Green Party co-leader Chlöe Swarbrick has very publicly asked her to quit Parliament, and if Tana doesn’t oblige, she can be kicked out under the waka-jumping law - but would the Greens resort to using a law they’ve been staunchly opposed to, and which they voted to repeal (unsuccessfully) as recently as 2021?
Is it possible that Tana, a list MP, might remain in Parliament as an independent MP, which is what happened with Meka Whaitiri last year when she quit Labour and joined Te Pāti Māori?
Part of the Labour-NZ First coalition agreement in 2017, it became law in 2018, though there was an earlier iteration in 2001. It is meant to preserve Parliament’s proportionality - so each party keeps the same number of MPs as determined by the election result - if an MP leaves a party.
If Tana stayed in Parliament as an independent MP, it can be argued that this isn’t what voters wanted because it would reduce the number of Green MPs by one.
For the waka-jumping law to be invoked, Tana has to cease to be a member of the Green Party.
But that box isn’t ticked with Tana resigning from the party, which she has already done. The law requires one of two specific actions.
The first is for Tana to write to Speaker Gerry Brownlee telling him she has resigned from the Green Party, or that she wishes to be recognised as either an independent MP or a member of another political party.
The second is for either Swarbrick or co-leader Marama Davidson to write to Tana telling her that remaining in Parliament would distort its proportionality (as determined at the election).
Tana would then have 21 working days to respond, after which the Greens’ caucus would consider the matter. The law says there needs to be least two-thirds caucus support before Swarbrick or Davidson can then write to Brownlee to have the law invoked, which would see Tana kicked out of Parliament.
Greens co-leader Chlöe Swarbrick, joined by colleagues Ricardo Menéndez March and Teanau Tuiono, reveals rogue MP Darleen Tana has been told to resign. Photo / Mark Mitchell
The Whaitiri episode
Neither of these two actions happened when Meka Whaitiri jumped from Labour to Te Pāti Māori before the last election, so Whaitiri stayed in Parliament as an independent MP under Standing Order 35.5, which states: “Any member who is not a member of a recognised party is treated as an Independent member for parliamentary purposes.”
Whaitiri told reporters last year that she had officially notified the Speaker of her defection to Te Pāti Māori, but then-Speaker Adrian Rurawhe said the requirements as set out in the law had not been fulfilled, so Whaitiri should remain as an independent MP.
There were “very specific events” that needed to happen, he said at the time, and “I can confirm to the House that those events have not happened”.
”I think it would be a dangerous situation for the Speaker of the House to start interpreting things that are clearly not being officially and submitted to me. Now, as I began my ruling, members can say whatever they like outside of this House but unless they inform me in the correct way by sending me a signed letter that is the case, I cannot act on it.”
Their correspondence was never released so it’s unclear what Whaitiri’s letter to Rurawhe said.
Professor Andrew Geddis. Photo / RNZ
A stand-off and Tana stays?
Swarbrick has called on Tana to resign from Parliament. She has also written to Brownlee to say Tana is no longer a member of the Greens’ caucus.
If Tana doesn’t quit Parliament, Swarbrick or Davidson could consider writing a letter to Tana to start the process outlined in the waka-jumping law.
If all those boxes were ticked and Tana was then kicked out of Parliament, the next candidate on the Green’s party list - Benjamin Doyle - would become a Green MP.
But what if Tana told the Speaker that she would vote with the Greens every time, thereby preserving Parliament’s proportionality?
That wouldn’t be a way for her to stay in Parliament, according to legal expert Professor Andrew Geddis.
“The Supreme Court said that the proportionality of Parliament is distorted not on the basis of how votes are cast, but on the numbers of MPs that a party has,” he told the Herald.
“The Greens have told the Speaker she’s [Tana] not one of ours. That automatically means the Greens have one less MP than they had. That means the proportionality of Parliament has automatically been distorted, and there are grounds for using the party-hopping law if the Greens want to.”
That doesn’t meant the Greens will use it, given their previous misgivings with the law, which could open them to criticisms of being hypocrites or political opporunitists.
“If the Greens were to try to use it after having jumped up and down and said what a dead rat or constitutional outrage it was, and then voting [in 2020] to repeal it ... there’s no way the Greens could use it,” Geddis said.
So if neither the co-leaders nor Tana wrote to Brownlee, she could remain as an independent MP without the waka-jumping law ever being used - which is what happened with Whaitiri.
This was now the fourth time since the law was passed in 2018 when an MP was kicked out of their party, and so far the law is yet to be invoked, Geddis said.
“So there was Jamie-Lee Ross, Guarav Sharma, Meka Whaitiri, and now this. When it was brought in, it was under the high constitutional principle that it’s a disgrace that the voters’ will is being gone against.
“But when it happens, the parties all take a political calculation - is this going to be too much trouble - and essentially it’s devolved into a power the parties can use if they want to, for their own purposes.”
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
