]Section 11 of the New Zealand Bill of Rights Act 1990 [225]The statutory powers relied on to add fluoride to water [244](a) The issues [244](b) Context [247](i) Attorney-General v Lower Hutt City [248](ii) The current regulation of supply of drinking water underPart 2A of the Health Act 1956 [259](c) The statutory public health responsibilities of localauthorities [268](d) The general competencies and powers of councils unders 12 of the Local Government Act 2002 [274]Approach to interpretation [279](a) Implication of power [282](b) Historical context [284](c) Presumption of compliance with fundamental values [292]The Council had no implied statutory authority to add fluoride [309](a) Section 130 of the Local Government Act [311](b) Section 23 of the Health Act [312](c) Section 12 of the Local Government Act [317](d) The standards set under Part 2A of the Health Act [319](e) Section 11 of the New Zealand Bill of Rights Act [323](f) The background provided by Attorney-General v LowerHutt City does not justify implied power [324](g) In any event, Attorney-General v Lower Hutt City isdoubtful authority [327](h) The presumption of rights-consistent interpretation is notrebutted [330](i) Conclusion [334]The appeal[211] South Taranaki District Council decided in December 2012 to add fluoride tothe drinking water it supplies to the towns of Patea and Waverley. The decision wastaken for public health purposes to improve poor dental health in the two towns andfollowed public consultation. New Health New Zealand Inc challenged the decisionof the Council by way of judicial review in the High Court. It claimed that the additionof fluoride was unlawful both because it was outside the statutory powers of theCouncil under the Local Government Act 2002 and the Health Act 1956 and becauseit was in breach of the right everyone has under s 11 of the New Zealand Bill of RightsAct 1990 to refuse to undergo any medical treatment.218 The claimed breach of s 11of the New Zealand Bill of Rights Act was relied on as in itself rendering the decisionunlawful and beyond the power of the Council because no power to limit s 11 for thepurpose of preventing dental decay was "prescribed by law". New Health wasunsuccessful in these contentions in the High Court219 and its appeal to the Court ofAppeal was dismissed.220 New Health appeals from the determination of the Court ofAppeal.Approach and summary of conclusions[212] I agree with Glazebrook, O'Regan and Ellen France JJ that the High Court andCourt of Appeal were wrong in the view that the addition of fluoride is not "medicaltreatment" within the meaning of s 11 of the New Zealand Bill of Rights Act. Myreasons for this conclusion are in general agreement with the reasons given byO'Regan J.[213] In common with Glazebrook, O'Regan and Ellen France JJ and in agreementon this point with the Courts below, I accept that fluoride in the water supply is notsomething that can reasonably be avoided by those to whom the water is supplied.221If administration of fluoride in water is "medical treatment" (as the Judges in themajority in this Court consider it to be), it therefore removes from those to whom thewater is supplied "the right to refuse to undergo any medical treatment" provided bys 11 of the New Zealand Bill of Rights Act.218 An additional and alternative ground of review that the Council failed to take into account anumber of mandatory relevant considerations in making the decision (including s 11 of the NewZealand Bill of Rights Act 1990) was dismissed in the High Court and not maintained on appeal.It is no longer live on the appeal to this Court.219 New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395,[2014] 2 NZLR 834 (Rodney Hansen J) [New Health (HC)].220 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462,[2017] 2 NZLR 13 (Randerson, Wild and French JJ) [New Health (CA)].221 See the reasons given by O'Regan J above at [99]; New Health (HC) at [94]; and New Health (CA)at [99].[214] It is common ground that there is no legislative provision expressly authorisingthe administration of fluoride or any other medical treatment through the supply ofwater. I differ from Glazebrook, O'Regan and Ellen France JJ in that I am unable toagree that authority to administer fluoride or other medical treatment for public healthpurposes is to be found in the general competencies of the Council conferred by s 12of the Local Government Act, powers which mirror those provided to othernon-natural persons such as those given to companies under s 16 of the CompaniesAct 1993. That is so even when s 12 is read alongside the requirement of continuationof water supply in s 130 of the Local Government Act and the responsibilities of localauthorities for public health and water supply contained in both the Local GovernmentAct and the Health Act.[215] I do not accept that the meaning of the current legislation is settled by thehistory of fluoridation by councils in New Zealand and by the decision of the PrivyCouncil 50 years ago in Attorney-General v Lower Hutt City222 that the power to addfluoride to water is one "necessarily implicit" in s 240 of the Municipal CorporationsAct 1954 (a provision which authorised councils to "construct waterworks for thesupply of pure water for the use of the inhabitants of the district "). The legislativescheme for regulation of the supply of drinking water has changed significantly sinceAttorney-General v Lower Hutt City. The basis on which that case was decided (thethen statutory responsibility of local authorities to supply "pure water") is overtakenby the statutory scheme in Part 2A of the Health Act223 which imposes on the Ministerof Health the obligation to set standards to ensure that water is both safe to drink andwholesome.224[216] It is notable that both North P and Turner J in the Court of Appeal inAttorney-General v Lower Hutt City took the view that the "very general provisions"for public health responsibilities of councils under s 288 of the MunicipalCorporations Act 1954 and s 23 of the Health Act (the current version of which isrelied on in support of the power contended for here) did not provide powers byimplication to allow the Council to "medicate its water supply" by addition of222 Attorney-General v Lower Hutt City [1965] NZLR 116 (PC) [Lower Hutt City (PC)].223 Enacted by the Health (Drinking Water) Amendment Act 2007 which came into force on 1 July2008.224 See below at [247]–[267].fluoride.225 Such provisions were considered by them not to "enlarge" the powercontained in s 240 of the Municipal Corporations Act to supply "pure water".226(McCarthy J, in the Court of Appeal, and the Privy Council on further appeal found itunnecessary to rely on the general public health powers of councils.227) I do not acceptthat the general powers of competence provided to councils in s 12 of the LocalGovernment Act allow the administration of medical treatment through the watersupply against the statutory scheme of Part 2A of the Health Act.[217] I am unable to agree with the view taken by O'Regan and Ellen France JJ thatthe prohibition under s 69O(3)(c) of the Health Act (which prevents the Minister ofHealth requiring addition of fluoride when setting standards for drinking water)"makes no sense" unless fluoridation of drinking water is otherwise authorised.228 Theexplicit prohibition on requiring fluoridation through the standards responds to aconcern the Select Committee thought a possibility "in theory", but explained was"never intended" to be permitted by s 69O or the standards.229 Such prohibition onstandards to require the addition of fluoride says nothing about the capacity of localauthorities or other suppliers of drinking water to add fluoride on their own initiativeusing their general powers of competence and relying on their general responsibilitiesin relation to public health in their districts. Indeed, the fact that the Minister isprohibited from requiring the addition of fluoride (despite having wide powers andresponsibilities specifically in relation to drinking water) makes it incongruous to finda power to impose fluoride without consent to be implicit in general powers ofcompetence of local authorities which do not mention drinking water.225 Attorney-General v Lower Hutt City [1964] NZLR 445 (CA) [Lower Hutt City (CA)] at 456–457per North P. See also at 460–461 per Turner J.226 At 457 per North P and 461 per Turner J.227 At 468 per McCarthy J; and Lower Hutt City (PC) at 125.228 Compare the reasons given by O'Regan J above at [53]. See also Glazebrook J above at n 168.229 Health (Drinking Water) Amendment Bill 2007 (52-2) (select committee report) at 5.[218] The wider legislative context in which the provisions of the Health Act andLocal Government Act fall to be interpreted now includes the New Zealand Bill ofRights Act, s 11 of which provides:11 Right to refuse to undergo medical treatmentEveryone has the right to refuse to undergo any medical treatment.[219] Applying the statutory context of Part 2A of the Health Act and s 11 of the NewZealand Bill of Rights Act, I conclude that s 12 of the Local Government Act cannotproperly be interpreted as empowering local authorities to administer any medicaltreatment through the water supply, including fluoride. Indeed, s 12(3) of the LocalGovernment Act provides that the capacity of a local authority under s 12(2) (theprovision which identifies the capacity and powers of a local authority "[f]or thepurposes of performing its role") is "subject to this Act, any other enactment, and thegeneral law", an exclusion that imports the requirements of s 11 of the New ZealandBill of Rights Act.[220] Construing the general provisions of the Local Government Act and the HealthAct relied on as impliedly conferring authority on local authorities to administermedical treatment without consent is also difficult to reconcile with the specificstatutory provisions which have regulated compulsory treatment under the Health Act.Such treatment is now provided for in Part 3A of the Health Act which, fromJanuary 2017, replaces the former provisions previously contained in Part 3.230Part 3A and its precursors deal with serious incursions on freedom but also addressserious public health risks. As is clear from the explanatory note to the Bill whichintroduced Part 3A, that reform was consciously "developed within a human rightsframework".231[221] The lack of any implied power to administer medical treatment in waterfollows from what I consider to be the proper interpretation of s 12 and s 130 of theLocal Government Act and s 23 of the Health Act (the only sources of such impliedpower suggested), applying conventional principles of statutory interpretation. In230 See ss 88–92 of the Health Act 1956, repealed by the Health (Protection) Amendment Act 2016(by which the new Part 3A was also enacted).231 Health (Protection) Amendment Bill 2014 (234-1) (explanatory note) at 2.addition however to the contextual significance of Part 2A of the Health Act and theNew Zealand Bill of Rights Act when interpreting the sections conferring powers onlocal authorities, I consider the question whether the statutory powers authorisefluoridation is put beyond doubt by the rule of interpretation contained in s 6 of theNew Zealand Bill of Rights Act. In this approach I differ from other members of theCourt who treat s 6 as relevant only when the natural meaning of a statutory provisionlimiting or constituting authority to limit a right is not a justified limitation in a freeand democratic society. I take the view that s 6 is a principle of interpretation ofgeneral application and that it bears directly on the immediate question whether powerto provide medical treatment without the consent of those being treated is impliedlyauthorised by the provisions of the Local Government Act and the Health Act.[222] Since I conclude that the statutory provisions relied on, properly construed(with or without reliance on s 6), do not provide local authorities supplying water withauthority to administer medical treatment without consent, it is unnecessary for me toconsider further whether any such power, if expressly conferred or conferred bynecessary implication, would be a justified limitation on the right contained in s 11.I would however be reluctant to conclude that the provision of general discretionarypowers is itself justifiable as a limitation of rights "prescribed by law" without more.232I would expect justification of such powers to address why such broad discretionwithout identification of purpose and the circumstances in which the discretion can beused constitutes a limit "prescribed by law" which is demonstrably justifiable in a freeand democratic society.[223] We 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. The challengebrought by New Health to the substantive determination of the Council is not beforeus. The Court does not have available to it the materials which show how the Councilweighed the human right in s 11 in reaching its decision, as it was obliged to do evenif authorised to limit rights on a justifiable basis.233 Rather, a summary of the processfollowed provided in the submissions of the Council to this Court indicates that thereport on which the Council acted had considered a range of submissions received,232 As required by s 5 of the New Zealand Bill of Rights Act.233 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) [Moonen (No 1)].including as to the Bill of Rights Act implications, and that the Council itselfconsidered all the submissions before making its decision.