The legal status of water fluoridation in New Zealand
The allowable levels of toxic substances, including fluorides, in public water supplies are specified by the NZ Drinking Water Standards.
Water supplies are under the control of territorial authorities – local, district, or regional councils. They, AND ONLY THEY, have the legal power to treat water supplies and hence to add fluoride.
The legal power to do so derives from a Privy Council ruling in 1965 in the case of Attorney-General; ex parte Lewis v Lower Hutt City [1965] NZLR 116.
It is important to understand the limits to the power conferred and that only some rulings in this case are binding on NZ courts, contrary to the impression given by the Ministry of Health.
Lewis had challenged the power of the Lower Hutt Council to fluoridate water under section 240 of the Municipal Corporations Act 1954, now section 379 of the Local Government Act 1974.
The Privy Council ruled that:
- The reference to "pure" water was to be interpreted as "wholesome" since chemically pure water did not exist;
- The council’s power to treat the water was not limited to making the water more "wholesome" as water but extended to making the water more beneficial to the health of consumers, including adding medication to the water, provided the water does not become "impure" thereby.
Only these two points of interpretation are binding on New Zealand courts.
The Privy Council did not rule that fluoride was not " medication ": if anything it could be inferred from their judgment that they did consider fluoride a medical treatment. Yet the Ministry of Health maintains they did; and relies on such non-existent ruling in its position on that point. In any case since they held that addition of medication was permitted, the case did not hinge on such a finding, hence again, their ruling on this point, whatever it was, is not binding on any New Zealand court.
The Privy Council also held that:
"The addition of fluoride adds no impurity and the water remains not only water but pure water and it becomes greatly improved and still natural water containing no foreign elements."This does not preclude fluoride from also being medication, of course.
Moreover this is a finding on a question of fact, not law, and as such is of no binding precedent value : it can be found to the contrary by any New Zealand court at any time.
Section 2 of the Act prohibits the addition of pollutants. The Privy Council did not rule on this point hence, again, it is open to any court to find that fluorides, or the heavy metal contaminants associated with the substances used, are pollutants under sections 2 and 392 of the current Act. Section 2 defines a pollutant as a substance which contaminates water changing its chemical condition so as to make it detrimental to the health, safety, or welfare of persons using it. Consequently any proven harm would automatically end fluoridation. This is presumably why the Ministry is so determined to deny any harm.
Councils also have an obligation to promote and protect public health under s23 of the Health Act 1956. Any adverse health effects, even to a sector of the public, would therefore preclude fluoridation. As there is a sector of allergic persons, as recognised by the Public Health Commission in its 1994 report, it is arguable that fluoridation is precluded by this provision. The Privy Council did not rule on this point.
