Takerei v Winiata HC Hamilton CIV-2010-419-1071 [2011] NZHC 173 (2 March 2011)

I direct the Registrar to endorse this judgment with a delivery time of 11 a.m. on 2 March 2011.

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Introduction [1] Issues [6] Pleadings [7] The Maori Party [10] The Constitution [11] Decisions subject to review [13]

Is the decision to select a candidate an exercise of a statutory power of decision pursuant to s 4 of the Judicature

What is the level of compliance required with the Guidelines? [89] (a) FPP system of voting [91] (b) Notice Issues [102] (c) Eligibility to vote [129] Conclusions on non-compliance with the Guidelines [138]

Other matters [151] Summary of Conclusions [161] Relief sought [162] Result [165] Costs [166] Observations [167]

[1] The plaintiff, Ms Mamae Takerei, has applied to review decisions of the Maori Party relating to the selection of the second plaintiff, Mr Tauhuia Bruce Mataki, as its candidate for the Hauraki-Waikato electorate for the 2011 general election. The plaintiff seeks an order from the Court quashing the decision to select the second defendant as candidate for the Hauraki-Waikato electorate and a declaration that the candidate selection process was flawed and procedurally unfair.

[2] The second defendant opposes the application and says that his selection was carried out lawfully and appropriately.

[3] The first defendants are the president and co-vice presidents respectively of the Maori Party and abide the Court‘s decision.

[4] The Maori Party is an unincorporated society registered as a political party under s 67 of the Electoral Act 1993 (―the Act‖). It has supplied a copy of its rules to the Electoral Commission pursuant to ss 71 and 71B of the Act

[5] The National Council of the Maori Party confirmed Mr Mataki as the successful candidate for the Hauraki-Waikato Electorate on 30 July 2010 and a formal announcement of his selection was made on 7 August 2010. He was recorded as the highest polling of three candidates on the first past the post (―FPP‖) system.

(a) Is the decision to select a candidate an exercise of a statutory power of decision pursuant to s 4 of the Judicature Amendment Act 1972?

(c) How is r 8 in Part 2 of the Constitution of the Maori Party to be interpreted, and what is the status of the Candidate Selection Guidelines in the Constitution?

(d) What is the level of compliance required with the Guidelines – in particular, as to notice requirements and the stipulated voting system?

She is a Maori woman aged 59 years and was at all material times a current member of the Maori Party residing in the Hauraki-Waikato electorate and

At the annual general meeting of the Maori Party on 11 December 2009, party members approved a new Constitution which was supplied to the

The decisions of the first defendants and other members to adopt the Constitution on 11 December 2009, the Maori Party‘s conduct of the candidate selection process and its confirmation of the second defendant‘s selection were all decisions based on its powers under ss 71 and 71B of the

[8] She pleads breach of legitimate expectation in relation to the process used to select Mr Mataki as candidate for the Hauraki-Waikato electorate, and error of law and acting ultra vires in that the Candidate Selection Handbook was inconsistent with the Constitution and the selection process followed was not fair or democratic

as required by ss 71 and 71B of the Act. She also pleads procedural unfairness in the selection process in a number of respects.

Pleads that the National Council of the Maori Party did not appoint a candidate but the Hauraki-Waikato electorate, having gone through a democratic process, elected him as a candidate. He was then confirmed by the National Council as the successful candidate on the recommendation of

Pleads that Part 1 of the Constitution takes precedence over the Candidate Selection Guidelines and relies on r 8 as amended in December 2009, which provides (in part): ―The council may at any time determine the procedure for selection of the candidate. And such determination shall be of immediate

Denies that statutory powers of decision were involved and says the real issue is whether s 71 of the Act was seriously breached in the candidate selection process; that it was not and the plaintiff‘s claim should be

[10] It is not in dispute that the Maori Party is an unincorporated society registered with the Electoral Commission as a political party under s 67 of the Act and that a copy of the Constitution of the Maori Party has been provided to the Electoral

Commission under s 71B of the Act. Section 71B requires the following to be provided:

(b) A copy of the rules governing the selection of persons to represent that party as candidates for election as members of Parliament;

[11] The Constitution of the Maori Party, as approved at the annual general meeting on 11 December 2009,1 is divided into three parts:

Part 1 is comprised of ―Kaupapa and Tikanga‖. The kaupapa (principles, values or philosophies) are described as the objectives of the organisation and various tikanga describe policies, operations and organisational structures emanating from the kaupapa. The kaupapa and tikanga listed include manaakitanga, rangatiratanga, whanaungatanga, kotahitanga, wairuatanga, mana whenua, kaitiakitanga, mana tupuna/whakapapa and te reo rangatira. Following each of these kaupapa, tikanga derived from the particular kaupapa are stated.

The third part of the Constitution sets out ―Candidate Selection Guidelines for the Maori Party‖. The provisions of the Guidelines are important in this case and for ease of reference a copy is attached to this judgment as

1 The Constitution was further amended on 30 October 2010. The Constitution approved on 11

[12] The Candidate Selection Guidelines were adopted at the Maori Party‘s 2009 annual general meeting. They replaced the ―First Schedule‖ to the 2008

Constitution. Part A of the Guidelines repeats the kaupapa stated in Part 1 of the Constitution with the additional principles of transparency, participation, inclusiveness, fairness and reasonable notice. Part B sets out the ―Selection Process Overview‖.

[13] At para 30 of her statement of claim, the plaintiff sets out under the heading

―Statutory Power of Decision‖ the decisions said to be based on ss 71 and 71B of the

2009, and the Maori Party‘s conduct of the Candidate Selection Process, and its confirmation of the Second Defendant‘s selection ...

[14] On the basis of the relief sought it seems clear that the decision which is the principal focus of the review is the decision to select the second defendant, Mr Mataki as the Maori Party candidate for the Hauraki-Waikato Electorate for the 2011 election. The plaintiff wants that decision quashed. Other complaints are directed to decisions allegedly made regarding the selection process, which is said to be flawed and procedurally unfair.

[15] It is important therefore to determine who the decision maker was, that is, who made the decision to select Mr Mataki as candidate.

The First Defendants, and the Maori Party‘s National Council in anticipation of a general election being held some time in 2011, made a decision to appoint a candidate for Hauraki-Waikato electorate.

7.2 The Hauraki-Waikato electorate, having gone through a democratic process, selected a candidate.

7.3 On the recommendation of the national candidate selection sub- committee, the National Council confirmed the successful candidate to be Tauhuia Bruce Mataki on 30th July 2010.

[18] Mr Illingworth QC, counsel for the second defendant, stated in written submissions:

In the present case the decision to select the second defendant as the candidate for the next general election was made by the Hauraki Waikato Electorate Council. This decision was merely confirmed by the party‘s National Council.

Because the Electorate Council made the decision to select the second defendant, it is submitted that the members of that Council should have been the primary defendants in these proceedings as it is their conduct that is in issue and it is their decision that the plaintiff is seeking to overturn.

[21] Inconsistently, the second defendant pleads at para 8.1 of the statement of defence:

The Hauraki-Waikato Electorate does not have an Electorate Council. They have an Executive Committee and all decisions are made through Electorate Hui by consensus.

[22] Mr Hope‘s stance on behalf of the plaintiff was that members of the National Council are appropriate defendants as it was they who confirmed the selection of the second defendant under cl 1.5 of the Candidate Selection Guidelines, which are part of the Constitution.

[23] Clauses 1.3 to 1.5 of the Guidelines state how candidates are to be selected:

1.3 The candidate selection hui shall, if there is a consensus, select the candidate according to the circulated process.

1.4 Failing a consensus being reached, the financial members shall refer the matter to the Electorate Council who shall have the authority to select the candidate.

1.5 Where either the candidate selection hui or its delegates have reached a consensus as to who should be the candidate, this person‘s name shall be submitted forthwith to the National Council and the National Council shall immediately either confirm the nomination, or, if in the opinion of the National Council the nomination requires further consideration, the National Council shall meet with the Electorate and resolve a way forward.

[24] Under these provisions there are two routes by which the view of the electorate can be ascertained for submission to the National Council for confirmation: by consensus at Candidate Selection hui or through the Electorate Council, failing consensus at the hui.

[25] In either case the National Council must confirm the candidate or go back to the electorate to resolve the matter: guideline 1.5.

5.2 Each Electorate shall have an Electorate Council which shall be responsible for all party activities in the Electorate.

5.6 At each Annual Hui, three National Council members, and their substitutes shall be selected as defined in clause 4.2.

