Ipsofactoj.com: International Cases [2001] Part 6 Case 6 [NZCA]




- vs -

Minister of Transport




11 APRIL 2001


Blanchard J

(delivered the judgment of the court)


  1. Mrs McInnes is strongly opposed to certain features of the new driver licensing regime which was introduced as from 3 May 1999 by the Land Transport (Driver Licensing) Rule 1999 ("the Rule") made under the Land Transport Act 1998 ("the Act" or "the 1998 Act"). In particular, she objects on privacy grounds to the requirements for the making and storage of photographic images of drivers and their signatures and to the provisions for eyesight testing by the use of a machine. She also objects to the manner in which the Rule provides for a differentiation in the expiry dates of the new card licences (containing a photograph of the driver) as between new entrants into the land transport system and persons who were holders of the old "lifetime" paper licences which expired pursuant to a provision of the new system. (A claim that she had a legitimate expectation that her "lifetime" licence would not expire until 31 March 2011 was not pursued in this Court.)

  2. In the High Court at Wellington, in a reserved judgment delivered on 3 July 2000, McGechan J dismissed Mrs McInnes’ application for a declaration that the Rule is invalid and for an order quashing or setting it aside. She appeals against that decision. In the course of his judgment McGechan J concluded that the requirements of s 161(2) of the Act relating to prior consultation had not been satisfied by the Minister of Transport, the Hon Maurice Williamson, in the process which led to the making of the Rule. Although the Judge exercised his overall discretion against granting Mrs McInnes any form of relief, the present Minister is concerned about the implications of this portion of the judgment and has brought a cross-appeal in respect of it.

  3. In our view a large part of Mrs McInnes’ case is based on misconceptions or misinterpretations relating to the requirements of the Act governing the rule making process and the content of this particular rule. When these requirements are properly understood many of her arguments will be seen to be untenable. It is appropriate therefore to begin this judgment by dealing with the meaning and effect of the provisions in question, which we preface with some background facts.


  4. Mrs McInnes has challenged the consultation process which preceded the making of the Rule. The process began as long ago as December 1994 with the release of an Issues Paper. It went through various stages for about the next four and a half years, in the course of which a number of papers and drafts were released for public comment. In particular, on 24 November 1997 there was a public notification, stated to be under s 161(2), of a draft rule (known as the "Yellow Draft") and on 4 December 1998 a revised "Green Draft" was issued.

  5. A large part of the work was done while two earlier pieces of transport legislation, the Transport (Vehicle and Driver Licensing and Registration) Act 1986 ("the 1986 Act") and the Land Transport Act 1993 ("the 1993 Act"), were in force. The portions of the 1986 Act relating to the licensing of drivers and the whole of the 1993 Act were repealed by the 1998 Act as from 1 March 1999 when the 1998 Act came into force. The Rule was made just over two months later. A significant part of the consultation process concerning licences therefore occurred concurrently with the Parliamentary processes leading to the enactment of the 1998 Act and was carried out in anticipation of that Act.

  6. One of Mrs McInnes’ arguments is that the extensive public consultation prior to commencement of the 1998 Act cannot, except to a rather limited extent, qualify as consultation under the 1998 Act. She also says that confusion resulted from the overlap in the rule-making and Parliamentary processes.


  7. The relevant provisions of the 1998 Act are:


    Procedure concerning ordinary rules


    Before making an ordinary rule, the Minister must –


    Publish in the Gazette, and in the daily newspapers published in Auckland, Hamilton, Wellington, Christchurch, and Dunedin, respectively, a notice of his or her intention to make the rule; and


    Give interested persons a reasonable time, which must be specified in the notice published under paragraph (a), to make submissions on the proposal; and


    Consult with such persons, representative groups within the land transport system or elsewhere, Government departments, and Crown entities as the Minister in each case considers appropriate.


    Savings relating to rules and land transport strategies


    Any action taken by or on behalf of the Minister before the commencement of this section under section 10(1) of the Land Transport Act 1993, which action was taken in relation to any proposed rule under that Act, is deemed to have been taken by the Minister under, and for the purposes of, section 161(2) of this Act before the making of the rule.

