The trouble with entrenchment is in the numbers
THREE Waters has become like the proverbial blowfly. Every week there is something that irritates someone, or, as in the case of the u-turn on the Government’s part at the weekend, the flyspray of democracy appeared. So what does this entrenchment u-turn actually mean? From a layman’s viewpoint, the Government decided that if enacted, the use of the entrenchment clause meant this legislation could not easily, if at all, be repealed – and at the heart of that was the decision that water should never be privatised. An entrenchment clause means that normally, 75% of the House has to agree before it can be repealed in terms of legislation. Labour and the Greens want to ensure water can’t be privatised – owned outside the Crown – and set the entrenchment clause in it to ensure that remains the case. However, while the idea may have been sound, the way the Government went about it was not, hence the u-turn. The amendment on Supplementary Order Paper 285, “would restrict the amendment or repeal of clause 116, which places an obligation on a water services entity [to maintain] ownership and control of significant water services infrastructure. The amendment in this Supplementary Order Paper would mean that amending or repealing that provision would require a 60% majority of all the members of the House of Representatives.” Clause 116 says: “A water services entity must continue to provide water services and maintain its capacity to perform or exercise its duties, functions, or powers under this Act… and: In order to perform or exercise its duties, functions, or powers under this Act, a water services entity must not [raise debt against water assets, divest, sell, or otherwise lose control.] So if a Parliament sometime in the future wanted to reverse Three Waters legislation, for example returning the ownership of water assets to councils, it would require 60% (and remember, entrenchment clauses usually mean 75%, so this figure is the crux of the matter) of the vote to do so, but it could still pass a law with 50% of the vote. At that point, the courts would have to decide which Parliament’s law had precedence over another, something the New Zealand Law Society says is “dangerously undemocratic”. In today’s rapidly changing times of technology among other things, I am not so sure the society is as up with the play as it needs to be either. Foresight is, after all, nowhere near as infallible as hindsight. So, it’s back to the Committee of the Whole (of House) to sort it out. All that explained, the biggest niggle I have with this is that the sentiment is correct – water itself is a fundamental requirement of life and there should be no person, business, organisation or authority outside of the Crown “owning” any of it. Water is a transient thing, it flows from one place to another, whether by current or by ebb. It must belong to us all – and remain that way. I understand the need for councils – who have all had 20 years or more to get their collective acts together, and who for the most have not – to have a national standard of quality drinking water set and upheld, and the need for smaller councils to be helped into that by being made to join with larger ones because of the cost factors. I get that. Three Waters is here to stay, even if the final legislation has yet to be hammered out in an acceptable one-size fits most. And I’m not sure about the co-governance aspect; I wonder if there is tokenism in this – because once the rules are set in legislative concrete, there should be no real need for governance hui. We just need to be sure any legislation applied to it covers the necessary parts for all users in every situation applicable to all Kiwis.
