Fluoridation Information

“In 2018 the N.Z Supreme Court ruled that fluoridation was a compulsory medical treatment. The judges did not agree on whether or not this was ‘demonstratably justifiable in a free and democratic society’ under section 5 of the Bill of Rights Act”.

This is not an accurate description of New Health v South Taranaki District Council 2018.

The judges considered Section 11 of the Bill of Rights Act, the right to refuse to undergo any medical treatment. However, in their majority decision.

• Two judges found Taranaki District Council had the legal authority to fluoridate which was seen as a reasonable limit on the Section 11 right, by Section 5 of the Bill of Rights Act in that it is “demonstrably justified in a free and democratic society”.
• One judge found that local authorities could legally fluoridate, as long as it was ‘demonstrably justified’ under Section 5 depending on local conditions.
• One judge found that Section 11 was not engaged at all by fluoridating water, so did not have to consider Section 5.

Four out of five Supreme Court judges agreed that Taranaki District Council had the legal authority to fluoridate water, three of them by invoking Section 5 to restrict Section 11:

MR-2018-NZSC-59-and-MR-2018-NZSC-60.pdf (courtsofnz.govt.nz)

The Supreme Court case in 2018 took place when local authorities still had the power to decide whether to fluoridate.

The Health (Fluoridation of Drinking Water) Amendment Act 2021 removed that power from local government, and gave it to the Director-General of Health who could legally direct Councils to fluoridate or remove excess fluoride from their water supplies.

It was passed unanimously by Labour, Greens, ACT, Te Paati Maori and National with their full support.

With the passing of this legislation, Waitaki District Council no longer has the decision-making power to fluoridate water supplies. Since that time, Waitaki District council, the Mayor and elected Councillors have made no decision on fluoridating water.

In 2007 there was a referendum held which opposed fluoridation. At that time, Waitaki District Council had decision-making power on water fluoridation. Waitaki District Council did not fluoridate the water following the referendum.

In 2024, due to the Health (Fluoridation of Drinking Water) Amendment Act 2021, Council does not have the decision making power on water fluoridation. That means Councillors cannot decide whether or not to fluoridate. 

New Health New Zealand have applied to the High Court for a judicial review against the Director-General of Health and Attorney-General on three occasions between November 2023 and July 2024 regarding the directives issued in July 2022. There has also been a similar application for a judicial review from another group.

They have taken these cases against the Director-General of Health because they have the decision-making power on fluoridation.

At no point has any High Court judge ruled that directives were not valid. They therefore remain legal directives that the Council must comply with.

November 2023

Justice Radich determined that while the Director-General of Health had considered relevant scientific evidence, and considered New Health v South Taranaki District Council, they had not directly considered s 5 of the Bill of Rights Act.

Justice Radich then asked the parties to try and resolve the dispute but did not overturn the directives to fluoridate. What was viewed as ‘an error in law’ was the process of deliberation the Director-General went through to decide to issue the directives.

workspace___SpacesStore_7a78b57c_df62_4388_b816_7ad61b03a5c7.pdf (justice.govt.nz)

The directives remained valid, as per this letter from the Director-General of Health shortly afterward: DG-update-on-CWF-17-November-2023-Waitaki.pdf(PDF, 146KB)  

February 2024

Justice Radich ordered the Director General of Health to reconsider the decision to issue directives to fluoridate water supplies. The Director General was told to consider whether the directions given were under s 5 of the Bill of Rights Act reasonable limits on the right to refuse medical treatment prescribed by law as can be demonstrably justified in a free and democratic society.

“The decision that is to be reconsidered continues to have effect unless and until it is revoked or amended by the Director General.”

The directives continued to be valid.

workspace___SpacesStore_632adcb7_65ac_4098_948f_444f1e428eab.pdf (justice.govt.nz)

May 2024

In a separate case the Fluoride Action Network and NZDSOS applied for a judicial review of the Hastings District Council reintroducing fluoride to its water supply, based on the Director-General’s directives.

Justice La Hood found that the Council complying with the directives was not unlawful, as the directives continued to be valid following the February 2024 judgment by Justice Radich. The application was dismissed.

