The House: Parliamentary Privileges – Race As An Aggravating Factor?
Article – RNZ
Analysis: Reactions and advice from Parliament's Clerk, Speaker and even the committee chair show it has recommended indefensibly harsh punishments.
, Editor: The House
Analysis: On Wednesday, Parliament's Privileges Committee released its final report into the MPs who protested the Treaty Principles Bill with a haka in the House in November 2024.
There was surprise and shock over the recommended punishments for Te Pāti Māori MPs, which seemed both unprecedented and extreme.
In retrospect, considering this week's response from Parliament's Speaker, the advice now available from Parliament's Clerk, and Committee Chair Judith Collins' public defence of her own report, that the initial reaction was overly calm. The committee report now appears partisan, indefensible and open to attacks of racism.
On Tuesday, 20 May, Parliament's House will debate whether or not to accept the Privileges Committee Report and its recommendations for punishments, namely that Te Pāti Māori's two co-leaders be suspended from Parliament for 21 days and their junior colleague for seven days, all without salary.
Those recommendations are unprecedented in a number of ways. This article looks at what the reactions and advice of three officials tell us about the recommendations.
We will consider:
The advice regarding punishments given to the Privileges Committee by Parliament's Clerk.
An argument publicly made by the Committee's Chair in defence of her recommendations.
The ruling given by the Speaker to MPs in the House as a reaction to the recommendations.
The Clerk's advice about historical norms
As Clerk of the House of Representatives, David Wilson is the head of Parliament's Secretariat and the chief advisor to the Speaker, the House, Committees and MPs on the interpretation and practice of Parliament's rules.
The Clerk wrote a background advice paper for the Parliament's Privileges Committee on the current case.
The committee particularly asked for contextual information about penalties. One member even asked for information about imprisonment.
New Zealand's Parliament has no power to imprison.
The Clerk's advice to the committee became available when the committee's report was tabled in the House. It is not published on the Committee webpage with the report, but can be requested from the Office of the Clerk.
The advice outlines both precedent and practice for enforcing breaches of Parliament's rules for order in the House. It notes that a Speaker's strictest punishment for the worst conduct (grossly disorderly) is 'naming' that MP, whereby (with the House's agreement), they are suspended for a single day (including a loss of salary). If an MP is named a second time within the same Parliamentary term, the punishment increases to a week, and after a third time to 28 days.
However, in New Zealand, no MP has been named a second time within a Parliament, so the strongest sentence a Speaker has dished out is a single day's suspension.
Regarding punishments relevant to the case under consideration, the Clerk gave this summary.
'We have not found a case of the Privileges Committee recommending anything other than an apology or censure in respect of disruption or intimidation in the Chamber. There have been a few occasions where suspension has been recommended, where the committee has noted aggravating factors. Those recommended suspensions were for short periods.'
So, the usual punishment is an apology, and possibly a formal censure. An apology was the punishment recommended for Labour MP Peeni Henare, who participated in the same haka.
Henare was also found to have acted 'in a disorderly manner that disrupted a vote being taken and impeded the House in its functions'.
He did not leave his seat, however, so the Committee decided his behaviour did not amount to contempt.
Last year, Green MP Julie Anne Genter was found guilty of both disorder and intimidation. She left her seat and shouted at a seated MP from close range.
'Looming' was a word used.
She was only censured and asked to apologise. Neither Genter nor Henare was suspended at all.
The Clerk also listed the strongest punishments that NZ MPs have ever received, including for offences that, on paper at least, seem more serious than the current charge.
'In New Zealand, the suspension of members is a rare occurrence, especially in terms of a suspension on the recommendation of the Privileges Committee. A previous committee has recommended a suspension for three sitting days.
'Potentially, a suspension of up to seven days could align with the penalty set out in the Standing Orders for a member who is named and suspended for a second time in the same term of Parliament.'
The recipient of the longest previous punishment, a three-day suspension, was Robert Muldoon in the late 1980s. It was given at a time when suspension was tantamount to fully-paid gardening leave.
The Clerk also had advice for the committee in case they decided to step outside the precedent he had provided (below, emphasis mine). He could possibly tell it was heading in a more draconian direction.
'Moving to the imposition of much longer periods of suspension than have been imposed previously would be a substantial change to the House's practice.
