Monday, November 28, 2022

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.

           Click image to listen

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


Barend Vlaardingerbroek said...

This is what happens when you DON'T have a Constitution or an upper house in parliament. Akin to the UK, NZ has what may be called a 'small-c constitution' made up of various traditions and understandings but there is no document that is labelled 'Constitution' (big C). Having only a lower house moreover means they can shove it through if they have the numbers that day. The NZ 'constitution' is as weak as water and does not protect us from this kind of manipulation.

Anonymous said...

Maybe so Barend, but I'd sooner contemplate this current problem, than the thought of NZ entering a new constitution at this present 'woke' time, which would only embed division for evermore. Maybe in a decade or three, once we've grown up and realised the folly of our actions?

AlanG said...

Interesting on 6.00 One News tonight - no mention of this debacle or Jacinda's climb down on it. Ten minutes on the dairy protest, long articles on China protests and flooding in Italy but nothing on what should be seen as a massive scandal. Who is in charge of the news content?

SandyF said...

The Labour/Green government bought off and muzzled the "media" with a $55 million+ "bribe" (in the guise of helping to maintain and "free press). The media is now obliged to preach the party line, and bury any opposition to it. Have a close look at the conditions of the mega million $ media grant.

To all: this entrenchment of a part of the bill is all about making it very difficult for the next govt (which won't be Labour/Green) to repeal this racist, anti-democratic bill which essentially gives control of ALL NZ water to the iwi Maori elite (exactly what is promised in He Puapua. Only Maori are allowed to make these "statements" which the "water entities" MUST give effect to. That is control by stealth.

Steve Ellis said...

To AlanG - the answer to your your last comment is - Ardern's administration. This administration has paid off the the MSM and totally corrupted The Fourth Estate, such as it exists today in New Zealand. Those Fourth Estate accompanists are now forever a stain on New Zealand's democratic history.
Steve Ellis

Anonymous said...

What is seemingly never mentioned is that this a privatisation of water in NZ. It is just bening privatised to a select group of politically astute activists, politicians and treatyists.

Labour makes claims that local authorities will continue to own the water infrastructure and their communities will continue to have accountability and say in the management of them but this is clearly not factual.

Clause 166 confirms the fact that territorial authority will have NO rights, NO title or interest in their assets.

Councils and ratepayers will retain NO benefit of infrastructure ownership and therefore it can be possession in name only. So who does own and have control f what happens to the water/infrastructure....

The Bill also provides no limit on what unelected bodies can charge for services and there is no forbidding of any groups (including iwi) from charging royalties - that is simple privatisation for Iwi.

The entrenchment is a subversive hack to exclude others from a sell off but not Iwi to indeed bring in partners should 'investment' be needed and thus one day losing control by stealth sales.