[224] The High Court and Court of Appeal took the view that s 11 of theNew Zealand Bill of Rights Act was not engaged because the addition of fluoride forpublic health reasons was not undertaken in the course of a "therapeutic relationship".I first explain why I disagree with that understanding of the meaning of s 11, and itsfurther development in this Court by William Young J, before turning to theinterpretation of the Local Government Act and the Health Act, on which I considerthe appeal turns.Section 11 of the New Zealand Bill of Rights Act 1990[225] I agree with the views expressed in the Courts below that the population towhich water is supplied cannot in practice avoid ingesting any substance added to it.234If therefore the addition of fluoride is medical treatment, individuals are denied thechoice to accept or reject treatment. The critical question is whether the addition todrinking water of a pharmacologically active substance for the purpose of reducingtooth decay in the population to which the water is supplied constitutes "medicaltreatment" within the meaning of s 11 of the New Zealand Bill of Rights Act. Thestarting point in considering the meaning of s 11 of the New Zealand Bill of RightsAct must be its text and purpose, as s 5 of the Interpretation Act 1999 requires.[226] The purpose of adding fluoride to drinking water is to reduce tooth decay. Suchaddition was accepted by the Privy Council in Attorney-General v Lower Hutt City toresult in "water to which an addition is made solely for the health of the consumers".235In the present case, an expert dental health witness for the Council described theaddition of fluoride to the water supply as a "public health measure that works in aprophylactic or preventive way".236 Despite this, the Courts below interpreted s 11 asconfined to medical treatment undergone in the course of a "therapeutic relationship".234 New Health (HC) at [94]; and New Health (CA) at [99].235 Lower Hutt City (PC) at 124.236 This was the evidence of Dr Robin Whyman, Clinical Director of Oral Health Services forHawke's Bay District Health Board and Principal Dental Officer of the Whanganui District HealthBoard. It is now thought that fluoride acts topically by promoting the remineralisation of toothenamel when it comes into contact with the tooth surface.[227] The arguments that prevailed and which are repeated in this Court are that thoseto whom fluoridated water is reticulated are not within the scope of the section forseven principal, if overlapping, reasons:237(a) the supply of water for consumption is not direct medical treatmentbecause it does not involve "direct interference" with bodily integrityand personal autonomy;(b) the drinking of water to which fluoride has been added does notconstitute "undergoing" medical treatment, a concept properlyunderstood to apply to treatment in the course of a "therapeuticrelationship" between a professional and an individual;(c) fluoride added to reticulated drinking water at levels that do not exceedthe standards set for drinking water by the Minister of Health iscomparable to supplements such as the addition of folic acid to breador iodine to salt;(d) the meaning of s 11 has to be understood purposively, in the context ofits expression and its historical origin (which the Court of Appealtreated as derived from the pre-existing common law interests protectedby the law relating to battery and trespass to the person), with care beingtaken not to "overshoot" the purpose of the right (in accordance with aprecept adopted by Dickson J in connection with interpretation of theCanadian Charter of Rights and Freedoms238);(e) there is nothing in the parliamentary materials to suggest that thelegislature intended the concept of "medical treatment" to extend topublic health measures like fluoridation of water;237 See New Health (HC) at [79]–[90]; and New Health (CA) at [60]–[98].238 R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 344.(f) the addition of fluoride at low levels is a minimal intrusion on the s 11right (and a "resolute consumer" could take steps to avoid ingestingfluoride) which does not engage the right;(g) the meaning of s 11 has to be adjusted to take account of the publichealth interests of others to avoid giving those opposed to fluoridation"a right of veto over public health measures which it is not only theright but often the responsibility of local authorities to deliver" whichwould "cut across the obligation of the state to promote the health of itscitizens" under art 12 of the International Covenant on Economic,Social and Cultural Rights.239[228] I do not find these arguments persuasive. They entail substantial reading-downof the language of s 11. Such restrictive meaning is inconsistent with the White Paperwhich preceded enactment of the New Zealand Bill of Rights Act which emphasisedthat the term "medical" was used in the provision which has become s 11 in a"comprehensive sense".240 (It was explicitly envisaged that it would apply, forexample, to psychological treatment.) Confining s 11 to treatment provided "in atherapeutic relationship" would exclude public health measures delivered outside suchrelationship. There is no textual justification for such restriction. Nor is it consistentwith protection of the values of human dignity and autonomy which underlie thepurpose of s 11 in allowing individual choice as to medical treatment.[229] "Undergo[ing] medical treatment" is not a phrase that requires or suggests therefinement of provision in a "therapeutic relationship". It is not a technical term. I donot agree with the view taken in the Court of Appeal that it is "inapt" to describetreatment delivered through the water supply.241 I consider it encompassesadministration of medical treatment however delivered. Indeed, an interpretation thatconfined s 11 to treatment in the course of a "therapeutic relationship" wouldsubstantially restrict the effect of s 11 because the New Zealand Bill of Rights Act239 New Health (HC) at [86]–[87], referring to art 12 of the International Covenant on Economic,Social and Cultural Rights 933 UNTS 3 (opened for signature 16 December 1966, entered intoforce 3 January 1976).240 Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985] I AJHR A6at [10.167].241 New Health (CA) at [88].applies only to those exercising public power, few of whom may be expected to be ina "therapeutic relationship" with the individuals being treated. Section 11 is directedat those in a position to impose treatment without the consent of those being treated.[230] In R v Oakes, the Supreme Court of Canada held that the meaning of a rightguaranteed by the Charter was to be ascertained "in the light of the interests it wasmeant to protect".242 It is the "cardinal values" embodied in the right that point to itsmeaning.243 I consider a similar approach is to be taken when interpreting the scopeand content of the rights and freedoms contained in the New Zealand Bill of RightsAct and recognised by that Act to be "fundamental".244[231] In the case of s 11, there is no direct equivalent in the International Covenanton Civil and Political Rights245 to aid interpretation. But the concept of human dignityunderlies the Universal Declaration of Human Rights246 on which the ICCPR isfounded. If dignity interests are behind s 11, as I consider they are, then there is nosufficient basis on which measures designed to achieve public health benefits couldbe excluded from its scope. Whether such measures are justified limitations of theright is a subsequent inquiry but does not cut down the right itself by excluding publichealth measures in the absence of any textual or contextual indication of restriction.[232] Section 11 applies in its terms to all medical treatment. It seems to meirrelevant that the medium through which fluoride is delivered is water supply and thatit is therefore administered "indirectly". Medical treatment which is delivered in watersupply is treatment even if it is administered indirectly, in the sense that the supply ofwater itself is for other purposes. The fluoride supplied through the water is therelevant treatment. The water is simply the medium used to treat the population withfluoride. The issue in the case does not concern water, but fluoride administeredthrough water without the consent of those to whom drinking water is reticulated.242 R v Oakes [1986] 1 SCR 103 at 119 per Dickson CJ (for himself and Chouinard, Lamer, Wilsonand Le Dain JJ) citing R v Big M Drug Mart Ltd at 344.243 At 119.244 New Zealand Bill of Rights Act, long title.245 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).246 Universal Declaration of Human Rights GA Res 217A (III), A/810 (1948).[233] Although fluorides may be medicines (prescription, restricted, pharmacy-onlyor general sale) depending on their concentration and intended use, fluoridating agentsand fluoridated drinking water are specifically declared not to be medicines by reg 58Bof the Medicines Regulations 1984. "Medical treatment" does not, however, need toinvolve the supply of a medicine, as the White Paper's reference to psychologicaltreatment makes clear. The definition of "medicine" used in the Medicines Act is fora distinct regulatory purpose which does not bear on the values protected by s 11.I consider whether or not the fluoride supplied in water would be classified as a"medicine" for the purposes of the Medicines Act does not determine the interpretationof s 11 of the New Zealand Bill of Rights Act.[234] The scope of s 11 is not properly cut down because fluoride occurs naturallyin water and, in other countries, at levels which the addition of fluoride asrecommended by the Ministry of Health may replicate. In the case of naturallyoccurring fluoride, there may be no "treatment" imposed by a public authority. But if,as the evidence suggests, treating a population with fluoride is a "public healthmeasure that works in a prophylactic or preventive way", that seems to me to be"treatment" which requires consent under s 11. The same conclusion might well applyto imposed addition of folic acid or iodine if there is no practical way for consumersto avoid consuming food to which these elements have been added.[235] I consider the Courts below were wrong to place such emphasis on thehistorical context at the time of enactment of the New Zealand Bill of Rights Act. Thepassage in R v Big M Drug Mart Ltd247 relied upon by the Court of Appeal makes itclear that the historical context is not elevated above the language of the right or thevalues it protects. It is, rather, an aid to understanding the purpose of the enactment,that is to say the end to which it is directed. It is not authority for interpreting theprovisions of an enactment such as the Charter or the New Zealand Bill of Rights Actwithin the straitjacket of existing legal understanding.[236] Legislation such as the New Zealand Bill of Rights Act attaches to the wholeof the New Zealand legal order. It affirms values fundamental to it which may well247 R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 344 per Dickson J, cited in New Health (CA)at [76].require reconsideration of existing understandings. That is in accordance with the wayin which the Canadian Charter is seen. So McLachlin J, writing in the Supreme Courtof Canada in R v Hebert, cautioned that "[i]t would be wrong to assume that thefundamental rights guaranteed by the Charter are cast forever in the straight-jacket ofthe law as it stood in 1982".248 She cited in that connection the view expressed byLe Dain J in R v Therens:249 the premise that the framers of the Charter must be presumed to haveintended that the words used by it should be given the meaning which hadbeen given to them by judicial decisions at the time the Charter was enactedis not a reliable guide to its interpretation and application. By its very naturea constitutional charter of rights and freedoms must use general languagewhich is capable of development and adaptation by the courts.[237] Similar views about the transformative effect of the New Zealand Bill of RightsAct were expressed following its enactment in Ministry of Transport v Noort,250R v Te Kira,251 and R v Goodwin.252 The New Zealand Bill of Rights Act "does notmerely repeat the old law".253 As the long title to the Act indicates, the obligationimposed by it includes development where necessary. Subject to inconsistentlegislation, the New Zealand Bill of Rights Act is to be given "practical effectirrespective of the state of our law before [its enactment]".254[238] In the New Zealand context there is additional reason to resist the straitjacketof existing law and understandings in interpreting the scope of enacted rights. InNew Zealand, Parliament can always legislate to restrict rights or to continuerestrictions which have previously applied. The courts must then apply the legislationaccording to its terms under s 4 of the New Zealand Bill of Rights Act. There is lessoccasion to limit rights by reading them down because Parliament can limit themexpressly where it considers it appropriate to do so.248 R v Hebert [1990] 2 SCR 151 at 163 per McLachlin J (for herself and Dickson CJ, Lamer,La Forest, L'Heureux-Dubé, Gonthier, and Cory JJ).249 R v Therens [1985] 1 SCR 613 at 638.250 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 270 per Cooke P.251 R v Te Kira [1993] 3 NZLR 257 (CA) at 262 per Cooke P.252 R v Goodwin [1993] 2 NZLR 153 (CA) at 156 per Cooke P.253 R v Te Kira at 262.254 Ministry of Transport v Noort at 270. See also Brooker v Police [2007] NZSC 30,[2007] 3 NZLR 91 at [63] per Blanchard J: in relation to interpretation of statutes, "[l]ittleguidance can now be obtained from pre-Bill of Rights cases".[239] The rights enacted as "fundamental" to the legal order in the New Zealand Billof Rights Act have provided insights that actions previously assumed to be lawful needto be reconsidered. While some assistance in determining the meaning and scope of aright may be obtained from decisions before enactment of the New Zealand Bill ofRights Act where the values were recognised in the common law, particular caution isnecessary in relation to the right in s 11 which is a new provision, capturing values notnecessarily expressed in pre-existing law. In my view the reliance in the Court ofAppeal on the common law of battery and trespass to the person as indicating theproper scope of s 11 was misplaced.255 While s 11 applies to treatment which wouldconstitute battery or trespass (as for example in force-feeding), its terms also apply toany medical treatment without consent imposed through the exercise of public powers.