Labour fucks the constitution
What Labour and the Greens have done is massively concerning and repugnant. They are using a partisan majority to make future Parliaments unable to repeal part of the Three Waters Act.
There is only one current use of super-majorities at the moment, and that is in the Electoral Act. There are six sections (one actually in the Constitution Act) that need a 75% majority to amend. Note 75% majority, which means at a minimum both major parties have to agree that the clause should be entrenched. Labour and Greens are entrenching a clause in a partisan fashion, against the wishes of the opposition.
The six clauses currently entrenched are all what you would call basic constitutional clauses, which are highly desirable to not have the Government of the Day being able to amend with a basic majority. They are.
- The Term of Parliament being a maximum three years. You don’t want a Government once elected to be able to delay the next election for a decade. This stops dictatorships.
- The composition of the Representation Commission that sets parliamentary boundaries. Again you don’t want a Government once elected able to decide that boundaries will be set by (for example) myself and Matthew Hooton. This keeps the Representation Commission neutral and stops gerrymandering
- The requirement for the Representation Commission to set electorate boundaries after each census based on specific criteria, to stop partisan gerrymandering
- The requirement for the Representation Commission to set electorate boundaries so that electorates are of an equal size (within 5% tolerance). This stops a Government being able to create rotton boroughs with just a few hundred voters.
- The definition of who is eligible to vote so a Government can’t disenfranchise groups of voters
- The requirement that elections are by secret ballot, so you can’t be pressured as to how you vote
So these current six clauses are what you would call basic constitutional provisions, where Parliament has (off memory) unanimously agreed that a future Parliament shouldn’t be able to repeal them by a simple vote of say 61 to 59 to advantage themselves in future elections.
What Labour and Greens have done is vote for to entrench a clause relating to something which is merely a public policy issue, and have done so without bipartisan support. This is repugnant behaviour.
If they don’t backdown on this, and agree to repeal the super-majority provision, then a future centre right Government would be muggins to not do the same. Imagine how the left will feel when a future centre right government requires a supermajority of say 55% to repeal Three Strikes, or to increase the minimum wage beyond 67% of the median wage. They could even ban unions from being able to have their membership fees deducted by employers and entrench that with a super-majority.
The moment you expand entrenchment from constitutional provisions that have bipartisan support, you open the floodgates to entrenchment becoming a weapon all future Governments will use.
The other impact this will have, is that it may embolden future Governments to get around entrenchment provisions for constitutional provisions such as the Term of Parliament. There are two ways the entrenchment provision can be got around.
- Parliament can repeal the cause that does the entrenching by a bare majority and then after that passes through all stages, can repeal the previously entrenched clauses.
- The Government could suspend standing orders (which currently require a super majority to amend an entrenched clause at committee of the whole stage) and just repeal it without a super majority on the basis no former Parliament can bind a current Parliament.
Now doing either of these things would result in a massive political backlash to a Government that did it, in regard to entrenched clauses that were done with bipartisan support and deal with constitutional provisions.
But it would be quite legitimate for a future centre right Government to do this, so it can repeal the Three Waters legislation. There is no precedent that because the 53rd Parliament had a Government with 70 seats that it can stop the 54th Parliament from repealing a controversial Act even though say the new Government only has 68 seats.
But once that genie is out of the bottle, the barrier to using it to ignore the 75% super-majority for the constitutional protections is lowered. A future Government might decide that it would ignore the 75% super majority and extend the Term of Parliament by two years because (for example) NZ is in an economic crisis, and can’t afford the instability.
Super-majority entrenchment will only remain respected if it is used solely for constitutional protections, and for laws that were passed with over-whelming bipartisan support.
In this current case, the Government is actually using it almost as a PR stunt, as it deal with not privatising the Three Waters assets. This is a bogeyman created entirely by the Government. They are the only ones talking privatisation. Not a single Council has ever proposed selling off their water infrastructure.
So basically Labour and the Greens are fucking with our most basic constitutional provisions, merely as a sort of PR stunt to try and convince people that Three Waters is about stopping privatisation of water assets (ironically it is in fact privatising control of the assets, just not ownership).
If Labour and Greens do not back down on this, then a future centre right Government should and must feed them their own medicine and entrench everything from Three Strikes to National Standards.
My preference is for them to send the bill back to Committee of the Whole, to have the entrenchment clause removed.
UPDATE:
I forgot to include something that makes this all even worse than what I described above. The entrenchment clause was passed under urgency after being introduced in a last minute SOP from the Minister. There was no ability for the public to debate it, to submit on it, to have select committee scrutinise it and consider the implications.
Labour have basically fucked over the established constitutional order, under urgency without notice or consultation, as Edgeler explains: