Local Government Minister Nanaia Mahuta speaking during the committee stage of the Water Services Entities Bill in Parliament last week. Photo / Mark Mitchell
Local Government Minister Nanaia Mahuta speaking during the committee stage of the Water Services Entities Bill in Parliament last week. Photo / Mark Mitchell
Introducing an entrenchment provision into Three Waters legislation while the Government is operating under urgency is unconstitutional and undemocratic, the head of the New Zealand Law Society believes.
Law Society president Frazer Barton has penned a letter to Local Government Minister Nanaia Mahuta, criticising a new clause that was added to the Water Services Entities Bill, known as Three Waters legislation.
“The late inclusion of an entrenchment clause in the Water Services Entities Bill breaches a well-established convention observed by successive Parliaments,” Barton said.
“Under this convention, entrenchment provisions are reserved for significant constitutional matters outside the scope of general policy debate.
“The entrenchment clause is undemocratic: it proposes to bind the hands of future governments on a contestable policy position.”
Mahuta, who was in Canberra to meet Australia’s Foreign Minister Penny Wong, would respond to the letter soon, according to one of her representatives.
The clause, proposed last week by Greens MP Eugenie Sage who was also sent the Law Society’s letter, introduced an entrenchment provision on another clause that dictated water services and assets remain in public ownership, meaning the latter could not be repealed or amended without support from 60 per cent of MPs.
Entrenchment was rarely used, reserved for certain electoral laws and how long a Government’s term lasted, and required 75 per cent of MPs to support a change to those laws.
The bill was one of more than 20 pieces of legislation the Government wanted to get through under urgency, extending House sitting hours after the equivalent of a week’s sitting time was lost when Queen Elizabeth II died in September.
Green Party MP Eugenie Sage. Photo / Sylvie Whinray
The consequence of urgency was that legislation wasn’t given as much scrutiny as it normally would, highlighted by the fact four bills were rushed through without the public being able to give their thoughts on the proposed law changes, something that usually occurred during the select committee process.
Following the provision being added to the Water Services Entities Bill, a group of the country’s top public law academics urged the Government to reverse the move as they feared it would set a “dangerous precedent” regarding the use of entrenchment for partisan issues.
Barton, in his letter, said he agreed with the academics who had previously aired their concerns.
“If this bill passes in its current form, future Parliaments may be bound by the policy decisions made by the current Government regarding the ownership of water services and infrastructure.
“The use of entrenchment provisions to hinder policy reform in this manner undermines democracy, and is, in our view, unconstitutional.”
He also believed the use of urgency had compromised Parliament’s ability to “scrutinise” the legislation.
“Taking urgency also precludes the seeking of further advice from officials, and the giving of proper consideration to the impacts of the proposed amendments.”
Barton “strongly” urged the Government to send the bill back to the Committee of the Whole House, before its third reading set for this month, and remove the entrenchment provision.
“Should the Government choose to pursue an entrenchment provision in future, that should be by way of a separate amendment bill, enabling public and legislative scrutiny.”
Earlier this week, Prime Minister Jacinda Ardern said Cabinet considered the issue of the entrenchment clause and resolved to kick the matter back to Parliament’s Business Committee - a cross-party group of MPs that discuss the running of Parliament.
It appeared likely the part of the bill that was entrenched would be removed before the legislation is finally passed in the House’s next sitting block, which began next week.
In a statement, Sage said she agreed entrenchment should be reserved for matters of “utmost importance”.
“Retaining the public ownership of water assets is of prime importance to New Zealanders, and the Greens believe meets this threshold.”
