An investigation by Kiwiblog has found that the candidacy of Winston Peters for New Zealand First is illegal under the Incorporated Societies Act 1908.
Section 21(2) of the Act states:
Every alteration of the rules must be—
(a) in writing; and
(b) signed by at least 3 members of the society; and
(c) delivered to the Registrar accompanied by a certificate by an officer of the society or a solicitor certifying that the alteration has been made in accordance with the rules.
And Section 21(3) states:
The Registrar, if satisfied that the alteration has been duly made, and that the rules as so altered conform in all respects to this Act, shall register the alteration in like manner as in the case of the original rules, and the said alteration shall thereupon take effect according to the tenor thereof.
In plain English this means that any rule change for an incorporated society does not take effect until the Register has approved them. This is well known to lawyers.
NZ First says they changed the rules of NZ First back in July to allow the Leader to be a list candidate, without being an electorate candidate. However they have not filed this rule change with the Registrar of Incorporated Societies and hence, the old rules still apply. They have filed them with the Electoral Commission *but only after I blogged pointing out they have not) but not with the Registrar as the website shows. There have been no rules changes registered since 2008.
This means the version of their constitution which is still legally in force states:
A List candidate must first be selected as an Electorate candidate
Winston Peters did not get selected as an electorate candidate, so his nomination as a list candidate is illegal under the rules of the NZ First Party, as governed by the Incorporated Societies Act.
If he is not a legal candidate for the New Zealand First Party, then any election of him to Parliament can be challenged. This has happened before when a nomination has been accepted (Kelly Chal for united Future in 2002) but after the election it was found she was ineligible and she was removed from the United Future party list.
The case is more complicated here as it is the Incorporated Societies Act, not the Electoral Act, that makes Peters an illegal candidate for New Zealand First. I can almost guarantee you though that if he is elected, lawyers will be looking to take legal action. Incorporated Societies can be forced to obey their own rules, as we saw in the legal action against the NZ Rugby Football Union over a proposed tour of South Africa.
If Peters is removed from their party list, then presumably No 2 Tracey Martin would become the Leader of NZ First.