| When governments become tired and lose their popularity – usually in their third term – they often become desperate to get their way and prone to misusing their power.
This is currently in evidence with the Labour Government’s push to lock in elements of their Three Waters reform programme by sneaking in a rule that says a future Parliament would need 60 per cent of MPs to vote to change the ownership of the new water services. Constitutional legal experts are outraged by a move they say is unparalleled and sets a dangerous new precedent for how governments make law.
The change occurred late on Wednesday night, when Parliament was sitting under urgency, with Labour and the Greens ramming through legislation on their Three Waters reform programme. Out of nowhere, Green MP Eugenie Sage proposed an amendment to the Three Waters legislation that would require future parliaments to achieve a 60 per cent vote in order to privatise the new water entities.
This was slipped in without proper debate, and certainly without the chance for the public to make submissions on this key part of the law. Critics suggest that the Minister of Local Government Nanaia Mahuta arranged with the Green MP to slip the change in at the last minute. Both Mahuta and Sage have since publicly defended the change that Labour and the Greens voted in favour of.
Prime Minister Jacinda Ardern is now under pressure to backtrack on the law change, and today she told RNZ “We’ll discuss that in caucus and take another look at that.”
Why the change is controversial
It’s a core democratic principle that Parliament should be able to make and change laws when they have a majority of support – over 50 per cent of MPs. But this Three Waters decision changes that to that 60 per cent. A future Parliament is therefore bound by the decisions of the current one – which is regarded as unconstitutional by legal scholars.
There are some accepted constitutional exceptions to the 50 per cent rule for changing laws, but these are only for certain laws relating to elections. For example, changing the voting age requires a “super-majority” of 75 per cent of MPs.
The entrenchment of electoral law, requiring a 75 per cent majority to change the way that Parliament is elected, has long been a consensus. It is agreed upon by all parties, because it relates to how politicians are elected. It is accepted that the rules for elections need special protection so that they aren’t simply changed in order to advantage the politicians currently in power.
In the case of Three Waters, the level of 60 per cent was chosen by Labour and the Greens, because that is the amount of votes that they currently have in Parliament. There is no principled argument for it being 60 per cent, and a higher level would have been chosen if Labour and the Greens could have made it higher.
Why the change could set a dangerous precedent
Critics of the Labour-Green law change say it sets a “dangerous precedent”. A number of constitutional law scholars have published an open letter today warning about this. They argue that governments should not use the entrenchment mechanism for trying to lock in their own reforms on standard policy changes.
They warn it could set off a “race to the bottom” in which various left and right governments just entrench the policies that they feel strongly about, and it becomes an anti-democratic game, in which a government tries to tie the hands of successors. Ultimately, it brings the constitution under pressure, and is likely to invite the courts to intervene in Parliamentary matters.
Constitutional expert Andrew Geddis of Otago University writes today that the change is “potentially momentous” for parliamentary governance – with “MPs placing handcuffs on tomorrow’s MPs”. Others have called it “democratic vandalism”.
It’s also worth pointing out that the Government’s Crown Law Office advised Labour against the change, and the Department of Internal Affairs had also stated that entrenchment was “inappropriate” for a law that was not about electoral issues.
Support for the change
Not everyone is criticising the change. Some supporters of Labour and the Greens have come out in favour.
For example, ActionStation’s Max Harris, a scholar of constitutional law, argues that it is entirely reasonable to entrench the Three Waters law, partly citing the need for “proper protection of rights under Te Tiriti o Waitangi”. And he points out that there is “nothing in NZ’s uncodified constitution that says what can and cannot be entrenched”.
The Greens, too, have doubled down on the change. Eugenie Sage has gone on Twitter to defend her move, explaining that entrenchment was necessary because “water is essential to life, so it is of sufficient importance”. She also tweeted that “Officials advised against it but there is no obligation to always take their advice.”
The whole episode should be one of huge concern for the democratically-minded. And the fact that Labour and the Greens don’t see the democratic problems with their law change is alarming. It is also concerning that the opposition parties haven’t picked up the extent of the problem and publicised it.
Ultimately, the growing public outcry will likely be too strong for Labour to ignore. But it also says something that the Government have been so keen to push through such a bad law. This really doesn’t seem like the actions of a government that expects to be in power for very much longer. |
If this outrageous process applies to city/town management of their parks and reserves, then Parliament may be breaking its own law by applying it to the Wellington Town Belt.
I think the WTB Act 2016, and amended 2018, is entrenched legislation, delegating management of the WTB to Wellington City Council. To get this changed, requires a Parliamentary vote with 75% consensus, or a referendum with a 50% or 60% agreement. This hasn’t happened.
As far as I know, unfortunately nobody on the current WCC has the institutional or historical knowledge of these issues. Grant Robertson should; he managed the Wellington Town Belt Act when it was being progressed through Parliament 2015/16.
If in fact Parliament is breaking the law concerning the green belt of our capital city, then the GG should dissolve Parliament and call a snap election.
Many more years of diligent sweat were put into saving and protecting this land, with open and public processes, than the surreptitious way in which water control is being approached now.
The left shooting themselves in the foot again. Why they’re so determined to lose the next election due to Three Waters astounds me. It’s a policy with minimal support, why waste all your political capital on it?
As for this entrenchment, are the left so idiotic that they cannot see that NACT would use this too if it became precedent? If Max Harris and Clint Smith are for something, be against it.
Putting all the political and legal arguments aside it simply comes down to this “is water of suffecient importance for it to be held in public ownership and not privatised?”
The treaty certainly would put it in that category.
Seems to me that the only people who would argue against entrenchment must believe in future privatisation. National and Act must see this as at least a possibilty to be opposing entrenchment.
Maybe there should be a law that specifies those assets that must remain in public ownership.
You can see why Winston does not want to work with this Labour government they just cannot be trusted. I was informed by a Green Party member that Shaw suggested this provision way back when the Waters idea was mooted 2 years ago so why the last minute push to get it through under urgency. Was this another example of releasing a policy late on a Friday hoping no one would notice it
Trevor. Yes it was. Labour and the Greens are as dodgy as each other, Shaw no more a holy little altar boy than Sage a homely earth mother, IMO. Read Jason above.
And Winstone can be trusted aye Trev yeah right
What is wring with trying to ensure that the assets are not able to be privatised? Unless you are planning to sell them I the future, what’s the problem. I thought 1 of the arguments against 3 waters was that it was a road to privatization. Now the government is trying to prevent this and the very same people who were objecting based on possible future sales are crying foul. Politics at its worst.
Phil Because it means profits will go to the controlling Maori authorities who have the final say.
When the left abuse power the right will do the same when they are in power so be careful of what you let through
Reap what you sow Labour.
Hmm. Lot’s of young egos coming through. Now bind together, create cohesion and aim for synchronisity. There’s a surprise along the way (a real one, and it’s super nice). Enjoy!