Attorney-General v Ireland

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/01

BETWEEN	THE ATTORNEY-GENERAL
Appellant

AND	KEVIN IRELAND AND ROBYN LANGWELL
Respondents

Hearing:	6 March 2002
Coram:	Keith J Blanchard J McGrath J
Appearances:	M T Parker and L M Hansen for the Appellant S J Mills for the Respondents
Judgment:	20 March 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

Introduction

North Head, a prominent Auckland headland, overlooks the Waitemata Harbour and Rangitoto Channel. For about a century it was used for defence purposes, being classified under the relevant legislation as a reserve for public defence until 1972. From 1972 to 1980 it was classified as a reserve for recreational purposes and in 1980 it received its current classification as a reserve for historic purposes. According to the Department of Conservation (DOC), that final classification recognises its importance to all major iwi in the area (it contains remains of pre-European occupation) and its key role in Auckland’s coastal defence from the 1870s to the disbanding of the coastal defence units in 1958. It contains gun batteries and buildings from all periods of New Zealand’s coastal defence history and it provides a link to the country’s part in an imperial defence system and to its involvement in two world wars. It contains good examples of early New Zealand design and engineering and is also home to the last of the emplaced 19^th century “Disappearing Guns” anywhere in the world. The extensive tunnel network, gun emplacements, summit buildings and plantings that remain are of national historical significance. For the New Zealand Historic Places Trust, North Head is the most significant historical coast defence site in the country.
DOC is now the administering body for the reserve under the Reserves Act 1977. In February 1999 it assumed occupation of two Second World War buildings situated on the reserve for the purpose of accommodating its Auckland Area Administration office and it has since used and intends to continue using the buildings for that purpose. (There are six other remaining buildings dating from 1885, 1911 and 1940.) The Auckland Area Administration extends beyond North Head to cover an area from the Weiti River south including the conservation islands of the inner Hauraki Gulf. In the High Court, Potter J agreed with the respondents’ claim that DOC’s use of the reserve for the purposes of accommodating that office is unlawful because it is in breach of certain provisions of the Reserves Act. The Attorney-General, on behalf of DOC, appeals.

