Friday, December 02, 2022

Entrenching entrenchment

Last week, Parliament passed a rare entrenchment clause, protecting water assets from being sold by future governments without a referendum. As a supporter of anti-privatisation as a constitutional principle, I don't really have a problem with this - the supermajority which passed it represents a broad consensus across Aotearoa, and such supermajorities should be able to do things. But some people do, and as a result Labour is chickenshitting out, claiming (falsely) that they had no idea what they were voting for (which isn't the excuse they seem to think it is), and sending the issue back to Parliament's Business Committee to be "resolved" (which means repealed).

(I recognise that there are issues with passing such provisions under urgency, and that's on Labour for choosing to do their bill that way. As for the opposition being unaware of it until after it happened, that reflects as badly on them as the government's false claims of not being aware of what they voted for. Or are we really expected to accept that we pay MP's the big bucks to pay no attention whatsoever to the legislation they are voting on?)

Meanwhile, in all of the excuses and whining, the actual issue of how to protect public assets from being looted by the government of the day is being lost. But writing on Public Address, Graeme Edgeler has a suggestion there: a referendum on asset protection:

If you are someone who thinks public ownership of water infrastructure is so important that the government should act to entrench it, you do not need to convince National to agree with you. You need to convince the public (that shouldn’t be difficult: public ownership of water infrastructure is very popular!). Because there are two ways to entrench a law in New Zealand, and both have been used: the entrenched parts of the Electoral Act 1956 were entrenched by Parliament a supermajority of MPs (in fact, all of them) voted for it. But the Electoral Act 1993 isn’t law because Parliament voted for it, it’s law because the public voted for it: the entrenched bits of that are actually entrenched because there was a binding referendum.

If you are a Gordon or a Max, or a Eugenie, that’s your solution. Don’t settle for 60% protection. Go into the next election with the policy: if we cannot get 75% support in the House of Representatives to protect the continued public ownership of water infrastructure, we will hold a binding referendum on it, requiring a future Parliament to either agree by a 75% majority to sell water assets, or to come back to the public in a further binding referendum.

Which is good, but invites the question: why wait? Why not have the referendum at the next election instead? Because an easy fix for this is to amend the commencement clause so that entrenched protection for water assets only takes effect when backed by a referendum held under the Referenda (Postal Voting) Act 2000.

It is however an excellent suggestion for the broader issue. Because water assets aren't the only public assets in danger of being looted by future governments and sold off corruptly to their cronies. There are also state-owned enterprises, mixed-ownership model companies, crown-owned companies, and assorted other entities. All of these should be protected. And the way to do it is by an anti-privatisation law, backed by a referendum, which protects and entrenches public ownership and limits the ability to divest without a similar referendum or supermajority. And obviously, I think the Greens should offer such a bill among their policies at the next election, and demand it as part of the price for any coalition (I'd like to see it from Labour too, but that would require them to deliver on their public rhetoric, and my expectations on that front are low).

Constitutional scholars say "parliament can't bind its successors". But there's a power in Aotearoa which can bind future parliaments: us. And we should do it.