5.7 All decisions of the Electorate Council shall be by consensus (as defined in 4.4 above).

[27] There is no further guidance in the rules as to how the Electorate Council should be constituted. Accordingly, an Electorate Council would be comprised of

_{members selected at the annual hui of financial members of the
Hauraki-Waikato}

Electorate: r 5.4. No evidence has been provided as to the selection or appointment of such an Electorate Council for the Hauraki-Waikato Electorate. There are indications, however, that key members did consider an Electorate Council for the

_{―Electorate Council hui‖ and motions being passed by the
Electorate Council.}

Ms Gaylene Nepia, in her affidavit dated 5 November 2010, refers to the Hauraki-Waikato ―Electorate Council‖ as consisting of ―Natasha, Rangimarie, Suzzane and Tom‖. This refers to Natasha Kendall, Rangimarie Hapi, Suzzane Awatere-Mackie and Thomas Phillips, the electorate chairperson, secretary and selection coordinator respectively. It is possible

[28] I am not able to determine on the available evidence whether the Hauraki- Waikato Electorate had a duly elected Electorate Council and if so who its members were at the relevant time. It is possible that the monthly Hauraki-Waikato Electorate hui, which appear to be attended by regular key members, were meetings of the Electorate Council. The members in attendance appear to be representatives from each branch. But in the absence of minutes from the annual hui of financial members of the Hauraki-Waikato Electorate, it is not possible to determine whether these persons are members of the Electorate Council required by r 5.2 of the Constitution. The most that can be said on the available evidence is that certain key persons were regarded by at least some members as fulfilling the role of the Electorate Council in the Hauraki-Waikato Electorate.

[29] However, it would appear that Mr Mataki was selected by ―consensus‖ of the Candidate Selection hui held between 10 July and 24 July 2010. His name was then submitted to the National Council and the National Council (through its Candidate

Selection sub-committee) confirmed his selection on 30 July 2010 with the formal announcement following on 7 August 2010.

[30] In this case, the route to confirmation by the National Council was through the candidate selection process under guideline 1.3, and not under the fallback process under guideline 1.4 which would have involved resort to the Electorate Council.

[31] There was no candidate selected until the National Council gave its confirmation. Confirmation by the National Council is the final step or act in the candidate selection process. Guidelines 1.3, 1.4 and 1.5 provide a selection process leading up to the point when the electorate‘s preferred candidate can be submitted to the National Council. But without the final confirmation of the National Council, no candidate can be selected.

[32] I therefore conclude that the decision in issue as to the selection of the second defendant as candidate for the Hauraki-Waikato Electorate, is the decision of the National Council on 30 July 2010.

[33] I reject the defendant‘s submissions that the relevant decision is that of the Hauraki-Waikato Electorate Council (if it existed) and that the relevant parties are not before the Court.

Is the decision to select a candidate an exercise of a statutory power of decision pursuant to s 4 of the Judicature Amendment Act 1972?

[34] The plaintiff relies on the cases of Peters v Collinge3 and Payne v Adams4 for authority that the Court has jurisdiction to review decisions made by political parties. Further, in reliance on those authorities and s 71 of the Act (the cornerstone of the argument advanced by the plaintiff), the plaintiff submits that the decisions made in

electorate were in exercise of a statutory power of decision enabling a review under s 4 of the Judicature Amendment Act 1972.

[35] Mr Illingworth accepted that the Judicature Amendment Act 1972 is not the only source of jurisdiction for judicial review. He acknowledged that under Part 30 of the High Court Rules the Court may have ―a theoretical power to intervene‖ on the basis that the decisions in issue ―raise significant public law issues‖, but he strenuously resisted any suggestion that the decisions in issue were taken in exercise of a statutory power of decision. He emphasised that the Maori Party is an unincorporated association constituted by contractual agreement between its members, that being the Constitution.

[36] The Act was enacted, according to its long title, to reform the electoral system and to provide for the introduction of the mixed member proportional (―MMP‖) system. Before turning to consider the relevant authorities it will be helpful to set out ss 71 and 71B of the Act:

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

71B Obligation to provide copy of party membership rules and candidate selection rules

(b) a copy of the rules governing the selection of persons to represent that party as candidates for election as members of Parliament:

(2) The copies required by subsection (1)(a) and (b) must be supplied within 1 month after notice of the registration of the party is notified in the Gazette in accordance with section 67(1)(c).

(3) The copies required by subsection (1)(c) must be supplied within 1 month after the date on which the changes to the rules are adopted by the party.

(4) Members of the public are entitled to inspect the documents supplied to the Electoral Commission under this section. They may inspect them, without payment, at any time between 9.00 am and 5 pm on any day on which the office of the Electoral Commission is open.

[38] Mr Peters was a Member of Parliament and a member of the National Party. He applied for an interim injunction to restrain the National Party from expelling him from the party, requiring him to agree to a non-competition clause, and failing to approve him as the party candidate for the Tauranga electorate. One of the issues the Court had to consider was whether the National Party‘s disapproval of Mr Peter‘s nomination was a breach of natural justice or parliamentary privilege.

[39] In relation to judicial review of political party processes, Fisher J said:5

The National Party is an unincorporated society. Fundamentally, the jurisdiction to review steps taken by such a society is to be found in contract. In some special situations a private body may be subject to non-contractual judicial review, for example where it exercises quasi-public functions (see for example, R v Panel on Take-overs and Mergers, ex parte Datafin Plc), or contemplates an action of significant direct impact upon the public (Finnigan v New Zealand Rugby Football Union Inc). ... It must be kept in mind that we are dealing here with the manner in which the controlling executive of a political party may exercise its power to decline to approve a Member of Parliament as its candidate in the forthcoming general election, not an expulsion, disciplinary, or restraint of trade case.

In my view the plaintiff's rights with respect to procedures to be followed by the National Party must be found in the express or implied terms of his contract with the other members of that party. It then becomes a matter of construction of the contract, that is to say of the National Party's rules. That would be misleading if one failed to recognise the very strong assumption that in certain circumstances, and in the absence of clear indications to the contrary, it will be assumed that the parties intended that natural justice would apply. By natural justice we mean procedural fairness. If applicable, it calls for adequate notice of allegations, a reasonable opportunity to be heard and absence of bias. ...

[40] The Judge thus held that the presence and level of natural justice is to be found in the society‘s rules, and would depend on various factors such as the nature of the interest at stake. His Honour went on to state that, because of the nature of politics, and compared to expulsion or disciplinary hearings, when considering whether to approve a sitting Member of Parliament under the party rules, a

[41] Fisher J considered there was no seriously arguable case that there would be a breach of procedural standards, bias, or a breach of parliamentary privilege in the National Party‘s decisions in relation to Mr Peters. He made a number of observations summarising his judgment, including the following:

(a) The decision whether the party will support a candidate must be a voluntary one. The party must act in accordance with its own objects and rules, but can change its policies and allegiances at any time. There can be no legitimate expectation that a party will continue to support its Member of Parliament in the next election.7

(b) For legal purposes, political parties are private bodies and have no statutory or public duties. In exceptional cases private entities may be the subject of non-contractual judicial review, but the National Party

(c) There is a need carefully to distinguish between public law relating to electoral processes and private law relating to the internal activities of unincorporated societies.9

[42] These were the first cases to consider s 71 of the Act in depth. Mr Payne had applied to be the National Party candidate for the Selwyn electorate in the 2008 general election but his nomination was disapproved. He was initially granted an interim injunction staying the final candidate selection process, but in Payne v New Zealand National Party,10 Panckhurst J rescinded the injunction. After the election, Mr Payne challenged the outcome through an electoral petition, alleging that flaws in the National Party‘s candidate selection process rendered the poll unlawful. A Full Court of the High Court held in Payne v Adams that Mr Payne did not have standing under the Act to bring the electoral petition. His complaint was about the process by which the National Party selected a candidate for electoral purposes which was not a complaint of an unlawful election or unlawful return and so could not be the subject of an electoral petition. Nonetheless, the Court went on to consider s 71 of the Act and the issue of alleged breach of natural justice.

[43] The Court first outlined the legislative background to the enactment of s 71, noting that it was the first time political parties were required to provide for member participation in the candidate selection process.11 The Court also observed that no penalty is prescribed for a breach of s 71.12 It stated:13

We are also influenced in our conclusion on this issue by the availability of remedies prior to an election where a person seeking nomination as a constituency candidate for a political party is dissatisfied with the election process. Just as Mr Payne did in the present case, any person dissatisfied with the election process is entitled to apply to the Court for declaratory or injunctive relief. By such means, any such person would be able to challenge, for example, the lawfulness of the rules of the political party or whether the rules had been followed in a particular case. (emphasis added)

[44] Panckhurst J‘s discussion of s 71 in Payne v New Zealand National Party was largely adopted by the Full Court.14 The Court cited extensively from His Honour‘s judgment15 where he referred to the Royal Commission‘s report,16 the report of the Electoral Law Committee17 and Hansard.18 The tenor of these reports was that s 71 was intended to introduce a requirement for democratic procedures in candidate selection, and for some form of review of these procedures to be available in the courts.