  8. Section 10(1) was in nearly identical terms to s 161(2). The 1993 Act created the Land Transport Safety Authority ("the LTSA" or "the Authority"), which continues under Part 14 of the 1998 Act and whose functions include the establishment of safety standards concerning entry into, and operations in, the land transport system. Obviously the licensing of drivers is a means of establishing such standards. Another purpose of the 1993 Act, according to its Long Title, was to authorise the making of rules relating to land transport. Section 4 of that Act empowered the Minister to make rules for the purpose of safety and licensing, including technical requirements and standards, for the land transport sector. Section 6 empowered the Minister to make rules for the licensing of road users and to set licensing requirements for those persons, including (but not limited to) the specification of conditions associated with licences.

  9. Although there continued to be regulation making powers relating to driver licences in s 48 of the 1986 Act, it is clear that the 1993 Act, which was one of a number of measures restructuring the Ministry of Transport and the transport sector generally, envisaged the development of rules governing various aspects of the land transport system which would replace prior control by regulations. We have no doubt that the Minister had power under the 1993 Act to bring a rule governing driver licensing into force and that he could at the same time have revoked the regulations on that subject made under s 48 of the 1986 Act. Therefore the work done prior to the commencement of the 1998 Act was, in our view, "action .... taken in relation to any proposed rule" in terms of s 229 of the 1998 Act.

  10. In agreement with McGechan J, we also have no doubt that Parliament intended that the consultation done by the Minister before 1 March 1999 was to be deemed to have occurred under and for the purposes of s 161(2). Even in the absence of the express deeming provision (s 229), we would have been inclined to the view that the Minister could have placed reliance upon such consultation – subject to the further questions dealt with later in this judgment. Consultation by a Minister with citizens and groups of citizens on proposals for law making is not something which requires the authorisation of an Act of Parliament. It is a very desirable part of the ordinary processes of government. Subject to any statutory directions, it can be done at the discretion of a Minister in such manner as the Minister thinks appropriate in the circumstances. Accordingly, what was done by way of consultation in relation to licensing of drivers before the 1998 Act could have been lawfully done in anticipation of new legislation even if s 10(1) of the 1993 Act had not existed. Furthermore, s 61(2) replicates s 10(1) and is not to be regarded as having set up a brand new process for the making of rules. The development of rules was to continue as before. It would be quite absurd and artificial in these circumstances to interpret the will of Parliament, as expressed in s 61(2), to be that the Minister had effectively to begin all over again with little or no account being taken of his past endeavours. Plainly, Parliament was expecting that, to the extent necessary, the Minister would complete such work as may have been already done towards the creation of rules which he had been developing under the 1993 Act. Section 229 confirms this position.

  11. That brings us to the question of what the Minister was required to do under s 61(2) (and previously under s 10(1)) before making a rule. First, he had to publish as directed a notice of intention to make the rule. Next, he had to give interested members of the public and organisations a reasonable time – i.e. an objectively reasonable period specified in the notice – in which to make submissions on the proposed rule. To fulfil this obligation, the Minister was required to make the detail of the proposed content of the rule available to interested parties. The best way to do this was to make available a draft of the rule, which is what the Minister did in issuing the Yellow Draft in November 1997.

  12. It is implicit also in subs (2)(b) that the Minister will consider in good faith submissions which are received. It is not and cannot be said that the comments, criticisms and suggestions made in response to the Yellow Draft were not carefully considered. Mrs Clark, for the Crown, was able to refer us to compilations of responses by the LTSA and to particular instances in which they helped shape the changes to the proposal which emerged in the Green Draft. (As it happens, Mrs McInnes did not make submissions either on the Yellow Draft or the Green Draft.)

  13. The third of the obligations under s 61(2) was to consult, which could be done separately from or in conjunction with the receipt of submissions. It is to be noted that whereas under (a) and (b) the Minister has no discretion – the notice must be published and a reasonable time must be given – under (c) what the Minister must do is qualified by what the Minister considers appropriate in the case of each person, group, department or entity. This is not surprising. A requirement in absolute terms to consult with all and sundry would be impossibly burdensome and might not be a very productive exercise.

  14. Counsel for the appellant referred the Court to the well-known case on the obligation to consult, Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671. He cited various propositions from that case, such as that the decision-maker is required to meet with an open mind the parties with whom it is necessary to consult and must take due notice of what is said at such meetings and must wait until they have had their say before making a decision. But, with due respect to Mr Gwilliam, that is a case in a completely different context (consultation with a limited number of airlines using an airport). For the most part, the propositions which he put to us cannot be translated into the context of an obligation to consult publicly such persons etc as the Minister considers appropriate.

