Friday 2 December 2022

Parliament’s Collective Failure To Defend The Constitution.

Unbitten: It is one of the oddest and most worrying aspects of the events surrounding Green MP Eugenie Sage’s late-night attempt to re-write the constitutional convention on entrenched legislation while a weary House of Representatives was sitting under Urgency. Sherlock Holmes’ famous observation concerning the dog that did not bark, might be applied with equal justification to the Opposition that did not bite.

WHILE WE MAY be reasonably confident that the attack on New Zealand’s constitution will be repelled, it should never have happened. That it was legal scholars who sounded the alarm over the entrenchment of a section of the Three Waters legislation, should cause all 120 of our parliamentarians to hang their heads in shame. Their collective failure to grasp what Green MP Eugenie Sage was doing points to a woeful lack of political and constitutional awareness among those whose first and most important duty is to protect the integrity of our democratic system.

Had a similar effort to screw the constitutional scrum been attempted even ten years ago, the perpetrator would have been red-carded immediately. Not even Rob Muldoon, who was not above the odd instance of constitutional skulduggery, would ever have contemplated a stunt like Ms Sage’s. He would have known that his National Party colleagues would have intervened decisively to prevent him bringing their party into such disrepute.

It is one of the oddest and most worrying aspects of the events surrounding Ms Sage’s late-night introduction of her controversial SOP (Supplementary Order Paper) while a weary House of Representatives was sitting under Urgency. Sherlock Holmes’ famous observation concerning the dog that did not bark, might be applied with equal justification to the Opposition that did not bite.

Tired though National’s and Act’s MPs may have been, and eager to get home to their beds, Ms Sage’s SOP should have had the same effect upon them as a bucket of cold water. Members of the Opposition parties should have risen instantly to their feet, baying like bloodhounds for the Speaker to rule upon the constitutional propriety of the Green MP’s SOP. Expressions of anger and disgust should have been ringing off the Chamber’s walls like the echoes of heavy artillery.

Those Cabinet Ministers present in the House, and their colleagues listening to the proceedings with one ear back in their offices, would have known immediately that something was wrong. Leader of the House, Chris Hipkins, would have hurried to the side of the Minister in charge of the Three Waters legislation, Nanaia Mahuta, seeking urgent clarification as to what the hell Eugenie Sage was playing at.

A fair question – even at this stage of the proceedings. What was Ms Sage playing at? More to the point, was Ms Mahuta aware of her game? Did the Green MP’s SOP come out of nowhere, or was the entrenchment of the section prohibiting the privatisation of any or all of the four water “entities” part of a long-planned attempt to distract the public from the co-governance provisions of the legislation, by making it practically impossible for the Opposition parties to sell off the people’s water to private interests? (That the Opposition parties had categorically ruled out the privatisation of water was deemed an insufficient barrier to its introduction.)

Journalistic inquiries have established that the entrenchment of prohibitions against privatisation was being recommended by supporters of Three Waters months ago. It has also emerged that the Crown’s legal advisers had warned those responsible for the legislation (Ms Mahuta presumably) that such a course of action would be constitutionally abhorrent. It is further suggested that Cabinet received the same advice.

All to no avail. Neither Crown Law, nor the Attorney-General, were able to dissuade the Prime Minister from writing to the Opposition leaders, seeking their support for adding anti-privatisation to the list of core democratic rights and freedoms entrenched in our electoral legislation.

That privatisation is so very clearly “one of these things [that] is not like the others” in no way dissuaded the three women of Three Waters from undermining the integrity of New Zealand’s sixty-six-year-old, unanimously enacted, entrenchment provisions – along with the parliamentary consensus that had rendered them sacrosanct for so long.

The beauty of this country’s unwritten constitution is its simplicity and flexibility. It is not beholden to unelected judges, and vouchsafes to all citizens the right to overturn with their votes what arrogant politicians have set up with their own. The only right our constitution sets in stone, is the right of citizens to participate in the government of their country. Those who seek to remove the power of the people’s representatives to amend and/or repeal the laws, are not their friends – they are their enemies.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 2 December 2022.


Shane McDowall said...

If the iwi co-governance bullshit is removed, Three Waters is a good plan - especially for rural New Zealand.

Labour seems hell-bent on committing electoral suicide.

Government departments should have English names, with the Maori translation underneath.

I am pleased that Maori can go from kindergarten to varsity speaking their own language. But this is New Zealand, not Aotearoa, and we speak English.

Anonymous said...