[45] The Court specifically endorsed19 the conclusions of Panckhurst J in Payne v

[52] ... 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.

[46] The Court also referred with approval to the article of Andrew Geddis when he questioned the strict characterisation of political parties as private and Fisher J‘s observation in Peters v Collinge that political parties ―have no statutory or public duties.‖20 Mr Geddis indicated that the issue of how political parties should be

16 John Wallace and Others Report of the Royal Commission on the Electoral System: “Towards a

17 Electoral Law Committee ―Report of the Electoral Law Committee on the Electoral Reform

20 Andrew Geddis ―The Unsettled Legal Status of Political Parties in New Zealand‖ [2005] 3

[47] The Court also referred to Awatere Huata v Prebble,21 where Elias CJ commented on the legal status of political parties in New Zealand. Her Honour stated that political parties are unincorporated associations, only susceptible to enforcement of the membership agreement in courts but otherwise have wide freedom in their internal arrangements.22 The Court acknowledged that Awatere Huata v Prebble and Peters v Collinge were endorsements of the traditional approach of the contract model of challenging decisions of unincorporated associations, but recognised that in neither of those cases did s 71 come up for consideration.23

[97] Before examining the National Party Rules for compliance with s 71 we make the following observations:

(a) While the heading to the section refers to a ―Requirement for registered parties to follow democratic procedures in candidate selection‖, the scope of the ―democratic procedures‖ is defined by the operative parts of the section itself. In other words, there is no general requirement to follow some undefined

―democratic procedures‖. Rather, the procedures to be adopted are those specified in the section.

(b) The section ... requires that ―provision is made for participation‖ in the selection of candidates by the means defined in s 71(a) or (b) or a combination of both. The extent of the provision is not defined and is left to the Party to determine.

(c) The current financial members of the party referred to in s 71(a) must be those entitled to vote for the candidates in the electorate concerned, that is, this provision does not refer to current financial members of the party at large. ....

(d) The persons referred to in s 71(b) are ―delegates‖ (not defined in the Act) who have (whether directly or indirectly) been elected or otherwise selected by current financial members of the party. The financial members referred to in this provision may be drawn from the local electorate or from the Party at large or a combination of both.

(e) Section 71(c) contemplates participation in the selection of candidates by a combination of persons who meet the requirements of s 71(a) or (b).

[98] It is evident from our analysis of s 71 that the obligation to provide for participation in the selection of candidates is flexible in scope and allows room for a registered political party to meet its obligations by one or other of the defined means or a combination of them. Importantly, the extent of the participation required by the identified groups is left for determination by the political party. It may be expected that the rules governing registered political parties will provide for their adoption by the membership. By that means, the members themselves will determine the nature of the rules and the extent of the provision for participation by the identified persons or classes of person under s 71.

[49] Ultimately, the Court in Payne v Adams found that the National Party rules did not breach s 71. In relation to the argument that there was a breach of natural justice, the Court endorsed Fisher J‘s findings in Peters v Collinge, saying, ―if there is any requirement of natural justice it could be no greater than the rudimentary obligation identified by Fisher J to afford an opportunity to the nominee to respond to any adverse material‖.24 Accordingly, Mr Payne‘s arguments failed in that respect as well.

[50] Under the heading ―Statutory Power of Decision‖ at para 30 of the statement of claim, the plaintiff pleads that certain decisions of the first defendant and other members were decisions based on powers under ss 71 and 71B of the Act.25

[51] The plaintiff referred to the observation of the Full Court in Payne v Adams26 where the Court, referring to a person seeking nomination as a constituency candidate for a political party who was dissatisfied with the election process, could apply to the Court for declaratory or injunctive relief ―to challenge, for example, the lawfulness of the rules of the political party or whether the rules have been followed in a particular case‖27

[52] The plaintiff submitted that this observation reinforces the argument that a decision made in accordance with the rules to which s 71 refers, namely provision for candidate selection, is a statutory power of decision. I do not accept that

[53] First, ―statutory power‖ and ―statutory power of decision‖ are defined in s 3 of the Judicature Amendment Act 1972:

statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate

statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision ...

[54] The Maori Party is not an incorporated body or a body corporate. It is an unincorporated association, the members of which, pursuant to the membership agreement (the Constitution of the Maori Party in this case), agree to conduct themselves in accordance with the current rules of the unincorporated association. Authority exercised by the Maori Party‘s National Council and other arms of governance derives solely from the membership agreement, namely the Constitution. The powers so exercised do not come within the definition of ―statutory power‖ or

[55] Secondly, neither ss 71, 71B or any other provision in the Act confers a power of decision on a political party. The Act provides for registration of political parties. It requires of registered parties, by s 71, that provision to be made for participation in the selection of candidates by financial members of the party, and by s 71B that rules governing membership and selection of candidates of the party be supplied to the Electoral Commission.

[56] I consider the effect of s 71 and the observations of the Court in the Payne cases is that the lawfulness of the rules of a political party (which is not in issue here) and whether the candidate selection processes are followed are matters amenable to judicial review. But this is because of the public law element inherent in such decisions and processes, as reinforced by ss 71 and 71B and other provisions

of the Act. Such decisions, however, are not statutory powers of decision under s 3 of the Judicature Amendment Act 1972.

[57] The manner and standard for democratic procedures and participation in the selection of candidates is not specified in s 71. How the requirements of s 71 are met is left for determination by the membership of the political party concerned, provided there is provision for participation by current financial members and/or delegates selected by current financial members of the party.

[58] The challenges in the cases considered above were to the rules themselves of the political party concerned - in those cases the New Zealand National Party. In this case the plaintiff challenges not the rules of the Maori Party, as Mr Hope was at pains to emphasise, but the processes put in place by the Maori Party for selection of a candidate in the Hauraki-Waikato electorate. The plaintiff‘s complaint is essentially that the candidate selection processes did not comply with the Maori Party‘s own Constitution and were not democratic.

[59] There does not appear to be any authority as to whether the obligation to comply with s 71 is limited to provision in the rules of the political party for participation in the selection of candidates, or whether it extends to the operation of selection processes in practice. The issue did not directly arise in the cases previously referred to, they being concerned with whether the rules themselves complied. I see no reason to limit the obligation under s 71 to the formal rules of a political party governing candidate selection. Neither the extent nor the manner in which provision is to be made for participation in candidate selection by financial members of the party is defined in s 71. The concern will be with ―democratic processes‖ for participation in candidate selection, including ―whether the rules had been followed in a particular case‖.28 The approach to compliance with s 71 is to be

How is r 8 in Part 2 of the Constitution to be interpreted and what is the status of the Candidate Selection Guidelines?

[60] As explained above the Constitution of the Maori Party is divided into three parts: Part 1 (Kaupapa and Tikanga); Part 2 (Rules); and Part 3 (Candidate Selection Guidelines).

[61] Rule 8 appears in Part 2 of the Constitution and is a key provision concerned with candidate selection. It provides:

The council may at any time determine the procedure for selection of candidates. And such determination shall be of immediate effect.

[62] The second sentence in r 8 was not included in the 2008 Constitution and appeared for the first time in the Constitution approved at the Annual National Hui on 11 December 2009.

[63] The parties are agreed that the reference to the ―First Schedule‖ in r 8 is to the ―Candidate Selection Guidelines‖ for the Maori Party in the third part of the Constitution.30

[64] The ―council‖ referred to in the second sentence is the National Council of the Maori Party as defined in r 4.1. The National Council is distinguished from the Electorate Council for each electorate which by r 5.2 is ―... responsible for all party activities in the Electorate‖. Electorates are represented on the National Council by up to four Council members selected by each Electorate: r 4.2b.

The Constitution may be amended, added to or rescinded by resolution of the Annual National Hui of the Party or a Special National Hui convened for such purpose.

The second sentence in r 8 should be read subject to the first, given that the first sentence was retained when the second sentence was added in 2009.

The Guidelines (as part of the Constitution) can only be varied by resolution of the Annual National Hui or a Special National Hui convened for that purpose under r 9.

The effect of the second sentence in r 8 is merely to allow the National Council to ―determine the procedure‖ for selection of candidates by filling in gaps in the Guidelines, without making any determination that is inconsistent with them.

Rule 8 must be read in a manner consistent with s 71 of the Act, which requires a democratic process for the selection of candidates. A procedure that can be changed at the whim of the National Council cannot be a democratic process.

Reading the Constitution as a whole, the matters in the Guidelines being guidelines, are directory points, not legally binding mandatory requirements.

