Former Green MP Darleen Tana

The fundamental weakness of the waka jumping legislation is once again on display, as the Greens seem reluctant to trigger it to remove Darleen Tana from Parliament altogether.

Tana has been suspended from the Greens Caucus while it had barrister Rachel Burt investigate allegations that she had been involved in migrant exploitation at her husband’s bike company.

She has now resigned from the party, and in a formal statement, co-leaders Chloe Swarbrick and Marama Davidson and the party musterer (Chief Whip) Riccardo Menendez wrote to the Speaker to inform him that she was no longer a member of the Green Parliamentary caucus.

But the waka-jumping legislation says that is not enough to force her out.

To do that, the letter must say:

•             That the parliamentary leader reasonably believes that the member of Parliament concerned has acted in a way that has distorted and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election and

•             state that the parliamentary leader has delivered to the member of Parliament concerned written notice— informing the member that the parliamentary leader considers that paragraph (a) applies to the member and the reasons for that opinion; and

•             advising the member that he or she has 21 working days from the date of receiving the notice to respond to the matters raised in the notice by notice in writing addressed to the parliamentary leader and

Tana could presumably counter that by issuing some form of declaration that though she was now an independent MP, she would always vote with the Greens.

So Swarbrick was yesterday left publicly pleading with Tana to resign from Parliament which she indicated in a statement last night she was not going to do.

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“I do not feel that natural justice has been followed during this process, and at Saturday’s hui it seemed clear that a pre-determined view had been formed prior to hearing from me,” she said.

“I can confirm, as indicated during (the media) conference with the Green Party leadership, that I have subsequently resigned as a member of the Green Party.

“I want to make it clear that I do not accept the findings of the report and believe that it substantially misrepresents the level of my involvement in my husband’s business.

“This was an investigation into what I knew and should have disclosed to my party leadership.

“I am therefore deeply concerned by the party’s summary of the findings.

“The report does not say that migrant exploitation has occurred, let alone that I am responsible for it in any capacity.

“I have only had a short time to consider this report and am taking some time to consider it before making any further comment.”

The Greens have not released their letter to Speaker Gerry Brownlee.

However, POLITIK understands that it does not satisfy the conditions in the legislation that would allow the Speaker to declare that she is no longer an MP.

 The hangup is going to be to prove that her departure from the Greens changes the proportionality of Parliament.

For the Speaker to be convinced of that she would probably need to vote differently to the Greens.

It would still be open for her to ask the Speaker to be considered an independent.

A senior Parliamentary source last night told POLITIK the situation was “a real mess”.

The problem for the Greens is that they opposed the Electoral Integrity Bill in 2018, and co-leader James Shaw said they ultimately voted for it only because of the provisions of their confidence and supply agreement with Labour.

However, Shaw and Davidson wrote to the party’s executive, proposing that the party include a clause in its constitution undertaking not to use the legislation.

That was not done, but the moral principle remains: It would be highly hypocritical of the Greens to invoke the legislation to get rid of Tana now.

Thus, the next move is up to Tana.

Swarbrick said that herself yesterday when she confirmed that neither the Caucus nor the party had discussed using the waka jumping legislation, the Electoral Integrity Act.

“We believe that the best way to minimize any more harm and any collateral damage is for Darlene to resign,” said Swarbrick.

She presumably means “harm and collateral damage” to the party by forcing it to use the legislation it so strongly opposed.

Swarbrick’s tactic seems to be to try and shame Tana into resigning from Parliament..

She said Burt’s report found that Tana’s behaviour fell far, far short of the expectations that “myself and obviously our caucus have expectations not just of Green MPs but of any member of parliament.”

“More so than that, myself, and Marama (Davidson) are very clear that it is our view that Darlene Tana has been far from forthright or upfront with us.”

 In some ways, the situation is similar to that faced by the Labour Party in 2022 when Hamilton West MP Gaurav Sharma was expelled from the party but then tried to hang on as an independent MP.

Labour was reluctant to invoke the waka jumping legislation because it would trigger a by-election in Sharma’s Hamilton West seat, which they would be unlikely to win.

He was expelled from the Labour Caucus on August 23 but did not resign from Parliament until October 20.

Thus, this matter could take more than just a few weeks to resolve if Tana, as it looks likely, digs in and refuses to resign from Parliament and the Greens refuse to use the waka jumping legislation.

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