Dunne's Weekly: An Issue No-one Can Afford To Lose

A tense and intriguing political chess game is being played out in Parliament's Privileges Committee at present. It is a game none of those involved can afford to lose, yet inevitably someone will.

On the face of it, the issue at hand is whether the spontaneous haka performed by three Te Pati Māori MPs during the vote on the First Reading of the Treaty Principles Bill last year was a breach of what is quaintly referred to as Parliamentary Privilege.

The concept of Parliamentary Privilege dates back hundreds of years and devolves from the procedures of Britain’s House of Commons devised to enable Members to speak freely in Parliament without fear of legal consequences or loss of freedoms (or their heads at that time). Anyone who inhibits in any way Members of Parliament from freely expressing their opinions in Parliament or going about their normal Parliamentary business is in breach of Parliamentary Privilege and is therefore subject to the judgement of the Privileges Committee – effectively Parliament’s court – for their actions.

In this instance, the allegation before the Committee is that by performing a haka while the vote was being taken on the Treaty Principles Bill, the Te Pati Māori MPs were disrupting the free expression of Parliament’s views on the Bill at that time and were therefore breaching Privilege.

However, the issue now runs more deeply than that. Te Pati Māori’s ill-informed dismissal of what it calls Parliament’s “silly little rules” about Privilege, potentially poses an even greater challenge to the system. They say their actions highlight Parliament’s lack of recognition of tikanga, and that simply must change.

On the other hand, Parliament’s Speaker Gerry Brownlee in a somewhat rare and unusual intervention on a matter still under consideration by the Privileges Committee has described Te Pati Māori’s position as “complete nonsense.” He says a distinction must be drawn between Parliament’s rules and procedures and upholding tikanga.

Brownlee says separate work is already underway through the cross-party Standing Orders Committee to see how tikanga can be more fully integrated into Parliament’s rules, with a report due before the end of this term of Parliament. For that reason, he dismisses Te Pati Māori’s haka actions as “grandstanding”.

But Te Pati Māori rejects the notion that the broader work around tikanga should be treated separately from the haka protest. According to co-leader Debbie Ngarewa-Packer the question of tikanga was central to the three MPs’ decision to perform the haka. Therefore, she argues, they must stand up to the Privileges Committee, which she fears wants to “criminalise the haka and criminalise our tikanga” by finding against them.

For its part, the Privileges Committee will want to steer a careful course. The Committee is made up of senior MPs from all parties and is chaired by the Attorney-General Judith Collins who is also a KC. Its focus will be on whether the three MPs’ actions breached Parliamentary Privilege, and if it finds so, what sanctions should be imposed on them. The committee is unlikely to delve too deeply into the wider question of tikanga, leaving that to the Standing Orders committee work already underway.

Should the committee conclude the three MPs have breached Privilege, the delicate issue will be what sanction it recommends Parliament should impose. For the sake of Parliament’s integrity and credibility any penalty should be significant – it cannot look like a slap with a wet bus ticket. However, at the same time, it cannot be unreasonable, which would simply inflame the current situation further and embolden Te Pati Māori’s line that it is the victim of a repressive, racist system. In short, Collins and her committee are going to have to apply a judgment of Solomon.

What is at stake here is the credibility of the body of Parliamentary practice and the protections of Privilege built up over hundreds of years. Therefore, the Privileges Committee cannot act in a way that could be interpreted as arbitrarily weakening that long-standing strong tradition for contemporary political convenience. Should it do so, the institution of Parliament will be the loser.

Ironically, the situation is a little easier for Te Pati Māori. An adverse finding from the Privileges Committee would certainly be a blow to the Party’s credibility to work within the system (in the same way as is its ongoing failure to provide proper accounts to the Electoral Commission in breach of the law). At the same time, however, it would confirm Te Pati Māori’s narrative that the whole system is geared against them, and that in Ngarewa-Packer’s words “This is the cost of standing up. We’ve had this before, and, you know, we just have to pay it again.”

In the end, the issue is less about the Treaty Principles Bill haka, which is sideshow puffery, than it is about achieving a reasonable balance between Parliament’s historical traditions and contemporary tikanga. That will only be achieved through constructive engagement by all sides, not more of the game-playing seen so far.

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