The Greens are responsible for tidying up their Darleen Tana mess

Jul 09, 2024

Yesterday, the Green Party did its best to paint a picture in which it is the victims of Darleen Tana. Naturally, there will be sympathy for the plight of a party embarrassed by an aberrant MP who appears to have misbehaved and looks to continue as a thorn in the Greens’ side in Parliament.

Yet this is a scandal of the Green Party’s own making. From the recruitment of Darleen Tana to the dilemma of invoking the waka jumping rules, the Greens have made their bed and now need to sleep in it. Throughout the whole saga, the Greens have caused a number of integrity problems and now must be held accountable for fixing them.

The Greens’ process for dealing with integrity issues

The Greens’ management of the Darleen Tana allegations has been woeful right from the very beginning. It was actually back on 1 February that the party first became aware of the allegations against their MP. The failure to properly deal with this from the start set in train a farcical process that now seems hard to bring to a conclusion.

The party’s first step in dealing with the allegations that their MP had been involved in migrant exploitation was to suspend Tana from her small business portfolio secretly. The party co-leaders hoped that the issue would soon go away. Without adequately investigating the problem, they took Tana at her word that there was nothing for the party to be concerned about.

The issue only broke into the public domain when Stuff journalist Steve Kilgallon exposed former workers' claims at Tana’s family business. It was then that the Greens admitted the problem, fully suspended Tana, and commissioned lawyer Rachel Burt to investigate. The party treated this inquiry as an entirely private one, refusing to provide the public with details of the terms of reference or any real idea of the process that would be followed.

The Greens also focused the inquiry on clarifying “fully what Ms Tana knew, and when” rather than the migrant exploitation. The fact that laws were allegedly broken was considered secondary. And this appears to be part of Tana’s beef now – that the inquiry went into areas beyond what the MP had agreed to.

Lack of transparency from the Greens

The Greens have spent the last four months refusing to answer questions about the investigation and fobbing off concerns about why it took so long to conclude. Even now, the public hasn’t been told much at all.

Of greatest concern is that the public still doesn’t know what the Tana inquiry found. At yesterday's press conference, co-leader Chloe Swarbrick refused to give any details from the report and expected the public to just trust her interpretation that it showed Tana wasn’t fit to be a Green MP.

Swarbrick has been ambiguous about whether the party is willing to release the report. She has cited “privacy law” as a reason not to, saying only that the “executive summary” might be made public. And even then, she has been unclear whether and when this might occur. “Privacy issues” are too often used by politicians to justify keeping information private. Yet, privacy concerns where they genuinely exist can usually be resolved with redactions, meaning the full report should be made public without delay.

There is a clear public interest in this. It concerns the integrity of a Parliamentarian, with a finding so extreme that the MP has been expelled from the Green Party caucus, with the desire to have them out of Parliament entirely.

The fact that at least $43,000 of taxpayer funding from the Green Party’s parliamentary office was used to pay for the report should settle the matter – it’s not a private document. Deputy Prime Minister Winston Peters rightly says today: “The taxpayer has paid for it and they should be seeing it”.

Nature justice should dictate that the Tana report be released

Tana herself has now publicly challenged the report's findings. She has also stated, “The report does not say that migrant exploitation has occurred, let alone that I am responsible for it in any capacity.”

Yet the public cannot judge if the Greens insist that privacy issues mean that its release can be vetoed (even by Tana). Of course, there will be speculation that the report is also critical of how the Greens have managed the issue involved. Therefore, non-publication can easily look like a convenient cover-up by the party.

Without a proper full release, the investigation's findings will inevitably be reported in part, which can be a problem. Already, some versions of the report findings are filtering out—especially because those who spoke to the investigator have been given copies to read. Unsurprisingly, the Stuff reporters who championed the migrant workers are therefore publishing information from the report.

Journalists Glenn McConnell and Steve Kilgallon wrote this yesterday about the report’s findings: “Stuff understands it supports the evidence given by multiple workers of the issues at the bike stores around pay and conditions, and is damming of both Hoff-Nielsen and Tana and states clearly that Tana was involved in the business long after her official resignation in 2019, and that she ought to have informed the Greens much earlier and much more fully than she did. It’s understood the report says she never declared any potential conflict of interest between her Parliamentary duties and the business.”

If some participants in the Tana scandal leak their versions of the report, then it quickly becomes a genuine problem of natural justice for the Greens to keep the report suppressed. Notably, the Greens have continued this culture of secrecy in all other aspects of the saga. For example, the party haven’t released their letter to the Speaker about Tana. And Swarbrick won’t disclose what Tana has said to the Green Party recently, claiming that such discussions are “confidential”. Of course, that is her prerogative, but that’s not so much a moral position as an excuse for not being transparent.