They are not entirely rational are they? - these proponents of three waters - I wouldn't go so far as to say insane - but certainly barmy. Mahuta has never been able to engage in a sensible, factual dialogue that I have ever heard, Ardern simply side-steps, and now Sage - previously one of the more sensible Greens, has lost her wits. I recommend for all three a long period of quiet recuperation, entirely free from the stress of having to think at all.

Unknown said...

I agree with the crux of your item and its importance, But I'd argue it worse. Itcomes down to more than a belated shift into reverse to ill back from But it comes down to that fundamental question about political malfeasance, When did the Prime minister know what ws happening. Why did the caucus and whips feel that it was government policy to support the amendment, The PM implied she did not know in advance despite discussion with Mhuita, in which case the government could be said to be incompetent, Mahuta has indicate that it had been discussed,. which suggests the PM has been dmis/disinformu\in g gthe public . Either way it is a big story. Maybe things will be covered properly the weekend, but I have yet to read the idetailof of what happened in. this important story. Jane Patterson has referred obliquely top a power play in. the government, And Newsroom's Jo Moir has been trying. Some media seem to see it as the same priority as Luxon's gaffe on Morning Report not knowing suerannuation rates. Failure of the press gallery and m did to adequately cover the succession of unorthodox skulduggery over 3 Waters is a part of the problem .IMO

Anonymous said...

Where in God’s green earth is the GG while this is happening?

David George said...

While the opposition members present (remember this is being done under urgency) would not have been forewarned; Mahuta and Sage have both said that the caucus were made well aware of the entrenchment provisions and had discussed it.

Mahuta: "the change to the bill was discussed with the Labour caucus – a meeting of all its MPs – in advance of the House sitting."

Sage: “We had made our position clear to the Government before the SOP was tabled, that we were seeking this. Quite clear ... it should not have been a surprise.”

Ardern and Hipkins playing dumb now is looking very sleazy indeed.

ZTS said...

As a fervent believer in democracy, this is heartbreaking.

When I heard I felt sick to my stomach and my immediate thought was how did this happen? It's not supposed to be allowed to happen.

Almost everything this Govt does strikes at the heart of our democracy. They understand that the key to politics in NZ is that NZers vote every 3 years and right any wrongs that may have occurred. And outside of that, we expect our parliamentarians to have a moral backbone and regardless of shenanigans in the house and pushing the envelope, we believe strongly in following the 'rules of cricket'.

Now after days of hearing how no-one in the top 3 knew about this ahead of time (Patently untrue, if you follow the paper trail) we hear from Thomas Manch today, that this very issue was discussed at Caucus on Monday before the vote was taken and yes, the PM was there. This is Trumpian in its corruption.

3 Waters will be put through with Entrenchment (regardless of the refer to committee sop) and I am not sure where that leaves us. You refer to our ability to overturn it with a 50% majority (and I am not sure exactly how that works - pass a law doing away with it?) but I assume that means that our democracy is further weakened as a result and that the NZ people will never be able to trust any party to do what we require of them ever.

This government has taken the very heart out of NZ and stomped it into the ground whilst presiding over the near annihilation of the poor and the trampling of all societal norms.

Gary Peters said...

And yet we now know that the entire labour caucus was privy to this move yet have again chosen to lie their way out of it.

What has not been asked is what "quid pro quo" was offered to the greens to be the fall guys for this constitutional monstrosity.

I feel for you Chris, as a former labour party stalwart you must feel sick to your stomach that a once proud political party, one my father stood behind almost his entire life, has become an empty shell of personal ambition and outright dishonesty.

The words of Kim Beazley senior have never been more apt,

"When I joined the Labor Party, it contained the cream of the working class. But as I look about me now, all I see are the dregs of the middle class."

Anonymous said...

And where was former Lawyer and legal academic Dr Duncam Webb or any other of Labour's House of Representatives who had taken an oath to uphold the Rule of Law?

Anonymous said...

Thank you Chris, well said.

The Barron said...

I see two different areas of discussion.

The first is the current legislation and how entrenchment of state and controlled and owned water has been presented to Parliament. I have always objected to the selling of strategic assets without public debate and mandate. I believe that exactly what are strategic assets, the importance of the state in the provisions of the necessities of life, the relationship with commitment to customary title and rights and the protection of basic human rights should be subject to greater national discussion. The lack of a written constitution gives greater responsibility on the legislators to have a covenant with the people (and environment) on the state duty to provide and protect is something missing in New Zealand.

