Substance, not procedure, decides the legality of decisions affecting fundamental freedoms: court
New Zealand's Court of Appeal ruled that public decision-makers faced no standalone duty to analyse rights before acting – only the substance of their decisions mattered.
In Director-General of Health v New Health New Zealand Incorporated [2026] NZCA 279, delivered on 29 June 2026, a full bench of five judges allowed the Crown's appeal against a 2023 High Court decision that had reshaped how public bodies must approach protected rights.
The case began after the Director-General of Health directed 14 local authorities in July 2022 to add fluoride to their drinking water under part 5A of the Health Act 1956. The directions did not mention the Bill of Rights or the right to refuse medical treatment, which the decision engaged.
New Health New Zealand, an incorporated society that had long opposed fluoridation, sought judicial review. It argued that the Bill of Rights required the Director-General, before issuing the directions, to consider whether they reasonably limited the right to refuse medical treatment and to record his reasons for doing so.
The High Court accepted that argument. It held that a Bill of Rights assessment was a mandatory step the decision-maker had to take, and that failure to do so made the directions unlawful, even though the decision itself complied with the Act.
The Court of Appeal majority disagreed. It held that the legality of a rights-affecting decision turned on its substance, not the process behind it. "What matters is the result," the majority said, finding no general, standalone duty binding every public body covered by the Bill of Rights.
The majority drew on three recent Supreme Court decisions and concluded that the courts had adopted an integrated model. Under that model, a decision-maker who did not reason about rights did not, by that failure alone, act unlawfully; the reasoning instead fed into the court's assessment of whether the outcome reasonably limited the right.
The majority also warned that a standalone duty would create uncertainty and cost. It pointed to the more than 20 protected rights, the difficulty of identifying when a right was engaged, and the wide range of officials affected, from cabinet ministers to librarians. Recognising the duty, it said, risked encouraging claims brought only on procedural grounds by parties unlikely to succeed on the substance.
The majority described this case as an illustration. The Director-General's reconsideration, ordered after the High Court decision, took almost a year and consumed significant resources, and 13 of the 14 councils raised concerns about legal uncertainty and the threat of litigation.
One judge dissented. She would have held that the Bill of Rights gave rise to a procedural requirement unless the empowering statute clearly excluded it. However, she agreed the fluoridation decision almost certainly amounted to a justified limit on the right.
The court set aside the ruling that the directions were unlawful and the High Court costs award in New Health's favour, and ordered that the costs be refunded. It made no costs order on the appeal, which it heard despite the dispute having been technically resolved, because the case raised an important point of law.