[240] As suspect is reliance on the history of fluoridation in New Zealand wheninterpreting the meaning of s 11.256 Such reliance does not use previous common lawunderstandings of the values protected by the right to assist in arriving at its meaningas expressed in the legislation. Instead it circumscribes the values by the pre-existinglaw, an approach that leaves no scope for the insight that these are values identified asfundamental and which fails to focus on the purpose s 11 seeks to achieve.[241] The Council in its submissions suggested that the acceptability of the additionof fluoride in New Zealand had been addressed by a Commission of Inquiry intofluoride in 1957 and a report of the Human Rights Commission in 1980.257 Bothreports, however, preceded enactment of the New Zealand Bill of Rights Act. Indeed,in considering "personal rights in relation to fluoridation", the 1957 Commission ofInquiry proceeded on the basis that "the subject does not possess guaranteed rights".258These reports therefore are not concerned with the purpose of s 11, which derives frommore recent insights into the values of human dignity and autonomy.255 See New Health (CA) at [78]–[81] discussing F v West Berkshire Health Authority[1989] 2 All ER 545 (HL).256 Compare William Young J above at [184].257 WF Stilwell, NL Edson and PVE Stainton "Report of the Commission of Inquiry on theFluoridation of Public Water Supplies" [1957] V AJHR H47; and Human Rights CommissionReport on Representations on Fluoridation of Water Supplies (August 1980).258 At [496]–[500], citing Halsbury's Laws of England (3rd ed, 1954) vol 7 Constitutional Lawat [416].[242] Rodney Hansen J took the view that s 11 should be read down in the mannerhe proposed because it conflicted with the rights of others to the benefit of publichealth measures.259 The Court of Appeal expressed agreement with that approach.260Whether there is such conflict would require further consideration of alternative waysin which the public health benefits might be delivered and whether the right under s 11could properly be balanced against a value recognised in the ICESCR but not enactedin the New Zealand Bill of Rights Act. It would also require close examination of thescope of the right to health in art 12. As New Health argued, it is by no means evidentthat art 12 envisages the promotion of public health by non-consensual medicaltreatment.261 But I consider that in any event such suggested conflict is not properlytaken into account in ascertaining the meaning of s 11, which is expressed inunqualified terms. While any conflicting interests will be highly relevant tojustification of a limitation prescribed by law under s 5 of the New Zealand Bill ofRights Act, I accept the arguments made by New Health that they do not bear on themeaning of the right.[243] For these reasons I conclude that the addition of fluoride to the water suppliedby the Council is medical treatment within the meaning of s 11 of the New ZealandBill of Rights Act.The statutory powers relied on to add fluoride to water(a) The issues[244] It is common ground that there is no legislative provision expressly authorisingthe administration of fluoride or any other medical treatment through the supply ofwater. The Court of Appeal however found that implied power to add fluoride was tobe found in the provisions of the Local Government Act 2002 and the Health Act 1956.In this it followed the similar approach taken by the Privy Council in Attorney-General259 New Health (HC) at [86]–[88].260 New Health (CA) at [82]–[86] and [92].261 New Health cited the Committee on Economic, Social and Cultural Rights' General CommentNo 14 to Article 12 of the International Covenant on Economic, Social and Cultural RightsE/C.12/2000/4 (2000) which (at [8]) provides: "The right to health is not to be understood as aright to be healthy. The right to health contains both freedoms and entitlements. The freedomsinclude the right to be free from non-consensual medical treatment and experimentation."v Lower Hutt City when holding power to add fluoride to water was "necessarilyimplicit" in s 240 of the Municipal Corporations Act 1954.[245] The Court of Appeal identified two principal sources for the implied power:(a) Section 130 of the Local Government Act 2002 requires localauthorities which were suppliers of water when the Act came into effectto "continue" to provide water services. The Court of Appealconsidered that, since "Parliament must be taken to have been aware"that in 1964 the Privy Council had held in Attorney-General v LowerHutt City that the Municipal Corporations Act 1954 permitted localauthorities to add fluoride to water, it must be taken to have "authorisedthe continuation of the practice of fluoridating water, which by that timehad been established for almost 50 years".262(b) In 2008 Parliament had put the matter "beyond any doubt" by enactings 69O(3)(c) in a new Part 2A of the Health Act dealing with "drinkingwater", by providing that standards for drinking water adopted unders 69O by the Minister of Health "must not include any requirement thatfluoride be added to drinking water" (a prohibition that, in combinationwith a maximum value for fluoride set in the standards, the Court ofAppeal considered showed that "Parliament clearly authorised but didnot compel the fluoridation of drinking water").263[246] New Health accepts that power may be conferred by necessary implication butcontends that no such implication is available under the legislation, properlyunderstood. The respondents support the reasons given by the Court of Appeal but putat the forefront of their argument in this Court the general competencies and powersconferred upon local authorities by s 12 of the Local Government Act. Such generalpowers enable the Council to give effect to its responsibilities under s 130 of the LocalGovernment Act to "continue" to supply water (importing, the respondents say, alegislative history which assumes the authority to add fluoride approved in262 New Health (CA) at [58].263 At [59].Attorney-General v Lower Hutt City). The respondents also submit s 12 enables theCouncil to give effect to its responsibilities under the Health Act 1956. Theresponsibilities under that Act include those imposed on local authorities in respect ofpublic health in their districts under s 23. They also include the responsibilitiesimposed under Part 2A on suppliers of drinking water (which the respondents sayassumes in the terms of s 69O(3)(c) that each local authority supplying water isauthorised to add fluoride to it, even though it may not be compelled to do so throughthe standards for drinking water set by the Minister).(b) Context[247] Before setting out the legislative provisions relied on by the Council in ss 12and 130 of the Local Government Act and ss 23 and 69O(3)(c) of the Health Act, Idescribe first two matters of context relied on in the arguments addressed to us. Theyare the decision of the Privy Council in Attorney-General v Lower Hutt City and thecurrent legislative scheme for regulation of the quality of reticulated water underPart 2A of the Health Act, enacted in 2008.(i) Attorney-General v Lower Hutt City[248] In issue in Attorney-General v Lower Hutt City was the power of Lower HuttCity to add fluoride to the water it supplied. The City relied principally on s 240 ofthe Municipal Corporations Act 1954 as authority for the addition of fluoride. Thatprovision authorised local authorities to "construct waterworks for the supply of purewater for the use of the inhabitants of the district, or of the shipping in any harbouradjoining, and keep the same in good repair, and from time to time do all thingsnecessary thereto, and in particular":(a) Subject to the provisions of this Act and to any right granted underany prior Act, take the water from any river, stream, lake, or pool:(b) Break up or dig into the surface of any street, private street, or publicplace within the district, or of any road or street beyond the district:(c) Alter any drain, sewer, or gas pipe on or under any such road or streetso far as is necessary for that construction or repair:(d) Prospect for water by boring, whether the land to be prospected issituated within or beyond the district.[249] Section 288 of the Municipal Corporations Act was also relied on by LowerHutt City as a source of authority to add fluoride to reticulated water. Section 288 wasin Part 20 headed "Public Health and Convenience" and empowered municipalcorporations to "do all things necessary from time to time for the preservation of thepublic health and convenience, and for carrying into effect the provisions of the HealthAct 1956, so far as they apply to the district".[250] When Attorney-General v Lower Hutt City was decided, s 23 of the HealthAct 1956 was in materially the same terms as the current s 23.264 As applicable to theargument addressed to us it provided:23. General powers and duties of local authorities in respect of publichealth—Subject to the provisions of this Act, it shall be the duty of every localauthority to promote and conserve the public health within its district, and forthat purpose every local authority is hereby empowered and directed—(c) If satisfied that any nuisance, or any condition likely to be injuriousto health or offensive, exists in the district, to cause all proper steps tobe taken to secure the abatement of the nuisance or the removal of thecondition:[251] In Attorney-General v Lower Hutt City McGregor J at first instance had heldthat the power to supply pure water under s 240 could not be relied on as authority toadd fluoride.265 That was because he considered that the water without the addition ofthe fluoride was "pure" in the sense that all impurities had been eliminated.266 Instead,McGregor J considered that the City had authority under s 288 to add fluoride as being"necessary from time to time for the preservation of the public health andconvenience".267[252] On appeal, the Court of Appeal was divided. Turner J, dissenting, would haveheld that the City did not have power to make the addition (although he indicated thatif under a duty to supply water that was "wholesome" as well as "pure" he might have264 The full terms of the current version of s 23 are set out below at [269].265 Attorney-General v Lower Hutt City [1964] NZLR 438 (SC) [Lower Hutt City (SC)].266 At 441–442.267 At 443–445.come to a different conclusion268). The Judges in the majority held that the additionof fluoride was authorised. North P considered that a local authority was entitled to"improve" the quality of its water by "rectifying a deficiency in the water" on expertadvice that it was a step "desirable in the public interest".269 McCarthy J consideredthat, even though the addition of fluoride was not "literally" authorised, it was an act"reasonably and properly performed in the prosecution of the main purpose [supply ofwater]".270[253] The Privy Council dismissed the appeal from the judgment of the Court ofAppeal:271Their Lordships are of opinion that an act empowering local authorities tosupply "pure water" should receive a "fair large and liberal" construction asprovided by s 5(j) of the Acts Interpretation Act 1924. They are of opinionthat as a matter of common sense there is but little difference for the relativepurpose between the adjectives "pure" and "wholesome". Their Lordshipsthink it is an unnecessarily restrictive construction to hold (as did McGregor J)that, because the supply of water was already pure there is no power to add toits constituents merely to provide medicated pure water, i.e. water to which anaddition is made solely for the health of the consumers. The water of LowerHutt is no doubt pure in its natural state but it is very deficient in one of thenatural constituents normally to be found in water in most parts of the world.The addition of fluoride adds no impurity and the water remains not only waterbut pure water and it becomes a greatly improved and still natural watercontaining no foreign elements. Their Lordships can feel no doubt that powerto do this is necessarily implicit in the terms of s 240 and that the respondentcorporation is thereby empowered to make this addition and they agree withthe observations of North P and McCarthy J already quoted. They think toothat it is material to note that, while their Lordships do not rely on s 288,nevertheless that section makes it clear that the respondent corporation is thehealth authority for the area and s 240 must be construed in the light of thatfact; that is an additional reason for giving a liberal construction to the section.Their Lordships think it right to add that had the natural water of Lower Huttbeen found to be impure it would of course have been the duty of therespondent corporation to add such substances as were necessary to removeor neutralise those impurities; but that water having been made pure they cansee no reason why fluoride should not be added to the water so purified inorder to improve the dental health of the inhabitants.[254] As has already been indicated, the Privy Council did not think it necessary toexpress an opinion as to whether s 288 of the Municipal Corporations Act (which has268 Lower Hutt City (CA) at 460.269 At 456.270 At 466.271 Lower Hutt City (PC) at 124–125.no direct equivalent in the Local Government Act 2002) or s 23 of the Health Act(which remains in substantially the same terms) "by themselves" empowered the Cityto add fluoride to the water.272 Nor, in the Court of Appeal, had McCarthy J found itnecessary to consider whether implied authority to add fluoride could be found ins 288 of the Municipal Corporations Act or s 23 of the Health Act.273 North P andTurner J in the Court of Appeal had however expressed the views that these "verygeneral provisions" did not enlarge the powers of the City under s 240 and could notprovide authority to add fluoride to water.274[255] The general power to provide waterworks for the supply of drinking water,previously contained in s 240(1) of the Municipal Corporations Act and s 267(1) ofthe Counties Act 1956, was continued in s 379(1) of the Local Government Act 1974.Under the Local Government Act 2002 as enacted there was no equivalent provisionto s 240(1). Local authorities supplying water at the coming into effect of the Act werehowever required to "maintain water services" by s 130 and were obliged to "assess"water and other sanitary services from time to time in accordance with ss 125–129 ofthe 2002 Act. Section 126 as enacted required assessment as to the extent to whichwater was "potable", a term defined as meaning suitable for drinking. Theresponsibility to deliver "pure" water became under the new legislation aresponsibility to deliver water that was "potable" and, in assessing whether water waspotable, local authorities were required to report to and consult with the MedicalOfficer of Health appointed under the Health Act.275 The Ministry of Health publishedguidelines to assist in the assessment of when water was potable.