The Greens need to decide if they want a more conformist Parliament

Most New Zealanders want the Green Party to invoke the waka jumping law to eject MP Darleen Tana from Parliament. According to poll results reported yesterday by RNZ, 62 per cent of those surveyed by Curia Research were in favour, with only 16 per cent being opposed (and 23 per cent were unsure).

It’s not hard to understand why people are so keen to banish the errant MP from Parliament. All available evidence suggests Tana is a reprehensible and self-serving politician, and she no longer has a mandate to continue representing the party that elected her.

Yet just because there is near-universal agreement that Tana deserves some kind of punishment and should leave Parliament doesn’t mean that forcing her out of Parliament against her will is the best way of dealing with the problem. More importantly, by endorsing the waka jumping legislation – after an honourable history of opposing it – the Greens will help embed a draconian rule that has incredibly detrimental impacts on how the New Zealand political system operates.

A Conformist Parliament

The so-called waka jumping provisions of the Electoral Act 1993 mean that party leaders can direct the Speaker to remove any of their MPs from Parliament. Such an authoritarian rule exists nowhere else in the Western world because it’s fundamentally an anti-democratic concept. Once a politician has been elected, it’s a basic feature of representative democracy that only the voting public should be able to remove them from elected office, even under a proportional representation system.

The other major reason that democrats oppose mechanisms like the waka jumping law is because they make politics more conformist. Having a rule in which any MP can be removed from power if they dissent from the party line means that politicians are strongly discouraged from disagreeing with their leadership or status quo in the party.

With this weapon up their sleeves, party leaders can discourage rebel MPs and suppress debate and differences. Policy innovators or anyone with a political imagination finds that Parliament is an unwelcome place. Ideas are suppressed, and rebel MPs are filtered out of the system.

Hence, the days of nonconformist MPs are over in the New Zealand Parliament. The likes of Jim Anderton, Marilyn Waring, or Tariana Turia seem long gone. In fact, someone like Anderton would not have survived as a critic of Rogernomics within the Fourth Labour Government if an anti-party hopping bill had existed then – he would have been threatened with expulsion as soon as he started building a movement within Labour in 1985 against Roger Douglas.

Ironically, Winston Peters – now the key instigator of anti-defection laws – would also never have been able to rebel against the National Party if the waka jumping legislation hung over him when he was in that major party.

So while Darleen Tana is hardly any sort of principled dissident who has left the Green Party over a point of policy, she is an example of the price we pay for a system in which true rebel MPs might be allowed to prosper.

New Zealand’s Parliament has turned beige

The Greens have historically been the main opponent of laws to eject waka jumping MPs from Parliament. This has partly been because New Zealand’s political system already gives extraordinary power to party bosses to control their MPs, preventing them from dissenting. The discipline enforced on MPs in every party – from Act through to Te Pati Māori – is significantly greater than in comparable countries. Elsewhere in the world, MPs are freer to debate, disagree, and provoke new ideas.

New Zealand’s highly centralised political party power, which has been concentrated further under MMP, means that party bosses and the leadership dominate their caucuses of MPs. Unfortunately, the effect of this is to undermine diversity of thought. It means that New Zealand MPs toe the party line, rarely dissent against their parties, and especially don’t vote in Parliament against what the party whips insist.

Of course, there’s always a need for some degree of stability and cohesion in political parties, but New Zealand’s have become highly conformist. We, therefore, lack politicians willing to stand up against groupthink or speak out on issues of principle. Our system suffers from this beigeness, with policy development impacted by a lack of innovation and imagination.

Green Party opposition to the waka jumping laws

The ability of anti-defection laws to encourage conformity is why former Green Party co-leaders have been so staunchly opposed to them. The late Rod Donald, for example, explained his opposition in 1999, saying, “Anti-defection legislation is designed to gag outspoken MPs and crush dissent… It is vital that MPs are not turned into party robots.”

Donald was talking about the first incarnation of the waka jumping law, claiming it was “the most draconian, obnoxious, anti-democratic, insulting piece of legislation ever inflicted on this parliament”.

Donald’s co-leader at the time, Jeanette Fitzsimons, also spoke out strongly against the latest version of the law shortly before her death. She said in 2018 that “it offended the freedom of conscience, freedom of speech, and freedom of association”. Fitzsimons believed that the “authoritarian” law represented everything the Greens opposed.