Prior to the 1980s I think we had an implicit view of the role of the state and provision and protection of the state on some services and necessities. Generations had built and paid for the state assets in the expectation they were consolidating nationhood and security for future generations. The weakness of our unwritten constitution is how easily this was overturned and how little mandate the legislators thought was required to do this, and to politically and financially benefit an elite.

Which brings me to the second point of discussion. Are certain things so important to the life and well-being of the people (and environment) that it should be entrenched? I think, without a doubt there are and water is a prime example of what should remain in state ownership and control unless the legislator can demonstrate support that his deeply felt and widely held. The only mechanism for this is through creating the need for a larger Parliamentary majority vote. The situation in which 50 percent plus one (often without prior manifesto advanced knowledge) can take away the protection of rights and necessities of life from other New Zealanders is obscene and deters from the very reason that we trust democracy for governance.

Anonymous said...

And then there was the skirmishing to deflect and pretend the LP knew nothing about it. More lies from JA. They are not to be trusted. Treasonous in fact as the whole 3 Waters debacle and co-governance is undermining our State. I truly hope there will be a day of reckoning somehow.

Anonymous said...

I agree Chris. I am particularly saddened by the fact this provision was passed while Parliament rebuffed Geoffrey Palmer’s attempt to have the Bill of Rights Act entrenched. While I think the BORA has too many ‘outs’ for our politicians, it is nonetheless a constitutional instrument that should be protected in the same manner as electoral laws.

Anonymous said...

The timing of the SOP isn't really relevant because we now know that Labour and the Greens knew what was coming well before the Opposition did. Had the Opposition raised the alarm, I question that the Speaker would have given them any succour.

We now know that Mahuta DID know, and despite their earlier denials, it seems, so did Ardern and Hipkins. This leaves them open to being criticised for being dishonest when they denied any foreknowledge.

What happens next will be interesting: Labour rarely back down when caught out, unless the public's reaction is so strong that they baulk at pressing on. If they back down now, it will be bad for Mahuta. But if they don't the convention behind entrenchment will be destroyed.

Many would say it opens the door to a future (centre-right) Government entrenching legislation that would be anathema to Labour, Greens, etc.

But there is another stronger convention; which is that no Parliament can make decisions to bind a future Parliament. And as the courts can't override or strike down decisions made by Parliament, a simple bare majority can revoke any legislation irrespective of 'entrenchment' provisions.

Dennis said...

Entrenchment reduces the power of future voters to change a policy. Establishing non-elected local council members reduces the power of local voters to change a local policy. These are worrying moves at a time when government is becoming more complex and harder to hold to account. We should be giving voters more power not less.

Odysseus said...

What did Ardern know and when did she know it? As with Watergate 50 years ago the blame appears to go all the way to the top. Are Labour Caucus meetings recorded, and can the records be subpoenaed? 3/5 Waters is a coup against democracy, not only for "co-governance" which overturns our constitutional arrangements without a popular mandate, but also for the way it has been imposed. Entrenchment is the last straw.

Brendan McNeill said...

From dissension, envy, hate,
And corruption guard our state,
Make our country good and great,
God defend New Zealand.

Shane McDowall said...

Oh, there are two government departments that should have the Maori name first:

Te Puni Kokiri (Ministry of Maori Development)

Te Kooti Whenua Maori (Maori Land Court)

And I do know that Maori is one of New Zealand's three official languages. And it should be.

Anonymous said...

No it doesn’t. It empowers voters by ensuring a larger majority is required to overturn anything that might be controversial. The anything in this case is the power to sell (privatise) vital assets. We are better off with that option off the table unless a serious discussion of how, to whom, and why it is necessary is held. If that discussion is held and people agree with the outcome the power to make it happen at the ballot box still exists.


Chris Hipkins (withdraws this travesty of constitutional law) ... deserves some credit ... and reads the Trotter blog?

Alan Rhodes said...

Power concedes nothing without unwelcome demand. It never did, and never will. The removal of the entrenching proposal is no victory for the voices of reason. It is a recognition by a dishonest government of the anger pile-up on the Three Waters proposals and a cynical attempt to deflect further criticism by saying...'Oh, we didn't realise...Oh, it was an honest mistake', and 'See, we have been listening....'

They did realise, it wasn't an honest mistake, and no, they haven't been listening, and they still aren't.

The real shocker with Three Waters is that it disempowers everyone except an ethnic minority, and in that regard it partners in nicely with the anti-democratic interpretations of co-governance, already being embraced by many local bodies. It is this anti-democracy that is infuriating large numbers of people in this land, and it is this that the government is determined to persist with.

