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Does The NZ Bill of Rights Matter?

Bill of Rights
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The New Zealand Bill of Rights Act (BORA) provides crucial protection for human rights in New Zealand. The Act, passed in 1990, affirms, protects, and promotes our human rights and fundamental freedoms and was designed to protect New Zealanders against the actions of the State. In this commentary we detail the recent court case and the significance of the BORA in this decades old debate.

Report from Court (Wellington High Court 16 May 2024)


Does the NZ Bill of Rights mean anything?


That was the question asked by lawyer Sue Grey at the recent judicial review of the Hastings District Council (HDC) decision to fluoridate the Hastings water supply.

Legal Background

Hastings District Council (along with 13 other councils) was directed to fluoridate its water supply by the Director-General of Health (DGoH) Dr Ashley Bloomfield in July 2022.

Following a legal challenge by New Health NZ, the High Court in Wellington ruled on 10 November 2023 that the directives from the DGoH were unlawful as fluoridation is compulsory medical treatment that breaches section 11 of the New Zealand Bill of Rights Act (BORA).

On 16 February 2024 the judge ruled that the DGoH was required to undertake a BORA analysis of water fluoridation and to take into consideration the views of the plaintiff, New Health New Zealand.

Hastings

In the context of this background, the HDC and three other councils were sent a letter from Fluoride Free NZ (FFNZ) on 14 Mar 2024 advising them of the outstanding legal issues and asking that they write to the Ministry of Health and request that all plans to implement fluoridation be put on hold until the New Health New Zealand case had been completed, or at very least until 31 December 2024 when the situation could be reviewed.

The councils were advised that Nelson City Council had been granted an extension due to its concerns over potential legal action.

Members of the Hawkes Bay community had been asking for several months to be notified of the date that fluoridation would commence. However, the HDC only advised in early April 2024 that water fluoridation would be turned on the following week.

Fluoride Free Hastings asked the HDC on 5th April to refrain from restarting fluoridation and to apply for an extension until the legal BORA issues were sorted. 

This overlapped with email communications from lawyer Sue Grey to HDC also asking that HDC not recommence fluoridation.  She explained that there was no urgency after an 8-year hiatus.

However, HDC advised that it did ‘not intend to delay the reintroduction of supplementary fluoride into the main urban supply’.  [It should be noted that fluoride is not a nutrient and therefore suggesting it is a ‘supplement’ is inaccurate.]  Legal counsel for the Council explained that HDC was under instruction from the DGoH to fluoridate the water supply and it had no option but to comply with the directive (effectively it was ‘just following orders’).

The HDC was advised that legal action would be taken by citizens concerned about the harmful effects of fluoride on the brains of newborn and in utero babies if fluoridation commenced.

Fluoridation chemicals have been added to Hastings water supply since 8 Apr 2024.

NZDSOS and FFNZ moved quickly to write up and present evidence to protect the rights and well-being of Hastings citizens.

Court Hearing:

On 16 May 2024 His Honour Justice La Hood presided over the hearing in the Wellington High Court, in front of a packed gallery.

Applicant’s case:

Lawyer Sue Grey’s argument was that the purpose of the NZ BORA was to protect the citizens of NZ from government overreach and that in the hierarchy of NZ legislation NZ BORA is supreme and overrides other legislation such as Acts of parliaments and directives (both lawful and unlawful).

She explained that in the case of water fluoridation the chemicals being added to community drinking water ‘are not medicines’ for the purposes of the Medicines Regulations 1984 and are therefore not subject to assessment or regulation by Medsafe and do not have to conform to Good Manufacturing Practice. 

The HDC is adding Hydrofluorosilicic acid (HFA) to the water supply which comes with an industrial Safety Data Sheet.  There are no Medsafe datasheets for fluoridation chemicals to provide the sort of information that medical practitioners would usually want to know when recommending medications. 

She described fluoride correctly as a neurotoxic waste product of the fertiliser industry.

