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How to repeal Labour/Green entrenchment of Water Services control by iwi elite

  • November 28th, 2022

Minister Mahuta and former Minister Eugenie Sage conspired to abuse the entrenchment conventions that have for 60 years protected our electoral law from parties tempted to turn a temporary majority into more permanent advantage. Disentrenching that entrenchment should be simple. But it will leave damage to the conventions.

An incoming government could mitigate the damage by making it absolutely clear that the reversal is confined to its particular circumstances. At the same time, given the possibility of activist judges who despise the will of the people, Parliament should be explicit that a Court may not rule against the legitimacy of the repeal Bill.

Many of us have hoped that entrenchment would acquire such power by longevity and its cross-party convention support, that  a court might dare to declare invalid a subsequent Act passed without the required super-majority. It would draw on  the traditional bi-partisan support for reserving entrenchment to matters fundamental to democracy.

However all thoughtful lawyers knew that a court trying to invalidate a Parliamentary majority vote would be confronting head on the questions that often involve bloodshed – who ultimately rules, who has sovereignty, who will the Police and possibly even the Army support if the Crown refuses to accept the orders of such a court, can our democracy still deliver peaceful succession in power?  And all concerned have known that our unwritten constitution works only because of  bottom lines shared across political parties. They depend on shared views on self restraint, on no-go areas for exercise of majority power. They worked when there were enough adults in charge to steer well clear of the boundaries of essential conventions.

Labour and the Greens have now exposed themselves as constitutionally venal – like teenagers willing to steal from the cash box at an unattended roadside stall, or who boast about ram-raiding because shopkeepers are too scared to defend themselves, or who collude to shoplift, because they distract the overwhelmed staff.

In their world, trust, and civilities and institutions that depend on it, become mugs’ games.

So when National and ACT repeal the Water Entities Act they should warn off any judge itching to get into the constitutional sphere. A repeal Bill should:

  1. Not attempt implied repeal, by simply ignoring the purported entrenchment (though arguably it could be entirely effective)
  2.  Address directly the purported entrenchment, denying the court any opportunity to find that the repealing Parliament has not directly turned its mind to the alleged entrenchment;
  3. Make it plain that the new Parliament wants to limit the damage done to the entrenchment device, by referring to the circumstances of this purported entrenchment, and
  4. Give any court tempted to be adventurous a warning that Parliament will not treat it lightly.

It might be done with words to the following effect.

Notwithstanding section [206AA] (purporting to require a super-majority to repeal section [116], and having regard to the absence of bi-partisan support for that purported entrenchment, this Act:

  1. Repeals that section [206AA] as from the date of passage of the Act in which it was included;
  2. Declares that any proceedings in any Court in which the validity and full effectiveness of this section in accordance with its terms is impugned or otherwise questioned shall terminate without further process than the coming into force of this section;
  3. Declares that any Court or party to any proceeding of a kind described in the preceding paragraph shall be liable to pay full party and party costs to any other party which has defended or sought to defend the validity and full effectiveness of the intent of this section, including a proceeding ended before the coming into force of this section; and
  4. Authorises the Minister to do all things the Minister considers necessary or desirable to protect and to uphold the intention of Parliament in passing this section of this Act.



[…] Fortunately the undoing will be possible and Stephen Franks has helpfully drafted a way it could be done. […]

  • Bill Foster
  • November 29th, 2022
  • 8:40 am

Hopefully this will be included in a Bill to repeal the whole of the Water Services Entities Act.

  • D J Baron
  • December 19th, 2022
  • 9:51 pm

I have never seen the funding of 3 waters/ 5 waters set out.But at the 11th hour this:
What? “This Bill has the parts of Three Waters Labour didn’t want to talk about, and introducing it just a week before Parliament suspended for the year was no mistake. This Bill expands the relationship with Mana Whenua and contains details for water pricing.” “Water pricing” What does this mean, NZ imports grain for bread etc and will 3 waters tax NZ grain growers. Will all water use be taxed?

  • Angel17
  • June 22nd, 2023
  • 2:26 am

Very well-said. Thank you for sharing this blog post. custom truck parts

  • D
  • April 27th, 2024
  • 9:17 pm

My proposal is that instead of expanding government infrastructure programs we should just piss and shit in our pants. It seems like you’ve been practising!

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