Peter Dunne
September 26, 2024
Darleen Tana’s extraordinary run as a Member of Parliament looks set to continue for some time yet. Now that the High Court has dismissed Tana’s application for an injunction to prevent the Green Party from invoking the so-called party-hopping legislation, the party will be able to proceed with their proposed meeting to determine her fate.
That meeting is now scheduled for October 17, 2024 – just over a year after the general election at which Tana was elected to Parliament. If more than three-quarters of the participants agree, the Green Party will then seek to apply the legislation to finally oust Tana from Parliament.
Appealing the Injunction
But it may not be quite that simple, nor a resolution of this distraction that rapid. For a start, there must still be some doubt that the planned October 17 meeting will in fact occur. Tana is reportedly considering whether to appeal the High Court’s decision and has until October 2, 2024, to decide whether to do so.
If previous practice is any guide Tana will delay that decision until as late as possible. Should an appeal be lodged, it is unlikely that it will be disposed of in time for the Green Party’s proposed October 17 meeting to proceed, further slowing down an end to the saga that has already been dragging on since March.
But even if the meeting does proceed as planned, and the 75% support threshold the Green Party’s rules require for seeking to evict Tana from Parliament is achieved, there are still more steps to be taken before Tana’s political execution can be carried out.
Under the Electoral Integrity Act 2018, there is a deliberate process for expelling a Member of Parliament who has left the party for which they had originally been elected. It is triggered by a letter from the Member’s party leader to the Speaker formally advising that they have left the party for which they had been elected.
The Act requires that notice to the Speaker to state “that the parliamentary leader reasonably believes that the member of Parliament concerned has 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.” The letter must also confirm that the party leader has written to the Member of Parliament, advising them that the party is seeking to apply the legislation, and setting out the specific reasons for its decision to do so.
The Member of Parliament then has 21 working days to respond to the party’s charges. The party leader is then required to advise the Speaker that the party’s caucus has considered the Member’s response and that a minimum of two-thirds of its membership has supported the application for the Member’s expulsion proceeding. It is then over to the Speaker to determine the outcome.
Therefore, should the Green Party meeting scheduled for October 17, 2024, proceed and give the party the mandate it requires to seek Tana’s expulsion, the party leadership will then need to apply the processes set out above. Assuming no slippage, the absolute earliest date on which the party will be able to confirm with the Speaker that it has followed the procedures set out in the Act and that Tana should be expelled from Parliament is November 18, 2024.
Delay Tactics
However, given the history of this case so far, that deadline seems extremely unlikely to be met. From the outset, Tana’s entire strategy has been to drag things out for as long as possible to inflict maximum embarrassment on the Green Party, while continuing to collect her Parliamentary salary and allowances.
That approach hardly seems likely to change at this late stage. Even if Tana decides not to appeal the recent High Court decision, there remains the likelihood of further Court action at any point from here on, especially if the Green Party does not tick correctly all the provisions of the Electoral Integrity Act. There is also the more unlikely possibility that the Speaker may feel unconvinced in part or in whole by the submission the Green Party eventually makes to him.
If the 2003 case of Donna Awatere-Huata’s expulsion from the ACT Party is any guide, the Tana case may therefore only be at its middle stages. In July 2003, the ACT Party leader advised the Speaker of his party’s wish to invoke the Electoral Integrity legislation then in place to expel Awatere-Huata from Parliament. Subsequent legal action from Awatere-Huata challenging this move went through several Court processes, before being finally resolved in ACT’s favour by the Supreme Court over a year later in November 2004.
A repeat of that legal marathon might appeal to Tana but is the last thing both the Green Party and the public would want. Nevertheless, based both on experience and Tana’s conduct to date, it is a potential outcome both should brace themselves for.
After all, political revenge is at its best when it is drawn out!
Peter Dunne was a Minister of the Crown in the Labour and National-led governments from December 1999 to September 2017. He lives in Wellington and writes a weekly Column.
