ACT is on a roll with solid polling to end the year in double digits nationally according to 1News and in Hamilton West. The byelection is on Saturday, if you are in Hamilton West please cast your vote to join the groundswell for James McDowall. Deputy Leader Brooke Van Velden has been named top first-term MP

The Haps

ACT is on a roll with solid polling to end the year in double digits nationally according to 1News and in Hamilton West. The byelection is on Saturday, if you are in Hamilton West please cast your vote to join the groundswell for James McDowall. Deputy Leader Brooke Van Velden has been named top first-term MP with Nicole McKee and Karen Chhour also in the stakes. The party relentlessly releases policy with new policy on Immigration, Truancy, and RMA reform in the past fortnight.


Labour and the Greens have made a cluster of constitutional proportions, but even some journalists say they’re still trying to understand it. This week ACT runs through what happened, why it matters, what questions are still unanswered, and why you should be worried about what Labour tried even if you agree with their three waters reform.

We start with the basics that you could take for granted before this happened. At the heart of New Zealand’s constitutional arrangements is the idea that no Parliament can bind a future Parliament (each Parliament is its own new one, we are currently in the 53rd Parliament and next year we will elect the 54th). The people have the absolute right to elect a new Parliament every three years, and the new one can override unpopular things the last one did. It’s democracy in its purest sense. The people, collectively, have the power to choose their own destiny and no power is higher than the will of the people.

The only requirement for changing a law is that the majority of Parliament can agree. Most governments in modern times have had a majority of only 2-3 seats, but a majority is a majority.

There are a very small number of laws (six) that are above the convention that no Parliament can bind a future Parliament. These are laws that are designed to protect the people’s powers to choose a new government. To put them in place took at least 75 per cent of the Parliament (it was actually 100 per cent), and to reverse them would take not a bare majority, but 75 percent. That’s what’s meant by entrenchment.

The entrenched laws are; the three year term of Parliament, so that elections are held regularly; the rules governing the Representation Commission (a committee that determines electoral boundaries); the division of New Zealand into General Electorates; that all electorates must have the same population to within five per cent (these last three stop U.S. style gerrymandering); the minimum voting age of 18; and the method of secret voting.

In other words, previous Parliaments have stopped any future government with a bare majority in Parliament from taking away our most basic political rights. The point of these entrenchments is actually to protect the people’s right to elect a new government to change unpopular policies.

Enter Labour and the Greens. First they tried to entrench three waters, specifically the ownership of water assets by the new Water Service Entities. They said it was about stopping privatisation, but their entrenched law would also stop the assets being returned to Councils.

ACT and National refused to support this, so Labour and the Greens couldn’t entrench at 75 per cent. With 62.5 per cent of the vote between them, though, they could entrench at 60 per cent, which is what they tried.

They passed amendments to the three waters law that, if finalised, would mean a future government would require 60 per cent of Parliament to return the assets to councils.

In 168 years, with all that has happened in New Zealand politics, no government has been arrogant enough to think it’s own policies are so important that they deserve the same protection as voting rights. It shows something extraordinary about the attitude of this government to the people, and could have created a constitutional crisis.

Here’s how that would play out. Say ACT and National got the same result as the 1News poll, 64 seats, or 53 per cent of Parliament. Both parties campaigned on returning the assets to Parliament and passed a law to do so.

Someone could go to court, perhaps an iwi with half the representatives on one of the new Water Services Entitities. They could claim the new government was acting illegally. They could argue that the new law didn’t count because the old one needed 60 per cent to reverse, and the government didn’t have that.

What would the courts decide? Whatever they did it would be a major problem.

If they backed the old Parliament, they would be saying that Parliaments can bind future Parliaments, and the people don’t have a right to elect a new one to change things they don’t like.

But if the courts backed the new Parliament, they would be setting a precedent that maybe entrenchment didn’t matter. Maybe one day a future dodgy Court would look to this precedent and back a government that eroded citizens’ most basic democratic rights. It sounds far fetched but this is how democracies slowly die.

One way or another, the Courts would be chipping away at New Zealand’s constitutional conventions that protect the people’s democratic powers.

What remains is; how did this happen? Part of the problem is that Parliament sat under urgency, with 24 laws being rushed through in one week, sitting from 9am to midnight. Rushed laws are almost always bad.

But did the Prime Minister know? If the government backed this policy, that is a major problem. We now have a government that believes its policies are as important as democracy itself.

The alternative is that the Minister for Local Government, Nanaia Mahuta, went down to the House and voted for laws that are not government policy. Mahuta has gone rogue and Ardern won’t do anything about it.

We may never know the truth, but in one sense it doesn’t matter. This government is cooked. The only sure solution is to vote them out before they do more damage, and make sure the next government has enough ACT in it to deliver real change. Starting with the reversal of Three Waters.

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