“An attempt by the Greens and Labour to entrench ownership of three waters assets in the new Water Services Entities breaks dangerous constitutional ground, but will be repealed all the same,” says ACT Local Government Spokesperson Simon Court.

“An amendment to the Three Waters Entities Act proposed by Green MP Eugenie Sage and voted through by Labour and the Greens puts New Zealand on dangerous constitutional ground. It sets up a conflict between the current and any future Parliament, where the courts would have to choose between the rules made by different Parliaments.

“A bedrock of New Zealand’s constitutional arrangements is that no Parliament can bind a future Parliament. That means the people can choose a new Parliament to reverse rules they don’t like. It also means that Parliament is sovereign, whatever Parliament enacts is the law.

“The amendment on Supplementary Order Paper 285, passed this week:

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.]

“In other words, a future Parliament that voted to reverse Three Waters, for example by returning the ownership of water assets to councils, would need 60 per cent of the vote to do so, but it could still pass a law with 50 per cent of the vote. At that point, the courts would have to decide which Parliaments law prevailed. Should the assets be returned to the councils, or stay with the entities?

“In practice, a future ACT-National Government will want to change the law back. If such a Government is elected by the people, it should be able to do so. We cannot afford for unelected Judges to decide which Parliament's laws apply.

“A future Government would likely legislate that Water Services no longer exist, so their duty to own assets becomes null and void. No doubt some would still go to Court seeking a remedy.

“If the Courts upheld the old Parliament’s law, then it would be trampling on the right of the people to vote out Governments they don’t like and change laws they disagree with. On the other hand, if the Courts ignored entrenchment of one law, it would be chipping away at the protections that entrenchment was designed for, and deserve to be above the Parliament of the day, such as voting rights.

“The Greens and Labour have been grossly irresponsible, not realising what they are doing to New Zealand’s constitutional framework while trying to fight the imaginary bogeyman of privatisation.

“This amendment is a good example of why laws should not be rushed through under urgency in the middle of the night. It never ends well. It reduces the sovereignty of Parliament, and disenfrachises citizens as voters.

“ACT will support National’s proposed motion to return the Bill to Committee Stage to fix this dangerous constitutional mistake for the common good. We urge Labour to get behind this initiative for the good of the country.”

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Simon Court