'If a recommendation for a long period of suspension were to be proposed, we would recommend that the committee adopt it only with broad support among its members (though not necessarily unanimity).'
In fact, the severe punishment recommended by the committee was agreed upon by a thin majority. MPs from the governing coalition all voted in favour; MPs from the Opposition all voted against. A narrow majority for this kind of recommendation is also unprecedented.
Labour's senior member of the committee, Duncan Webb, told The House, 'As long as I've been on the committee (and it's been a while), we've desperately tried to get consensus, so it is a real concern. It's also the situation that the government had a majority there… There have been government majorities before, but they simply exercised their political muscle here.'
The only previous case in recent memory where a Privileges Committee report wasn't unanimous was when New Zealand First was not prepared to agree to a censure of Winston Peters for leaving a $100,000 payment off his disclosure of pecuniary interests.
In other cases, even the party of the member under investigation has agreed with the committee's decision.
The Clerk's advice concludes:
'Adopting a substantial change to the House's practice, if done in the context of a particular case, could appear arbitrary.
'We, therefore, would also recommend that the committee set out clearly its rationale in arriving at the particular penalty or penalties that it wished to propose, and an explanation of how each penalty would be proportionate to the offence, so that a consistent approach could be taken in future.'
He was correct. Harsh penalties were recommended, and they do appear arbitrary. The committee report gave a meagre rationale for the contempt being serious, and no attempt to justify the specific penalty by giving context, comparison or rationale. The committee appears to have roundly ignored the Clerk's historical context, his advice and his recommendations.
Chairperson Judith Collins' false justification
Subsequent to the report's release, the Privileges Committee's Chair, Judith Collins, has sought to explain and justify both the committee's process and recommendations.
Talking to RNZ's Morning Report, Collins gave her view of the actions and motivations.
'This is not about haka, this is not about tikanga. This is about MPs impeding a vote, acting in a way that could be seen as intimidating MPs trying to exercise their right to vote.
'After Te Pāti Māori had exercised their right to vote, they then stopped the ACT Party from exercising theirs.'
That is not true.
ACT had already voted. Every party had voted before Te Pāti Māori did. As the smallest party in Parliament, Te Pāti Māori is always the last to be called on for their vote.
It has been that way all Parliament.
Judith Collins could not fail to be aware of that.
The vote tallies and outcome had not yet been declared by the Speaker, so the fuller voting process was incomplete, and disrupting it was disorderly behaviour; but the claim that the MPs were intimidating another party to prevent it from voting is entirely unfounded.
The answer Collins gave RNZ was either misinformation (perhaps Judith Collins mistakenly believes the MP's actions were more serious than they were) or it was disinformation (in the aftermath of the report, she might have felt it necessary to convince the country the incident was more serious than it was).
Whatever the reason for the untruth, the claim suggests that Collins has a more jaundiced view of the MPs' actions than is realistic or defensible.
Did she fundamentally misunderstand the MPs' actions during the investigation (which would cast the committee findings into doubt), or did political or other prejudice make those actions appear worse than the evidence showed?
Research has repeatedly found that in any justice system, dark-skinned defendants are treated more severely based on ethnicity.
Findings based on a fundamental misunderstanding of the sequence of events would be highly embarrassing. Findings tainted by political or other prejudice would bring both the committee and the Parliament into disrepute.
The Speaker: Parliament's champion invites dissent
Damage to Parliament's reputation would be of particular concern to the Speaker, Parliament's champion and protector.
In the House on Thursday, the Speaker, who had initiated the inquiry, seemed anything but pleased at the outcome. He took quite some time outlining the process for a debate next week on the report and its recommendations.
There is always a debate in the House as to whether to accept the recommendations of a privileges inquiry. These debates are usually short, pro-forma events with a handful of short speeches and all parties in accord. They take ten to fifteen minutes.
By contrast, the Speaker has introduced this one in such a manner as to make it either an extended opportunity for rebuke of the committee or an option for dignified retreat by the government.
In his ruling, he outlined the committee proposal, 'that [each] member be suspended from the service of the House, one for a period of seven days, and the other two for a period of 21 days.'
He then reminded MPs by reminding the media (who have misreported this) that the punishments are only recommendations.
It seemed clear that the Speaker wanted MPs to know that, as far as he was concerned, this is not yet a done deal.
