The problem with entrenching party policy

A move from the Greens to entrench a piece of the Three Waters reforms has thrown public discourse into chaos. Is entrenching a party-political matter ever justified?

Well, that was a ride. 

The Greens' attempt to entrench a party-political piece of legislation pertaining to Three Waters has gone back to parliament's business committee, a sign that the government will not persevere with it. 

The unusual move came in the form of a supplementary order paper, or SOP, which was introduced by Eugenie Sage as the House debated legislation under urgency last week.

The SOP was intended to ensure it would be more difficult for water amenities to be privatised.

To do this, it proposed raising the threshold to repeal the provision to 60 percent, rather than a simple majority of more than half. 

This was a stark break from convention: while we do have entrenched laws, they tend to apply to foundational, constitutional matters, like the voting age or the term of parliament, rather than party-political policies. 

"It's a policy on which reasonable people may have different views," says Otago University public law professor Andrew Geddis - who, Newsroom revealed, may have inadvertently started this process.

"What you see here is today's temporary [parliamentary] majority saying we are so sure on this particular issue that we're right, we're saying to tomorrow's majority, you just can't change it, you're not going to be allowed to."

Geddis explains to The Detail what entrenchment is and how it's been used historically, and why this situation was seen by many public law academics, Geddis included, as a dangerous precedent.

Argument one: entrenchment is used for Very Important Issues and retaining control over water is a Very Important Issue. This might be unorthodox, but it's justifiable

"Give me a petition to sign, and I'll sign it," Geddis says. 

"The difference here is, we're saying we are so absolutely certain that public ownership of water for all time is necessary and the best way of doing things.

"We are saying to future majorities, irrespective of what you think about it and irrespective of how things have changed in the intervening years, you will only be able to change our view on the ownership of water if you can get to 60 percent. And if you can't get to 60 percent, tough. We in the past have dictated what you must do."

It's worth mentioning that National says it's against the idea of privatising water amenities, but the party considers entrenching party-political policy undemocratic.

Argument two: many public submissions raised fears that water infrastructure would be privatised. National has ignored citizens-initiated referendums in the past and this needs to be entrenched for public peace-of-mind

In 2013, a citizen-initiated referendum on the partial sale of state assets resulted in a large majority voting against this idea.

Regardless, the then-National government went ahead with the sales.

Sage claimed this was an example of the party ignoring a democratic instrument to pursue its own agenda.

But Geddis says that's an oversimplification.

"Remember the National government was elected after having campaigned directly on its mixed ownership model policy: it said, if we are elected, we're going to do this. 

"They won the election, and then carried through their policy, they stood for re-election, and they won the next election.

"We also have to be a bit careful about holding up citizen-initiated referendum results as showing what the people want and therefore what the law should be.

"We had a citizen-initiated referenda that showed a large proportion of those who too part thought that section 59 of the Crimes Act amendment, criminalising the physical punishment of children, was a bad idea.

"I didn't notice the Green Party saying, oh, the people have spoken, we must get rid of that."

Argument 3: conventions are made to be broken, the left bloc has the numbers, you can't stop us, cry some more delicious salty tears and we'll see you at the election

"OK. Watch out for what you wish for," Geddis says. 

"You've done it, you've broken the convention, you've shown there's a different way of doing things. See you at the election - if you're not in the majority at the next election, don't cry when it gets done to you."

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