Unscrambling an omelette: Te Pāti Māori case asks court to consider what a party really is
Friday, 5 December 2025
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ANALYSIS: What is a political party?
Is it just a gathering of people a bit like a birthday party, able to disinvite anyone the host finds annoying? Or is it a creature of law, of documents and rules and processes as objective as an Excel spreadsheet?
Or is it actually an omelette?
That last one was the metaphor Davey Salmon, KC, reached for as he explained the political process that had seen Te Pāti Māori (TPM) expel two of its MPs - “to make a big omelette you have to crack a lot of eggs”.
Salmon was in the High Court on Thursday acting for TPM president John Tamihere and the party’s “National Council”.
Mariameno Kapa-Kingi, one of the MPs the party expelled in November, is arguing she wasn’t expelled at all - as the decision was improperly made by a body that didn’t have the power to do so in the first place, based on an accusation about “misuse of party funds” that failed on the facts.
She is seeking an injunction to have her membership reinstated ahead of the party’s annual meeting on Sunday. We will know if she was successful at 4pm on Friday.
Much of the meat of the case relies on differing interpretations of the party’s constitution. This document preaches consensus tikanga-based decision-making with a disciplinary process built into some clauses - but also a clause allowing a group to cancel anyone’s membership at any time.
Both sides have clauses that suit their arguments. Kapa-Kingi’s counsel appear to have a slight edge here - if only because the National Council that made the decision to expel had so many people excluded from attending. The constitution is confusing enough on these points that the party’s own lawyer admitted it could use a rewrite with the benefit of hindsight.
Read more:
Court to decide whether Mariameno Kapa-Kingi still a Te Pāti Māori MP on Friday
Mariameno Kapa-Kingi says she actually underspent parliamentary budget
But really the more substantive case for the defence is that courts simply shouldn’t be interfering with the actions of a political party - that they should not be forcing people onto a group that doesn’t want them.
One part of this is the media spotlight. The party had made very clear that it has found the media spotlight this fracas has brought on the party intolerable. Salmon made great note of the fact that the allegations of overspending against Kapa-Kingi would be like “red rag to the bull” to some in the media.
It is hard to disagree, but it is worth noting that the party itself did the most to bring the allegations to light, and that both sides accepted that the actual “overspend” was sorted out ahead of the expulsion. Yet it is also true that this whole dispute has been of huge interest to the news media, and that Kapa-Kingi’s refusal to simply accept the rulings of the party’s higher ups has been a part of that spectacle.
This brings us to the more emotional issue TPM makes - that forcing Kapa-Kingi back into the party is essentially forcing emotional pain on both sides, as a reconciliation is not possible - a bit like in a broken-down marriage. Kapa-Kingi’s side parries this by noting that reinstatement is a fairly standard remedy in employment law - even when there has been relationship breakdowns.
TPM’s lawyers have some case law on their side. One of the arguments they make is that the principles of “natural justice” - of everyone getting a chance to make their case transparently in front of a disinterested party, essentially the rules of a courtroom - aren’t really applicable inside political parties themselves. Instead this is purely a matter of a contract - not fairness.
Judges in the past have agreed. When ACT waka jumped Donna Awatere Huata in 2004 it was ruled that the party was an “unincorporated association” which would “typically have wide freedom in their internal arrangements, including in the determination of their own membership”. When National kicked Winston Peters out it was held that “there can be no legal general principle or legitimate expectation that a political party will continue to support its present Member of Parliament in the next election”.
But there has been some movement on this matter since those cases, and they are very different to what Justice Radich has before him. Peters had plainly fallen out with a large political party and almost all of its MPs. Awatere Huata was being investigated by the Serious Fraud Office and again had all of the other members of a smaller party against her. In other words a lone person was trying to be let into a properly established party that clearly did not want them.
Things are far less clear in TPM. She was kicked out of a caucus of six alongside one other MP - meaning a third of the caucus was expelled. The caucus was not involved in the decision to expel her and many people from within the party machinery are in open revolt over it. There is of course a limit to what the judge might consider in both his interim decision and the more substantive one in early February - but it will be obvious to him that the “party” in this instance is not a monolithic body wholly opposed to her membership.
Which brings us back to what a party really is. The law has already had to step in here a lot more than it did in the FPP days because for list MPs a party is the vehicle to Parliament. But Kapa-Kingi is not a list MP. She remains in place in Te Tai Tokerau working through scrutiny week and essentially going on as if she is still a member.
But independent MPs are never that long for this world. Kapa-Kingi wants back into the party because it is far more than a gathering of people or contractual arrangement - it is a movement that was created in the early 2000s, a movement that can still give an individual legitimacy and mana when they are associated with it, particularly on a ballot form.
It is, one might agree, an omelette. But once you make an omelette, it’s absolutely impossible to separate one egg from the others.
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