|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 19 January 2018
For a Court ready (fee required) version please follow this link
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV 2008-476-000125
BETWEEN ROGER JOHN PAYNE Applicant
AND THE NEW ZEALAND NATIONAL PARTY
Respondent
Hearing: 18 April 2008
Counsel: R J Payne In Person, Applicant
P T Kiely and D Erickson for Respondent
Judgment: 1 May 2008
Table of Contents
Para No
Introduction [1] The factual background [3] Background to the proceeding [13]
Serious question to be tried
[24] The terms and availability of Rule 94(b)
[25] History of r94(b)
[35] Section 71, Electoral Act 1993
[43] Extrinsic aids to the interpretation of the section
[44] Academic commentaries
[54] Awatere Huata v Prebble
[56] Do the National Party Rules comply with s71?
[59] Is r94(b) otherwise challengable?
[66]
Balance of convenience
[79]
Overall justice of the case
[83]
Conclusion
[85]
ROGER JOHN PAYNE V THE NEW ZEALAND NATIONAL PARTY HC TIM CIV 2008-476-000125 1
May 2008
JUDGMENT OF PANCKHURST J
Introduction
[1] On 3 April 2008 I granted an interim injunction by which the
process for the final selection of a National Party candidate
for the Selwyn
Electorate at the next General Election was stayed, pending a substantive
hearing of this case or the further order
of the Court. That decision prompted
the filing of an application to rescind or vary the interim injunction pursuant
to r259 upon
the basis that the earlier decision was made in circumstances of
urgency and without the benefit of full argument. I shall refer
to the
procedural history of the case in more detail shortly.
[2] Subject to my being satisfied that it is appropriate to reconsider
the case pursuant to r259, the issues for determination
are the conventional
ones; whether there is a serious question to be tried, where the balance of
convenience lies and whether in
terms of the overall justice of the case it is
appropriate for the interim injunction to remain in place in the
meantime.
I shall, therefore, consider the procedural aspect and then the
issues of the existence of a serious question, convenience
and overall
justice.
The factual background
[3] The Selwyn electorate is a new electorate comprising parts of the
previous Rakaia and Banks Peninsula electorates. The
sitting Member of
Parliament for Banks Peninsula is Mr David Carter and for Selwyn, Mr Brian
Connell, who is not seeking re-election.
[4] In October 2007 the process for the selection of a candidate for the new Selwyn electorate began. Mr Payne was nominated as a candidate for selection, as was Mr Carter. In an affidavit filed in support of the application for interim relief Mr Payne alleges that the resulting selection of Mr Carter as the party’s candidate was flawed and undemocratic. He wrote letters to the Leader and President of the National Party in November 2007 which detailed his concerns.
[5] In the event it is not necessary for me to consider this aspect.
An affidavit sworn by Judith Kirk on 14 April 2008 in
support of the present
application, refers to the October selection process, but records “because
of administrative errors
and concerns relating to the procedure the National
Party decided to recommence the process”. Beyond this bland explanation,
I remain uninformed. Although Mr Carter was nominated in October 2007 as a
constituency candidate, he did not again offer himself
for selection in
February-March 2008, being the selection process with which I am now
concerned. Mr Carter is apparently
to be only a list candidate.
[6] Fresh nominations for Selwyn opened on 22 February 2008. The
closure date was 7 March 2008. There were nine people nominated,
including Mr
Payne.
[7] Following the closure of nominations within each electorate
r94 of the
Constitution and Rules of the New Zealand National Party
provides:
Final Approval of Nominations vested in Board
(a) Within 3 clear days of the date of closing of nominations, the
Electorate Secretary shall forward to the General Manager the
prescribed forms
for candidates together with any remarks the electorate committee and the
Regional Chair wish to make about each
candidate.
This procedure was followed. It then remained for the nine member Board of
the National Party to exercise its unfettered discretion
to approve or
disapprove nominations pursuant to r94(b).
[8] Following checks with three referees listed by Mr Payne, the Board
members participated in a telephone conference meeting
on 13 March 2008. They
determined to disapprove Mr Payne’s nomination. The other eight nominees
were approved by the Board
to proceed to the next stage, being candidate
pre-selection.
[9] On 14 March Mr Payne wrote to the President of the party requesting a halt to the selection process until his nomination could be re-evaluated. This did not occur. On 18 March Mr Payne applied on notice for an interim injunction. I shall refer to the history of the proceeding in the next section of this decision.
[10] In the meantime selection of the candidate for Selwyn
continued. An electorate pre-selection committee interviewed
the eight
remaining nominated candidates and on 11 March selected five candidates to
participate in the final selection process,
as required under the
rules.
[11] Following the reduction in the number of candidates to five, two
methods of final selection are available. One is
a delegate system
whereby a selection committee is constituted comprising delegates from
branches within the electorate. The
other alternative is the “universal
suffrage selection option”, whereby all members of the party of at least
six months
standing and resident in the particular electorate are entitled to
vote.
[12] In this instance “meet the candidates” meetings were
scheduled on 28 March,
1 and 4 April at various halls within the electorate, with the final selection meeting scheduled for Monday, 7 April. However, the grant of the interim injunction on 3
April meant that the final candidates’ meeting could not proceed, nor
of course the final selection meeting. Accordingly,
selection of the
constituency candidate for Selwyn is presently on hold, whereas the National
Party has selected constituency candidates
for the forthcoming election in all
other electorates.
Background to the proceeding
[13] The application for an interim injunction was filed by Mr
Payne on
18 March. A notice of opposition was filed the following day. On 20 March
(the day before Good Friday) I heard argument in relation
to the injunction
application in the course of a telephone conference. Mr Payne contended that
the Board’s decision to veto
his nomination was unlawful, but Mr Kiely for
the National Party relied upon r94 and the decision of this Court in Peters v
Collinge [1993] 2 NZLR 554 (HC). The focus of the argument was whether there
was a serious question to be tried. I concluded that there was
not, and
therefore found that there was no basis for injunctive relief.