  15. The Minister must, of course, act reasonably in choosing whom to consult. He ought not, for example, to overlook organisations representing particular interests or individuals who are, by reason of expertise, in a position to express an informed view (and there is no suggestion that he did that). But the exercise of a discretion about what consultation is appropriate should not be confused with an obligation to give all interested persons, who may be experts or lay people, misguided or not, the opportunity of putting forward their views in the form of a submission. Having received and properly considered a submission, the Minister need not consult with a submitter unless it is considered appropriate in the particular case or it would be irrational to do otherwise.

  16. Having gone through the process required by s 61(2) and taken into account all that has been learned, the Minister may, as happened in this case, decide to modify the original proposal, by amending the draft rule. The Minister would not ordinarily be obliged then to re-commence the process by publishing a notice of intention to make the rule as amended and inviting further submissions. We mention this point in order to add a qualification. If, as a result of the submission and consultation process, the draft is so transformed that what the Minister is then considering is really a completely new rule, the Minister would have to start again. This will sometimes be a difficult question of fact and degree upon which the Minister will no doubt take advice. As will be seen, the changes from the Yellow Draft to the Green Draft to which we have been referred were certainly not of this magnitude.


  17. The appellant took the position that there were deficiencies in the consultation process in relation to what she saw as important privacy issues. She complained that it was not until quite late in the process that it became clear what the Rule was going to contain about photographs and signatures of licence holders. It was also submitted that the Rule was invalid because it was not framed in the least privacy intrusive way, consistently with Art 17 of the International Covenant on Civil and Political Rights.

  18. Mrs McInnes objects to the requirement that every applicant for a driver licence must be photographed by a licensing agent of the LTSA with that photographic image then being stored in the Authority’s records. She also objects to the requirement that each applicant must authorise electronic capture and retention of an image of their signature.

  19. Although we considered from our own perusal of the 1998 Act that the Minister had no discretion in these matters because, for the reasons we are about to give, the Rule merely follows what is mandated by the Act, we questioned Mr Gwilliam at the hearing in an attempt to clarify his client’s concerns and to have him identify the evidence (if any) supporting her views. Counsel indicated that his client is fearful of misuse of her image and signature once they have been entered into the LTSA’s computer system; in particular, that they will become available to other government agencies. She would prefer a procedure in which the applicant provides her own photograph, as is done, for example, on a passport application. She also believes that applicants’ signatures should be supplied on paper. She is concerned that the Crown or its agent may electronically place her signature on a document other than the licence card. She seemed to be suggesting the possibility of conduct which would not only be unauthorised but would also amount to forgery.

  20. Mr Gwilliam was not able to point to any evidence on this question. His client’s views therefore appeared to be mere speculation. It seems to us that an applicant supplied photograph and a signature on paper – both of which would have to be incorporated into the licence by some means, presumably electronic – would also be open to abuse if a Crown agent were so minded. We have not been shown any sensible basis for the belief that the Crown and its agents have any such intentions. Nor have we been referred to any evidence that the new licensing system is actually open to abuse of the kind feared by Mrs McInnes. Section 200 of the Act in fact restricts access to photographic images stored by the LTSA to an employee of the Authority, in the course of his or her duties, and a member of police, on production of written consent by the applicant or a duly issued warrant.

  21. However this may be, and we do not pretend to be versed in the technicalities, the privacy argument is actually precluded by the Act itself. Section 28 says that a driver licence must have on it (inter alia) a photographic image of the holder and the holder’s signature. Section 199 directs the LTSA as to the content of the register of driver licences. The register established under the 1986 Act, which we were told by Mr Gwilliam was an electronic register, is to be continued and maintained (subs (1)). It now must "show", inter alia, "photographic images" of the licence holder. (Both the words quoted are consistent with an electronic image). Those images must have been "taken for the purposes of this Act" (subs (2)(o)). That precludes use of a photograph supplied by the applicant because, even if there were a specification of what was required, the LTSA could not be sure whether the photograph had been taken appropriately, and was thus satisfactory for those purposes, unless it was taken by an agent of the Authority.

