Parliament to consider changing rules following haka - is it a good idea?

Te Pāti Māori MP Hana-Rawhiti Maipa-Clarke was among those to perform a haka, at Parliament, after the first reading of the Treaty Principles Bill. Photo / RNZ

Thomas Coughlan is deputy political editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the Press Gallery since 2018.

OPINION

Hana-Rāwhiti Maipi-Clarke and her colleagues in the debating chamber and the public gallery broke a whole lot of rules last week when they launched into a haka during a vote on the Treaty Principles Bill.

History tends to remember fondly people who break rules in the name of protest. Anti-tour protesters weren’t allowed to be on the pitch in Hamilton in 1981, and Rosa Parks, according to the rules, should really have given up her seat on the bus in 1955.

Rules are broken in Parliament all the time - occasionally by people who go on to strictly enforce them (former Speaker Tervor Mallard was, in his youth, hauled out of the public gallery during protesting an SIS bill).

Breaking rules is often the point of protest. The fact rules were broken not just by Maipi-Clarke, her colleagues in Te Pāti Māori, and MPs in the Greens and Labour, made a point about the strength of feeling against this bill.

Parliament passes laws all the time. Many of those laws are judged to negatively affect Māori or potentially breach the Treaty. They’re debated, often with great emotion, and voted through without any drama - even from Te Pāti Māori, who do, it’s true, have a flair for theatrics which can be disruptive.

The fact that did not occur on Thursday is sort of the point. The Opposition parties find the Treaty Principles Bill to be such an affront to the constitutional fabric it was not enough to simply vote against it - it required a haka challenging the Act Party, the Government, and perhaps, by disrupting the vote, even Parliament itself.

The Treaty Principles Bill is consequential. That we can all agree on. It shouldn’t have surprised anyone that such a consequential bill was met with consequential protest both in the chamber and outside.

Nevertheless, half of Parliament has been in quiet uproar since Thursday. As the video of the haka went round the world, many MPs, sticklers for rules at the best of times, brooded on how Parliament would respond.

MPs from the governing parties Suze Redmayne, Todd Stephenson and Shane Jones wrote to Speaker Gerry Brownlee complaining about events on Thursday. The MPs subject to those complaints have until this Thursday to respond. One MP almost certain to be in trouble is Te Pāti Māori co-leader Debbie Ngarewa-Packer who, in getting so close to Act Leader David Seymour, certainly crossed a line.

None of these MPs are likely to be concerned about punishment.

Part of the point of breaking rules in protest is the martyrdom enjoyed by suffering punishment for them. The problem in Parliament is that matyrdom confers great gains upon an MP at relatively low cost.

After Brownlee told Parliament on Tuesday that the process of investigating whether the MPs had breached privilege had begun, Jones got to his feet and asked the Speaker to consider whether the rules themselves were enough to contain these types of protest and protect the “essence of our democracy”.

He asked the Speaker to consider convening a group of senior MPs to “consider whether the Standing Orders are now incapable of dealing with the event that took place last week”.

Jones’ remarks suggested it wasn’t the rules themselves that were at fault, but the “deterrence” and “range of censure options” available to the House for enforcing them - punishments, in other words.

He was joined in this by Seymour (despite tensions between Act and NZ First running high over the Treaty Principles Bill) who warned that the rise of social media had “changed the incentives for people’s behaviour around the rules of Parliament”.

Both MPs were giving voice to a view that has been shared by several MPs quietly over the weekend. While many people take no issue with this particular haka on this particular bill (though some certainly do), almost everyone can see the risk if power of the Standing Orders are eroded through repeated rule breaches.

Seymour is right that social media creates perverse incentives for MPs when it comes to following the rules.

The worst Maipi-Clarke will suffer from being “named and suspended” as a result of her protest is a temporary docking of her considerable salary. Likewise, the MPs almost certain to be found in contempt of Parliament for the haka are likely to suffer nothing consequential.