[14] On 31 March Mr Payne filed an application for the recall of the earlier decision. The effective basis of the application was that s71 of the Electoral
Act 1993 was neither drawn to my attention, nor brought to account, in
relation to the earlier decision. The section is headed Requirement for
Registered Parties to Follow Democratic Procedures in Candidate Selection.
Mr Payne also placed considerable reliance on an article “The Unsettled
Legal Status of Political Parties in New Zealand”
(2005) 3 NZJPIL 105 by
Andrew Geddis. This article questions whether following the introduction of
MMP in New Zealand the legal
status of political parties has changed such that
they should now be regarded as public entities subject to normal public law
controls.
[15] Although in light of the argument (which was again heard by
telephone conference) I tended to the view that the final selection
process then
underway in the Selwyn electorate was democratic, in the sense required by s71,
I was persuaded that there existed a
serious question to be tried.
Accordingly, I recalled the earlier decision of 20 March and granted an interim
injunction on terms
which included that Mr Payne immediately file an undertaking
as to damages. A timetabling hearing was also directed for 8 April.
[16] On 7 April the National Party filed the present application pursuant
to r259 of the High Court Rules. It contended that,
given the history of the
proceeding and in particular the circumstance that the two previous hearings
were conducted by telephone
conference in circumstances of urgency, it was
appropriate to invoke r259 so that there could be an in-court reconsideration of
the
decision to grant an interim injunction.
[17] The telephone conference on 8 April enabled me to consider whether resort to r259 was appropriate. The rule enables a party affected by an interlocutory order to apply to vary or rescind the order, instead of appealing against it. A notice of application pursuant to subclause (1) must be filed within five working days after the order was made: r259(3). This requirement was met and, upon consideration, I was satisfied that the situation was one where resort to the rule was appropriate. Mr Payne had not filed a statement of claim to that point. Nor had the National Party filed affidavit evidence, although Mr Kiely had filed a memorandum of counsel which mentioned the selection process then underway in the electorate, the implications of an injunction and the history of r94(b), at least to a limited extent.
[18] I was also conscious of the circumstance that the recall and interim
injunction decision was reached without the benefit
of submissions based upon
the report of the Royal Commission on the Electoral System, Towards a
Better Democracy, published in 1986; nor the benefit of submissions
directed to the passing of the Electoral Act in 1993, including reference to
extrinsic materials relevant to the interpretation of s71.
[19] An urgent hearing was scheduled for 18 April and a timetable made
for the filing of a statement of claim, statement of defence
and affidavits in
support or opposition. The statement of claim filed by Mr Payne on 10 April
alleged that the decision of the Board
of the National Party to disapprove his
nomination was in breach of natural justice and of s71 of the Electoral Act.
He also challenged
the validity of the Constitution and Rules of the National
Party on the basis that the most recent version was not supplied to the
Electoral Commission within the time limits prescribed in s71B of the Act. He
further asserted that “the National Party’s
undemocratic
behaviour” constituted a corrupt practice, being an example of undue
influence contrary to s218 of the Electoral
Act. These claims were all
contained in paragraph 1.
[20] Paragraph 2 of the statement of claim sought to:
Prevent any National Party Official who was involved in the selection fixing
that occurred in the first candidate selection process,
National Selwyn
October/November 2007, from being involved in the current selection
process as they have a conflict of interest
already publicly linked to abuse of
power and perversion of justice in the overturned October/November 2007 process
– in the
best interests of ...
This is a reference back to the first selection process in Selwyn and
represents a consequential claim which is dependent upon the
success of the
first claim, by which Mr Payne seemingly envisaged that his nomination would be
fully reinstated (rather than the
decision disapproving him simply
overturned).
[21] The allegation based on s218 of the Electoral Act is misconceived. Assuming, without deciding, that a member of the Board of the National Party could be a complainant of undue influence, the gravemen of the section is conduct directed to a person to induce or compel them by violence or threat of violence to vote, or
refrain from voting, for a particular candidate. There is no evidence of any
conduct capable of falling within s218. The real gist
of Mr Payne’s
complaint is that the Board disapproved his nomination in breach of the rules of
natural justice and, therefore,
of s71 of the Electoral Act. I need not
consider the allegation of a corrupt practice by undue influence any
further.
[22] There is another problem with the statement of claim. It is not
drawn in a manner which adequately identifies the underlying
basis of the claim.
In particular, it is unclear whether the claim is intended to be viewed as an
application for judicial review,
or not. Mr Kiely averted to this difficulty,
but effectively took no procedural points, preferring instead to approach the
case
on a broad brush basis with reference to the principles relevant to the
grant of interim injunctions. That said, s8 of the Judicature
Amendment Act
1972 provides for the grant of interim orders (rather than interim injunctions)
in the judicial review context.
[23] But I doubt that it much matters in this instance whether relief is
considered from the perspective of the principles which
inform the grant of
interim injunctions, or the principles relevant to interim orders. The decision
of the Court of Appeal in Carlton and United Breweries v Minister of
Customs [1986] 1 NZLR 423 emphasised that in a judicial review context
the strength or weaknesses of the claim, and all the repercussions,
public or
private, of granting interim relief still fell for consideration. I shall not,
therefore, dwell upon any possible distinction
between these two avenues of
interim relief.
Serious question to be tried
[24] This to my mind is the major issue which I am required to review. As noted in my decision of 3 April, the conclusion that there was a serious question to be tried arising from the requirement of democratic process in s71 of the Act was reached on the basis of limited argument. I now have the benefit of more considered argument, including reference to materials which shed light upon the genesis of s71.