Section 71 relates to ―participation in the selection of candidates‖ by financial members of the party. It does not relate to settling or determining the processes to select candidates which by r 8 is vested in the National Council, provided any determination is not inconsistent with the requirements of s 71.

[68] Guidelines usually do not have binding legal status. The purpose of guidelines is usually to assist in understanding, and breach of a guideline will not

31 See for example Radio New Zealand Ltd v Bolton HC Wellington CIV-2010-485-225, 8 July

2010 at [24] per Joseph Williams J; Pub Charity v Attorney-General [2003] NZAR (HC) at [36]

[69] However, there may be statutory direction for a decision maker to take guidelines into account, such that if due account is not taken the decision will be amenable to judicial review.32

[70] The status and effect of guidelines have to be considered in their context. Here the Candidate Selection Guidelines are part of the Constitution of the Maori Party and must be interpreted in the context of that contractual document.

[71] To assist in determining how r 8 should be interpreted, regard can be had to the use of the term ―shall‖ in the first sentence, and the intention behind the introduction of the second sentence at the 2009 Annual National Hui with retention of the first sentence.

―general principles‖ manner, where concepts are explained and the philosophy of the Maori Party is expressed on a higher level. The term ―shall‖ does not appear. In contrast, in Part 2, almost every rule is expressed using the terms ―shall‖ or ―may‖, reflecting the mandatory nature of the Rules. For example, r 1.1 provides that the name of the party ―shall be‖ the ―Maori Party‖. Other rules by use of the term

―may‖ provide authority to act. For example, r 3.2 provides that any person of at least 13 years of age may make application to join the party. Rule 3.7 provides that the National Council ―may decline or cancel any membership that the Council believes does not meet the criteria outlined clause 3.1‖.

[73] Rule 3.5 provides that ―any person who is a member of the Maori Party on the date at the opening of nominations, shall be entitled to participate in decision- making in local candidate and local list recommendations‖. This rule reflects the requirement for participation in the selection of candidates in s 71 of the Act.

32 Abu v Superintendent Mt Eden Women’s Prison [1999] NZHC 918; [2000] NZAR 260 (HC) at [23] and [39].

The council may at any time determine the procedure for selection of candidates. And such determination shall be of immediate effect.

[75] The first sentence appears to state that, when selecting candidates, the Guidelines must be followed - or possibly, must be referred to or taken into account. The second sentence appears to give the National Council the discretion to

―determine the procedure‖ for selecting candidates, with any such determination to have immediate effect. The term ―procedure‖ connotes a set of steps or methodology. It can thus be asked: Is the ―procedure‖ that the second sentence of r 8 authorises the National Council to determine with immediate effect, something different from the process set out in the Guidelines?

[76] Despite being termed ―guidelines‖ the Guidelines also use the terms ―shall‖ and ―will‖ extensively.33 However, Part B of the Guidelines is headed ―Selection Process Overview‖. Guidelines 2 to 10 do not specifically deal with ―procedures‖ for candidate selection but relate to matters such as process management, timelines, nomination, eligibility and conflicts of interest. Guidelines 1.2 and 1.3 are drafted quite broadly. Guideline 1.2 refers to ―notice of the nomination criteria and selection process to be followed‖, and guideline 1.3 states that ―if there is a consensus‖ the candidate is to be selected ―according to the circulated process‖. The selection process is not prescribed here. Other provisions, such as guideline 5 (―The Nomination Process‖) and guideline 11 (―Candidate Selection Hui‖) are, however, more specific.

[77] The broad approach of guideline 1 may support Mr Hope‘s interpretation that the authority in the National Council to ―determine the procedure‖ merely refers to fleshing out procedures stated in the Guidelines to the extent they are not specific. However, the specific nature of other guidelines points away from that interpretation because they leave little discretion in the National Council under the second sentence

[78] It is relevant to consider the circumstances and context in which the second sentence in r 8 was added when the amended Constitution was adopted in December

[79] As mentioned above, the second sentence in r 8 was introduced together with the Candidate Selection Guidelines at the 2009 annual general meeting of the Maori Party. In the 2008 Constitution, r 8 comprised only the first sentence of the current r

8 and there was a First Schedule annexed. The First Schedule included the principles in Part A of the current Candidate Selection Guidelines and cls 1 and 2 of Part B, under the heading ―Selection Process Overview‖. There was no statement or reference that the provisions of the First Schedule were guidelines.

[80] It can be inferred that when the additional provisions in cls 3 to 14 of the Candidate Selection Guidelines were added in 2009, they were intended to provide more detailed guidance on the candidate selection processes, which under cls 1 and 2 had not been set out in any detail and indeed had been left open. But the membership decided it necessary to reserve to their National Council the power to determine the procedure for selection of candidates with immediate effect so that the provisions in the Guidelines could be changed without the necessity to resort to an annual or special general meeting to formally amend the Constitution. Thus, the National Council (or a duly appointed sub-committee of the National Council) would have the discretion to change, vary or add to and interpret the Guidelines, some of which are quite specific, to meet current circumstances or the requirements of a particular electorate.

[81] Under r 9, alteration of the Constitution requires a resolution of the Annual National Hui or a Special National Hui convened for such purpose. But the specific discretion vested in the National Council by the second sentence of r 8, limited to determination of procedures for the selection of candidates, would prevail over the general requirement of r 9.

[82] I conclude that under r 8 the National Council, or a duly appointed committee of the National Council, has the discretion to make specific determinations as to the procedure for the selection of candidates ―at any time‖, which will prevail over the

relevant guideline or guidelines in the Constitution. That is what the second sentence of r 8 states in its bald terms. It does not limit the discretion of the National Council to determining procedures for selection of candidates that are not prescribed in the Guidelines.

[83] Rule 8 is poorly drafted and difficult to interpret but I consider the interpretation I have reached is that which best reflects the meaning intended by both the sentences in r 8 when read together, in the overall context of the Constitution.

[84] It is necessary to consider whether the discretion given to the National Council by r 8 to determine the procedure for selection of candidates at any time, with immediate effect, is inconsistent with s 71.

[85] In Payne v Adams the Full Court held that the obligation to provide for participation and ―democratic procedures‖ under s 71 is ―flexible‖ in scope and is to be determined by the members themselves.34 In that case the rule in dispute was one allowing the Board of Directors of the National Party to veto nominees for selection as candidates. The Court stated, in relation to the rule:

[107 ... there is nothing in s 71 preventing a provision in the rules of a registered political party such as r 94(b), which permits the Board or other central governing body to veto one or more nominees for selection as an electorate candidate. There is nothing undemocratic in doing so in the sense in which that expression is used in s 71 ...

[108] While we accept Mr Payne‘s submission that a provision such as r 94(b) has the potential for abuse, the members of the Party have the power at the Party‘s annual conference to hold the members of the Board to account for their actions.

―which provides the Party leadership according to the kaupapa‖: r 4.1. Under rr 4.2b and 5.6, it is comprised of financial members of the Maori Party selected by each electorate by consensus, defined in r 4.4 as ―the view of the majority‖. It follows

_{that decisions of the National Council cannot be regarded as
undemocratic. While}

there may be the potential for abuse, as was recognised by the Court in Payne v Adams, accountability of the National Council rests with the financial members of the Maori Party at the Annual National Hui or a Special National Hui convened under r 7.

[87] While the party, through its National Council, must ensure that provision is made for participation by financial members in the selection of candidates as required by s 71, the standard for ―democratic procedures‖ and ―participation‖ in terms of s 71 is not a high one. How it is to be met will generally be for the party itself to determine.

[88] Further, I agree with Mr Illingworth‘s submission that the requirement of s 71 relates to ―participation in the selection of candidates‖. There is no statutory requirement for participation by financial members in determination of the procedure that will be put in place by a political party to ensure participation in candidate selection by eligible financial members. In the case of the Maori Party, determination of the procedure rests with the National Council under r 8.

[89] There are three main aspects in which it is alleged the Guidelines were breached:

(b) that there was inadequate notice of the nomination and candidate selection processes; and

[90] Given my conclusions that the Candidate Selection Guidelines are not binding and that the National Council may determine the procedure for selection of candidates under r 8 with immediate effect, the issue becomes whether the alleged

breaches (if they were breaches), were so serious as to amount to or contribute to a process that was in breach of s 71 of the Act or procedurally unfair.

[91] The Hauraki-Waikato Electorate adopted the FPP system of voting in the selection of its candidate for the 2011 general election. However, the Guidelines stipulate that the STV system is to be used at candidate selection hui: see guidelines

[92] If a decision to use the FPP system of voting instead of the STV system as set out in the Guidelines was authorised by the National Council then it would be valid and prevail over the Guidelines.

