Court of Appeal: No Independent Duty to Conduct Bill of Rights Analysis Before Decision-Making

OUTCOME: [RESPONDENT] v [NAME] [RESPONDENT] [NAME] [RESPONDENT] [2026] NZCA 279 [29 June 2026]

IN THE COURT OF APPEAL OF [NAME] [RESPONDENT] I TE KŌTI PĪRA O AOTEAROA CA754/2023 [2026] NZCA 279

[RESPONDENT] AND [NAME]-[NAME] [RESPONDENT] AND [RESPONDENT] Respondent Hearing: 4 June 2025 Court: [NAME], [COUNSEL], [NAME] and [NAME] Counsel: [redacted] [COUNSEL] [NAME], [NAME] [COUNSEL], [NAME] [COUNSEL] and [COUNSEL] for [NAME] | Human Rights Commission as [NAME] Judgment: 29 June 2026 at 3 pm

JUDGMENT OF THE COURT A The appeal against the [NAME] of 10 November 2023 is allowed. B The ruling that the [RESPONDENT]’s [NAME] to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the [NAME] [RESPONDENT] of Rights Act 1990 is set aside. C We make no award of costs in relation to the appeal.

D The costs award made by the High Court in favour of the respondent is set aside, and the costs paid to the respondent refunded.

REASONS Para No. [NAME], [RESPONDENT], [NAME] and [NAME] [NAME] [1] [NAME] (dissenting) [165]

[NAME], COURTNEY, [NAME] AND [NAME] (Given by [NAME]) Table of Contents Para No. Introduction [1] Background [6] The [NAME] [30] Arguments on appeal [42] Is an actionable procedural obligation existing law? [50] The authorities relied on by the Judge [51] The three Supreme Court decisions [63]

[NAME] v [COMPANY] [63]

A (SC70/2022) v [NAME] [74]

[NAME] v [NAME] [83] The [NAME] cited by the Supreme Court [89] Canadian authority [100] Conclusion on existing [NAME] [RESPONDENT] law [108] Should a novel process duty be recognised? [118] Consistency with the [NAME] and the benefits of a process obligation [118] Doctrinal difficulties [137] Uncertainty and costly inefficiencies [141] Summary of conclusions [155] Costs [157] Outcome [161]

Introduction [1] It is now well established that the [NAME] [RESPONDENT] of Rights Act 1990 (the [NAME]) creates obligations on [NAME] [NAME[NAME] to make

decisions that are consistent with the rights it guarantees.1 The substantive constraint thus imposed on [NAME] is enforceable through [NAME] law proceedings. In such proceedings, the task of the court is to determine whether the [NAME] in question engaged a protected right and if so whether the limitation on the right affected by the [NAME] was, to quote the words of s 5 of the [NAME], a reasonable limit “as can be demonstrably justified in a free and democratic society”.2 [2] It is also now established that in undertaking the s 5 “reasonable limit” assessment of an [NAME] [NAME], the court may adopt a less structured approach than it does when assessing primary legislation for compliance with the [NAME].3 This has been said not to be an immutable rule and further that the adoption of a less structured approach does not entail a lesser threshold. It is still a robust one, one that properly reflects the nature of the [NAME]-making involved while giving due regard to the importance of the rights.4 It has been said to revolve around notions of reasonableness.5 [3] However, in this case, the High Court went one step further than requiring a [NAME]-[NAME] to reach a rights-consistent conclusion. It held that in addition to this substantive constraint, there is also an independent procedural or process obligation on the [NAME] [NAME]-[NAME] to undertake a [NAME] analysis as part of the reasoning process leading to their [NAME].6 A failure to undertake that analysis, it

1 See, for example, [NAME] v [NAME]-[NAME] (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 at [90]– [93]; and [NAME] v [NAME] [COMPANY] [2022] NZSC 138, [2022] 1 NZLR 459 at [59] and [61]. 2 [NAME], above n 1, at [101]; and [NAME] v [NAME] [2025] NZSC 34, [2025] 1 NZLR 21 at [130]. 3 [NAME], above n 1, at [87]–[92]. When assessing the compatibility of legislation with the [NAME], the s 5 inquiry involves consideration of the objective of the legislative measure, whether there exists a rational connection of the limit to that objective, whether the limit impairs the right as little as possible, and whether the limit is proportional to the objective. The test is often described as a proportionality assessment: see, for example, [NAME] v [NAME] Board of Review [2000] 2 NZLR 9 (CA) at [18]; R v [NAME] [2007] NZSC 7, [2007] 3 NZLR 1 at [42] per [NAME], at [70] per Blanchard J, at [103]–[104] per Tipping J, at [204] per McGrath J, and at [272] per Anderson J; [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] [2018] NZSC 59, [2018] 1 NZLR 948 at [112] and [122]–[144] per [NAME] [NAME]; and [NAME], above n 2, at [96]. See also R v Oakes [1986] 1 SCR 103 at 138–140. 4 [NAME], above n 1, at [91]–[92]. 5 At [83]–[86] and [91]. 6 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [RESPONDENT] [2023] NZHC 3183, [2024] 2 NZLR 1 [High Court judgment] at [7] and [116].

was held, renders the ultimate [NAME] unlawful, even if the [NAME] itself is substantively compliant with the [NAME]. [4] The [NAME] challenge the existence of any such procedural duty under existing law and further contend that such a novel development is both doctrinally unsound and contrary to good policy. [5] The legal issue raised by the appeal has never been directly addressed before by this Court. Due to the novelty and importance of the case, a [ADDRESS] was convened to hear the appeal. [ADDRESS] also granted leave to [NAME] [NAME] | Human Rights Commission to appear as [NAME]. Background [6] The issue arose in the following context. [7] In July 2022 the [RESPONDENT] (the Director-[NAME]) acting under powers conferred on him by pt 5A of the [RESPONDENT] 1956 issued directions to [NAME] requiring them to fluoridate their drinking water supplies (the directions).7 [8] The relevant empowering provision, s 116E of pt 5A of the [RESPONDENT], stipulates that: (3) Before making a direction, the Director-[NAME] must consider— (a) scientific evidence on the effectiveness of adding fluoride to drinking water in reducing the prevalence and severity of dental decay; and (b) whether the benefits of adding fluoride to the drinking water outweigh the financial cost, taking into account—

(i) the state or likely state of the oral [RESPONDENT] of a population group or community where the local authority supply is situated; and

(ii) the number of people who are reasonably likely to receive drinking water from the local authority supply; and

7 At [1].

(iii) the likely financial cost and savings of adding fluoride to the drinking water, including any additional financial costs of ongoing management and monitoring. [9] By virtue of s 116E(2), the Director-[NAME] is required to seek and consider advice from the Director of [NAME] [RESPONDENT] on the matters in subs (3)(a) and (b)(i) before deciding whether to make a direction. Section 116G(1) also requires the Director-[NAME] to consult with the relevant local authority on the estimated cost of fluoridation as well as the date by which the local authority would be able to comply with a direction were one to be issued. [10] Part 5A was enacted following the [NAME] of the Supreme Court in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME].8 In that case, the Supreme Court confirmed that [NAME] had the statutory power to fluoridate their [NAME] drinking water,9 but also held that water fluoridation amounted to medical treatment for the purposes of the protected right under s 11 of the [NAME] to refuse medical treatment.10 That in turn meant the respondent’s [NAME] to fluoridate its water supplies was a limitation on a protected right. [11] Although not determinative of the outcome, two of the five-judge panel went on to find that the [NAME] to fluoridate the drinking water was a justified limit for the purposes of s 5 of the [NAME].11 They reasoned that because dental decay was a significant problem in the relevant region, reducing it by fluoridation was sufficiently important to justify a limitation on the s 11 right and further that the right was impaired by the [NAME] no more than was necessary to achieve the intended purpose.12 In separate reasons, a third Judge, [NAME], expressed the provisional view that whether the addition of fluoride was a justified limit may depend on local conditions.13

8 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3. 9 At [56] per [NAME] and [NAME] [NAME], at [165] and [170] per [NAME], and at [178] per [NAME[NAME]. 10 At [97]–[100] per [NAME] and [NAME] [NAME], at [172] per [NAME[NAME], and at [243] per [NAME] CJ. 11 At [144] per [NAME] and [NAME] [NAME]. 12 At [122]–[144] per [NAME] and [NAME] [NAME]. 13 At [176].

[12] The directions in the present case followed consultation with the Director of [NAME] [RESPONDENT] and each of the affected [NAME]. The directions were issued to the [NAME] in individualised letters. In the letters, the Director-[NAME] detailed his consideration of the statutory criteria under s 116E(3) of the Act and his reasons for the conclusions he had reached. The letters stated: In reaching my [NAME] to issue this direction to you, I considered the scientific evidence on the effectiveness of adding fluoride to drinking water in reducing the prevalence and severity of dental decay. I am satisfied that community water fluoridation is a safe and effective [NAME] [RESPONDENT] measure that significantly reduces the prevalence and severity of dental decay. [13] The letters then cited the scientific studies the Director-[NAME] had relied on and then continued: In reaching my [NAME], I also considered whether the benefits of adding fluoride to the drinking water outweigh the financial costs, taking into account: the state or likely state of the oral [RESPONDENT] of your community…; the number of people who are reasonably likely to receive drinking water from these supplies; and the likely financial cost and savings of adding fluoride to the drinking water of these supplies, including any additional financial costs of ongoing management and monitoring. [14] The letters went on to say that the Director-[NAME] was satisfied the [NAME] would each receive significant benefit through improvement to the state of their oral [RESPONDENT]. The number of persons who were reasonably likely to receive the fluoridated water was specified as well as the likely financial costs and savings of fluoridation. [15] Finally, each of the letters annexed an appendix containing a more extensive summary of the information that had informed the Director-[NAME]’s [NAME]-making, including the advice he had received from the Director of [NAME] [RESPONDENT]. [16] Neither the letters nor the annexed appendices made any express reference to the [NAME] and in particular no reference to the protected right to refuse medical treatment, which was undoubtedly engaged by the [NAME] to issue the directions. [17] The respondent, [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] ([NAME] [RESPONDENT]), is an [RESPONDENT] society that describes itself as a consumer-focused [RESPONDENT] organisation

which aims to advance and protect the best interests and [RESPONDENT] freedoms of consumers. Over the years, it has conducted what can fairly be described as an anti- fluoridation campaign in the courts. [NAME] [RESPONDENT] is strongly opposed to fluoridation of drinking water on the basis that it removes freedom of choice and because it also believes fluoridation is potentially harmful and ineffective to prevent tooth decay. [18] In June 2023, [NAME] [RESPONDENT] issued judicial review proceedings in the High Court against the Director-[NAME] and the [NAME]-[NAME] challenging the fluoridation directions that the former had issued to the [NAME]. The statement of claim pleaded several orthodox review grounds including an allegation that the Director- [NAME]’s [NAME] to issue the directions was a breach of s 11 of the [NAME]. However, it also included as a second ground of review the following allegations under the heading “error of law”: The [[NAME]] imposes a substantive constraint on the [Director-[NAME]] and before making the directions the [Director-[NAME]] was required to turn his mind to and be satisfied that the directions were a reasonable limit on the right to refuse medical treatment. The [Director-[NAME]] failed to turn his mind to whether the directions were a reasonable limit on the right to refuse medical treatment. By so failing, the [Director-[NAME]] made an error of law and failed to recognise the application of s 3 of the [[NAME]] to his exercise of the statutory power under s 116E of the [RESPONDENT]. [19] We pause here to interpolate that the s 3 referenced in the pleading quoted above is the application section of the [NAME]. Section 3 states that the [NAME] applies only to acts done: (a) by the legislative, executive, or judicial branches of the [NAME] [RESPONDENT]; or (b) by any person or body in the performance of any [NAME] function, power, or duty conferred or imposed on that person or body by or pursuant to law. [20] In this case, we are obviously concerned with the second category of actors. [21] The essence of [NAME] [RESPONDENT]’s pleading was that the [NAME] creates an actionable form of process obligation on all s 3 actors to undertake a [NAME] assessment whenever protected rights are engaged. Applied to the Director-[NAME],

it meant it was an error of law for him to fail to turn his mind to the protected right to refuse medical treatment, and to fail to justify his [NAME] under s 5 of the [NAME] by being satisfied the limitation on the right was reasonable and proportionate. [22] The question of what approach the courts should take in a situation where [NAME] does not engage with the effect of the [NAME] was expressly left open for another occasion by the Supreme Court in [NAME] v [COMPANY].14 Since [NAME[NAME] in the High Court has twice addressed the issue,15 but not in stand-alone circumstances like the present case where the empowering statute, the [RESPONDENT], does not contain any express requirement to consider the [NAME],16 and where there is no accompanying substantive rights assessment.17 [23] Returning to the narrative in this case, the parties agreed that because of its novelty [NAME] [RESPONDENT]’s second cause of action should be isolated and dealt with as a preliminary question of law. The question was formulated in the following terms:18 [7] … Is, then, there an obligation, in a procedural sense on those to whom the [[NAME]] applies to consider the application of the [[NAME]] if their exercise of power might engage a protected right? [24] In a [NAME] issued on 10 November 2023, [NAME[NAME] answered that question in the affirmative. He held that because the directions engaged the protected right under s 11 of the [NAME], a [NAME] assessment was a mandatory relevant consideration.19 The Director-[NAME] was, the Judge said, required to turn his mind to whether the directions were in each case a reasonable limit on the right to refuse medical treatment, required to be satisfied that they were and required to say why that

14 [NAME], above n 1, at [84], n 118. 15 [NAME] v Department of [NAME] [2023] NZHC 2248; and [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] [2023] NZHC 2647. 16 In [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15, at [72], the empowering legislation contained an express provision to that effect: see COVID-19 [NAME] [RESPONDENT] 2020, s 9(1)(ba). 17 In both [NAME] v Department of [NAME] and [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] there was an accompanying substantive rights assessment: see [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15, at [81]–[83], [93]; and [NAME] v Department of [NAME], above n 15, at [99]–[108]. 18 High Court judgment, above n 6 (footnote omitted). 19 At [84]–[116].

was so.20 His failure to do that meant the second cause of action was made out and the [NAME] to issue the directions was unlawful.21 [25] The Judge dealt with relief in a separate judgment delivered on 16 February 2024 (relief [NAME]).22 [NAME] [RESPONDENT] had applied for the directions to be set aside,23 but the Judge declined to do so because of practical considerations, including the fact that funding was being provided to [NAME] for the capital works to which the directions related.24 The Judge did however order the Director- [NAME] to reconsider the [NAME] while keeping the directions in place.25 [26] The reconsideration duly took place and in December 2024 the Director-[NAME] published the [NAME] analysis.26 The Director-[NAME]’s conclusion was that fluoridation of water is a substantively justified limit on the s 11 right as a safe and effective [NAME] [RESPONDENT] measure. Having reconsidered, the Director-[NAME] reconfirmed the directions. [27] The appeal before us was filed by the [NAME] immediately after the 10 November 2023 judgment but before the relief [NAME]. Due to its concerns about the [NAME] implications of the High Court ruling that the directions were unlawful for failing to consider the [NAME], the [NAME] decided to proceed with the appeal notwithstanding the Director-[NAME]’s December 2024 reconsideration. [28] Technically, the appeal is moot, the outcome having no practical effect in relation to the specific dispute between the parties. However, the court will entertain a moot appeal in exceptional circumstances including where there is an important [NAME] interest at play as there clearly is in this case.27

20 At [109] and [116]. 21 At [116]. 22 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [RESPONDENT] [2024] NZHC 196, [2024] NZAR 36 [relief [NAME]]. 23 At [13]. 24 At [29]. 25 At [31]–[32]. 26 Ministry of [RESPONDENT] | Manatū Hauora “[RESPONDENT] consideration of community water fluoridation under the [NAME] [RESPONDENT] of Rights Act 1990” (information release, 4 December 2024). 27 Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [33]; and Chief Executive of the Department of [NAME] v Jones [2025] NZCA 457, [2025] 3 NZLR 318 at [12], citing [NAME] v [NAME].