The terms and availability of Rule 94(b)
[25] The terms of this rule are at the heart of the complaint made by Mr
Payne concerning his being disapproved as a suitable
candidate for the National
Party. The rule provides:
(b) The Board shall consider the material submitted and shall have
an unfettered discretion to approve or disapprove a
nomination received. The
Board may undertake an investigation on its own behalf of any candidate but
shall not be bound to interview
a candidate it rejects or assign any reason for
rejection. The Board shall forthwith on a decision being made communicate it to
the Electorate.
[26] Three aspects command particular attention. First, that the Board
has an unfettered discretion, second that it may undertake
investigation on its
own behalf without any obvious corresponding obligations to the affected
candidate, and third that it may reject
a candidate without giving reasons. Mr
Kiely did not shrink from acknowledging that at least the latter two aspects
entailed significant
inroads into the principles of natural justice.
[27] Before I turn to the history of the rule it is necessary to consider Mr Payne’s allegation that the current iteration of the rules relied upon by the National Party are “invalid” as they were not “registered” with the Electoral Commission as required by the Electoral Act. The most recent iteration of the rules is the 21st edition, dated November 2007 “issued by authority of Judy Kirk, President, New Zealand National Party Board”. Both this edition and the preceding one, dated May 2003, contained
the rule conferring an unfettered discretion on the Board to disapprove
candidate nominations.
[28] Section 71B(1) of the Act provides:
Obligation to provide copy of party membership rules and candidate
selection rules
(1) The secretary of any political party registered under this Act must supply the Electoral Commission with the following:
(a) a copy of the rules governing membership of the party;
(b) a copy of the rules governing the selection of persons to represent that party as candidates for election as members of Parliament;
(c) a copy of any changes to the rules referred to in paragraph (a) or
paragraph (b).
Subsection (2) requires that the rules be supplied to the Commission within
one month of the registration of a party under the Act,
while s.s(3) provides
that changes to the rules adopted by the party must similarly be supplied within
a one month timeframe.
[29] Mr Payne contends that the one month requirement was not met in
either
2003 or 2007. Annexed as an exhibit to one of his affidavits is a letter from the Electoral Commission dated 7 April 2008 which confirms that the May 2003 rules were supplied to the Commission on 16 October 2003 and that as at 7 April they remained the latest copy of the rules held by the Commission. This state of affairs is confirmed in that an exhibit to the affidavit of Mr Geoffrey Thompson, filed on behalf of the respondent, is a letter from the Secretary of the National Party dated
11 April 2008 enclosing a copy of the 21st edition of the rules
with the explanation
that “the changes don’t relate to selection or membership but
rather are technical and stylistic”.
[30] As Mr Kiely pointed out s71B(1)(c) does not require all changes to the rules to be supplied to the Electoral Commission, rather only changes which relate to membership of the party or the selection of persons to represent the party as candidates for election as Members of Parliament. And, the submission continued,
the changes between the 20th and 21st editions
did not fall into either of these
categories. Hence, technically, there was no requirement upon the party to
supply the latest rules to the Commission. That it did
so recently, and no
doubt in response to this proceeding, was neither here nor there.
[31] I am not in a position to assess the changes between the 20th and 21st iterations of the rules. I only have a copy of the most recent edition. That said, there is nothing before me to suggest that the changes were other than “technical and stylistic”. But, Mr Payne submitted, at the time his nomination was rejected in March the only rules available to the Commission were the 20th edition, and even these had not been timeously supplied in 2003. Therefore, he argued, there were no valid rules for my consideration.
[32] I do not accept this proposition. Although s71B requires that
copies of rules be supplied to the Commission within a month
of a party’s
registration, and within a month of relevant changes to the rules, the
section does not prescribe
the consequence which follows upon a breach of
this requirement. Subsection (4) provides that members of the public may
inspect
the rules held by the Commission without payment of fee. No doubt the
purpose of the rule is to ensure the availability of the rules
of registered
political parties to all citizens, or at least those rules which deal with
membership of the party and the selection
of candidates.
[33] Absent a prescribed consequence for non-timely supply of the rules,
I do not consider their validity is thereby compromised.
The authority of the
rules derives from compliance with the rule-making requirements of the
Constitution and the rules themselves.
Their supply to the Commission, and
resultant availability to the public, is a regulatory issue for which a
political party may
well be answerable in the event of non-compliance. But the
suggestion that a failure to supply the rules to the Electoral Commission,
or to
do so within the time allowed, renders them invalid is in my view
unpersuasive.
[34] In these circumstances I shall refer to the rules contained in the
21st edition, since this is the iteration most recently approved and
issued by the National Party. Because r94 is unchanged from the
2003
version, no point is to be served by referring to its
predecessor.
History of r94(b)
[35] The full history of r94(b) was not explored in argument. However,
Peters v Collinge provides some insight. At that time r108 provided a
similar process for the forwarding of nominations from the electorate to the
Division in which the electorate was located, and from there to the then
National Executive, accompanied by remarks or recommendations
from the
electorate committee or the Division, or both. The rule continued:
After consideration of the material submitted, the National Executive or Candidate Selection Emergency Committee shall advise the Division of the approval or otherwise of the nominations received. Any approval or otherwise shall be at the absolute discretion of the National Executive or
Candidate Selection Emergency Committee and no reasons need be
assigned.
Fisher J noted with reference to r108 that it came into effect in January
1992, but that its predecessor (r110) was essentially the
same.
[36] One issue in Peters v Collinge concerned the power of the
then National Executive to disapprove the candidature of a sitting Member of
Parliament with reference
to a pending national election. In considering
whether the rule was susceptible of judicial review and, if so, to what extent,
Fisher J began by analysing the status of the National Party. He noted that
then, as now, it was an unincorporated society or group
established to undertake
political activity. He said that fundamentally the jurisdiction to review
actions of such a body was
to be found in contract, unless the private body
exercised “quasi-public functions”, as in R v Panel on Take-overs
and Mergers, ex parte Datafin Plc [1986] EWCA Civ 8; [1987] QB 815. However, he did not
consider the National Party to be an “exceptional” case which fell
outside the scope
of contract.
