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Thomas Cranmer: A government humiliated

Nicola Willis applied one of the many lashings that the government received in the House 'Today we have the grovelling back-down, but the stain on our democracy, the damage to our constitution, will remain.'

As much as the government tried to maintain the line repeated by the Prime Minister yesterday that, “We voted for it as a team, we're fixing it as a team”, the cracks in a divided caucus and dysfunctional leadership team were all too evident.

When Minister Mahuta, the chief architect of the Three Waters reforms, stood up in the House last Wednesday evening to respond to SOP 285 tabled by Eugenie Sage, she said that the amendment would test the will of the House. Perhaps only her closest confidants understood that the Minister intended to test the will of her own colleagues to a far greater degree than that of the opposition.

Whilst it is impossible to determine with any certainty what Labour’s caucus understood it would be voting for during the Committee of the Whole stage and who Labour’s chief whip took his instructions from when he applied Labour’s party vote in favour of SOP 285, the effect of Mahuta’s power play has been to expose the two rival camps within Cabinet which remain unreconciled following yesterday’s reversal.

On one side is David Parker who has successfully pushed back against the Rotorua District Council representation bill earlier this year and more recently has resisted pressure from the Māori caucus to include equal co-governance arrangements in the new resource management legislation. Parker has a difficult role to perform given that the Attorney-General is the government’s chief law officer as well as being a Minister of the Crown. It is, uniquely, a legal and political position. The highly contentious issues of co-governance and entrenchment therefore engage both elements of Parker’s role.

On the other side of the debate is the hugely experienced and powerful (some may say, out-of-control) Minister Nanaia Mahuta who has been laser-focused on implementing Three Waters and transforming governance at all levels within the country to a model which more closely aligns with her view of the Treaty of Waitangi. They are controversial reforms that have pushed the Crown’s law officers to breaking point as they seek to provide the legal justification for those policies. Last week the Minister pushed too hard.

Thus the fate of the doomed entrenchment provision had been determined before the Committee of the Whole debate which occurred in the early evening of yesterday. Labour, National and Act voted unanimously to remove the offending amendment with only the Greens voting to retain it (104-10).

But has entrenchment of the anti-privatisation provision been killed off or will it return in a different incarnation?

Both Parker and Mahuta spoke during the debate yesterday and they set out two very different views of how entrenchment should be approached in future. Officially, the use of entrenchment has been referred to the Standing Orders Committee for further consideration. But the competing views of Parker and Mahuta suggest that this debate will continue in Cabinet for some time.

Parker’s speech yesterday represented a more conventional view of entrenchment as being limited to a small number of core constitutional matters. He stated:

Now, as Chris Bishop has said, there is very limited use of our entrenchment provisions in respect of constitutional norms that are long settled. It's very important that we keep it that narrow for a number of reasons …

I hope in my lifetime that we never have to explore that boundary, and that's why I am grateful to the Minister for bringing this amendment before Parliament. Even though I understand the will of other people to want to guard against privatisation, from my perspective it is wrong in principle to entrench …

On the other hand, Mahuta clearly does not consider that entrenchment should be limited to constitutional matters. Whilst acknowledging that this amendment was a mistake because of the ‘piecemeal approach’, Minister Mahuta stated that she awaits guidelines from the Standing Orders Committee on the use of entrenchment for matters which are not constitutional:

However, Standing Order 270 creates the opening which the Green Party utilised to be able to offer another threshold, 60 percent, to be able to reput the consideration of an entrenchment threshold. At this point, I want to reflect on the Leader of the House's indication that, actually, perhaps the Standing Orders Committee needs to consider the basis on which entrenchment clauses should be used to give guidance to lawmakers for matters other than constitutional issues, of which the convention is a 75 percent threshold, and I think that is worthy of consideration. I hope other members in this House do too, because we do want to ensure that we are making good laws.

So the mistake that is being fixed is that it is inappropriate as far as we can see to take a piecemeal approach to using an entrenchment clause for this particular purpose. So once we ensure that the SOP can be supported across the House, we will, effectively, not use an entrenchment provision in this particular way without further consideration by the Standing Orders Committee to provide proper guidelines in the way that matters other than those constitutional in nature could be considered. I hope that all parties will see fit to support the SOP.

The Attorney-General and Minister Mahuta therefore have two quite different views of when entrenchment should be used. Equally, the Greens remain committed to entrenchment as a means of ensuring that the country’s water assets remain in public ownership.

In fact, Dr Dean Knight from Victoria Law School, who raised the alarm about entrenchment last week, has already provided Minister Mahuta and Eugenie Sage with a roadmap should they wish to have a second attempt at entrenchment via a separate standalone bill.

Thus it is possible that if Parker loses the debate in Cabinet, that entrenchment could reappear. Given that National and Act have committed to repeal these reforms if they win the next general election, Mahuta is highly incentivised to do everything that she can to make Three Waters as politically and legally difficult to unwind as possible.

It would also be consistent with how Mahuta has dealt with other setbacks that have occurred during the Three Waters reforms.

For instance, when it became apparent that Three Waters had, by stealth, become Five Waters during the select committee stage, the Prime Minister reassured the public that some minor drafting would clarify the issue. In truth, they merely played around with some definitions in a way that did not change the enlarged scope of Five Waters at all.

Te Mana o te Wai had been expanded during the select committee phase so that it applied to geothermal and coastal water by an addition to section 4(4) of the Bill. The government therefore deleted that section last week via a SOP.

The definition of Te Mana o te Wai was also replaced with a new definition which states in paragraph (b) that it applies to ‘water’ as defined in the Resource Management Act 1991.

What is included in that definition of ‘water’ as set out in the Resource Management Act? Geothermal and coastal water! Five Waters remains Five Waters.

Equally, Te Mana o te Wai statements provided under section 140 were previously only applicable to ‘freshwater bodies’ but by virtue of a very small amendment, they are now applicable to any ‘water body’. A change which is consistent with Mahuta’s longstanding view that Te Mana o te Wai should apply to all waters.

To cap it off, not only will each iwi and hapū be paid by the water services entities to produce their Te Mana o te Wai statements (a cost which the government is yet to quantify) but they have now added that each iwi and hapū will be paid to ‘monitor’ compliance by the water services entities of the Te Mana o te Wai statements. That appears to be an uncapped and never-ending annuity for iwi and hapū.

Thus the Bill has only ever developed in a manner beneficial to Minister Mahuta. Some difficult issues are placed on hold for a period of time but they are seldom dropped. Maybe the government has been so chastened by the humiliation that it has suffered over the last few days that ‘entrenchment of policy’ has been dealt a death blow. But there is a chance that the resourceful and experienced Mahuta simply regroups and makes a second attempt at entrenchment in the new year.

Thomas Cranmer is a pseudonym. You can read his work here.

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