[256] The system of supply was changed in 2008 when Part 2A of the Health Actwas enacted. It set up a scheme for regulation of the quality of water through standardsset by the Minister of Health which local authorities supplying drinking water wereobliged to observe. It was no longer the responsibility of local authorities to provide272 At 125.273 Lower Hutt City (CA) at 468.274 At 456–457 per North P and 460–461 per Turner J.275 Local Government Act 2002, s 128 (as enacted)."pure" water276 or "potable" water.277 Rather, they were obliged to take all practicablesteps to ensure that the water conformed to the standards set by the Minister. With theenactment of Part 2A of the Health Act, local authorities had, in addition to theobligations to take all practicable steps to comply with the standards, responsibilitiesto assess and report compliance.278 Consistently with the transfer of substantiveresponsibility for determining the qualities that make water "potable", s 126 wasrepealed in 2010.279 The Regulatory Impact Statement at the time s 126 was repealedexplained that this "minor" amendment to the Act was to give greater flexibility tocouncils to decide for themselves how to carry out the assessments.280[257] As is explained below at [325], I am of the view that following the 2008amendments to the Health Act (which are described under the next heading) there isno room for an implied power for local authorities to add fluoride to the water theysupply in the current legislation. That is even if the decision of the Privy Council onthe meaning of s 240 of the Municipal Corporations Act is sound in its own terms(a matter on which I express some doubt at [327]–[329]).[258] In the present case, the Court of Appeal accepted that some of the conclusionsexpressed by the Privy Council in Attorney-General v Lower Hutt City required"revisiting in the light of the current legislation".281 It considered however that theprincipal significance of the Privy Council case was that it was the background againstwhich the Local Government Act 2002 was enacted. It took the view that, in enactingthe Local Government Act 2002, Parliament proceeded on the assumption that theaddition of fluoride into drinking water "was regarded as lawfully authorised at leastup to the introduction of the [Act]" and that the legislation was enacted in the"knowledge that fluoridation of drinking water was occurring in a number of276 As was required of suppliers by s 240(1) of the Municipal Corporations Act 1954, by s 267(1) ofthe Counties Act 1956 and by s 379(1) of the Local Government Act 1974 after its amendment bythe Local Government Amendment Act 1979.277 As was required by ss 125 and 126 of the Local Government Act 2002 as enacted.278 Health Act, s 69Y.279 By s 30 of the Local Government Act 2002 Amendment Act 2010. A new s 126 (clarifying the"[p]urpose of assessments" under s 125) was subsequently enacted by the Local Government Act2002 Amendment Act 2014: see below at [271].280 Department of Internal Affairs Regulatory Impact Statement: Improving Local GovernmentTransparency, Accountability and Financial Management (April 2010) at [155] and [171]–[173].281 New Health (CA) at [25].districts".282 In those circumstances it held that a power to add fluoride to water wasimplied in the legislation.(ii) The current regulation of supply of drinking water under Part 2A of the HealthAct 1956[259] Supplies of drinking water in New Zealand have been regulated since 2008under Part 2A of the Health Act 1956. The purpose of Part 2A is explained in s 69Aas being "to protect the health and safety of people and communities by promotingadequate[283] supplies of safe and wholesome drinking water from all drinking-watersuppliers".[260] "Drinking water" is water that is "potable".284 "Potable" is defined to meanwater that does not exceed the maximum acceptable values for "determinands"285specified in the "drinking-water standards" set by the Minister under s 69O of theHealth Act. Determinands may occur in the source water, or be introduced in thetreatment process or the distribution system. The standards adopted may specifyrequirements for "drinking water safety" and "drinking water composition" (includingthe maximum amounts of substances that may be present in drinking water).286"Pollution" of water occurs when the maximum acceptable values of determinands areexceeded.287 The standards may also include "guideline values" for aesthetic effectsin drinking water.288 Water is "wholesome" if it is both "potable" and does not exceedthe values set in the drinking-water standards as guidelines for aesthetic determinandsso as to have an adverse "aesthetic effect".289 But under s 69O(3)(c) the standards"must not include any requirement that fluoride be added to drinking water".[261] Suppliers of drinking water are obliged by s 69V to take "all practicable stepsto ensure that the drinking water supplied by that supplier complies with the282 At [25].283 Drinking water supplied to a property is defined as "adequate" under s 69G if it meets theminimum quantity actually required by the occupants or meets the amount specified or as isyielded by a formula set by regulations made under s 69ZZY.284 Section 69G.285 A "determinand" is defined as a substance or organism or characteristic able to be "determined orestimated reasonably accurately": s 69G.286 Section 69O(2).287 Section 69G.288 Section 69O(3)(a).289 Section 69G.drinking-water standards". And every drinking-water supplier "must take reasonablesteps to ensure that the drinking water supplied by that drinking-water supplier iswholesome".290[262] As a supplier of drinking water, South Taranaki District Council is thereforerequired to comply with Part 2A of the Health Act by taking all practicable steps toensure that the water it supplies meets the drinking-water standards set by the Ministerof Health. And it must take "reasonable steps to ensure that the drinking watersupplied is wholesome" (both potable and complying with the aesthetic guidelinesadopted by the Minister under Part 2A).[263] Table 2.2 of the Drinking-water Standards specifies the "[m]aximumacceptable values for inorganic determinands of health significance".291 Fluoride isone such inorganic determinand of health significance. Its maximum acceptable valueis set at 1.5 mg/L of water. There is monitoring to ensure the limits are not exceeded.The Court of Appeal in the present case noted that the evidence was that the maximumvalue allowed for fluoride, like other determinands, is set conservatively to ensure thatlong-term usage does not result in dental fluorosis (mottling of teeth) or other harm.292[264] The maximum acceptable value set for fluoride by the Minister, as with otherstandards, is based on the levels recommended by the World Health Organization,although confirmed by local expert assessment. Although there are traces of fluoridein natural water in New Zealand, the levels (at or below 0.3 mg/L) are lower than in anumber of countries. Because of the benefits for dental health, a number of localauthorities which supply drinking water in New Zealand have since the 1950s addedfluoride to the water supply.290 Section 69W.291 Ministry of Health Drinking-water Standards for New Zealand 2005 (Revised 2008)(October 2008) at 8.292 See New Health (CA) at [54]–[57].[265] In a footnote to the drinking-water standard set for the maximum acceptablevalue of fluoride, a recommendation is made as to the content of fluoride for drinkingwater. It is made clear that this recommendation is not itself a standard:For oral health reasons, the Ministry of Health recommends that the fluoridecontent for drinking-water in New Zealand be in the range of 0.7–1.0 mg/L;this is not a [maximum acceptable value].[266] Before the enactment of Part 2A there were no standards to which a localauthority supplying drinking water was obliged to adhere. Although guidelines hadbeen provided by the World Health Organization since 1958 and by the Board ofHealth since 1984, they were not mandatory.293 Instead, as has already been described,local authorities were empowered by s 240(1) of the Municipal Corporations Act 1954and succeeding legislation to "construct waterworks for the supply of pure water forthe use of the inhabitants of the district". That was the power construed by the PrivyCouncil in Attorney-General v Lower Hutt City to authorise the addition of fluoride tothe water supplied by necessary implication.[267] As has been indicated, after the Local Government Act 1974 replaced theMunicipal Corporations Act, s 240(1) was reproduced in s 379 of the 1974 Act. Whenthe Local Government Act 2002 was enacted, an equivalent provision was not adoptedin that Act (although local authorities are empowered by s 25 of the Health Act toprovide "sanitary works" for the benefit of their districts, including facilities for thetreatment of drinking-water, and s 126 of the Local Government Act 2002, until itsrepeal in 2010, obliged local authorities to assess the adequacy and quality of watersupply by local councils). Following enactment of Part 2A of the Health Act in 2008,the local authority's former necessary determination of what constituted "pure" or"potable" water was replaced by the system of regulation by standard-setting.(c) The statutory public health responsibilities of local authorities[268] In addition to the responsibilities the Council has as a supplier of drinkingwater under Part 2A of the Health Act, it has the general powers and duties imposed293 The preface to the Board of Health's Drinking-Water Standards for New Zealand (1984) said only:"The Board of Health recommends the study and use of the Drinking-Water Standards forNew Zealand as the basis for the production and delivery of wholesome drinking-water inNew Zealand."on it by Part 2 of the Health Act as a local authority, including the powers under s 23for the protection of public health within its district. It also has obligations underPart 7 of the Local Government Act 2002 to assess "from a public health perspective"a number of matters, including the adequacy of water supply services for drinkingwater within its district.294[269] The powers and duties imposed on local authorities by Part 2 of the Health Actfor public health ends are those described in s 23:23 General powers and duties of local authorities in respect of publichealthSubject to the provisions of this Act, it shall be the duty of every localauthority to improve, promote, and protect public health within itsdistrict, and for that purpose every local authority is herebyempowered and directed—(a) to appoint all such environmental health officers and otherofficers and servants as in its opinion are necessary for theproper discharge of its duties under this Act:(b) to cause inspection of its district to be regularly made for thepurpose of ascertaining if any nuisances, or any conditionslikely to be injurious to health or offensive, exist in thedistrict:(c) if satisfied that any nuisance, or any condition likely to beinjurious to health or offensive, exists in the district, to causeall proper steps to be taken to secure the abatement of thenuisance or the removal of the condition:(d) subject to the direction of the Director-General, to enforcewithin its district the provisions of all regulations under thisAct for the time being in force in that district:(e) to make bylaws under and for the purposes of this Act or anyother Act authorising the making of bylaws for the protectionof public health:(f) to furnish from time to time to the medical officer of healthsuch reports as to diseases, drinking water, and sanitaryconditions within its district as the Director-General or themedical officer of health may require.