[37] This did not mean that natural justice, and in particular procedural
fairness, did not apply, because there remained a strong
assumption that it did
unless there were clear indications to the contrary in the rules of the private
body. He accepted, however,
that the contract between a private body and its
members could dispense with the requirements of natural justice, either
expressly
or by necessary implication.
[38] In response to submissions made on Mr Peters’ behalf, Fisher J
found that a suggested analogy between the dismissal
of a professor from a
university post, or of a doctor from a hospital post, and the non-approval of a
sitting member by his party,
was inapt. He saw the latter situation as quite
different. Ultimately the election, or not, of a sitting member lay with the
electorate,
not the party. All the party could do was assist a candidate to
seek re-election at three yearly intervals.
[39] At 568 the judgment continued:
Politics is a notoriously volatile, not to say fickle, business. Just as ideas and policies change, so must there be room for changes in allegiances and loyalties. Those who enter politics must surely do so in that knowledge. No one can expect to have a mortgage over a party’s support or over a
parliamentary seat. I do not think that the analogy of expulsion
or disciplinary proceedings in trade situations is an
apt one. It is also
stretching the restraint of trade concept too far. Whether a political party
is so out of sympathy with its Member of Parliament that it no longer wants him
as a candidate is something
which one would expect the party to be free to
decide from time to time with relatively little constraint. It is essentially a
political
question in which one would expect a robust level of
discussion, lobbying and preconception. The result does not necessarily
reflect upon honesty, behaviour or ability. One of the reasons for failing to
secure approval
could be nothing more than philosophical incompatibility. That a
political party and a Member of Parliament have come to the parting
of the ways
might reflect more discredit on the party than upon the departing individual.
(emphasis added)
[40] Against the background of r108 and his analysis of the
subject-matter, Fisher J concluded that at most a “relatively
rudimentary
standard of procedural fairness was required” in relation to decisions of
the National Executive. A formal hearing
was not required, nor representation
by counsel and the whole matter could be dealt with on the papers. However
the Judge
expressed the view that the affected individual would need to
be told what matters adverse to his or her interests the Executive
proposed to
consider and an opportunity extended to comment upon those matters.
[41] It is noteworthy that to the extent that r94(b) is different to r108
the former is, if anything, stronger than the earlier
rule. Whereas Fisher J
noted that the only material which the Executive could consider was that
emanating from the electorate and
the Division, today the Board may undertake an
investigation of its own, but without any corresponding obligation to interview
the
affected candidate. To my mind the rule as presently drawn expressly
allows for additional information to be taken into account
and strongly implies
that there is no obligation to advise the candidate of that further information,
nor of the previous information.
[42] However, before I reach a final view concerning this aspect it is necessary to consider s71 and in particular to decide whether its enactment impacts with reference to the lawfulness of the present rule by which candidates may be rejected by the Board of the National Party. Are the section and the rule in conflict, or at least incompatible?
Section 71, Electoral Act 1993
[43] The section provides:
Every political party that is for the time being registered under this
Part of this Act shall ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament by –
(a) current financial members of the party who are or would be entitled to vote for those candidates at any election;
or
(b) delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the
party; or
(c) a combination of the persons or classes of persons referred to in
paragraphs (a) and (b) of this section.
As I have commented previously, on a first reading there is an obvious
difference between the heading to the section and the text
of the section
itself. The former promises a requirement of democratic procedure in candidate
selection. But whether the text
of the section measures up to the promise was
to my mind questionable.
Extrinsic aids to the interpretation of the section
[44] The origins of the section are apparent from the Royal
Commssion’s Report, “Towards a Better Democracy”.
Under the heading “Candidate Selection” appears this:
9.24 The selection of candidates by political parties has traditionally been left entirely in the hands of the individual party organisations and is not in any way regulated by electoral law. The Electoral Act treats candidates as individuals standing for election in their own right and makes virtually no reference to the fact that, in most cases, they are standing as members of particular political parties. However, as most voters are expressing a preference for a party rather than an individual candidate, it is the parties’ prior selection of candidates which, especially in safe seats, effectively determines who is to become the electorate’s representative. In the same way, political parties also determine which groups in the community will be represented in Parliament and in what number. It can be argued that the voters’ power of choice is seriously curtailed by this process and that they should all be allowed a say in the party selection. The Electoral Act could require that party candidates be selected according to certain procedures which would guarantee a degree of public involvement or accountability in the manner of selection, e.g., by a meeting which all registered party members or their representatives could attend. Thus, West Germany
requires that party candidates be selected by a meeting of constituency party
members or by a meeting of representatives themselves
chosen by a meeting of
constituency party members.
