Law Society blinkered but Labour don’t know how to fight for us.

So the Law Society says that protecting our water assets to stay in New Zealand ownership via entrenchment is ‘undemocratic’. And entrenchment  ‘proposes to bind the hands of future governments on a contestable policy decision.’ 
But the sale of our nations assets by one government into private control, so the assets are lost forever is fine? Somehow that doesn’t bind the hands of future governments on a contestable policy decision? What ivory tower do these people live in? But they might say in a snotty voice, ‘Oh the government can buy the assets back.’ Yeah right. Nice theory but try finding the dosh for that. Asset sales is a 100% constraint on all future governments. Not a 60% vote constraint. Which if you engage with an opposition on favourable terms you might be able to attain.
And back in the real world, a key feature of National governments has been to try and constrain, for political purposes, potential incoming Labour governments on contestable policy decisions. They delay essential infrastructure spends. e.g.  Labour buying for defence, e.g. planes, frigates. National massively underinvested in health making it harder to expand it. National bought cheap lousy Interislander ferries.  It just goes on. 
[Concession – Helen Clarke successfully invested in highly popular roading around Auckland; then National went went full bore on roads to try and take that mantle off Labour. They looked at what got the lights].
But why do National try to constrain incoming Labour governments? Because Labour could create new entitlements, like better: mental health care, benefits, paid parental leave, education. All putting pressure on raising taxes in future but more importantly National want to stop a Labour political marketing platform – that they can do things. National want to constrain Labour financially to reduce their choices to make contestable policy decision. And that will constrain their appeal politically.  
The Law Societies is blinkered about constraints. They are creating an artificial boundary on constraint in a ‘parliamentary definition’ a nice legal subset they they feel more comfortable pontificating within.  They don’t think about the messy reality of life, the economy and society and the fact that constraints are everywhere and those other constraints, especially financial, completely undermine the effectiveness of that parliamentary definition that they so lovingly want to protect.  The law society has separated itself from a consideration of reality and has therefore taken a political side with a strong position.
More concerning, the Law Society said entrenchment is ‘undemocratic’. But entrenchment is okay for ‘legal’ democracy. Okay, I believe in constitutional democracy rule. Democracy is foundational to a better economy and society. And I assume they mean entrenchment is not the majority rules, the 51%. 
But entranchment around ownership of a significant natural asset causes almost no negative impact on democracy. By comparison, consider how we understand freedom of speech.  Privately owned media (is supposedly independent) — is considered by many essential to democracy. But private ownership of the media has been a massive constraint on freedom of speech. Many views were/are simply not reported or not reported fairly because private media did not like those views and have editorial positions.  The ability to access freedom of speech is limited by access to media reporting. And wealth allows access.
Currently in the private media, sensationalism, partisanship and conflict is now favoured in order to draw audiences and sell, sell, sell.  Thus balance and respect is lowered by private media and this is now reflected in social media. The profit motive, the need to make money is pushing society to extremes. And somehow private media and the profit motive is commonly seen as good for democracy. But entrenching is somehow bad for democracy on this point of ownership of our New Zealand water assets! And its an economic asset critical to our economy. Somehow New Zealand can’t cope with another point in our democracy that might provide an ever so slight constraint on our democracy. 
And let’s think about that ‘undemocratic’ inconsistency. Who is impacted?  The Law Society is saying the possibility of selling assets into private ownership is critical to democracy? It’s ‘undemocratic’ to have that choice constrained to 60%. But they will say no we are defending the principle that a democractic choice is 51% and can’t be constrained. Really? Really. The reality is the Law Society is effectively protecting a bunch of local rich peoples’ with hopes to try and sell off our fundamental assets for gain or profit. Some rich will say, ‘Our very thin share market needs more companies listed for investment purposes so we can make money. And if we can make even more money and sell those assets to overseas investors that fine. What’s good for us is good for New Zealand.’ And history shows those water assets will eventually be sold overseas and then closed out of our sharemarket because that is what has happened time and again; and that is why we have a thin investment sharemarket.  
And can’t our legal, lawful and democratically elected representatives make decisions on entrenchment around such significant issues as ownership of our natural resources for the benefit of our economy and all our people? And somehow that foundational to our society and democractic decision is ‘undemocratic’. Really? The Law Society is favouring an ephemeral right to choice to sell over a real retention of a benefit to our society and economy. They were blinkered and did not look at the substance of what was being entrenched and the reality of who they were providing the choice to sell to, in a democratic society.
And of course quite rightly, we have civil rights, that protect the individual and constrain the majority from damaging the individual. We have courts that can constrain the majority. These are part of democracy and are clearly democratic; but they constrain democracy so it is not an absolute. Democracy restrains democracy from being tyranny by the majority. And the current risk to democracy is tyranny by the rich minority. But the Law Society were blinkered to that.
And the Law Society was further blinkered. They didn’t see the wood for the trees. The entrenchment cat has been out of the bag for sometime. It is easy to predict that National will introduce some entrenchment legislation for politcal purposes in the not too distant future e.g., restrict ability to collect union dues, or law and order 3 strikes could be with 75% to change it. They just won’t introduce it under urgency in the SOP stage. Labour backing down does nothing to stop it coming up in future.
The fundamental problem the Law Society missed is that the real debate is not entrenchment but the desperate need to have a written constitution to secure civil rights and prevent tyrannies. Tyrannies like; political parties campaigning on one set of policies and getting in and acting like dictators by doing something completely different. Or small third parties holding democracy hostage to their whims, or pulling politics into extremist positions. Or government being paralysed by a lack of consensus. Or tyranny by the rich.
Entrenchment is a sideshow with the Law Society prancing around in it taking a political side. And in our adversarial court system we know lawyers as a whole are only right about half the time. They got it badly wrong this time. I don’t want these clowns involved in developing our desperately needed written constitution. For gods sake Labour if you can’t grow cojones on entrenchment at least do it on a written constitution.