As for the parties in Parliament, the elected representatives that inhabit them more closely fit Upton Sinclair's words below than anything else, so bereft are they of real future vision for this land beyond salvation for themselves; their status, their salaries, their power. The only party that seems to recognise the threat is Act, tragically.

'It is difficult to make someone understand something when their salary depends on them not understanding it.'

We are heading for a form of apartheid in government if we don't commit to the democratic citizen power of one, and it may already be too late to avoid serious repercussions from a militant minority who will feel thwarted in their own visions if brakes are applied to the rush to anti-democracy.


David George said...

Here is a very good summing up of the whole disgusting mess:

"As Victoria University’s Dr Bryce Edwards explains: “The co-governance model is a form of privatisation. The new companies will be half controlled by private organisations – iwi, which are increasingly highly corporate in their business operations.”

Essentially, this means that under Three Waters, the country’s water services will be controlled by Maori tribal groups with the power to implement policies of direct benefit to themselves – including the potential to impose water royalties in perpetuity – and no-one will be able to stop them.

Minister Mahuta has elevated concerns about privatisation as a trojan horse to deflect attention away from the fact that she is transferring total control of all New Zealand water to iwi corporations.

Furthermore, if Chris Hipkins was genuine about wanting to “fix” the Three Waters Bill, wouldn’t it not only be the ‘entrenchment’ clause that is removed, but also the clauses that introduced coastal and geothermal water as well, since the public was not consulted, and there was no Cabinet sign off?

If this jack-boot totalitarianism is what we can expect from the tribal co-governance of New Zealand, Kiwis do not want it! Three (now five) Waters has not only exposed the radical racial agenda that is now dividing our country, but it has also revealed the truth about who holds the reins of power in our government."

greywarbler said...

NZ is repeatedly presenting an unbalanced approach to government and the laws that stitch it into place. A pendulum approach, replacing overbearng legislation and practices with other overbearing legislation from another direction is no answer. According to Alan Rhodes 21.49 this is what we are presented.
The real shocker with Three Waters is that it disempowers everyone except an ethnic minority, and in that regard it partners in nicely with the anti-democratic interpretations of co-governance, already being embraced by many local bodies. It is this anti-democracy that is infuriating large numbers of people in this land, and it is this that the government is determined to persist with.

How come we in democracies don't want to have the best one we can achieve? There's always someone spouting that goal about something in our polity. We have a bunch of rank amateurs in Parliament guided by low-level grifters, those guided by higher-level and so on like infinity mirrors, but there is little reflection at each stage so we can never have a chance to change and improve.

Anonymous said...

Lying scum, the whole sorry lot of them

Odysseus said...

Alan Rhodes: very well said.

Dennis said...

It empowers voters by ensuring a larger majority is required? Can you hear yourself?

britbunkley said...

Yes, it is "unwritten" because we don't have a constitution. Even the Bill of Rights could be overturned by any unscrupulous government by a simple majority. Most Kiwis would like to see a higher threshold for our rights (including the freedom from privatization) with an entrenched (protected) constitution like those that exist in almost every other nation.

In 2013, a referendum revealed that two out of three voters opposed privatization. But the National/Act governments rammed through partial privatization regardless. For good reason. They have led to higher prices in many cases while foregoing democratic control of primary industries. In reality, we do need to protect ourselves against unwanted privatizations and protect our other essential rights. Unfortunately, most rights are not protected here. What happened to the left-wing Chris Trotter?... I'm so sad that you are again taking the media party line?

Guerilla Surgeon said...

"It empowers voters by ensuring a larger majority is required? Can you hear yourself?"

So you prefer the normal national/act method of going against the majority wishes and privatising the water anyway? The method that's been a thing since Roger Douglas? As they did with electricity, promising we get lower prices – how'd that work out?

Anonymous said...

Quite so- but also indicates the desperation of the supporters of the “Iwi co-governance bullshit” to have their insane plan implemented -
They we’re prepared to risk undermining our democracy in addition to wiping their own government off the treasury benches

Anonymous said...

Not well. I agree with you. The entrenchment clause was there to stop privatisation. It should have been kept in-as you say, the majority wished it. If someone wanted to change it they would need to convince a larger majority of people that it was a good idea to do so. That empowers democracy rather than the alternative. The only other point I would make is that it is arguable that the majority did support the clause, but you can lead a horse to water and etc.