[45] Then followed discussion concerning the desirability of a more
representative Parliament in terms of members from ethnic
minorities and women
members. At para 9.28, headed “Party selection rules”, the
Report included this:
We therefore recommend that if our recommendation for MMP is accepted, the law should specifically require that anyone who stands as a candidate for a particular political party should be selected according to procedures which allow any member of the party, either directly or through representatives themselves elected by members of the party, to participate in the selection of candidates for whom they are eligible to vote, such procedures to be adopted by an Annual General Meeting of the party. The rules setting out the procedures would be subject to challenge by a member of the party, with the Electoral Commission (which we later propose; para. 9.131) having responsibility to determine whether the rules are appropriate. The decisions of the Electoral Commission would be subject to appeal to the High Court. A precedent is to be found in the German Party Law. An important element in the drafting and operation of such legislation would be the balance between the regular members of the party and central party officials. In the
2 main New Zealand parties, the central party organisations have some
(possibly more in the case of Labour than National) influence
in candidate
selection. This can have a beneficial effect on the overall quality and
representativeness of the parliamentary teams
and could be even more significant
with the introduction of party lists. We would not wish to prevent such
procedures, provided they are acceptable to the party as a whole and provided
party officials are
themselves chosen by all party members or their
representatives. Because the regulation of candidate selection is a new
development, we recommend that whatever legal requirements are introduced
be
reviewed by Parliament on the advice of the Electoral Commission after they
have been in place for 2 elections. (emphasis
added)
[46] On the same page a number of recommendations taken from the
preceding chapter were set out including:
·44. If the recommendation concerning the Mixed Member Proportional system is adopted, the Electoral Act should require that candidates standing for a political party should be selected according to procedures which allow any member of the party, either directly or through representatives themselves elected by members of the party, to participate in the selection of candidates for whom they are eligible to vote. These procedures should be adopted by an Annual General Meeting of the party and be subject to challenge before the Electoral Commission. The above requirement should be reviewed (after it has been in operation for 2 elections) by Parliament on the advice of the Electoral Commission. (para 9.28 [of the report]).
[47] The Electoral Reform Bill was referred to the Electoral Law
Committee by resolution of the House in December 1992. Subsequently
that
Committee under the chairmanship of the Honourable Murray McCully reported back
to the House. At para 2.3 the report stated:
Party candidate selection rules under MMP
2.3.1 Many submissions addressed the issue of selection procedures to be
adopted by political parties. The majority advocated the
introduction of a
requirement for what may be broadly termed “democratic party rules”.
The essential idea encapsulated
by that expression is that political parties
should be required to select candidates by democratic means and that there be
some means
of ensuring the selection procedures of each party are consistent
with this principle.
2.3.2 Officials provided to the committee a summary of candidate selection
procedures for a number of political parties. The summary
revealed a wide
range of selection procedures. In light of the advice from officials
and the substantial amount of comment
contained in submissions, the committee
has recommended that a provision be inserted into the bill which ensures that
political parties
adhere to democratic procedures in selection rules. This
recommendation is contained in new clause 84A of the bill as reported
back from
the committee.
2.3.3 The effect of this new provision in terms of redress is that some form
of review can be sought in the High Court (by individuals
with proper standing,
such as party members and candidates) seeking a declaration that a party’s
rules or procedures are unlawful.
If the court found in favour of the plaintiff
it might direct a party to change its procedures or rules. The provision
reflects
the views of the Royal Commission but differs to the extent that the
responsibility for determining whether the rules are appropriate
rests solely
with the judiciary, rather than the proposed electoral commission.
[48] The Minister of Justice, the Honourable Douglas Graham, in
introducing the Bill upon its second reading referred to a large
number of
submissions addressed to the need for democratic procedures in relation to the
selection of candidates by political parties.
He continued:
A new provision has been inserted into the Bill to address the issue. The provision expressly requires registered political parties to follow democratic procedures in selecting their candidates. However, the Electoral Commission has not been given the task of determining whether party rules on selecting candidates are appropriate. Instead, any party failing to meet the requirements of the provision now included in the Bill would be open to challenge in the courts. The Committee considered that the oversight of such requirements was more appropriately a matter for the courts than the bureaucracy. (3 August 1993) 537 NZPD 17088.
[49] The above extracts demonstrate the genesis of, and thinking behind,
s71. The nomenclature “democratic procedures”
attained currency in
the Royal Commission’s Report. Although at first blush there may be a
tendency to equate the reference
to democratic procedures in s71 with the
principles of natural justice, the origins of the phrase suggest otherwise. The
word “democratic”
was, I think, deliberately chosen to capture the
notion identified in “Towards a Better Democracy” and
subsequently endorsed by the Electoral Law Committee and by speakers in the
House. What the Royal Commission, and subsequent
adherents, had in mind was a
requirement that the selection of candidates by political parties would be
participatory; that members
of the party may participate in the selection
process, whether directly or through representatives (delegates) themselves
elected
by the membership at large.
[50] But the Royal Commission expressly recognised the influence of the
two main parties in candidate selection. This was considered
to have
“a beneficial effect”. There was no desire to prevent such
influence, provided the party officials exercising
that influence were elected
to office and provided the procedures were acceptable to the party as a
whole.
[51] This approach survived subsequent scrutiny. The only change was
that, whereas the Royal Commission envisaged that any
conflict between the
requirement for democratic procedures and the terms of a rule adopted by a
political party would be adjudicated
upon by the Electoral Commission,
Parliament opted for scrutiny to lie with the courts.
[52] With the benefit of reference to the above extrinsic materials the impression I held previously that the candidate selection processes adopted by the National Party probably met the requirements of s71 is strengthened. The text of the section, read in light of the Royal Commission’s Report, was clearly intended to provide a defined level of participatory democracy. Candidates to represent the party at general elections are to be selected by current financial members of the party from the particular electorate or by delegates of that class of persons. But, the participatory requirement was, I think, deliberately framed so as to leave scope for the overarching influence of senior officials of the party, provided that they too were democratically elected by the party membership.
[53] Once the section is read in a broader context I do not consider
there is any tension between the heading and the text. The
term
“democratic procedures” means what it says. The promise of
the heading is that candidate selection will be participatory. The text of the
section
delivers in this regard. There is only a tension if the phrase
“democratic procedures” is read more broadly than was
intended, so as to evoke the notion that such procedures are to be equated with
the principles
of natural justice.