Hauraki-Waikato electorate were not made by the National Council but in a hui on

12 May 2010 in Huntly attended by 12 people. The defendant and Ms Nepia in her affidavit, deny this is so. Ms Angeline Greensill, in an affidavit filed in support of the plaintiff, points out that the STV system had been used in the 2005 and 2008 elections and expressed the view that the STV system had been preferred over other models of voting because of the Maori Party‘s focus on consensus decision-making.

[94] The evidence is that a candidate selection process draft was presented to the Hauraki-Waikato electorate meeting on 28 April 2010. According to the minutes, this was based on National Council information and the Chairperson was waiting for feedback from the various branches. The minute refers to ―Te Ururoa‘s Time Frame as attached‖. This is presumably a reference to the timeline prepared by Mr Te Ururoa Flavell, a Member of Parliament for the Maori Party, for use by the Maori Party Electorate generally in the selection of candidates for the 2011 general election. The minutes record the suggestion that the electorate‘s executives ―pull

_{something together‖, and a motion was passed for a special
electorate hui to be held}

on 12 May 2010. According to the statement of defence the matter was not discussed further because a potential nominee was present.

[95] On 12 May 2010 a Hauraki-Waikato special electorate hui was held at Huntly to determine the candidate selection process as an electorate. It is recorded that 12 people were present. The minutes also record that FPP was the voting process to be used. The candidate selection process draft was put on a PowerPoint presentation at the meeting, but it appears that copies were not handed out.

[96] On 26 May 2010 a Hauraki-Waikato electorate meeting was held at the Kirikiriroa marae at Hamilton, which was attended by 10 people. The minutes record that the Candidate Selection process draft had been confirmed by the National Council after the 12 May 2010 hui. The minutes from the previous hui were circulated and a motion passed that they were a true and correct record.

[97] Ms Nepia, who is the National Membership Database Manager for the Maori Party, says in her affidavit that the National Council‘s candidate selection sub- committee considered a request from the Hauraki-Waikato electorate to hold an FPP- type election, on the condition that the electorate consulted with its members. On confirmation that it had done so, the National Council‘s candidate selection sub- committee considered that this decision was consistent with the principle of rangatiratanga (self-determination) and approved the change. She further comments that the cost of purchasing the necessary software for STV was a factor in the decision to change to FPP.

[98] The National Council‘s candidate selection sub-committee appears to consist of Ms Nepia, Mr Pem Bird and Ms Rahuia Kapa. They were selected at a meeting on 27 February 2010 of the National Council to supervise the candidate selection process for all electorates.

[99] Under r 4.2 of the Constitution the National Council is comprised of the party president, two co-vice presidents, and up to four Council members selected by each electorate, or their substitute. Rule 4.4 states that all decisions of the Council shall be by consensus (defined as ―the view of the majority‖). The decision to approve the

change in voting system by the Hauraki-Waikato electorate was made by a sub- committee of the National Council. A decision made by a sub-committee under delegated authority from the National Council, in this case a sub-committee appointed for the specific purpose of supervising the candidate selection process for all electorates, will be a valid decision of the National Council.

[100] I therefore conclude that the adoption by the Hauraki-Waikato Electorate of the FPP system of voting, having been authorised by the National Council under r 8, was not in breach of the Guidelines.

[101] The conclusion I have reached on this issue makes it unnecessary for me to consider the assessments of Dr Judith McWhirter for the plaintiff, and Ms Nepia for the defendant of the likely outcome of voting under the STV system. The matter is not relevant and I express no view on the merits of their respective opinions.

[102] The plaintiff complains that insufficient notice of the candidate selection process and nomination criteria were given and that the process did not follow the Candidate Selection Guidelines in the Constitution. The plaintiff referred to the principles set out in Part A of the Guidelines which include transparency, fairness, participation and reasonable notice.

[103] The plaintiff submitted that the notice period was so short that potential candidates were denied the opportunity to put in their nominations and potential voters were not given the opportunity to update their memberships to be eligible to vote. It was said that had proper notice been given in accordance with the Guidelines and proper advertising undertaken, more people would have taken part in the process.

[104] Mr Illingworth accepted in submissions that this was a ―messy and difficult issue‖ and that the process followed in the Hauraki-Waikato electorate, as far as notice was concerned, was ―unsatisfactory‖. He said that a clear chronology of events was difficult to ascertain, but contended there was no clear breach of the

Guidelines and that in any event the Guidelines were not binding. Thus the issue, in the defendant‘s submission, is whether any potential voters or potential candidate nominees were seriously prejudiced in participating in the process. It was submitted that none were.

[105] This is not a situation where alternative procedures to those provided in the Guidelines were determined by the National Council under r 8, so the relevant provisions are to be found in the Guidelines. They are:36

1.2 Clear notice of the nomination criteria and selection process to be followed must be circulated and made available to eligible financial members at least two weeks prior to the nominations opening date.

5.3 Nominations shall be open for a three week period and must be received by the Electorate Secretary before 5.00pm on the day nominations close. A nomination sent by post or courier shall be deemed to have been lodged within the specified time frame if the date stamp on the envelope is before the close of nominations and is received within three days of the close of nominations. If any nominations fall into this category the envelope must be retained and attached to the nomination form.

36 Refer to the Candidate Selection Guidelines for the Maori Party in Schedule A for the full text.

[106] The timeline adopted by the Hauraki-Waikato electorate candidate selection process appears to have been based on the memorandum prepared by Mr Flavell dated 24 February 2010, which was tabled at the National Council Hui on 27

February 2010. Mr Flavell‘s memorandum identifies the key provisions of the Guidelines, including the relevant time periods set out above. It then suggests timelines ―with rationale‖. Relevantly, the following statements are made:

Rationale: The conditions of candidate selection require the process to start from a minuted motion.

6. A paper outlining the process shall be circulated to all financial members no later than Friday 28th of May. The pack shall include candidate nomination forms.

10. The announcement of the successful candidate will be complete no later than Friday 30th July.

[107] The period of three days between the date for circulation of the information pack in para 6 and the nominations opening date in para 7 does not appear to meet

_{the two week requirement in guideline
1.2.}38 _{The period between Monday 31
May}

Constitution referred to ―nominations closing date‖. Mr Flavell‘s memorandum may reflect the previous provision in this respect. It is also possible that the circulation of the voting packs was not intended to satisfy the notice requirement under guideline 1.2 and that the criteria and selection process needed to be circulated and made available by 17 May to comply with guideline 1.2, though this date is not given in Mr Flavell‘s timeline.

and Friday 18 June (paras 7 and 8), does not appear to meet the three week period requirement in guideline 5.3.39

[108] The process followed by the Hauraki-Waikato Electorate closely followed the timeline suggested in Mr Flavell‘s memorandum and thus closely followed a process that had been prepared at the request of the President of the Maori Party for adoption on a national basis.

[109] I agree with Mr Illingworth that it is very difficult to establish a clear chronology of events but in Schedule B I have set out a chronology drawing together, as best as I am able from the available evidence, the timeline proposed by Mr Flavell and the steps taken in the Hauraki-Waikato Electorate.

[110] The requirement of guideline 1.2 is that clear notice of the nomination criteria and selection process was to have been ―circulated and made available to eligible members‖ by 17 May 2010, assuming nominations opened on 31 May 2010. As previously noted40 Mr Flavell‘s timeline, which required the process to be circulated to all financial members by 28 May 2010, does not accord with guideline 1.2.

[111] The plaintiff says that it was only at the 26 May 2010 hui that the draft candidate selection process was recorded as having been confirmed by the National Council. Therefore, the notice of the criteria and process could not have been given in accordance with guideline 1.2.

On multiple occasions hui were held where information on the proposed candidate selection process was provided. Members who attended were expected to disseminate the information to other members in their branch.

39 _{The guideline requirement seems to have been
interpreted to exclude a weekend.}

April 2010 and 12 May 2010, and information along with the draft timeline had been given to executive members of each branch with a request to

Guideline 1.2 does not require specific details of the nomination criteria and selection process to be ―circulated‖. The general details were already contained in the Guidelines (available on the Maori Party website) and in the information that should have been shared by financial members and potential

Many members did not become eligible financial members – that is, paid up and registered members - until 31 May 2010 and therefore would not have received notification. The defendant says that the plaintiff was not entitled to receive prior notification because she was not a member prior to 31 May

[113] There appears to have been a breach of guideline 1.2 in relation to the notification of the nomination criteria and selection process. Having said that, guideline 1.2 does not define how the information is to be ―circulated‖ and made available to eligible financial members.

[114] Guideline 5.3 requires nominations to be open for a three week period. This was recognised to a substantial extent in Mr Flavell‘s suggested timeline although the stipulated period was only 18 days.

