Henry v Minister of Justice
[2019] NZHC 1493
•28 June 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1898
[2019] NZHC 1493
UNDER the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, and
the Human Rights Act 1993IN THE MATTER
of the process of selection for the post of New Zealand Race Relations Commissioner
BETWEEN
COLIN SAMUEL HENRY
Applicant
AND
THE MINISTER OF JUSTICE
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 27 March 2019 Appearances:
Applicant in person
V McCall and J Watson for the First and Second Respondents
Judgment:
28 June 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 28 June 2019 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors / Counsel:
Mr C S Henry, Auckland
Ms V McCall and Mr J Watson, Crown Law, Wellington
HENRY v THE MINISTER OF JUSTICE [2019] NZHC 1493 [28 June 2019]
[1] Mr Henry seeks judicial review of the appointment process for the position of Race Relations Commissioner (RRC).
[2] The first respondent (the Minister) is the Minister responsible for recommending appointment of the RRC to the Governor-General.
[3] The hearing of the substantive application for judicial review took place on 27 March 2019. However, the matter has been the subject of further interlocutory applications by Mr Henry between that hearing and this judgment.1 Mr Henry has also filed memoranda updating the Court.2
Background
[4] Mr Henry practised law in the United States and the Caribbean before moving to New Zealand in 1994. In New Zealand he has practised both in a law firm and subsequently as a barrister.
[5] The Human Rights Commission is an independent Crown entity under the Human Rights Act 1993.3 The Commission consists of a Chief Commissioner, and not less than 3 and not more than 4 other Commissioners, one of which must be appointed to lead the work of the Commission in each of the following priority areas:4
(a)disability rights (the Disability Rights Commissioner);
1 At the end of the hearing on 27 March 2019, following the respondents’ indication that they intended to maintain the involvement of the independent panel advising the Minister on the selection of the RRC, Mr Henry applied for an interim order pending judgment that no further steps be taken by the panel pending further order. I dismissed that application on 18 April 2019: Henry v Minister of Justice [2019] NZHC 889. On 26 April 2019 Mr Henry applied to rescind or vary my interlocutory judgment of 18 April 2019. On 1 May 2019 Mr Henry filed a memorandum requesting that his application be transferred to the Court of Appeal, which was also opposed. On 13 May 2019 I declined to transfer the application to the Court of Appeal: Henry v The Minister of Justice [2019] NZHC 1039. A further hearing took place on 17 May 2019 and on 31 May 2019 I dismissed the application to rescind or vary my earlier judgment: Henry v The Minister of Justice [2019] NZHC 1234.
2 Memorandum dated 7 June 2019 indicating that the Ministry of Justice had advised of his non-selection for the shortlist for the position of RRC, and memorandum dated 14 June 2019 advising that he had not been appointed to the position of Tenancy Adjudicator.
3 Human Rights Act 1993, s 4(2); and Crown Entities Act 2004, s 7(1)(a) and Part 3 of Schedule 1.
4 Human Rights Act 1993, s 8.
(b)equal employment opportunities (including pay equity) (the Equal Employment Opportunities Commissioner); and
(c)race relations (the RRC).
[6]The primary functions of the Commission are:5
(a)to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society;
(b)to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society;
(c)to promote racial equality and cultural diversity;
(d)to promote equal employment opportunities (including pay equity); and
(e)to promote and protect the full and equal enjoyment of human rights by persons with disabilities.
[7] Following the report of retired Judge Coral Shaw into the Human Rights Commission, on 24 May 2018 the Minister agreed to a public advertising process to find replacements for the RRC and other Human Rights Commissioners whose positions had expired or were about to expire, and to the appointment of an independent panel (the panel) to assess expressions of interest (EOIs) and conduct interviews of candidates for the positions.
[8] On 26 May 2018 the Minister published an advertisement seeking EOIs for the RRC role, together with two other Human Rights Commissioners. The advertisement referred potential applicants to a position description online. EOIs were sought by 20 June 2018.
5 Human Rights Act 1993, s 5.
[9] Mr Henry considered that he was well qualified to apply for the RRC role albeit that his previous experience applying to the Ministry of Justice (the Ministry) for statutory appointments gave him cause for concern.6 He submitted an EOI on 12 June 2018, within the specified timeframe. The Ministry acknowledged receipt on 19 June 2019.