Academic commentaries
[54] In relation to s71 each side relied upon academic commentaries upon
the new section. Mr Kiely referred to Raymond
Miller’s text,
“Party Politics in New Zealand” (Oxford University
Press, Auckland, 2005), in particular the chapter headed
“Selecting Candidates”. Mr Miller referred to the Royal
Commission’s rationale for a requirement of democratic procedures in
candidate selection
and, after noting the persuasiveness of the democratic
argument, observed that there were equally strong grounds for retaining a
selection process that was essentially private and internal. This line of
argument, whereby the party elite retain ultimate control
over candidate
selection, was said to promote gender and ethnic representation and also the
recruitment of candidates with particular
qualifications and abilities. Hence,
Mr Miller considered that political parties were able to defend the
retention of selection
mechanisms that were “both highly centralised and
restrictive” (p 110). Generally, the commentary upon candidate selection
contains nothing which calls in question the retention of party rules whereby
the hierarchy may filter or reject candidates
nominated for selection,
provided the final selection of a candidate is made by grass roots members of
the party.
[55] Mr Payne, however, placed reliance upon the article by Andrew Geddis
(refer para [14]). After reference to Peters v Collinge, Mr
Geddis observed that the regulatory approach taken to political parties
underwent a sea change with the introduction of
MMP and the passage of the
Electoral Act. With reference to s71 he said at 121:
Requiring political parties by law to follow “democratic procedures” when choosing their candidates was intended to prevent a party’s leadership from
insulating itself from the wishes of the grass-roots membership. Candidate
selection must be a collective effort which gives an opportunity
for the
opinions of all party members to be canvassed, rather than an exercise in which
a self-selected cabal decides amongst itself
which individuals will represent
the political party.
In light of this assessment, Mr Geddis posed the question: “Will the
new statutory duties on political parties lead to a change
in the way these
entities are viewed by the courts?” Fisher J’s conclusion in
Peters v Collinge that political parties are not subject to public law
judicial review because they then had no statutory or public duties, was
characterised
as “obsolete” (p 122). But whether New
Zealand’s courts would subject the internal activities of political
parties
to a higher standard of public law scrutiny was left open as an
“interesting question”.
Awatere Huata v Prebble
[56] The first indication of the approach of the courts to the
significance of the new statutory regime was contained in Awatere Huata v
Prebble [2005] 1 NZLR 289 (SC). Judgment in this case was delivered in
November 2004. The issue was whether following her suspension from
the ACT
caucus, and her membership of the party lapsing, Mrs Awatere Huata’s
continued presence in Parliament outside ACT distorted
the proportionality of
the House, given that she was a list member. In her judgment Elias CJ touched
upon the status of political
parties in the MMP environment. She said:
[37] Both ACT New Zealand and the parliamentary party derived from it are
unincorporated associations which exist for political
purposes. They are
organised under the rules adopted by their members. While a Court will enforce
the agreement between the
members of such bodies, including implied
terms importing requirements of procedural fairness, associations will typically
have
wide freedom in their internal arrangements, including in the determination
of their own membership and the achievement of their
objects.
[38] The Constitution and Rules of ACT New Zealand confer discretion on the board of the party to refuse any applicant for membership. Membership can be terminated by a majority of 75 per cent of the board, after notice and the opportunity of a hearing is given to the member. The power to expel in this way extends to any member who is a member of Parliament. The rules provide that expulsion is “an appropriate remedy for conduct that the Board considers may bring the Party into disrepute”.
[57] These observations tend to indicate a traditional approach to the
status of political parties; that they remain private entities
which exist for
political purposes and which are only susceptible to the oversight of
the courts to enforce the agreement
between the party and the members which
the rules represent. Otherwise parties enjoy wide freedom with reference to
their internal
affairs, including with reference to the determination of their
membership.
[58] To my mind it is a short step from these observations to the
conclusion that political parties are similarly free to regulate
how they will
go about the selection of constituency candidates at general elections. The
freedom to structure their own arrangements
for candidate selection, however,
was made subject to the requirements of s71 in the 1993 Act. But, for the
reasons discussed earlier
(para [52]), I do not consider that the requirement to
adopt democratic procedures with reference to candidate selection affected
the
ability of parties to empower the hierarchy to veto, or filter, the nominations
for each electorate. In the case of the National
Party it could empower the
Board to reject the nominations, provided that the membership of the Board was
democratically elected.
It remains, therefore, to examine the rules of the
National Party to ascertain whether they comply with the requirement for
democratic
process contained in s71.
Do the National Party Rules comply with s71?
[59] Candidate selection is governed by Rules 87-118. Rule 87(a)
provides that the selection of constituency candidates shall
be controlled by
electoral committees, acting under directions from the Board and with the
assistance of the Regional Council or
Chair. Rule 89 provides for the Board to
establish a candidates’ college, which is to provide training to enrolees
who may
subsequently seek candidate selection.
[60] Before the selection of a constituency candidate in an electorate proceeds, r91 requires that the Board must satisfy itself concerning the electorate’s party organisation, the availability of suitable candidates, the timing of the selection process and whether a “universal suffrage” approach to selection is feasible in that electorate. Rule 92 requires that nominations shall be called for by newspaper
advertisements or other means and prescribes the minimum periods for the receipt of nominations. In order to qualify for nomination a candidate must have been a financial member of the party for 12 months and must be nominated by 10 members resident in the particular electorate who likewise have been members for at least
12 months: r93. Once nominations have closed, r94 provides for the approval
of candidates by the Board. I have already referred
to the terms of subclause
(a) and (b).
[61] Given the requirement of s71 that delegates who participate in the
selection process must themselves have been elected by
members of the party, it
is relevant to refer to the rules which regulate the Board of Directors. The
Board is elected and is responsible
for “the direction and control of the
Party’s activities and compliance of the Party with the relevant rules of
New Zealand”:
r32. Its powers and duties are defined in r33 and the
makeup of the Board is prescribed by r35. It comprises nine persons being
seven
members elected at the annual conference, one of whom shall become the President
of the Party. The remaining two positions
are reserved for the Leader of the
Party and one parliamentarian elected by the parliamentary section of the Party.
Subsequent rules
prescribe how vacancies to the Board are to be filled, for the
election of the President by the Board and for the functioning of
the Board by
duly convened meetings and the appointment of committees, including two standing
committees, one to be the Rules Committee.
