The High Court dismissed MP Darleen Tana's application for judicial review, finding the Green Party's inquiry into her conduct to be constitutionally sound, procedurally fair, and reasonable, despite not strictly following all internal rules.
The Green Party of Aotearoa New Zealand (“Party”) is a political party registered as an incorporated society. Darleen Tana joined the Party in 2018 and was elected to Parliament as a list member in October 2023.
The Party's constitution outlined separate disciplinary procedures for ordinary members and MPs, with the latter being significantly more flexible.
In early 2024, the Party was alerted to allegations of migrant worker exploitation at a company owned by Ms Tana’s husband. Ms Tana had been a director and shareholder of the company until April 2019.
Upon receipt of these allegations, Party co-leaders Chlöe Swarbrick and Marama Davidson (“Co-Leaders”), pursuant to the disciplinary procedure for MPs, initiated an inquiry into Ms Tana’s knowledge of and involvement with the allegations (“Inquiry”). Under this disciplinary procedure, one option available to the Co-Leaders after the Inquiry was to formally request Ms Tana’s resignation.
The Inquiry’s report was sent to the Co-Leaders on 5 July 2024. On the following day, the Co-Leaders formally requested Ms Tana’s resignation by email. Ms Tana responded by emailing the Party’s chief of staff and all members of the Party caucus alleging that she had no confidence that the Inquiry would follow a fair process, and that she resigned as a member of the Party effective immediately.
However, she did not resign as an MP, remaining in Parliament as an independent despite having been elected as a Green Party list candidate.
In response, on 28 July, the Co-Leaders sent Ms Tana a letter notifying her of the Co-Leaders’ belief that her actions had ‘distorted the proportionality of party representation in Parliament’ and notifying her of a special general meeting of the Party to be called to decide whether to notify Speaker of the House. Notifying the Speaker would trigger the “waka jumping law” (sections 55A – 55E of the Electoral Act 1993), which would enable Ms Tana to be removed from Parliament and replaced with a candidate from the Party list.
In response, Ms Tana filed judicial review proceedings against the Party, seeking declarations that the Inquiry was unlawful.
Ms Tana’s application alleged the Inquiry was unauthorized by the Party's constitution and breached the principles of natural justice. She also argued that she had been unlawfully and unreasonably "ousted" from the Party.
Jurisdiction
The Court affirmed the principle that while incorporated societies were private bodies, their actions could be subject to judicial review where they involved a public or quasi-public function. In this case, the Inquiry’s potential impact on parliamentary representation satisfied the public function element, meaning the Court had jurisdiction to review.
Constitutional authority and process
Ms Tana argued that the disciplinary process for ordinary members should apply to her because the issues raised in the Inquiry pre-dated her role as an MP. However, the Court held that due to the inquiry's urgency, the public nature of the allegations, and their potential impact on the party's public image and parliamentary standing, application of the prescriptive member disciplinary process was inappropriate.
While acknowledging that the party didn’t adhere strictly to its outlined MP-specific process either, the Court emphasized the inherent flexibility within the Party’s constitutional framework. The Co-Leaders' decision to commission the Inquiry was viewed as falling within their constitutionally delegated authority to manage the Party's Parliamentary affairs. Following consideration of the balance of power between the party’s executive bodies and its Parliamentary caucus, the Court concluded that the Co-Leaders’ decision was within the bounds of their constitutional authority.
Accordingly, the Court rejected this ground.
Natural justice
The Court went on to reject Ms Tana’s argument that the investigation breached the principles of natural justice. While the Court acknowledged that the procedure outlined in the Party-Caucus Agreement had not been followed to the letter, Ms Tana's opportunity to review witness statements, provide detailed feedback on the draft report, and participate in a full interview were deemed sufficient to satisfy the principles of natural justice.
The Court also rejected Ms Tana’s claim that the investigation was pre-determined or biased, finding no evidence to support this claim. Overall, the Court viewed the genuine purpose of the Inquiry to be establishing facts, not pre-determining fault. The Inquiry’s terms of reference explicitly stated that it would not determine the merits of the underlying employment claims.
The "Ousting" Argument
The Court held that Ms Tana’s claim that she was ‘ousted’ from the party was not supported by evidence, finding that any perceived pressure to resign stemmed primarily from her role as an MP and the potential impact of the allegations on the party's parliamentary standing, not her party membership. The Court interpreted Ms Tana's resignation email not as a response to party pressure, but rather as a strategic decision intended to influence the handling of the situation, demonstrating her agency and capacity to resist any party coercion.
The Court dismissed Ms Tana's application on all grounds. Since the decision, the Party has triggered the waka jumping law, resulting in Ms Tana being expelled from Parliament on 22 October 2024, being replaced by Green Party MP Benjamin Doyle.
Prior to her expulsion, Ms Tana appealed the High Court’s decision. While there is no indication that the appeal has been withdrawn, the Court of Appeal is unlikely to be able to provide Ms Tana meaningful relief if the appeal succeeds given that she has already been expelled from Parliament.
