Law expert Andrew Geddis discusses Darleen Tana's decision to ...

”I can only assume she’s going to argue something along the lines of, she has rights to natural justice ... but that’s a real stretch, I find it very hard to see how that’s going to hold up.”

Geddis said there have been cases before where MPs have gone to court.

“Winston Peters did it with the National Party. This one, where you’re not even a party member and you’re challenging the party’s actions, never seen it before.”

Geddis said what Tana was doing was not a necessary legal step.

”This might be her attempt to get something in front of the court before it gets into the parliamentary realm.”

Speaking to media yesterday, Green Party co-leader Chlöe Swarbrick said that at this stage, Sunday’s meeting of party members had not been cancelled, meaning Tana could still be gone from Parliament relatively quickly if the meeting is held and members decide to eject their former MP.

Swarbrick said she was notified on Tuesday that Tana’s lawyers had lodged proceedings in the High Court, seeking a judicial review of her as well as fellow co-leader Marama Davidson, the Green Party and the party’s kaunihera, its governing council.

Later that day, Swarbrick was told that an application for an interim injunction had been filed in order that the Sunday meeting of the party not go ahead. The Greens will be represented by Tim Smith.

Tana did not respond to requests for comment. Their lawyer (Tana uses they/them pronouns), Sharyn Green, was not authorised to speak on Tana’s behalf and declined to comment.

Swarbrick said she could not speak on the “specifics of the case”.

Asked whether an injunction against a political party holding a meeting would set a bad precedent, Swarbrick said “we’re in a situation where we are working through what the judicial review might come up with”.

“We are in an unprecedented situation,” Swarbrick said.

“We are in a situation where we, the Green Party, for the first time ever, have said we have a member who came on our list that we believe is not fit to be a Member of Parliament. It was unanimously recommended by our caucus for them to resign.

“We now have to grapple with the logical consequences of that.”

Tana quit the Greens after a damning report into their involvement in alleged migrant exploitation at their husband’s business. Since then, Tana has sat as an independent MP. The Greens urged Tana to quit Parliament and have been debating whether to use the law against them to force their hand.

At the party’s AGM in Christchurch in July, Swarbrick and Davidson began the waka-jumping process by writing to Tana, saying their resignation from Parliament had distorted the proportionality of the House, as required under legislation. Tana responded to the letter, arguing they did not think the law “could reasonably be invoked” against them.

Tana cited a Supreme Court ruling from a case between former Act MP Donna Awatere Huata and Act leader Richard Prebble from 2005, in which one of the justices, Peter Blanchard, noted the waka-jumping provision could not simply be triggered because an MP resigned from their party and became an independent.

“It is necessary also that there be a reasonably held view that, as [the statute puts it] ‘the member... has acted in a way that has distorted, and is likely to continue to distort, proportionality’. If it is not the actions of the member which have led to the declaration, it cannot, in my opinion, be said that the member has acted in a way that has distorted etc. A member who remains in Parliament after the Speaker has made a declaration does not by that fact alone cause the distortion,” Blanchard said.

Huata, however, lost that case, and was ejected from Parliament.