[115] Mr Hope asserted in submissions that one potential candidate submitted a nomination one day late and it was disallowed, but there was no evidence to support

_{this assertion. Mr Illingworth said that there was no evidence of any
potential}

candidate who might have been prejudiced by the period for nominations being 18 days rather than 21 days. Certainly, none was filed.

[116] The plaintiff complains that the notice of the 12 May 2010 hui was given only by email dated 10 May 2010 from Natasha Kendall, the Chairperson, and that it

The notice was insufficient and was not sent to all those entitled to receive it. (It was suggested that a 7 day notice period was required but no basis for this

2010 Candidate Selection Handbook for the Hauraki-Waikato electorate was invalid.

[117] The defendant accepted that the notice was short but submitted it was not in breach of the Guidelines because there is no requirement for any period of notice to be given for deciding the candidate selection process. Instead, it is left in the hands of the Electorate Council which by r 5.2 is responsible for all party activities in the Electorate. (This submission does not sit comfortably with the defendant‘s pleading that there was no Electorate Council in the Hauraki-Waikato electorate).

[118] The defendant further noted that at the hui on 28 April 2010 it was resolved that a special hui was to be held on 12 May 2010 and this information would have been disseminated or circulated to eligible members in accordance with normal practice. Thus, the email of 10 May 2010 was simply a reminder rather than formal notice of the 12 May 2010 hui.

[119] The plaintiff takes issue with the failure to sufficiently advertise the candidate selection hui so as to inform all eligible members to take part in the process. It was asserted that this affected voter turnout.

[120] The defendant noted that the candidate selection hui all took place within a period of about two months of the Candidate Selection Handbook being made

_{(accepting that the details given in the latter advertisement were
insufficient).}

Selection Handbook two months in advance of the round of candidate selection Hui. This contained the dates of the hui.

[121] In Ms Takerei‘s affirmation dated 20 August 2010 she describes herself as ―a paid up financial member of the Maori Party‖, a member of the Ngaruawahia Branch and part of the Kaumatua group of the Hauraki-Waikato electorate. She states that she was a paid up financial member at the time the candidate selection process began, when notice of nomination criteria was given to financial members, but she was not given notice.

[122] The defendant alleges in his statement of defence that Ms Takerei was not a member between May 2007 and May 2010 and only became a member after re- registering on 30 May 2010. Ms Nepia gives evidence to this effect in her affidavit, but she does not attach any confirming documentation. Ms Takerei does not contest this in her reply affidavit dated 22 November 2010. A list attached to the affidavit of

Ms Mereaira Hata dated 20 August 2010 contains 178 names of persons who allegedly registered in the final days before 31 May 2010. This list does not contain Ms Takerei‘s name.

[123] On the basis of the available evidence, I am unable to determine precisely when Ms Takerei was and was not a financial member of the Maori Party and therefore entitled to receive notice. However, if the position is that she renewed her lapsed membership only from 31 May 2010, then she would not have been entitled to receive notices of meetings relating to the selection of the candidate in the Hauraki-Waikato electorate prior to that date. Neither would those on the list provided by Ms Hata of persons registered as members in the period 29 to 31 May

―unsatisfactory‖ is appropriate. The Guidelines were in some respects not complied with. However, as is apparent from my observations above,43 even strict compliance with Mr Flavell‘s memorandum, issued to assist electorates on a national basis to follow a proper process, would not appear to have met the requirements of the Guidelines in all respects. The plaintiff does not suggest that the process proposed in Mr Flavell‘s memorandum is unfair, unreasonable or fails to make provision for participation by eligible financial members in the selection of candidates for the

2011 election. In fact, the plaintiff pleads Mr Flavell‘s memorandum as part of the basis for a ―legitimate expectation‖ of due process.

[125] The Guidelines are not binding, as I have previously determined. While the criticisms of inadequate notice made by the plaintiff are justified in some respects, I do not consider the non-compliance was such that the process followed was so

[126] The plaintiff alleges that s 71 has been breached as a result of non- compliance with the Guidelines. Section 71 requires that ―provision is made for participation in the selection of candidates‖ by ―current financial members‖ or

―delegates who have ... been elected or otherwise selected by current financial members‖. The section is widely drafted and does not contain any specifics as to how, or to what extent, participation should be provided for. The specifics are left for the decision of the political party concerned. Importantly, there is no requirement in s 71 for financial members (or their delegates) to be involved in the formulation of candidate selection procedures or processes. The requirement is only for their participation in the selection of candidates.

[127] The provision made by the Maori Party to ensure member participation in the selection of candidates is in the Candidate Selection Guidelines, with a power to override vested in the National Council by r 8. The Guidelines give the right to select a candidate to the financial members through candidate selection hui, subject to confirmation of the candidate by the National Council. The process provided is a democratic one.

[128] I do not consider that the breaches of the notice provisions in the Guidelines in relation to the candidate selection process in the Hauraki-Waikato electorate individually or cumulatively, amount to a breach of s 71.

[129] The plaintiff makes various allegations and assertions under this heading including that: the Maori Party membership register used during the process was not an accurate list of current financial members of the Party; votes taken at the candidate selection hui and the special votes recorded were not checked to ensure voter eligibility; allowing 17 year old members to participate in the process was

―problematical‖ as they might not be eligible to vote in the 2011 general election if the election was held before July 2011 and they had not yet turned 18, which would be contrary to s 71; a number of Sri Lankan or Indian persons were allowed to vote without it being checked that they were entitled to do so; and many current financial

members were not listed on the Maori Party membership roll so that eligible members had to cast special votes, which may not have been counted.

[130] The Rules and Guidelines in the Constitution stipulate the persons who may participate in the candidate selection process. Rule 3 contains the eligibility criteria for membership of the Maori Party. It provides:

3.2 Any person of at least 13 years of age may make application to join the party.

A person may apply to join directly to the Secretary on an official membership form or through an Electorate Committee. Any person of

membership; and at 17 years of age and over, members will enrol at a koha based membership for three years membership as adults with full voting rights.

3.5 Any person who is a member of the Maori Party on the date at the opening of nominations, shall be entitled to participate in decision- making in local candidate and local list recommendations.

[131] Rule 3.1 states that the Maori Party accepts membership from persons who inter alia ―pay the appropriate membership fee as fixed by the national council‖, and r 3.6 specifies that the registration fee entitles membership for three years. Rule 3.3 states that membership commences ―from the date of the acceptance of the application form by the Secretary or Treasurer‖.

[132] Guideline 9 more specifically stipulates the persons who may participate in candidate selection:

9.1 All persons are eligible to participate in the selection of a candidate in that Electorate if they are:

a) Financial members of the Maori Party at the date that nominations open and live within the boundary of that electorate;

b) In the case of Maori electorate seats, those of Maori descent or on the Maori roll are eligible to participate (see footnote 1).44

[133] Accordingly, the following criteria must be met for persons to be eligible to vote for candidates in Maori electorate seats. They must be:

live within the boundaries of the electorate; and be of Maori descent or on the Maori roll; and

[134] The defendant, principally through the affidavit of Ms Nepia, says that voter eligibility was determined after the votes were cast at the candidate selection hui. Members had to provide details of address, age and ethnicity when applying for membership and votes were subsequently checked against this information in order to be validated. Accordingly, confirmation that voters were paid up members, lived in the electorate, were at least 17 years of age and of Maori ethnicity could be ascertained by checking the votes cast against details on the membership roll. Inevitably, the process was also to an extent dependent upon the honesty and

44 It is not clear whether ―footnote 1‖ refers to the first footnote to the Guidelines which appears after guideline 1.1 and relates to the interpretation of guidelines 3.5 and 1.1 or whether it refers to Appendix 1 which follows the Guidelines and sets out s 71 of the Act. In the Constitution that appears on the Maori Party‘s website (www.maoriparty.org) ―footnote 1‖ has been changed to read ―Appendix‖ although this change does not appear in the version on the Electoral Register (www.elections.org.nz). It is logical that the reference intended at the end of guideline 9.1 is to Appendix 1 which sets out s 71 because both guideline 9.1 and s 71 address eligibility to participate in the selection of candidates representing the Party. Both provide that current financial members of the Party who meet specified criteria, may participate in the selection of candidates.

[135] In relation to the state of the database, the defendant says that all current financial members are validated by the Maori Party Treasurer as stipulated by r 3.3 and that all financial members who were validated by the Treasurer were listed on the Hauraki-Waikato membership database. There were cases where persons who claimed to be members had not paid their membership fees or had their applications accepted by the National Secretary or Treasurer, as required by r 3.3. There was apparently a high uptake of new members around 31 May 2010 and it is acknowledged that some late applications may not have been entered on the database at the time of voting. However, the defendant says that the special votes were subsequently checked against an updated list of members and validated if the voters concerned were found to be current financial members.