[29] We turn now to consider the [NAME] in more detail. The [NAME] [30] The Judge identified the issue to be addressed as being:28 [3] … whether, when a discretionary [NAME] has the potential to restrict a fundamental right in the [[NAME]], [NAME] must in a procedural sense address the restriction and consider whether it is demonstrably justified, quite apart from an assessment by the Court of whether any restriction is so justified. [31] He continued by articulating the competing positions in the following terms: [10] To put it another way, is a [[NAME]] assessment a mandatory relevant consideration such that a failure to undertake it, in the event that rights are engaged, is a flaw which, in and of itself, could warrant a remedy? Or is a [[NAME]] assessment by [NAME] something that, while it might be useful all round, is not required on the basis that the [[NAME]] operates as a substantive constraint — exercisable through [NAME] law proceedings — to ensure that the ultimate [NAME] is rights-compliant? [32] In adopting the position advocated by [NAME] [RESPONDENT], the Judge relied principally on High Court authority, in particular the two decisions of [NAME] mentioned above.29 [33] In the first of these, [NAME] v Department of [NAME], [NAME] upheld a ground of review founded on [NAME]’s failure to consider whether his [NAME] had a discriminatory effect and to address whether that was justified.30 In the second, [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], [NAME] stated that discretionary [NAME]-making is constrained in two separate ways when a protected right is being limited:31 (a) subjectively: [NAME] must be satisfied that a limitation of the right is justified; and (b) objectively: the Court must assess whether there has been an unjustified limitation of the right.

28 High Court judgment, above n 6. 29 [NAME] v Department of [NAME], above n 15; and [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15. 30 [NAME] v Department of [NAME], above n 15, at [109]–[111]. 31 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15, at [71].

[34] In the view of the High Court Judge in the present case, [NAME]’s formulation of the dual components reflects “an understanding that has always been implicit”.32 [35] The Judge therefore concluded it was “sufficiently clear” that on the basis of the [NAME] [RESPONDENT] authorities the correct approach was a “mixed process and outcome approach”,33 an approach which he described as follows:34 [84] … when discretionary decisions on the part of those captured by s 3 of the [[NAME]] might restrict a right protected under the [[NAME]]: (a) [NAME] must address that restriction and consider whether it is demonstrably justified under s 5; and (b) the Court must be satisfied that any such restriction is so justified. [36] In the Judge’s view, the adoption of this approach meant it followed “as a matter of course” that a finding in favour of a claimant on either of those two requirements would enable the court to go on and consider the question of relief. In that sense, the first of the two requirements was, the Judge said, “a mandatory relevant consideration”.35 [37] The Judge acknowledged that English authority was to the contrary,36 but considered there were sound reasons for [NAME] [RESPONDENT] “not to push the pendulum away from a process obligation to the same extent as has been the case in the United Kingdom”,37 and to instead maintain “the process-related half of the equation”.38 In a later section of this judgment,39 we discuss the reasons relied on by the Judge, which were drawn heavily from a 2014 article by a leading [NAME] [RESPONDENT] [NAME] [NAME] [RESPONDENT].40

32 High Court judgment, above n 6, at [48]. 33 At [85]. 34 Footnote omitted. 35 At [86]. 36 At [85] following the Judge’s discussion at [55]–[74] where he had discussed: [NAME]) v [COMPANY] [2006] UKHL 15, [2007] l AC 100; and Belfast City Council v [NAME]' [COMPANY] [2007] UKHL 19, [2007] 1 WLR 1420. 37 High Court judgment, above n 6, at [74]. 38 At [85]. 39 See below at [117]–[140]. 40 High Court judgment, above n 6, at [70]–[74], citing [NAME] “Process and Outcome in Judicial Review of [NAME] Authority Compatibility with Human Rights: A Comparative Perspective” in [NAME] and [NAME] (eds) The Scope and Intensity of Substantive Review: [NAME] ([NAME], Oxford, 2015) 329.

[38] As to what would be required to discharge the procedural obligation, the Judge said a more than perfunctory or pro forma consideration was required, but that the extent of the consideration must also be sensitive to the range of [NAME]-making contexts in which human rights might apply. Relevant factors would, he said, include:41 (a) the nature of the [NAME] and the nature of the rights involved; (b) the number of people whose rights are affected and the precedent that the [NAME] will create for others; (c) the nature and expertise of [NAME]; (d) the relevance of human rights issues to the purpose and functions of [NAME]; (e) the time frame in which the [NAME] needs to be made; (f) the [NAME] available to [NAME]; and (g) the extent to which reasons could generally be expected to be given by a [NAME]-[NAME] of the type in question. [39] As an example, the Judge posited the situation of a [NAME] who requires a library user wearing an offensive T-shirt to leave the library, thereby limiting that person’s right to freedom of expression. Although a reasoned [NAME] analysis might not be expected, the [NAME] would be expected to turn their mind to the issue and explain why the T-shirt crossed the line.42 [40] Having concluded that a [NAME] assessment was a mandatory relevant consideration such that it can give rise to relief in its own right, the Judge turned to the facts of the case before him. He held that while the Director-[NAME] did turn his mind to relevant scientific evidence, he did so for the purpose of complying with the criteria under the [RESPONDENT], not the [NAME].43 According to the Judge, the Director-[NAME] was also required to turn his mind to [NAME] considerations on the basis of local conditions in each area in which the fluoridation directions might be given.44 However, in the Judge’s view he failed to do so. In those circumstances,

41 High Court judgment, above n 6, at [95]. 42 At [96]. 43 At [109]. 44 At [108].

there was “no getting away”, the Judge said, from the fact that the Director-[NAME] did not turn his mind to [NAME] considerations when making his [NAME].45 That was an error rendering the [NAME] to make the directions unlawful. [41] In the relief [NAME], the Judge held that the Director-[NAME]’s reconsideration was to be limited to an assessment of whether the directions given to the [NAME] were in each case in terms of s 5 of the [NAME] reasonable limits on the right to refuse medical treatment prescribed by law as can be demonstrably justified in a free and democratic society. He also directed that the reconsideration would require the Director-[NAME] to take the views of [NAME] [RESPONDENT] into account.46 Arguments on appeal [42] As mentioned, the [NAME] contend a procedural [NAME] obligation as formulated by the Judge is not part of existing [NAME] [RESPONDENT] law and nor should it be. They submit that the Judge’s analysis of the existing authority was selective and flawed, wrongly suggesting as it did the development of a consensus around an actionable procedural obligation which does not, in their submission, exist. [43] Further, in their submission, recognition of a procedural duty will generate doctrinal difficulties and create serious practical problems including imposing significant costs and burdens on [NAME] administration. They say in addition that it is a solution in search of a problem, there being no evidence of a systemic problem of lack of respect for human rights within the [NAME] [RESPONDENT] [NAME], and the substantive constraint providing a strong form of protection. As regards the latter contention, they point to evidence showing agencies developing, via sophisticated

45 At [109]. 46 [NAME], above n 22, at [32].

[NAME] agency processes, successful rights-respecting cultures in light of the substantive obligation.47 [44] As a fallback position, the [NAME] argue that even if a procedural duty does exist it was discharged by the Director-[NAME]. While the Director-[NAME] may not have expressly referred to the right to refuse medical treatment, the factors he did take into account were in substance the factors relevant to a [NAME] analysis. [45] For their part, the respondent and [NAME] support the Judge’s [NAME] and his reasoning as outlined above. [46] Counsel for [NAME] [RESPONDENT], [NAME], submitted that recent Supreme Court decisions are consistent with there being a pre-existing procedural obligation on [NAME[NAME], a breach of which will be an independent ground of unlawfulness. She also argued that concerns about a procedural duty being too burdensome were overstated. [47] Mr [COUNSEL] for [NAME] acknowledged in his written submissions that [NAME] [RESPONDENT]’s [NAME] have to date left open whether there is a legal obligation on s 3 actors to consider and apply the [NAME] in their [NAME]-making.48 However, he endorsed the reasoning of the High Court Judge, submitting it was consistent with the express purposes of the [NAME].49

47 [NAME] “A ‘Culture of Justification’? Police Interpretation and Application of the Human Rights Act 1998” in [NAME] and [NAME] [NAME] (eds) The Frontiers of [NAME] ([NAME], Oxford, 2020) 499. The existence of various [NAME] advisories that have been developed by the [NAME], [NAME], the Police and Immigration [NAME] [RESPONDENT] can also be said to support this view. Ironically, those same publications are cited by [NAME[NAME] at [196], n 236 of her dissent rejecting the suggestion that the imposition of an actionable process duty will create practical problems. 48 In written submissions, Mr [NAME] supported this contention by reference to what he described as a “pregnant footnote” in the [NAME] of [NAME], above n 1, at [84], n 118, where the Court said that it was leaving for an occasion on which it arises the approach to be taken by the courts in the situation where [NAME] does not engage with the effect of the [NAME]. In oral submissions however, Mr [NAME] appeared to take a different approach as discussed below at [73]. 49 Those purposes are to affirm, protect, and promote human rights and fundamental freedoms in [NAME] [RESPONDENT], and to affirm [NAME] [RESPONDENT]’s commitment to the International Covenant on Civil and Political Rights: see [NAME] [RESPONDENT] of Rights Act 1990, long title.

[48] Mr [NAME] also argued that the [NAME]’ concerns did not warrant a blanket rule that would absolve s 3 [NAME[NAME] of any requirement to identify and weigh limits on fundamental rights. Further, in his submission, the [NAME]’ approach risked over-judicialising the [NAME] by making it relevant only when a person challenges particular conduct before a court.50 [49] It follows from the submissions of all parties that the first issue for resolution is the state of the existing law. Is an actionable procedural obligation existing law? [50] We begin our analysis by considering whether the Judge was correct to suggest in effect that there was an established [NAME] [RESPONDENT] approach to the existence of an independent actionable process obligation. The authorities relied on by the Judge [51] Turning first to the authorities relied on by the Judge, we agree with the [NAME] that correctly analysed they are of limited significance and do not evidence a consensus. [52] As mentioned, two of the four High Court decisions relied on were written by the same Judge, [NAME]. For the reasons identified at [22], the statements in both decisions about an independent procedural duty were made in a different context to the present case.51 Further, in both decisions, [NAME[NAME] cited the [NAME] in [NAME] as confirming the existence of an actionable process obligation.52 For reasons we explain at [63] to [73], we consider the correct position to be that the Supreme Court left the issue open.

50 Ironically opponents of the procedural approach say it has the effect of judicialisation: see, for example, [NAME]) v [COMPANY], above n 36, at [31] per [NAME] [NAME], citing [NAME] “Of headscarves and heresies: The [COMPANY] case and [NAME] authority [NAME]-making under the Human Rights Act” (2005) PL 685 at 695. 51 [NAME] v Department of [NAME], above n 15; and [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15. 52 [NAME] v Department of [NAME], above n 15, at [110]; and [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 15, at [71] and [82].

[53] The third [NAME] relied on by [RESPONDENT[NAME], [NAME] [RESPONDENT] [COMPANY] v [NAME], is a [NAME] of [NAME] in which the Judge undoubtedly recognised the existence of an actionable process duty.53 However, that was not determinative of the ultimate outcome.54 It is also an arguable inference from the judgment that [NAME] recognition of a process duty was influenced by his understanding that the relevant [NAME]-[NAME] was not subject to any substantive [NAME] constraint. That is unsurprising given that [NAME] [NAME] was delivered in 2011 when the [NAME] jurisprudence on the role of the courts was still evolving. Indeed, as recently as 2022, the Supreme Court was moved to observe in [NAME] that the issue of whether the application of the [NAME] imposes a substantive constraint on [NAME] was still the subject of debate.55 [54] As regards the fourth [NAME] cited by [NAME[NAME], [NAME] v [NAME], that turned on an interpretation of the empowering statute, not the existence of a universal stand-alone process obligation derived from the [NAME].56 That is to say, the reason [NAME]’s failure to consider the [NAME] was held to be an actionable error was because that was a relevant consideration under the empowering statute,57 not because of the existence of a universal actionable process obligation on every s 3 [NAME]-[NAME] under the [NAME]. [55] In addition to the four High Court decisions, the Judge relied on a [NAME] of this Court in [NAME] v [NAME] Board of Review.58 That too however was a case about a [NAME]-[NAME] being held to have misinterpreted its empowering legislation by not construing it with a rights-consistent lens.59 [56] We have also considered two other decisions cited in [NAME]’s dissent as supporting the approach taken by the High Court, namely [RESPONDENT] v Chief Executive of

53 [NAME] [RESPONDENT] [COMPANY] v [NAME] [2011] 3 NZLR 825 (HC) at [86] and [90]–[106]. 54 On the facts the process duty was held to have been discharged: at [108]–[112]. 55 [NAME], above n 1, at [81]. 56 [NAME] v [NAME] [2011] NZAR 233 (HC) at [1]–[4]. 57 At [171]. 58 [NAME] v [NAME] Board of Review, above n 3. 59 At [40].

