Application to judicially review decisions of the Green Party (an incorporated society) – was the inquiry into Tana authorised by the Green Party’s constitution?  – was the meeting of the parliamentary caucus to discuss a request for Tana to resign constitutionally authorised? – was the independent investigation unfair and in breach of natural justice? – was Tana pressured to resign as a party member?

Tana v Swarbrick [2024] NZHC 2732 per Johnstone J

The Green Party of Aotearoa New Zealand is a political party and registered incorporated society. The party’s co-leaders are Chlöe Swarbrick and Marama Davidson.

Darleen Tana, a member of the Green party since 2018, was elected as a Member of Parliament on the party’s list in October 2023.

In February 2024, a worker advocate sent Tana a personal grievance and claim of breach of minimum employment standards on behalf of a worker at E Cycles NZ Limited, a business operated by Tana’s husband.  Tana had been involved in the business and had been a registered director and shareholder until 1 April 2019.

This email came to the attention of the party leadership. There were meetings with Tana in February 2024 in which she denied being involved in the allegations and having any prior knowledge of them.

Following a further meeting in March 2024, a decision was made to commission an independent investigation and for Tana to take leave while the investigation took place.

The party engaged Rachel Burt, barrister, to undertake the investigation.  Tana emailed the party, advising that she welcomed the opportunity of an independent investigation and intended to fully cooperate in order to clear her name.

There were delays in completing the investigation. The draft investigation report was provided to Tana only on 24 June 2024.  Tana responded through her lawyer on 1 July 2024.

Burt made some amendments as a result and delivered her final report to the party leadership on 5 July 2024.  Burt found it more likely than not that Tana became aware of grievances raised by four workers in the period from January 2019 to October 2023 as she retained an operational involvement in the business and that she did not discuss the grievances with party leadership during her candidacy or the early part of her career as an MP, or when initially approached in February 2024.

On 6 July 2024, the party convened a parliamentary caucus meeting to discuss the report.  Swarbrick telephoned Tana and followed up with an email which advised of the meeting and the intention “to ask caucus to approve a request for your resignation at that discussion”.

Tana (along with her lawyer and a support person) attended the caucus meeting.  Tana insisted she was not aware of the detail of events within the business and that she had not lied to the party.

The meeting continued after Tana left. While the discussion was continuing, party leadership received an email that Tana had sent, addressed to all members of the parliamentary caucus.

The email asserted that Tana had no confidence that a fair process would be followed and stated, “Accordingly, I resign as a member of the Green Party effective immediately”.

Following this email, Tana was requested to resign as an MP on multiple occasions. She has not done so. Since 6 July 2024, Tana has sat as an independent MP.

On 28 July 2024, the party co-leaders commenced the process under the ‘waka jumping’ legislation (ss 55A-55E Electoral Act 1993).

In their email to Tana, they mentioned the prospect of a special general meeting of the party “pencilled in” for 1 September 2024 to discuss this issue.

In response, Tana brought judicial review proceedings, seeking declarations that the inquiry (the entire process followed by the party from February to July 2024) was unlawful, unauthorised by the party’s constitution, unreasonable and unfair.

She asserted that, in the circumstances, she was “ousted” from the party and sought a declaration that this was also unlawful, unreasonable and unfair.

Applicable principles:  Judicial review of decision-making by incorporated societies – interpretation of Green Party’s constitution and assessment of whether inquiry into Tana and caucus meeting on 6 July 2024 were authorised (yes) – was the independent investigation unfair and in breach of natural justice? (no) – was Tana pressured to resign as a party member? (no)

Held: Tana’s application for declarations is declined.  The inquiry was not unlawful, unreasonable or unfair and nor was Tana denied natural justice. It is clear that Tana was not pressured to resign as a party member.