He then gave a (only slightly) coded view on the severity of the proposed punishments.
'These punishments recommended by the committee are very severe and are unprecedented in this Parliament. As far as I'm aware, since the House first met in 1854, no member who has been found guilty of contempt has been suspended for more than three days.
'I'm also conscious that, unlike in previous such cases, suspension from the service of the House now carries a substantial financial penalty. The committee's recommendation, therefore, represents a significant development in the practice of the House.
'A proper opportunity for debate must be provided before the House arrives at a decision.'
He expanded:
'I also note that the committee's recommendation was adopted by a narrow majority. That is an important point when the effect of the recommendation would be to deprive members of a minority party of their ability to sit and vote in this House for several days.
'As the committee's report states, the Speaker has a duty to protect the rights of members of all sides of the House. In particular, there's a longstanding convention for Speakers to safeguard the fair treatment of the minority. I intend to honour that convention by ensuring the House does not take a decision next week without due consideration.
'In my view, these severe recommended penalties placed before the House for consideration mean it would be unreasonable to accept a closure motion until all perspectives and views had been very fully expressed.'
That is an open invitation for the Opposition to spend as long as they want hanging the 'unprecedented' and 'severe' recommendation firmly on the government's shoulders. In fact, to filibuster the debate and, in so doing, use valuable government debating time against them.
Inviting a filibuster is unusual, but he went further, spending time on what amounted to a refresher course for MPs on how to filibuster effectively, and how they could offer amendments to alter the Privileges Committee's recommended punishments.
'The motion may be amended, and an amendment is not required to reflect the recommendation, as long as the amendment is relevant and otherwise in order. As with many other situations when proposals are made to this House, it is not an all-or-nothing decision.'
In answer to a query, Brownlee made it clear that the Te Pāti Māori MPs involved were welcome to speak.
'[No one has been suspended] so all members in this House can speak in this debate.'
One question came from National's Leader of the House, Chris Bishop.
He is usually a member of the Privileges Committee but was replaced for this inquiry by his deputy, Louise Upston.
As Leader of the House, he is responsible for managing the government's legislative agenda and government progress in the House. He was somewhat lost for words and seemed genuinely worried that a long debate might derail the government's plans for budget week, which are always carefully choreographed.
'Is it the case that it is your intention that… this matter will be put on Tuesday, because just from a time-tabling point of view, Wednesday is set down to be a members' day, and, of course, Thursday is Budget day.'
The Speaker replied that that was what the rules mandated. The reply had echoes of the slightly taunting reprise from Dangerous Liaisons.
'It's beyond my control'.
I may be wrong, but I interpreted the Speaker's ruling on Thursday as having four messages for MPs:
That he is unhappy with the recommended punishments.
He is very happy for MPs to try to alter those recommendations.
He is happy for the debate on those recommendations to drag on long enough to embarrass the government and cause havoc with its timetable.
It is also possible that the Speaker is hinting that the government might want to negotiate more suitable punishments with the Opposition.
Achieving a less extreme punishment outcome would help the Speaker protect the reputation of both Parliament and the Privileges Committee. It might also save him from thinking twice about involving the Privileges Committee in future disciplinary cases.
If the above supposition is correct, and the Speaker is successful, he may also deflect the feeling that the government has used its majority in Parliament's most powerful but usually apolitical committee to push for punishments that smack of punishing Māori for daring to overstep their 'place'.
That may not have been the intent, but even the whiff of it is awful.