[NAME] decided in 2015,60 and [NAME] v [NAME]-[NAME] decided in 2017.61 However, in our view, both decisions, like those cited by Radich J, have limited precedent value in the present case. [57] [NAME] concerned the [NAME] of a [NAME] manager revoking permission for a [NAME] to wear a hairpiece when the [NAME] was returned to custody after absconding. [NAME[NAME] held that the manager’s [NAME] engaged the protected right of freedom of expression,62 and that the [NAME] was unlawful because the manager had failed to undertake a [NAME] analysis in reaching his [NAME].63 In taking that approach, the Judge relied on [NAME] [RESPONDENT] [COMPANY] v [NAME] discussed above,64 and at no stage did he undertake a substantive analysis. [58] Two other notable features of [NAME] are that unlike the High Court Judge in the present case, Wylie J did not consider the process duty was applicable to all s 3 actors. It was only said to be applicable to the [NAME] manager because of their significant coercive powers.65 The second notable feature is that on appeal, this Court held that [NAME] had erred in finding the [NAME] manager’s [NAME] had engaged the protected right in the first place.66 [59] We would add that in a later [NAME] involving the same [NAME], another High Court Judge, [NAME], took a different view to both [NAME] and [NAME] [NAME].67 In the context of a challenge to a [NAME] of the [NAME] on the sole ground that the Board had failed to take into account the [NAME], [NAME[NAME] stated: [45] … the real concern is that basic rights are not interfered with more than is necessary and justified. I am not convinced that it is correct to impeach a [NAME] by reference to a person’s basic rights without inquiring whether that basic right has in fact been unjustifiably limited. …

60 [NAME] v Chief Executive of Department of [NAME] [2015] NZCA 477, [2015] NZAR 1648. 61 [NAME] v [NAME]-[NAME] [2017] NZHC 463, [2017] 2 NZLR 704. 62 At [70]–[71]. 63 At [72]–[74], [86]–[88] and [97]. 64 At [83], citing [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 53. 65 At [85]–[86], distinguishing [NAME]) v [COMPANY], above n 36. 66 [NAME]-[NAME] v [NAME] [2018] NZCA 24, [2018] 2 NZLR 899 at [51]–[52]. 67 [NAME] v [NAME] [RESPONDENT] [NAME] [2018] NZHC 955.

[46] … the Parole Act contains its own detailed scheme, aimed, I consider, at ensuring a proportionate [NAME]. … I doubt that the system will be aided by imposing a requirement of a set reasoning methodology… [60] Finally, as regards [NAME], in that case [NAME] had treated the relevant protected right as a mandatory relevant consideration,68 and therefore the existence or otherwise of a universal process duty was not a live issue. What is also noteworthy about [NAME] for present purposes is its ambiguity regarding the existence of any substantive constraint other than orthodox judicial review reasonableness.69 Again, that is unsurprising having regard to the date of the judgment. [61] A survey of these authorities confirms our view that in order to ascertain the existing law the proper focus must be recent decisions of the Supreme Court, the three most pertinent decisions being [NAME],70 A (SC 70/2022) v [NAME],71 and [NAME] v [NAME].72 In fairness to [NAME[NAME], it should be noted that two of the trilogy were decided after he issued his decisions.73 [62] Counsel before us were all able to point to selected passages in the three Supreme Court judgments which arguably support their respective positions. It has therefore been necessary for us to examine each of the Supreme Court decisions in some detail. In addition, given that the Supreme Court has indicated its approach is similar to that adopted in the United Kingdom (UK),74 we have also undertaken a review of the two key authorities in that jurisdiction as a cross-check to our understanding of the Supreme Court decisions.

68 [NAME] v Chief Executive of Department of [NAME], above n 60, at [32]: [NAME] said he was “fully cognisant of the right to freedom of expression”. 69 As noted in [RESPONDENT] in [NAME] [RESPONDENT] ([NAME], Oxford, 2025) at 189. 70 [RESPONDENT], above n 1. 71 A (SC 70/2022) v [NAME] [2024] NZSC 63, [2024] 1 NZLR 372. 72 [NAME], above n 2. 73 Those two being: [NAME], above n 2, which was issued on 11 April 2025; and A (SC 70/2022), above n 71, which was issued on 5 June 2024. 74 [NAME], above n 1, at [82]; and A (SC 70/2022), above n 71, at [137].

The three Supreme Court decisions [NAME] v [COMPANY] [63] The first [NAME] in time is the [NAME] [NAME] which we have already briefly mentioned. [NAME] concerned the [NAME] of a venue manager to cancel a venue booking for controversial speakers because of concerns about [RESPONDENT] and safety risks arising from anticipated protests. The cancellation [NAME] was challenged in judicial review proceedings by a person who had purchased a ticket to hear the speakers and by another person concerned about disruption of future events.75 The grounds of review advanced were irrationality and failure to act consistently with the [NAME], including the protected right to freedom of expression.76 [64] The first issue for determination was whether the [NAME] applied. [ADDRESS] held that the venue manager came within s 3(b) of the [NAME], was required to act consistently with the [NAME] and therefore the [NAME] to cancel was subject to it.77 [65] The second issue was whether the [NAME] to cancel was a breach of protected rights. [ADDRESS] held that the cancellation [NAME] limited the claimants’ right to freedom of expression which in turn meant the venue manager could only lawfully cancel if cancellation was a reasonable limitation on that right in terms of s 5 of the [NAME].78 [66] Relevantly for present purposes, the parties’ submissions raised an issue described in the judgment as “whether, in a judicial review proceeding, the application of the [NAME] imposes a substantive constraint on [NAME] or simply a procedural obligation”.79 That description of the issue is set out in the Supreme Court judgment under the heading of “Our view on the role of the Court”.

75 At [1]–[2]. 76 At [3]. 77 At [51] and [59]. 78 At [74]. 79 At [81].

[67] Under the same heading, the Court responded to that submission in the following terms. For reasons which will become obvious, we have included in the quote the relevant paragraph numbers and relevant footnotes from the Supreme Court judgment:80 [82] … the correct approach is to treat the right as constraining the outcome [NAME] may reach, rather than simply a mandatory relevant consideration. … There is also support for this approach in the United Kingdom decisions in a similar context.115 …

115 [NAME] ([NAME]) v [COMPANY] [2006] UKHL 15, [2007] 1 AC 100; Belfast City Council v [NAME]’ [COMPANY] [2007] UKHL 19, [2007] 1 WLR 1420; and [NAME] ([NAME] [NAME] [NAME]) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945. [83] The logic of an approach which treats the right to freedom of expression in the [NAME] as a substantive constraint on a [NAME]-[NAME] is hard to challenge, given both the constitutional status of the [NAME] and the fact the effect of s 3(b) is that the Act “applies” to [the venue manager]. We consider the result of doing so in this case is that [the venue manager] had to turn his mind to and engage with the question of whether it was reasonable to limit the free speech interest in play by cancelling the event, albeit what that required in that regard must reflect the context in which he was operating. [84] It also logically follows that if the [NAME] is challenged by way of judicial review, the Court must be satisfied that the [NAME] was a reasonable limit. … The correct application of that legal standard in any particular case will involve mixed questions of fact and law. In a case such as this one, we would expect to see evidence that [the venue manager] had identified and weighed the right, and gave consideration to whether the reasons to cancel … were such as to outweigh the right. That will assist the court in its task.118

118 We leave for an occasion on which it arises the approach to be taken by the courts in the situation where [NAME] does not engage with the effect of the [NAME]. That does not in any event affect the court’s role. … [86] Further, while the Court must satisfy itself of the reasonableness of the limit, some regard may be had and respect given to where the [NAME]- [NAME] saw the balance as lying. The extent to which this is so will depend on the context. … [68] In our view, the statement we have italicised from [82] of the Supreme Court — “rather than simply a mandatory relevant consideration” — needs to be understood in the context of the submission to which it was responding, namely that there was only one obligation on a s 3 [NAME]-[NAME] and that was simply a procedural one. The focus was accordingly very much on the court’s substantive constraint role.

80 Emphasis added.

[69] Significantly, in the later 2024 [NAME] A (SC 70/2022), the Court itself described its earlier [NAME] in [NAME] as endorsing an approach similar to that in the UK and said it was an approach:81 [137] … to the effect that rights under the [NAME] constrain the outcome a [NAME]-[NAME] may reach, rather than being a mandatory relevant consideration. … [70] All of that said, we acknowledge that read in isolation the wording of [82] in [NAME] is obviously capable of the interpretation that the Court was positively affirming the existence of a process obligation as formulated by the Judge in this case. The latter it will be recalled, used the terms “mandatory relevant consideration” and “procedural obligation” interchangeably.82 There is also the use of the phrase “had to” at [83] of [NAME],83 where it was said that [NAME] “had to turn his mind to and engage with” the question of whether the [NAME] was a reasonable limit on the protected right at issue. [71] However, on balance, having regard to a number of other countervailing factors within the [NAME] judgment itself, we have reached the view that despite the possible ambiguities, the better interpretation is that it was not the Court’s intention in [NAME] to pronounce on the existence of an independently actionable process duty. Those countervailing factors are: (a) the citation with approval of two [NAME] that have categorically rejected the notion of an actionable process obligation in human rights law;84 (b) the footnote expressly stating that the Court is leaving the approach to be taken by the courts in the situation where [NAME] does not engage with the effect of the [NAME] for another occasion;85

81 A (SC 70/2022), above n 71 (emphasis added and footnote omitted). 82 See, for example, High Court judgment, above n 6, at [7], [10], [33]–[34], [37], [40], [83], [86]– [87], [98] and [113]. 83 [NAME], above n 1. 84 At [82], citing [NAME]) v [COMPANY], above n 36, and Belfast City Council v [COMPANY], above n 36. See our discussion of these UK cases below starting at [89]. 85 [NAME], above n 1, at [84], n 118.

(c) the absence of any statement expressly saying that in addition to the [NAME] constraining the outcome it is also a mandatory relevant consideration which if not taken into account will render the [NAME] unlawful even if it is substantively compliant; and (d) the fact that the references to the expectations on [NAME]’s processes are stated to arise from the substantive constraint and are not expressed as a free-standing independent duty. [72] It follows from the above that for present purposes we consider the weight that the High Court placed on [NAME] was misplaced. [73] In coming to that conclusion, we have not overlooked an oral submission made by Mr [NAME] that appeared to suggest (contrary to his written submissions) that footnote 118 in [NAME] was simply a reference to the Court’s remedial response to a breach of an actionable process obligation rather than reflecting any undecided issue as to the existence or otherwise of that duty. However, in our view, that is not a tenable interpretation of the footnote. The concept of a mandatory relevant consideration and the consequences of failing to take it into account are well established. That being so, it would be strange if the Supreme Court would consider it necessary to make a point of reserving that issue for later consideration, especially if a mandatory relevant consideration in the [NAME] context was well established prior to [NAME] as claimed by the High Court.86 A (SC 70/2022) v [NAME] [74] This judgment concerned a judicial review proceeding challenging a [NAME] made by the [NAME] under the Passports Act 1992 to cancel A’s passport. The Minister made that [NAME] on the recommendation of the [NAME] [RESPONDENT] [NAME] ([NAME]).87 The [NAME] briefing paper to the Minister was silent on the [NAME] and apart from a brief reference in his affidavit evidence regarding the effect of cancellation on freedom of movement, there was

86 See, for example, High Court judgment, above n 6, at [84]–[85]. 87 A (SC 70/2022), above n 71, at [1]–[3].

nothing to indicate the Minister had considered the effect of the [NAME] on other guaranteed rights.88 [75] In the High Court, [NAME[NAME] held that while it would have been preferable if the briefing paper had addressed [NAME] questions to enable the Minister to assess them, that failure could not vitiate the cancellation [NAME], unless the [NAME] did in fact infringe protected rights to an extent greater than reasonably justified, which in the Judge’s view it did not.[ADDRESS] of Appeal upheld the [NAME].90 [76] The Supreme Court found on the evidence that the Minister did not have reasonable grounds to believe that one of the pre-requisites for cancellation under the Passports Act had been satisfied. That finding was sufficient to dispose of the appeal in A’s favour.91 However, significantly, the Court did make some obiter observations about the [NAME]. [77] As already mentioned, these included a statement that the approach endorsed in [NAME] was that the rights under the [NAME] “constrain the outcome a [NAME]-[NAME] may reach, rather than being a mandatory relevant consideration”.92 [78] [ADDRESS] also made further observations about whether the Minister had engaged with the right in the way contemplated by [NAME] — which it found he had not — and if so, what was the effect of that failure. [79] As regards the Minister’s failure, the Court said:93 [138] While we agree substantive compliance with the [NAME] is a legal issue for the court to resolve, that does not mean [NAME] (in this case, a [NAME] Minister) does not need to engage with the [NAME]. As noted in [NAME], the fact that the [NAME] is a substantive constraint on [NAME] means they must turn their mind to and engage with the question of whether it was reasonable to limit the affected rights by their [NAME].

88 At [132]. 89 At [133], citing A v [NAME] [2020] NZHC 2782 at [113] and [119]. 90 A (SC 70/2022), above n 71, at [134], citing A (CA677/2020) v [NAME] [2022] NZCA 257 at [88]. 91 A (SC 70/2022), above n 71, at [116]. 92 At [137]. 93 Footnote omitted and emphasis added.

[80] As to the legal effect of the failure, the Court went on to say that it agreed with a [NAME] contention that if the statutory grounds under the Passports Act were made out:94 [140] … it is likely a [NAME] to cancel would be a justified limit on rights. In that event, a failure to address the issue would not be fatal to the validity of the [NAME]. But that does not mean those advising the Minister should feel free not to address the issue. [81] Understandably, [NAME] [RESPONDENT] focused on the Court’s use of the word “must” at [138], arguing that it denoted a procedural obligation, while the [NAME] emphasised the passage at [140] to the effect that a failure to address the issue would not of itself be fatal to the validity of the [NAME]. The [NAME] also emphasised the Court’s statement that “rights under the [NAME] constrain the outcome a [NAME]-[NAME] may reach, rather than being a mandatory relevant consideration”.95 [82] It is in our view possible to reconcile the Court’s use of the word “must” with its rejection of the [NAME] imposing a mandatory relevant consideration. We consider that the [NAME] thrust of the Court’s analysis is that there is only one inquiry, namely an inquiry into substantive compliance, and not two separate inquiries either of which can lead to unlawfulness. The need for [NAME] to consider the [NAME] is regarded as flowing from the [NAME] being a substantive constraint and is thus an aspect of the substantive analysis, rather than an actionable process duty in its own right. Seen in that light, the “must” is, in our view, best interpreted as meaning “should” in the sense that if [NAME] wishes to avoid or minimise the risk of the court finding the limit on the relevant right(s) was not justified, they should conduct a [NAME] analysis themselves. [NAME] v [NAME] [83] Delivered in 2025, this judgment concerned a [NAME] by the [NAME] (the Chief) to issue [NAME] [NAME] orders under the [NAME] 1990.96 The orders required as part of overseas readiness that staff be vaccinated, failing which they would be discharged.