Similarly, the late Keith Locke said that the waka jumping law is “misnamed” and “should be called the Party Conformity Bill because it threatens MPs with ejection from Parliament if they don't conform to party dictates”.

Former Green Party MP Sue Bradford has put additional arguments against the law, pointing out that it will “stifle democracy”, making it even harder for new political parties to form. She said in 2018, “At the moment it is virtually impossible for a new party to break through from nothing to the required 5% unless there is at least one sitting MP among the ranks”. Bradford argued that the Greens would betray their principles if they joined those who wanted to inhibit the development of new minor parties that might compete with existing incumbents.

Even just a few years ago, during their coalition government with Labour and NZ First, the Greens’ opposition was so strong that, after being forced to vote to re-introduce the party-hoping law co-leaders James Shaw and Marama Davidson wrote to their party organisation requesting that a constitutional change be made to Green Party rules to prevent the leadership from ever being tempted to invoke the rule to expel any MP. Unfortunately, this was never carried out.

The Greens are going down a “dark path”

Under Chloe Swarbrick’s leadership, the Greens have now decided to go down the path that others said was unconscionable. Swarbrick, together with Davidson, has initiated the provisions of the waka jumping law by writing to Tana, informing her and giving her 21 working days to respond. Swarbrick has then asked the party to convene a special general meeting in three weeks to get the membership’s approval to expel Tana from Parliament.

Swarbrick’s strong push to fire Tana from Parliament will, therefore, have significant consequences. It means that the Greens effectively cease to oppose the waka jumping law.

Until now, they have been aligned in opposing the law with the National and Act parties. National’s opposition is such that it wouldn’t even use the law to eject Jami-Lee Ross from Parliament in 2018 when he brought chaos to and inflicted incredible damage on the party. The leadership argued it would be unprincipled to use a political weapon they opposed.

Act is also still firmly opposed. Leader David Seymour has recently advised the Greens not to succumb to its use: “I'm also a very strong believer that the only people who should be able to drive an elected Member of Parliament out of Parliament is the voters at an election. As soon as you go down the track of allowing Members of Parliament to push other Members of Parliament out of Parliament, you can get to some very dark places.”

Some in Labour have concerns about the rule. David Parker, when he was Attorney General, warned that “the prospect of facing an enforced departure from Parliament will have a chilling effect on the expression of dissenting views by MPs”.

Electoral experts also continue to advocate against the use of the waka jumping law. For example, Andrew Geddis, who specialises in electoral law at the University of Otago, has described the legislation as a method that will allow party leaders to expel difficult MPs from Parliament and generally act to make parliamentarians more conformist. He says, “this approach puts an awful lot of power into the hands of a party leader”. For this reason, last month, Geddis wrote, “there’s no way the Greens could use it”.

Other experts say the rule is a “constitutional outrage” and that it’s used by leaders who want to increase their monopoly on power. Given the New Zealand political system has very few constitutional safeguards or “checks and balances” against power being misused, it would be unfortunate to see this weapon being picked up by the Green leadership.

There’s a good reason that other proportional representation systems, such as Germany or Scotland, have distinct constitutional protections for an individual MP’s freedom of conscience. There are, however, countries such as Angola, Rwanda, Namibia, the Congo, and Uganda that do have similar anti-party hopping laws. 

Pressure on the Greens to use the waka jumping law

Conversely, many influential public figures are encouraging the Greens to invoke the waka jumping provisions to get rid of Tana. Labour leader Chris Hipkins has said the Greens would be “justified” in using the law. Deputy Prime Minister Winston Peters has pressured the party to do so, saying the Tana case shows why the law must exist.

Talkback hosts and broadcasters have also encouraged the party to take the opportunity to rid themselves of Tana. Not only Newstalk ZB’s Mike Hosking but also Jack Tame has spoken out – saying: “The Greens have swallowed a rat in the past. After all, they voted to pass the waka-jumping bill into law. But I actually don't think many people would resent them if they swallowed another in this case. If Darlene Tana won't quit on her own accord, and they believe in the integrity of the report, the Greens should cop a few days of criticism for their hypocrisy, push her out, and move on.”

Green Party supporter and blogger Martyn Bradbury has also urged party members to let co-leader Chloe Swarbrick eject Tana from office: “Chloe has asked the Party to be trusted with this power, they should accept because Chloe is probably the best politician of her generation.”