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This government is committed to clearing the path of needless regulations by improving how laws are made." The bill wants politicians to show their workings, he said . "This bill turns the explanation from politicians' 'because we said so' into 'because here is the justification according to a set of principles'." The bill was part of the coalition agreements National, ACT and New Zealand First agreed to in 2023 which included a pledge to improve the quality of regulation and pass a "Regulatory Standards Act as soon as practicable" (page 4). The bill passed its first reading in Parliament on 23 May. It is now before the Finance and Expenditure Select Committee and open for public feedback. You can read the complete text of the bill right here: Read the Regulatory Standards Bill 2025 . The government's departmental disclosure statement also gives further information regarding the scrutiny of the bill. The Ministry of Regulation, which was formed just last year with Seymour named as the minister in charge, says that "regulation is all around us in our daily lives". "It's in the workplace, the sports field, the home, the shopping mall - in our cities and the great outdoors. Regulation protects our rights and safety, our property and the environment." But what does that actually mean? "Fundamentally, it's a law, something that tells you you have to do something or something that tells you you can't do something," said constitutional law expert Graeme Edgeler. Yes, such as the Legislation Design and Advisory Committee (LDAC), which produce legislative guidelines and advises on legislative design. "There already are a range of 'best practice' lawmaking guides and practices within government, such as the LDAC's 'Legislation Guidelines', Regulatory Impact Statements, and departmental disclosure statements under the Legislation Act," University of Otago law professor Andrew Geddis said. Seymour has said the bill is about adding transparency, not enforcement. In an FAQ on the bill, the Ministry for Regulation says the bill "does not require new legislation to be consistent with the principles ". "It requires that legislation is assessed for any inconsistency with the principles, and that this assessment is made available to the public. Agencies and ministers are required to be transparent about any identified inconsistencies, but this would not stop new legislation from progressing." Geddis said while the bill was intended to operate in the executive branch of government only, it may have implications for the courts. "Once the particular standards of 'good lawmaking' included in the RSB are written into our law by Parliament, the courts cannot but take notice of that fact," he said. "And so, these standards may become relevant to how the courts interpret and apply legislation, or how they review the way the executive government makes regulatory decisions." Similar bills have been introduced by ACT before and failed. Photo: RNZ / Angus Dreaver That's right - similar legislation has been introduced to the House three times, and failed to become law three times. Previous tries saw the 2006 Regulatory Responsibility Bill Member's Bill by former ACT leader Rodney Hide; the Regulatory Standards Bill in 2011 also introduced by Hyde and produced by the Regulatory Responsibility Taskforce; and a 2021 Member's Bill by Seymour. Unlike previous versions of the bill, the 2025 iteration adds a regulatory standards board to consider issues, removing courts from the equation "in relation to a recourse mechanism for legislation inconsistent with the principles". The bill has been somewhat softened in this incarnation, Edgeler said. "This is the weakest form of the regulatory standards proposal that there has been." He also noted that future governments could repeal or amend the bill as well. And as the Ministry for Regulation says, "any recommendations made by the Regulatory Standards Board would be non-binding". "It won't stop any future government doing something it actually wants to do," Edgeler said. The full Regulatory Standards Bill is available online. Photo: Screenshot / Parliament The bill has drawn considerable feedback, with earlier public submissions strongly negative. After the discussion document was launched on the bill in November, the Ministry of Regulation received about 23,000 submissions . Of those, 88 percent opposed the bill, 0.33 percent - or 76 submissions - supported or partially supported it, and about 12 percent did not have a clear position, the ministry reported. Seymour has since dismissed the negative submissions and alleged some of them were made by 'bots' . Among the top concerns the ministry's analysis of the feedback found were that the bill would "attempt to solve a problem that doesn't exist"; "result in duplication and increase complexity in lawmaking" and "undermine future Parliaments and democracy". Bill opponent University of Auckland Emeritus Professor Jane Kelsey has said the bill is too in line with minority party ACT's ideology and will "bind governments forever to the neoliberal logic of economic freedom". Other government agencies have also weighed in. In a report on the bill after launching an urgent inquiry, the Waitangi Tribunal found that "if the Regulatory Standards Act were enacted without meaningful consultation with Māori, it would constitute a breach of the principles of the Treaty of Waitangi, specifically the principles of partnership and active protection". It called for an immediate halt to the bill's advancement to allow more engagement with Māori. In a submission received by Newsroom under the Official Information Act , the Legislation Design and Advisory Committee said it had "misgivings about the capacity of this bill to offer improvement" and it might have "significant unintended consequences". In terms of the financial impact, a regulatory impact statement by the Ministry for Regulation estimated the bill would cost a minimum of $18 million a year across the public service under the minister's