EPMU appeal fails

National has failed in its application to judicially review the Electoral Commission’s decision to allow the EPMU to register as a third party. The decision is here – kirk-v-electoral-commission-anor-jmt-260808-jud_jtk_717.

The key clause is below:

The assessment of the effects of the membership and other rights which the Union has under the Labour Party Rules, and the making of a judgment as to whether these rights are such as to constitute involvement in the administration of the affairs of the party, are matters for the Commission. The Commission has clearly taken into account that the Union has the voting and nomination rights of a member.

The decision does not contain a detailed analysis of the rights. That is not required. There is no basis in the decision for a submission that the Commission has proceeded on a mistaken view as to the nature and extent of the rights under the Rules. This is not a case where the Commission has failed to take this relevant matter into account. It is not for the Court to substitute its view, based on its own assessment of the Rules. The question on this application for judicial review is not whether the Court would have reached the same conclusion. Rather, it is whether the Commission has reached a conclusion which is so clearly untenable as to amount to an error of law. The plaintiff has failed to meet that high hurdle, on this aspect of the case.

As Justice MacKenzie says the hurdle is high, and this does not mean the Court agrees with the Commission, just that the Commission appeared to consider all relevant issues. It is interesting that because the Electoral Commission did not give many details of the rationale for its decision, that makes it harder to argue they should be reviewed.

While I initiated the letter to the Electoral Commission, I am not the decision maker on the court cases, so don’t know if this is the end of the issue, or if National will appeal to the Court of Appeal.

Personally I am more interested now in the possible prosecution of the EMA Northern. You see reliable sources have told me that the total cost of their advertising campaign against the KiwiSaver law changes was in excess of $120,000. If this is so, then they would face prosecution for not an illegal practice, but a corrupt practice. The EMA Chief Executive could be jailed for up to three two years if found guilty. Yes, seriously.