  22. The register must also show the holder’s signature (subs (2)(a)). We take this to mean precisely the same signature as s 28 requires to appear on the licence, not merely another specimen written by the applicant, which could differ considerably. So far as we are aware, this could not be achieved except by some electronic means. Certainly, when this was put to him, counsel for Mrs McInnes did not appear to suggest otherwise.

  23. The Rule’s provisions about photographic images and electronic signature thus appear to follow inevitably from the Act. And even if they did not, the privacy concerns would appear to be common to the appellant’s preferred means of accomplishing the same end.


  24. Mr Gwilliam submitted that the process under s 161(2) was not undertaken by the Minister or on his behalf. The argument was that all the work was done by the LTSA, a separate body from the Ministry of Transport, and that the Minister’s involvement was very largely confined to receiving reports from the LTSA. (We assume for present purposes the correctness of the proposition that, in the absence of an express power of delegation, the Minister must personally attend to the things required under s 161(2) but, given the nature of them, we are by no means convinced that this is so.)

  25. Mr Gwilliam’s argument had to overcome express provisions in the Act enabling the Minister to delegate all his functions and powers to the Authority (s 207 of the 1988 Act; s 26 of the 1993 Act); and enabling the Authority to delegate to its employees any of its functions and powers (s 203 of the 1998 Act; s 27 of the 1993 Act). Counsel was also faced with an affidavit from the Minister describing his relationship with the Authority and how the work had been attended to on his behalf.

  26. Counsel accepted that he could not point to anything in the evidence contradicting the Minister’s statement. The LTSA was in regular communication with the Minister concerning the process and clearly the Minister was looking to it to fulfil his functions under s 161(2) and its predecessor, s 10(1).

  27. Mr Gwilliam drew attention, however, to the requirement in s 207(2) and s 203 (and their respective predecessors) that a delegation must be "in writing". On this point the Minister appeared to us to be in a possible difficulty. There were no specific instruments of delegation either from the Minister to the LTSA or internally within the Authority. But counsel for the Minister argued that the terms of the Annual Performance Agreement between the Minister and the Authority could constitute a written delegation. The 1997/98 Agreement refers to work programmes for advice on licensing and to the required consultation on the Yellow Draft as a standard to be achieved. The rule making process was again referred to in the next year’s agreement.

  28. We find it unnecessary to determine whether there was a delegation in writing by these means. The absence of a written delegation may be fatal where the delegated task is the making of a decision bringing into force a rule or exercising a power (in other words, producing an end result). But where the delegated task is confined to a process of obtaining submissions and of consultation, and that task has been adequately performed by the delegate on the basis of an oral delegation, it would be entirely unreasonable to treat the Rule which was ultimately made by the Minister himself (not by the delegate) as invalid because the delegation was not in writing. If the Minister breached the law in this respect only, which we do not decide, a breach of that kind did not in the circumstances vitiate the Rule.


  29. Another aspect of the process under s 161(2) was the subject of a separate argument. It was said that the Minister had not properly discharged his obligation to give notice of his intention to make the Rule. The notice was in the following form:

    Land Transport Safety Authority

    Land Transport Act 1993

    Notice of Proposed Driver Licensing Rule

    The Land Transport Safety Authority (LTSA), in accordance with section 10(1)(a) of the Land Transport Act 1993, gives notice that draft Rule 91001: Driver Licensing is available for public comment.

    This draft rule proposes requirements for obtaining and renewing a driver licence and for driver licensing service providers.

    A copy of draft Rule 91001 may be obtained by telephoning the LTSA Help Desk on Freephone 0800 690 000.

    The draft rule is available for public viewing at the LTSA’s 7 regional offices and on the internet on the Government Online web site at http://www.govt.nz/.

    Submissions on draft Rule 91001 close on 21 January 1998.

    For further information contact:

    The Rules Team, Land Transport Safety Authority,

    P.O. Box 2840, Wellington.

    Dated at Wellington on the 24th day of November 1997.

    ANGELA DUNCAN, Manager Rules Team, Land Transport Safety Authority.

  30. Mr Gwilliam’s criticisms of this notice were that it did not indicate the requisite intention to make the Rule and that it was not in the name of the Minister personally. These criticisms are both groundless. The notice refers to s 10(1)(a) which, like s 161(2)(a), is the very provision which required the Minister to give notice of his intention. Moreover, the notice refers to a "draft rule". The obvious meaning is that it is intended to make a rule in terms of the draft. The notice is signed by an employee of the LTSA, acting as delegate of the Minister, and our position about that is as already recorded.