[270] The respondents rely on s 23(c) as the source of functions which enable theCouncil to use its general powers under s 12 of the Local Government Act to add294 Sections 125 and 126.fluoride to water. That is on the basis that dental decay is a condition "likely to beinjurious to health". It may be noted that the two Judges who considered the authorityprovided by s 23 in Attorney-General v Lower Hutt City (North P and Turner J) didnot accept that this general provision could found authority to add fluoride to water.295[271] Part 7 of the Local Government Act 2002, which contains s 130, deals with theobligations of local authorities in relation to water and sanitary services. Subpart 1imposes an obligation to "assess" water and sanitary services "from time to time".296The Act's amendment in 2014 made it clear that this imposes an obligation on eachlocal authority "to assess, from a public health perspective", the adequacy of waterand other sanitary services within its district. Adequacy is assessed "in light of" anumber of factors, including "the health risks to communities arising from any absenceof, or deficiency in, water " and "the extent to which drinking water provided bywater supply services meets applicable regulatory standards".297[272] Subpart 2 of Part 7 sets out "obligations and restrictions" in relation to "thedelivery of water services", including "the provision of drinking water to communitiesby network reticulation to the point of supply of each dwellinghouse and commercialpremise to which drinking water is supplied".298[273] Where a local authority was already providing water supply at the coming intoeffect of Part 7 of the 2002 Act on 25 December 2002, the local authority was obligedby s 130 to "continue to provide water services and maintain its capacity to meet itsobligations under [Subpart 2]". In the present case, the argument for the Council,accepted in the Courts below, was that s 130 is to be interpreted on the basis thatParliament legislated in the knowledge that the addition of fluoride had been treatedas authorised under the preceding legislation and therefore is to be treated as intending295 See above at [216] and [254].296 Section 125.297 Section 126, as replaced by s 44 of the Local Government Act 2002 Amendment Act 2014. Asdescribed above at [256], the former s 126 (requiring assessment of the quality and adequacy ofthe supply of drinking water, including "the extent to which the water is potable") was repealedin 2010. The 2014 replacement of s 126 is described in the relevant regulatory impact statementas a "minor legislative change to clarify the purpose of assessments of water and other sanitaryservices, which section 125 of the [Local Government Act] requires councils to undertake":Department of Internal Affairs Regulatory Impact Statement: Better Local Government –Improving Infrastructure Delivery and Asset Management (August 2013) at [18].298 See the definition of "water services" and "water supply" in s 124.continuing authorisation of fluoridation in the obligation to "continue" water supply.As will be apparent from the summary of conclusions given above, and as is furtherexplained below at [311], I consider that this provision to ensure continuity of supplyprovides no implicit authority for the addition of fluoride on the basis of the reasoningin Attorney-General v Lower Hutt City. What constitutes potable water is nowregulated under Part 2A of the Health Act.(d) The general competencies and powers of councils under s 12 of the LocalGovernment Act 2002[274] Section 12 of the Local Government Act is concerned with the "status andpowers" of a local authority. A local authority is constituted as a "body corporate withperpetual succession" with "full capacity" to carry out any activities "[f]or thepurposes of performing its role". Under s 12(3) all such powers are explicitly subjectto the Local Government Act and to "any other enactment, and the general law".[275] Section 12 provides local authorities with the competencies of individuals andcorporations, in the same manner in which s 16 of the Companies Act 1993 providescompanies with such competencies. Such general competencies are parasitic on orancillary to the functions of local authorities and are those necessary to enable thefunctions to be carried out. They do not enlarge the scope of the functions otherwiseconferred on local authorities. The explanatory note to the Local Government Billcontaining the clause that became s 12 made it clear that these general powers werenot thought to provide "coercive or regulatory powers over other people" and didnot "override the more specific provisions of other statutes".299[276] Section 11 of the Local Government Act identifies the role of a local authorityas being to:(a) give effect, in relation to its district or region, to the purpose of localgovernment stated in section 10; and(b) perform the duties, and exercise the rights, conferred on it by or underthis Act and any other enactment.299 Local Government Bill 2001 (191-1) (explanatory note) at 3.The purpose of local government, identified in s 10,300 and the general competenciesof local authorities provided by s 12(2) apply to local authorities performing functionsunder other legislation "to the extent that the application [of s 10 and s 12(2)] is notinconsistent with the other enactment".301[277] The general competencies recognised by s 12 do not in themselves provide alocal authority with power to add fluoride to water. Such power is inconsistent withs 12(3) in circumstances where such addition would limit the right contained in s 11of the New Zealand Bill of Rights Act, which a local authority is bound by s 3 of thatAct to observe. The same conclusion also follows from the nature of such generalpowers, which exist to permit fulfilment of functions separately conferred bylegislation.[278] There is nothing in the Local Government Act 2002 or the amendments to theHealth Act made in 2008 to suggest that local authorities are empowered to addsubstances to water except for the purposes of achieving conformity with the standardsand guidelines set by the Minister of Health. Still less is there anything to suggestauthorisation to limit the right contained in s 11 of the New Zealand Bill of Rights Actby addition of fluoride or any other medical treatment for public health purposes otherthan conforming with the standards and guidelines set for reasons of the safety andaesthetic qualities of drinking water. There was no consideration of s 11 of the NewZealand Bill of Rights Act in the parliamentary materials. The explanatory note to theLocal Government Bill in which s 12 was introduced indicates that s 12 itself was notthought to provide "coercive or regulatory powers" over others, which is hardly300 Which provides:10 Purpose of local government(1) The purpose of local government is—(a) to enable democratic local decision-making and action by, and on behalf of,communities; and(b) to meet the current and future needs of communities for good-quality localinfrastructure, local public services, and performance of regulatory functionsin a way that is most cost-effective for households and businesses.(2) In this Act, good-quality, in relation to local infrastructure, local public services,and performance of regulatory functions, means infrastructure, services, andperformance that are—(a) efficient; and(b) effective; and(c) appropriate to present and anticipated future circumstances.301 Section 13.consistent with the imposition of treatment with fluoride through the water supply.The Select Committee explained its insertion of s 69O(3)(c) in Part 2A of the HealthAct as being to avoid any doubt as to whether the Minister could make the addition offluoride mandatory when setting standards. Construing s 12 of the Local GovernmentAct as legislative authority to local authorities to add fluoride to water is difficult toreconcile with the statutory responsibilities of the Minister under Part 2A of theHealth Act in setting the standards for water safety and taste.Approach to interpretation[279] Whether the functions conferred on local authorities under the LocalGovernment Act and the Health Act authorise the addition of fluoride for public healthpurposes depends on the meaning of the provisions. As already indicated, it is notsuggested that ss 12 and 130 of the Local Government Act and s 23 of the Health Actexpressly authorise the administration of medical treatment for public health purposesin the water supplied. Rather, the Council contends that it has the power under s 12of the Local Government Act to add fluoride to the water it supplies because of itsresponsibilities to continue water supply under s 130 of the Local Government Act(enacted, it says, on the understanding that the addition of fluoride was authorised)and because of its responsibilities for public health within its district under s 23 of theHealth Act.[280] The meaning of the statutory provisions relied on as constituting authority toadd fluoride to water is to be ascertained principally from their text and purpose, takinginto account the indications provided by the scheme of the legislation, as s 5 of theInterpretation Act 1999 directs. Importantly in the present case, where arguments aremade from historical context as to the understanding current at the time of enactment,s 6 of the Interpretation Act provides that "[a]n enactment applies to circumstances asthey arise".[281] In addition to the provisions of the Interpretation Act, general principles ofcommon law as to interpretation of statutes apply. Those of significance in the presentcase concern the implication of powers in legislation and the interpretation of statutoryprovisions which impact upon fundamental interests and rights. It is thereforenecessary to discuss the general principles of interpretation bearing on the meaning ofss 12 and 130 of the Local Government Act and s 23 of the Health Act. Those ofsignificance in the present case are three: the approach taken to implication of powerin statutes; the role of historical context in interpretation; and the role of presumptionsof compliance with fundamental values both under common law principles and inapplication of s 6 of the New Zealand Bill of Rights Act.(a) Implication of power[282] The Privy Council in Attorney-General v Lower Hutt City applied the generalapproach that implication of powers not expressly conferred in statutes must be"necessary".302 There may be room for debate about whether "necessary" implicationin all cases sets the bar too high.303 While it may be appropriate where the power tobe implied would interfere with rights (such as the legal professional privilege in issuein R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax304), in othercases implication may be available where the additional power is "reasonably andproperly" incidental to functions conferred.305[283] Unexpressed powers are not however treated as implicit in legislation simplybecause they would match reasonable assumptions or might be convenient. The powerimplied must be "fairly regarded as incidental to, or consequential upon, thosethings which the Legislature has authorized".306 The starting point is what Parliamenthas actually enacted. Any implication must reasonably be regarded as part and parcelof the authority expressly provided. The courts do not imply terms into statutes to fillin gaps in policy.307 Implication is "in order to make the statutory power effective toachieve its purpose".308 If the implication affects the rights of others it is not enough302 Lower Hutt City (PC) at 124.303 Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed, LexisNexis,London, 2017) at 297–300.304 R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003]1 AC 563.305 Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 (HL) at 481 per LordBlackburn. See also Ward v Commissioner of Police of the Metropolis [2005] UKHL 32,[2006] 1 AC 23 at [5] per Lord Rodger of Earlsferry.306 Attorney-General v Great Eastern Railway Co at 478 per Lord Selbome LC.307 As was made clear in Northland Milk Vendors Association Inc v Northern Milk Ltd[1988] 1 NZLR 537 (CA) at 537–538 per Cooke P.308 Ward v Commissioner of Police of the Metropolis at [24] per Baroness Hale (with whomLord Steyn, Lord Hutton and Lord Carswell agreed).if it is one "it would have been sensible or reasonable for Parliament to have includedor what Parliament would, if it had thought about it, probably have included".309It must be an implication that is necessary.(b) Historical context[284] Where statutes address and correct particular grievances, the historical contextwhich provides the occasion for the legislation may be an important aid to itsinterpretation. But where statutes address contemporary issues as they arise, theprinciple of interpretation is that they are "always speaking".310 Such a statute exists"independently of the historical contingencies of its promulgation, and accordinglyshould be interpreted in the light of its place within the system of legal norms currentlyin force".311 The more modern language of the Interpretation Act retains thislong-standing principle of interpretation in the requirement that statutes are to applyto "circumstances as they arise", one of the three "principles of interpretation"identified in Part 2 of the Interpretation Act 1999.312[285] A statutory text that speaks to the present must, as Stephen Gageler says, be"necessarily influenced in its meaning by the contemporary statutory context in whichit continues to speak":313So much is that taken for granted that it is almost never suggested that afrequently modified statute should be read other than as a coherent whole.There is not the slightest conceptual difficulty with the notion of subsequentlegislative enactments expressly or by implication modifying existingstatutory language. Words incorporated into a statute at a particular time aretherefore not frozen at the point of incorporation but take (and can change) inmeaning so as to best fit the changing statutory landscape.309 R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax at [45] per Lord Hobhouse,applied in B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [58] and inRegal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433 at [140] per Tipping J.310 Acts Interpretation Act 1924, s 5(d); and Lord Thring Practical Legislation: The Composition andLanguage of Acts of Parliament and Business Documents (George N Morang & Co, Toronto,1902) at 83, cited by Lord Steyn in R v Ireland [1998] AC 147 (HL) at 158.311 John Bell and George Engle Cross on Statutory Interpretation (2nd ed, Butterworths, London,1987) at 49–50, referred to by the Law Commission in Legislation and its Interpretation (NZLCPP8, 1988) at [98]. The same passage appears in the third edition: John Bell and George EngleCross on Statutory Interpretation (3rd ed, LexisNexis, London, 1995) at 51–52.312 Interpretation Act 1999, s 6. The other two principles are the requirement in s 5 to ascertain themeaning of the legislation from its text and in the light of its purpose and the presumption againstretrospective effect contained in s 7.313 Stephen Gageler "Common Law Statutes and Judicial Legislation: Statutory Interpretation as aCommon Law Process" (2011) 37 Mon LR 1 at 11.[286] Lord Steyn has pointed out that whether a court "must search for the historicalor original meaning of a statute or whether it is free to apply the current meaning ofthe statute to present day conditions" is itself a matter of interpretation.314 The LocalGovernment Act and the Health Act are not legislation which seek to correct particularproblems in which the historical context helps in identifying the purpose. They arestatutes which address contemporary needs. They must therefore be read in the lightof developing principles of interpretation and the contemporary context of thecommon law and statutes into which they fit, as they exist at the time of application.