Te Pāti Māori MPs' expulsions questioned by law expert, former co-leader

A former co-leader of Te Pāti Māori has expressed his sadness and disappointment at the expulsion of two of its MPs.

Te Pāti Māori's National Council has decided to expel Mariameno Kapa-Kingi and Tākuta Ferris, a decision both MPs said was "unconstitutional".

The MPs have vowed to challenge the decision, which one electoral law expert said would hinge on whether the party appropriately followed its constitution, particularly its dispute resolution processes.

Representatives from Kapa-Kingi's electorate Te Tai Tokerau were excluded from voting, following a resolution to 'reset' the electorate executive last month.

The electorate executive in Te Tai Tonga, Ferris' electorate, abstained. Ferris' social media post claimed the Hauraki-Waikato electorate also abstained.

Te Pāti Māori co-leader Debbie Ngarewa-Packer said that still meant the decision was "without opposition".

Former co-leader Te Ururoa Flavell said three electorates out of six voting for expulsion was "not consensus", and he was saddened and disappointed by the outcome.

"There was an element of hope, that the parties would come together and work things out, especially since our constitution talks about decision-making being by consensus, where you work away and try to get to middle ground."

Flavell said members would expect to see "both sides of the story" first, and for the party to follow a "fair, open, and transparent" process.

"It must have been building for some time. And the downside is it's so complicated, involving issues of leadership, issues of who said this and who said that, issues of who did this and who did that," he said.

"And we haven't necessarily got both sides of the story on the table, and the whole issue investigated to at least determine 'OK, what have we got here?' The rhetoric has very much been from one side of the story, and that's disappointing because you sort of think in the spirit of a fair process and transparency, that all parties get a shot to put their case. That should have, could have, happened at the AGM."

Flavell said at a time when Māori were facing big issues and looking for someone to challenge and offer alternatives to what the government was doing, the battle had "overshadowed" things, and the negative reaction made him worry about the next election.

"Everything I've seen or heard, either social media or personally to myself, has been really negative about what's going on. And people just want to say come on, come together, show some example, work together, and let's focus on the big issues that our people face right now."

Ngāti Kahungunu chair Bayden Barber, who as representative of the National Iwi Chairs Forum had sought to get both factions to a hui this week, said Te Pāti Māori was entitled to go down the path it did under its constitution, but maintained there was still merit in meeting face-to-face.

"What we've been hoping and trying to broker between the groups is that hui under our tikanga, on our marae, would be the ideal. It's not the solution, but it's a pathway towards reconciliation. So yeah, so this has put a different slant on the context, totally," he told Midday Report.

What does the party's constitution say?

Ferris and Kapa-Kingi have rejected the decision, with both saying it was "unconstitutional".

Kapa-Kingi has vowed to appeal the decision "in all respects," while according to The Post Ferris was engaging legal counsel.

While the co-leaders said the resolution took effect on Monday, Te Pāti Māori's consitution allowed a member whose membership has been cancelled to appeal the decision at the next national hui.

That hui is set down for 7 December.

University of Otago law professor Andrew Geddis said such an appeal would hinge on whether the party appropriately followed its constitution in expelling the MPs.

The constitution contains a section on dispute resolution, as well as a clause to cancel membership if the council believed that member had ceased to accept or abide by the constitution.

Geddis said a challenge could come if the MPs did not believe the disputes resolution process was properly used.

"They'll be saying, well, if you had a dispute with us or thought we were acting improperly, you should have used the disputes resolution process to bring the dispute in front of our electorate committee, and then take it further if need be, and so on, rather than jumping straight to I guess you would call the nuclear option, just kicking us out with no process at all, using this general power to remove membership," Geddis said.

The co-leaders have not publicly said what the breaches of the constitution were that merited Kapa-Kingi or Ferris' expulsions, only that the constitution had standards of duty, budgetary responsibility, and behaviour, and that the breaches were "serious".

Te Pāti Māori co-leader Rawiri Waititi had "absolute confidence" the party had followed its constitution, and insisted every attempt was made to resolve the disputes before the National Council turned to expulsion.

"We have had many a conversation one-on-one, two-on-one, group MP huihuis, we have had interventions, we have had many, many hui to try and get to the bottom of this, and we have come short of a resolution and we have tried our best," he said.

"When tikanga hasn't been able to do that, then we turn to the kaua."

Waiariki missed out?

Questions have also been raised about consultation in the lead up to the National Council hui.

