The House: Parliamentary Privileges - Race As An Aggravating Factor?

Scoop

17-05-2025

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.