[287] Statements of rights, such as those contained in the New Zealand Bill of RightsAct, are an enacted register of values which is intended to affect all domestic law, asCooke P recognised in R v Goodwin.315 The New Zealand Bill of Rights Act is enactedto "protect" and "promote" human rights and fundamental freedoms inNew Zealand.316 It inevitably affects previous understandings of the effect of existinglegislation, as was its purpose. While the statutory construction in Ghaidan vGodin-Mendoza317 may well have surprised the members of the United KingdomParliament who enacted the statute in 1988, as Lord Hoffmann pointed out inR (Wilkinson) v Inland Revenue Commissioners that is "not normally what one meansby the intention of Parliament".318 Instead, the court when interpreting legislation isconcerned to arrive at "the interpretation which the reasonable reader would give tothe statute read against its background, including, now, an assumption that it was notintended to be incompatible with convention rights".319[288] In New Zealand following enactment of the New Zealand Bill of Rights Actthere have been a number of reassessments of matters such as the content of statutoryprovisions concerning natural justice or the right to fair trial and the scope of statutorydiscretions that might similarly have surprised members of the Parliament whichenacted those provisions. The meaning of enactments now reflects the human rights314 R v Ireland [1998] AC 147 (HL) at 158.315 R v Goodwin at 156: "The Bill of Rights Act is intended to be woven into the fabric ofNew Zealand law. To think of it as something standing apart from the general body of law wouldbe to fail to appreciate its significance; ."316 New Zealand Bill of Rights Act, long title.317 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.318 R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30, [2006] 1 All ER 529 at [18].319 At [18].values contained in the New Zealand Bill of Rights Act. The shift in understandinghas occurred despite the fact that many of the rights now enacted were earlier reflectedto some extent in the common law and perhaps formerly subject to limitations, earlierthought to be reasonable, now treated as unlawful.[289] The right contained in s 11 of the New Zealand Bill of Rights Act is not one ofthe traditional civil and political rights prefigured in part in the common law. Nor isit derived from the statement of rights contained in the ICCPR. It is thereforeunderstandable that its application to legislation may produce what may seem to berelatively abrupt departure from previous understandings of the meaning of legislationbearing on the right. But unless the right recognised in s 11 is to be substantiallydenied, the meaning of any legislation affecting it has to be reconsidered in the lightof its recognition as a fundamental right.[290] The principal circumstance from which implication is urged in thepresent case is the history of fluoridation in New Zealand and the confirmation inAttorney-General v Lower Hutt City that a power to add fluoride to reticulated waterwas necessarily implied in s 240 of the Municipal Corporations Act. The Councilsuggested that the absence of references to a power to add fluoride to water when theLocal Government Act 2002 was enacted was because Parliament had no intention ofchanging what was understood to be the pre-existing law.[291] As is described further at [324]–[326], I do not think that the necessaryimplication by which local authorities were held by the Privy Council inAttorney-General v Lower Hutt City to be empowered to add fluoride to water survivesthe change in the regulatory regime, already described. I am of the view that followingthe 2008 amendments to the Health Act there is no room for an implied power for localauthorities to add fluoride, even if the decision of the Privy Council on the meaningof s 240 of the Municipal Corporations Act is otherwise sound (a point on which Ihave in any event some doubt, as explained below at [327]–[329]).(c) Presumption of compliance with fundamental values[292] Encroachment on rights requires clear legislative authority. There is a commonlaw presumption of interpretation that Parliament legislates consistently withfundamental rights, both at common law and, more recently, under the New ZealandBill of Rights Act. So, in Cropp v Judicial Committee,320 this Court accepted that thereis a presumption that "general words in legislation were intended to be subject to thebasic rights of the individual"321 and that the courts are "slow to impute to Parliamentan intention to override established rights and principles where that is not clearly speltout".322 Blanchard J, writing for the Court, said "[t]here is nothing new in this: it is awell-established interpretative principle".323 The Court held "[t]hat presumptionnaturally applies to words which authorise subordinate legislation".324 If thepresumption applies to "words which authorise subordinate legislation", it is clear thatit applies equally to words which authorise the actions and decisions of publicbodies.325[293] Similar presumptions of interpretation to achieve compliance withfundamental values in the legal order are applied in the United Kingdom, Australiaand Canada.326 The presumption of conformity with fundamental rights was expressedby Lord Hoffmann in terms of a "principle of legality", but was a long-standingprinciple of interpretation before that label was attached to it.327 It expresses the320 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774.321 At [27].322 At [26].323 At [26] citing FAR Bennion Bennion on Statutory Interpretation (5th ed, LexisNexis, London,2008) at 823.324 At [27].325 See Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 and Dotcom vAttorney-General [2014] NZSC 199, [2015] 1 NZLR 745, discussed below at [296]–[297]. Seealso R v Laugalis (1993) 10 CRNZ 350 (CA) at 355–356 for an early example where the Court ofAppeal held that a discretion to conduct a warrantless search under the Misuse of Drugs Act 1975was interpreted to be restricted to circumstances of urgency in order to achieve consistency withs 21 of the New Zealand Bill of Rights Act.326 See R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL); Cocov The Queen (1994) 179 CLR 427; Slaight Communications Inc v Davidson [1989] 1 SCR 1038at 1078 per Lamer J ("[The Court should] not interpret legislation that is open to more than oneinterpretation so as to make it inconsistent with the Charter and hence of no force or effect."); andHills v Canada (Attorney General) [1988] 1 SCR 513 at 558 per Dickson CJ, Wilson, La Forestand L'Heureux-Dubé JJ.327 Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed, LexisNexis,London, 2017) at 718–719. The presumption was acted on in R v Secretary of State for the HomeDepartment, ex parte Simms and R v Secretary of State for the Home Department, ex parte Pierson[1998] AC 539 (HL), and was applied to read down the wide discretion to set court fees inR v Lord Chancellor, ex parte Witham [1998] QB 575 (QB). It was applied by the High Court ofAustralia in X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92 and by threemembers of the Court of Appeal in R v Pora [2001] 2 NZLR 37 (CA).approach that "[f]undamental rights cannot be overridden by general or ambiguouswords":328In the absence of express language or necessary implication to the contrary,the courts therefore presume that even the most general words were intendedto be subject to the basic rights of the individual.[294] Where human rights recognised by the New Zealand Bill of Rights Act areaffected, the presumption of conformity with fundamental values is also expressed bys 6 of the New Zealand Bill of Rights Act. Lord Reed, citing Lord Cooke, has recentlypointed out that, since statements of human rights are recognition of rights "inherentand fundamental to democratic civilised society" rather than creation of them, they donot stand apart as a discrete body of domestic law.329 The common law presumption(which attaches to important principles of the common law and to international law330)is in this way properly seen as reinforced by the direction contained in s 6 of theNew Zealand Bill of Rights Act. That is the way in which s 6 was treated by the Courtin Cropp, in Zaoui v Attorney-General (No 2),331 and in Dotcom v Attorney-General.332[295] In Cropp, Blanchard J explained the general approach:333Subordinate legislation involving a relevant guaranteed right or freedom willbe invalid when the empowering provision, read in accordance with s 6 of theBill of Rights Act, does not authorise its making. Where the Bill of RightsAct is a relevant consideration, and obviously it will then be an importantconsideration, the court gives the generally expressed empowering provisiona tenable meaning that is consistent with the right or freedom. "In accordancewith s 6, that meaning is to be preferred to any other meaning."[296] In Zaoui (No 2) a wide discretion to order deportation by Order in Councilunder the Immigration Act 1987 was held by the Court, in a unanimous decisionwritten by Keith J, to require consistency with the rights and freedoms contained inthe New Zealand Bill of Rights Act (in that case, the rights not to be arbitrarilydeprived of life or subject to torture).334328 R v Secretary of State for the Home Department, ex parte Simms at 131 per Lord Hoffmann.329 R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 1115 at [58], citing R (Daly) v Secretaryof State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at [30].330 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 57 per Keith J for the Court.331 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.332 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.333 Cropp at [25] (footnote omitted) invoking Drew v Attorney-General [2002] 1 NZLR 58 (CA)at [68].334 Zaoui (No 2) at [90]–[91].[297] Similarly, in Dotcom, McGrath, William Young, Glazebrook and Arnold JJproceeded on the basis that "[t]he Bill of Rights Act plays an important role in theinterpretation of the scope of powers affecting protected rights that are expressed inbroad or general terms".335 Referencing Drew v Attorney-General, they said:336Legislative provisions conferring discretions and powers are, like all statutoryprovisions, to be read in accordance with s 6 of the Bill of Rights Act, .Applying this approach to the interpretation of s 44 of the Mutual Assistance inCriminal Matters Act 1992, they concluded that "[w]hile the terms of s 44 apparentlyconfer broad and unfettered powers of search and seizure, to give effect to such ameaning would constitute an unreasonable and unjustifiable limit on the s 21 right tobe free from unreasonable search and seizure":337In accordance with s 6 of the Bill of Rights Act, s 44 should, so far as possible,be given a meaning consistent with that right.[298] The application of s 6 in this way is not inconsistent with the approach takenin R v Hansen.338 The Judges in the majority in Hansen did not purport to lay downan inflexible rule as to methodology in the application of s 6.339 Nor is suchmethodology inflexibly applied in the cases, as Cropp, Zaoui (No 2) and Dotcom allindicate.[299] Hansen was a case where all members of the Court considered that there wasonly one possible meaning of the provision in question. Blanchard J considered thatto be a point of distinction with Moonen (No 1)340 which explained the differentmethodology there used.341 If there had been a continuum of meaning available (as inthe assessment in issue in Moonen (No 1) of what is "objectionable"), Tipping Jconsidered that the same approach would have been appropriate.342335 Dotcom at [100].336 At [100] citing Drew v Attorney-General at [68].337 At [161].338 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.339 See at [61] per Blanchard J, [91] per Tipping J and [192] per McGrath J.340 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) [Moonen (No 1)].341 R v Hansen at [61].342 At [94]. Tipping J considered Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 to be such a"continuum" case where the methodology in R v Hansen was not of assistance (see Morse at [68]).[300] It seems to me that the interpretation point in issue in the present case (whetherimplication is "necessary" or "proper") is indeed an assessment of meaning based ona "continuum", if that distinction is sound (a point on which I have considerable doubt,being of the view that interpretation in conformity with s 6 is required whenever thereare different available meanings343). In any event, although Tipping J considered that,"logically"344 the initial task for the court is "to identify the meaning which thestatutory provision bears without reference to the preference with which s 6 isconcerned" (which he thought arose only in the case of inconsistency), he was of theview that the "initial interpretation exercise":345 should proceed according to all relevant construction principles, includingthe proposition inherent in s 6 that a meaning inconsistent with the rights andfreedoms affirmed by the Bill of Rights should not lightly be attributed toParliament.[301] Both Blanchard and McGrath JJ took the view in Hansen that the s 6 preferencedid not arise until the "natural meaning" of the statutory provision being applied andwhich "appeared" to be inconsistent with a protected right had been ascertained andfound to be an unreasonable limitation not able to be justified in a free and democraticsociety.346 Because Hansen was a case where there was only one meaning of theprovision which they considered reasonably available, neither Blanchard orMcGrath JJ dealt with the way in which the "natural" meaning of the provision was tobe ascertained in cases of doubt. They did not need to consider whether the principlesof interpretation available in ascertaining the "natural meaning" of a provisionincluded a presumption against limiting rights and freedoms as a principle of legalityand a "proposition inherent in s 6", in the manner allowed by Tipping J.