The facts and the High Court Judgment

The only evidence before the Court was an affidavit by Mr Murray, the Community Relations Manager for the Auckland Conservancy of DOC. To quote Potter J, the affidavit highlighted a number of points:
The first is that the historic buildings on the reserve were dilapidated and the victims of vandalism at the time the Department assumed responsibility for the reserve. There was also a large fence around them preventing access both to the buildings and to the top of North Head itself. Mr Murray also details the need to find premises for a control centre for the Auckland Area. His evidence is effectively that the Department saw the opportunity to kill two birds with one stone. … [H]e deposes that the establishment of the office would provide –
… not only benefits to the Auckland areas as a whole, by providing an administration facility, but also the following benefits to the reserve itself:
•   Opening up of the summit to the public
•   Provision of visitor information
•   Improved security and protection for the site
•   Improved security for visitors
•   Reduced vandalism
•   Means of restoration for two of the summit buildings
•   Improved overall management of the reserve
On the matter of the purpose behind the Departmental occupation of the buildings the Judge also referred to the following passage in the North Head Historic Reserve Conservation Management Plan, approved in September 1999:
The occupation of the buildings for administrative purposes – without workshop or a workshop storage facility – is desirable for the proper and beneficial management, administration and control of the reserve. The buildings are being occupied to maintain them, and reduce the problems, such as vandalism, in the reserve. This act of occupation is in itself desirable. The integrity and security of the buildings is maintained and this is important. The fact that there is also the purpose of administering the reserve adds to this.
…
[The second listed Detailed Management Objective is to] [M]aintain an administrative presence on the summit consistent with the proper and beneficial management, administration and control of the reserve in no more than two of the historic buildings. [s58(d) Reserves Act 1977 [quoted in para [14] below]]. Ensure that the departmental use of historic buildings has no significant adverse effect beyond the boundary of the reserve. [s4(3)(b) Resource Management Act 1991].
That plan had been published in draft in February 1999, the month DOC moved its Area office into the buildings. Almost 800 submissions were made on the draft. The submissions were considered in hearings held in May and the two respondents who had made submissions spoke at the hearings. A further meeting was held in July to advise the submitters on progress towards resolution of the draft plan, and again the respondents attended. On 14 September 1999 the Auckland Conservation Board approved the plan under s17F of the Conservation Act 1987. In the course of that process there was considerable public debate over the future of the remaining buildings as a result of the proposals included in the draft plan released at the beginning of 1999. According to Mr Murray,
17.      Submissions received on the draft conservation plan covered a range of possibilities for future use of the buildings, from removal of all to retention of all. There was a clear community view that the fence should be removed and the summit opened up. There was also general support for the retention of the four most significant buildings. Beyond this there was a spread of opinion with a general divergence in views between the heritage interests and local residents who wished to have more open space.
18.      There is strong community opposition to any “commercial” activities in the buildings but this tends to relate to inappropriate uses or activities having no specific relevance to the site. The concern is largely about off site impacts, such as traffic and parking congestion in neighbouring streets, anti-social behaviour and activities that do not fit with the quiet community character.
19.      There was however, acceptance that some uses were appropriate. There was a strong plea for public uses such as interpretation, education, interactive displays, use by other conservation or local organisations and a resident caretaker.
The Auckland Area offices were established in the two buildings in February 1999 providing DOC, in Mr Murray’s words, with an essential administrative facility. That action was taken in advance of completing the Conservation Management Plan and in terms of the resource consents required under the Resource Management Act 1991. Mr Murray concluded his affidavit with this passage:
22. Local residents initially objected to the presence of the Area Office as they saw this as perpetuating the occupation of the fenced summit by government agencies. The fence was removed on 15 December 1999 and there was a dramatic drop in vandalism, which was due apparently to the Department’s presence. Since then, support for DOC’s occupation of the reserve has increased. Since the meeting on 7 October 1999 no complaints have been received by DOC and a number of comments made to me have been positive.
23. On 7 October 1999 a public meeting was convened in Devonport on behalf of DOC. The meeting was publicly advertised through the local newspaper and by delivering letters to everyone within 1.5 kilometres of North Head. About 50 people attended the meeting which I chaired including the plaintiffs. The purpose of the meeting was to advise residents that the Conservation Management Plan for North Head had been approved and to seek feedback from the community on the implementation of the plan. The approved plan provided for the occupation of buildings by DOC for administrative purposes. The plan also permits use of the buildings where such use contributes to public enjoyment of the reserve. This includes the food and beverage area which is usually complemented by an attraction such as an interpretative display or gallery (Plan 5.8.4).
Mr Murray’s evidence was not challenged by the respondents in the High Court or this. Nor was there any challenge in this Court to the Judge’s conclusions, essentially based on that evidence, about the purposes which motivated the Department’s decisions. She said this:
[29] The plaintiffs allege that the Department’s dominant purpose in establishing the office was to provide an administrative facility for the Auckland area. Any benefits for the reserve are, in their submission, merely collateral. I am not sure the evidence carries them that far. It is clear that the Department was motivated both by a need for administrative facility and the need to take action regarding the preservation, protection and enhancement of the North Head Reserve and the buildings on it. It is debatable which of these goals was “dominant”, and I am not sure that such a determination would assist in this case.
…
[31] Whether or not the establishment of a presence on North Head was the dominant purpose of the Department, it was, I believe, clearly a significant reason for the decision. That purpose is within the scope of s58 [set out in para [14] below]. The other reason, the provision of administrative facilities for the Auckland Area, is not. Nor can it be said that providing a location for the Auckland Area control centre was merely a collateral benefit. It was a material purpose, as was the establishment of a general presence on the reserve. The issue is whether the presence of an invalid purpose alongside a valid purpose is fatal to the Department’s purported exercise of power under s58.
That important paragraph of the judgment refers to s58 of the Reserves Act. It was because the Department, in the Judge’s view, had not acted within the scope of that provision that she held that its action was unlawful:
[35] Applying that test [stated in authorities she had just considered about relevant and irrelevant purposes and factors], I conclude that the action of the Department must be unlawful. Section 58 is clear that the powers conferred may only be exercised for the benefit of the reserve in question. Any buildings must be necessary for the purposes of the reserve. Consideration of the wider needs of the Department of Conservation or other reserves is not permissible. I have no doubt that the need to find a home for the Auckland Area office was a material consideration in the decision reached. Had there been no need to house the office, it would not have been decided to locate it on North Head.
[36] Support for that conclusion is gained by referring back to the general purposes of the Act (s3) – to provide for the preservation and management of areas possessing historic, cultural, educational, community or other special features; to the purposes relating to historic reserves (s18) – protecting and preserving in perpetuity, things of historic, cultural, educational and other special interests; and to the mandatory requirement of s18(2) that historic reserves shall be administered and maintained that – the structures, objects and sites illustrate with integrity the history of New Zealand. It must be questionable that World War II buildings comprising an NCO Dormitory and Officers Quarters will be preserved for the stated purposes, if adapted, and used as contemporary administrative offices. The pragmatism which underpinned the decision to adapt the two buildings at North Head, while perhaps having meritorious aspects from the Department’s perspective, does not meet the purposes of the Act.