[10]On 27 June 2018 the Minister appointed three panel members.
[11] The panel members met on 11, 16 and 17 July 2018 to consider the EOIs and discuss shortlisting candidates. The panel considered Mr Henry’s EOI on or about 11 July 2018. Following those meetings, two potential candidates were identified for the shortlist for the position of RRC.
[12] On 13 July 2018 Mr Henry emailed an enquiry to the Ministry as to progress. The email reply from the Ministry the same day said that no decisions on shortlisting had been made, referring to the need for the selection process to comply with UN conventions (the Paris Principles) which require the responsible Minister to be advised by an independent panel. The email said the panel had been established but had not completed shortlisting, which was likely to be in about a week.
[13] On 16 July 2018 the Minister announced that he had established the panel to advise him on the selection of the new Commissioners, stating the panel would run its own completely independent process and make recommendations directly to him. The announcement identified the three panel members and summarised their experience. The announcement also stated:
New Zealand is a strong supporter of the United Nations’ Principles relating to the Status of National Institutions (The Paris Principles). They set standards of independence, integrity and effectiveness for institutions such as the Human Rights Commission. The Paris Principles require a transparent selection and appointment process.
6 His EOI included reference to his many other unsuccessful applications. His evidence in this proceeding, including his supplemental affidavit, highlighted his concerns about racism in New Zealand.
[14] On 20 July 2018 the panel notified the Minister by telephone that it intended to re-advertise the role of RRC. The panel considered the pool of potential appointees was insufficient given the importance of receiving EOIs from a diverse range of applicants.
[15] On 24 July 2018 the Ministry emailed all candidates, including Mr Henry, to advise that there would be a brief delay in finalising the shortlist. The email said that at the request of the panel, and with the agreement of the Minister, there would be a second public advertisement placed on 25 July 2018. The closing date for EOIs would be 3 August 2018. The email also said:
This is in no way a reflection on the candidates who have expressed interest but the panel felt that the pool of candidates for this particular position was not as large as expected.
You remain under consideration. I expect to have an update on a shortlist around the second week of August.
[16] On 25 July 2018 the second advertisement sought further expressions of interest for the RRC role, while indicating that those who had already expressed interest remained under consideration. The online position description did not change. EOIs were sought by 3 August 2018.
[17] The panel reviewed the EOIs submitted in response to the second advertisement in the week of 6 August 2018 and decided not to add any of those applicants to the shortlist. The panel also did not change its view that none of the candidates from the first round of advertising who had not already been shortlisted ought to be added at that time.
[18] On 21 August 2018, having not heard further, Mr Henry enquired again of the Ministry by email. The Ministry’s email reply on 22 August 2018 said that work on the RRC appointment was temporarily paused because one of the panel members was out of the country for the next few weeks.
[19] Also on 22 August 2018, the two panel members in New Zealand determined to proceed to interview the two candidates from the first round of advertising, and notified the Minister.
[20] On 30 August 2018 Mr Henry was notified that he had not been shortlisted to proceed to the interview stage for the RRC position.
[21] Mr Henry filed judicial review proceedings on 4 September 2018. He also applied for interim orders preventing further steps being taken in the appointment process pending determination of his judicial review claim.
[22] Mr Henry sought to learn the reasons for not being shortlisted and attended a meeting with two members of the panel on 13 September 2018. The two members of the panel in New Zealand also interviewed the two shortlisted candidates that day.
[23] Mr Henry requested copies of documents relating to the panel’s deliberations under the Official Information Act 1982 and Privacy Act 1993. The Ministry replied on 21 September 2018 that the panel had not made any record of its discussions about candidates for the RRC position.
[24] The application for interim orders was dismissed by Fitzgerald J on 1 November 2018.7
[25] On 8 November 2018 the panel reported to the Minister, recommending one candidate as a viable appointment option. However, on 12 November 2018 the preferred candidate withdrew.
