The Green Party is considering using the party-hopping law to expel now independent MP Darleen Tana from parliament. Tana thinks the party may legally be unable to do so – but is almost certainly wrong, writes Andrew Geddis.

Darleen Tana, Darleen Tana – they seem to have been in the news forever. Remind me why are we still talking about them?

Darleen Tana was elected as a Green Party list MP (due to their ranking at lucky number 13) at the 2023 election. In March of this year a number of allegations were made regarding their knowledge of, and involvement in, the treatment of employees at a business they ran in conjunction with their husband. Those employees allegedly were hired in breach of their immigration visas and allegedly were improperly paid. 

The Green Party placed Tana on paid leave while these accusations were investigated by an independent lawyer, Rachel Burt. After a lengthy period – some four months! – Burt reported her conclusions that Tana had at least known about the alleged mistreatment and had failed to tell the Green Party about their involvement. The Green Party MPs then arranged a caucus meeting to discuss expelling Tana, but before they could do so Tana tendered their resignation from the party. The Greens leaders then told the speaker that Tana was no longer one of its MPs, whereupon the speaker declared them to now be an independent MP. 

We’ve seen stuff like this before, though. Jami-Lee Ross, Gaurav Sharma, Elizabeth Kerekere, Meka Whaitiri … didn’t they all become independent MPs and carry on until the next election without any ongoing attention?

Yep. The rules of parliament are that if the speaker is told an MP is no longer a member of the party that the MP was elected for, he must declare that MP to be an independent MP. They then get to stay on as MPs, albeit in a largely useless capacity, until they get voted out at the next election (as always happens).

What makes this situation different, however, is that the Green Party seriously is considering going a step further and invoking the party-hopping law to have Tana’s seat “declared vacant” (ie to have them kicked out of parliament altogether). That didn’t happen with any of the other recent independent MPs.

The party-hopping law – another thing that keeps on coming up. How does it work?

As I previously have explained, the party-hopping law applies either if an MP “self-sabotages” when quitting their party, or if the MP’s former party chooses to “axe” them from parliament after they leave. Because Tana didn’t tell the speaker (in writing, with a signature) that they now wanted to be an independent MP they avoided the self-sabotage option. Meaning that for the party-hopping law to have effect, the party-axing option would have to be invoked.

At the end of July, Greens co-leader Chlöe Swarbrick kicked off this party-axing option with a letter to Tana telling them it was under way and giving them the chance to respond. Tana has now done so.

Saying what?

Well, saying quite a lot, most of which is that Tana did nothing wrong and has been treated poorly by the party. However, the interesting bit (for nerdy lawyer types) is that they dispute that the legal basis for invoking the party-hopping law exists. To lapse into legalese for a moment, they deny that they have “acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in parliament as determined at the last general election”. That’s the statutory requirement for when the party-axing option can be taken.

Does Tana have a point?

They quote a paragraph in a 2004 Supreme Court decision discussing when the party-hopping law can be invoked. In it, Justice Blanchard states that an MP being declared an independent is not enough by itself to trigger the party-axing option. Rather, “if it is not the actions of the MP which have led to the declaration [that the MP is an independent], it cannot, in my opinion, be said that the member has acted in a way that has distorted etc.”

And, says Tana, because they have done nothing wrong and have been treated poorly, it is not their actions that led to them being declared an independent MP. It rather was the Green Party that did so through its treatment of them.

That sounds compelling! Maybe Tana is onto something!

Maybe … but, no. First of all, it’s one paragraph from one of five judgments. The other four judges in the case are more accepting of an approach that becoming an independent MP in and of itself gives grounds for the party-axing option.

Second, we need to note the facts of the 2004 case. It involved an MP who accidentally forgot to renew her party membership and so became an independent MP when her party told the speaker she was no longer a party MP. Justice Blanchard – who Tana relies on as saying the law doesn’t apply to their situation – then accepted that “it was reasonable to believe that the root cause of the distortion was [the MP’s] failure to maintain her membership of [her] political party.”

In Tana’s case, the “root cause of the distortion” is that they actively quit the party. And so, if accidentally failing to renew your party membership is enough to trigger the party-axing option (as Justice Blanchard accepted), then surely deliberately resigning from the party is as well!

What is going to happen next?

The Green Party must actually invoke the party-axing option by sending a written notice to the Speaker. It is holding a meeting among its members on September 1 to give its leadership permission to do so. That’s not required by the party-hopping law, but given that the Greens once told parliament that “the Green Party has committed to not using the power that the legislation currently grants”, it obviously has to do a bit of soul searching before choosing to execute a complete U-turn on what once apparently was a core principle.

Then, the law requires that at least two-thirds of the party’s MPs must agree that the written notice should be sent to the speaker. You would think that’s pretty much a fait accompli, provided the party members first have given their blessing. With that backing, the party leader can then write to the speaker, and upon receiving this notice he must immediately declare Tana’s seat to be vacant. It then gets filled by the next unelected candidate on the Green Party list – Benjamin Doyle, from Hamilton.

Is there anything Tana can do to stop this happening?

Well, only a mug says that anything is certain. But it seems hard to see what they really can do, aside from trying to lobby members of their old party to oppose using the party-hopping law at all. 

They could try to go to court and seek an injunction against the Green Party leaders from delivering the relevant notice to the speaker under the party-hopping law. That would be really expensive for Tana, and it probably wouldn’t work, because (as I’ve noted above) the relevant Supreme Court precedent interprets the party-hopping law in a way that covers their situation. Finally, there’s a real question as to whether judges can even look at this issue any more following the passage of the Parliamentary Privilege Act 2014, which expands the range of “parliamentary proceedings” that are put beyond the courts’ reach.

As such, Tana’s parliamentary fate really rests with the Green Party and whether its commitments not to do something in the future come with the caveat “unless we really, really want to”.