A pleading point

It is convenient to deal at the outset with an argument based on the pleadings. The Attorney-General admitted in the statement of defence that DOC assumed occupation of the buildings for the purpose of accommodating its Auckland Area Administration office and has used and intends to continue using the buildings for that purpose. Contrary to Mr Mills’ argument we do not see that pleading as excluding an argument, based on Mr Murray’s evidence, that DOC had a further purpose – one provided for in the statute. It was on the basis of the existence of those two purposes that the case proceeded in the High Court and we can see no proper basis for limiting the scope of the case on appeal. The appeal is to be decided unconfined by such a technicality of pleading. Mr Mills, we should note, did not press the point.

The Reserves Act

Before we consider the authorities, we set out the relevant provisions of the Reserves Act. According to its title, it is an Act
to consolidate and amend certain enactments … relating to public reserves, to make further provision for their acquisition, control, management, maintenance, preservation (including the protection of the natural environment), development, and use … .
The general purpose of the Act is stated, so far as relevant, in this way in s3(1):
It is hereby declared that, subject to the control of the Minister, this Act shall be administered in the Department of Conservation for the purpose of—
(a)Providing, for the preservation and management for the benefit and enjoyment of the public, areas of New Zealand possessing—
(i)Recreational use or potential, whether active or passive; or
(ii)Wildlife; or
(iii)Indigenous flora or fauna; or
(iv)Environmental and landscape amenity or interest; or
(v)Natural, scenic, historic, cultural, archaeological, biological, geological, scientific, educational, community, or other special features or value.
…
Subsection (2) emphasises the power of ministerial control or direction already stated in subs (1):
(2)In the exercise of its administration of this Act, the Department may take any action approved or directed from time to time by the Minister so far as it is consistent with this Act or is provided for in any other Act and is not inconsistent with this Act.
Part III of the Act provides for the classification and management of reserves. In particular, s16 requires the Minister to “classify [reserves] according to their principal or primary purpose”, “to ensure [their] control, management, development, use, maintenance, and preservation … for their appropriate purposes”. The following sections identify seven categories of reserves : recreation, historic, scenic, nature, scientific, government purpose and local purpose. Section 18 deals in particular with historic reserves and states relevant “principles” (the word used at the beginning of s58):
(1) It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as historic reserves, for the purpose of protecting and preserving in perpetuity such places, objects, and natural features, and such things thereon or therein contained as are of historic, archaeological, cultural, educational, and other special interest.
(2) It is hereby further declared that, having regard to the general purposes specified in subsection (1) of this section, every historic reserve shall be so administered and maintained that—
(a)The structures, objects, and sites illustrate with integrity the history of New Zealand:
(b)The public shall have freedom of entry and access to the reserve, subject to the specific powers conferred on the administering body by sections 58 and 58A of this Act, to any bylaws under this Act applying to the reserve, and to such conditions and restrictions as the administering body considers to be necessary for the protection and general well-being of the reserve and for the protection and control of the public using it.
…
In setting out the functions of the administering body, s40(1) expressly limits them by reference to the purpose for which the particular reserve is classified:
(1) The administering body shall be charged with the duty of administering, managing, and controlling the reserve under its control and management in accordance with the appropriate provisions of this Act and in terms of its appointment and the means at its disposal, so as to ensure the use, enjoyment, development, maintenance, protection, and preservation, as the case may require, of the reserve for the purpose for which it is classified.
It is in the context of those provisions and particularly s18 that the specific power relevant to this case is to be seen. It is conferred by s58:
58 Powers in respect of historic reserves
The administering body of an historic reserve may from time to time, in the exercise of its functions under section 40 of this Act and to the extent necessary to give effect to the principles set out in section 18 of this Act,—
(a)Appoint officers, servants, and rangers, whether paid or unpaid:
(b)With the prior consent of the Minister, set apart and use part of the reserve as sites for residences for officers or servants of the administering body or for rangers, and for other buildings necessary for the proper and beneficial management, protection, and maintenance of the reserve, and for the provision of displays and information for visitors to the reserve:
Provided that the Minister shall not give his consent under this paragraph, unless he is satisfied that the residences or buildings are necessary for the purposes specified in this paragraph and cannot readily be provided outside and in close proximity to the reserve:
(c)Charge such fees for admission to the whole or any part of the reserve, and for the use of amenities and facilities thereon, as the Minister approves:
(d)Do such other things as may be considered necessary or desirable for the proper and beneficial management, administration, and control of the reserve.
There was added to the Act in 1979 a further provision relating specifically to historic reserves empowering the administering body with the consent of the Minister to grant leases or licences in respect of historic reserves (s58A). Those two provisions are contained in a set of provisions which relate in turn to the various categories of reserves.