2024-NZHC-1313.pdf (courtsofnz.govt.nz)

June 2024

New Health New Zealand applied to the High Court to prevent the Director-General of Health from taking any action regarding failure to comply with the valid directives until the reconsideration of the Bill of Rights Act s5 was complete.

Justice Radich did not stop the Director-General from taking enforcement action, and the directives remained valid. There will be a further hearing on 9 August 2024 to determine whether the February decision should be recalled.

240626-nhnz-v-dgh.pdf (waitaki.govt.nz)

The directives remain valid, and Councils subject to a direction are under a statutory duty of mandatory compliance i.e. they are required by law to implement the directives.

This is incorrect. In the June 2024 decision, it was said by the lawyer for the Director General that ‘there is no indication that the Director-General would take enforcement action in relation to the directions.’ And that ‘…at this stage the Director-General is taking an educative approach’.

This was part of their submission, not the decision made by the Judge, Justice Radich. At this hearing, the Judge turned down the application to prevent the Director General from taking enforcement action and issuing fines so that remains a possibility. It also does not mean Council would not be fined if it does not comply with the valid directives. Council has a responsibility to follow the valid directives and comply with the law.

240626-nhnz-v-dgh.pdf (waitaki.govt.nz)

The consideration of the Bill of Rights Act is for the Director-General of Health, as instructed by Justice Radich in February 2024. In the June 2024 decision, the lawyer for the Director-General said that they are complying with these instructions. Waitaki District Council has not made any decision on fluoridation and is not a party to this consideration.

February Decision by Justice Radich: workspace___SpacesStore_632adcb7_65ac_4098_948f_444f1e428eab.pdf (justice.govt.nz)

June Decision by Justice Radich: 240626-nhnz-v-dgh.pdf (waitaki.govt.nz)

As this decision has not been made by Waitaki District Council, it is not subject to the Local Government Act 2002. This includes there being no requirement to consult the community because it is not a Council decision. 

Council is bound to follow the law. This applies on all matters, not just legal directives from government. In this case, the legislation which supports these directives was passed by Parliament. It gave the Director General of Health the legal power to direct councils to add fluoride. Ignoring the directives would be breaking the law. The directives themselves have been repeatedly judged valid by repeat High Court decisions.

Waitaki District Council does not get to pick and choose which laws it follows. 

This is incorrect. Waitaki District Council was not granted an extension as the directives are still valid, as justified by the NZ High Court judgments provided by the Director General of Health. Waitaki District Council had also completed the capital works to make fluoridation of the Oamaru Supply possible.

Where other Councils have received extensions this has mostly been due to the need for the installation of fluoridation equipment, or delays in procurement of that equipment.

Two examples include Tararua, who got a three month extension due to procurement issues as stated here.

Whangarei also received an extension to March 2025 because they had not completed works on some of the required treatment plants, as stated here by the Director General of Health in her letter to Whangarei District Council: DG-Health-Letter.pdf(PDF, 686KB)

Oamaru’s water is primarily treated to meet the standards through membrane and ozone filtration. Some chlorine is also added to the supply to ensure the water remains uncontaminated as it makes its way through the network to people’s homes and businesses. The standards require us to keep levels within a set range. The Oamaru supply will be fluoridated by 30 June 2024.

In July last year, the Director-General of Health directed the Waitaki District Council, under section 116E the Health Act, to add fluoride to the Oamaru water supply. Waitaki is one of 14 local authorities who were directed to fluoridate their water supplies.

In accordance with the Act, Council is required to ensure the Oamaru supply is fluoridated at the optimal levels by 30 June 2024.

The cost of doing so is more than $500,000, including construction of the building required to house the necessary equipment. This cost is being fully funded by Manatū Hauora (the Ministry of Health), following an application made by Council. The ongoing cost of adding fluoride to the supply will be around $40,000 and included in the Water Treatment Plant operating budgets.

Data for children aged 0-12 in the SDHB from 2022 show that 32% of children had experienced tooth decay by age five. Māori and Pacific children have significantly worse outcomes with 46% of Māori children experiencing decay by aged 5. The 2017-2020 NZ Health Survey showed that 47.6% of those 15+ in the SDHB had one or more teeth removed in their lifetime due to decay, an abscess, infection, or gum disease.