94 Emphasis added. 95 At [137]. 96 [NAME], above n 2, at [1]–[9].

[84] A judicial review challenge to the validity of the orders failed in the High Court,97 but succeeded in this Court on the grounds that the Chief had not discharged the burden of showing the limits on protected rights imposed by the orders were demonstrably justified.98 On further appeal to the Supreme Court however, it was held that this Court had failed to allow the Chief a sufficient margin of appreciation when deciding whether the orders were needed to meet operational readiness requirements.99 [85] While the Court repeated the [NAME] statement that it is necessary to treat protected rights as a substantive constraint on a [NAME]-[NAME], “not merely a mandatory relevant consideration”,100 it did not suggest in any part of the judgment that how the Chief took the [NAME] into account was a touchstone of illegality. Rather, the Chief’s reasoning on the [NAME] was viewed as one of the factors that fed into the Court’s assessment of substantive compliance. Thus, the Court talked about regard being had in appropriate cases to where [NAME] saw the balance as lying, and the fact that in appropriate cases the Court may defer to [NAME]’s assessment.101 [86] In her dissent, [NAME[NAME] considers this third [NAME] to be irrelevant.102 However, we disagree. We consider it is relevant because it demonstrates how the [NAME]-making process is factored into the one inquiry which the Court affirms is a substantive inquiry as to whether the [NAME] represents a reasonable limit on the protected right. [87] Our analysis of these three important Supreme Court decisions leads us to the conclusion that the Court has endorsed what Mr [NAME] described as an “integrated approach”, that is to say a mixed process and substantive model. Under this approach, a failure on the part of [NAME] to take the [NAME] into account or reason adequately about the [NAME] will not of itself ground a finding of illegality. A finding of unlawfulness will only follow from the court’s analysis of

97 At [10], citing [NAME] v [NAME] [2022] NZHC 2497. 98 [NAME], above n 2, at [10], citing [NAME] v [NAME] [2024] NZCA 17, [2024] 3 NZLR 1. 99 [NAME], above n 2, at [129]–[145]. 100 At [99]. 101 At [102]–[109]. 102 See below at [193].

substantive compliance. However, that does not mean [NAME]’s reasoning processes are entirely irrelevant to substantive illegality or invalidity. The reasoning of [NAME] is one element of substantive compliance, but it is not conclusive. As another commentator pithily put it, such an approach:103 … does not mean that the reasoning process of the [NAME] authority is irrelevant, but rather that it cannot be used either to vitiate or rescue a [NAME] which is otherwise … compatible. [88] We are reinforced in that conclusion by consideration of the [NAME] expressly described in [NAME] (SC 70/2022) as evidencing a similar approach to the [NAME] [RESPONDENT] approach. The [NAME] cited by the Supreme Court [89] The legislative context of the [NAME] is the Human Rights Act 1998 (UK). It incorporates the [NAME] for the Protection of Human Rights and Fundamental Freedoms 1950 ([NAME]) into UK law.104 According to established UK case law, a limitation or interference with a protected right must be prescribed by law and necessary in a democratic society for a permissible purpose, meaning that the limitation or interference must be directed to a legitimate purpose and must be proportionate in scope and effect.105 [90] The authorities in question are two decisions of the [NAME]: R([NAME]) v [COMPANY],106 which was decided in 2006, and Belfast City Council v [COMPANY],107 which was decided in 2007. Both decisions emphatically reject the suggestion of an actionable process duty. [91] [COMPANY] concerned a [NAME] made by the head [NAME] and [COMPANY] refusing to allow a [NAME] to wear a religious form of dress under the school’s uniform policy. [ADDRESS] of Appeal quashed the [NAME],

103 [NAME] [NAME] “Reasoning about Proportionality under the Human Rights Act 1998: Outcomes, Substance and Process” (2014) 130 LQR 235 at 245. 104 [NAME] for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into [NAME] 3 September 1953), as enshrined in the Human Rights Act 1998 (UK), sch 1. 105 [NAME]) v [COMPANY], above n 36, at [26] per [NAME]. 106 [NAME]) v [COMPANY], above n 36. 107 Belfast City Council v [COMPANY], above n 36.

not because it found the school had breached the [NAME]’s art 9 [NAME] right to manifest their religion, but on the grounds that the [NAME] had been reached without sufficient consciousness of the [NAME] right.[ADDRESS] held the school was required to demonstrate a correct process of reasoning,109 and set out a [NAME]- making structure with a series of questions required to be asked and answered.110 The series of questions effectively replicated the legal test applied by Judges. [92] On further appeal, the [NAME] was divided as to whether the [NAME] right in question had been breached. However, the Law Lords were all agreed that even if the [NAME] did interfere with the right, the interference was proportionate to the right and therefore lawful.111 Significantly for present purposes, two of their Lordships, [NAME] [NAME] and [NAME], were highly critical of what [NAME] [NAME] termed the Court of Appeal’s “procedural approach”.112 [93] [NAME] [NAME] stated such an approach would introduce a “[NAME] formalism” and be “a recipe for judicialisation on an unprecedented scale”.113 He went on to say that while the Court of Appeal’s [NAME]-making prescription would be admirable guidance for a lower court or legal tribunal, it could not be required of a head [NAME] and governors even with a solicitor to help them. What matters, he said, in any given case is the practical outcome not the quality of the [NAME]-making that led to it.114 [94] These sentiments were echoed by [NAME] [NAME]. He suggested that the approach taken by the Court of Appeal amounted to expecting school principals and governors to make the sorts of decisions at issue “with textbooks on human rights law at their elbows”.115 [NAME] also pointed out the important distinction between human rights litigation and conventional domestic judicial review. In the latter, the court, he said, is usually concerned with whether [NAME] reached their

108 [NAME]) v [COMPANY] [2005] EWCA Civ 199, [2005] 1 WLR 3372 at [75]– [78] per [NAME] LJ, at [86]–[88] per [NAME] LJ, and at [90], [92] and [94] per Baker LJ. 109 At [75] per [NAME] LJ, at [87] per [NAME] LJ, and at [94] per Baker LJ. 110 At [75] per [NAME] LJ, and at [90] per Baker LJ. 111 [NAME]) v [COMPANY], above n 36, at [32]–[34] per [NAME] [NAME], at [41] per [NAME] [NAME], at [58] and [68] per [NAME] [NAME], at [83]–[84] and [91] per [NAME] [NAME], and at [98] per [NAME] [NAME]. 112 At [28] per [NAME] [NAME]. 113 At [31], citing [NAME], above n 50, at 691–695. 114 At [31]. 115 At [68].

[NAME] in the right way rather than whether they got what the court might think to be the right answer. In contrast, art 9 was concerned with substance, not procedure: “It confers no right to have a [NAME] made in a particular way. What matters is the result”.116 [95] While none of the other three Law Lords expressly addressed the issue of a process obligation, one of them expressed “full agreement” with the reasons given by [NAME] [NAME] and [NAME] [NAME].117 [96] The second case, Belfast City Council v [COMPANY],118 concerned the [NAME] of a local authority declining the respondent’s application to use premises as a sex shop. The respondent sought judicial review which was declined at first instance but succeeded in the Court of Appeal on the ground the local authority had not shown it was conscious of the [NAME] rights which were engaged, in particular, the art 10 right to freedom of expression.119 [97] The respondent Council appealed to the [NAME] which held the Court of Appeal had been wrong to quash the [NAME] for process reasons. [NAME] [NAME] described the approach taken in the Court of Appeal as unorthodox,120 “contrary” to the reasoning in [COMPANY],121 and “quite impractical”.122 He graphically opined: [13] … A construction of the [Human Rights Act] which requires ordinary citizens in local [NAME] to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the applicant’s [NAME] rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the [NAME] lawful. If it did not, it would not matter if the councillors had never heard of article 10 … [98] [NAME] [NAME] was similarly critical. He and [NAME] [NAME] did however also note that where the [NAME] authority has carefully weighed the various competing

116 At [68]. 117 At [91] per [NAME] [NAME]. 118 Belfast City Council v [COMPANY], above n 36. 119 [COMPANY] for Judicial Review [2005] NICA 35, [2006] NI 181 at [56]– [63]. 120 Belfast City Council v [COMPANY], above n 36, at [12], 121 At [13]. 122 At [13].

considerations and concluded that interference with a [NAME] right is justified, a court will attribute due weight to that conclusion in deciding whether the action in question was proportionate and lawful.123 But if the local authority has made no attempt to do that, then its views will carry less weight.124 [99] The same point had been made by [NAME] [NAME] in [COMPANY] where he said that if a [NAME]-[NAME] such as the school governors has conscientiously paid attention to all human rights considerations, the task of the party challenging the [NAME] will be harder.125 Canadian authority [100] For completeness we record that in addition to the two UK decisions, our Supreme Court in [NAME] also referred to the [NAME] of its Canadian counterpart in Doré v Barreau du Québec.126 The latter was described in [NAME]- [NAME] as adopting an approach “which, to some extent at least, merges consideration of both substantive and procedural issues”.127 [101] It is arguably implicit from this observation (qualified in a way that the reference to the [NAME] was not) that our Supreme Court considered its own approach also merged consideration of both substantive and procedural issues but not in the same way as Canada. [102] As we understand the Canadian jurisprudence prior to [NAME], Canadian courts applied a proportionality test for assessing both legislation,128 and [NAME] decisions,129 for compliance with rights in the Canadian Charter of Rights and

123 At [26] per [NAME] [NAME], and at [37] per [NAME] [NAME]. 124 At [27] per [NAME] [NAME], and at [37] per [NAME] [NAME]. 125 [NAME]) v [COMPANY], above n 36, at [31]. 126 [NAME], above n 1, at [82], citing [NAME] v Barreau du Québec 2012 SCC 12, [2012] 1 SCR 395. 127 [NAME], above n 1, at [82]. [NAME] is also cited in [NAME] at [89] as support for the proposition that in assessing the compatibility of an individual discretionary [NAME] with protected rights, a more flexible approach is appropriate. 128 See for example, R v Oakes, above n 3; and R v [NAME] and [COMPANY] [1986] 2 SCR 713. 129 [COMPANY] v Davidson [1989] 1 SCR 1038 at 1053 and 1081; [NAME] v [COMPANY] No 15 [1996] 1 SCR 825 at 879; and [NAME] v Commission scolaire Marguerite-Bourgeoys 2006 SCC 6, [2006] 1 SCR 256 at 282–296 and 324–325.

Freedoms (Charter).130 This changed following [NAME] where in relation to [NAME] decisions the Supreme Court of Canada adopted a reasonableness standard. The reasonableness standard was held to be grounded in Charter values as distinct from Charter rights and involved giving deference to [NAME]’s balancing of those values and statutory objectives.131 This approach has been regarded as merging process and outcome into the one reasonableness inquiry.132 [103] In the article cited with approval in the [NAME] under appeal,133 [NAME] [NAME] identifies a benefit of the Canadian approach as being that it avoids a bifurcated regime of constitutional versus [NAME] law, the reasonableness standard being integrated into mainstream [NAME] law.134 [104] Other commentators however have been critical of [NAME], contending that the approach undervalues Charter rights, failing to give them the primacy and priority they deserve under a constitutional framework.135 Much of the discussion seems to have focused on the distinction between Charter rights and Charter values.136 [105] For reasons we discuss at [137]–[140], the current [NAME] [RESPONDENT] position is that human rights law and [NAME] law are two distinct fields of law. This further reinforces our view that the differences between the [NAME] [RESPONDENT] constitutional contexts and rights instruments make reliance on [NAME] for the purposes of the issue in this case problematic. [106] In making this last point, we have not overlooked Mr [NAME] submission that the same thing could be said of the UK decisions and that they too should be approached with caution. However, while there are obvious differences between our

130 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK). 131 [NAME], above n 126, at [35]–[58]. 132 See, for example, [NAME], above n 40, at 354. 133 High Court judgment, above n 6, at [70]–[73], citing [NAME], above n 40. 134 [NAME], above n 40, at 353 and 356. 135 See, for example, [NAME] “Charter Right or Charter-Lite? [NAME] and the Charter” (2014) 67 SCLR 561; and [NAME] “Prescribing Greater Protection for Rights: [NAME] 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 SCLR 249. 136 See, for example, [NAME] “The Doré Duty: Fundamental Rights in [NAME]” (2023) 101 CBR 297; and [NAME] “To Defer or Not to Defer? The Judicial Review of Charter-Impacting Decisions Post-Vavilov” (2025) 50(2) QLJ 65.

legal framework and that of the UK, there are significant similarities. Further the fact remains that the [NAME] [RESPONDENT] regarded the [NAME] as more closely aligned to the [NAME] [RESPONDENT] position.137 [107] In none of the three [NAME] [RESPONDENT] decisions has the Court referred to Australian authority. We therefore only note in this section of the judgment that three Australian state legislatures have enacted statutory rights charters under which it is expressly unlawful for a [NAME] authority to fail to give proper consideration to a relevant human right when [NAME]-making.138 Conclusion on existing [NAME] [RESPONDENT] law [108] For the reasons discussed above, we conclude that an actionable process obligation formulated in the terms suggested by the High Court is not supported by existing [NAME] [RESPONDENT] authority. Under the current [NAME] [RESPONDENT] law, it is substantive compliance that is the touchstone of legality under the [NAME], not the process by which the [NAME] [NAME] has been reached. What matters is the result. [109] That does not mean the views of [NAME] are irrelevant. Some high-level [NAME[NAME] — including for example [NAME] ministers — are expected to consider the [NAME]. And whether [NAME] took the [NAME] into account and the quality of their reasoning bears on the ultimate inquiry of substantive compliance. The critical point is that there is no universal free standing process duty on all s 3 actors, a breach of which will render the [NAME] unlawful, regardless of whether or not the [NAME] is itself rights consistent. [110] We agree with Mr [NAME] that this mixed process/substance model (as he termed it) is consistent with the [NAME] [RESPONDENT] legal tradition of flexibility and preference for substance over form.

137 [NAME], above n 1, at [82]; and A (SC 70/2022), above n 71, at [137]. 138 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38; Human Rights Act 2019 (Qld), s 58; and Human Rights Act 2004 (ACT), s 40B(1).

