Rachel Smalley: Three Waters - Overturning 'entrenched' laws is much harder to do

Three Waters – it's never far from the headlines, and it reared its head again over the weekend with some of our learned legal brains raising concerns about a constitutional issue that flew under the radar at parliament last week.

And that issue is the Government seeking to entrench a provision in the legislation that would make it difficult for any future government to overturn an aspect of these water reforms.

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Now, the key word here is 'entrench'.

If you entrench a provision in law, it is quite challenging for future governments to change it, or remove that entrenchment. You would need a sizeable majority in Parliament to do so.

Most of the time, the government of the day will make laws knowing that future governments may overturn them or, in effect, undo them. That's how it is in New Zealand. We have a flexible constitution and that's important.

Edward Willis -- he teaches public law at Auckland University – over the weekend, he said every constitution needs to strike a balance between flexibility and stability. And New Zealand's constitution is quite flexible. That's important for us – for you and I, the public - because if we don't like a policy that has been introduced by a government and an opposition party says they'll overturn it, then you can vote out the government, and the newly elected party can do what it promised to do – and it can step in, and overturn the law or policy.

If something is 'entrenched' in law, that is much harder to do.

The issue we're talking about here is about the ownership of water. And Labour and Greens last week came together to make it more difficult for any future government to privatise water. The issue here isn't whether you or I agree on the future privatization of water – or not – it's the way the government and the Greens are seeking to 'entrench' this issue, which is not in the spirit of our flexible constitution.

There's a good piece in The Spinoff by Andrew Geddis – he really buries down into this too.

He talks about how our constitution provides for democratic accountability. We elect a government, we give them the mandate to make laws and govern how they see fit, and then you hold them to account at the next election. Like I said before if you don't like what they've done, then you can give them the flick, and those laws can be overturned.

Entrenchment makes that difficult. We do entrench some legislative provisions – such as how our elections work, and how we vote, and that's for good reason. Otherwise, if these provisions weren't entrenched, the government of the day could decide that it might not hold an election, or it might change the way we vote for example. So you entrench important aspects of our constitution. But not aspects of a policy.

Now, remember, the issue here isn't about whether you or I agree on the potential future privatisation of water. The issue is why the government, led by the Greens on this issue, is trying to entrench its policy position into our legislation and make it very difficult to overturn.

You will hear more on this issue this week. I suspect the government will back peddle on it, but the Greens will bed in. However, this is a really challenging issue. Three Waters remains deeply unpopular publicly, and so to entrench one aspect of it into law that will be challenging to reverse, is going to cause quite an outcry.

And, on this issue, it should. This is not the way New Zealand governments typically function. And, as our legal experts said, we should only ever entrench what is absolutely essential.

New Zealand must maintain a flexible constitution because that gives us all faith and trust in the government of the day to be acting in the very best interests of democracy.

Rachel Smalley has spent more than two decades working across all media platforms – digital, television, radio and print. This article was first published HERE