[302] In Cropp, the Court held that the statutory rule-making power authorising rulesfor the purposes of safety in racing was to be interpreted to be consistent with therequirements of the New Zealand Bill of Rights Act as to freedom from unreasonablesearch and seizure. As Blanchard J there accepted, if a tenable meaning is consistent343 For the reasons I gave in R v Hansen at [10]–[25].344 Since he took the view that s 6 is concerned with meanings which are inconsistent with the rightsand freedoms contained in the Bill of Rights (a starting point I think is difficult to take from thelanguage of s 6).345 At [88]–[89].346 At [57]–[60] per Blanchard J and [190]–[192] per McGrath J.with the right or freedom, the correct approach is that taken in the earlier decision ofthe Court of Appeal in Drew. Under it, a tenable meaning consistent with the right orfreedom is "to be preferred to any other meaning".[303] In the present case, where the interpretation in issue consists of the implicationof authority to act inconsistently with the rights contained in s 11, a presumptionagainst infringement of rights could be displaced only by strong textual and contextualindications that the implication is necessary to fulfil functions unmistakeablyconferred. In the absence of such necessity to augment the statute by implication, aninterpretation which does not entail such enlargement is clearly one that "can" begiven.[304] This approach seems to me to be supported by the structure and content of theNew Zealand Bill of Rights Act and the New Zealand constitution. In New Zealand,Parliament is not prevented from enacting limits or in authorising limitation of rightsthrough subordinate legislation or administrative discretion if it does so clearly. (Thisis a position to be contrasted with that in Canada where legislation authorisinglimitation of rights is invalid unless the limitation authorised is justifiable under s 1 ofthe Charter of Rights and Freedoms.) Strong presumptions against interpretations oflegislation that limit rights, including a requirement of necessity before implication ofauthority to affect rights, are in this way reconciled with the priority given tolegislation under s 4 of the New Zealand Bill of Rights Act.[305] The approach is also consistent with the general obligations imposed by s 3 ofthe New Zealand Bill of Rights Act that all exercising public power are bound by theNew Zealand Bill of Rights Act (a result reached in Canada under the Charter not bydirect obligation but by cascading effect of the constitutional fetter on Parliament, asLamer J explained in Slaight Communications Inc v Davidson347). Unless thelegislation under which they act clearly authorises them to limit rights, all exercisingpublic power are bound to observe the rights and freedoms in the New Zealand Bill ofRights Act and may not limit rights to achieve ends they might otherwise lawfully seekto achieve. The concept of fundamental rights would otherwise be undermined.347 Slaight Communications Inc v Davidson [1989] 1 SCR 1038 at 1077–1079.[306] It is not appropriate for rights to be limited in application by administrativedecision in individual cases unless those making the decisions are clearly authorisedby law to limit rights. Legislation which is unmistakeable is valid even if it isinconsistent with the rights and freedoms in the New Zealand Bill of Rights Act orfundamental values of the common law, but such effect must be expressed or a matterof necessary implication.[307] This approach is also consistent with the requirement in s 5 of the New ZealandBill of Rights Act that any limitation of rights should be "prescribed by law" as wellas being demonstrably justified in a free and democratic society. The reference to"prescribed by law" can only be sensibly understood as a reference to enacted orcommon law rules, ascertainable in advance, as the policy of prescription in theinternational covenants is explained.348 Such rules may be prescribed by primary orsubordinate legislation or under rule-making powers (at least where the power to makesubordinate legislation or rules permits encroachment on rights explicitly or bynecessary implication). They may also be derived from common law remedies suchas the defamation remedies provided for protection of reputation or the rules of courtwhich affect the rights to justice contained in s 27 of the New Zealand Bill ofRights Act.[308] The requirement of prescription of law is necessary discipline which preventsthe justification under s 5 being treated as a general dispensing power for all thoseexercising public powers, enabling them to limit rights ad hoc on the basis that thelimit proposed in a particular case is "justified in a free and democratic society". Thatis inconsistent with the obligations in s 3. The scheme of the New Zealand Bill ofRights Act is that those exercising public powers must observe the rights and freedomscontained in the Bill of Rights unless they are clearly authorised by an enactment tolimit rights (in which case the context provided by the authorisation will limit thediscretion exercised, as will the "restraint" on wide discretion derived from s 5 of the348 See Steel v United Kingdom (1998) 28 EHRR 603 (EComHR) at 627; and Hashman and Harrupv United Kingdom (1999) 30 EHRR 241 (ECHR) at 256, considered in Brooker v Police [2007]NZSC 30, [2007] 3 NZLR 91 at [39]. See also Ostrovar v Moldova (2005) 44 EHRR 378(Section IV, ECHR) at [98]–[101].New Zealand Bill of Rights Act349). If the enactment can be given a meaning that doesnot entail encroachment on rights through individual decision-making, that meaningis to be preferred under s 6.The Council had no implied statutory authority to add fluoride[309] Given the earlier discussion about the statutory powers relied on as the sourceof an implied authority to add fluoride to water, the context in which they fall to beapplied, and the general approach to be taken to interpretation, I can be brief inexplaining my conclusion that the Council had no implied statutory authority to addfluoride to the water it supplied.[310] The scheme of the legislation under the Health Act and the Local GovernmentAct is that the quality of water supplied by local authorities has been controlled since2008 by the provisions of Part 2A of the Health Act, introduced by s 7 of the Health(Drinking Water) Amendment Act 2007. Where a local authority supplied drinkingwater as at 25 December 2002, it has been obliged by s 130 of the Local GovernmentAct to continue supply. But neither that Act nor the general powers in s 23 underPart 2 of the Health Act to abate nuisances and remove conditions likely to be injuriousto health impose responsibility for setting the standards for potable and wholesomewater on local authorities. Nor do they empower local authorities to treat thepopulation of the district for conditions likely to be injurious to health. Standards forwater quality are set nationally by the Minister by reference to measurement ofidentified determinands and on the basis that the standards adopted by the Minister"must not include any requirement that fluoride be added to drinking water". Thepublic health powers of local authorities under the Health Act are limited to nuisancesand conditions in land and waters which are likely to be injurious to health.(a) Section 130 of the Local Government Act[311] The requirement of continuity of supply of drinking water contained in s 130of the Local Government Act does not authorise the fluoridation of the water supplied.349 As acknowledged by McGrath and Arnold JJ, delivering reasons of themselves and William Youngand Glazebrook JJ in Dotcom at [161], importing the "restraint" on wide discretion provided bys 5 of the New Zealand Bill of Rights Act when interpreting the search and seizure powerscontained in s 44 of the Mutual Assistance in Criminal Matters Act 1992.Section 130 is contained in Part 7 of the Local Government Act which, as is describedabove at [271], is concerned with ensuring adequacy of water supply and sanitaryservices as well as the provision of other public amenities (such as parks, reserves andlibrary membership).350 Adequacy of water services is assessed in terms of the amountof water available to households and "the extent to which drinking water provided bywater supply services meets applicable regulatory standards".351 The applicableregulatory standards are those set under s 69O of the Health Act. For the reasons givenbelow at [319]–[322], their purpose is potable water, not wider public health interestsaffecting the population.(b) Section 23 of the Health Act[312] Section 23 of the Health Act (the text of which is set out above at [269])provides local authorities with broad powers and duties in respect of public health.They include duties to provide reports as required by the Director-General of Healthand, subject to the direction of the Director-General, to enforce regulations made underthe Act and to appoint environmental health officers and other officers (including atthe direction of the Director-General). Section 23 is contained in Part 2 of the Act,concerning the "powers and duties of local authorities". Section 25, within Part 2,obliges local authorities to provide "sanitary works" if requisitioned to do so by theMinister, including drainage works, sewerage works, waterworks, swimming bathsand cemeteries and such other works as it is required to undertake by Order in Council,and under supervision of the Director-General.[313] The power in s 23 relied upon as supporting an implied power to add fluorideto water supplied by the Council is that contained in s 23(c) which authorises a localauthority to take "all proper steps to secure the abatement" of any "nuisance" orany "condition likely to be injurious to health or offensive" in the district. Lack offluoride cannot be described as a "nuisance", a term defined non-exclusively in s 29but by reference to conditions likely to be injurious to health, such as throughaccumulation of rubbish or through the condition of drains or watercourses. All350 See s 123.351 Section 126 (the legislative history of which is discussed above at n 297).conditions identified as nuisances or potential nuisances are conditions found on landin the district which are or may be injurious to health.[314] Section 23(c) itself must be read in the context provided by the powers anddirections given to a local authority "to improve, promote, and protect public healthwithin its district". The powers "to secure abatement of nuisances or conditions likelyto be injurious to health or offensive" which precede para (c) are the powers in para (a)to "appoint environmental health officers and other officers" and in para (b) "tocause inspection of its district to be regularly made for the purpose of ascertaining ifany nuisances, or any conditions likely to be injurious to health or offensive, exist inthe district". Paragraph (c) follows on from para (b) and uses the same language inproviding that the local authority is empowered and directed to secure abatement ofany "nuisance or the removal of the condition", if "satisfied that any nuisance, or anycondition likely to be injurious to health or offensive, exists in the district". In thecontext of para (b) it is clear that the "condition" the local authority is empowered toremove is similarly one that might be found on inspection of the district. These arenot terms readily applicable to aspects of the health of the population in the district.Nor do the terms of the provision suggest that the powers of removal or abatementcould include medication of the population.[315] The remaining paragraphs, (d), (e) and (f), are concerned, respectively, withenforcement of regulations "subject to the direction of the Director-General", themaking of bylaws for the protection of public health, and the furnishing of reports tothe medical officer of health "as to diseases, drinking water, and sanitary conditionswithin its district as the Director-General or the medical officer of health may require".Again, none of these provisions suggest that the local authority could make bylaws formedical treatment of the population in its district.352 The indications that enforcementof regulations under the Act are under the supervision of the Director-General and thereporting required to the Director-General and the medical officer of health as todiseases, drinking water and sanitary conditions within the district suggest thatresponsibility for public health within the district (except in the limited ways describedfor elimination of nuisances and conditions likely to be injurious to health or offensive)352 It may be noted additionally that s 155(3) prevents the making of bylaws inconsistent with theNew Zealand Bill of Rights Act "notwithstanding section 4 of that Act".are reserved to the Director-General and medical officer of health acting under theirpowers.[316] I consider that s 23(c), read in its own terms and in its immediate context, doesnot authorise the addition of fluoride to treat dental decay. North P and Turner J wereI think right in Attorney-General v Lower Hutt City to take the view that s 23 did notprovide the Council with authority to add fluoride.353 Nor do I accept that s 23(c)describes a function to address health through provision of treatment of the populationwhich justifies use of the general powers of competence contained in s 12 to addfluoride to water.