  1. Written constitutions in societies like ours are consensus documents. So they can’t do the things that Stephen wants, which seems to be the entrenchment of the policies of one side of the political debate. In essence constitutions set out the structure and powers of the fundamental institutions of the nation, and the rights of the citizens. In New Zealand’s case also the role of the Treaty.

    Beyond that everything is contestable, including privatisation of assets. For instance the Mixed Ownership Model was the central issue manifesto issue in the 2011 election. National won, and implemented the policy that they had campaigned on.

    • My comment was predicated on New Zealand getting a written constitution. Such a document can only deal with the fundamentals, the things we basically all agree on. Beyond that, you are into the contested, the things that political parties have different views on, and upon which elections are fought.
      While in MMP the range of parties is broader than under FPP, the government are invariably more moderate than the edges of the respective coalition. For instance ACT or the Greens will only get a relatively modest share of the policies of the government they form part of. The things they want could never be part of a constitution, except to the extent they are agreeing with a broad consensus.

    • According to James Madison who helped develop the US constitution. Constitutions should be update and changed to the circumstances on a regular basis.
      What you just said about it can’t be done, shows your view of a constitution is an outdated 18 or 19 century concept. Using the US example; they conceived of their constitution as a President instead of a king, A senate in place of an aristocracy, A congress for a parliament. They were very scared of the masses getting into power and doing too much. It’s barely a democracy that makes sense today. We should not follow old 18 and 19 century models. Their constitution was designed to fix the problems that they perceived they had in their day.
      Your comments indicate your education in Constitution and your resulting lack of mental flexibility.
      Your ideas are out of date.

      • Well, Chile has just tried the sort of constitution you seem to want. Overloaded it with all sorts of aspirations, instead of sticking to the fundamentals of governmental structure and power along with the basic rights of citizens.
        It proved to be too much. The voters rejected it. The new constitution will now be much more trimmed down. Traditional perhaps.
        Given that a full written constitution for New Zealand would probably need an affirmative vote in a referendum, it will necessarily be a constitution of the type that I have indicated.

      • that’s why gun ownership is an amendment in the US and despite the bleating of rightards is not written in stone and can be changed…prohibition another amendment was…now if yanks choose to continue killing each other that’s a different issue.

