NZ First is changing its constitution to prevent a repeat of the Brendan Horan situation, where Horan was ejected from the party, but refused to resign, eking out a well-paid existence as an independent MP and constant thorn in Winston Peters’ side. NZ First will require all of its candidates to sign a contract stipulating that if they resign or are expelled from the party’s caucus, they must quit their Parliamentary seat within three days or be liable to the party for $300,000 in damages.
Professor Andrew Geddis told Radio NZ this morning that such a contract wouldn’t be enforceable. Winston Peters told Radio NZ that it was. As the NZ Herald reports:
“With the greatest respect to Mr Geddis, he doesn’t know anything about this stuff”, Mr Peters said this morning.
He noted Mr Geddis had referred to the legal action that followed when he left the National Party in 1993.
“If he’s going to cite my case, he could at least get the underlying principle right.”
The case that is referred to involved Mr Peters taking the National Party to Court, after he went rogue in the early 1990s, which resulted in National trying to expel him from the party. In the run up to the 1993 general election, National amended its constitution to try and force Peters to sign a form agreeing not to stand for any electorate for any other party other than National. To get renominated for the Tauranga electorate, Peters was required to sign the form, but the odds were fairly short that once he’d been nominated, the party would veto him and prohibit him from standing under any other party’s banner. The High Court ruled that National’s form interfered with the democratic process and thus legally unenforceable.
Professor Geddis, in a subsequent blog post, cites a lengthy section of the High Court’s judgment, including this:
There is precedent, then, for the view that a contract which purports to interfere with the exercise of fundamental constitutional rights associated with election to, and representation in, Parliament may be struck down as contrary to public policy.
Geddis then writes:
The Court then went on to declare that the specific rule that National had adopted – you must sign a pledge not to compete against us if not selected by us – to be an “illegal contract” on these sorts of public policy grounds, meaning that it could not be enforced by a court against Mr Peters (or any other prospective candidate). Meaning that there was nothing to stop Mr Peters running in Tauranga first as an independent, and then as the leader of NZ First, when he subsequently resigned from National.
Mr Peters, on the other hand, says this about the principle of the case:
“The principle finding of that case was that a party had the right to choose its own candidates or determine which candidate they would pick.”
“If that is the principle of that case then the party has the right to pick a candidate who is successful and expect that that candidate be part of the proportionality. If that candidate is not then the principle of MMP is seriously undermined.
I’m not entirely sure what Winston Peters thinks the High Court decided, but he appears to have fundamentally misremembered the outcome of his own case. Mr Peters got a ruling that National’s pledge was an illegal contract, as it interfered with New Zealand’s democracy. Yes, there was a flow-on effect from that – namely, that any other party was free to choose Peters as a candidate. However, what NZ First is proposing does exactly what Peters prevented National from doing all those years ago – effectively preventing an MP from leaving one party and acting as an independent.
To quote Professor Geddis again:
A private agreement (a form of contract) between the MP and the Party will not, on public policy grounds, be enforceable where it has the effect of determining membership of the House of Representatives.
Does anyone other than Peters back Peters on this one?