A lawyer says the Government’s decision to entrench aspects of the Three Waters legislation undermines the practice's constitutional importance.
It comes after Labour and the Greens voted through an entrenchment clause to the bill making it harder to change anti-privatisation aspects - requiring 60% of Parliament to do so. The intention of the clause was to make it harder to privatise water assets.
However, the Government backtracked on entrenchment yesterday, admitting the amendment was a “mistake”.
Constitutional law expert Graeme Edgeler told Breakfast that the Government’s choice to use entrenchment on such a politicised issue had undermined the practice's importance.
“I think the concern here was that if entrenchment was going to become a political plaything, something that you could throw against the opposition and the other parties to say ‘you didn’t support this', I think that might’ve undermined entrenchment for important constitutional law things,” he said.
Edgeler said that entrenchment should be used for laws which uphold Aotearoa’s democracy - things like terms of office and the voting age.
“Entrenchment is this process by which Parliament makes it more difficult for future parliaments to change the law.
“Historically, that’s been in six specific parts of our electoral system - the term of Parliament, the voting age and a few technical things about how electorates are drawn,” he said.
“These are the really important areas that we have, and if someone were to stuff around with them - one electorate has 5000 voters, one electorate has 100,000 voters - suddenly you’re not really a democracy anymore, it’s really those historic things which have been entrenched, which is why many people have been concerned with this attempt.”
Edgeler said that because New Zealand doesn't have a written constitution that outlines how its democracy works, like other countries, entrenchment is used in place of that.
He believes the Government misused the practice and said there was no justification for entrenchment to be used in the manner it was.
He said the Government should have waited for the election to see if voters believed that the anti-privatisation aspects of the bill were essential moving forward.
“No one knew it was going to happen; it was proposed on Monday and voted on Wednesday - if a party wants to go to the election and say ‘this is so important we want to entrench it, voters in and if we can get 75% of the vote in Parliament we’ll entrench it’,” he said.
Edgeler said that entrenchment should’ve gone to select committee alongside the legislation itself to ensure it wasn’t rushed.
Prime Minister responds
Jacinda Ardern has admitted the decision to entrench the anti-privatisation aspects of the bill was a mistake saying the intention was to simply make it harder to privatise water.
Jacinda Ardern said the Government is working to fix the changes made to the legislation.
“This only applied to one part of the bill - it sounds like it was about everything - it’s not; it's just about whether you should be able to sell water assets.
“Entrenchment is a very special provision; we accept a mistake here has been made by being used in this way and dropped to 60%.
“We're going to fix this problem this week in the house, and we can do that quite quickly,” she said.
Ardern also said she is willing to work with other parties to ensure further dramas are avoided.
The legislation has proven to be incredibly controversial since its announcement, with issues of local control over assets and co-governance dominating the debate - the entrenchment saga is just the latest episode of drama surrounding Three Waters.
To many, the Government’s missteps have resulted in a relatively simple issue becoming over-complicated and over-politicised, with public support seeming to slip away.
The Prime Minister acknowledged this but stood by the bill, saying it’s still essential to public health and ratepayers' pockets.
“It has been a very difficult debate because there have been people with very strong views on both sides, but I stand by what this bill is doing,” she said.
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