[111] In adopting a different interpretation of the Supreme Court judgments, [NAME[NAME] relies on the same passages from the judgments cited to us by [NAME] [RESPONDENT].139 In addition, she also considers that the statement in A (SC 70/2022) that a failure to consider the [NAME] would not be fatal to the validity of a rights-consistent [NAME] is simply a statement about remedial discretion.140 [112] As regards the footnote in [NAME] about the effect of a [NAME]-[NAME]’s failure to consider the [NAME] being left for another day, [NAME[NAME] prefers an alternative interpretation to that adopted by the majority. It is also a different interpretation to that advanced orally by Mr [NAME]. [NAME[NAME] suggests the footnote simply relates to the scenario where the court is not assisted in its substantive constraint task by [NAME].141 [113] We are not however persuaded that this was the intent of the footnote. First if it were intended to be limited to the effect on the substantive assessment, it strikes us as surprising that the Court would regard that as a sufficiently important issue to be reserved for another occasion. Indeed, the concluding sentence in the footnote is “[t]hat does not in any event affect the court’s role” — the court’s role being the substantive assessment role. Even more telling in our view is the absence of any reference in the footnote to the point that such a failure on the part of [NAME] would however be a breach of an actionable process obligation. That omission also sits uneasily with the suggestion that the existence of a process duty was well established in [NAME] [RESPONDENT] law prior to [NAME] as [NAME] [RESPONDENT] submits and [NAME] accepts. [114] We note too that the footnote is annexed to a paragraph where the Court refers to there being an “expectation” of evidence of [NAME[NAME] engaging in a [NAME] analysis, not a requirement. Further, in the same paragraph, the Court limits that expectation to a “case such as this one.” It does not say it is an expectation of all s 3 actors.

139 See [NAME[NAME]’s discussion of the cases starting below at [173]. 140 See below at [191]. 141 See below at [186], n 221. This is a different interpretation to that advanced orally by Mr [NAME]. As noted above at [73], he submitted the footnote was the Court reserving consideration of what the stand-alone response should be for breach of the procedural obligation itself.

[115] Nor in our view does the interpretation favoured by [NAME[NAME] explain why the Supreme Court in A (SC 70/2022) talked about the [NAME] constraining the outcome a [NAME]-[NAME] may reach “rather than being” a mandatory relevant consideration.142 [116] We also consider that [NAME[NAME]’s interpretation sits uneasily with the Supreme Court’s references to the UK authority as evidencing a similar approach to [NAME] [RESPONDENT].143 It would be difficult to find a more emphatic rejection of an actionable procedural duty than the two UK decisions cited.144 The existence of such a duty was a core issue in both decisions. It is reasonable in our view to assume that had the Supreme Court disagreed with the UK approach on that issue it would surely have said so, again especially if the existence of an actionable process duty was well established in [NAME] [RESPONDENT] law as claimed by the High Court.145 [117] Having reached the conclusion that an actionable process duty as formulated by the Judge is not part of existing [NAME] [RESPONDENT] law, we turn to the issue of whether, nevertheless, despite its novelty, the duty is a desirable development that should be recognised. This requires an examination of the Judge’s reasons for imposing a duty, the benefits such a duty is said to bring and the concerns raised by the [NAME]. Should a novel process duty be recognised? Consistency with the [NAME] and the benefits of a process obligation [118] As mentioned, one of the core submissions made on behalf of the Human Rights Commission was that adoption of the High Court approach was consistent with the express purposes of the [NAME]. Those purposes are:146 (a) to affirm, protect and promote human rights and fundamental freedoms in [NAME] [RESPONDENT]; and (b) to affirm [NAME] [RESPONDENT]’s commitment to the International Covenant on Civil and Political Rights.

142 A (SC 70/2022), above n 71, at [137]. 143 [NAME], above n 1, at [82]; and A (SC 70/2022), above n 71, at [137]. 144 Those two being [NAME]) v [COMPANY], above n 36; and Belfast City Council v [COMPANY], above n 36. 145 See, for example, High Court judgment, above n 6, at [84]–[85]. 146 [NAME] [RESPONDENT] of Rights Act, long title.

[119] In making that submission, Mr [NAME] was not however suggesting that the [NAME]’ mixed approach model was necessarily inconsistent with the [NAME]. And nor could he. Indeed, on closer analysis, we consider it distinctly arguable that the mixed approach model is more consistent with the [NAME] than a stand-alone actionable process duty. [120] Neither the International Covenant on Civil and Political Rights,147 the White Paper preceding the enactment of the [NAME],148 nor the [NAME] itself contain any express provision for an independent procedural duty. The way the [NAME] is framed also supports the [NAME]’ analysis in a positive way. That is because the focus of the [NAME] is entirely on consistency and outcomes. Given that focus, we question the legitimacy as well as the logic of an approach which can result in a [NAME] that was rights consistent nevertheless being declared unlawful. [121] It is also noteworthy that the [NAME] contains an obligation on the [NAME]-[NAME] to scrutinise all proposed legislation (including of course legislation which confers [NAME]-making power on administrators) for consistency with the [NAME] and to bring any apparent inconsistency to the attention of [NAME] before enactment.149 [122] That safeguard was clearly intended to assist in promoting rights-consistent legislation. That must include the enacted terms of any empowering provisions which if followed by a [NAME]-[NAME] should result in a rights-consistent [NAME]. Indeed, the present case illustrates this point. Although the terms of s 116E of the [RESPONDENT] do not expressly mention the [NAME], it is striking how they mirror matters raised in the [NAME] of [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME].150

147 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into [NAME] 23 March 1976). 148 [RESPONDENT] “A [NAME] for [NAME] [RESPONDENT]: A White Paper” [1984–1985] I AJHR A6. 149 [NAME] [RESPONDENT] of Rights Act, ss 7 and 7A. 150 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3.

[123] The existence of an [NAME]-[NAME]’s report on compliance of proposed legislation with the [NAME] also of course has the added benefit of putting a [NAME]-[NAME] on notice that a protected right may be engaged. [124] Finally, in terms of parliamentary intention, we note too the existence of statutory powers in the [NAME] [RESPONDENT] statute book that expressly require mandatory consideration of the [NAME].151 In those circumstances, there is a duty to take the [NAME] into account as a mandatory relevant consideration, but it is a duty derived from the empowering provision, not the [NAME] itself. [NAME] considered the [NAME] already imposed a universal duty to the same effect, it is reasonable to assume those express provisions would not have been seen as necessary. [125] In making these observations, we have not overlooked arguments that imposing an actionable process duty will promote human rights in accordance with one of the express purposes of the [NAME]. It will do that, it is argued, by advancing the development of a human rights culture in [NAME] and fostering a culture of justification in which [NAME[NAME] must give good reason for their decisions and thereby improve [NAME] [NAME]-making. These were arguments that resonated with the Judge in this case, as did the associated contention that in contrast a judicial focus on outcomes does little to promote a human rights culture in [NAME].152 [126] However, the Judge did not refer to any current evidence in support of either proposition. There was no evidence for example as to what training and policy guidance in human rights is available to administrators which might allow a rights culture to evolve organically. Nor was there any recognition of the fact that [NAME] opinion is divided as to whether an actionable process obligation is more likely to foster a rights culture or a culture of formalism as [NAME] attempt to apply judicial-type reasoning.153

151 See, for example, COVID-19 [NAME] [RESPONDENT], s 9(ba); Severe Weather Emergency Recovery Legislation Act 2023, s 8(1)(a)(iv); and Urban Development Act 2020, s 168(1)(b)(ii). 152 High Court judgment, above n 6, at [70]–[71]. 153 See, for example, [NAME], above n 103, at 256–258.

[127] [NAME] [NAME] for example, in an article relied on in [COMPANY],154 warns against turning “the judge over your shoulder” into the “judge inside your head” and contends that a procedural approach promotes a culture of excessive legalism which may burden [NAME] administration and discourage thoughtful [NAME]-making.155 [128] It might fairly be said that we are in no better position than the Judge to determine with any certainty whether the imposition of a process duty will have a positive or adverse effect on the quality of [NAME] [NAME]-making. We acknowledge too that it would be unrealistic to dispute that the imposition of an actionable process duty is likely to create greater awareness of the [NAME]. [129] However, while we agree it will heighten awareness, we are in a position to question how significant or meaningful that heightened awareness will be, given there is already a strong incentive under the mixed model approach, especially for high- level [NAME[NAME], to turn their mind to the protected rights. Another reason to question whether recognition of a process duty will further the purposes of the [NAME] in any meaningful way or do little more than add an extra step to the analysis is that, in the vast majority of cases, what will determine outcomes is whether or not the [NAME] is rights compliant. If the [NAME] is not rights compliant, it will be invalidated anyway regardless of whether rights were considered or not. [130] The other benefit of a process duty cited by the Judge was the desirability of the courts having greater flexibility to manage their delicate institutional relationship with the elected branches of [NAME]. The Judge accepted that the UK approach enabled the court to give credit for a good process by according weight to the judgments of a [NAME] [NAME]-[NAME]. However, he considered that despite this the UK approach did not provide the assistance a court needs where the process followed was poor but where there are nevertheless strong institutional reasons to accord deference to a [NAME]-[NAME].156

154 [NAME]) v [COMPANY], above n 36, at [31] per [NAME]. 155 [NAME], above n 50, at 695. 156 High Court judgment, above n 6, at [72].

[131] A similar point to that made by the Judge can in fact be found in the opinions of [NAME] and [NAME] in the [NAME] itself.157 [132] [NAME] [NAME] raised the issue of how a focus on outcomes rather than the quality of the [NAME]-making interrelated with recognition of a concept known in [NAME] law as “a discretionary area of judgment”. The latter term is used to describe issues in respect of which the judiciary will defer, on democratic grounds, to the considered opinion of the elected person or body whose act or [NAME] is said to be incompatible with the [NAME].158 [NAME] went on to note that the existence of a discretionary area of judgment meant necessarily that there may be decisions which a court could regard as justified, whichever way they went.159 If however the court was deprived of the assistance and reassurance of a considered opinion because [NAME] did not have regard to the [NAME], then the court’s scrutiny was, he said, bound to be closer. He agreed it might mean, as noted by [NAME] [NAME],160 that the court has no option but to strike the balance for itself, giving due weight to such judgments as were made by [NAME] on matters they did consider.161 [133] [NAME] nor [NAME] however suggested that this was a compelling reason to recognise a process obligation, presumably because that consideration was far outweighed by the perceived disadvantages of such a duty. It seems to us too to follow that the more borderline and policy-oriented the case, the greater the incentive on [NAME] under existing [NAME] [RESPONDENT] law to engage in a rights analysis. Further, as our own [NAME] in [NAME] demonstrates, it is wrong in any event to assume that the absence of a process duty is necessarily an impediment to deference being accorded in appropriate cases.162

157 Belfast City Council v [COMPANY], above n 36. 158 At [46]. 159 At [46]. 160 At [37] per [NAME] [NAME]. 161 At [47] per [NAME] [NAME]. 162 [NAME], above n 2, at [101]–[109].

[134] A “retreat to procedure” as one English commentator termed it may have the effect of enabling a court to avoid or postpone difficult decisions,163 but we are not persuaded that avoidance or deferral is necessarily in the interests of justice and therefore do not consider that as a benefit of imposing an actionable process duty. On the contrary, as [NAME] [NAME] stated in [COMPANY], the court is obliged to confront these questions however difficult.164 [135] All of that said, it would be wrong to exclude the possibility of any benefit arising from the recognition of a process obligation and, as indicated, that is not our view. Our view is that there will be some benefit particularly in the form of heightened awareness of the [NAME]. A process duty is not however necessarily mandated by the [NAME] itself and we consider that the suggested benefits are limited. [136] We now turn to weigh those benefits against other practical and doctrinal difficulties which it is said the novel duty is likely to create. Doctrinal difficulties [137] The first of the doctrinal difficulties is that the concept of mandatory relevant considerations is an [NAME] law concept. Transmuting the [NAME] into a mandatory relevant consideration arguably confuses human rights and [NAME] law concepts, despite them being distinct and separate fields of law.165 As noted by [NAME] [NAME] in Belfast City Council, the role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of [NAME] action.166 In the latter, the court is concerned with reviewing process, not the merits of the [NAME], the only substantive inquiry being irrationality. That they are distinct fields of law has also been recognised by our Supreme Court when for example it made a point of noting in [NAME] that the reasonableness

163 [NAME] “Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in [NAME] v [COMPANY]” (2005) 1 EuConst 511 at 517, cited in [NAME]) v [COMPANY], above n 36, at [28] and [30]. 164 [NAME]) v [COMPANY], above n 36, at [30] per [NAME] [NAME]. 165 See, for example, [NAME] “Against Unification” in [NAME] and [NAME] (eds) The Scope and Intensity of Substantive Review: [NAME] ([NAME], Oxford, 2015) 91. 166 Belfast City Council v [COMPANY], above n 36, at [31].

inquiry for the purposes of the [NAME] is different from the reasonableness inquiry in review proceedings.167 [138] To add to the potential confusion, although the concept “mandatory relevant consideration” derives from [NAME] law, it is not used in that field of law to describe an invariable universal duty that applies across the board. Rather, whether a matter is or is not a mandatory relevant consideration depends on the particular terms of the empowering provision under which [NAME] has acted and which the court subjects to close examination before identifying what factors the empowering provision required [NAME] to take into account. In the leading [NAME] law case on mandatory relevant considerations, this Court pointed out that the mere fact a consideration is one that could properly be taken into account by [NAME] does not of itself make it a mandatory relevant consideration.168 [139] As indicated, whether human rights law should be integrated into [NAME] law is a topic on which eminent scholars disagree. For our part, we consider there is a risk to doctrinal coherence in recognising a procedural duty in the terms formulated by the Judge. We also consider there is [NAME] in the [NAME]’ submission that in addition to “weaving the [[NAME]] into a traditional [NAME] law paradigm” and “[p]roceduralising human rights”, a process duty may ironically run the risk of downgrading rights protection rather than enhancing it as intended. [140] It follows that we disagree with the High Court’s view that a sound reason for recognising an actionable process duty is the desirability of ensuring the same principles are applied in human rights law and [NAME] law.169 In our view, the converse is the case. Uncertainty and costly inefficiencies [141] What the [NAME] duty recognised by the High Court will require in any given case is also, in our view, replete with uncertainty, expressed as it is to apply to all s 3 actors.