[26] I was told a third advertisement has since been published and all earlier candidates who submitted EOIs were told they may re-submit applications. Mr Henry did so. Counsel for the respondents advised that the Minister intended to continue to take advice from the panel in the selection process, which prompted the second application for an interim order mentioned above.8
Mr Henry’s claims
[27]Mr Henry’s amended statement of claim contained four causes of action:
7 Henry v Minister of Justice [2018] NZHC 2831.
8 At footnote 1.
(a)frustration of legitimate expectations;
(b)failure to act reasonably, rationally, and/or fairly;
(c)breach of statutory duty; and
(d)breach of the New Zealand Bill of Rights Act 1990.
Frustration of legitimate expectations
[28] Mr Henry has pleaded a number of legitimate expectations that were frustrated. He claims that by stipulating in the first advertisement a date by which EOIs were sought, the Minister created a reasonable and legitimate expectation that such EOIs would be considered and, by implication, the EOIs submitted later would not be considered. Thus, Mr Henry pleads that he legitimately expected that the persons with whom he would be competing for appointment for the position would be limited to the other persons who submitted EOIs by that date.
[29] Mr Henry claims that, by re-advertising the position and considering EOIs submitted in response to that re-advertising, without first concluding consideration and determination of the EOIs submitted in response to the first advertisement, the Minister defeated those legitimate expectations, thereby acting unfairly and unlawfully.
[30] He also claims that, in announcing the establishment of the panel, the Minister created the legitimate expectation that EOIs would be considered by the full panel. Given the Ministry’s reply of 22 August 2018 indicating that one of the panel members was out of the country for the next few weeks, the notification on 30 August 2018 that he had not been shortlisted indicated that his EOI was not considered by the full panel and therefore frustrated that legitimate expectation.
[31] In the alternative, Mr Henry claims his EOI was considered by the full panel by 11 July 2018. This was admitted by the respondents.
[32] He claims that, in failing to advise him honestly, when responding to his enquiries, that he had not been shortlisted, and instead advising him that he remained under consideration, the Minister, through his agent, falsely created the reasonable legitimate expectation that he was still under consideration. That expectation was frustrated.
[33] Also in the alternative, Mr Henry claims the full panel considered all of the EOIs of respondents to the first advertisement and, by 17 July 2018, decided to shortlist only two candidates.
[34] He claims the Minister falsely informed the remaining responders, in the second advertisement, that they remained under consideration, thereby creating a legitimate expectation that they were still in contention. That expectation was frustrated.
[35] Mr Henry claims that the Minister’s statement about the Paris Principles created the legitimate expectation that the selection panel would conduct a transparent process. This was frustrated as the panel has not made any record of its discussions about candidates. As a result, he has been denied the opportunity of knowing the reasons why he was not shortlisted and whether such reasons were legitimate.
[36] He claims that, in adopting the flawed process pursued by the panel, the Minister has deprived him of the opportunity to demonstrate in an interview whether he would be the best candidate for appointment and has thereby impinged on his professional chances and his ability to earn a livelihood.
Failure to act reasonably, rationally and/or fairly
[37] Mr Henry claims that on or about 16 July 2018 the Minister announced the establishment and composition of the panel only after the due date for submission of EOIs stipulated in the first advertisement, but before the date for responding to the second advertisement. He says that, in revealing comprehensive information about the selection panel members, the Minister conferred on persons responding to the second advertisement the advantage of that knowledge over respondents to the first advertisement.
[38] He claims that, by including in the second advertisement that responders to the first advertisement remained under consideration, the Minister made it evident that such responders were not prima facie disqualified from consideration for the position, but the Minister unfairly used them to hedge his bets in the event that responders to the second advertisement did not provide greater satisfaction to the panel.
[39] Mr Henry claims that, by informing him, and other responders to the first advertisement, that they remained under consideration for appointment when that was untrue, the Minister deceived them. Consequently, the Minister has acted irrationally, unreasonably and/or unfairly toward Mr Henry and any other persons who responded in time to the first advertisement.
Breach of statutory duty
[40] Mr Henry claims that, pursuant to s 11(1A) of the Human Rights Act 1993 and s 29(2)(b) of the Crown Entities Act 2004, in recommending to the Governor-General persons for appointment as RRC, the Minister has a statutory duty to take into account the desirability of promoting diversity in the membership of Crown entities. Mr Henry claims that in establishing the panel, the Minister had a duty to ensure that in selecting such a person the panel took into account that desirability. The panel made its selection of persons to be recommended for appointment without the Minister ensuring that the panel took that desirability into account, thereby breaching his statutory duty.
