Tame Te Rangi and Others v Jackson

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 19 October 2015
• Neutral Citation: [2015] NZCA 490
• Docket Number: CA745/2014
• Court: Court of Appeal
• Date: 19 October 2015

BETWEEN

Tame Te Rangi & Ors

Appellants

and

William Wakatere Jackson

Respondent

[2015] NZCA 490

Court:

Randerson, Harrison and Wild JJ

CA745/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court (HC) decision that the appellants had failed to consider relevant information and had followed a flawed process when appointing representatives to a statutory board — selection body was required to appoint two members of mataawaka (Maori who lived in Auckland and who were not affiliated to an Auckland based iwi or hapu) to the Independent Maori Statutory Board — process under cl 6(2) Local Government (Auckland Council) Act 2009 (Selection body chooses mataawaka representatives for board) required that the views of mataawaka be sought — selection body did not receive information about those views other than in letters supporting the candidates — did not decide on the appointments as a collective group but instead held secret ballots — whether cl 6(2) was entirely process driven or whether the selection body had been required to actually take account of mataawaka views — whether the selection body had been required to consider the candidates as a group — whether there had been sufficient information to reach a view on a candidate's appointment.

Counsel:

P F Majurey and P R H Mason for Appellants

T T R Williams and I F F Peters for Respondent

• A The appeal is dismissed.

• B The appellants are ordered to pay the respondent costs for a standard appeal on a band A basis together with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1 The Independent Maori Statutory Board is a body established by the Local Government (Auckland Council) Act 2009 (the Act). One of the Board's primary purposes is to assist the Auckland Council by promoting issues of cultural, economic, environmental and social significance for two defined groups. 1 One is mana whenua – those who are affiliated with an Auckland based iwi or hapu. The other is mataawaka – those who do not enjoy such an affiliation, being Maori who live in Auckland and who are not in a mana whenua group.

2 The Board must consist of seven manawhenua representatives and two mataawaka representatives. 2 They are appointed for a three year local government term by a selection body comprising 19 members who represent separate mana whenua groups. 3 The selection body's sole function is to make these appointments. In discharging this duty it “must be guided only by the Board's purpose, function and powers”. 4

3 The issue arising on this appeal is whether the selection body followed the correct statutory process when appointing Messrs John Tamihere and Tony Kake as the Board's two mataawaka representatives for the 2013 local government election. An unsuccessful candidate for mataawaka selection, William Jackson, sought judicial review in the High Court of the selection body's appointment of Mr Kake, but not of Mr Tamihere. Duffy J found that the selection body acted unlawfully in appointing Mr Kake and set his appointment aside. 5 The selection body now appeals.

Local Government (Auckland Council) Act 2009

4 Clause 6 of Schedule 2 prescribes this process which the selection body must follow when appointing mataawaka representatives:

6 Selection body chooses mataawaka representatives for board

• (1) The selection body must choose the board's 2 mataawaka representatives.

• (2) The selection body must choose the mataawaka representatives by following a process that, at a minimum, —

• (a) includes public notification of the process that the body proposes to use for choosing the representatives; and

• (b) provides an opportunity for nominations to be received; and

• (c) requires the body to take into account the views of mataawaka when choosing the representatives.

• (3) The selection body must apply clause 5 when choosing the 2 mataawaka representatives.

  (Emphasis added).

Background

5 The selection body appointed for the 2010 local body election chose Messrs Tamihere and Kake as the Board's two mataawaka representatives. Mr Jackson was an unsuccessful candidate.

6 The selection body for the 2013 local body election was appointed on 4 May 2013 and was required to complete its function by 31 August 2013. Of the 19 members appointed to the 2013 selection body, 12 had been members of the 2010 body.

7 The selection body met on 4 July 2013 to approve the process for choosing the board members. Two executive assistants provided a range of material including a legal opinion about the selection requirements and an advice paper setting out the appropriate selection process. In particular the selection body was advised that it was required to take into account the views of mataawaka at two stages when selecting the Board's mataawaka representatives: first, when adopting the selection process and seeking nominations and; second, when making its ultimate selections.

8 Apart from resolving at the 4 July 2013 meeting to adopt the criteria represented by this advice, the selection body also approved additional criteria for appointment including (a) knowledge and expertise in te reo, tikanga and matauranga; (b) knowledge of the geographic and socio-political makeup of the Tamaki Makaurau area; (c) knowledge and expertise in areas relevant to local government; (d) strong networks established with manawhenua in local and central government spheres; and (e) acknowledgement as a leader within a candidate's community.

9 On 12 July 2013 the selection body publicly notified its invitation for nominations for the positions of mataawaka representatives including a recital of the criteria, requisite and attributes for selection. Eight nominations were received. But, despite requesting them, the Board did not receive mataawaka views other than in letters from various mataawaka groups tendered in support of candidates. Mr Jackson provided supporting letters from nine different mataawaka groups; Mr Kake was nominated by four persons with mataawaka affiliations but did not provide further supporting material from mataawaka. It also appears that Mr Tamihere spoke directly with Tame Te Rangi, the selection body chair, in support of his candidacy.

10 On 13 August 2013 one of the selection body's executive assistants circulated an agenda for the meeting scheduled for 15 August. The agenda referred to the eight nominees with a table summarising information provided by each. As some of the information was extensive, the executive assistant declined to supply it to members through email. She did advise, however, that hard copies would be available for review at the meeting.

11 An advice paper was included with the agenda, proposing these two options for selecting mataawaka representatives:

• (a) Setting up a subgroup to meet for an hour and prepare a shortlist of four nominations, followed by a reconvened meeting of the full selection body. After discussing the attributes of each shortlisted nominee, each member would be polled to identify the two candidates which he or she supported; and

• (b) Alternatively, avoiding the short listing step, the selection body would generally discuss the merits of each candidate. Then on a show of hands the body would determine which of the candidates had support. A more detailed discussion would follow about those candidates who had support and later each member would be polled.

12 As scheduled, the selection body met on 15 August 2013. The first part of the meeting, from 10.30 am, was devoted to selection of the manawhenua representatives. Consideration of selection of the mataawaka representatives started at about 12.15 pm. Even though 18 members of the selection body were present (one was absent), only seven bundles of each nominees full nomination material were distributed.

13 The selection body decided for reasons that are not apparent not to adopt either of the selection options outlined in the agenda. Instead of considering as a body the merits of each nominee, the members moved immediately to adoption of a secret ballot process. Mr Te Rangi advised the members to use the lunch break scheduled for 12.30 pm to consider the documents before voting. By 1.15 pm all voting papers had been handed in. The results were announced, Messrs Tamihere and Kake were declared to be the mataawaka appointees and the meeting closed with a karakia.

High Court

14 Mr Jackson pleaded various causes of action. Duffy J neatly summarised his case as being that:

• [82] … in a number of ways the appointment process led to the selection body failing to take into account the views of mataawaka. The first respondents accept that they were required to take the views of mataawaka into account. The core of their defence is that they have satisfied this obligation. I propose to focus on who is right. This involves addressing part of the illegality grounds and the failure to take account of relevant considerations together.

15 The Judge comprehensively recited the competing arguments and principles. She also recited at length the narrative of events occurring at the meeting based on affidavits which are not relevant to our approach on appeal. She found that the selection body erred in a number of ways, principally in that: (a) its level of information on mataawaka views about Mr Kake was inadequate to enable it to discharge its statutory function; 6 (b) it had insufficient time to make an informed decision; 7 and (c) it failed to act as a body when making appointments because its decision was based on a secret poll without any collective discussion beforehand. 8 It is unnecessary for us to recite or address the Judge's decision in more detail...