167 [NAME], above n 2, at [99], n 139. 168 [COMPANY] [NAME]-[NAME] [1981] 1 NZLR 172 (CA) at 183. 169 High Court judgment, above n 6, at [73]–[74].

These are not of course limited to [NAME] [NAME] but also local and statutory entities and their staff. The range of affected [NAME] [NAME] is very significant as the Judge’s own example of the [NAME] confronted with an offensive T-shirt demonstrates.170 That a [NAME] should be under a legal obligation to turn their mind to relevant [NAME] considerations before asking the T-shirt wearer to leave would, we consider, strike many people as a surprising and impractical expectation. [142] There are over 20 protected rights and freedoms in the [NAME], and even identifying whether rights are engaged in the first place is often not straightforward as the disagreement among Judges over the wearing of a hairpiece shows.171 Similarly, in a more recent [NAME], this Court indicated that in order to decide whether compulsory mask wearing engaged the right to decline medical treatment, it would have had to undertake an analysis of overseas jurisprudence.172 Another example relevant to the present case are the divergent views in this Court and the Supreme Court about whether water fluoridation engaged the right to be free from medical treatment.173 Given that judges and lawyers struggle at times to grapple with these issues, how realistic is it to expect lower-level [NAME[NAME] to have the necessary expertise and knowledge? [NAME[NAME] assumes the [NAME] would immediately recognise that freedom of expression was engaged. But even if freedom of expression is obvious, the offending T-shirt might, depending on its content, also engage other rights, such as freedom of religion, which the process duty requires the [NAME] to recognise before embarking on a proportionality analysis. [143] In submissions, the [NAME] posited numerous other scenarios in a bid to highlight the potential ramifications of the [NAME], including: a [NAME] officer deciding to search a cell, the police when tasering someone, an [NAME] deciding whether to give a trigger warning to a class, a [NAME] [NAME] on school lunch menus, a school determining dress codes and a local body deciding whether to install a rainbow crossing. According to the [NAME], it is “implausible” and simply a “bad rule” that every official from the [NAME] at street level all

170 At [96]. 171 [NAME] v [NAME]-[NAME], above n 61; and [NAME]-[NAME] v [RESPONDENT], above n 66. 172 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] [2025] NZCA 592, at [162]. 173 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] [2016] NZCA 462 at [71]–[98] with [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3.

the way up to the ministerial level is required to take the [NAME] into account and be sufficiently conversant with the justification requirements of it. It will, the [NAME] say, impose a cost and time burden on the business of [NAME] leading to an overly formalistic approach to [NAME]-making. [144] In response, the respondent points to the factors identified in the High Court judgment as impacting on the scope of the duty,174 and contend that any uncertainty can be worked out on a case-by-case basis. [145] Inevitably predictions about the practical effect of a [NAME] legal development contain an element of speculation. In our view, some of the [NAME]’ concerns may well be overstated but equally we consider [NAME] [RESPONDENT] and [NAME] significantly underestimate them. We are far from convinced that any benefit from recognising an actionable universal process duty outweighs the cost of the [NAME] burden it imposes and the costs of the inevitable litigation it will spawn, including litigation about the scope of the duty. [146] Indeed, if a real-world illustration of the problems was needed, it is this very case. [147] The [NAME] that had been made by the Director-[NAME] was a carefully considered one and in accordance with the statutory criteria under the [RESPONDENT]. Those criteria were consistent with what the Judges in the Supreme Court in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] had identified as being relevant to justification under the [NAME].175 It is almost certain in our view that a court would have confirmed the [NAME] was a justified limit on the s 11 freedom and therefore lawful. Yet, the [NAME] was held unlawful and set aside resulting in a reconsideration, which took almost a year to complete, and which must have consumed significant [NAME]. It included requiring the Director-[NAME] to consult with [NAME] [RESPONDENT] despite there being no mention of [NAME] in the consultation requirements under the empowering provision.

174 High Court judgment, above n 6, at [95]. The respondent specifically references the nature of the [NAME] and nature of rights involved, the number of people whose rights are affected, and the nature and expertise of [NAME]. 175 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3.

[148] We were also provided with affidavit evidence stating that as a result of the [NAME], 13 of the 14 affected [NAME] contacted the Director-[NAME] expressing various concerns directly arising from the [NAME]. These included legal uncertainty and concerns that the [NAME] were coming under pressure from [NAME] and threats of litigation. As a result of the uncertainty, several also requested extensions to compliance dates with what was an important [RESPONDENT] measure. [149] In all these circumstances it is difficult not to see the reconsideration as a wasteful and ultimately pointless exercise. The case also demonstrates the risk of satellite and gaming litigation that recognition of a procedural duty may generate. It obviously incentivises claimants who know they are unlikely to win on a substantive challenge to attempt to impugn the [NAME] solely on technical procedural grounds. [150] In her dissent, [NAME] suggests that if the Judge did err in this case, it was not in his recognition of an actionable process duty but in the remedial response. She considers that this case was unusual because of the way in which the process duty came to be considered on a stand-alone basis.176 In her view, the illogicality of a [NAME] being quashed for failure to consider the [NAME] when the [NAME] is in substance rights consistent will be avoided by a court’s exercise of its remedial discretion.177 [151] In response, we would make three points. [152] The first is that the Court of Appeal decisions overturned by the [NAME] in [COMPANY],178 and Belfast City Council,179 were not stand-alone cases and yet [NAME] decisions were quashed for procedural failings. [153] The second is that the need to have recourse to remedial discretion to avoid illogicality highlights the doctrinal confusion created by importing into human rights law the concept of mandatory relevant consideration. As mentioned, the latter is

176 See below at [207]. 177 See below at [167], [191]–[192] and [200]. 178 [NAME]) v [COMPANY], above n 108. 179 [COMPANY] for Judicial Review, above n 119.

derived from orthodox judicial review which is focused on process and not merits. Hence the reason why a defining feature of a mandatory relevant consideration is that a failure to consider it generally renders the [NAME] unlawful which is precisely why [NAME[NAME] invalidated the Director-[NAME]’s [NAME]. In contrast to orthodox judicial review however, human rights law involves the application of a substantive constraint. As we have said, the [NAME] itself is all about rights-consistency and outcomes. [154] Thirdly, if [NAME[NAME] is correct and the outcome in all cases will in any event turn on substantive justification, the question arises — what then is the point of having an actionable process duty? It can only be that it will promote a culture of justification amongst [NAME] [NAME[NAME]. But will it? Or will it as we (and the [NAME]) consider much more likely result in undue formalism, unnecessary delay and [NAME] costs as well as unnecessary litigation? In this regard, the wide range of s 3 actors who will be subjected to the process duty is highly relevant. Unlike [NAME[NAME], we are unable to view the [NAME] scenario with equanimity. Summary of conclusions [155] Drawing all these threads together, the majority of the Court has reached the following conclusions: (a) The duty adopted by the High Court is not part of [NAME] [RESPONDENT]’s current law and nor does it represent a desirable development mandated by the [NAME]. (b) Any benefits that might result from recognising such a duty are limited and far outweighed by well-founded concerns of practicality, undue formalism, doctrinal confusion and uncertainty. (c) The [NAME] is not generally a mandatory relevant consideration for a s 3 [NAME]-[NAME] to take into account unless there is an express provision to that effect in the empowering legislation. Absent such an express provision, the failure to undertake a [NAME] analysis does not give rise to freestanding illegality.

(d) The High Court erred by holding that the [NAME] creates an actionable process obligation on all s 3 [NAME[NAME] to undertake a [NAME] assessment if rights under it are engaged. (e) The High Court also erred in finding that through a failure to expressly undertake a [NAME] assessment prior to issuing the directions under s116E of the [RESPONDENT], the Director-[NAME] acted unlawfully. [156] It follows that the appeal must be allowed. The ruling that the Director-[NAME]’s [NAME] to issue the fluoridation [NAME] was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the [NAME] is set aside. Costs [157] In the event that the appeal was to succeed, the [NAME] sought costs on the appeal. They submitted that while there was a [NAME] interest in the case, [NAME] [RESPONDENT] was not acting in the [NAME] interest. Rather its persistent opposition to water fluoridation demonstrated that it was a group pursing a particular set of political ideological ends. [158] A survey of litigation in which [NAME] [RESPONDENT] has been involved demonstrates that there have been costs awards made against it in some cases but not others.180 [159] On balance we consider this is a case where no costs award should be made. [NAME] [RESPONDENT] was a respondent to an appeal which raised an important issue of law, sufficiently important for this Court to decide to convene a [ADDRESS]. [160] The costs award made in favour of [NAME] [RESPONDENT] in the High Court must however be set aside. Counsel advised us that the costs have already been paid. They must therefore be refunded in light of this judgment.

180 For example, [NAME] [RESPONDENT] was ordered to pay costs in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3, at [146]; and in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [COMPANY] [2022] NZHC 2389 at [30]. No cost award was made against [NAME] [RESPONDENT] in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME]-[NAME] [2014] NZHC 2487 at [54].

Outcome [161] In accordance with the views of the majority, the appeal against the [NAME] of 10 November 2023 is allowed. [162] The ruling that the [RESPONDENT]’s [NAME] to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the [NAME] [RESPONDENT] of Rights Act 1990 is set aside. [163] We make no award of costs in relation to the appeal. [164] The costs award made by the High Court in favour of the respondent is set aside, and the costs paid to the respondent refunded. [NAME] [165] I write separately because I disagree with the majority that the High Court erred in holding that the [NAME] [RESPONDENT] of Rights Act 1990 (NZBORA) can give rise to a procedural obligation on a [NAME] [NAME]-[NAME] (as defined in s 3 of NZBORA). I also disagree that the High Court erred in holding the Director-[NAME] was required to consider and be satisfied that his [NAME] under s 116E of the [RESPONDENT] 1956 to direct [NAME] to add fluoride to water was a reasonable limit on the right to refuse medical treatment under s 5 of NZBORA (the procedural obligation). [166] I consider that, unless the empowering statute under which the discretionary [NAME] power is exercised clearly excludes this, NZBORA gives rise to both a procedural requirement and a substantive constraint on the [NAME] [NAME]-[NAME].181 The procedural requirement arises because of the importance of NZBORA rights, reflected in NZBORA’s purpose to affirm, protect and promote human rights and fundamental freedoms in [NAME] [RESPONDENT] and to affirm [NAME] [RESPONDENT]’s commitment to

181 That is, a [NAME]-[NAME] under s 3 of the [NAME] [RESPONDENT] of Rights Act.

the International Covenant on Civil and Political Rights,182 and because NZBORA applies to [NAME] [NAME[NAME]. The substantive constraint arises because s 5 requires that the rights and freedoms affirmed in NZBORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (a “reasonable limit”). [167] The procedural requirement is a mandatory relevant consideration for [NAME] but, because [NAME] must be satisfied that the [NAME] is a reasonable limit (a legal test, in its application involving mixed questions of fact and law), the court determines compliance with that legal test, giving appropriate deference to [NAME]’s assessment of this. This means the appropriate relief (if any) will not necessarily be a direction that [NAME] reconsider their [NAME] if they have not complied with the procedural requirement, although that may be appropriate in some situations. Nor will it be necessary to rely on the unreasonableness ground of review if [NAME] has considered whether their [NAME] is a reasonable limit on a NZBORA right but has got the balance wrong. That is because, unlike mandatory relevant considerations in other reviewable discretionary decisions, compliance with s 5 is ultimately an assessment for the court. [168] My reasons follow. First principles [169] A [NAME] [NAME]-[NAME] is required to exercise discretionary powers lawfully, that is, within the discretion vested in them. The breadth of the discretion granted depends upon the grant. As a matter of [NAME] principle, even where no express limitations are imposed in the grant, a discretionary power must be exercised “in accordance with the object and policy of the legislation by which it is conferred and in accordance with the principles of judicial review”.183

182 [NAME] [RESPONDENT] of Rights Act, long title. 183 [RESPONDENT] “Grounds for Judicial Review: Illegality in the Strict Sense” in [NAME] (ed) [NAME] (2nd ed, [COMPANY], Oxford, 2009) 615 at [14.05].

[170] A mandatory relevant consideration for a discretionary statutory power arises when the statute expressly or impliedly identifies that consideration as one that as a matter of legal obligation must be taken into account.184 It includes:185 … matters so obviously material to a [NAME] on a particular project that anything short of direct consideration of them … would not be in accordance with the intention of the Act. [171] Section 3(b) of NZBORA applies to acts done by any person or body in the performance of any [NAME] function, power, or duty conferred or imposed on that person or body by or pursuant to law.186 Section 5 provides that the rights and freedoms affirmed in NZBORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. If a [NAME] [NAME] is making a [NAME] that limits a NZBORA right, it may only do so if it is a reasonable limit in terms of s 5 or if the empowering legislation requires otherwise. [172] Since a [NAME] [NAME]’s [NAME] is constrained in this way, when a [NAME] will have the effect of limiting a NZBORA right, that limit is a consideration that is “so obviously material” to the [NAME] that “anything short of direct consideration” will not be in accordance with the empowering statute under which the [NAME] [NAME]-[NAME] acts. This will be so unless the statute itself clearly addresses where the balance between the limit to the right and other considerations relevant to the [NAME] is to lie, or otherwise excludes consideration of the limit to the NZBORA right. Given the importance of NZBORA rights, this exclusion would need to be clear. In other words, the procedural requirement to consider whether, if the [NAME] engages

184 As it was put by [NAME] in [COMPANY] [NAME]-[NAME], above n 168, at 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a [NAME] invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the [NAME].” 185 At 183. [COMPANY] v Minister of [NAME] and [NAME] [2025] NZSC 197, [2025] 1 NZLR 1021 at [50] for a recent endorsement of this long-established point. The pressing concern of climate change for [NAME] [RESPONDENT], [NAME] [RESPONDENT]’s international commitments to reduce greenhouse gas emissions, the connection between the subject matter of the statutory power of [NAME] and greenhouse gas emissions and the absence of a framework for addressing those climate change implications meant that climate change was so obviously relevant to the [NAME] as to be a mandatory relevant consideration: see at [86]–[88]. 186 Section 3(a) applies to acts done by the legislative, executive, or judicial branches of the [NAME] [RESPONDENT]. As noted by the majority at [20], in this case we are only concerned with actors under s 3(b).