[41] Although not pleaded, Mr Henry’s submissions also allege breach of statutory duty in relation to s 23 of the Official Information Act 1982 and s 17 of the Public Records Act 2005.
Breach of the New Zealand Bill of Rights Act 1990 (NZBORA)
[42] Mr Henry claims that in acting unfairly and unlawfully towards him, and any other responders to the first advertisement, as detailed in the preceding claims, the Minister breached Mr Henry’s right to natural justice protected by s 27 of NZBORA.
Remedies
[43] Mr Henry seeks various remedies including declarations, orders in the nature of prohibition or stay restraining the Minister from proceeding until he has considered the suitability of those who submitted EOIs in response to the first advertisement only, orders in the nature of mandamus requiring the Minister to dissolve the panel, ensure his EOI is considered by the full panel and requiring the panel to take into account the desirability of promoting diversity in the membership of Crown entities, and damages.
Legal principles
Legitimate expectation
[44] The legal principles concerning legitimate expectation are not in dispute. As the Court of Appeal said in Comptroller of Customs v Terminals (NZ) Ltd, the concept of legitimate expectation may be viewed as an aspect of the administrative law principle that requires governments and public authorities to act fairly and reasonably.9 The general principle was stated by the Privy Council in Attorney General of Hong Kong v Ng Yuen Shiu:10
… when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. … the principle [is] that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty…
[45] The general principle was affirmed by the Privy Council more recently in New Zealand Māori Council v Attorney-General, but with the qualification that a successful challenge to an assurance of this type would depend in part on whether there was any “satisfactory reason” for the Crown not to comply with it.11 As Randerson J said in New Zealand Association for Migration and Investments Inc v Attorney-General, that reflects two key policy considerations which often lie at the
9 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [121], reflecting Randerson J’s earlier judgment in New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [141].
10 Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 351.
11 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.
heart of legitimate expectation cases.12 On the one hand, there is a public interest in holding a public authority to promises made in the interests of proper public administration and allowing people to plan with some assurance. On the other, there is also a public interest in allowing governments and other public authorities to change policy from time to time when it is perceived to be appropriate to do so.
[46] This case does not call for consideration of the possibility of legitimate expectation in relation to a substantive outcome.13
[47]Where legitimate expectation is raised, the inquiry generally has three steps:14
(a)The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.
(b)The second is to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.
(c)The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.
[48]In Lalli v Attorney-General Asher J stated:15
12 New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [140].
13 See B v Waitemata District Health Board [2016] 3 NZLR 569 (CA) at [55] and New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 at [145].
14 Comptroller of Customs v Terminals (NZ) Ltd [2016] NZCA 184, [2014] 2 NZLR 137 at [125]- [127]; and Hugh Green Ltd v Auckland Council [2018] NZHC 2916 at [72].
15 Lalli v Attorney-General [2009] NZAR 720 (HC) at [23].
[I]t is useful when applying the concept of legitimate expectation to particular facts, to bear in mind that behind the cases relating to legitimate expectation is the Court's wish to ensure that administrative bodies act in a way which is procedurally fair. They must act in accordance with natural justice. Legitimate expectation as a doctrine does not exist in a vacuum. It is a way of measuring fair practice.
[49]The learned authors of De Smith’s Judicial Review state that:16
The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in government’s dealings with the public.
[50] In Mansell v Commissioner of Police the Court held that when a public body publishes a detailed job description and personal specification, applicants have a legitimate expectation that their job applications will be considered in terms of that publication.17
Unreasonableness, irrationality and unfairness
[51] The classic statement of unreasonableness in the judicial review context comes from Associated Provincial Picture Houses, Limited v Wednesbury Corporation.18 In that case Lord Greene MR stated that courts could interfere if a decision was “so unreasonable no reasonable authority could ever have come to it”.19 In Webster v Auckland Harbour Board, Cooke P referred to a decision being unreasonable when it was “outside the limits of reason”.20
[52] Irrationality is often used interchangeably with unreasonableness but may be seen as one facet of it.21 Irrationality in the judicial review context embraces manifest arbitrariness and errors of logic in decision-making, factors which go toward showing the decision ultimately reached was unreasonable in an administrative law sense.22
16 Lord Woolf, Jeffrey Jowell, Catherine Donnelly and Ivan Hare De Smith’s Judicial Review (8th ed, Sweet & Maxwell Ltd, London, 2018) at [12-001].
