The constitutional spat over Three Waters bill
The Government is taking flak for an aspect of its Three Waters bill it hastily voted through last week, because of an outcry that the move posed a ‘‘danger’’ to New Zealand’s constitution. The change to the bill was aimed at ensuring public water assets aren’t sold off, a policy that wasn’t contentious in itself. But how the Government went about it was.
Why it matters
The Government, in tweaking its Three Waters legislation, has potentially opened the door for a new mechanism in lawmaking that could tangibly affect how laws are ‘‘entrenched’’ – or unable to be easily overturned in the future.
An easy way to think about it is as follows: Laws are made in New Zealand by a majority of MPs in Parliament – 61 of the total 120 – voting for them. However, what the Government has done is create a new law with a mostly unseen requirement: That it can only be overturned with a super majority of 60% of Parliament, or 72 MPs. Such a super majority requirement has only previously been used in the Electoral Act for ‘‘constitutional’’ matters, aspects of the country’s voting system that all political parties have agreed on for decades, such as that a person’s vote is secret, that the voting age is 18, and that parliamentary terms are three years. And these aspects of electoral law require a 75% majority to overturn, no law has a 60% majority threshold. The requirement of a super majority is considered the ‘‘entrenchment’’ of law, because it means a Government alone cannot amend the law in the future.
The breakdown
The Labour Government’s Three Waters reforms have been hugely contentious. But the issue the Government has sought to entrench is less so.
The aim of the reforms is to create four public entities to manage the country’s drinking, waste and stormwater system, and there has been considerable opposition for reasons including: Councils angry they will lose control of the assets, claims of watering-down democracy and concern at ‘‘co-governance’’ (a 50/50 split of council and iwi representatives on a high-level representative group overseeing the new entities).
The Government had sought cross-party consensus to entrench public ownership in law months ago, asking all parties to join forces to create a 75% majority threshold. While the National Party said it had
no plans to sell off water assets, it did not want to work with the Government on this. But on Wednesday evening, the Green Party introduced a supplementary order paper that would entrench public ownership of water assets by a 60% majority. Both Labour and Green MPs voted for the change to the Government’s Water Services Entities Bill – which will create the four public water entities – though the bill has not yet been made law.
What next?
In light of the criticism, Prime Minister Jacinda Ardern on Monday said the Government would take its new clause to Parliament’s business committee to discuss the ‘‘broader’’ issue of entrenchment.
It’s not clear if the Government will persist with the entrenchment clause, as it works to pass the bill this year.