Bob Edlin: Parliament conduct rules explained

No, we don’t need a tikanga expert to put context around a haka that disrupted proceedings in Parliament

The Māori Party – bleating about three of its MPs being denied the right to have someone explain tikanga to Parliament’s Privileges Committee – is engaged in provocative grandstanding.

The committee, chaired by Judith Collins, considers and reports on issues relating to parliamentary privilege and can find MPs in contempt of the House.

MPs Rawiri Waititi, Debbie Ngarewa-Packer and Hana-Rawhiti Maipi-Clarke, scoffing at it as a “kangaroo court”, did not turn up for their committee hearing yesterday after saying they were denied natural justice,

The three left their seats in the House last year to perform a haka while the Treaty Principles Bill was being considered. The disruption prompted Speaker Gerry Brownlee to temporarily adjourn the House and ejected members and the public.

Images of their robustly defiant prancing were soon being flashed around the world.

Labour MP Peeni Henare last month apologised to the Privileges Committee and to Parliament for leaving his seat, but he stood by the haka. The committee ultimately found he was not in contempt.

The three Māori Party MPs are taking a different tack. Among other plaints, they say they did not appear before the committee yesterday because they had been prevented from making submissions on tikanga, or from being joined by an expert on tikanga.

The submissions on tikanga were important for context to the haka to be understood, they contend.

But the committee hardly needs an expert in tikanga to try to make judgements on what happened.

Performing a raucous haka during proceedings on the Treaty Principles Bill was as defiantly provocative as a New Zealand Ballet dancer stepping on to the stage for a pas de deux in tramping boots during a performance of Swan Lake.

The dancer would be laughed out of any subsequent disciplinary hearing if s/he insisted on bringing in an expert on tramping footwear to state the case for abandoning ballet slippers.

But the Māori Party not only has taunted the Privileges Committee by staying away from the hearing.

Co-leader Rawiri Waititi – basking in the media’s focus on his defiance – described the committee as a “silly little committee” with “silly little rules”.

So this MPs are accountable to nobody?

No – he and his two colleagues are willing to be held accountable, depending on to whom they must explain themselves.

And if they explain themselves to themselves – well, that’s agreeable to them.

Thus Waititi and co-leader Debbie Ngarewa-Packer have declared they will hold their own hearing in May, on a date the party preferred to meet with the committee to hear the complaint..

The Māori Party plainly is determined to challenge Parliament’s sovereignty and precipitate an overhaul of the concept of parliamentary privilege to include the intimidatory performance of a haka as an acceptable component of Parliamentary debate.

PoO presumes the Māori Party is familiar with the rules it has dismissed as “silly”.

They are easily found on Parliament’s website, which explains that parliamentary privilege applies to Parliament as a whole rather than the individual members.

It enables the House of Representatives, as the democratically elected House of the people, to go about its business, such as lawmaking, without interference from outside.

Developed over centuries of Westminster-style democracy in Britain, parliamentary privilege provides certain exemptions from general law which are considered essential for parliamentary supremacy over the Crown. These include freedom of speech, the power to obtain evidence, and the right for the House to control its own proceedings free from outside interference.

The Māori Party – keen to learn more about this” complex and often misunderstood subject” – no doubt checked out the further information in Parliamentary Privilege in New Zealand.

This says there is no definitive list of the House’s privileges.

Broadly, these privileges fall into two main categories—individual freedoms and House privileges.

Privileges of the House include the regulation of its internal affairs, power to discipline, the right of inquiry, right to summon witnesses and call for papers.

The House’s power to punish includes the power to punish any act or omission that the House considers to be a contempt, whether or not the action violates a specific privilege. The distinction between a contempt and a breach of privilege is not always clearly drawn; there is a tendency to refer to a “breach of privilege” when what is really meant is a contempt. The Standing Orders list 25 examples of acts or omissions that might constitute contempts, but the list is illustrative rather than exhaustive and does not limit the general definition of contempt.

In 1996, the House sought to define more clearly the types of conduct that it might decide constituted contempt. It adopted a general definition of contempt, together with a long list of examples of the types of conduct that might fall within the general definition.

The House may treat as a contempt.

… any act or omission which—

(a) obstructs or impedes the House in the performance of its functions, or

(b) obstructs or impedes any member or officer of the House in the discharge of the member’s or officer’s duty, or

(c) has a tendency, directly or indirectly, to produce such a result.

On the matter of powers to punish for contempt, the Parliamentary website says:

It is of the essence of parliamentary privilege that the House acts as judge in its own cause when it makes an allegation of breach of privilege or contempt and adjudicates upon it. Ultimately, the House must decide when to exercise its privileges, and genuine differences of opinion may arise as to whether doing so in a particular case is justifiable.

The House may declare conduct to be a contempt without any preceding inquiry into it. Under the House’s rules, however, a deliberative process is invariably followed before arriving at such a finding.

The process is instigated by the Speaker deciding if a matter of complaint falls within the definition of contempt, thus warranting investigation by the Privileges Committee.

The second stage is inquiry by the Privileges Committee, and the third stage is endorsement by the House.

The website explains that the exercise of the power to punish is vested exclusively in the House.

It is so important that it must be used with such deliberation that the House may not delegate it. No committee (including the Privileges Committee) has ever been delegated the House’s power to impose punishment for a breach of privilege or a contempt. Whatever investigative, preventative, punitive, or other coercive action the House may choose to take, it must avoid acting in a disproportionate or unreasonable way.

The website has a section on interferences or obstructions of members or officers of the House, either overt or covert.

Such interference or obstruction may consist of an assault, molestation, or a threat or other form of intimidation. Such action will be treated as a serious contempt if it occurs in the discharge of the member’s or officer’s duties

In one case, a ministerial adviser made an insulting remark to a member as the member passed him in the Chamber on the way into a division lobby.

The adviser was held to be in contempt for molesting the member in the execution of the member’s duty.

The Speaker has warned members not to allow banter in the Chamber to lapse into verbal intimidation.

Banter that tends towards intimidation of members, particularly if a vote is in progress, may constitute a contempt

And:

Sometimes, fine distinctions must be drawn between conduct that properly seeks to influence members’ views and conduct that amounts to intimidation or coercion. The latter type of conduct may be punished as a contempt and must be distinguished from legitimate forms of persuasion. All members seek to influence their fellow members when they speak in debate.

And when they leave their seats to perform an intimidatory haka?

Let’s wait and see.

Guidance on misconduct in the House is provided:

Any misconduct in the presence of the House or a committee may be held to be a contempt. Such misconduct may take the form of an interruption or disturbance to the proceedings of the House or of one of its committees. For example, a group of people in the public gallery who rose at the beginning of business and recited the prayer that the Speaker was about to read were held to have committed a contempt. But no question of contempt would arise if the Speaker had given permission for a celebratory contribution to be made from the galleries.

And:

Members who conduct themselves in a disorderly way while transacting parliamentary business may be punished for contempt. The penal power of the House exists even though the Standing Orders contain specific procedures for disciplining members for breaches of order. The Standing Orders do not displace the inherent power of the House to discipline members and strangers who cause disruption to its proceedings.

And:

The House may punish members or others on account of their contributions to the House’s deliberations—for example, if they attempt to mislead the House or a committee, or disrupt the orderly conduct of proceedings.

These are among the rafts of rules set out on the Parliamentary website which Waititi imperiously has dismissed as “silly”.

He applied the same adjective- remember? – to the Privileges Committee.

Was it silly for that committee to give him and his fellow rebellious MPs another chance to appear before it?

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.