a NZBORA right, any limit to a NZBORA right is a reasonable one arises as a matter of statutory interpretation, with the starting point being that NZBORA applies to a s 3 [NAME] [NAME]-[NAME]. Cases [173] Prior to [NAME] v [RESPONDENT],187 the reasonably consistent view of the [NAME] [RESPONDENT] courts treated NZBORA as a mandatory relevant consideration in the exercise of a statutory discretionary power of [NAME] when a relevant right was engaged. The issue was not so much whether it was required to be considered, but what the court’s role was beyond that.188 [174] For example, as at 2013 [NAME] [NAME] described the current state of the cases this way:189 Outside the delegated legislation context, very few examples exist of High Court judges making a direct assessment of the proportionality of an exercise of [NAME] power. Some judges have refused to accept even the prior proposition that [NAME] [NAME[NAME] are themselves obliged to exercise their power in individual cases in a manner that is consistent with the constraints imposed by s 5. Others accept that [NAME] authorities are themselves obliged to act consistently with s 5 of the [NAME] Act, but nevertheless argue that it is not the court’s role to police compliance by themselves undertaking a proportionality inquiry. Instead, they tend either to collapse the inquiry into an orthodox assessment of whether the [NAME] Act has been “taken into account” or to adopt a form of hybrid inquiry in which the adequacy of the [NAME] consideration conducted by the first instance [NAME]-[NAME] is, in some way, assessed. In sum, more than 21 years following its enactment, there is little sense from the case law that proportionality review under the [NAME] Act has become an accepted or normalised element of the judicial control of [NAME] power. [175] The [NAME] of this Court in [NAME] v Chief Executive of Department of [NAME] provides an example of the acceptance that s 5 operated as a mandatory

187 [NAME], above n 1. 188 See, for example, [NAME] “The [NAME] in [NAME]: Taking Stock and Suggesting Some Reassessment” (2013) 25 NZULR 866; [NAME] “Settling the Approach to Section 5 of the [NAME] in [NAME]: Justification, Restraint and Variability” (2021) 19 NZJPIL 97; and [NAME] “Sources of Resistance to Proportionality Review of [NAME] under the [NAME] [RESPONDENT] of Rights Act” (2013) 11(1) NZJPIL 123 at 138. 189 [NAME], above n 188, at 138 (footnotes omitted).

relevant consideration.190 The case concerned a media request to interview a [NAME] on camera for a [NAME]. The [NAME] 2005 (Regulations) prohibited interviews by the media with a [NAME] without the prior approval of the chief executive and the [NAME].191 Regulation 109 set out expressly what the chief executive was required to consider in deciding whether to give approval,192 and the matters of which the chief executive was required to be satisfied;193 it also authorised the chief executive to give approval subject to conditions.194 There was no mention of the right to freedom of expression in the Regulations. [176] Nevertheless, the Chief Executive made his [NAME] “fully cognisant of the right to freedom of expression” but was not satisfied, for reasons he gave, that the interests of people other than the [NAME] concerned would be protected, nor that security and order of the [NAME] would be maintained.195 In the judicial review challenging this [NAME] it was common ground that the right to freedom of expression was a mandatory consideration when a request to interview a [NAME] was made under reg 109.196 [177] [ADDRESS] considered the Chief Executive erred in his assessment of this saying: [85] Where, as here, there is a range of options for interviewing prisoners and [NAME] has the ability to impose conditions on any form of interview granted, [NAME] is obliged to consider whether the objectives reflected in the mandatory considerations in reg 109(1) could be met by granting an interview in a format that sufficiently addresses and mitigates the identified risks to safety and good order. That approach is consistent with minimising any impairment of the right to freedom of expression.

190 [NAME] v Chief Executive of Department of [NAME], above n 60. 191 [NAME] 2005, reg 108(2). 192 Namely, the need to protect the interests of people other than the [NAME] concerned and the need to maintain security and order of the [NAME] concerned: reg 109(1). 193 Namely, the [NAME]’s understanding of the nature and purpose of the interview and the possible consequences to the [NAME] and other people of the publication or broadcasting of the interview concerned: reg 109(2). 194 Namely, conditions that were reasonably necessary to address the 109(1) matters: reg 109(3). 195 At [32]. The [NAME] was made by an authorised delegate of the Chief Executive but was treated as the Chief Executive’s [NAME] for the purpose of the proceedings. 196 At [84].

[178] [ADDRESS] was attracted to the view that [NAME] needed to apply some form of proportionality analysis when considering requests for an interview under the Regulations, but considered it unnecessary to determine the broader question of whether [NAME] [NAME]-making under NZBORA should always embrace a full proportionality analysis.[ADDRESS] allowed the appeal.198 It went on to say that ordinarily, “an order would be made directing [NAME] to reconsider the [NAME]”, but it did not do so because of events subsequent to the [NAME].199 It considered the better course was for a fresh application for an interview to be made (if an interview was still to be pursued) and for all the relevant facts and circumstances to be placed before the Chief Executive.200 [179] The outcome in [NAME] was consistent with the usual approach in judicial review to a failure to consider a mandatory relevant consideration. It is for [NAME] to make the [NAME] taking into account that mandatory consideration, and the weight it gives to that consideration is not reviewable except on the unreasonableness ground (applying the Wednesbury unreasonableness test or potentially heightened scrutiny in a human rights context), and so ordinarily the remedy is to set aside the [NAME] and to direct a reconsideration. [180] However, [NAME] commentary suggested this was not necessarily the correct approach in the NZBORA context. For example, [NAME] [NAME] considered it was not enough to simply consider NZBORA, including s 5, as a mandatory relevant consideration;201 instead, [NAME] should apply a “mandatory test approach” and be satisfied that any infringements on the protected right could be justified.202 A s 3 [NAME]’s failure to consider the s 5 balance would, under a mandatory test approach, invalidate the resulting [NAME], regardless of the court’s view as to whether the [NAME] was inconsistent with NZBORA.203 Accordingly, Ms [NAME] argued it did not follow that s 5 could not be a mandatory consideration

197 At [84]. 198 At [92]–[104] and [107]. 199 At [108]. 200 At [109]. 201 [NAME] “The [NAME] in [NAME]: Taking Stock and Suggesting Some Reassessment”, above n 188, at 890 and 896. 202 At 882–883, 890, and 896. 203 At 890–892.

as well as a substantive limit;204 a mandatory test approach imposed both a process obligation and a substantive one.205 [181] In subsequent commentary, Ms [NAME] argued that the substantive limit might be better viewed as applying the wrong test due to a misunderstanding of the law (a legal error), which opened up the prospect that the court could decide for itself whether the test was satisfied but with appropriate deference when the issue is not clear cut and there is room for judgement and evaluation.206 [182] There were, however, other views and emerging uncertainty. For example, in 2006 and 2007 respectively the decisions of [NAME]) v [COMPANY] v [COMPANY] were delivered by the [NAME].207 Also by way of example, the issue was raised in the appeal of the [NAME] in [NAME] v [NAME]-[NAME].208 The case concerned a [NAME] manager’s [NAME] that Mr [NAME], a [NAME], could no longer wear his hairpiece. The High Court Judge treated the failure of the [NAME] manager to consider the right to freedom of expression (s 14 of NZBORA) in deciding that Mr [NAME] could no longer wear his hairpiece as a failure to consider a mandatory relevant consideration.209 The [NAME] was set aside. The [NAME] manager subsequently decided that Mr [NAME] could wear his hairpiece. On appeal the [NAME] did not seek to alter this outcome but rather raised two legal issues, one of which was whether it was necessary for the [NAME] manager to identify the s 14 right and undertake a s 5 proportionality analysis, or whether it was sufficient that the [NAME] limited a right in a manner ultimately justified under s 5.[ADDRESS] of Appeal declined to answer this question because it was moot.211

204 At 896. 205 At 890–891. 206 [NAME] “Settling the Approach to Section 5 of the [NAME] in [NAME]: Justification, Restraint and Variability”, above n 188, at 118–119. Ms [NAME] perspective following [NAME] (SC 70/2022) v [NAME] [2024] NZSC 63, [2024] 1 NZLR 372 is set out in [NAME], above n 69, at 188–193. 207 [NAME]) v [COMPANY], above n 36; and Belfast City Council v [COMPANY], above n 36. 208 [NAME] v [NAME]-[NAME], above n 61. 209 At [98]–[99]. 210 [NAME]-[NAME] v [NAME], above n 66, at [17(c)]. 211 At [28]–[29] and [53].

[183] Another unresolved issue at the time of [NAME] was how the discretionary [NAME]-[NAME] and the court should assess the substantive constraint imposed by s 5: was a full R v Oakes proportionality assessment required in every case, or was it simply necessary to balance the right engaged with other relevant factors and be satisfied that the [NAME] limiting the right should be made?212 Further, if [NAME] took into account the right, to what extent should the court defer to where [NAME] saw the balance as lying? [184] It was against this background that [NAME] was decided. It was not a case where [NAME] had failed to turn its mind to the NZBORA right.213 Two issues before the Supreme Court were whether [NAME] was amenable to review and within s 3(b) of NZBORA, and whether NZBORA imposed a substantive constraint on [NAME]. On the former, the answer was yes.214 On the latter, the Supreme Court said:215 [81] We have found that [NAME] was required to act consistently with the [NAME]. The first issue arising from the parties’ submissions is whether, in a judicial review proceeding, the application of the [NAME] imposes a substantive constraint on [NAME] or simply a procedural obligation. This issue has been the subject of debate in [NAME] commentary. [185] [ADDRESS] went on to make the comments at [82] to [86] that are set out in the reasons of [NAME] for the majority.216 Notably the Court said the NZBORA right is a substantive constraint on [NAME], “rather than simply a mandatory relevant consideration”, and with the result that [NAME] “had to turn his mind to and engage with” the question of whether it was a reasonable limit to the protected right (in that case, freedom of expression).217 This is the language of a

212 R v [NAME], above n 3. 213 The Supreme Court considered that [NAME] had turned their mind to the protected right: [NAME], above n 1, at [125]. The judicial review causes of action in [NAME]- [NAME] were for making an irrational [NAME] in an [NAME] law sense (by not obtaining and having regard to the relevant information relating to the security risks on which the [NAME] was based) and failing to act consistently with the [NAME] by making a [NAME] that unreasonably limited the right to freedom of expression: at [3]. 214 At [59]. 215 Citing, among other items of commentary, [NAME] “The [NAME] in [NAME]: Taking Stock and Suggesting Some Reassessment”, above n 188; [NAME] “Settling the Approach to Section 5 of the [NAME] in [NAME]: Justification, Restraint and Variability”, above n 188; and [NAME], above n 188 (emphasis added). 216 Above at [67]. 217 [NAME], above n 1, at [82]–[83] (emphasis added).

mandatory requirement rather than of an expectation. It is consistent with the Court having earlier stated that, “[w]here the [NAME] applies, obviously [[NAME]] will have obligations to protect the relevant rights”.218 [186] [ADDRESS] went on to discuss how to approach the assessment of the substantive constraint, finding that the court must satisfy itself that [NAME] was a reasonable limit on the right,219 and, in doing so, may have regard to where [NAME] saw the balance as lying.[ADDRESS] said it would expect to see evidence that [NAME] had identified and weighed the right, and given consideration to whether the reasons for the [NAME] made were such as to outweigh the right. This would assist the court.221 As to how the Court would assess s 5, it considered it was “necessary to adjust the steps undertaken as part of the proportionality inquiry to reflect the particular context”.222 It indicated that the “[NAME]/[NAME] analysis may more readily be applied where the legislature or a policy [NAME] have a range of options to choose between”,223 but a “less structured approach may … be more workable in assessing the reasonableness of a limit in cases involving the review of an [NAME] [NAME] of the nature of that in issue here”.224 [187] In A (SC 70/2022) v [NAME] [NAME] (the Minister) had deposed that he was “acutely aware of the significant impact” cancelling a passport could have on a person’s freedom of movement but did not consider whether cancelling A’s passport was a reasonable limit on that right.225 It is true that the Court in A (SC 70/2022) omitted “simply” when it said that [NAME]

218 At [61]. 219 At [84], citing Director of [NAME] v Ziegler [2021] UKSC 23, [2022] AC 408 at [130]–[131] per [NAME] [NAME]. 220 At [86]. 221 At [84]. The footnote “leav[ing] for another occasion on which it arises” (n 118) was to this discussion. It is not entirely clear what the Supreme Court was here contemplating: see, for example, [NAME], above n 69, at 188. However, given the emphasis the Court placed on [NAME] having to turn its mind to and engage with the protected right, I suggest the footnote may be leaving open for consideration the court’s remedial response in a case where it does not have evidence of [NAME]’s view on where the balance lay and so has not been assisted in its substantive assessment by [NAME]’s assessment of the balance in a situation where that assistance may be important. 222 At [89]. 223 At [90]. 224 At [91]. This more flexible approach to assessing the substantive constraint imposed on s 5 addresses a concern of [NAME] [NAME] in [NAME]) v [COMPANY], above n 36, with the approach that the Court of Appeal had taken in that case. 225 A (SC 70/2022), above n 71, at [139].

[NAME] endorsed the approach “to the effect that rights under the [NAME] constrain the outcome a [NAME]-[NAME] may reach, rather than being a mandatory relevant consideration”.226 However, it went on to emphasise that [NAME] “must” turn their mind to and engage with whether it was reasonable to limit the rights affected by their [NAME].227 [188] It did so after noting the respondent’s argument that the focus was on substantive compliance “not formalism”, relying on [NAME] [NAME] observation in Belfast City Council that either the [NAME] infringed the relevant right under the [NAME] or it did not and, “[i]f it did not, it would not matter if the [[NAME]-[NAME]] had never heard of [the right under the [NAME]]”.[ADDRESS] agreed that substantive compliance was a legal issue for the court to resolve, but said that did not mean [NAME] did not need to engage with NZBORA. Rather, because it was a substantive constraint on [NAME], [NAME] “must” turn their mind to the right and engage with whether it was reasonable to limit the right.229 [189] Again, “must” is the language of a mandatory requirement rather than an expectation. Put another way, unless [NAME] is legally required to turn their mind to this, the court could not say that this is a “must” requirement. I therefore do not read the “must” requirement as endorsement of the integrated approach advanced by the [NAME] in this case. Rather, I consider this is consistent with the Court in [NAME] having endorsed the United Kingdom approach that the court was to address substantive compliance with the right, but not necessarily endorsing that jurisdiction’s approach that [NAME] was not required to do so. [190] [ADDRESS] in A (SC 70/2022) accepted that, if the statutory grounds for cancelling a passport were made out, it was likely cancellation would be a justified limit on the holder’s rights. If it was a justified limit on rights (a matter for the court to satisfy itself of) the Court considered that a failure by the Minister to address the

226 At [137]. 227 At [138]. 228 At [137], quoting Belfast City Council v [COMPANY], above n 36, at [13]. 229 At [138].

issue “would not be fatal to the validity of the [NAME]”.[ADDRESS] went on to say that this did “not mean those advising the Minister should feel free not to address the issue”.231 I do not regard this language as supporting an expectation rather than a requirement. Rather, I consider that here again the Court was emphasising the need for the NZBORA limit to be addressed by [NAME], even though a failure to do so would not necessarily be fatal to the “validity” of the [NAME] if it was not addressed. [191] [ADDRESS]’s observation that it would not be fatal to the “validity” of the [NAME] if the limit was a justified one under s 5 (that is, a “reasonable limit” as I have defined earlier) follows from the fact that s 5 is a substantive constraint. All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.232 In judicial review, relief is always discretionary,233 and one of the reasons it may be declined is where it would serve no practical purpose.234 In such a case there would be no need to set aside the [NAME] and so it would remain valid. [192] In a clear case, where the limit to the right was clearly justified even without having the benefit of [NAME]’s assessment, it would be pointless to set aside the [NAME] and require [NAME] to retake it. That is because the point of the mandatory requirement is ultimately aimed at substantive compliance by [NAME]. In a less clear case, where the court’s assessment of substantive compliance would be assisted by [NAME]’s assessment, it may be appropriate for the court to require that or to give [NAME] the opportunity to reconsider its [NAME] (the statute having vested the statutory discretionary power in [NAME] rather than the court) before the court determines substantive compliance.