[136] No evidence was adduced to suggest that any 17 year old members who had voted would not have turned 18 by the earliest time the general election could be called (said to be July 2011). In any event, now that the Government has announced that the 2011 general election will be held on 26 November 2011, there is no risk that s 71 would be breached. Section 71(a) allows for practical flexibility in stating that provision is to be made for participation in the selection of candidates by current financial members of the party who ―are or would be entitled to vote at any election‖ (in this case the 2011 general election).

[137] While there seem to have been some issues with the membership database as at the time the candidate selection hui were held in July 2010,45 the evidence of Ms Nepia, the National Database Manager, must, I consider, be accepted in relation to the processes and checks carried out to ensure that votes were cast by eligible voters and that votes of eligible voters were duly counted. The fact that checking on eligibility was carried out after voting in some cases, and that special votes were required from some financial members who were not shown on the membership database, does not impact on the integrity of the voting process overall. While there

_{were a number of concerns expressed in affidavits filed on behalf of the
plaintiff, I}

45 I refer to the example given in the affidavits of Rowan Pita and Hinemaia Mataira dated 22

September 2010 that mother and daughter registered for membership together but apparently one was not on the database.

accept the evidence of Ms Nepia that adequate systems and checking were implemented to ensure the integrity of the voting process.

[138] I have concluded that none of the breaches of Guidelines (to the extent they have been established) were of sufficient gravity to amount to a breach of s 71. However, it is also necessary to consider the ground of procedural unfairness.

[139] The applicant alleges that the first defendants, the National Council and the Hauraki-Waikato Electorate Council were required to act in accordance with the principles of fairness and natural justice in making the decision to select Mr Mataki as candidate. It is alleged that this obligation was breached.

[140] Whether breach of the Guidelines results in procedural unfairness requires an assessment of (a) the nature of the particular provision; (b) the degree of non- compliance; and (c) the effect of the non-compliance.46 I have concluded that the Guidelines are not mandatory, but directory, although there is an expectation that they will be followed as ―candidate selection rules‖ that are registered with the Electoral Commission under s 71B of the Act. However, also registered with the Electoral Commission as one of the Rules is r 8.2, which provides that the candidate selection procedure can be changed or modified at any time by a determination of the National Council.

[141] The Guidelines exist to provide guidance to ensure that the selection processes meet the principles stated in the Guidelines, including fairness, participation and inclusiveness. Failure to achieve at least substantial compliance with the Guidelines places at risk the realisation of these principles. However, given the non-binding nature of the Guidelines, the overriding authority vested in the National Council to change them at any time (provided s 71 is not breached), and the absence of any demonstrated actual prejudice to potential nominees and eligible

_{voters by the non-compliance in this case, I do not consider the gravity
of the non-}

46 See GDS Taylor and JK Gorman Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [13.05].

compliance with the Guidelines warrants a finding of procedural unfairness in relation to the candidate selection process followed.

[142] The 2010 Hauraki-Waikato Candidate Selection Handbook was prepared by the Hauraki-Waikato electorate executive and was circulated to financial members. It was based on the candidate selection process draft confirmed by the National Council and contains critical information and dates about the candidate selection process to be followed in the electorate.

[143] The plaintiff pleads in the statement of claim that, in writing the Candidate Selection Handbook, the Maori Party was required to comply with its own Constitution and to ensure that provision was made for participation in the selection of a candidate to represent the Hauraki-Waikato electorate by current financial members of the Party who are or will be entitled to vote for the candidate at the 2011 election. It is then pleaded that the first defendants and the Maori Party erred in law and acted ultra vires, in that the Candidate Selection Handbook is inconsistent with the Constitution and the process followed was not fair and democratic as required by ss 71 and 71B of the Act.

[144] In submissions the plaintiff stated that the Candidate Selection Handbook was prepared in accordance with Mr Flavell‘s memorandum dated 24 February 2010, and that it is clear from this memorandum that the National Council approves the processes while the electorates manage them.

(a) It contains information that is inconsistent with the Guidelines, which form part of the Constitution; and

Hauraki-Waikato Selection of a Candidate for the Electorate Seat for the 2010 election47

[147] The plaintiff submitted that this is a clear and unambiguous statement that the Handbook ―is subject to‖ the First Schedule to the Maori Party Constitution. I do not agree. The introductory statement clearly says that the policy is to be read

―alongside the ... Guidelines‖. The Handbook includes critical dates in Mr Flavell‘s

2010, and states that nominations shall be open for a three week period (reflecting the interpretation that the period of 18 days stated in Mr Flavell‘s memorandum and repeated in the Handbook during which nominations are to be open, is consistent with the requirement in the Guidelines for nominations to be open for a three week period: guideline 5.3). But under the heading ―The Voting Process‖ it is clearly stated that voting will be carried out by ―(FPP) First Past the Post‖, so a person reading the Handbook ―alongside‖ the Guidelines would immediately realise that, as well as providing information not contained in the Guidelines, such as dates and places of candidate selection hui, it also advises detail that differs from the Guidelines.

[148] Given my previous conclusions that the Guidelines in the Constitution are not mandatory, inconsistencies between the Handbook and the Guidelines do not invalidate the Handbook.

[149] Further, there are no requirements in the Guidelines regarding notice of the electorate hui which concerned the candidate selection process, including those on

12 May and 26 May 2010. No breach of the Guidelines was involved. No actual prejudice from the nature or period of any notice has been demonstrated. The decision of the electorate hui to adopt the Handbook, which appears to have followed confirmation by the National Council of the candidate selection Process

[150] Finally, the plaintiff pleads that the first defendants and the Maori Party were in error of law and acted ultra vires in relation to the Candidate Selection Handbook. The Handbook is not a handbook of the Maori Party but forms part of the candidate selection process as determined by the Hauraki-Waikato electorate. Therefore the pleading in respect of the Candidate Selection Handbook has not been made out.

[151] In addition to the alleged breaches of the Guidelines referred to above, under the heading ―Procedural Unfairness‖ in the statement of claim, the plaintiff also alleges that one candidate, Mr Mataki, had access to membership lists and that he was allowed to use unfair advertising in the form of a pamphlet he distributed, which, it is alleged, disadvantaged other candidates.

[152] The first of these issues concerns guideline 8 which states that decisions on the use of the membership lists resides with all members and that ―nominees may not have access to the electorate membership lists‖. Guideline 8 is contradictory to the extent it provides that nominees may not have access to the electorate membership lists but also provides that nominees may not use any electorate membership lists they may have access to for the purpose of lobbying members to support their candidacy.

[153] Guideline 8 does not provide for the consequences of any breach. Guideline

The Council shall appoint a Returning Officer for the receipt of nominations and to oversee the final selection process.

[154] This provision appears to give the Returning Officer some control over whether to accept nominations and potentially to decide whether or not a nomination should be accepted or a candidate disqualified.

[155] Several members of the Hauraki-Waikato electorate have raised concerns in their affidavits that Mr Mataki had access to electorate membership lists and had used them for the purpose of lobbying members to support his candidacy, in breach of guideline 8. The evidence about two main incidents that gives rise to these concerns is conflicting. Ms Nepia points out that all three candidates (Mr Mataki, Hemi Rau and Pia Searancke) would have had membership lists of some sort as all were required to have the names and signatures of at least 50 nominees, and Mr Mataki had over 100 nominees. She says that the Returning Officer, Mr George Kahi, and the National Council candidate selection sub-committee did not deem this issue to require either Mr Mataki or Mr Rau to be disqualified.

[156] Concerns were also expressed about Mr Mataki appearing to have engaged in premature advertising by distributing pamphlets prior to the date nominations opened and using the Maori Party logo and the slogan ―Two Tick Tau‖ without permission on his pamphlets.

[157] The evidence indicates that Mr Kahi (the Returning Officer) gave a verbal warning to Mr Mataki over the pamphlet issue and reminded all candidates to read the rules. This apparently was in response to a complaint about Mr Mataki ―pre- empting‖ the candidate selection process, made by the Kirikiriroa branch of the electorate to the Electorate Council and then to the National Council.

[158] Neither of these concerns appears to engage the Guidelines nor are breaches of the Guidelines alleged. Responsibility for such matters is placed by the Guidelines with Electorate Councils who are to ensure that prospective candidates do not improperly influence the selection process and that the process is fair and transparent: see guidelines 1.9 and 3.3.

