Court could quash council fluoride 'yes' vote
Council lawyers have warned the courts could overturn any "yes" decision of fluoridation if two Hamilton councillors take part in tomorrow's debate.
Councillors Ewan Wilson and Martin Gallagher, both also district health board members, have been warned by council lawyers that if a vote they are part of to resume fluoridation is challenged, and they are found to have held a predetermined position, the courts could quash the decision.
The pair are relying on legal advice from health board lawyers Buddle Findlay that they did not have a conflict of interest merely because the DHB was pro-fluoride.
Responding to that legal advice at the behest of council chief executive Barry Harris, Tompkins Wake said the legal threshold for predetermination was high, with plaintiffs having to prove predetermination rather than bias, and actual, not apparent predetermination, because of the inherent political nature of elected members' jobs.
Tompkins Wake said it was important to manage the risk of any legal challenge.
"In the present circumstances, councillors Gallagher and Wilson agreeing to step aside from the decision on whether to fluoridate the water supply will avoid the risk of predetermination being raised as basis for judicial review, and is recommended."
Anti-fluoride campaigners are watching closely as they look for any legal avenue to challenge a resumption of fluoridation. Some have already called for the decision to be deferred until the result of judicial reviews elsewhere are known.
Safe Water Alternative NZ co-ordinator Trevor Crosbie said both councillors "clearly" held predetermined and biased positions. He said city politicians who had committed to abiding by the referendum also held fixed views.
But Wilson was confident he had an open mind, and ruled out standing down. He said the law was clear and the threshold for proving predetermination was high.
Gallagher late yesterday had only just seen the fresh advice and was still digesting it, "but at this stage I'm participating".
Mayor Julie Hardaker said councillors made their own decisions on matters of conflict.
"The legal advice says that if the DHB councillors choose to participate, it puts the council at risk of judicial review of a council decision being quashed.
All councillors have a responsibility to protect the council from risk, and therefore to ensure that their actions do not create risk for the council."
The referendum on tomorrow's agenda was held at October's elections, the result decisively in favour of overturning the earlier council decision to remove fluoride. Of 36,403 valid votes indicating a preference, 68 per cent wanted fluoride returned to their water.
Should the council order a resumption, it would take 6-8 weeks for it to be reintroduced across the city.