230 At [140]. 231 At [140]. 232 [NAME] and [NAME] (eds) [NAME]’s Judicial Review (9th ed, [NAME], London, 2023) at [4-066]. 233 At [18-047]; and [NAME] “Remedies Available in Judicial Review Proceedings” in [NAME] (ed) [NAME] (2nd ed, [COMPANY], Oxford, 2009) 793 at [18.50]. 234 [NAME] and [NAME], above n 232, at [18-055]; and [NAME], above n 233, at [18.63]–[18.65].

[193] I do not regard [NAME] v [NAME] as assisting on this issue. It was not a case about the failure to consider a right under NZBORA.235 The [NAME] had taken into account NZBORA and the issue was substantive compliance with s 5. The [NAME] contains no discussion on whether a NZBORA limit gives rise to a procedural obligation on [NAME]. [194] In short, I consider the three Supreme Court decisions do not give rise to a conclusion that a [NAME]-[NAME] is not required to consider and be satisfied a [NAME] complies with s 5. I consider s 5 is a mandatory consideration for [NAME], albeit one that can lead to a different outcome than mandatory considerations in other discretionary [NAME] powers because of the substantive constraint that s 5 involves. Practical issues [195] The [NAME]’ oral submissions emphasised the impracticality of requiring all [NAME[NAME] to be subject to a process obligation when NZBORA rights are engaged by their [NAME]. In making this point the [NAME] said [NAME[NAME] have no clear guidance as to how they satisfy themselves of compliance because [NAME] endorsed a context-dependent approach. It also emphasised the wide array of [NAME] [NAME[NAME] (such as the [NAME] example) and the circumstances in which decisions limiting rights would arise, some of them requiring urgent [NAME]- making (such as in the [NAME] context). [196] I agree with the submission for [NAME] ([NAME] [NAME] | the Human Rights Commission) that these concerns are overstated. In the first place, as their submissions point out, there are numerous examples of s 3 [NAME[NAME] proactively putting processes in place that ensure an intentional and pragmatic approach to identifying rights-engaging decisions and justifying any proposed rights-limiting measure.236

235 [NAME], above n 2. 236 Examples include [NAME] [NAME] 2023; Department of the Prime Minister and [NAME] implications in bills and [NAME] papers ([NAME], [NAME], 16 July 2019); [NAME] The Solicitor-[NAME]’s Prosecution Guidelines (1 January 2025); [NAME] [RESPONDENT] [NAME] [RESPONDENT] of Rights (9 August 2024); and Ministry of [RESPONDENT] | Manatū Hauora Human Rights and the [RESPONDENT] (Compulsory Assessment and Treatment) Act 1992 (8 September 2020). See also Operational Manual (online ed, Immigration [NAME] [RESPONDENT]) at [A16.2].

[197] There is nothing to suggest that the [NAME] example has caused any problems in the past, even though the reasonably consistent view of the courts prior to [NAME] has been that the NZBORA rights are a mandatory relevant consideration. In theory, someone who is removed from a library for wearing an offensive T-shirt could bring a judicial review for failure to consider freedom of expression or freedom of religion, but compliance with the substantive constraint in s 5 is likely to be clear and no remedy would be granted. Where it is not so clear, it does not seem to be unduly onerous to require the [NAME] to have thought about these rights before removing the person from the library. Indeed, simple guidelines may already be in place for librarians reminding them of the need to balance having a safe space for the benefit of all members of the [NAME] and these rights when removing a person for offensive clothing.237 [198] I also accept the submission of the Human Rights Commission that requiring the [NAME] [NAME]-[NAME] to consider whether any limit to a NZBORA right is a reasonable one under s 5 may potentially promote a “culture of justification”.238 While there is commentary that disagrees with this, the reality is that only a very small fraction of [NAME] decisions that implicate rights are likely to reach the courts. [NAME[NAME] to assess the reasonableness of the limit to a NZBORA right ought to facilitate substantive compliance with it in the many cases that do not reach the court. [199] This is not unnecessary formalism but rather reflects that s 3 applies to all [NAME] and governmental actors. It also helps to ensure that the court is not usurping

237 I accept that whether a right is engaged may not always be clear to a [NAME] [NAME]-[NAME]. However, some [NAME] [NAME[NAME] may identify the right as potentially engaged and make an assessment on whether their [NAME] is a reasonable limit. Where the [NAME] [NAME]-[NAME] has not identified that the right is engaged, but the court finds that it is, the court’s remedial response may depend on whether the court will be assisted by evidence as to how [NAME] would have assessed the balance, for example, in a [NAME] involving complex policy considerations. I note that in the case involving compulsory mask wearing, the legislation expressly required a s 5 NZBORA assessment, and the High Court and this Court were satisfied that this assessment had in substance been carried out even though the right to decline medical treatment had not been identified: see [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 172, at [162]–[167]. I therefore do not see the difficulties that may arise in identifying that a right is engaged as sufficiently problematic so as to exclude the procedural obligation. 238 [RESPONDENT] and [NAME] The [NAME] [RESPONDENT] of Rights Act: A Commentary (2nd ed, [NAME], [NAME], 2015) at [6.8].

the power vested in [NAME] to make the discretionary [NAME] where there is more than one way the balance might be struck, as well as potentially assisting the court in determining whether the s 5 test is met. It may also avoid any potential of the court finding that s 5 is not met when, with the benefit of [NAME]’s assessment made at the time of the [NAME], the court might have found otherwise. [200] Nor need it lead to satellite and gaming litigation, that is, seeking review of a failure to comply with the process obligation even when it is clear that a [NAME] is substantively compliant. That is because, if it is clear that a [NAME] is substantively compliant, the [NAME] need not be set aside for [NAME] to retake the [NAME] in a way that conforms with the process obligation. This case [201] In this case, the starting point is that the Director-[NAME]’s [NAME] engaged the right to refuse medical treatment (s 11 of NZBORA). The Director-[NAME] was therefore required to determine whether the limit on this right was a reasonable limit (s 5 of NZBORA) unless the [RESPONDENT] excluded this. The [NAME]’ “fall-back” position was that even if a procedural obligation can arise, it did not arise under s 116E of the [RESPONDENT]. This was because it was a prescribed [NAME]-making process that struck a “deliberate, considered balance between competing concerns, which [NAME] saw as at apt for water fluoridation”. [202] We were not taken to the legislative history of s 116E of the [RESPONDENT] by counsel but, in this respect, it is relevant that s 116E was enacted after the Supreme Court’s [NAME] in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME].239 In that case, two Judges ([NAME] and [NAME] [NAME]) considered on the evidence that the provisions authorising the fluoridation of drinking water limited the right only to the extent that was demonstrably justified under s 5.240 This was because preventing and reducing dental decay was sufficiently important to justify the limit on the s 11 right which was a minimal intrusion and was one of a range of reasonable alternatives to address the problem of dental decay.241 [NAME] considered that [RESPONDENT] and

239 [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], above n 3. 240 At [144]. 241 At [122]–[144].

[NAME] [NAME]’s view related to the power to fluoridate, and this did not require a s 5 analysis. That was because the power could only be exercised in a rights-consistent manner and so the existence of the power was rights consistent. Whether the exercise of the power would comply with s 5 might depend on local conditions.242 [NAME] considered that the Court did not have the evidence which showed “how the Council weighed the human right in s 11 in reaching its [NAME], as it was obliged to do even if authorised to limit rights on a justifiable basis”.243 [203] The Ministry of Justice’s advice to the [NAME]-[NAME] on the Bill which preceded s 116E referred to the [NAME] in [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] and concluded that the proposed power to fluoridate, which was at that stage intended to be exercised by [NAME] [RESPONDENT] [NAME], was a reasonable limit on s 11 if indeed fluoridation were medical treatment.244 It considered that the considerations under what is now subs (2) provided “adequate safeguards to mitigate any intrusion” into the s 11 right.245 A later Ministry of [RESPONDENT] disclosure statement on a supplementary order paper amending the Bill said the Supreme Court had held that adding fluoride to drinking water engaged s 11 and that the Court “also held that the local authority’s power to add fluoride to drinking water was a justified limitation on this right”.246 The first part of this is correct: the majority concluded that adding fluoride engaged s 11. The second part also appears to be a correct reading of [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] in relation to a statutory power to fluoridate. However, there was no majority conclusion that the exercise of the discretion under the statutory power granted would itself comply with s 5.

242 At [175]–[176]. 243 At [223] (emphasis added). 244 [RESPONDENT] with the [NAME] [RESPONDENT] of Rights Act 1990: [RESPONDENT] (Fluoridation of Drinking Water) Amendment Bill (Ministry of Justice | Te Tāhū o te Ture, 2 November 2016) at [8]–[13]. In the High Court, [NAME[NAME] had held that fluoridation did not engage the s 11 right but that, if it did, the scientific evidence before him showed that the power to fluoridate (in that case implied in the [NAME] 2002) was a reasonable limit. This was particularly so in socially disadvantaged areas: [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME] [2014] NZHC 395, [2014] 2 NZLR 834 at [79]–[91] and [111]. 245 [NAME], above n 244, at [12]. 246 Ministry of [RESPONDENT] | Manatū Hauora Supplementary Departmental Disclosure Statement: [RESPONDENT] (Fluoridation of Drinking Water) Amendment Bill (13 May 2021) at 7. The supplementary order paper amended the Bill to give the [NAME]-making power to the [RESPONDENT] rather than [NAME] [RESPONDENT] [NAME]: at 3.

[204] Certainly, s 116E(3)(a) included a mandatory consideration that was relevant to the question of whether a direction to fluoridate water could outweigh the intrusion on the s 11 right, namely the scientific evidence on the effectiveness of adding fluoridation to drinking water in reducing the prevalence and severity of dental decay. The other mandatory consideration in s 116E(3)(b) is consistent with [NAME]’s view that local conditions mattered to whether a [NAME] to fluoridate was a reasonable limit. And it does appear from my overview of the evidence on which [NAME] — the [NAME] of the [NAME] [RESPONDENT] — advised the Director-[NAME] that this was understood.247 This meant that the Director-[NAME]’s [NAME] was very likely substantively compliant with s 5. [205] It might therefore be asked what more a process obligation on the Director-[NAME] to consider compliance with s 5 would add. On the information the Director-[NAME] had before him, the answer is probably nothing. However, what it would ensure is that the Director-[NAME] kept the s 5 requirement in mind in future decisions if the scientific information or local conditions of oral [RESPONDENT] were to change. Moreover, the second mandatory consideration in s 116E(3)(b) is directed to “financial cost” taking into account local conditions, rather than whether the (minimal) intrusion on the right to refuse medical treatment is justified in light of the local population’s oral [RESPONDENT]. Therefore, while I accept that s 116E was intended to be a NZBORA- compliant power, I have concluded it did not exclude consideration of s 5 when the Director-[NAME] exercised the power. In light of guidance from [NAME] [RESPONDENT] [NAME] [RESPONDENT] [COMPANY] v [NAME], consideration of that mandatory test should be a relatively straightforward matter in water fluoridation decisions. [206] It is not within the scope of the appeal to determine if the Judge erred in granting a remedy or in the remedy he granted. In this case the pleadings, in addition

247 In respect of this second mandatory consideration, quite specific information was set about tooth decay of the local population. The Director-[NAME] was advised that fluoride was a safe and effective way to improve oral [RESPONDENT] outcomes by reducing and preventing dental decay, and that this applied to the communities served by the relevant water supply; and that the communities served by the relevant water supply had significant levels of preventable tooth decay and, given the evidence that community water fluoridation improved oral [RESPONDENT] outcomes by reducing dental decay was applicable to that population as was the evidence that these benefits tended to be greater for populations experiencing higher levels of tooth decay, fluoridation of the water supply that served these communities would consequently improve oral [RESPONDENT] outcomes and was likely also to reduce [RESPONDENT] inequities.

to other orthodox judicial review grounds, alleged both that the [NAME] breached NZBORA in a substantive sense as well as a procedural obligation. The procedural obligation (the second ground of review) was framed this way: 172. The NZBORA imposes a substantive constraint on the [[RESPONDENT]] and before making the directions the [[RESPONDENT]] was required to turn his mind to and be satisfied that the directions were a reasonable limit on the right to refuse medical treatment. 173. The [[RESPONDENT]] failed to turn his mind to whether the directions were a reasonable limit on the right to refuse medical treatment. 174. By so failing, the first respondent made an error of law and failed to recognise the application of s 3 of the NZBORA to his exercise of the statutory power under s 116E of the [RESPONDENT]. [207] An unusual feature of this case was that the parties agreed that this second ground of review should be isolated and dealt with as a preliminary legal issue. It was this agreement that led to what the majority consider to have been the wasteful and ultimately pointless exercise when “it was almost certain … that a court would have confirmed the [NAME] was a justified limit on the s 11 freedom and therefore lawful”.248 I agree that this was almost certain here but the isolation of the preliminary question meant the question of substantive compliance was not determined. [208] It follows that I agree with the Judge that the procedural obligation arose, and I would therefore have dismissed the appeal on the scope on which it was brought.

Solicitors: [redacted] [NAME] | Human Rights Commission, [NAME] for [NAME]

248 Above at [147].