  2. I agree completely. This is why I disagree with the law society that what is and isn’t a public asset isn’t a constitutional issue: the nature of our national identity and the rules which protect it are very much constitutional issues.

    What disturbs me greatly is Labour have effectively bluffed just to shift the overton window on contentious law rushed through urgancy. Both water and co-governance are constitutional issues, and they’re being treated like merely a football.

    I agree that we need a written constitution. Ideally one approved by public referendum, with a supermajority. But is the public ready to have that discussion, and will public media be any more helpful to get us there than the private media?

    I’m not holding my breath.

  3. The 3 waters legislation does not confer ownership of water to the state. It confers ownership of the “plumbing” that collects, stores and distributes water. You cannot “own” water. It falls free from the sky after the sun has done the magic to heat the sea , give rise to cloud bearing moisture that cools and drop over our land. At what point can anyone “own” water? When in the clouds? When in the sea? When the cloud is over the land? You can only control the plumbing, not the water.

    Unless the written constitution is based on Liberté, Egalité, Fraternité, you are never going to see one in New Zealand. The Treaty Of Waitangi cannot form a basis of a constitution as it does not espouse the three fundamentals that a constitution (able to be agreed upon by referendum and a super majority) the public desires.

    But it would be interesting to see Labour put forward He Puapua as the starting point for their interpretation of a written constitution. Then going into a future election with that race based constitution.

    Maybe that is why the He Puapua report has been quietly shelved? Untenable?

    • The concept of ownership is philosophical, any one or thing can own any one or thing if you want it to.

      Collectively the planet owns it’s water, and the climate is the plumbing. Acknowledging that and managing it responsibly for all humanity seems far beyond humans to organise, however.

  4. Stephen Minto, NZ no.1 wannabe Lawyer. Let’s just make-up-the-rules-as-we-go in Parliament. An anything goes approach is a sure way to disagreement and chaos. That’s why we have a legal system and Parliamentary protocols. And you just want to throw them out the door? Get real and pull your head in. There is a day of reckoning coming for this government and it can’t be soon enough.

  5. The Law Society is worried about an entrenchment provision, but it seems isn’t worried about baking racism into our society.
    Go figure!

  6. Mr. Minto seems to have lost sight of the fact that iwi are now corporations with business interests. As a result, the Te Mana o te Wai provision giving iwi control of decision-making means that Three/Five Waters IS privatization of our waters.

    • Reply to Pope. Hi, The treaty was written by the english and it quite clearly gives property rights to Maori. But those rights were largely trampled upon. But 3 waters now recognises Maori property rights. So if you had a car stolen and it was found later; you would expect it to be returned to you. That is not a purpose for, or an act of privatisation. You already owned it. Same with Maori. People like you are getting wound up on inaccuracies

  7. Labour hasn’t fought for us in a long time, they’ve fought for US interests in Iraq & Afghanistan, but not for us.

  8. I stopped reading after the 3rd paragraph, seemed overly cynical.

    Labour have unfortunately butchered this, just like nearly everything else they’ve put their hands on.
    Jacinda can’t even tell the truth around how they came to vote for it.
    Last week she didn’t know about it. This week she chaired the caucus meeting where it was debated. And most importantly the meeting was before she claimed to know nothing!

  9. “Tyrannies like; political parties campaigning on one set of policies and getting in and acting like dictators by doing something completely different”

    Like I voted Labour but didnt vote for Rogernomics.
    Like I voted Labour but didnt vote for 3 Waters.

        • You’d be like my ex father-in-law. Him that lied about his age, enlisted as a medic in the 2nd WW, did the whole Egypt thing, then returned to loyally support Labour. UNTIL then 1984 betrayal.
          I’ve finally seen the light. They don’t need encouraging. They didn’t even have the decency to set up their own party – far easier to hijack the one they were in.

  10. I agree that the debate on entrenchment completely overlooks the other side of the coin – that once a state asset is sold, the prospects of ever getting it back are far more remote than the prospects of a government getting a 60%+ supermajority vote to sell it in the first place. Without any entrenchment at all, the deck is stacked well and truly in favour of long-term privitisation.

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