Darleen Tana’s High Court attempt to stop Greens using waka-jumping rule fails

Friday, 20 September 2024

The court threw out the former Green MP’s claim that the Green Party acted unlawfully in launching disciplinary action against her over claims of migrant exploitation against her husband’s e-bike business.

The decision means the Greens are free to invoke the so-called ‘waka jumping’ legislation to force Tana out of Parliament

Darleen Tana’s legal bid to save her political career has faltered at the High Court.

Justice David Johnstone has thrown out her claim that the Green Party acted unlawfully in launching disciplinary action against Tana over claims of migrant exploitation against her husband’s e-bike business.

Justice Johnstone’s decision means the Greens are free to invoke the so-called ‘waka jumping’ legislation to force Tana out of Parliament completely.

Tana quit as a Green Party member in July - but has resisted repeated entreaties from party leadership to resign as an MP.

At a preliminary hearing, Tana had managed to delay a vital meeting of the Green caucus to kickstart the waka-jumping process, due to be held on September 1.

But she had no luck in the full hearing, with Justice Johnstone rejecting all her claims.

Tana’s lawyer, Sharyn Green, claimed the Greens had used the wrong disciplinary process to ‘oust’ Tana; they had ignored tikanga in the way it treated her; and it had acted unlawfully by commissioning barrister Rachel Burt to conduct an independent review of what Tana knew, and when, about the allegations against E-Bikes NZ, the business owned by her husband Chris Hoff-Nielsen.

It was a Stuff investigation in March into exploitation claims by two migrant workers which first prompted the Greens to suspend Tana before launching the inquiry - after which Tana submitted her resignation as a party member.

The judge’s decision revealed what happened when Stuff put questions to the Green leaders on March 14.

Stuff’s enquiries prompted leader Marama Davidson to ask Tana for a phone call “before things [went] public”.

In that call, Tana later claimed Davidson had told her to resign - a claim Davidson denied, saying in an affidavit that she was “tasked with the job of calling her to get a feel for if … she could withstand an investigation instead of just resign and get the heat off her, and that did not go well”.

At 3.19pm that day, Davidson sent Tana a screenshot of Stuff’s questions. Tana replied: “Wow. No we go on pls.” Ms Davidson replied “Ka pai. We go on.”

The judge said that meant agreement to proceed with the Burt inquiry.

He described Tana’s claims that inquiry was illegal because it ran parallel to the Employment Relations Authority inquiries into the workers’ claims as “misconceived”.

He said Tana was upset Burt didn’t accept her version of events and had a “lengthy list of complaints” about the report, but said the report was well-founded.

Johnstone said he did “not accept” submissions the inquiry was unreasonable and unfair.

He said Tana was a willing participant in the report, contributed to its terms of reference and had the chance to review it. He said while she regretted agreeing to the Burt inquiry - “but plainly she did agree” and said her complaint that Burt’s investigation had been conducted “to support a particular narrative was only upon receiving notice that Ms Burt was minded to find against Mrs Tana’s preferred account (her own)”.

Just because Burt didn’t accept Tana’s version of events didn’t mean they were “plainly wrong”, Justice Johnstone wrote.

He also rejected a claim the Greens did not follow their constitutional complaints process, thus rendering the whole inquiry process unlawful.

He said that process “would not have been an appropriate vehicle” for an inquiry and the Greens had rightly opted to follow their own MP Code of Conduct process - and while they had not followed that correctly, it was not invalid. And he said a subsequent caucus meeting convened to ask Tana to resign was “constitutionally authorised”.

Tana had argued that when she resigned at that caucus meeting she had been forced to quit, and that was unlawful, unreasonable and unfair. The Greens’ lawyer, Tim Smith, had characterised that position as “buyer’s remorse”.

The judge agreed, writing: “It is clear that Mrs Tana was not pressured to resign as a party member. The pressure that she is likely to have felt related to her position as an MP. The result is that Mrs Tana simply cannot have been ousted as a party member.”

In a statement, Greens’ co-leader Chlöe Swarbrick said: “We welcome the High Court’s ruling that our decision to pursue an independent investigation into the actions of Darleen Tana, and ultimately request her resignation as a Member of Parliament, were well within the bounds of our Party constitution.

“As we have just received today’s judgment, we will take the appropriate time to take advice and consider next steps. We will have more to say in due course.”

The Greens are now entitled to claim costs against Tana.