The critical question

There was no dispute in this Court nor, apparently, in the High Court, that the powers conferred by s58 must be exercised for the benefit of the particular reserve. Accordingly, the critical question is whether the Department’s action in establishing its administrative offices for reserves generally in the Auckland area invalidates the exercise of the power, although a proper purpose in terms of s58 did exist and continues to exist. As indicated, the respondents contend that the Judge was correct in holding that the existence of the other purpose relating to the administrative offices, being a material purpose, invalidated the exercise of the power. They also argue, as a distinct ground for invalidating the actions of the Department, that the relevant power in this case is that conferred by para (b) of s58 which requires the grant of ministerial consent, a consent which has not been given – and which they say could not be given on the facts in any event. Further, as a third point, they contend that even if the additional purpose does not invalidate the exercise of the power and even if that exercise is to be assessed under para (d), the particular decision was not one which conformed with the terms of that paragraph particularly when read with the emphasis in the introduction to the section on the necessity to give effect to the principles set out in s18.

Paragraphs (b) and (d) of s58 – which applies?

It is convenient to begin with the question whether the relevant power is given by para (b) or by para (d) of s58. Potter J “tend[ed] to the view” that para (d) applies. She did not reach a final conclusion on the matter because of the position she took on the invalidating effect of the additional purpose.
Consistently with the Judge’s tentative view, the appellant contends in this Court that para (b) is concerned only with new buildings and not with the use made of existing buildings. The respondents adopt the opposite position, contending that para (b) also applies to existing buildings, including in particular those being used by the Department in the current case.
In his careful and comprehensive argument for the respondents, Mr Mills contended that both structural and policy considerations and particular statutory wording led to the conclusion that para (b) was the applicable provision.
According to that argument, para (b) applies when part of the reserve is set apart either by new buildings being constructed or by old buildings being used for a different purpose. The existing buildings themselves might well be the very reason or a major reason for classifying the reserve as historic, as indeed in the present case. In the Wellington area we were referred for instance to Turnbull House and the Old Government Buildings; another is Old St Paul’s. Any change in the use of such buildings should be the subject of Ministerial consent. By contrast, the land set aside for a new building might be quite incidental to the reason the reserve was classified historic. The likely or possible importance of the existing buildings in a scenic reserve justified the higher test in para (b) compared with that in para (d) (necessary rather than necessary or desirable), the requirement for Ministerial approval, and the tight limit on the Ministerial power to grant approval. We come back to this policy argument later.
Further, it is said that under the provisions for the management of other types of reserves to which the public have rights of access (as they also do to historic reserves) Ministerial consent is required to any proposal by the administering body to “set apart and use” part of the reserve, with, it is said, just one exception for recreation reserves (s53(l)(h)(i)). So, Ministerial consent is required for “set[ting] apart and us[ing]” parts of scenic reserves, and also nature reserves.
We do not see this particular argument, which can be conveniently considered now, as providing any real assistance to the respondents’ case. In the first place, several other provisions relating to recreational and scenic reserves enable the administering authority to exclude members of the public from parts of the reserve without any requirement of Ministerial approval; the relevant provisions are not limited to those which enable areas to be “set apart and use[d]”. So, in the case of recreation reserves, the Minister’s consent is not required if the administering authority encloses all or part of the reserve to grass, plant, improve, farm or graze it (s53(1)(a) – for afforestation consent is needed : s75) and the authority can prohibit public entry into such enclosed areas (s53(1)(b)); it can also, without Ministerial consent, prescribe that the public cannot enter for up to 40 days of the year all or part of the reserve set apart for a particular purpose except on payment of a charge (s53(1)(d); see also paras (e) and (f)) and erect stands, pavilions, gymnasiums and other buildings for outdoor recreation (s53(1)(g)).
Some of the provisions for scenic reserves are comparable : Ministerial consent is not required in respect of decisions to enclose all or part of the reserve to allow regeneration and decisions to prohibit entry into those areas (s55(1)(a) and (b) – cf the proviso to para (b) and subs (2)). The provisions relating to nature and scientific reserves are distinct from those relating to historic, scenic and recreational reserves since by their nature those reserves are not or may not be generally open to public access (see ss20(2)(c), 21(2)(b), 57 and 59(1)).
