In B v Waitemata District Health Board, the High Court upheld the lawfulness of a policy banning smoking on all properties owned or controlled by the Waitemata District Health Board (WDHB).(1) On May 11 2016 the Court of Appeal upheld the High Court's decision.(2)


The 2009 ban covered all WDHB sites, including outdoor areas.(3) Those who challenged the policy placed particular emphasis on the position of psychiatric patients who were compulsorily detained at mental health facilities; as they were not free to leave the facility, they were effectively forced by the policy to stop smoking. The grounds of appeal largely mirrored the arguments made before the High Court and included the following points:

  • the policy was illegal,
  • it had been adopted without taking into account relevant considerations; and
  • it breached a legitimate expectation and violated rights and freedoms contained in the New Zealand Bill of Rights Act (NZBORA).


The Court of Appeal largely endorsed the findings and reasoning of the lower court. The decision emphasised the need to view its powers and decision making within the whole of its statutory context. The court consistently refused to compartmentalise aspects of the WDHB's functions, highlighting the need to view the WDHB's mandate as a whole and avoid interpreting single objectives in a manner that would create the appearance of conflict with other objectives.(4) The court also noted the degree to which the decision to adopt the ban concerned matters of medical practice and judgment and acknowledged that it would be inappropriate for the court to substitute this with its own assessment.

The court's findings regarding the NZBORA largely turned on how the ability to choose to smoke was characterised. The court rejected an attempt by the appellant to frame smoking as an exercise of liberty and an activity aimed at the wellbeing, dignity and autonomy of the individual. The court held that the rights claimed did not entitle persons to unbounded freedom to do as they pleased; the core human interests protected did not touch on the decision to smoke or not.(5) In addition to finding that none of the rights claimed had been violated, the court held that, in any event, the ban would have been a justifiable limitation under Section 5 of the NZBORA.


The court's decision to construe narrowly the rights and freedoms protected by NZBORA is important in light of the nature of the NZBORA scheme. The NZBORA contains two important limitations:

  • enactments will not be void because of inconsistency with any provision of Section 4; and
  • the rights and freedoms contained are subject to such reasonable limits by law as can be demonstrably justified in a free and democratic society (Section 5).

There is merit in re-evaluating the scope of rights and freedoms in line with changing domestic and international views. However, if rights are given an expansive or broad interpretation, it becomes more likely that the limitations in Sections 4 and 5 will be engaged. This is especially the case in situations where the proposed expansion of rights does not reflect societal values. Section 5 permits rights to be limited where such limitation "can be demonstrably justified in a free and democratic society". It would be rare for a court to find that prevailing societal values were inconsistent with what can be justified in a free and democratic society.

What is required is a careful balance between ensuring that:

  • rights and freedoms are interpreted in a manner that provides meaningful protection; and
  • the paramount and inviolable nature of those rights is not diluted by the increased application of Sections 4 and 5.

Over time, such dilution could damage the position of the NZBORA and the rights and freedoms protected by New Zealand's legislative milieu.

For further information on this topic please contact Claire Brighton at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.


(1) B v Waitemata District Health Board [2013] NZHC 1702 (HC).

(2) B v Waitemata District Health Board [2016] NZCA 184 (CA).

(3) For details of the scope of the ban and the status of the claimants please see "High Court upholds smoking ban for hospitals, but not for prisons".

(4) See for example [25], [31]-[33].

(5) See for example [77]-[78].