The maximum fine for contempt of Parliament is $1000 - not much for an MP.

These relatively light punishments pale in comparison to what Maipi-Clarke and Te Pāti Māori are likely to gain from the protest, which is international attention, donations and increased interest from voters - the stuff most political parties would kill for.

The fear is that these rather meagre punishments pale in comparison to the considerable benefits reaped on social media by theatrical rule breaking, incentivising a spiral of bad behaviour that could disrupt the functioning of Parliament.

An aerial view of Hīkoi Mo te Tiriti in front of Parliament. Photo / Murdoch Ngahou

MPs supporting Jones and Seymour want to consider whether something can be done to change this balance, ensuring MPs and parties face punishments that actually disincentivise them from breaking the rules in the first place.

We should take this seriously. Parliament’s Standing Orders - the rules of Parliament - are not archaic. They are changed and updated each Parliament to move with the times. Every party has the opportunity every term to change rules they think are no longer up to date.

Te Pāti Māori was represented on the committee that reviewed and approved the current lot last term - they could have raised an objection when the most recent changes to standing orders were put to the House and adopted at the end of the last Parliament. Particularly problematic Standing Orders can be changed and deleted at any time, should MPs think it necessary.

The Standing Orders accommodate haka in many circumstances. They even accommodate haka from the gallery, provided there is warning. Haka are refreshingly common in Parliament.

The Standing Orders are an exercise in compromise. MPs work collaboratively to come up with rules that are both strict enough and flexible enough to allow the range of rules expressed in Parliament to be given a fair hearing. They’re not a straitjacket. Quite the opposite. The rules ensure that Parliament runs smoothly enough that every MP and every party has a voice, and the minority is not drowned out by the majority.

NZ First MP Shane Jones wants to consider greater punishments. Photo / Mark Mitchell

The risk with Te Pāti Māori’s protest is that this breaks down and the democratic intent of the standing orders gives way to a system in which the party is given power in proportion to its chutzpah, rather than the number of voters who sent it to Parliament. The risk should be taken seriously. In general, we are lucky to have a Parliament that can be combative and co-operative in a single day. Not every other legislature is so fortunate.

Te Pāti Māori, though the main culprit in the current Parliament, shouldn’t be singled out either. Jones’ own leader, Winton Peters has been “named” (one of Parliament’s most serious punishments) no fewer than four times, the most of any current MP, and knows too well that getting in trouble with Parliament is often worth the publicity it generates.

Social media fears aren’t new either. In 2019 (when Te Pāti Māori weren’t even in Parliament) Speaker Trevor Mallard tried to ban several ads that used Parliament TV footage in a way he found misleading.

The episode began a broader discussion around MPs performing stunts in the House not to enliven debate, but to be clipped up and shared on social media. MPs aren’t fools. They realise that Parliamentary debate has not (and hasn’t been for a long time) about winning MPs around to your view, but they rightly feared the functioning of the House would break down if parties began to see Parliament primarily as a theatre of content generation.

Brownlee is taking things slowly. Instead of convening a special group of senior MPs, he told Parliament he would refer the matter to the Standing Orders committee as soon as the next sitting week and charge them with working out “exactly what might be a better set of rules … should events like this occur in the future”.

It might be the case that Parliament simply needs to start taking a harder line on its MPs. The current rules allow MPs to lose a substantial portion of their salary should they be suspended from the House (as Maipi-Clarke was). The problem is MPs are never really suspended long enough for this to matter. Perhaps the House should suspend more MPs for longer. In the UK, the House of Commons’ privileges committee recommended suspending one of its MPs, Boris Johnsons, for 90 day, causing him to resign.

MPs should do this with their eyes open.

They’re right to be concerned that social media might turn Parliament into a content generation factory, and that punishments are not currently proportionate with rule breaches - but there is another proportionality at play here too; any Parliament that takes it upon itself to venture into the deepest parts of our constitution should expect proportionate acts of protest.