It took a week from the first accusations of constitutional outrage, but the government finally did the right thing yesterday :
The entrenchment clause in the Three Waters legislation that sparked outcry has been labelled a mistake by Leader of the House Chris Hipkins and will be removed.
Hipkins announced the backdown today after lawyers labelled the provision undemocratic last week. . .
“It was a mistake to put the entrenchment clause in and the Government will fix the issue as soon as the House resumes on Tuesday. . .
The mistake is being rectified but there are still a lot of unanswered questions about the whole saga, one of which is who knew what about the entrenchment clause in the Five Waters legislation? :
Labour’s top brass somehow missed the memo at their caucus meeting last week that the Three Waters amendment they were backing was a constitutional bear trap.
The prime minister, the attorney-general and other senior ministers were present when Local Government Minister Nanaia Mahuta put forward the Greens’ controversial 60 percent entrenchment provision.
The question remains whether they were inattentive, or the proposal put forward was either undersold, or simply unclear. . .
There is another question – were they attentive and supported it anyway?
There was a storm of criticism after Labour and the Greens passed an amendment during the committee stages of the Water Services Entity Bill under urgency, entrenching an anti-privatisation clause at 60 percent; this means any future government would have to muster at least that level of support to repeal it.
The problem is that goes against legal advice the Three Waters legislation did not meet the constitutional bar for using entrenchment, which is reserved for matters of electoral law. The amendment could create a precedent, paving the way for this government, or those in the future, to entrench laws they felt strongly about.
There are still questions around whether or not Ardern and other senior ministers specifically knew Labour’s vote would be cast in support of the Green MP Eugenie Sage’s proposal for an achievable 60 percent entrenchment clause, given the fact the red flags had already been raised – including at Cabinet.
Leader of the House Chris Hipkins, in charge of running the parliamentary agenda and business of the House, said he “was not aware until after the fact”.
When asked on Monday if she knew an amendment with a 60 percent threshold was going to the House, Ardern did not directly answer the question.
“I know there was discussion around 75 percent, the level of awareness, I could not tell you around the lower threshold.”
When pressed further, Ardern said “the principle of entrenchment has generally attracted a 75 percent threshold… everyone in Labour was very aware of that”.
“What would have been happening in real time is you had both an entrenchment position but a different threshold.” . .
That avoids the question about real time at the caucus meeting where the entrenchment position with a different threshold was discussed.
One possibility is, despite Mahuta raising it in caucus, the detail offered was not enough to alert MPs and senior ministers present the proposal was for 60 percent and therefore able to pass, as opposed to the original 75 percent.
It’s a Minister’s responsibility to give enough detail to ensure colleagues understand what is being proposed.
If she didn’t, it’s a sackable offence. If she did then the caucus, including The Attorney General, Leader of the House and Prime Minister knew exactly what was being proposed.
Ardern was asked about this again on Thursday in Hamilton. She confirmed she was at the caucus meeting, but added she had “already discussed and pointed out that entrenchment is generally understood to be a threshold of 75 percent”.
When asked about the caucus’s view on the proposal and whether there was any dissent, Ardern said “conversations in caucus are kept in caucus” but reiterated Labour’s position of wanting to ensure a “public asset like water is absolutely protected from privatisation”.
“Entrenchment is commonly understood to be a super majority, 75 percent, what came before Parliament was a more novel approach,” she said.
That doesn’t answer the question and leaves open the possibility that she knew what was being proposed and supported it.
If she really didn’t know, or understand, Tracy Watkins says the saga goes against the no surprises policy:
There is no possible right explanation for how a contentious entrenchment clause came to be slipped into Labour’s controversial Three Waters legislation under the cover of urgency, and with so little debate even the Opposition didn’t notice.
Either the Government knew what was happening – which is bad – or they didn’t, which is even worse.
If Three Waters was already emblematic of much that many voters don’t like about the government, the entrenchment debacle – the clause has been panned as undemocratic, and unconstitutional – has only likely solidified opinions. . .
Add openness and transparency to the long list of not-achieved by them.
