Te Pāti Māori MPs' absence from Privileges Committee won't stop hearing - law expert

* This story has been corrected to clarify the powers of the Privileges Committee

A law professor says the absence of three Te Pāti Māori MPs from a Privileges Committee hearing will not stop the committee from having a full hearing and making a decision, but it shows the "stand-off" between the tikanga of Parliament and tikanga Māori.

MPs Rawiri Waititi, Debbie Ngarewa-Packer, and Hana-Rawhiti Maipi-Clarke have refused to attend their hearings before the committee, saying they are being denied natural justice, and calling it a "kangaroo court".

The three, along with Labour's Peeni Henare, were referred to the committee for their involvement in a haka last November at the first reading of the Treaty Principles Bill.

They claim their request for a joint hearing has been denied, that the committee has prevented counsel from making essential submissions on tikanga and is refusing to hear from a tikanga expert, and has set a hearing date without accommodating for the MPs' schedules or their choice of senior counsel.

They also said the characterisation of the haka as "disruptive and disorderly" undermined the significance of tikanga.

"What we're confronting here is the domination of one side of the House, the domination of one culture consistently dismissing the Māori view, Māori tikanga view. If they wanted to hear our view, then we needed to know we were not going to be walking into a predetermined decision," Ngarewa-Packer said.

Te Pāti Māori said the committee did not want to hear how Māori felt about what tikanga should be in the House.

"Natural justice should allow us to get the counsel we deserve, also to get the experts that we deserve to be part of that particular kōrerō, because what's in question here is our tikanga," Waititi said.

Waititi said the ultimate consequence was "when the people decide that what you did was probably not the way they wanted us to do it, but that's not the feeling we're getting out there".

Tikanga vs Standing Orders

University of Otago law professor Andrew Geddis said Parliament's Standing Orders did not allow for counsel to present evidence on tikanga.

"The rules of the house say that you can have a lawyer come along, but the lawyer can only talk about procedure, how the committee is operating, and the way the committee is going to carry out its hearing. They can't provide substantive evidence, that's for the witnesses to provide that substantive evidence," he said.

"So the expectation would be that Te Pāti Māori MPs would lead evidence, or give their account of what tikanga requires. So Te Pāti Māori are right, in that they're unable to bring in experts to give their point of view. The committee, however, probably is right in saying, 'well, sorry, our procedures at the minute just don't allow for that'. So that's where we've got this kind of stand off."

Geddis said he believed Te Pāti Māori was pointing out the irony in that this was meant to be a hearing into whether their actions were consistent with tikanga and whether those actions should be permitted in the context of Parliamentary debate, but the decision was being made through a process that was "not very tikanga consistent".

"So from the perspective of Te Pāti Māori, this would seem to be just an extension of the problem that they're trying to raise. And from their point of view, if the decision-making body is going to act in that way, I think they're saying 'we're just not going to be a part of this process'.

"Now, that's their right. They do not have to turn up to give their side of the story. The problem is, by not doing so, the committee will still make a decision that will be made without them."

Earlier this year, fellow Te Pāti Māori MP Tākuta Ferris did not attend his Privileges Committee hearing, although he did provide the committee with a written submission.

The committee found he deliberately misled the House for denying he called other MPs "liars", and Ferris apologised.

This time, Te Pāti Māori is also claiming a 'double jeopardy' concern, as Maipi-Clarke was already sanctioned by the House for her involvement in the haka.

Geddis said Maipi-Clarke's 'naming' in the House was an on-the-spot decision by the Speaker, in order to stop a disturbance and take action against the person causing it.

But he said the House could decide if MPs who had been named should face further punishment, and that was where the Privileges Committee came in.

"So, the idea of double jeopardy, no it doesn't really work in quite the way I think Te Pāti Māori is pointing out here."

Peeni Henare has already appeared before the committee, and has apologised to the House, after the committee found he acted in a "disorderly" way, but his actions did not amount to contempt.

Labour leader Chris Hipkins said he suspected Henare took the attitude that "he just wanted to get it over and done with" but Te Pāti Māori was entitled to take a different approach.

"Some of the issues that they've raised seemed pretty fair to me, that they want to be able to put the haka they performed in context, they want to be able to talk about tikanga, and I think that's appropriate," Hipkins said.

"I think one of the things Parliament needs to grapple with is the circumstances under which haka are encouraged and which circumstances they're not. This is actually the first time Parliament's had that debate."

A question of 'how close'

Geddis said it was possible different decisions would be made for each of the three MPs, depending on the differing level of "confrontation" towards other MPs.

A touchstone, he said, could be the committee's decision around Green MP Julie Anne Genter.

Last year, Genter was found in contempt for walking over to National's Matt Doocey, waving a document in his face, and yelling at him.

The committee censured Genter, and she apologised.

"The question is whether the haka done directly to an MP, directly in front of them, is what Julie Anne Genter did, which was found to be a contempt, or whether it's a disorderly behavior. Like, this creates disorder in the house, but it doesn't amount to contempt, because it doesn't have that direct physical altercation with another MP. So, this may well come down to questions of how close an individual MP got to another MP, and those sorts of questions," Geddis said.

What punishments could be handed down?

If an MP has been found in contempt, the Privileges Committee has a number of sanctions it can recommend, and the House can decide whether or not to impose them.

Most commonly, the committee will recommend the MP be censured, and that they apologise to the House.

It can also recommend the MP is suspended, fined up to $1000, or even imprisoned for the remainder of the Parliamentary term - though the latter has never been resorted to.

"One of the practical problems that's raised is it's just not clear where you'd actually imprison the person. So it's a power to imprison, but it's not clear where Parliament could legally place that person. Maybe they'd have to find a broom closet or something in the House to put them in," Geddis said.

He said imprisonment, while it had never been done and probably would never be done, was why people kept calling it the "powerful" Privileges Committee.

The Speaker has the power to summon people to Parliament. This would be served through the Serjeant-at-Arms, who ensures the summons is complied with.

But the chair of the committee, Judith Collins, laughed off a question over whether the Serjeant-at-Arms would be employed to bring the MPs to the committee.

Ngarewa-Packer was similarly amused by the question.

"I'd like to see them try," she said.

Rawiri Waiti said he was "not to worried" about the consequences of not attending the hearing.

Judith Collins would not comment on Te Pāti Māori's refusal to attend the hearing, as talking about what was in front of the Privileges Committee would itself be a breach of privilege.

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