A further difficulty with the argument is that, as Mr Mills properly accepted, even in historic reserves there is no general right of public access to each and every part of the reserve including buildings on it. Under s18(2)(b) freedom of entry and access is subject to the (1) powers conferred by ss58 and 58A, (2) bylaws made under the Act (which may prohibit and regulate entry; see ss106-108), and (3) conditions and restrictions considered necessary for the protection and wellbeing of the reserves for the protection and control of the public using it. There could be no objection, for instance, to the administering authority deciding under that third head to secure and close some or all of the historic buildings at North Head. It could do that without reference to the Minister.
The principles stated in s18 are also relevant to the broader structural and policy arguments made by Mr Mills (see para [21] above). Were the administering authority, or for that matter the Minister, to exercise their functions under s40 and their powers under Part III and in particular under s58 in respect of historical reserves in a way which put in jeopardy the reserve’s purpose and especially its historical purpose, the limits placed on the powers by s18 in the present context might come into play. The particular constraining purpose is that the places, objects and natural features that are of historical interest are to be protected and preserved in perpetuity (s18(1)). Further, the structure, objects and sites are to illustrate with integrity the history of New Zealand (s18(2)(a)). Section 18 itself imposes those limits and its constraining role is recalled, probably unnecessarily but with emphasis, in ss40 and 58.
Mr Mills also drew attention to the express use of the expression “erect” buildings in a number of provisions (eg ss53(1)(g), 59(2)(b)) by contrast to the more general wording of s58(b) with its reference simply to “setting apart”. But we do not think that the variations in the precise wording between different provisions can take the argument very far. The provisions have come together over a lengthy period with relevant legislation dating back to at least the 1870s. As a result, the present Act is not a model of consistent drafting.
In any event there are arguments based on the differences in the particular wording between related sections which go against the respondents’ argument. For instance, the immediately following s58A empowers the administering authority to grant leases or licences for the carrying on of activities “in any building or on any specified site” and to grant leases “of any such building or site”. The word “site” is not there being used to include a building.
The answer to the question whether para (b) or para (d) applies is essentially to be found in the terms of s58 itself. Under para (b), the administering authority may
set apart and use part of the reserve as sites
• for residences for officers or servants of the administering body or for rangers, and
• for other buildings necessary for the proper and beneficial management, protection and maintenance of the reserve, and for the provision of displays and information for visitors to the reserve
but only with the prior consent of the Minister who can consent only if satisfied that the residences or buildings are necessary for the specified purposes and in close proximity to the reserve.
The power is to set aside and use part of the reserve as sites for the two types of structures. It is not a power simply to use (existing) structures, but to set apart part of the reserve as sites for the structures. The plain meaning appears to us to be that part of the reserve, otherwise in general accessible to the public, is being set apart so that a new (non historic) building or structure may be constructed. The concern addressed by the limits imposed by para (b) compared with para (d) (notably the requirement for Ministerial consent) is that new structures might well endanger the historic qualities of the reserve. Possible changes in the use of existing (historic) buildings are not to be seen in that light – subject to the important limits imposed by the principles stated in s18, limits which are emphasised in s58 itself. The extensive Ministerial powers are also to be seen in their historical context. Over much of the life of reserves legislation there have been a large number of reserve and domain boards, many having no close link with central government. That position is now substantially different, with DOC for instance administering 142 of 213 historic reserves (Department of Conservation Annual Report 2000/01 26).
In the end, the wording of s58(b), in context, is plain. It is concerned with land being set apart so that new structures may be built. That is not our case. Rather, existing historic buildings are being used, under the power conferred by s58(d). The buildings are, however, being used not just for the purpose provided for in the legislation, but also for an additional purpose.

