Dear Friend,

I am appalled with what this Government – along with the Green Party – have done now with the Three Waters legislation working its way through Parliament.

No longer is this just about how our water services are governed – it's about democracy and even our constitution.

In case you've not caught up on it, last week Green MP Eugenie Sage tabled an amendment (called an "SOP" or supplementary order paper) to the Three Waters legislation that was being rushed through Parliament under urgency.

Incredibly, the opposition parties didn't even notice the significance until after the Government had passed it. It added in a provision that means the law relating to the ownership and control of water services and significant assets could only be repealed by 60 percent of MPs or a referendum. No one had a say on this, and the fact it was done under urgency says it all.

In effect, the Government and the Greens are trying to bind subsequent goverments/parliament. It's the ultimate in an underarm bowl. As a senior lawyer put it: 

Entrenchment

Entrenchment is usually limited to very few core constitutional items that underpin our democracy such as the voting age, voting method and the term of Parliament. These are usually entrenched with broad cross-party support after thorough debate and public consultation and require at least 75% of MPs to vote in favour of any repeal or amendment.

In this case, the government has supported an amendment set out in a Supplementary Order Paper proposed by Green MP Eugenie Sage that was passed under urgency to entrench a provision which does not relate to a constitutional matter. They did so in direct contravention of Crown Law Office advice and without public consultation. The level of entrenchment was set not at the usual 75%, but at 60% for the only reason that that percentage represents the Labour and Green votes in Parliament.

Entrenchment of any provision in the Three Waters reforms is controversial therefore for two reasons. First, it adds complexity and uncertainty to any new government’s plans to repeal and replace this legislation. Secondly, it is a major alteration to New Zealand’s unwritten constitution which could see governments of any hue attempting to entrench their significant policy reforms in an effort to tie the hands of their successors. It therefore threatens to draw the courts and Parliament into direct conflict over fundamental questions of sovereignty. Constitutional lawyers have been united in expressing deep concern over the government’s actions - some of them have gone so far as to describe it as democratic vandalism.

ACT leader David Seymour was on Newstalk ZB this morning on the issue. I highly recommend a listen.

Be in no doubt, if this goes ahead, it would be an act of constitutional vandalism. 

With the Government’s current proposal, the principle of entrenchment is blown apart. What would stop a future centre-Right government from entrenching lower taxes or restrictions on the size of the public service, for example? We would like those policies, but in a democracy, voters need to be able to change public policy through the ballot box in regular elections. 

Now in theory, if Parliament is sovereign, a future government could simply repeal this entrenchment provision and then move onto repeal the legislation itself. But even if that survived a court challenge, it would undermine the important electoral entrenchments we already have. And if it didn’t, it would put us into completely unchartered constitutional waters. 

This isn’t about privatisation—it’s about control. 

As early as April, the media were reporting that ministers were keen to shift the controversy over the reforms from co-governance fears to fears of privatisation.

But it was always a false flag: No one is proposing privatisation. What this is really about, is changing the rules of the game. It wouldn’t matter how you vote next year, as this provision could block a future Government from repealing this controversial approach to water reform. 

It is particularly disappointing that this move has come from a Green MP. While unsurprisingly the Taxpayers’ Union tends to agree with the party on very little, we have always recognised their commitment to openness, transparency and localism. But the move today confirms that they are no different to Labour in their contempt for the voting public. 

And it isn’t just the parties of the Right who are outraged by this. It has received condemnation from across the political spectrum and from academia too. A group of eight academics wrote an open letter in today’s NZ Herald criticising the constitutional precedent this would set and the way it has been introduced at a very late stage in the legislative process.

The prime minister recognised on RNZ this morning that the concerns were ‘legitimate’. An understatement if ever there was one. She also confirmed that the principle of entrenchment will be discussed at the meeting of the cabinet this afternoon. 

It’s vital that we put a stop to this nonsense today.

We need to let them know just how strong the opposition is to this move. Please take a few minutes out of your day to take a stand on this vital constitutional principle by sending an email to the Labour and Green MPs. Due to the tight timeframe and urgency of the situation we aren’t able to turn around a website with an automatic form as we would usually do so we are providing some suggested text (see below) and the relevant email addresses for you to copy and paste yourself.

If the Government does not drop this plan today, we will launch a campaign with full-page newspaper and TV ads by the end of the week to ensure that all New Zealanders are aware of the Government's outrageous tactics to trash our constitution. 

Thank you for your continued support. 

Peter Williams Board Member New Zealand Taxpayers’ Union

P.S. Cabinet meets at 3 p.m. today so make sure you send your email before then.

Suggested E-mail to MPs

Dear __________,

I am writing to you to express in no uncertain terms my opposition to the Supplementary Order Paper passed under urgency last week in relation to entrenchment and the Three Waters reforms.

Entrenchment is an important tool that Parliament can use for matters of electoral and democratic importance and it has been used judiciously by previous governments. The use of it in relation to ownership and control of water services is political and is clearly intended to make repeal more difficult.

The principle that no Parliament can bind a future Parliament is crucial to our democracy in New Zealand. We, as voters, should be able to go to the ballot box knowing that if we vote for change, the people we vote to enact it will not be hamstrung by the underhanded tactics of the previous government.

I urge you to speak up for our democratic principles and voice our concerns to Prime Minister Jacinda Ardern and her cabinet before they discuss the matter this afternoon. This is about principle not partisanship.

Yours Sincerely,

____________

List of Labour and Green MPs