RNZ has seen emails sent to Te Pāti Māori Waiariki electorate members on Wednesday 5 November, alerting them to a meeting on the afternoon of Sunday 9 November, ahead of the National Council that evening.

"In preparation for this National Council hui, we are wanting to meet with our Waiariki electorate to hui in person," it read.

"We understand the short notice and apologise.

"We hope to see you there."

Another email seen by RNZ stated it was cancelled because Rawiri Waititi was "unavailable" to attend.

On Friday 7 November, a follow-up notice was sent out cancelling the Sunday afternoon meeting.

"It has been great to have been able to connect with some of our branches this week!" it read, before stating the scheduled in-person hui was cancelled.

"We apologise for any invonvenience in cancelling this hui."

On Monday morning, an email went out ahead of the 10am announcement, detailing the decision to remove Ferris and Kapa-Kingi from the party.

"Last night the National Council unanimously decided that Takuta Ferris and Mariameno Kapa Kingi were in breach of the Constitution and therefore decided that the appropriate action is the immediate removal of their memberships from Te Pāti Māori."

It mentioned meeting with all Waiariki branches, despite the in-person hui being cancelled.

"After meeting with all of the Waiariki branches, we wanted to thank you all for the courageous conversations and the unanimous decision to enable our Waiariki Executive to represent Waiariki at the National Council hui held on Sunday, 9th of November."

RNZ understands members are frustrated at missing out on an opportunity to discuss the decisions.

A Te Pāti Māori spokesperson told RNZ all electorate matters were managed by their respective electorate executives.

"In Waiariki, all branches were consulted prior to the National Council hui.

"The proposed in-person hui was cancelled once branches confirmed they would not be attending, as their positions were already clear and formally communicated.

Will the MPs be waka-jumped out?

The next step is for Te Pāti Māori to inform the Speaker that Kapa-Kingi and Ferris are no longer Te Pāti Māori MPs.

The Speaker then tells the House that the MPs are now regarded as independent members.

That then gives the party an opportunity to use the party-hopping, or waka-jumping, legislation to remove them from Parliament entirely.

That would require the party leaders writing to the Speaker of their belief the MPs were disrupting the proportionality of Parliament.

The legislation requires a party to use all of its internal processes first, with Te Pāti Māori's constitution allowing for an appeal at the national hui.

Rawiri Waititi said using the legislation had not been a consideration at this stage, and any consideration would be for the National Council.

Since the law was re-introduced in 2018, it has been used once, with the Green Party deciding to expel Darleen Tana in 2024.

Geddis said the Greens had used a process that went above and beyond their own constitution in ousting Tana.

"The Greens actually gave Darleen Tana more natural justice, more of a chance to be heard than the constitution actually required of them. In this case, Te Pāti Māori seems to have used the quickest, neatest, cleanest way to get rid of these MPs."

In Tana's case, she had already resigned from the party, while Kapa-Kingi and Ferris have been expelled strongly indicating they want to remain in Te Pāti Māori.

"Here, you've got a party that has kicked MPs out, and it's the party's action that is going to distort Parliament's proportionality. And so one of the questions is going to be can you use the party-hopping law against an MP that you have kicked out, thereby distorting proportionality, or do you have to point to something that that MP did that caused you to kick them out and therefore cause the action?" Geddis said.

Who will Labour work with?

Rawiri Waititi said Te Pāti Māori had begun "serious and constructive" conversations with Labour and the Greens.

But Labour leader Chris Hipkins denied that was the case, saying there had been no meetings since September's Tāmaki Makaurau by-election.

While there had been the occasional chat from time to time, including a courtesy call about the expulsion, Hipkins said there had been nothing on any future partnership or any governing arrangement, and re-iterated his stance that Te Pāti Māori needed to sort through its internal issues first.

"I'd like to see Te Pāti Māori, focused on representing the people who voted for them, showing up in Parliament, constructively participating in debates, coming up with some new ideas. I think those are all things that are opportunities available to them."

Hipkins indicated he would not meet with Kapa-Kingi or Ferris either, especially if they were challenging the decision to expel them from the party.

"That's something I'm not getting involved in in any way."

The Prime Minister called Te Pāti Māori a "joke" and also ruled out working with Kapa-Kingi or Ferris.

"To me, it's just a sheer soap opera. I don't want to work with them, I won't be working with the independents, I won't be working with Te Pāti Māori, I'm pretty clear about that."

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