Covid-19 Recovery (Fast-track Consenting) Act 2020, sch 5 – resource consent panel – appointment of panel members – convener discretion – appointment declined – character grounds
Panel Convener v Ngāti Paoa Trust Board  NZCA 412.
The Ngāti Paoa Trust Board nominated James Gardner-Hopkins as a member of an expert panel to decide a fast-track application for a resource consent under the Covid-19 Recovery (Fast-track Consenting) Act 2020.
The panel convener declined to appoint Gardner-Hopkins on character grounds (Gardner-Hopkins is serving a three-year suspension from practising as a lawyer after being found guilty of professional misconduct).
The board declined an invitation to nominate someone else and instead brought judicial review proceedings to challenge the convener’s decision.
The High Court held Gardner-Hopkins’ suspension from legal practice was an irrelevant consideration that should not have been taken into account, observing that a panel member need not be qualified as a lawyer and to deny Gardner-Hopkins’ appointment because of his suspension was to further punish him.
The convener’s decision was quashed, and a declaration made that the decision not to appoint Gardner-Hopkins was unlawful.
The convener appealed, seeking a declaration that he acted lawfully.
The board gave notice it intended to support the judgment by arguing the convener had no discretion to refuse to appoint Gardner-Hopkins (an argument rejected by the High Court) and that the decision breached tikanga Māori and principles of the Treaty of Waitangi (an argument the High Court did not find necessary to address).
Applicable principles: Covid-19 Recovery (Fast-track Consenting) Act 2020, sch 5 – composition of panels – whether the criteria for appointment under clause 7 are exclusive? – whether grounds for removal in clause 9 are relevant when appointments made? – whether the convener is entitled to consider past misconduct? – whether High Court judge had effectively substituted his assessment for that of the convener? – whether board had right under the Act to have its nominee appointed? – whether the decision was inconsistent with treaty principles?
Held: The appeal is allowed; the orders and declarations made in the High Court are set aside.
The convener was entitled to reject Gardner-Hopkins’ nomination on the ground the appointment of a suspended lawyer might shake public confidence in the panel. The public might reasonably wonder why a person, who has yet to complete a period of suspension to re-establish his fitness to practise law, is a suitable appointee to a quasi-judicial body that performs important public functions, and which needs a high degree of public confidence.