August 25, 2008 4:40pm by David Farrar

High Court hearing on Electoral Commission and EPMU

I’ve been at the Wellington High Court all day, listening to arguments in the court case over whether the Electoral Commission was correct to allow the EPMU to register as a third party, or was the EPMU a person involved in the administration of the affairs of the Labour Party.

There is a significant barrier for the plaintiff (National) to overcome. Courts are traditionally reluctant to second guess the decisions of specialist or expert bodies such as the Electoral Commission. The court will only act if they Commission has clearly made an error in law, or reached a conclusion that is so unreasonable it is untenable. So if the action fails, it does not necessarily mean the Court has decided the Electoral Commission made the right decision. It means that the decision was a reasonable decision to make.

Obviously National, as plaintiffs, think it was an unreasonable decision and that there were errors in law. National probably had three major strings to its case:

  1. The Electoral Commission erred in not obtaining a copy of the EPMU constitution which states in their Rule 23 that the National Executive (or a sub-committee of it) shall appoint all delegates from the EPMU to Labour Party committees at national, regional and electorate level. This goes against the contention that EPMU members are there just as members, not representing the EPMU
  2. The Electoral Commission erred in interpreting “involved in the administration of the affairs of a party” as menial administrative tasks and not governance. The analogy of a company director was used – they sit on the board and govern, but are considered to be involved in the administration. There is no case law anywhere on this point, so it was argued from first principles and dictionary definitions. I have mentioned elsewhere that under the Commission’s interpretation even a Party President could be seen as not involved in the administration, which makes the whole ineligibility clause almost meaningless.
  3. That while Andrew Little was elected Affiliates Vice-President by the Labour Conference, he is bound by the EPMU rules to act in the best interests of the EPMU. But also, even putting aside the nature of Andrew’s role on the National Council, there is no question the EPMU has direct representation on all 69 Electorate Committees, all the local body committees and all six Regional Councils, and that this constitutes involvement in the administration of the affairs.

It would be a brave person who predicts the outcome, as Justice MacKenzie was giving nothing away with his body language and asked no significant questions to either side. As I said above, it is a very significant hurdle to get over, to persuade the Court to “second guess” (and Crown Law pushed strongly that they should not do so in this case), but I thought the lawyers for National did a good job arguing the case that this was one of those times where they should. But again, no predictions on outcome from me.

Of course I am more than an interested bystander as I wrote the original letters which raised the eligibility issue, so I smiled at the number of times the words “Farrar affadavit” came up in court.  Regardless of the outcome, it will be a very interesting judgement to consider.