Tame Te Rangi and Others v Jackson

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date19 Oct 2015
Neutral Citation[2015] NZCA 490
Docket NumberCA745/2014

[2015] NZCA 490

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, Harrison and Wild JJ

CA745/2014

BETWEEN
Tame Te Rangi & Ors
Appellants
and
William Wakatere Jackson
Respondent
Counsel:

P F Majurey and P R H Mason for Appellants

T T R Williams and I F F Peters for Respondent

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.

The issue was 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; and whether there had been sufficient information to reach a view on K's appointment.

Held: Clause 6(2) was prescriptive. The process prescribed by Parliament did not exist in a vacuum or for its own ends. The words of cl 6(2)(c) were plain and unequivocal in stipulating that the process adopted had to require “the body to take into account the views of mataawaka when choosing the representatives”. The process existed for the substantive purpose of ensuring that the selection body actually took account of mataawaka views: otherwise, what was the rationale for mandating a process requiring mataawaka views to be taken into account if, ultimately, they were not?

The selection body's consideration of mataawaka views was mandatory because they were of general and obvious importance ( CREEDNZ Inc v Governor-General). Mataawaka in Auckland comprised about 100,000 people. The group was diverse and diffuse without a unified voice. Parliament recognised that mataawaka had to be represented on the Board; and a process was mandated for the selection body to identify and heed mataawaka views, however difficult and imperfect the process might be.

TR's alternative submission that the selection body had taken into account mataawaka was beside the point, given the selection body's failure to act as a body when making its appointments. The legislature plainly expected that the selection body would undertake a collective assessment of each candidate's merits, with members exchanging, debating and evaluating individual views guided by the overriding consideration of what appointments would best serve the Board's purpose, function and powers; and that by sharing the information, knowledge and experience possessed by its individual members the selection body would reach a decision on the best candidates.

This essential issue was properly identified in the advice paper circulated with the agenda for the meeting. Both the recommended processes required the selection body acting as a body to consider individual applicants, either by discussing the attributes of shortlisted nominees or generally discussing each nominee. The selection body's adoption of this advice, particularly of the second option would have pre-empted a successful challenge to its decision.

The selection body could not be criticised for its procedural decision to call for expression of mataawaka views when publicly notifying its invitation for nominations for mataawaka representatives on the Board. The selection body faced difficulties because of the inadequacies of the response. The availability of information sheets, the names of those who nominated individual candidates, reminders from the chair about statutory duties and an invitation to members to discuss each candidate's merits did not rectify the problem. However, in the absence of formal expressions of mataawaka views, members of the selection body were entitled to take into account their own personal knowledge of those views and the candidates. The selection body's failure to act as a body meant that this knowledge was not shared at group discussion.

By acting as a collective entity in this way the selection body would have (a) been sufficiently informed about a relevant factor insofar as it was required by the statute ( McGrath v Accident Compensation Corporation); and (b), provided it kept accurate minutes of its deliberations, been able to show that mataawaka views were taken into account ( Whakatane District Council v Bay of Plenty Regional Council). Once it had followed these steps, the selection body's decision would have been beyond challenge. The weight given to mataawaka views within the statutory framework and in conjunction with the selection body's own criteria above was solely within its discretion.

The LG Auckland Act did not mandate that mataawaka views should be related to the merits of a particular candidate. The selection body would be entitled to take into account mataawaka views more generally as they related to the Board's purpose, function and powers and then to assess how they might best be enhanced by a particular candidate. A requirement to take into account mataawaka views did not equate with an obligation on a candidate to prove mataawaka support and the Judge erred in appearing to conflate the two concepts.

The selection body's decision could not be dictated by a numerical contest based on letters of support for various candidates. Those letters were no more than part of the information which was to be taken into account.

The entire selection process was unlawful and the Judge correctly set aside MK's appointment to the Board. T's appointment suffered from the same defect in that it was the consequence of an unlawful process. However, it could not be set aside his appointment for two reasons. First, he should have been joined to the HC proceeding as a party whose interests were directly affected by the application but was not joined. Second, no relief was sought against him in the HC.

If the selection body was reconstituted to undertake the appointment process for the duration of the existing local government term, it would be inappropriate for members of the selection body to entertain approaches from individual candidates.

Appeal dismissed.

JUDGMENT OF THE COURT
  • 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.

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...

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