(c) Section 12 of the Local Government Act[317] I have already described the terms and effect of s 12 above at [274]–[278]. Thegeneral competencies provided under s 12 do not enlarge the scope of the functions oflocal authorities. They are powers which are necessary to enable such functions to becarried out. I take the view that s 130 of the Local Government Act and s 23 of theHealth Act do not implicitly confer on local authorities general responsibilities inrelation to the health of the population in the district which could justify use of s 12 toadd fluoride or other medical treatment to water. Such implied power would beinconsistent with s 12(3) because local authorities are bound to observe s 11 of theNew Zealand Bill of Rights Act. The implication of a power to add medical treatmentto water, without practical ability of the population to which the water is reticulated toavoid such treatment, is inconsistent with the presumptions of interpretation wherefundamental values are affected. Such implication is not necessary in order to makethe legislation work, as is required where rights are affected, as is explained aboveat [282]–[283].[318] The explanatory note to the Local Government Bill referred to above at [278]indicates that s 12 was not thought to provide "coercive or regulatory powers" overothers. That is not easy to square with the view that s 12 would permit treatmentwithout consent through the water supply. An implied power in local authorities toundertake the addition of fluoride or other medical treatment is also inconsistent with353 See above at [216] and [254].the overall legislative scheme in which the Minister of Health has responsibility forregulating the quality of water and local authorities have responsibility for meeting thestandards set and providing assessments and reports to demonstrate compliance.(d) The standards set under Part 2A of the Health Act[319] The argument for the respondents entails treating the maximum acceptablevalue as setting a ceiling below which an implied power to add fluoride necessarilyarises.354 The provenance of the maximum level in World Health Organizationguidelines applicable to countries with naturally occurring levels of fluoride is not asound basis for an implied power to add fluoride up to the maximum level specified.The argument would treat the addition of any other determinand as available to a localauthority if it promotes public health.[320] Nor is such an implied power readily reconcilable with the statutoryprohibition on requiring the addition of fluoride in setting standards. I am unable toagree with the view that the fact that the Minister is explicitly prohibited fromrequiring the addition of fluoride is indication of implicit conferral of such power onthe local authority. The only mention of fluoride in Part 2A itself is in respect ofs 69O(3)(c). The prohibition on requiring the addition of fluoride through standardswould be a very backhanded way to suggest by implication that local authoritiesnevertheless have a discretion to add fluoride. That is not an explanation given by theSelect Committee. The better view is, I think, that the maximum acceptable valuesimply specifies the levels of fluoride that are treated as contaminants which preventdrinking water attaining the requirements set for safety.[321] There is in my view no logical inconsistency if a local authority cannot add asubstance up to the maximum value allowed by the Minister and the Minister isprevented from requiring addition below that maximum acceptable value. Themaximum value set does not carry the necessary implication of a power at thediscretion of the supplier to add a determinant up to the maximum value. I do not354 The Council in its submissions says that the Health Act "expressly contemplates that fluoride maybe added to drinking water in accordance with drinking water standards". It says that even iffluoridation limits the s 11 right to refuse medical treatment, "there is no possible alternativeinterpretation of the [Local Government Act], Health Act, and the drinking water standards thatconfer the power to fluoridate".consider that s 69O says anything about the capacity of local authorities to add fluorideat their discretion relying on their general powers of competence and general andlimited responsibilities in relation to public health in their districts.[322] The purpose of the standards is to set the maximum values for water in orderto ensure that it is safe to drink. There is nothing in Part 2A of the Act to suggest awider public health purpose in regulating the treatment of water. The scheme of thelegislation is that regulation to achieve safe drinking water is the responsibility of theMinister while the obligation to supply, maintain existing services, and set up theinfrastructure to do so is the responsibility of local government.(e) Section 11 of the New Zealand Bill of Rights Act[323] An interpretation of the legislation which recognises an implied power to addfluoride to water is inconsistent with s 11 of the New Zealand Bill of Rights Act. Inline with both the common law presumption of interpretation in accordance withfundamental values and the direction contained in s 6 of the New Zealand Bill ofRights Act, the general provisions contained in ss 12 and 130 of the Local GovernmentAct and s 23 of the Health Act cannot properly be construed to contain an impliedpower to add a substance for health reasons in the absence of explicit statutoryauthority.(f) The background provided by Attorney-General v Lower Hutt City does notjustify implied power[324] I am of the view that the background provided by the decision inAttorney-General v Lower Hutt City (even if correct when decided) does not justify animplication of authority to provide medical treatment without consent in the legislativecontext since enactment of s 11 of the New Zealand Bill of Rights Act.Attorney-General v Lower Hutt City was decided at a time when it was thought thatfluoridation of municipal water supplies did not engage any protected rights. That isapparent from the report of the 1957 Commission of Inquiry and the Human RightsCommission's report of 1980 (discussed above at [241]), both of which precededenactment of the New Zealand Bill of Rights Act and neither of which addressed theright now enacted as s 11.[325] The provisions of the Local Government Act and the Health Act also now fallto be applied in the legislative context of the scheme of regulation of water to ensurethat it is potable contained in Part 2A of the Health Act. Since 2008, Part 2A has madeit clear that the obligations on local authorities supplying water are to take reasonablesteps to ensure that the standards set by the Minister are met. Those standards areclearly addressed only to the safety of drinking water and not to its "improvement", asthe Privy Council thought available to local authorities obliged to supply "pure"water.355 I indicate under the next heading that I do not consider that there was a securefoundation for necessary implication of a power to "improve" water that was safeunder s 240(1) of the Municipal Corporations Act. The point may perhaps have beenclearer under the subsequent legislation with its substitution of an obligation to provide"potable" water instead of "pure" water. But, in any event, the scope of the obligationunder Part 2A of the Health Act now makes it quite clear that the standards set by theMinister are concerned with water safety, not more general public health benefits. Stillless are they consistent with the imposition of treatment without consent. Compulsorytreatment would be a significant power which is inappropriate for implication, as issuggested by the care taken under Part 3A of the Act to ensure compulsion isundertaken only "within a human rights framework" (as described above at [220]).[326] Most importantly of all, however, the provisions of the Local Government Actand the Health Act relied on as the sources of implied power now fall to be interpretedin the context of s 11 of the New Zealand Bill of Rights Act.(g) In any event, Attorney-General v Lower Hutt City is doubtful authority[327] Quite apart from the basis on which I would distinguish Attorney-General vLower Hutt City in application of the contemporary provisions, I think there is reasonto doubt whether the interpretation of s 240(1) of the Municipal Corporations Act thatwas accepted in the case could prevail today. Attorney-General v Lower Hutt City wasdecided at a time when the courts acquiesced in the unrestricted exercise of widediscretionary powers in public law. Such powers have since come to be understood tobe constrained by statutory purpose, following cases such as Padfield v Minister of355 See the extract quoted above at [253].Agriculture, Fisheries and Food356 and Fiordland Venison Ltd v Minister ofAgriculture and Fisheries.357[328] I do not doubt that a power to "construct waterworks for the supply of purewater for the use of the inhabitants of the district" (and for that purpose to draw on thewater from rivers, lakes, etc) necessarily entailed obligations to render the water"pure" (or "potable", as the succeeding legislation had it). That does not seem to mehowever to do more than empower the council to render the water safe to drink. Nowider public health purpose in the supply of water is suggested by the legislation, evenwhen read in the context of s 288 of the Municipal Corporations Act 1954 and s 23 ofthe Health Act 1956. They describe very general responsibilities in relation to publichealth with no suggestion of powers to impose fluoride or other medication on theinhabitants of the district.[329] The Privy Council in Attorney-General v Lower Hutt City upheld the decisionof the Court of Appeal on the basis of what it acknowledged to be a "liberal"construction of the section and on the view that the addition of fluoride "adds noimpurity".358 A purposive interpretation of the section it seems to me would recognisethat "pure water" in context has the meaning "potable water" (as the subsequentlegislation made clear) and that the end it sought was safe water. I doubt that animplication of a power to "medicate" (and so "improve") water could be justified onthe current approach to implication of powers (discussed above at [282]–[283]) on thebasis that the water "remains not only water but pure water and it becomes a greatlyimproved and still natural water containing no foreign elements". The question wasnot whether "natural water containing no foreign elements" was "pure". Instead, thereal question was whether the Council's discretionary powers under s 240(1) werelimited to making the water potable, that is to say safe to drink.356 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL). See alsoWilliam Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press,Oxford, 2014) at 12–13, describing the "deep gloom settled upon administrative law" from whichthe courts began to emerge in the 1960s.357 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA).358 See the extract quoted above at [253].(h) The presumption of rights-consistent interpretation is not rebutted[330] Construing the provisions relied on here as providing power to add fluoride orother medical treatment to water is contrary to the presumption of rights-consistentinterpretation. Such presumption cannot be rebutted except by express language ornecessary implication. Otherwise rights acknowledged to be fundamental would be"overridden by general or ambiguous words". Rebuttal may follow however from thepurpose of the powers conferred.[331] In Cropp, the issue for the Court was whether s 29 of the Racing Act 2003, inauthorising rules regulating the conduct of racing through rules for "the conduct andcontrol of race meetings, including safety requirements", authorised the rules in issuewhich required jockeys to supply samples for the purpose of drug testing. The Courtconsidered that the critical question was whether the drug-testing rules wereauthorised by the Act "interpreted in accordance with the general law and the Bill ofRights Act".359[332] Despite the presumption of rights-consistent interpretation, the Court wassatisfied in Cropp that a power to make rules for safety in the conduct and control ofrace meetings, by necessary implication, "authorises the creation of a drug-testingregime intended to deter drug taking".360 The risk to safety in use of drugs by jockeyswas very great and the rule-making authority "expressly authorises rules directed tothe safety of racing"361:[31] The "safety requirements" of race meetings on any sensible readingmust encompass measures designed to eliminate, or at least minimise, thetaking by jockeys of drugs which may induce unsafe riding practices orbehaviour, both by detecting and deterring drug taking.[333] No comparable contextual rebuttal of the presumption, such as was providedin Cropp by the explicit power to make rules for safety in racing, arises here. Theprincipal source of authority to add fluoride here was a general power of competencein the context of functions which touch on public health in the physical supply of water359 Cropp at [24] per Blanchard J giving the reasons of the Court.360 At [32].361 At [27].but in which the safety of the water supplied is the subject of detailed rules made underthe statutory scheme contained in Part 2A of the Health Act.(i) Conclusion[334] For the reasons given at [323]–[326] and [330]–[333], I do not accept that thepresumption of interpretation in conformity with the values contained in s 11 of theNew Zealand Bill of Rights Act is displaced by the background provided by thedecision in Attorney-General v Lower Hutt City. That decision is suspect in its ownterms, as explained above at [327]–[329]. But in any event it is now inconsistent withthe contemporary scheme for water treatment in Part 2A of the Health Act as well aswith s 11 of the New Zealand Bill of Rights Act. I consider for the reasons givenat [311]–[318] there is no basis upon which to interpret ss 12 and 130 of the LocalGovernment Act and s 23 of the Health Act as providing authority under which localauthorities may add fluoride to water. If Parliament wishes to empower localauthorities to add fluoride to reticulated water for public health purposes, it can do soclearly. I would accordingly allow the appeal and make a declaration that the Councilhas no power to add fluoride to the water it supplies.Solicitors:Wynn Williams Lawyers, Christchurch for AppellantSimpson Grierson, Wellington for First RespondentCrown Law Office, Wellington for Second Respondent