The additional purpose – invalidating or not?

Does the existence of that additional purpose and the associated additional use lead to a breach of the Act and unlawfulness, as the Judge has ruled?
Having reached the conclusions on the facts stated in the passages quoted in para [7] above, the Judge turned to the decision of this Court in Poananga v State Services Commission [1985] 2 NZLR 385. It was clear from that case, she said, that the issue can be expressed in terms both of exercising a statutory power for an invalid purpose and of considering an irrelevant factor. Cooke J, she continued, had approached the matter in the former way : if the improper purpose is material, the exercise of the power is invalid; he also put the test as a but for one : would the decision have been made but for the presence of the improper purpose? That test accorded with a well known passage in the judgment of the High Court of Australia in Thompson v Randwick Corporation (1950) 81 CLR 87, 105-106 which drew in turn on Westminster Corporation v London and North Western Railway Co [1905] AC 430. The critical passage was to the effect that the Council was abusing its powers, if in addition to its proper purpose, it had a substantial ulterior purpose but for which the power would not have been exercised ([1985] 2 NZLR at 393-394).
Potter J then mentioned that Somers J in Poananga used the irrelevant consideration approach. The established rule, he had said, was that “statutory powers are not properly exercised when irrelevant matters are brought to account” (398). Potter J concluded her discussion of the authorities by saying that both Cooke and Somers JJ stated that they believed their approaches to be in substance identical.
The Judge then stated her conclusion in the terms already indicated in para [8] above.
Poananga had not been mentioned in argument in the High Court and Mr Mills rightly accepted that because of its particular statutory context the decision there (a declaration of invalidity) is not directly in point. In that case the State Services Commission had two possible powers to transfer the plaintiff (the action it had in fact taken) – to transfer the plaintiff administratively or to bring disciplinary charges because of her alleged misconduct (with a possible penalty of transfer). For Cooke J, it ran counter to the scheme of the State Services Act 1962 to hold that the Commission could refrain from making a charge and transfer an officer purely administratively when the real reason for action was that the officer has been guilty of conduct constituting a substantial disciplinary offence. He mentioned in particular the opportunities available to the officer under the disciplinary process of natural justice and appeal. That reasoning, it will be seen, is about the structure of the legislation (the existence of overlapping powers, with quite different bases) and the protections provided in the one case but not in the other. The reasoning is not about the purpose the Commission had in mind : indeed Cooke J was “unable to agree with the judgment under appeal and parts of the reasoning in Bullen v State Services Commission [1985] 1 NZLR 402 to the extent that they treat the motive or the purpose of the Commission as decisive” ([1985] 2 NZLR at 393). Consistently with that approach, when he came to state the test of materiality he put it simply in terms of the conduct in issue and not of purpose : whether the conduct apparently falling within the offences section was material to the decision to transfer. Having quoted the Randwick Corporation passage, he added that the only difference was that the case before him was concerned not with the purpose but with the matter that influenced the decision (395). Somers J was also satisfied, by reference to the protections available in the disciplinary proceedings, that an employee could not be transferred under the administrative powers when the reason for the transfer is conduct of a kind which may constitute an offence. Tompkins J similarly concluded that if the Commission was likely to be influenced by complaints in making a transfer decision it had to give the employees the statutory procedural protections, including the right of appeal (406). That is to say, Poananga is about overlapping powers, transfer being a penalty available under the disciplinary provision, with that provision having exclusive application if grounds for its operation were being invoked. The present case by contrast, is about a single power and a proper purpose, but as well about a concurrent purpose not contemplated by the statute. The Randwick and related line of authorities are of course relevant to that situation. The Poananga case is also about important rights of the individuals affected by the exercise of the power being “circumvented” or “undermined” if one power rather than the other were invoked; the Commission’s action there “ran counter” to the scheme of the legislation.