Green candidate selection and MP management

Having promoted Darleen Tana into Parliament, the Greens must take responsibility for the MPs’ behaviour. Yet, as the public has seen with the recent behaviour of other Green MPs such as Julie Anne Genter and Golriz Ghahraman, there is a reluctance or incapacity to manage personal problems that seep into the public sphere.

Part of the problem goes back to recruitment and list-placing of parliamentary candidates. In the case of Tana, she was selected and promoted to a very high list position without any real history of political involvement. As Tana explained in her maiden speech to Parliament, her recruitment into the Greens only came after a chance encounter with the Northland branch of the Green Party at Waitangi.

Of course, Tana is the third Green MP in less than a year to have a major scandal over their personal integrity. This does suggest that the Greens need to improve their quality control process. Related to this, the party has made a real effort to diversify its caucus and bring in more corporate and telegenic MPs in recent years.

The Greens admit that there is a problem here and have instigated a review of their vetting processes, which have failed badly. Co-leader Swarbrick says this is happening, but in terms of Tana’s business background not being made apparent to the party, she points the finger more at the individual: “Darleen should have declared this, and she did not do so... that's the first and most important thing here”. But Swarbrick adds that there is now a question about “tightening up” processes “where somebody doesn't potentially declare something that they should have”.

For some commentators, this relates to the Green Party’s intrinsic identity politics orientation to who is selected to go into Parliament. Leftwing commentator Martyn Bradbury says today: “once again the Greens desire to tick identity boxes over actually checking their candidates has bitten them in the arse.”

Similarly, writing for the Herald in May, rightwing commentator Matthew Hooton argued that Swarbrick has had to inherit problems caused by former co-leader James Shaw: “Party strategists say he tended to interpret the Greens’ principle of non-violence as a licence to avoid dealing with conflict – especially when problems involved women MPs, the overwhelming majority of the Green caucus. His critics say he was naive in taking at face value anyone who showed up with the right credentials rather than recognising that any powerful organisation, as the Greens certainly are, will attract bad actors interested more in personal advancement rather than the party.”

Therefore, the issue of Tana’s ethnicity has become quite fraught for the Greens – especially given the downfall of others such as Golriz Ghahraman, Elizabeth Kerekere, and Metiria Turei. Swarbrick spent a fair amount of her press conference yesterday answering questions about whether the Green Party is a “safe space” for women of colour and whether the leaders genuinely follow the Tiriti-centric processes they claim are central to the Greens.

Newstalk ZB’s Ryan Bridge has reported today that Swarbrick was outraged by such questions: “The irony of the party best known for calling everyone else in the room racist till they’re blue in the face not being accused themselves of racism over not one, in Tana, two in Kerikeri, but three MP's (Turei), was almost too much for new co-leader to take.”

Bridge explains what some of the parliamentary press gallery were thinking: “asking Tana to resign and shunning her in public, when old-mate Julie Anne Genter's still in the party despite multiple aggressive bullying allegations. The implication was the Greens must be a bit racist towards Tana cause she's Māori.”

Green waka jumping – choosing expedience or principle?

The Greens now face a major decision on whether to allow Tana to stay in Parliament or eject her using the so-called waka jumping law. While Swarbrick is clear that her preference is for Tana to resign of her own volition, the Greens will also consider invoking the “party-hopping” provisions in our Electoral Act 1993 to force her out.

These rules, first on the books between 2001 and 2005, were introduced in 2018 by an agreement between the NZ First and Labour parties. The Greens were forced to vote in favour due to their confidence-and-supply coalition deal. However, the Greens have always strongly opposed the “party hopping” or “waka-jumping” law and campaigned vehemently for its repeal (unsuccessfully) in 2020.

It's therefore astonishing that Swarbrick is willing to countenance using the rule that they have denounced as anti-democratic and constitutionally outrageous. Previous party co-leaders have ruled out ever invoking the law.

For this reason, constitutional law expert Andrew Geddis told the Herald’s Derek Cheng, “there’s no way the Greens could use it”. And writing about this on The Spinoff today, Geddis says there’s “virtually no chance” of the rule being used by the party. He suggests that the Greens just let Tana languish on the backbench, and that people stop paying any attention to the MP.

Swarbrick says that the Green MPs will meet to discuss the waka-jumping option. However, the party might also find intractable opposition within the wider party membership, making it too divisive to consider. Derek Cheng points out today that under Green Party rules, 75 percent of members would have to endorse the co-leaders' waka-jumping Tana out of power.

