Who says organisation, says oligarchy

If a political party doesn't want you, can you get a court to tell it that it has to have you?

So Andrew Williams has decided to do a Winston Peters and go off to Court to try and stop "his" party from excluding him as a candidate.

(Everyone remembers just why Winston Peters started NZ First, right? It's because National moved to expel him as one of its MPs and sought to stop him standing for it again ... a move that he fought in the High Court, thus creating the precedent that disappointed candidates can use the law to challenge their party's actions. I wrote a bit about that history here.)

As it happens, I think Williams has got a hard row to hoe here. His first problem will be establishing that there's actually a problem that a Court needs to concern itself with.

From what I understand, the sequence of events is this. NZ First's draft candidate list was leaked, indicating that Andrew Williams was being dropped from number 3 to (an almost certainly unelectable) number 13. He then complained about this publicly. Whereupon, the next day, NZ First gave its candidate list to the Electoral Commission without Williams name appearing on it at all.

That sure makes it look like Williams was punished for his complaining about his list placing. But, so what? How has the Party done anything wrong by choosing to do so?

That question requires us to look at NZ First's Constitution, which sets out the ground rules for how the Party will operate.

Under clause 49, the NZ First Party List is created by a "ranking committee", which consists of NZ First's Leader, Deputy Leader, President, Vice Presidents and Directors. This body then, under clause 50, gets to rank the Party's list "at its complete discretion, and by a procedure that it collectively decides". So there's not much room there to challenge the committee's decision on where (if anywhere) Williams gets put on NZ First's list - how can you get a court to say that a decision which the rules you signed up to give over to a select group of people to decide whatever they want, however they want to, is "wrong"?

Now, sure, clause 53 sets out a procedure that the list ranking committee is required to follow where the Party's Board wants to revoke a list candidate's place on the Party list. However, this procedure appears only to apply once the final list has been decided upon. And I suspect that the Party's position will be that until the list is lodged with the Electoral Commission, it isn't final. Meaning that any and all changes can still be made to it however the ranking committee chooses - by "a procedure that it collectively decides".

Of course, I may be wrong on that. Maybe the list that Williams got dropped off really was the Party's "final list". In that case, the Party has acted other than in accordance with the procedure contained in clause 53 - it's breached its own rules. But again, so what?

Because proving a breach of the party's rules is only the first step. The next thing Williams will have to do is convince a Court to grant him a remedy. And is a Court really going to order NZ First to reinstate Williams on to its list, given that it obviously doesn't want him anymore? I think that's a real stretch.

Furthermore, even if it wanted to, could a Court do so? Because under the Electoral Act 1993, s. 127(3)(a), a party's list of candidates:

must be submitted to the Electoral Commission not later than noon on the date specified in the writ for the election of constituency candidates as the latest date for the nomination of constituency candidates.

That deadline - noon on "nomination day" - expired on Tuesday, August 26. And according to s. 128(1)(b):

The Electoral Commission must reject a list submitted [by a Party] ... if the list is not lodged with the Electoral Commission by noon on nomination day.

Meaning that after this deadline passes, a Party that has submitted a list cannot then amend it (see also s.128C(2)).

So, against this statutory background, can a Court require that the Electoral Commission accept a different party list after the nomination deadline has elapsed? Because if it can't, then Williams' case is pretty much an exercise in futility.