The official line appears to be that the clause was cooked up by a Green MP and the Local Government Minister and inserted without the knowledge of just about everyone, including the prime minister, Cabinet, caucus and an army of Government advisers.
This beggars belief from a government that has taken the “no surprises” rule to such extreme lengths that even the most inconsequential Official Information Act requests are required to be sent to ministers’ desks as a deliberate stalling tactic.
But if true – if it really is believable for an MP and a minister to fly solo on what legal experts are calling a “dangerous constitutional precedent” – what on earth does that tell us about the state of decision-making in the Beehive?
Is anyone even in charge any more?
What also beggars belief is Prime Minister Jacinda Ardern’s explanation that “it’s not something I would necessarily be aware of”.
If a hotly contentious clause in a deeply unpopular piece of legislation isn’t exactly what the no surprises rule is supposed to cover, what is?
If it was a surprise when it was on the agenda of a caucus meeting that Ardern chaired, she should sack the responsible Minister and also question her own behaviour and control of her caucus.
If it wasn’t a surprise she’s lying.
Either way it raises questions of why this happened.
Astute Left wing commentator Josie Pagani perfectly summed up Labour’s current state of mind: “People with different ideas are wrong. The Government is righteous, opponents are bad.”
So rather than admit it might be out of step with public opinion on Three Waters, or gangs, or crime, or the parlous state of the health system, or the cost of living, the Government plays political games, and does things like plant mini hand grenades for its opponents, should they happen to get into office.
There’s a name for that – third-termitis, which is when ministers get too arrogant, when there are too many political sideshows and the Government starts blaming the messenger rather than the message for its slide in the polls.
Is this a sign it’s come early?
Labour has belatedly admitted its mistake over this clause but is still pushing ahead with the legislation and Fran O’Sullivan points out it’s concerning that it has taken this debacle to get major legal attention on the Bill:
. . . This is a consequential piece of work. Not only does it entrench what many councils see as the legislative “theft” of water infrastructure assets built over many years through ratepayer levies, but — and this is another egregious aspect — it hands considerable power to Māori iwi regulators to make what are essentially proprietorial calls over the use of that water.
None of this has been appropriately debated, let alone discussed through a national conversation which probes the real extent of co-governance and indeed the engineering which exposes those four new regional water entities to financial risk.
The Government has simply resorted to its legislative might to push these reforms through — buying off council resistance with a $2 billion support package called Better Off funding which is a sweetener for the effective loss of their assets. . .
Franks Ogilvie gave a legal opinion contradicting the government’s assertion that councils will still own their assets.
The Water Users’ Group is seeking a judicial review of Three Five Waters.
. . . We want stop the Government proceeding with Three Waters. In particular, the parts of the scheme that would see water infrastructure removed from Councils, and therefore ratepayer control, and the co-governance model that is proposed for the four new entities.
We need to know if our Courts think that Minister Mahuta’s references to pan-Maori treaty interests are justified in law. We need to know if our Courts think such interests can require or justify taking rate-payer funded infrastructure and turning it into a source of patronage for a tribal elite.
We want the Court to go back to first principles and make sure the Treaty is interpreted consistently with the rules of law. We want the Court to say there is no legitimate legal basis for the proposed co-governance model or any part of the Three Waters scheme that purports to carve out a greater role for Māori than the general public. . .
They are waiting for a date for the court appearance, Given the government’s move to pass the legislation this year, it might be too late, even if it isn’t they might lose so what then?
If the Court concludes that Treaty interests do justify putting water infrastructure paid for by ratepayers into bizarre new corporations under the effective control of Māori nominees outside democratic dismissal, New Zealanders will know that the remedy can’t come from Court cases. We’ll know unambiguously that it is idle to look to lawyers and the Courts for protection our inherited rule of law traditions. The remedy will have to come from elections to our sovereign Parliament.
Polls show the majority of people oppose the policy. If the government continues to bulldoze it through the only way to undo the damage is to vote for a National-led government next year.
National and Act have both pledged to repeal the legislation and work with councils to develop policy to replace it.
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