Branko Marcetic: In Defence of anti-privatisation entrenchment

Branko Marcetic: In Defence of anti-privatisation entrenchment

The government’s Three Waters debacle is an unfortunate one. By trying to heavy-handedly push entrenchment through under urgency and without public debate, then backtracking, and the level of backlash all this produced, the New Zealand public have not only lost the ability to protect our water infrastructure from rapacious profiteers, but missed out on an important, wider debate about what exactly we consider constitutionally important.

Constitutional experts recently erupted in outrage at the provision, which would have set the daunting threshold of 60 percent of Parliament instead of a simple majority to approve any future privatisation of New Zealand’s water, the kind of measure generally reserved for narrow constitutional matters like electoral law, not “a contestable policy position.” If Labour extended it here to the issue of keeping resources like water infrastructure in public hands, groups like the New Zealand Law Society argued, it would set a precedent corrosive to our political system, setting off a tit-for-tat use of entrenchment for partisan political goals. What’s to stop, say, National from passing the Three Strikes law again or making radical changes to welfare, then using entrenchment to make these changes all but un-repealable?

As a result, all talk about the issue is now dominated by the politics of it all, by what certain people in Labour knew and when they knew it, and the reputational damage to the Prime Minister and her government as a result of the controversy. This is too bad, because the idea of using entrenchment to keep New Zealand’s natural wealth and community infrastructure in public hands is a reasonable idea, and it’s one the country would have benefited from a debate over.

Much of this outrage has been fanned by the National Party, which has blasted the idea as “unconstitutional and undemocratic.” This is unsurprising: the party in opposition is duty-bound to make life hard for the government when it smells blood, and being ideologically committed to the unpopular policy of privatisation, National naturally has an interest in turning the conversation to procedural issues instead of the value of keeping New Zealand resources in New Zealand hands.

But this is all more than a bit rich coming from the party that blithely ignored the similar protestations of the Law Society, the Human Rights Commission, the Privacy Commissioner, and others nine years ago about the dangers of its plans to allow our foreign spying service, the GCSB, to effectively spy on New Zealanders. That bill passed thanks to the near-unanimous support of National, whose then-leader dismissed the concerns of these groups as “misinformation and conspiracy theories,” and despite it all, these days it still barely registers a mention. Clearly, our politicians and media have been happy in the past to dismiss the concerns of constitutional experts, or to simply forget about them after the fact.

Might Kiwis have done something similar in this case, deciding, in the end, that ensuring public control over the country’s water was important enough to merit taking the extraordinary step of entrenchment? Possibly. Who controls New Zealand’s water infrastructure isn’t a mere “party-political matter” as some have argued, but a question of fundamental importance that intimately touches the lives of anyone living in the country, potentially deciding everything from how much we pay for water to ensuring it’s healthy and safe to drink. Clearly, New Zealanders overwhelmingly favour ongoing public control of our shared resources, given the more than two-thirds of the country that voted against John Key’s asset sale proposal in 2013, which had been preceded by numerous protests around the country.

A conversation about how best to protect resources from privatisation is especially important given the last few decades’ worth of New Zealand history. As in 2013, when Key simply ignored the overwhelming referendum result against state asset sell-offs, the country’s seen case after case of such privatisations being rammed through contrary to the public’s wishes, with vast swaths of critical industries forcibly placed out of the control and oversight of the public that most relies on them.

And sure enough, much of the time the public’s been the loser: either through higher prices, as the partial privatisation of the country’s electricity sector produced; reduced services, as when the privatisation of New Zealand’s banking system led to widespread branch closures in rural areas; or exorbitant taxpayer costs, as when mismanagement and ruthless profiteering by new, private owners forced the government to buy back the assets it had sold for a hefty price. In the process, we happened to create our own new class of super-rich elite, new corporate monopolies, and sent billions of dollars worth of profits off-shore instead of reinvesting them in local communities.

As 2013 should remind us, this isn’t ancient history. John Tamihere most recently ran for the Auckland mayoralty looking to partially privatise the city’s Council-owned water company to the highest bidder, and its current mayor, Wayne Brown, has wasted no time in using a budget deficit as an excuse to try sell the city’s stake in Auckland Airport. As long as we have corporate profiteers itching to make a quick buck, we’ll have politicians who serve them clambering to sell off New Zealanders’ collective resources to the highest bidder. Entrenchment is an appropriate method to protect against this profiteering, and Kiwis were owed a public debate about taking such a step ― the kind of public debate that, had it happened, would have clearly marked the use of entrenchment in this case apart from the kind of frivolous or partisan use that experts feared it would inspire.

But that scenario needed two things: an actual public debate, and a government willing to make a strong case for taking such a step to keep New Zealand under public control. Unfortunately, Labour’s approach to this, and the way it deals with just about any hot-button issue more generally, means neither of those happened. And now the provision has been stripped from the bill, making it potentially easier for any future radical, right-wing government to sell New Zealand’s water infrastructure into profit-seeking hands, and out of democratic accountability.

The idea of using entrenchment to protect our resources from state sell-offs shouldn’t be dismissed out of hand, but debate has now shifted entirely to the meta-political narrative of the snafu, instead of the actual substance, and the merits of the idea. That’s a shame, because it’s something worthy of robust public debate. The issue is simply too important not to have one.


Branko Marcetic is co-host of the podcast 1 of 200 and a staff writer for Jacobin magazine

This article can be republished under a Creative Commons CC BY-ND 4.0  license. Attributions should include a link to the Democracy Project.