The Director-General of Health made the directive following consideration of the scientific evidence including Water fluoridation to prevent tooth decay (Cochrane Collaboration 2015), Health effects of water fluoridation: A review of the scientific evidence (PMCSA and Royal Society Te Apārangi 2014) and Fluoridation: An update on evidence (PMCSA 2021).

At the 23 April 2024 meeting of the Waitaki District Council, Council resolved to instruct the Chief Executive to request an extension of time from the Department of Health to the deadline for adding fluoride to the Ōamaru water supply. 

In his letter to the Director General of Health, the Chief Executive outlined the Council’s concerns with the legal position around the decision of the Director General together with strong concerns from sections of the community. 

Council also agreed to advocate to Parliament that under the principles of localism, local communities be given the right to choose whether fluoride is added to their water.

The Mayor, in his letter to the Minister for Health, requested a reconsideration and also noted that as the decision-maker about fluoridation, the Ministry of Health should also be responsible for ensuring information about fluoridation is provided to the communities, rather than councils who have not made the decision.

Waitaki District Council received a response from Dr Diana Sarfati, Director-General of Health last week. In it she cited the High Court relief decision of 16 February 2024, and a subsequent decision on 24 May 2024, as legal basis for not granting extensions for the fluoridation directive.

The letters and further information can be found here.

Regardless of any individual views on fluoridation, Council is required by law to comply with the Ministry’s directive. If Council doesn’t comply, it faces a fine of up to $200,000, followed by $10,000 per day of non-compliance.  

Did Council make this decision?

Council did not make this decision. Since 2021, the power to direct fluoridation has been the preserve of the Director General of Health under the Health (Fluoridation of Drinking Water) Amendment Act 2021.

This legislation was originally introduced to Parliament in 2016 and was eventually passed in November 2021 with unanimous support from all parties.

Wasn’t the directive found to be unlawful?

An initial ruling by Justice Radich in November 2023 said that the Director-General had not considered the BORA (1990) when issuing the directives which was unlawful. However, in a relief hearing in February 2024, Justice Radich declined to quash the directives and directed the Director-General to assess each directive and amend or withdraw them. The directives therefore remained valid.

In the May 2024 High Court decision, Justice La Hood reaffirmed that Justice Radich’s decision mean Councils complying with the Director-General’s directions are not acting unlawfully.

Has this got anything to do with the UN, the WEF or any other international body?

No. This was a result of New Zealand legislation being introduced in 2016, passed in 2021 by Parliament and the Director General of Health exercising their statutory power to direct Councils to fluoridate.

So which supply is being fluoridated?

The Oamaru supply will be fluoridated. This consists of Oamaru, Ardgowan, Weston, Enfield, Kakanui, Maheno, Herbert, Hampden and Moeraki.

This will not affect private water schemes such as Corriedale Water Management Ltd, the Lower Waitaki scheme or supplies in the Waitaki Valley. Those in Waihemo south of Moeraki; Palmerston, Dunback, Stoneburn – will also not be fluoridated.

Can I withdraw consent for the fluoridation of water?

Council is legally required to follow the direction of the DG of Health under Part 5 of the Health Act 1956. There is no pathway for individuals to withdraw consent for fluoridation.

What else can Council do?

Having written to the Minister for Health, and the Director General of Health, Council has received instruction to comply with their statutory duty.

This included the recent High Court decision 1313, in which an attempt to have Hastings Council’s decision to reintroduce fluoride subject to a Judicial Review was rejected, and the Director General’s authority to direct Councils to fluoridate was upheld.

I have a thyroid issue, will this affect that?

There is a study from the UK, which has come under significant criticism for its methodology and misinterpretation, regarding fluoride and thyroid conditions. An expert response can be found here: Water fluoridation and underactive thyroid - experts respond - Science Media Centre.

There was similar evidence presented here in 2021, noting that there has not been consistent evidence found of a link between fluoridation at the recommended levels: Fluoridation: an evidence update | Office of the Prime Minister's Chief Science Advisor (pmcsa.ac.nz)

Is fluoridation new for New Zealand?

No, water has been fluoridated in New Zealand for 70 years, beginning in Hastings in 1954. That includes Auckland, Wellington, Dunedin, Invercargill and other areas.

Will Waitaki District Council be providing a fluoride-free water source in Oamaru?

No.

What does the Ministry of Health say?

You can find their information here.