The discussion of Poananga indicates the close relationship in some circumstances of the power, relevant factors, proper purposes and effects or consequences of the exercise of the power. To return to ss58(d), 40 and 18, DOC
(1)may do such other things [restoring the buildings and placing its area administrative office there];
(2)as may be considered necessary or desirable for the proper and beneficial management, administration and control of the reserve;
(3)so as to ensure the use, enjoyment development, maintenance, protection and preservation, as the case may required, of North Head;
(4)and in particular for the purpose of protecting and preserving in perpetuity the places, objects, natural features and things there as an historic, archaeological, cultural, educative, and other special interest;
(5)by maintaining and administering North Head so that the structures, objects and site illustrate with integrity of New Zealand and the public have freedom of entry and access subject to the limits noted earlier in para [25].
(1) is a raw power (overstated in the above list by being shorn of the following phrases). (2) and (3) may be seen as purposes or possibly effects. (4) is a purpose, while (5) is a combination of power (even if declared in a statement of purpose and principle), purpose and effect. In this, as generally in cases involving public power, the particular terms, content and purpose of the legislation in issue are critical.
The authorities show that courts have adopted five or six different approaches to the situation where the decider has sought to achieve both authorised and other purposes. (See eg De Smith, Woolf and Jowell Judicial Review of Administrative Action (5^th ed 1995) para 6-077 (they have six (“none of which is entirely satisfactory”) but (1) and (2) appear to be the same) and Taylor Judicial Review: A New Zealand Perspective (1991) para 14.40 who identifies five tests and says three can be seen to come to the same conclusion.) One prominent variable involves the ranking of the unauthorised purposes (true or dominant as opposed to subsidiary), the “but for that purpose” test, the materiality of that purpose and the very existence of that purpose. All but the last involve the difficulty for the courts of speculating about the weight actually given to particular purposes, an even more difficult matter if the decision is made by a multi-member body (Aronson and Dyer, Judicial Review of Administrative Action (2d ed 2000) 250-251).
A further variable which we consider to be crucial in the context of the legislation in this case is the character or quality of the additional purpose. Does the particular purpose or even more its fulfilment “run counter”, to “circumvent” or “undermine” the proper statutory purpose, to quote Cooke J in Poananga? The Crown in its written submissions relied on the more directly relevant, leading authority of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. Lord Reid, in one of his great administrative law judgments, says this:
Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act. (1030)
He then reviewed the legislation and the facts and returned to the wider issues:
If it is the Minister’s duty not to act so as to frustrate the policy and object of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister’s refusal, then it appears to me that the court must be entitled to act. (1032-33)
That careful wording, consistently with that of Cooke J in Poananga, reminds us that purposes not within the statute are not necessarily “invalid” or “improper”; the additional pursuit of such other purposes may not thwart or frustrate the policy of the Act in question. As indicated in both those cases, we need to return the terms of the Reserves Act.
Is there anything in that Act to indicate that the other purpose (or effect) in this case is prohibited so long as the statutory purpose is being pursued (and in fact achieved) and is not in any way compromised by the other purpose? No such prohibition appears in the express terms of the statutory provisions themselves. There is for instance no express language matching the word “only” in para [35] of the High Court judgment (set out in para [8] above) or identifying any purposes as “invalid” (see para [31] of the judgment in para [7] above). The fact, emphasised by Mr Mills, that the powers related to the particular reserve, simply restates the issue : if the power is exercised for that reserve and for the statutory purpose, may it also be exercised for other areas and purposes so long as the statutory purpose is not prejudiced? We can see no indication in the legislation that other non-prejudicial purposes are prohibited. The Judge referred to none, nor did Mr Mills. Nor can we see anything in the rights and interests reflected in the legislation which will be damaged by the existence of the additional purpose. There is nothing here for instance which is comparable to the natural justice protections which were circumvented in Poananga.

