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

Phil
Smith, 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.

*RNZ’s The House,
with insights into Parliament, legislation and
issues, is made with funding from Parliament’s Office of the
Clerk. Enjoy our articles or podcast at
RNZ.

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