[159] I am unable to resolve the competing claims on the basis of the conflicting evidence. However, I am satisfied that none of the alleged misconduct, if established, is so serious as to suggest a breach of s 71. Nor would the allegations and assertions, if made out, give rise to a finding of procedural unfairness. These are essentially matters to be dealt with by those in whom the responsibility is vested by the Guidelines (the Electorate Councils), the National Council pursuant to r 8, and

ultimately the membership by exercise of its democratic vote to elect those who hold office within the Party.

[160] For the same reasons as I have rejected the plaintiff‘s allegations of procedural unfairness in the selection process, the claim of breach of legitimate expectation must fail. Further, the plaintiff‘s reliance on previous selection processes being followed, overlooks the relevant changes to the Constitution, particularly r 8 and the Guidelines, in December 2009.

[161] A summary of my conclusions in response to the issues set out in [6] above is as follows:

(a) The decision to select a candidate is not an exercise of a statutory power of decision pursuant to s 4 of the Judicature Amendment Act

(b) Section 71 of the Electoral Act 1993 applies to both the rules of the political party concerned and to the processes undertaken by the political party for selection of candidates.

(c) Rule 8 of the Maori Party Constitution gives the National Council a discretion to make specific determinations as to the procedure for the selection of candidates which would prevail over the Guidelines.

(d) The Candidate Selection Guidelines which form part of the Constitution are directory, not mandatory. The level of compliance required with the Guidelines will be subject to any determination by the National Council under r 8 and to the circumstances of the case.

(e) The first defendants and the Maori Party were not in error of law nor acting ultra vires in relation to the Candidate Selection Handbook, as pleaded by the plaintiff.

[162] The relief sought is an order in the nature of certiorari, quashing the selection of Mr Mataki as the candidate for the 2011 general election in the Hauraki-Waikato electorate, and a declaration that the candidate selection process was flawed and procedurally unfair.

[163] The Court has power to make such orders under Part 30 of the High Court Rules if a ground for review has been made out. But even if the plaintiff succeeds in establishing grounds for review, the Court retains a discretion whether to grant relief. In R v Panel on Take-overs and Mergers, ex parte Datafin plc it was said:48

... the Court has an ultimate discretion whether to set [public law decisions] aside and may refuse to do so in the public interest, notwithstanding that it holds and declares the decision to have been made ultra vires.

[164] I have concluded that the plaintiff has failed to establish any substantial grounds of review. But even if she had, on the basis of the evidence and material before me, I would not consider this to be a situation where the Court should exercise its discretion to grant relief. While there were aspects of the candidate selection leading to Mr Mataki‘s selection as candidate for the Hauraki-Waikato electorate for the 2011 general election that were unsatisfactory, for the reasons given above, the processes were not so fundamentally flawed that the selection must be set aside.

[166] The defendants as the successful party on the plaintiff‘s application for

_{review would be entitled to costs. I received no submissions in
relation to costs. If}

48 R v Panel on Take-overs and Mergers, ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815 (CA) at 840.

issues concerning costs cannot be settled by agreement the parties may submit memoranda.

[167] Although the plaintiff‘s application for judicial review has not succeeded, it has highlighted a number of unsatisfactory aspects in the candidate selection processes followed by the Hauraki-Waikato electorate. Courts will be slow to intervene in the processes of a political party, an unincorporated association, particularly in the absence of evidence of specific prejudice or disadvantage. However, to ensure that democratic procedures in candidate selection are followed as required by s 71 of the Act, and to preserve the integrity of its Constitution, the Maori Party needs to ensure not only that its Constitution meets the requirements of s 71 but that the processes for selection of candidates clearly and transparently implement the principles, rules and guidelines in the Constitution. I recommend that r 8 be further considered and clarified by the process provided in r 9.

Shaded entries indicate events in accordance with Mr Flavell‘s proposed timeline (as

Entries marked * indicate candidate selection hui held in the Hauraki-Waikato electorate

Date	Timeline
19 March 2010		Any individuals considering being a candidate were to remove themselves from the preparation of the process.


20 March 2010	Hauraki-Waikato candidate selection process to be prepared and presented to the Hauraki-Waikato Electorate Council hui.
24 March 2010	A Hauraki-Waikato monthly electorate hui was held.
9 April 2010	The candidate selection process was to be prepared and presented to the National Council.
	An extension was granted by the National Council to accommodate branches submitting recommendations.
23 April 2010	National Council sub-committee to provide feedback (if needed).
28 April 2010	A Hauraki-Waikato monthly electorate hui was held. A summary of the draft candidate selection process based on National Council information was presented. The documentation was not circulated as a potential nominee (Mr Mataki), who had already declared a conflict, was in attendance. He was however noted not to have participated in the process. Kirikiriroa was the only branch that had made recommendations at that stage. The Electorate Chairperson was waiting on recommendations from two other branches (Huntly and Pukekohe). It was suggested that the Executives ―pull something together‖ and the branches to discuss further. A motion was passed to hold a special hui in Huntly on 12 May 2010 at 6pm.
10 May 2010	An email was sent from Natasha Kendall (the Chairperson) to a number of members notifying the Candidate Selection Hui on 12 May 2010.

12 May 2010	A Special Candidate Selection Process electorate hui was held. The Candidate Selection Process Draft was put on a PowerPoint presentation at the meeting, but copies were not handed out. A motion was passed that there were to be 5 candidate selection hui (instead of the original 3 planned). Details of how the nomination and candidate selection processes were to be run were discussed. Thomas Phillips was appointed the Selection Coordinator; George Kahi was to be given the right of first refusal for Returning Officers; Scrutineers to be selected at each hui at the Selection Coordinator’s discretion.
14 May 2010	Electorate processes to be confirmed and minuted with electorates (the conditions of candidate selection require the process to start from a minuted motion). Hauraki-Waikato electorate process to be confirmed and minuted.
	The Hauraki-Waikato Electorate Council confirmed the candidate selection process at a special hui. The extension of the timeline to allow two extra hui dates was mandated by consensus. (This hui is referred to in the pleadings of both parties. I could not find any minutes of this meeting. I am therefore unsure whether it was a meeting of the ―Electorate Council‖ as pleaded by the plaintiff or of members of the Executive Committee, or the broader membership).
26 May 2010	A Hauraki-Waikato monthly electorate hui was held. Members were informed that the Candidate Selection Process Draft had been confirmed by the National Council, and the minutes from the 12 May 2010 hui were circulated. It was noted that the candidate selection packages were not ready. The photocopying was to be completed and held by the Electorate Secretary. (The defendant states in his statement of defence that an e-copy of all material was ready for distribution, and the hard copies were to be sent out only when nominations opened). There was a notice to all branches that all membership registrations were to be sent to the Electorate Treasurer as soon as possible.
28 May 2010	A paper outlining the process shall be circulated to all financial members. The pack shall include candidate nomination forms.


31 May 2010	Nominations were opened: a formal announcement calling for nominations was made. (This was also the cut off date for membership registration to be eligible to participate in candidate selection)

18 June 2010	Nominations closed.

2 July 2010	Eligible candidates to be notified by the Electorate Secretary in writing.
6 July 2010	Formal notice of candidate selection hui was given. Formal notice of the road show venue and dates of the candidate selection hui was given in flyers. An email was sent by Mereaira Hata to Trina Koroheke at Radio Tainui to promote the candidate selection hui dates on radio.
10 July 2010 *	Candidate selection hui (Papakura).
11 July 2010 *	Candidate selection hui (Pukekohe).
17 July 2010 *	Candidate selection hui (Paeroa).
21 July 2010*	Candidate selection hui (Huntly).
22 July 2010	An advertisement was placed in the Waikato Times advertising the Hamilton candidate selection hui on 24 July 2010 (but lacking details such as the starting time of the meeting).
24 July 2010*	Candidate selection hui (Hamilton).
28 July 2010	A Hauraki-Waikato electorate hui was held for the resolution of issues regarding the candidate selection process. The motions submitted by the Kirikiriroa branch which were passed can be summarised as follows: Motion 1: Results established remain provisional until matters relating to the candidate process are resolved. Motion 2: A possible breach regarding access to membership data should be investigated. Motion 3: An explanation as to how the final decision in the Hauraki- Waikato candidate selection was arrived at is to be provided. Motion 4: That a durable process for dealing with issues in the Hauraki- Waikato electorate be established.
30 July 2010	Announcement of the successful Hauraki-Waikato candidate. The National Council confirmed that the successful candidate was Tauhuia Bruce Mataki.
5 August 2010	An informal verbal announcement of the successful candidate was made at the Hauraki-Waikato electorate hui.
7 August 2010	The National Council made a formal announcement of the successful candidate on the recommendation of the Candidate Selection sub- committee.

High Court of New Zealand Decisions

Takerei v Winiata HC Hamilton CIV-2010-419-1071 [2011] NZHC 173 (2 March 2011)