Lawyer Grey pointed out that with medicines prescribed by doctors there is a dose and timing specified on the prescription that is individualised according to need, weight, kidney and/or liver function etc.  In addition, the prescriber undertakes any monitoring that may be appropriate.  

With water fluoridation the dose can be very variable and there is no consideration for individual variation or ability to metabolise and excrete the product and no monitoring of health effects.  Without Medsafe oversight there need to be other protections in place for citizens.

Grey argued that Radich J in Feb 2024 could not have meant that councils should follow an unlawful directive by actually adding fluoride to the water.  However, by not quashing the directive, he allowed councils to continue with infrastructure work in case the BORA assessment found that adding fluoride was a demonstrably justified limitation on the right to decline medical treatment.

Grey also argued that in the absence of a BORA assessment by the DGoH, the onus was on the HDC to do its own BORA analysis prior to adding medication to drinking water.  She also noted it had been 6 mths since the directive was deemed unlawful and 3 mths since the DGoH was ordered to undertake a BORA assessment and there was no sign of an assessment pending.

She posed the question, where else do the citizens go when their voices are not being heard?

Respondent’s case:

The Crown lawyer (Jason Varuhas) argued that although the directive to add fluoride to the water had been deemed unlawful (due to no BORA assessment), it was still valid as Radich J had not quashed it.  And by being ‘valid’ it continued to have legal effect. 

He argued repeatedly that the HDC was bound to follow the directive even though it was unlawful because that is what the legislation stated.  In fact, he used the word ‘comply’ in various forms more than 25 times during his oral submission.  ‘Comply’ was also liberally sprinkled throughout written submissions:

  • are required to comply
  • legally required to comply
  • local authority must comply
  • making a failure to comply with a direction an offence
  • would act unlawfully if it did not comply
  • does not have a choice or discretion whether to comply
  • statutory responsibility to comply
  • bodies simply “must comply

The crown labelled the omission of a BORA assessment as a ‘procedural error’ and proceeded on the basis that the BORA assessment would determine that fluoridation of community water was justified.  It did not seem to occur to the Crown and HDC lawyers that the DGoH’s BORA assessment might find that the neurotoxic effect of fluoride on babies brains, or the endocrine disruption to thyroid glands (especially when fluoride and chlorine are used in combination) or other adverse effects might outweigh any perceived benefits on children’s teeth, or that there were alternative, more effective and more rights’ compliant ways of reducing the rates of childhood dental decay.

The Crown lawyer explained that the reason for the decision being moved to the DGoH was that councils were increasingly being approached by concerned citizens (labelled by him as ‘minority groups’, ‘anti-fluoride campaigners’, ‘significant local opposition’).  Generally, these were citizens ​​who understood and could articulate the scientific concerns. Meanwhile the councils felt inadequately resourced to respond to their concerns.  The councils did not want to be making medical decisions that they did not feel equipped to make (and perhaps did not want to be practicing medicine without a licence!). 

It was noted that with this centralisation of power and decision making, input from communities and concerned citizens was not possible.

The HDC lawyer (Hamish Harwood) argued that there was no decision amendable to judicial review.  The HDC had not made a decision, rather it was merely following the directive and had no choice or power to apply for an extension.  He noted that the HDC would have fallen into the category of councils which were directed to continue water fluoridation had the Campylobacter outbreak of 2016 not occurred.

Judge’s comments:

The judge made a good point that there are provisions in the Act that allow councils to make independent decisions to fluoridate their water but they are unable to make an independent decision NOT to fluoridate the water.

He also pointed out that a decision NOT to fluoridate might be reached when the BORA analysis is finally completed.

Summing up:

In her summing up, Sue Grey was very clear that the judge needed to put the Bill of Rights in its rightful place in the hierarchy of laws and uphold one of the few protections citizens of NZ have from overreach by their government.  She read out s5 of BORA* and emphasised that by approaching the councils of NZ with their concerns the citizens were exercising their democratic rights, but they were not being heard and hence the need to turn to the courts for help.

She noted that other NZ councils had stepped up to protect citizens and had asked for extensions until the BORA assessment had been completed.