17 Mansell v Commissioner of Police [1993] 2 ERNZ 646 (HC) at 650.
18 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
19 At 230.
20 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 131.
21 Lord Woolf, Jeffrey Jowell, Catherine Donnelly and Ivan Hare De Smith’s Judicial Review (8th ed, Sweet & Maxwell Ltd, London, 2018) at 604.
22 At 604.
[53] Substantive unfairness is not a separate ground of judicial review from unreasonableness in New Zealand. Procedural unfairness is synonymous with natural justice.23 This includes the opportunity to be heard and that the decision-maker is free from bias.
Breach of statutory duty
[54] It is important to distinguish actions in public law to enforce the due performance of statutory duties, brought by way of judicial review, from actions based on a private law cause of action for the tort of breach of statutory duty.24 The latter may be an action to recover damages.
[55] The elements of the private law cause of action for breach of statutory duty are:25
(a)the defendant owes a statutory duty that is enforceable by private law action;
(b)the defendant owes the statutory duty to the plaintiff, personally or as a class;
(c)the defendant has breached this duty; and
(d)as a result, the plaintiff has suffered the kind of damage that the statute is designed to prevent.
[56] The existence of a private law statutory duty is primarily determined by interpreting the relevant statute.
23 Furnell v Whangarei High School Board [1973] 2 NZLR 705 (PC) at 718; and Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
24 Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649 at [66], citing X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 730.
25 Crawford v Pardington [2012] NZHC 1829 at [23].
Breach of NZBORA
[57] The content of the right to natural justice under s 27(1) of NZBORA is coincident with the content of the right at common law.26
Discussion
[58] Mr Henry stresses that his position has always been that his complaint is not about his omission from a shortlist or whether he was selected for the role, but about a fair and proper selection process. He submits the overarching issue is whether the Minister has acted fairly. Mr Henry characterised the case as involving a number of instances of “shifting sands” in the process followed by the Ministry or the panel.
Frustration of legitimate expectations
[59] The respondents do not dispute there is a legitimate expectation that applicants who submitted EOIs in time would have them considered on the merits and be informed whether or not they would be advancing in the selection process. When a detailed job description is published, applicants have a legitimate expectation that their applications will be considered in terms of that publication.27 But the respondents dispute Mr Henry’s submission that, by implication, the first advertisement created a legitimate expectation that EOIs submitted later would not be considered.
[60] I do not consider that stating in an advertisement that EOIs are sought by a particular date gave rise to a legitimate expectation that EOIs submitted later would not be considered. There was no unambiguous promise to that effect and I do not consider it is implied. Further, I consider that any such implication would not preclude an extension of the date at least in appropriate circumstances. Here, the panel considered it should re-advertise as the pool of potential appointees was insufficient. I consider that comes within the Privy Council’s qualification in New Zealand Māori Council v Attorney-General, where there is a satisfactory reason for the Crown to
26 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [18] and [50].
27 Mansell v Commissioner of Police [1993] 2 ERNZ 646 (HC) at 650.
extend the date.28 This case is not akin to a tender situation where circumstances may make it necessary to reserve the right to extend the date. The respondents may also be correct that a rigid deadline may be inconsistent with the Paris Principles and the Sub- Committee on Accreditation’s 2016 report, which recommends a process for appointment enshrined in legislation that includes a requirement to maximise the number of potential candidates from a wide range of societal groups.
[61] I also do not accept Mr Henry’s related proposition that, before deciding to extend the date, the Ministry had to determine whether any of the first set of applicants satisfied the Minister’s requirements. This is not a case where there was a clear baseline set of requirements which, if met by one or more of the first set of applicants, precluded the extension proposed by the panel.
[62] I do not consider that, in announcing the establishment of the panel, the Minister created the legitimate expectation that EOIs would be considered by the full panel. But in any event, Mr Henry’s application was considered by the full panel on 11 July 2018.