The Board, then, is comprised of
persons who are democratically elected by members of the Party.
[62] Returning to the electorate selection process, r98 provides for the
convening of a pre-selection committee, having responsibility
to reduce
the number of candidates to five, in the event that more than this number are
approved by the Board pursuant to r94.
The committee shall comprise nine
members, being the Electorate Chair, four persons elected at the previous
electorate annual general
meeting, two persons appointed by each of the Regional
Chair and the President, being members from outside the electorate:
r98(d).
[63] Following the pre-selection process, the selection of the candidate to represent the party within a particular electorate may be undertaken by a selection committee comprising delegates drawn from the branches within the electorate, or by
the universal suffrage method. Rule 114 governs the second alternative and
provides for members of the party to select the constituency
candidate by a
progressive voting system (r113) following a series of “Meet the
Candidates” meetings (r102) and a final
selection meeting
(r114(e)).
[64] I am satisfied that the rules of the National Party include a
comprehensive code for the democratic selection of constituency
candidates.
The requirement contained in s71 for participation in the selection process by
current financial members of the party
from the electorate, or by delegates
elected/selected by current financial members of the party, is met. Delegates
on the Board
consider the nominations and may reject one or more, while the
pre-selection committee must reduce the number to a maximum of five.
Thereafter, the universal suffrage option provides for current financial members
from the electorate to make the final choice by
a closely defined democratic
process.
[65] Accordingly, the rules of the National Party do satisfy the
requirement of democratic procedure contained in s71. Extensive
provision is
made for members of the party to participate in the selection of constituency
candidates. The preceding review of
the rules demonstrates as
much.
Is r94(b) otherwise challengable?
[66] Section 71 aside, is it seriously arguable that r94(b) is
challengable on other grounds? Mr Payne’s case seemed to
me to be
predicated on s71, but nonetheless I shall also consider this further
question.
[67] Mr Kiely anticipated this further aspect. He posed the question whether, assuming compliance with s71, there may still be a breach of the rules actionable as a breach of contract. Mrs Kirk’s affidavit detailed the process which was followed by the Board in reaching its decision to reject Mr Payne’s nomination. Mr Thompson’s affidavit also contained some information concerning Mr Payne’s actions in 2002, when his nomination for the then Rakaia electorate failed at the pre- selection stage. Mr Brian Connell became the National Party candidate, and ultimately a Member of Parliament, but subsequently Mr Payne challenged the new
member’s personal background, culminating in newspaper
comment and controversy.
[68] Although in terms of r94(b) there is no obligation to supply reasons
for a nominee’s rejection, Mrs Kirk’s affidavit
identifies three
matters which influenced the decision. The first was Mr Payne’s conduct
in 2002 when he failed to win the
Rakaia nomination and publicly criticised the
remaining candidates, Mr Connell in particular, both when he became the
constituency
candidate and following his election to Parliament. Second, as
a candidate for the Rakaia electorate Mr Payne was required to
sign an
undertaking that if unsuccessful he would not act in competition to the
successful National Party candidate. Mr Payne was
considered to be in breach of
his undertaking because he stood for the Christian Heritage Party in Rakaia and
thereby acted contrary
to the interests of National. Third, Mr Payne was
involved in protracted Family Court litigation with his former wife which
resulted
in numerous court hearings and, eventually, newspaper comment in 2005
concerning action taken to evict Mr Payne from his Wellington
home. In the
course of this dispute Mr Payne was also declared bankrupt for non-payment of
court costs, but the bankruptcy was
subsequently annulled.
[69] After considering Mr Payne’s nomination and checking
with his three referees, the Board decided that he was
not a fit and proper
person to be a candidate for the Party, particularly given his breach of the
undertaking in 2002 and because
“the Board was also concerned as to Mr
Payne’s conduct during his matrimonial litigation”.
[70] Mr Payne’s submissions to me were focused predominantly upon
this aspect. He contended that he was a fit and proper
person to be a candidate
for the Party and, indeed, that it was contrary to the interests of the Party
that his nomination was rejected
by the Board. The rights and wrongs of the
situation in 2002 were debated and Mr Payne emphatically refuted any criticism
of his
conduct throughout the several years of his matrimonial property
dispute.
[71] It is not for me to review the merits of the Board’s decision. I express no view on the matters which the Board regarded as justifying its rejection of
Mr Payne’s nomination. As I endeavoured to explain to Mr Payne
several times during the course of his submissions my role
is confined to
examining the Board’s decision to ascertain whether it complied with the
contractual requirements of the rules,
and in particular the procedural
requirements of r94(b).
[72] On the basis of Mrs Kirk’s affidavit the Board did consider
the required material, being the nomination form and any
comments which
accompanied it from the Electorate Committee and Regional Chair. In the event
the Board also made some “investigation
on its own behalf” in that
checks were made with each of the three referees nominated by Mr Payne. I infer
that the referees
were supportive of Mr Payne’s candidacy, because Mrs
Kirk made no point in her affidavit arising from the referee checks.
She simply
deposed that such checks were made.
[73] Instead, the Board based its decision upon historical information
concerning Mr Payne, which it regarded as relevant to his
suitability. This
information was not brought to Mr Payne’s attention. Nor, therefore, did
he have any opportunity to meet
it. Finally, the Board reached a decision in
the course of a duly constituted meeting (conducted by conference call) on 13
March
2008 and advice of the decision was communicated to the electorate,
without assignment of any reasons for Mr Payne’s rejection.