She left the court with the question:  

Does the NZ Bill of Rights matter or not?


That is a question we all want to know the answer to, particularly in light of the last 4 years.  We look forward to Justice La Hood’s judgment.


* s5 of BORA

5 Justified limitations

“Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Bill of Rights
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10 Comments

  1. The courts of NZ have a recent history of allowing limitation or removal of human rights under the Bill of Rights Act sec 5 based on unvalidated assumptions. See the following examples:
    The Courts of New Zealand and the New Zealand Bill of Rights Act 1990 Sec 5
    Preamble
    All New Zealand Covid-19 Court judgements, to date have been predicated on the assumption that the population of NZ is under threat from a Covid-19 pandemic that is established in the population and the threat posed by the existence of this pandemic is justification for allowing the limiting or removal of New Zealanders human rights.

    The presumption of the existence of a Covid-19 pandemic, in New Zealand is solely based on the “results” of RT-PCR tests that use the Chinese Centre for Disease Control assay. RT-PCR testing of samples, collected from asymptomatic or symptomatic humans, by pharyngeal swab that are determined to be “positive” result in the sample donor being deemed to be a “positive case in the community”. “Wastewater” is also collected and tested by RT-PCR test. Positive RT-PCR wastewater test results are interpreted as demonstrating that Covid-19 is present in the community the wastewater was collected from.

    The principal act of Parliament that is the legal basis for managing the Covid-19 pandemic is the COVID-19 Public Health Response Act 2020 that gained royal assent on 13th May 2020. Subsequent Covid-19 regulations and orders are subservient to this act. The first instance of the assumed existence of the pandemic being used as demonstrated justification to limit or remove human rights enshrined in the New Zealand Bill of Rights Act 1990 is the Borrowdale Wellington High Court Judicial review as follows:

    ANDREW BORROWDALE v DIRECTOR-GENERAL OF HEALTH First Respondent
    ATTORNEY-GENERAL Second Respondent
    Hearing: 27–29 July 2020
    Thomas, Venning and Ellis JJ
    [292] The second cause of action and the third cause of action fail and are dismissed. The first cause of action succeeds in part, and we make the following declaration:
    By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of
    limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.

    The duty of the Courts to determine whether demonstrated justification has been made

    In the following case Cooke J has determined that it is the duty of the court to question the lawfulness of demonstrated justification:
    FOUR AVIATION SECURITY SERVICE EMPLOYEES v MINISTER OF COVID-19 RESPONSE First Respondent ASSOCIATE MINISTER OF HEALTH Second Respondent ATTORNEY-GENERAL Third Respondent
    21 and 22 October 2021.
    Judgement of Cooke J:

    [78] I next address what I apprehend to be the key question in this case: whether the Order is unlawful because it introduces measures that are not a demonstrably justified limit on the freedom to refuse medical treatment.

    [79] As explained earlier, this is a question that the Court must itself ask. It is not a matter of reviewing a decision made under statutory powers, here by the Minister. It is whether the measure itself is compliant with the Bill of Rights. If it is not, it is unlawful.

    Cooke J states in [97] that in order for the court to answer the question; “has demonstrated justification been made”, compelling evidence of factors that show demonstrated justification has not been made need to be put before the court.

    [97] In their submissions the applicants contended that the adverse impacts of COVID-19 have been overstated. Ms Grey argued that positive cases from COVID- 19 arise from positive tests rather than from significant symptoms, that the death rate and transmissibility of Delta was similar to influenza, that reported COVID-19 deaths were mainly deaths with COVID-19 not from COVID-19, that early treatment protocols had been shown to be highly effective at keeping people out of hospital, and that alternative therapeutic measures were effective at treating it. I did not find persuasive support for these propositions in the applicants’ evidence, and they were directly contradicted by the expert evidence filed by the respondents. To demonstrate to the Court that New Zealand’s public health response has been based on a fundamental misunderstanding of the nature of COVID-19, and that the Director- General of Health, the Ministry of Health Chief Science Advisor, and MedSafe’s Group Leader, as well as the other experts who support their views, have all got this wrong would require the applicants to put forward compelling evidence.