[63] Two days later, on 13 July 2018, Mr Gini from the Ministry replied to Mr Henry’s enquiry saying that no decisions on shortlisting had been made. Mr Henry submits this was false. The respondents acknowledge that by 13 July 2018 the panel had considered Mr Henry’s EOI, but the panel met again on 16 and 17 July 2018 to consider EOIs and discuss shortlisting candidates and following those meetings identified two potential candidates for the shortlist.
[64] The evidence does not suggest that, when Mr Gini replied to Mr Henry on 13 July 2018, he was aware of the panel’s consideration of Mr Henry’s EOI on 11 July 2018 or replied other than believing that he was conveying the correct position.
[65] Subsequently, on 24 July 2018, the Ministry emailed all candidates, including Mr Henry, advising that there would be a second public advertisement and stating:
You remain under consideration. I expect to have an update on a shortlist around the second week of August.
28 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.
[66] Mr Henry claims that the statement in this email, and the second advertisement to the same effect on 25 July 2018, falsely created the reasonable legitimate expectation that he was still under consideration. He also submitted there was an inconsistency between the statement that he remained under consideration and the subsequent reason given for not shortlisting him, namely lack of governance skills.29 He submitted there was an ‘overtilting’ towards governance skills given the catalyst for appointment, which was used to exclude him. The position description indicated that governance skills were a key competency. Yet he was told he remained under consideration. Mr Henry submitted that implied he did not fall short of this requirement. Dealing with this last point first, I do not consider the statement that applicants from the first round remained under consideration implied that it had been decided that all had governance skills and were qualified for the role.
[67] However, the statement clearly represented that Mr Henry remained under consideration. The panel had already reviewed Mr Henry’s EOI and not shortlisted him, but the Ministry’s position is that the statement was still correct as no final decision had been made and the panel could have reconsidered and supplemented their initial shortlist.
[68] The position when the statement was made was that the panel had considered the EOIs submitted for the position of RRC in response to the first advertisement, identified two potential candidates for the shortlist and notified the Minister that it intended to re-advertise as it considered the pool of potential appointees was insufficient given the importance of receiving EOIs from a diverse range of applicants.
[69] The Ministry’s email to all candidates on 24 July 2018 advised that there would be a brief delay in finalising the shortlist. The email said that the panel felt that the pool of candidates was not as large as expected before stating “you remain under consideration”.
29 Mr Henry disputes the account of that meeting and in particular the suggestion that his comments at the meeting reinforced the view about his lack of governance experience.
[70] Even though no final decision had been made and the panel could have reconsidered and supplemented their initial shortlist, I have some sympathy with Mr Henry’s argument that he (and the other applicants not shortlisted) did not really “remain under consideration” and should have been told. Their EOIs had been reviewed and they had not been shortlisted. The email did not transparently say that, or even that there was already a shortlist. The purpose of the second advertisement was to expand the pool of applicants. There was no evidence indicating that the panel intended that non-shortlisted applicants from the first round would be reconsidered. A mere theoretical possibility of reconsideration is insufficient to justify the statement “you remain under consideration”.
[71] Legitimate expectations usually involve promises to follow a certain procedure, frustrated when the promise is not implemented, rather than alleged misstatements of existing fact. The Ministry’s statement “you remain under consideration” includes a promise of future consideration. In the legitimate expectation context, the question is whether applicants were subsequently considered as promised.
[72] The panel reviewed the EOIs submitted in response to the second advertisement in the week of 6 August 2018. Ms Winter stated that, in the end, they discussed the matter and did not consider that any of the further applicants ought to be placed on the shortlist. I infer this occurred that week or at least before Sir John Clarke left to go overseas on 13 August 2018. In addition, Ms Winter stated that the panel also did not change its view that none of the candidates from the first round of advertising who had not already been shortlisted ought to be added at that time. The evidence is not clear, however, to what extent the panel did reconsider EOIs from the first round, including Mr Henry’s EOI, at that time. It is accepted they did not re-look at the first round EOIs.