[74] Mr Payne did not submit that the decision process was procedurally deficient. As I have said, his focus was directed to the merits of the decision. To my mind the only procedural aspect which may be open to argument is whether there was an obligation upon the Board to advise Mr Payne of the matters in his background which were under consideration and which ultimately influenced the decision to reject his nomination. In 1993 Fisher J considered that the then equivalent provision, r108, entailed at least a rudimentary standard of procedural fairness which required the Executive to advise a nominee of matters adverse to his interests and to afford an opportunity for the nominee to comment upon them (p 568). Does r94(b) contain a similar requirement? Or, does the rule expressly, or impliedly, dispense with any requirement to afford a nominee an opportunity to counter adverse material which the Board proposes to bring to account?
[75] Upon reflection I do not think it is seriously arguable that r94(b) contains a requirement of notice, coupled with an opportunity to refute. The subject-matter of the decision is an important consideration. The issue at stake is whether a person should have the opportunity to represent the National Party as a constituency candidate at a national election. Section 12 of the New Zealand Bill of Rights Act
1990 confers on all New Zealand citizens who are 18 years of age or over the
right to be elected to Parliament.
[76] But what is at stake here is not that electoral right, rather
whether a political party will allow a particular person to
represent it at an
election. As to that issue I agree with the observations of Fisher J previously
quoted from Peters v Collinge (see para [39]). The question is a
political one. Are the party and the nominee philosophically compatible? Or,
to borrow Fisher
J’s phrase, are the two “out of sympathy”?
This, I think, is the assessment to be made. It is not a question
of
expulsion, or discipline, but rather of compatibility. Rejection of a
nomination does not necessarily reflect upon a nominee’s
personal
attributes and abilities, although, unfortunately, in this instance the
affidavit of Mrs Kirk does use the language of personal
fitness.
[77] More specifically the rule itself does not suggest a requirement of
notice, followed by an opportunity to be heard. All
the indications are the
other way, and indicate to me the exclusion of even this rudimentary level of
natural justice. The Board
is clothed with an unfettered discretion, and is
absolved of the need to interview a candidate, or even to assign reasons for
rejection.
This indicates a power of veto in the widest of terms.
[78] I conclude, therefore, that there is no serious question to be tried
based on a contractual breach of r94(b).
Balance of convenience
[79] Mr Kiely raised three aspects under this head. They concern the adequacy of damages, inconvenience to third parties and the public interest.
[80] With reference to the first head the gist of the argument was that
damages would not adequately address the losses or harm
which the National Party
may suffer from continuation of the interim injunction. Mrs Kirk’s
affidavit describes various impacts
which will flow from delay in finalising the
constituency candidate for Selwyn. The highpoint of the argument was that the
party
may not be in a position to comply with s127 of the Electoral Act by
providing its ranking of list candidates to the Chief Electoral
Officer
within the time prescribed. Apparently, all constituency candidates are
to be accorded a ranking on the list, and
the contention is that until the
Selwyn candidate is selected, the list cannot be finalised. The argument based
on s127 impresses
me as unrealistic, but for all that I accept that significant
delay in choosing the Selwyn candidate may be generally disadvantageous
to the
Party. And, it would be no easy matter to fix damages for the
delay.
[81] Much more significant to my mind is the inconvenience to third parties. Four of the remaining candidates for the Selwyn nomination made affidavits for the purpose of this hearing. I shall not refer to the detail of the individual affidavits. It is sufficient to say that the candidates each ordered their work and personal lives upon the assumption that the constituency candidate would be selected on 7 April. After my decision of 3 April the candidates were placed in a position of considerable uncertainty. Arrangements they had made to enable them to campaign through to 7
April were no longer of any utility. Whether similar arrangements for a
resumed final selection process will be attainable, is questionable.
Certainly,
I accept on the basis of the affidavit evidence that the remaining candidates
have been, and will continue to be, significantly
inconvenienced until such time
as a final decision is made concerning the Selwyn constituency
candidate.
[82] Counsel also submitted that it was in the public interest for the
National Party to have its candidate appointed at the earliest
possible
opportunity, which would afford the voters of Selwyn the best opportunity to
make an informed choice as to their member
of Parliament. Because Selwyn is a
new electorate, increased importance was placed upon the timely selection of a
candidate. Although
I do not totally discount this consideration I regard it as
of limited overall significance.
Overall justice of the case
[83] Mr Payne contended that overall justice favoured his position
essentially because the case concerned matters of democratic
importance. On the
other hand, Mr Kiely argued that the plaintiff’s case was not sufficiently
strong to warrant the disruption
caused by ongoing injunctive relief and the
prejudice which would be occasioned to third parties and the public generally.
Counsel
also contended that the ultimate relief in this case could be nothing
more than a requirement for the National Party to reconsider
Mr Payne’s
nomination. The reality, he suggested, was that such relief would prove futile.
Reconsideration would almost inevitably
lead to the same result. Either Mr
Payne’s nomination would be rejected by the Board of the National Party or
at the pre-selection
stage.
[84] I tend to think that this is so. While Mr Payne is determined to
expose what he considers is impropriety in relation to
candidate selection, the
National Party hierarchy is equally of a mind that he is not worthy of support
as a constituency candidate.
But to my mind the determinative consideration is
the absence of a serious question to be tried. In light of that conclusion
I
regard the balance of convenience as less influential and such conclusion also
means that the overall justice of the case
favours the defendant.
Conclusion
[85] For the reasons given I am satisfied it is appropriate to review and
in the event rescind the interim order made on 3 April.
Accordingly the interim
injunction granted on that day is discharged.
[86] With reference to the substantive proceeding I direct that a telephone conference be convened on 9 May 2008 at 9.15 am so that if required a timetable order may be made.
[87] Costs in relation to the interlocutory hearings are reserved. If sought by the defendant, it may file a memorandum in support within 10 working days, after which
the plaintiff will have 10 working days in which to
reply.
Solicitors:
Applicant - Mr R J Payne, Willowbank Farm, 73 Muff Road, Orari RD 26, TEMUKA Kiely Thompson Caisley, Auckland for Respondent
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2008/608.html