Mai Chen
Public and employment law specialist Mai Chen on current events

Mai Chen: Courts unlikely to overrule Labour's Taurima decision

Shane Taurima delayed declaring his political interests to TVNZ by some six weeks.
Shane Taurima delayed declaring his political interests to TVNZ by some six weeks.

Did the Labour Party fail to follow fair process such that its decision not to allow Shane Taurima to contest the candidacy for Auckland's Tamaki Makaurau seat can be challenged in the courts, or did TVNZ's report into Mr Taurima's behaviour justify the party council's decision?

Allegations have been made by Shane Taurima's advocate that the Labour Party used the excuse of the TVNZ review of Mr Taurima's alleged conflict of interest to side-line him in favour of another higher-profile candidate, Julian Wilcox from Maori Television. I do not know the truth of these allegations. But I have read the TVNZ report, and I can tell you what the courts can do if a political party has not followed the process in its own constitution.

The TVNZ report shows Mr Taurima committed acts which, in his role as employee, could be considered serious misconduct. The report found that Mr Taurima "faced a conflict of interest that he should have disclosed much earlier and more fully than he did".

And that this state of affairs would "plainly be deeply embarrassing to TVNZ if it came to light". It was key that Mr Taurima was required to disclose his political activities to his employer in a timely way, but he delayed doing this by some six weeks, which appears inconsistent with Mr Taurima's employment obligations of good faith to be active, constructive, and responsive. It is also arguably inconsistent with the maintenance of the trust and confidence necessary for the continuation of an employment relationship.

Although, the Labour Party is unincorporated, the courts can intervene to ensure it followed its own constitution. Rule 240 of the Labour constitution says "Any bona fide member of the Party or Affiliated member of the New Zealand Labour Party for at least one year immediately prior to the date of the calling for nominations shall be eligible for nomination as a parliamentary candidate." So Mr Taurima was prima facie ineligible because he had not been a member long enough.

But Rule 241 states that "Waivers to the length of membership requirement may be granted by the New Zealand Council. The selection meeting shall be notified of any waiver granted for any nominee seeking selection at that meeting. Such notification shall be provided formally in the notice to nominees and the notice to the local party members about the selection meeting and verbally by the chair both before and after all nominees have addressed the meeting."

The Labour Party Council resolved that granting Mr Taurima the waiver was not in the best interests of the party, and in reaching that resolution took into account the contents and conclusions of the TVNZ report. It has been suggested Mr Taurima might take the matter to the courts. But courts have traditionally been wary of substituting their judgment for that of a political party on matters political.

Political donations Fundraising in an election year inevitably attracts allegations of corruption from MPs from opposing political parties, particularly where that fundraising happens at exclusive, high-priced functions. This is despite a prescriptive regulatory regime under the Electoral Act covering political donations which can result in harsh penalties for illegal and corrupt practices for themselves and their donors. Other than allocations for electoral broadcasts under the Broadcasting Act there is no state funding of political parties' electoral activities.

A person convicted of a corrupt practice can receive up to two years in prison and a maximum fine of $100,000 for any constituency candidate, party secretary, or registered promoter who fails to comply with the donations and expenses regime, and $40,000 in any other case. They may also be placed on the Corrupt Practices List and have their election as a MP made void.

A person convicted of an illegal practice can be fined up to $40,000 if they are a constituency candidate, party secretary, or registered promoter who breaches the advertising or donations and expenses regimes or illegally promotes an election advertisement, and $10,000 in any other case.

It is perfectly legal to collect donations through functions; payment to attend a fundraising event is considered a donation if the reasonable market value of a fundraising event is less than the price charged. For example, at a fundraising dinner the donation value will be the difference between a comparable restaurant meal and the ticket price.

The Electoral Act includes not only cash or goods or services but also the provision of goods or services at below market rates.

You can donate up to $14,999 to a party and $1499 to a candidate without being identified as a donor. You can donate more if you wish, but you must choose either to be identified publicly as a donor or the party or candidate will not know that you are the source of the funds. There are also caps on donations protected from disclosure: $43,350 per donor, per party, between two successive elections and no political party may receive more than $289,000 from donations protected from disclosure between two successive elections. Every candidate must file a return of donations 70 days after the election and the secretary of every registered party must file an annual return of donations. A candidate's return of donations must name every person who donated more than $1500 (including as part of a donation made up of many contributions), name every overseas person who made a donation over $1500 (including as a contribution) and identify anonymous donations over $1500.

A party's return of donations must name donors who donated more than $15,000 (including as part of a donation made up of many contributions), name every overseas person who made a donation exceeding $1500, and provide information about all anonymous donations not exceeding $1500 and all other donations. Donations of more than $30,000 must be disclosed within 10 days.

Parties are required to annually disclose the details of any loan exceeding $15,000 and to disclose within 10 days any loan or loans by the same lender to the party exceeding $30,000. Loans which are on a non-commercial basis may also have to be disclosed.

- NZ Herald

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