[73] As the panel had already considered those EOIs, I do not consider full reconsideration was necessary to fulfil the promise and not frustrate any legitimate expectation. I consider it was sufficient for the panel to reflect on whether candidates from the first round of advertising who had not been shortlisted ought to be added at that time. The evidence indicates that was done. Even so, it would have been
preferable to advise Mr Henry and other unsuccessful candidates at that time that they had not been shortlisted for interview.
[74] The evidence indicates that when Mr Gini emailed his reply to Mr Henry on 22 August 2018 saying that work on the RRC appointment was temporarily paused because one of the panel members was out of the country for the next few weeks, he was unaware the two panel members in New Zealand determined the same day to proceed to interview the two candidates from the first round of advertising. It may have been learning of that determination that caused the Ministry to notify Mr Henry he had not been shortlisted to proceed to the interview stage.
[75] Mr Henry’s complaint that the Minister’s statement about the Paris Principles created a legitimate expectation that the selection panel would conduct a transparent process focuses on the panel making a record of its discussions about candidates. While transparency of modern democratic government is essential, I do not consider the Minister’s statement about the Paris Principles requiring a transparent process created a legitimate expectation in relation to the panel making a record of its discussions about candidates. In any event, Mr Henry was given feedback at the meeting on 13 September 2018 as to the reasons why he was not shortlisted. Mr Henry disputes the validity of those reasons but that is not within the scope of his legitimate expectation claim except as dealt with above.
[76] The last aspect of Mr Henry’s legitimate expectation claim is that, in adopting the flawed process pursued by the panel, the Minister has deprived him of the opportunity to demonstrate in an interview whether he would be the best candidate for appointment and has thereby impinged on his professional chances and his ability to earn a livelihood. That suggests his complaint is to some extent about his omission but, in any event, for the reasons already given, his claim that the panel has adopted a flawed process is not made out.
[77] Even if I had concluded that Mr Henry had succeeded in showing a legitimate expectation had been frustrated, I would have considered that a declaration to that effect would have been a sufficient remedy in all the circumstances and declined to declare that the Minister ought to recommence the process without involving the panel.
Unreasonableness, irrationality and unfairness
[78] Mr Henry’s first complaint in this cause of action is that the announcement of the identity of the panel members and their experience before the date by which EOIs were sought in the second advertisement conferred an advantage on persons responding to the second advertisement over respondents to the first advertisement.
[79] The Minister agreed to the appointment of a panel before the first advertisement, but the members were not appointed until after the date by which EOIs were sought in the first advertisement. The panel was then announced before the decision to re-advertise the role. The inevitable consequence was that those responding to the second advertisement had more information.
[80] However, I do not consider that knowing the identity of the panel members and an outline of their experience conferred a particular advantage on persons responding to the second advertisement. The RRC role and the criteria set out in the position description did not change. The identity of the panel members made no difference to whether Mr Henry or other applicants were qualified for the position. In any event, if Mr Henry considered his EOI was not suitably tailored towards the panel, for example because he had (wrongly) assumed his EOI would be considered by a legally- experienced audience or to address his sense that the panel members as former public sector chief executives were more focused on governance skills, he could have submitted a revised EOI in response to the second advertisement. Furthermore, as none of the applicants who responded to the second advertisement were shortlisted, Mr Henry was not disadvantaged over them.
[81] I do not consider that stating to Mr Henry and other applicants who responded to the first advertisement that they remained under consideration, directly by email and in the second advertisement, was unreasonable or a breach of natural jusice – essentially for the reasons already given in relation to legitimate expectation.
Breach of statutory duty
[82] It is not clear from Mr Henry’s pleading whether his reference to breach of statutory duty is intended to invoke the private law cause of action, but the relief sought in respect of this cause of action does not include damages.
[83] In relation to appointment of members of Crown entities, s 29 of the Crown Entities Act 2004 provides:
29 Criteria for appointments or recommendations by responsible Minister
(1)A responsible Minister of a statutory entity must appoint, or recommend the appointment of, members under section 28 in accordance with any criteria for members and any process for appointment under this or another Act.
(2)A responsible Minister—
(a)may only appoint or recommend a person who, in the responsible Minister’s opinion, has the appropriate knowledge, skills, and experience to assist the statutory entity to achieve its objectives and perform its functions; and
(b)subject to subsection (1), in appointing or recommending an appointment, must take into account the desirability of promoting diversity in the membership of Crown entities.
