Legal experts say that the way the government went about keeping New Zealand’s water infrastructure in public hands is “dangerous” for the future of democracy in Aotearoa.
Last week, the government presented its most recent round of Three Waters reforms to the legislature with a previously unseen amendment from Green MP Eugenie Sage.
The amendment calls for a 60 per cent majority of MPs to change or repeal it.
Bills passed in parliament require a majority of 50 per cent to pass, repeal or amend, with exceptions for some laws that deal with how elections are held, because those are seen as needing support from both major parties.
Passing political legislation requiring a higher threshold than 50 per cent effectively breaks democracy according to Constitutional lawyer Dr Dean Knight, because subsequent governments despite being democratically elected, might not be able to get rid of them.
“The real danger is it opens up possibilities of entrenchment on other matters. It’s not beyond imagination that a National-ACT Government may in the future decide to entrench a three strikes law on the basis that being safe is important policy.” Knight said.
“We start this set of shenanigans about using it for those types of policy matters that don’t have that widespread support. We get the sort of game playing which is unlikely to end well.”
Sage’s amendment was about preventing New Zealand’s water infrastructure being sold to private enterprise. Sage has argued that it wouldn’t set a precedent, but provided no legal reasoning, or evidence to that effect.
National has branded the government move ‘skulduggery’ with Justice Spokesperson Paul Goldsmith slamming the fact the bill was passed under urgency.
“Entrenched provisions are used rarely in New Zealand for good reason and until now they have been reserved for core constitutional issues like parts of the Electoral Act,” Mr Goldsmith says.
“Labour and the Greens have now colluded to entrench in law a contentious policy position, without any real debate and while the House was sitting under urgency.”
National and ACT have committed to repealing Three Waters at the next election, while they say they aren’t critiquing the content of the amendment, the precedent setting 60 per cent threshold should go, according to Local government spokesperson Simon Watts.
“Labour and the Greens need to immediately walk this move back. When the House resumes in December, National will move to recommit the Water Services Entities Bill back to the committee of the Whole House Stage to excise this unconstitutional and undemocratic clause. We urge the government to vote for it and for cool heads to prevail.” Watts said.
“It’s clearly nonsense. If every Government which has a working majority brings in some sort of super majority requirement to overturn their political decision-making, the system very quickly would fall over.” Goldsmith added.
A spokesperson for local government Minister Nanaia Mahuta said the entrenchment provision from Sage had been set at a ‘lower level’ than was the case for constitutional matters like voting which requires a 75 per cent majority.
The core question over the constitutional ramifications of such a move went unanswered with Mahuta’s rep saying public water ownership was a ‘bottom line’.
“The intent of the scope of the entrenchment protection from the Greens is narrowly confined to privatisation of water assets, not the whole bill.” the representative said.
Three Waters is expected to be passed into law when Parliament returns for a final two weeks in December.