In her 24-page judgment, Justice Grau said the council’s refusal to fluoridate meant it had “demonstrated a concerning public disregard for the legal obligations of a local authority” for four months.
Whangārei District Council had challenged the Director-General of Health and Attorney-General in the High Court, seeking interim orders that would prevent the Director-General taking any enforcement against the council if it did not fluoridate the district’s drinking water by Friday.
Whangārei Mayor Vince Cocurullo would not comment on the judgment other than to say he was still considering it and “options to deal with the matter”.
Whangārei Mayor Vince Cocurullo. Photo / Susan Botting
Grau said the council’s application for interim relief was similar to what had also been sought over the Covid-19 vaccine rollout due to concerns over risks and efficacy.
Grau said that although the council’s experts disagreed with the Ministry of Health findings that fluoridation was safe and effective, it remained the case that the ministry had undertaken significant reviews of the science regarding fluoridation and had advised the Director-General that fluoridation of community water supplies at between 0.7mg/l and 1mg/l was safe and promoted oral health.
“The council is seeking to immunise itself against the legal consequences of not complying with the law and it is not appropriate for the court to grant orders facilitating unlawful conduct.
“I conclude this is not a case in which an application for interim orders is appropriate,” Justice Grau said.
She said granting the interim order would seriously prejudice public interest by encouraging other councils to refuse to comply and/or bring proceedings to avoid compliance. Five of the 14 councils directed to fluoridate in 2022 are yet to do so.
It would also negatively impact the oral health of the Whangārei community and potentially others.
“I ... do not consider that it is in the public interest to grant the interim order. I accept that protection and enhancing public health is in the public interest.”
“That amounts to a direction to staff to act in contravention of the law.”
Grau said a policy such as this, which authorised or approved unlawful conduct was in itself an unlawful action undermining the rule of law in a direct and unjustified way.
She said the stern penalties Parliament had put in place to respond to a council failing to comply with a direction to fluoridate, and other enforcement responses including that the Director-General’s ability to turn on the switch, overriding defaulting councils’ legal duties were put in place to deter councils from refusing to fluoridate in the face of vocal opposition from parts of the community.