preferred approach. Seymour said the cost of policy work across the government was $870m a year, and the bill was about 2 percent of that. And in an interim regulatory impact statement , the Ministry of Regulation itself expressed some ambivalence about the bill. The ministry said its preferred approach was to "build on the disclosure statement regime ... and create new legislative provisions". It said it supported the overall objectives of the bill but "that an enhanced disclosure statement regime with enhanced obligations, will achieve many of the same benefits" and also impose fewer costs. Te Pāti Māori co-leader Debbie Ngarewa-Packer. Photo: RNZ / Mark Papalii It does not say that, but the bill's silence on Māori representation in government has troubled opponents. "On the consultation point, Māori clearly weren't adequately engaged with before the RSB was created and introduced into the House," Geddis said. "The Waitangi Tribunal's report on the RSB is unequivocal on this issue." Geddis said in contrast, that LDAC guidelines contain an entire chapter of guidance on how Te Tiriti should be considered. "That very silence creates uncertainty as to how the principles in the RSB are meant to interact with these principles of the Treaty." Under principles of responsible legislation outlined at the start the bill, there is a statement that "every person is equal before the law," which some have said dismisses Māori concerns. Te Pāti Māori co-leader Debbie Ngarewa-Packer at the bill's first reading last month attacked the bill. "If you look through the whole 37 pages, which I encourage that you don't, the silence on the impact for Te Tiriti is on purpose. The bill promotes equal treatment before the law but it opens the door [for] government to attack every Māori equity initiative." Seymour has insisted Māori voices were heard through public consultation. "We had 144 Iwi-based groups who submitted... If that's not enough, then I don't know what is," he told RNZ's Guyon Espiner . A section that has drawn attention says "legislation should not take or impair, or authorise the taking or impairment of, property without the consent of the owner unless there is a good justification for the taking or impairment; and fair compensation for the taking or impairment is provided to the owner; and the compensation is provided, to the extent practicable, by or on behalf of the persons who obtain the benefit of the taking or impairment". The question many opponents have raised is what "compensation" might mean and who might seek it. "Applied to the real world, this means that anything the government does that decreases corporate profits opens it up to possible legal action," bill opponent Ryan Ward wrote for E-Tangata. Bryce Wilkinson. Photo: RNZ / Kate Gudsell Writing for the New Zealand Institute , Bryce Wilkinson said criticisms of the bill as "a 'dangerous ideological' drive towards limited government are arrant nonsense". "The bill itself is a mild transparency measure," Wilkinson has also written . "The Regulatory Standards Bill's modest aim is to make wilful lack of disclosure harder." "At the end of the day we are putting critical principles into lawmaking," Seymour told Newsroom . "We know bureaucrats don't like this law. For New Zealanders that's a good thing." Now is the time to do it. Public submissions to the Finance and Expenditure Committee will be accepted until 1pm Monday 23 June. Submissions are publicly released and will be published to the Parliament website. Winston Peters and New Zealand First may hold the fate to the bill's passage. Photo: Facebook / Winston Peters Here's what happens next . The select committee is due to report back on submissions by 22 November, although Seymour has asked that to be moved up to 23 September , Newsroom reported. After the select committee, the bill would proceed to a second reading, then a committee of the Whole House, and a final vote in the third reading, which would need support from more than half of Parliament to pass. If the bill passes, it would likely come into effect on 1 January 2026. While the Treaty Principles Bill , also championed by ACT, failed in Parliament in April and was voted down by every party but ACT, Edgeler said the path for this one was less shaky. "This one, of course, is more likely to pass because the promise in the coalition agreement is to pass it," Edgeler said. That agreement requires National to support the bill all the way through, which is different to the agreement's clause on the Treaty Principles Bill. By extension it also requires New Zealand First to support it all the way through because their agreement requires them to support the agreement with ACT. "Whether it passes in the exact form, who knows, whether New Zealand First continues its support or insists on changes which might drastically alter it, or even water it down further, is a different question." NZ First leader Winston Peters has described the bill as a "work in progress" and Geddis said: "It is possible that the changes NZ First want so alter the RSB's content that it ceases to deliver what ACT wants it to, creating a stand-off between the two coalition partners." Geddis agreed the coalition agreement makes it difficult for National to not support the bill. "Given that these agreements are treated as being something close to holy writ, and given how much political capital David Seymour is investing in this bill, it seems unlikely that National will feel able to withhold its support. That then leaves NZ First as being, in effect, the decider." From the bill itself, in summary, the principles are: - the benefits that the payers are likely to derive or the risks attributable to them; and - the costs of efficiently achieving the objective or providing the function; and - the issue concerned; and - the effectiveness of any relevant existing law; and - the public interest; and - any reasonably available options (including non-legislative options); and Sign up for Ngā Pitopito Kōrero , a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