[84] Before addressing Mr Henry’s argument under s 29(2)(b), I note that s 29(2)(a) requires that the Minister may only recommend a person who, in the Minister’s opinion, has the appropriate knowledge, skills, and experience to assist the Human Rights Commission to achieve its objectives and perform its functions.
[85]Section 29(2)(b) creates a public law duty on the Minister, subject to subsection
(1) in relation to any statutory criteria and process for appointment, to “take into account the desirability of promoting diversity in the membership of Crown entities”. In the context of recommending appointment of the RRC, this duty is subject to s 11(1)
of the Human Rights Act 1993 which sets out various knowledge, skills and experience criteria to which the Minister must have regard when recommending appointment of Human Rights Commissioners. I note the Minister must have regard to the need for Commissioners and alternate Commissioners to have these criteria “among them”, rather than individually.
[86] There was no suggestion in the evidence that the knowledge, skills and experience of other Human Rights Commissioners meant that, in relation to recommending appointment of the RRC, the Minister was not required to take into account the desirability of promoting diversity in the membership of Crown entities.
[87] In those circumstances, as the respondents acknowledged, I consider the desirability of promoting diversity in the membership of Crown entities is a mandatory relevant consideration for the Minister to take into account in recommending an appointment to the Human Rights Commission.
[88] The issue is whether the Minister, having appointed a panel to advise him on selection by assessing EOIs and conducting interviews, was required to instruct the panel to take into account the desirability of promoting diversity in the membership of the Human Rights Commission. I consider that s 29(2)(b) did not require the Minister to give the panel an explicit instruction to this effect. The obligation is on the Minister to take this mandatory relevant consideration into account when recommending an appointment. The evidence indicates that diversity was a reason for having a panel, the panel members were very familiar with promoting diversity in a number of ways, given their public sector experience, and that the panel did, in fact, consider diversity in their deliberations on shortlisting candidates. In those circumstances, I do not consider there has been any breach of the Minister’s obligation under s 29(2)(b).
[89] Further, insofar as Mr Henry is seeking to invoke the private law cause of action of breach of statutory duty, I consider that s 29(2)(b) does not create a duty enforceable by that tort. There is nothing in s 29, nor the purpose of the Crown Entities Act in s 3, to suggest that Parliament intended to create a private law remedy in addition to this public law duty.
[90] Also, the panel considered that Mr Henry did not meet the criteria for qualification for the RRC role, and therefore would not have been recommended for appointment irrespective of the desirability of promoting diversity in the membership of the Human Rights Commission.
[91] Mr Henry’s allegation of breach of statutory duty by reference to s 23 of the Official Information Act 1982 or s 17 of the Public Records Act 2005 cannot succeed, for the following reasons. First, they were not pleaded. Secondly, they do not require the panel to make a contemporaneous record of their discussions. Thirdly, they do not create duties enforceable by the tort of breach of statutory duty. I do not consider that Parliament intended to create private law remedies as well as to confer these public law duties on public officials. The Official Information Act 1982 provides an alternative mode of enforcement, namely a complaint to the Ombudsman. Fourthly, Mr Henry did not seek a statement of reasons under s 23 but instead met with two members of the panel to discuss the reasons why he was not shortlisted.
Breach of NZBORA
[92] Mr Henry’s claim under s 27 of NZBORA is based on his preceding claims of acting unfairly and unlawfully. Given that I have found that these preceding claims are not made out, and given that the right to natural justice under s 27 is coincident with the right to natural justice at common law, I consider that Mr Henry’s claim of breach of s 27 of NZBORA is also not made out.
Result
[93]The application for judicial review is dismissed.
Costs
[94] As proposed by the respondents following the minute of Fitzgerald J reserving costs in respect of the first application for interim relief, I will now hear from the parties on costs. My initial view is that costs should follow the event on a 2B basis. Insofar as the respondents seek costs and they cannot be agreed, the respondents are to file and serve a memorandum within 15 working days and Mr Henry is to file and
serve a memorandum in response within 10 working days thereafter. I will then determine costs on the papers.
Gault J
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