Payne failed to gain an injunction last week, but filed further reasons, and Justice Panckhurst has reversed his earlier decision, and granted an injunction.
The injunction can be viewed here as a PDF.
I have had a read through it, and some key aspects:
- No decision has been made on the merits of the case
- The criteria for an injunction is firstly merely whether there is a serious question to be tried, and Justice Panckhurst has said he now accepts there is a question due to reference to Section 71 of the Electoral Act.
- It then comes down to the balance of convenience, and this is really why the injunction was granted. If it was not granted, Payne would have permanently lost his chance to gain selection as a candidate. By comparison, National is inconvenienced (especially the accepted nominees and the delegates) but not permanently disadvantaged.
A substantive hearing will have to be arranged. This should be a matter of just weeks, not months. But until there is a substantive decision, the selection meeting scheduled for next week can not be held.
It is unfortunate for National, that it happened in Selwyn where there had already been issues around process. But this could have happened in any seat at all, where someone rejected decides to take legal action.
I’ll briefly touch on the substance of the case. I’ll reinforce that again no decision has been made on the substance, so any conclusions about the eventual outcome are premature. The key aspect is Section 71 of the Electoral Act 1993:
Requirement for registered parties to follow democratic procedures in candidate selection
Every political party that is for the time being registered under this Part of this Act shall ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament by—
(a) Current financial members of the party who are or would be entitled to vote for those candidates at any election; or
(b) Delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party; or
(c) A combination of the persons or classes of persons referred to in paragraphs (a) and (b) of this section.
Now the National Party Rule 94(b) says:
The Board shall consider the material submitted and shall have an unfettered discretion to approve or disapprove a nomination received. The Board may undertake an investigation on its own behalf of any candidate but shall not be bound to interview a candidate it rejects or assign any reason for rejection.
Now this rule has been there in various forms for some decades. It is very very rarely used, and I indicated in my previous blog post what I thought was suitable reasons for its use – the fact Mr Payne had previously failed to abide by the obligations he entered into, when seeking the candidacy in 1999.
Now in terms of s71, the requirement is only for local members and delegates to participate in the selection. It does not state they are the only people to be involved. As it happens National has extensive involvement, as the *only* people who select the candidate are local members and delegates *once* they have cleared the hurdle of board approval and pre-selection.
The substantive case will be very interesting, and no doubt observed eagerly by all political parties, as I think every significant party has a similar power for its central board.
But that substantive case is a week or so away. All that has been decided so far is that there is a serious question to be answered, and that as Payne would be permanently disadvantaged without the injunction, and National only temporarily disadvantaged, the injunction is granted.