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.