    In accordance with the determination of Cooke J that the Court must itself ask whether the order itself is compliant with the Bill of Rights the following factors require the attention of the court to demonstrate that the correct determination that demonstrated justification has been lawfully made to allow for the limiting of or removal of the rights enshrined in the New Zealand Bill of Rights Act 1990 by Covid-19 acts, regulations and orders:
    1. The Court shall read the Pfizer Vaccine Manufacture and Supply Contract and assess whether the terms and conditions of the contract, imposed on the purchaser do not force requirements on the purchaser that are in breach of the New Zealand Bill of Rights Act 1990 Sec 5.
    2. Demonstrated justification, in accordance with Sec 5 requires empirical scientific proof of the existence of a SARS-CoV-2 virus that was isolated from a sample extracted from a “Covid-19 / Delta positive case in the community” and identified by being an exact match with a specimen of the SARS-CoV-2 viruses isolated from United States patient zero who was diagnosed with 2019-nCoV, now known as SARS-CoV-2, on 20th January 2020. Failure to furnish empirical scientific proof of the existence of a SARS-CoV-2 virus that was isolated from a sample extracted from a “Covid-19 / Delta positive case in the community constitutes the compelling evidence Cooper J required in FOUR AVIATION SECURITY SERVICE EMPLOYEES v MINISTER OF COVID-19 RESPONSE First Respondent ASSOCIATE MINISTER OF HEALTH Second Respondent ATTORNEY-GENERAL Third Respondent para [97].
    3. Demonstrated justification, in accordance with Sec 5 requires empirical scientific proof that a patient who has returned a “positive” RT-PCR test result is a patient with a SARS-CoV-2 virus infection that has manifested as “Covid-19 and the supplied proof will remove all possibility that the “positive” RT-PCR test result is an example of one of the US Center for Disease Control’s stated limitations of the RT-PCR test contained in the CDC 2019-Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel [07/20/2021) as follows:
    1) Detection of viral RNA may not indicate the presence of infectious virus or that 2019-nCoV is the causative agent for clinical symptoms
    2) This test cannot rule out diseases caused by other bacterial or viral pathogens.
    Failure to eliminate all possibilities that the “positive” RT-PCR test result is an example of the US Center for Disease Control’s stated limitations of the RT-PCR test constitutes the compelling evidence required by Cooper J in FOUR AVIATION SECURITY SERVICE EMPLOYEES v MINISTER OF COVID-19 RESPONSE First Respondent ASSOCIATE MINISTER OF HEALTH Second Respondent ATTORNEY-GENERAL Third Respondent para [97].
    4) Demonstrated justification, in accordance with Sec 5 requires the Court to confirm that all of the New Zealand Laboratories that are registered to perform RT-PCR tests for Covid-19 / Covid-19 Delta have, on site, independently verified specimens of SARS-CoV-2 viruses and that these specimens are used to confirm all positive RT-PCR tests have detected viable SARS-CoV-2 RNA fragments that are isolated from the sample collected from a patient. Failure by any registered Laboratory to furnish evidence of the presence of independently verified specimens of SARS-CoV-2 viruses at the Laboratory and all determinations that RT-PCR tests are positive for Covid-19 / Covid-19 Delta in the absence of comparison with a verified sample of a SARS-CoV-2 virus constitutes the compelling evidence Cooper J required in FOUR AVIATION SECURITY SERVICE EMPLOYEES v MINISTER OF COVID-19 RESPONSE First Respondent ASSOCIATE MINISTER OF HEALTH Second Respondent ATTORNEY-GENERAL Third Respondent para [97].
    Legal definitions that pertain to section 5 of the New Zealand Bill of Rights Act 1990
    Sec 5: Justified limitations
    Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
    Reasonable: Conformable or agreeable to reason; just; rational. Bouviers Revised Sixth Edition, 1856
    Demonstrate: Proof which excludes all possibility of error. Bouviers Revised Sixth Edition, 1856