We stress again that the additional purpose and use in the circumstances of this case did not prejudice the pursuit of the statutory process. Indeed, the implementation of that additional purpose may actually have facilitated the carrying out of the statutory purpose. But for the establishment of the Area Office at North Head, the improvements to and preservation of the historic buildings in the reserve and the enhanced public access may not have been accomplished. (That efficient and economic exercise of the powers conferred by the Reserves Act may well gain support from the State Sector Act 1988 s32(d) and the Public Finance Act 1989 (see para (c) of its Title and related substantive provisions), but since no argument was presented along these lines we take that no further.)
We conclude that, because the statutory purpose is satisfied and the additional purpose and use do not in any way prejudice that purpose, the additional purpose and use do not make the departmental action unlawful.

Section 58(d) – is the decision within the power?

In the oral argument before us, Mr Mills contended that, even if he failed under the two headings already considered, DOC could not meet the stringent test laid down by s58(d), particularly its introductory words, read with s40 and especially s18. The submission is that the apparently broader language of para (d) (“desirable” as well as “necessary”) is restrained by the test of necessity introduced in the introductory words of s58. As we have indicated earlier in this judgment, s58 is to be read within the context of and limits imposed by ss18 and 40. They would for instance be relevant were the question which Potter J asks in para [36] of her judgment (para [8] above) to become a real one in practice.
We do not see the reference to “necessary” in the introductory words in s58 (and in other comparable provisions – ss53(1), 54(1), 55(1) and 56(1)) as bearing the weight the argument requires. The reference is to the exercise of the powers “to the extent necessary to give effect to the principles set out in section 18”. Those principles already constrain the exercise of the powers by virtue of s18 itself. We do not see the reference as adding anything to that provision (which, it will be recalled, also recognises and confers powers of control and restriction). The argument has to move beyond assertion and become concrete. In what particular respects have the steps taken not been for, or damaged, the proper and beneficial management, administration and control of the reserve? (It is no answer, given our conclusion under the preceding heading, that the steps also benefited other reserves.) We were not taken to any evidence to show that the terms of ss18 and 58 were not satisfied. On the contrary, what evidence there is tends to suggest that the achievement of the statutory purposes has been enhanced by DOC’s actions.

Conclusion

It follows that the appeal is allowed and the declaration made in the High Court is set aside.
The costs order in the High Court is set aside. Any questions of costs in either court may be the subject of memoranda to this Court.

Solicitors
Crown Law Office, Wellington for the Appellant
Chapman Tripp, Wellington for the Respondents

[2002] NZCA 40

20 March 2002