Yet, it’s an extraordinary situation, and Green MPs might well be able to convince others in the party that practicality needs to trump principle in this case. Swarbrick appeared to be laying the ground for this yesterday when she argued that the Tana dilemma might qualify as an exceptional circumstance: “We are dealing with a situation that the party has never been confronted with in terms of the severity of these allegations”.

Leftwing blogger Martyn Bradbury, who suggests he’s close to Swarbrick, calls on her today to make the tough decision to invoke the waka jumping law in order to prevent Tana staying in Parliament and keeping alive an open wound: “I think the leadership have no options here but to force the issue and use the waka jumping Bill. I know it will be humiliating to use that after denouncing it, but if Tana stays she will retreat to Waiheke, use that as her base of operations and try to undermine Chloe in her own electorate, better to push Tana into the airlock now and open the hatch. If you let her stay it will weaken Chloe’s leadership and Tana will turn septic and remain as a symbol of Green Party dysfunction.”

Similarly, political commentator Ben Thomas has argued that the Greens could justify using the waka jumping rule on the basis that the needs and values of the party “outweighs the general... distaste for the bill or for the legislation”. He points out that the Act Party also used to oppose the law, but were in fact the first to use it (against Donna Awatere-Huata, in 2004).

There’s also a chance that Tana might essentially defect to the Te Pati Māori caucus while officially remaining as an “independent” in Parliament. On this possibility, Te Pati Māori has publicly said today that “everyone’s welcome to join the pāti” but that no such discussions have been held. Last year, the party welcomed the Labour minister Meka Whaitiri when she resigned from her party. In that case, Whaitiri remained in Parliament because Labour chose not to invoke the waka bill.

What happens next?

If the Greens want to invoke the waka jumping rule and force Tana out of Parliament, they will need, first, to write a letter to her stating that her departure from the caucus means that the proportionality of Parliament has been distorted. Tana would have 21 working days to respond, making her case to stay. The Green caucus would then need at least two-thirds of MPs to vote for Tana’s removal, and the leadership would have to be satisfied that they have met the party’s own constitutional arrangements regarding getting the membership’s approval.

The Green co-leaders could then write to Parliament’s Speaker invoking the waka jumping bill, and Gerry Brownlee would have to declare Tana be ejected from Parliament and that the next person on the Green Party list, Benjamin Doyle (a teacher at Hamilton’s Rototuna High School) would be invited to take her place.

Regardless of whether the waka jumping rule is invoked or not, the current messiness in the Greens looks set to continue for some time. There’s certainly no love lost between the MPs involved. Yesterday, Swarbrick claimed that “she lied to us”. Now, the tactic of trying to shame Tana into resigning could become very ugly.

Other parties try to avoid such disarray. Usually, when untenable allegations emerge about an MP, they are either dealt with more efficiently and openly than the Greens have done, or else the party whips just come down extremely hard on the MP, forcing them to resign, thus avoiding the messiness of what’s we’ve seen.

Perhaps this Green messiness has been caused by the party having many new MPs, a new co-leader, and reportedly a whole new group of parliamentary staff. Mistakes have, therefore, been made. However, the party will have to quickly find a way to regain the public’s confidence in its integrity.

It seems unlikely that the way to do this is to invoke waka jumping laws that the Greens say they stand so firmly against. Instead, the most obvious way forward is to release the full report into Tana (with redactions, where necessary). Perhaps then, the party might want to formally apologise to the migrant workers that have been at the centre of this whole saga, but lately forgotten about.

Dr Bryce Edwards

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

This analysis is supplied exclusively to Democracy Project Substack subscribers and the New Zealand Herald.

Key Sources

Martyn Bradbury (Daily Blog): Echoes of Alamein Kopu and Elizabeth Kererkere – Greens finally ask Darleen Tana to resign – what could happen next

Ryan Bridge (Newstalk ZB): Why was Darleen Tana asked to resign when Julie Anne Genter wasn't?

Derek Cheng (Herald): Explainer: Will Darleen Tana be kicked out Parliament, or is this a stand-off waiting to happen?

Thomas Coughlan (Herald): Greens call on Darleen Tana to resign from Parliament after damning investigation into migrant exploitation claims

Marc Daalder (Newsroom): Darleen Tana announcement leaves unanswered questions

Kelly Dennett (The Post): Chlöe Swarbrick is furious about Darleen Tana, and rightly so (paywalled)

Felix Desmarais (1News): Darleen Tana saga 'messy from the start' – commentator

Felix Desmarais (1News): 'Utterly betrayed': What we know about the Darleen Tana investigation