  31. The appellant says that there was a breach of s 161(2) because the time frame in which to make submissions was not reasonable and the procedure used was confusing and therefore unreasonable given that consultation was at the same time being undertaken on the Bill which became the 1998 Act.

  32. The closing date for submissions on the Yellow Draft, issued on 22 November 1997 and not in fact available from the LTSA until 5 December 1997, was notified as 21 January 1998. Allowing for holidays, this was said to give less than a month for responses and at an inconvenient time of the year. It was said to have led to a paucity of submissions.

  33. Though troubled by the "very short" time, in the end McGechan J felt that a reasonable time for submissions had in fact been allowed because time limits were not rigidly insisted upon. But, appellant’s counsel said, although it was true that the Authority did not require adherence to the time limit, formal notice was not given of any extension of time and the LTSA communicated that fact informally only to those whom it perceived as being interested in making submissions. Mr Gwilliam said that a wrong appearance was created for the public. He was unable to say that Mrs McInnes was personally prejudiced.

  34. While sharing McGechan J’s concerns, we agree with him that the decision to allow a period of eight calendar weeks without any intention, it seems, of requiring strict adherence (21 submissions were received after 21 January 1998 and all were considered) cannot be seen as unreasonable in the context of this very long running process. That said, it might have been wiser to make greater allowance for the holiday period when potential submitters would very likely have their minds on relaxation and pleasure rather than on scrutinising a draft rule. But, in looking at the period actually set, it is to be remembered that the Yellow Draft did not, for those interested in the subject, come "out of the blue." It had been preceded by earlier publications, including a Proposed Policy Paper which signalled the Minister’s approach and which itself attracted over 550 submissions. The Minister also continued to refine his proposal and published the Green Draft in December 1998 before eventually making the Rule in May 1999. (There is a separate complaint about the short time for responding to the Green Paper and its limited availability. But, on our interpretation of s 161(2), the Minister had no legal obligation to call for submissions on it.)

  35. The complaints of the appellant about confusion allegedly caused by the contemporaneous passage of the Bill through Parliament do not appear to be supported by any evidence that members of the public were actually disadvantaged in the making of submissions on the Yellow Draft. (Certainly Mrs McInnes cannot say this as, despite the giving of public notice, she appears to have been unaware of the Yellow Draft until late in 1998.) The only matter upon which Mr Gwilliam relied was that the LTSA had noted in summarising submissions on the Yellow Draft that some of them concerning photographic driver licences should have been directed to the Select Committee on the Bill. It is hard to see how this can support his argument. As we have said, the content of the Rule about photographic images was dictated by the Act. This case is not about what the Act might have said if the Select Committee had heard from Mrs McInnes or other persons sharing her views.

  36. The appellant also says that s 161(2) was not complied with because the Yellow Draft had an unduly limited distribution. But, except where the Minister thought it appropriate to consult with someone, he had no obligation to do anything other than to give notice of intent to make a rule and to ensure that those responding to his notice were given a copy of the draft or were otherwise informed about its content. The High Court commented that it would have been preferable for a Privacy Impact Assessment to have been distributed at the same time, but the 1998 Act imposed no such obligation upon the Minister.


  37. The appellant also argued that the Rule is invalid because the Minister exceeded his powers in making it. The argument is that s 169 provides that the Minister’s principal function under the Act is to promote land transport safety "at a reasonable cost". Section 169(4) says that for the purposes of the section, a cost is a reasonable cost if the value of the cost to the nation is exceeded by the value of the resulting benefit to the nation. In making a rule the Minister is enjoined by s 164(2) to have regard, and give such weight as he or she considers appropriate in each case, to a number of factors, including the costs of implementing land transport safety measures (s 164(2)(e)).

  38. It was submitted that the Rule has the effect of burdening the New Zealand driving public with significant costs, both financially (in terms of obtaining new licences) and in terms of intrusion into their privacy. There is also financial cost to the Government in the setting up of a new computer system to process photographic licences. It was asserted that there is no resulting benefit to the nation from the new system in road safety or other terms.

