Darleen Tana

PoliticsAugust 22, 2024

Does Darleen Tana’s party-hopping legal argument stack up?

Contributing writer

Darleen Tana

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!

The debating chamber at parliament (Photo: Parliament.nz)

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”.

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Joel MacManus
— Wellington editor

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ĀteaAugust 22, 2024

The Treaty Principles Bill isn’t dead yet

Liam Rātana

Ātea editor

Image design: Liam Rātana

Despite coalition partners categorically ruling out support beyond a first reading, there could still be hope for Act’s controversial bill.

The Treaty Principles Bill has seemingly been put out of its misery before seeing the light of day, after the prime minister and NZ First’s Shane Jones made it clear their parties would not support the bill beyond its first reading. But there’s more than one way to skin a cat.

“The Treaty of Waitangi Principles Bill will not be voted for by New Zealand First beyond its introduction into parliament,” Jones recently told those gathered at Koroneihana celebrations for Kīngī Tūheitia Pōtatau Te Wherowhero VII in Tūrangawaewae.

Sharing the sentiment, prime minister Christopher Luxon used his speaking opportunity at Koroneihana to make it clear that his party “will not support the Treaty Principles Bill beyond the first reading”.

In response, David Seymour criticised his fellow coalition ministers for being “disrespectful and anti-democratic” by dismissing the bill before it was presented to the house.

Adding fuel to the fire, Winston Peters yesterday suggested that, despite Luxon’s clear stance that the bill would not progress beyond its first reading, there could be room for reconsideration if compelling new evidence arose. This directly contradicted the commitments made by Jones and Luxon at Koroneihana to vote down the bill at the second reading and highlights the fractures starting to appear in the coalition government.

According to Act, the intention of the Treaty Principles Bill is to establish in law that the principles of the Treaty are what the three articles of the Treaty “actually” say: that the New Zealand government has the right to govern (ie that Māori ceded sovereignty – a disputed point); that the authority and ownership of land and property of all New Zealanders is protected; and that all New Zealanders are equal under the law. Luxon recently agreed with the first of those points, saying he believed “the Crown is sovereign” after being questioned by Chlöe Swarbrick in the House as to whether or not he believed Māori ceded sovereignty via the Treaty.

The bill, which is yet to be drafted, and likely to be introduced in November, has been called one of the potentially most divisive bills to be introduced in the nation’s history. An apparent bottom line in the National-Act coalition arrangement, the bill is based on existing Act policy – though Seymour has hinted the wording may change – and National has committed to support it to the select committee stage.

David Seymour and Act would have been aware from negotiations that the bill would not be supported beyond its first reading by the coalition partners, but there would also have been an understanding that there could be other ways to get the bill across the line.

Usually, if a bill fails to gain the necessary majority at the second reading, it is effectively halted, and the legislative process for that bill ends. While the Treaty Principles Bill will apparently be voted down at the second reading, there are alternative paths for the bill to become legislation.

I suspect one such path being seriously considered by Act is what’s known as a reasoned amendment. Chapter 38, Section 38.3.2 of Parliamentary Practice in New Zealand provides the procedural framework allowing a member of parliament to propose a reasoned amendment. This effectively offers an alternative course of action to the second reading of the bill. For example, if members of the house do not wish to proceed with the second reading of a bill, Seymour could propose an amendment that the bill be put to a public referendum instead. While a reasoned amendment could theoretically suggest that the government consider holding a referendum, this would not automatically result in a referendum being held. For a referendum to take place, separate legislative measures would need to be introduced and passed to authorise the referendum, which goes beyond what a reasoned amendment alone could accomplish.

Should the amendment be proposed, it would be debated by the members of Parliament. The debate would focus on the merits of the proposed amendment, which could include a call to delay or reconsider the bill rather than passing it through the normal legislative process. Members of the house would then vote on whether or not to accept the amendment, which could be a party vote or a conscience vote. If deemed suitable for a conscience vote, each member of the House would be eligible to vote according to their own conscience, not necessarily aligning with their party’s stance. However, if a referendum were to be considered as an alternative way forward, this would require a separate legislative process, including the introduction and passage of a Referendum Bill. This is something Seymour and his colleagues would need to navigate carefully but it could keep the door open for a Treaty Principles Bill.

Recently, New Zealanders voted on referendums relating to the legalisation of recreational cannabis and euthanasia. While Seymour initially indicated his party’s Treaty Principles Bill would have a public binding referendum as part of a commencement clause, there’s nothing in the National-Act coalition agreement that refers to any referendum regarding this bill.

Despite the Waitangi Tribunal recommending the bill be abandoned, there is no indication that National intends to break its coalition agreement promise. Still, the Treaty Principles Bill faces significant hurdles, with key coalition partners signalling their intent to halt its progress after the first reading. However, as the political chessboard shifts, the bill’s fate is far from sealed. David Seymour and Act may be poised to leverage the democratic process in a bold move, proposing a referendum to bypass parliamentary gridlock and take the issue directly to the people. While this strategy would set a new precedent in New Zealand’s legislative history, it underscores the deep divisions and complexities surrounding the Treaty Principles Bill. As the debate unfolds, the future of the bill – and perhaps the nation’s interpretation of the Treaty – hangs in the balance.

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‘He mea tautoko nā ngā mema atawhai. Supported by our generous members.’

Liam Rātana
— Ātea editor