On the right, political commentator Ben Thomas has recently urged the Greens to do a U-turn and accept that a waka jumping bill is now a vital constraint, keeping MPs in line. He says that unlike in the early days of MMP when dissenting MPs were needed, especially to start new political parties, that time has passed.

The Temptation for an easy fix for the Darleen Tana problem

There is no doubt that there is significant public opprobrium towards Darleen Tana – just as there has been to many other such maverick MPs that have switched sides in recent years. For example, last year, the Green MP Elizabeth Kerekere left the party over bullying claims, and Labour’s Meka Whaitiri decamped to Te Pati Māori.

Voters view Tana and these other MPs as self-interested prima donnas. It’s not surprising that voters embrace the prospect of punishing such MPs. The public has shown in numerous surveys that they believe political parties have brought low-quality MPs into Parliament without sufficient vetting. The Greens are just the most recent – and a rather extreme – example of this trend.

The question is, therefore, how to fix this quality problem. And it’s far from clear that the best answer is to just give party leaders the ability to fire MPs via the waka jumping law. David Farrar puts forward an alternative point of view: “Allowing a party to just quietly dispose of an MP whose past turns out to be problematic, reduces the incentives for them to do more rigorous checks on their candidates. If they have to sit through 30 months of Darlene Tana sitting in the House as an Independent MP, they will be much more motivated to ensure this doesn't happen again.”

The Big Green decision

The Greens are holding a special general meeting on 1 September in which party delegates will decide whether to agree with Swarbrick’s proposal to get rid of the Darleen Tana problem via the authoritarian waka jumping provision in the Electoral Act. She needs to convince three-quarters of the delegates before she can get her way.

Already, Swarbrick has made her case to Green activists, appealing to them to move on from past principles to grow the party into something bigger and more powerful. At the recent party conference, she painted opponents of using the waka jumping law as being stuck in the past. In her conference speech, she challenged members to “look at ourselves in the mirror and consider whether we want to evolve as a party”.

It's a sign of how the party is now evolving, that its principles are so flexible that they are considering doing such a somersault on such a core issue. Under Swarbrick, the Greens are challenged to embrace power and pragmatism and move away from the era of protest and principles. Therefore, it’s also a test of their integrity. Party activists must ask themselves whether they want to be responsible for creating more parliamentary poodles and making Parliament even more beige.

In deciding whether to eject Tana from Parliament, the decision for the membership mostly boils down to how they feel about the presence of dissident MPs in New Zealand politics. How much leeway should they be given? Should they be encouraged or discouraged? Should rebel MPs be clamped down upon or given some freedom to diverge from party lines, perhaps even to the extent of leaving their parties?

In considering whether to invoke the legislation, the Greens should forget the arguments on the rights and wrongs of Tana wanting to stay in Parliament and instead consider the consequences of the rule for dissent and difference amongst MPs in Parliament. In this sense, it’s not about waka-jumping at all – it’s about whether party leaders should be given the right to eliminate troublesome or non-conformist MPs from Parliament against their will.

Instead, perhaps it’s time for Green Party activists to reject Swarbrick’s pragmatism and embrace the original and democratic ethos of the Greens, and therefore fight to get rid of the hated waka jumping law. After all, if the Greens had just done this in 2018 and refused to pass the Labour-NZ First law, it wouldn’t be in the situation that it is now, of having to swallow a dead rat once again. But more importantly, for the sake of having less conformity and more diversity of debate and ideology in our political system, the Greens must join up with Act and National to kill the waka jumping bill.

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, School of Government, Victoria University of Wellington

Key Sources

Martyn Bradbury (Daily Blog): Chloe has asked for Greens to trust her with Waka Jumping Power – they should

Thomas Coughlan (Herald): Green Party party drags out process to evict now independent MP Darleen Tana (paywalled)

Thomas Coughlan (Herald): Darleen Tana drama could end in a month, following Green conference

Felix Desmarais (1News): 'Dark places': David Seymour on using waka-jumping law

David Farrar (Patreon): Why the Greens shouldn't use the waka jumping law (paywalled)

Andrew Geddis (Spinoff): So what’s the point of the party-hopping law, again?

Glenn McConnell (Stuff): The next steps of the Darleen Tana saga, explained

Jo Moir (RNZ): Poll shows support for using law to oust Darleen Tana from Parliament

Ben Thomas (Post): Time for the Greens to unknot themselves over the Darleen Tana saga (paywalled)