  39. Presented as it was, without any supporting evidence and as mere assertion, this is an argument which could not possibly succeed. The Court has no ability to make an assessment; indeed it may even be a matter which is not really justiciable and where any judgment must be rendered through the processes of political accountability.


  40. We consider that the Judge erred when he found that certain changes made between the Yellow Draft and the Green Draft were of sufficient importance and novelty to require what he called "much wider notification and opportunity to make submissions". Neither alone nor in combination did the four things to which he adverted transform the proposal in the Green Draft into a "new rule". This was in essence the issue raised by the Minister’s cross-appeal.

  41. The four things identified by McGechan J were:


    More demanding eyesight tests, using a machine rather than the familiar wall chart, and also testing peripheral vision;


    Requiring a written consent to digitised storage of signatures;


    Staggering of expiry dates of new licences; and


    Some format changes.

  42. Items (b) and (d) were clearly of no moment. Digitised storage was required by the Act. The requirement for written consent was apparently inserted to comply with Privacy Act principles. The format changes, as the Judge himself said, were consequential on legislative changes.

  43. Item (a) was a response to submissions from experts on the subject of eyesight testing. In view of the road safety focus of the legislative reforms, the Minister could be said to be failing in his duty if he had not accepted expert guidance on what constituted effective testing. Eye testing by machine would not appear to be any more invasive of privacy than testing by use of a chart. The applicant indicates what he or she sees and passes or fails in the same way. It seems that Mrs McInnes’ objection to the use of the machine is the possibility that Big Brother (her expression in an affidavit) might take the opportunity of capturing in a computer a retinal scan of the applicant’s eyes which could be used as a means of identification. The image might then become available to other government agencies. This rather bizarre assertion is not supported by any evidence that the Minister or the LTSA or any agent is actually taking photographs of eyes or otherwise capturing their image during eye testing or is intending to do so. Such an action would be unlawful, even if the testing machine had that capability (of which there is also no evidence). The Act contains no authorisation for the capturing or storage of such data. As to the testing of peripheral vision, it too was recommended to the Minister on road safety grounds. Mrs McInnes has produced nothing to the contrary. Her case has never been advanced on the basis of discrimination against those suffering from problems with their peripheral vision, so that the Canadian authority to which Mr Gwilliam referred, British Columbia (Superintendent of Motor Vehicles) v British Colombia Council of Human Rights [1999] 3 SCR 868, is irrelevant.

  44. That leaves item (c), the staggering of expiry dates of the new licences. The Yellow Draft provided for all licences to expire on the holder’s 25th birthday and again every 10th birthday until the 65th birthday. The Green Draft proposed essentially the same for those, like Mrs McInnes, who had held "lifetime" licences which were to be cancelled. They would be issued licences under the new regime to expire in the year they turned 25, 35 etc, but on the anniversary of the issue date, not on their birthday. This was a very minor change from the Yellow Draft. More significant was a change for people who would obtain an entirely new licence (i.e. not converting from the old system). In their case, the Green Draft departed from the proposal in the Yellow Draft by proposing that their new licences would issue for 10 years and then be renewable every 10 years. This change was obviously to their advantage, as compared with the Yellow Draft, but it was not sensible to apply it to existing licence holders because all their new licences would then come up for renewal in the same years. It was also undesirable to postpone the time at which they would come into the new system.

  45. As we have said, these changes were insufficiently substantial to create a situation in which the Minister could, upon issuing the Green Draft, be said to be proposing a new rule which required him to go through the s 161(2) procedure all over again.


  46. The arguments of the appellant have not established the invalidity of the Rule. She was rightly refused the relief she sought. The appeal is dismissed and the cross-appeal allowed.

  47. The appellant must pay the respondent’s costs on the appeal in the sum of $5,000 together with the respondent’s reasonable disbursements, which are to be fixed by the Registrar if not agreed upon by the parties.


Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671; British Columbia (Superintendent of Motor Vehicles) v British Colombia Council of Human Rights [1999] 3 SCR 868


Land Transport (Driver Licensing) Rule 1999

Land Transport Act 1998, s.161(2), s.200, s.229(1)


J C Gwilliam and M A Daniell for Appellant (instructed by John Gwilliam & Co, Upper Hutt)
K L Clark and J S McHerron for Respondent (instructed by Crown Law Office, Wellington)

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