Tuesday, February 07, 2012

A blank cheque for future privatisation

One of the protections of the State-Owned Enterprises Act is that it is intentionally difficult for the government to sell our assets. While it can add companies by Order-in-Council, the only way a company can be removed from the Act (and hence sold) is by an Act of Parliament. Which is by its nature public, with built-in requirements for public consultation - meaning that they can't do it by stealth without asking us first.

If National gets its way over its "mixed-ownership model", all that is going to change. Their consultation document for Maori [PDF] released last week included details on the legislation, including this bit:

Creation of a power to remove the Mixed Ownership Model Companies from schedules 1 and 2 of the SOE Act by order in council. This is necessary to be able to remove the companies from the ambit of the SOE Act which prohibits the sale of shares. By using an order in council, the Government will have the flexibility to remove each company when it believes market conditions are appropriate.
...and to do it in stealth, without consulting us. Flick of the pen, law of the land, and our assets will be lost forever.

The good news is that normally such an Order will be judicially reviewable. And since it will be an application of a power under the SOE Act, it will be bound by s9. Which means that any use of this power in a manner inconsistent with the principles of the Treaty of Waitangi - say, by trying to transfer an asset without ensuring protection for future Treaty claims over water - will be stomped on by the courts, exactly as it was back in 1987. Unless of course National explicitly prevents it - something which would be entirely consistent with the contempt they have shown for the rule of law.