    Justified: The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer. Bouviers Revised Sixth Edition, 1856.
    External peer review of the RTPCR test to detect SARS-CoV-2 reveals 10 major scientific flaws at the molecular and methodological level: consequences for false positive results
    In short, a design relying merely on close genetic relatives does not fulfill the aim for a “robust diagnostic test” as cross reactivity and therefore false-positive results will inevitably occur. Validation was only done in regards to in silico (theoretical) sequences and within the laboratory-setting, and not as required for in-vitro diagnostics with isolated genomic viral RNA. This very fact hasn’t changed even after 10 months of introduction of the test into
    routine diagnostics.
    The PCR test was therefore designed using the genomic sequence of SARS-CoV-1 as a control material for the Sarbeco component; we know this from our personal email-communication with [2] one of the co-authors of the Corman-Drosten paper. This method to model SARS-CoV-2 was described in the Corman-Drosten paper as follows:
    “the establishment and validation of a diagnostic workflow for 2019-nCoV screening and specific confirmation, designed in absence of available virus isolates or original patient
    specimens. Design and validation were enabled by the close genetic relatedness to the 2003
    SARS-CoV, and aided by the use of synthetic nucleic acid technology.”
    These are severe design errors, since the test cannot discriminate between the whole virus
    and viral fragments. The test cannot be used as a diagnostic for SARS-CoV-2 viruses.
    https://www.presseteam-austria.at/wpcontent/uploads/2021/02/ReviewCorman_Drosten_Paper_Final_Version_10-3-Public_final.pdf

    1. Steve, thanks very much for this> I have been looking for a good summary of things, but was left with bits and pieces. The casual and arrogant approach from the Judiciary to our fundamental rights is of profound and fundamental importance They seem to have been conditioned to the idea that they can activate woke . I will copy and post this. I do thank you. And of course thanks to NZDSOS [ I wish they could take on a more aggressive and punchier title name ].. Paul Scott Christchurch

  2. Disgusting evil which is clearly against the NZBOR . Time to stand up Kiwis.
    Bloomfield, Baker , Coster , Ardern should all be charged with MURDER.
    Bring back capital punishment for crimes against humanity.

    1. Agreed absolutely Greg. You will have heard that vile Bloomfield has inserted himself into the WHO international enforcement of the poison campaign. He makes me feel sick. I can not write what I would like to do about it. It is good when people like you write to us clearly. I have noticed that the knowledge of what is happening and the disaster which these bureaucracies have inflicted on us is becoming more widely known . Let’s say only 2% of us knew in 2020, maybe now about 10% have some idea of the depopulation and societal destruction. Good going forever to you, your family, and all our colleagues. Paul Scott

    2. Agree!
      And the titles awarded to Ardern & Doomfield, as they fled the crime scene, are a serious dumbing down of what was once viewed as deservable in the true sense of the word. An insult to our nation’s true heros, heroines, innovators & patriots.
      That the King appears to go along with it speaks for itself.
      No noise, either, as to how he, and Princess Kate, presented with cancer, all of a sudden. Hmmmm….

  3. What a shocking display of ignorance, conformity and arrogance. The Hastings District Council members who’re responsible for this need to be made known to the public so that they can be voted out at the next election.

    1. I agree with you Greg Cuttance and sadly Patrick most people are too ignorant, too stupid and too apathetic to give a damn.

  4. As we saw during COVID the Bill of Rights Act is a joke the politicians and their functionaries frequently wipe their feet on, as it suits them. I applaud Sue Grey For at least asking the questions but sadly we already know the answer. Only electing people like Sue to office will truly make a difference.

  5. Thge New Zealand judicial system is completely and utterly corrupt. The rot starts in Parliament and spreads out from there.
    New Zealanders effectively have no rights,(doubly so if you are White),and the Bill of Rights is not worth the paper it is written on.

    I once trained to defend my country in time of war but now there is nothing worth defending.

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