The parliamentary advisor who helped MPs discover 32 unauthorised changes to the Three Waters reforms bills is calling for a wider review, saying it would be “potentially dangerous” to assume this is an isolated case.
The finance and expenditure select committee reported last week that Department of Internal Affairs’ officials went behind MPs’ backs to make changes to the Three Waters reforms that MPs didn’t agree with.
“There was an arrogance that came through during the latter stages from the department that I don’t think was helpful to ensuring that we’ve got the right outcome,” says Amelia East, who advised the committee.
East, the New Zealand head of infrastructure consultancy HKA, says her experience shows the need for specialist advice to all select committees. “Now, seeing how the sausage is being made, I would be categorically recommending an independent advisor, de facto on all bills.”
The unauthorised changes spotted by East and the MPs included an apparent attempt to undo critical committee changes to stormwaters management, removing the explicit requirement to engage with mana whenua, and giving the minister power to redact information from the Governor-General’s orders in council.
East’s advice to the finance and expenditure select committee documents 32 changes made by Internal Affairs to the main water services bills without any apparent approval by MPs.
“The only way the public and committee can have confidence in the legislative process is knowing that departments are running the process with the rigour that is demanded by a democracy.”
– Amelia East, independent advisor
East, herself, was a senior manager on the Internal Affairs Three Waters programme, until the start of last year. But she says that didn’t affect her relationship with Internal Affairs officials. “I was trained at Treasury. For me, providing free and frank advice has always been my role. I didn’t find it difficult. I imagine Internal Affairs probably found it harder.”
Internal Affairs’ local government arm is headed by deputy chief executive Michael Lovett. Hamiora Bowkett reports to him as executive director of the reform programme.
Newsroom has asked what disciplinary action will now be taken, whether the department’s leadership will be apologising to MPs, and whether the department will be reviewing its actions on other bills.
Bowkett issued a single sentence statement: “The Department of Internal Affairs has acknowledged the issues raised by the finance and expenditure committee and these matters were addressed through the committee process.”
It’s understood Internal Affairs has not apologised to the committee, or to the Speaker.
“There was never any real admission of the issues,” East says. “To be frank, it was an aversion. I don’t think it was ever adequately resolved nor apologised for. I saw it as quite a defensive response to the issues.”
Labour MP Phil Twyford, who was on the committee, echoes the need for independent insight. “This is an example of the select committee working in a way that’s both cross-party and exercising the kind of independence that the committees are supposed to demonstrate in the parliamentary system.”
“It points to some of the submissions the standing orders committee has been getting recently about the need for independent advice to committees – independent of the government.”
– David Wilson, Clerk of the House
David Wilson, the Clerk of the House, says the officials’ persuading the Parliamentary Counsel Office to make unauthorised changes to the bill is “concerning”.
“I don’t think it’s widespread, but I am concerned where it happens. And it points to some of the submissions the standing orders committee has been getting recently about the need for independent advice to committees – independent of the government.”
The finance and expenditure committee contracted East as an independent advisor on the Water Services Legislation Bill, and Chapman Tripp’s Simon Peart as an independent advisor on the accompanying Water Services Economic Efficiency and Consumer Protection Bill.
Wilson says the finance select committee quite often requests independent advisors, because of the complexity of its work.
“We have resourcing to provide independent advisors at the level that they’re currently requested. If it was to become something committees wanted on every bill, we probably would need extra resources for it.”
East has told Newsroom of some of the key changes that were made by Internal Affairs officials, without any apparent authorisation by MPs. The most glaring one is their attempt to reverse committee changes to stormwaters management, she says.
“Urban stormwater is all about who has to maintain streams and what is the right of private landowners. It’s an Auckland issue in particular, that they just didn’t seem to listen to, or want to. I think they have quite a closed approach to changes unless the committee is very ardent on what changes they want.
“On the stormwaters, Internal Affairs just simply kept saying, we don’t understand it, we don’t get it. We don’t know what you’re trying to do. And it was an express instruction from the committee, Parliamentary Counsel Office-drafted.”
She says there were three parties: the MPs, the Parliamentary drafters and the departmental officials. A “tense relationship” seemed to occur between the officials and the other two.
Part of that was clashes between the Internal Affairs officials and the Parliamentary Counsel Office. “I’ve never seen rival drafting presented before. I really haven’t. It was the department and Parliamentary Counsel Office’s inability to seemingly put squabbles behind, or come with best practice.
“Without the independent role, I’m not sure how you resolve those issues, because it comes down to broken trust.”
“It was difficult for them to understand in the short period, the consequences of technical changes, when there was no policy rationale behind them.”
“They need to be reviewing their processes to ensure mistakes, whether deliberate or non deliberate, aren’t made. Because the only way the public and committee can have confidence in the legislative process is knowing that departments are running the process with the rigour that is demanded by a democracy.
“I think everyone should own their mistakes and apologies are helpful for people to move on, as opposed to this departmental arrogance there, that means they don’t have to. The department can’t shy away from the fact that they made mistakes.”
She says the availability of independent advice (and she notes advisors receive only a nominal fee) shouldn’t be constrained by tight budgets. “Cost at this level should not be the impediment to enabling that advice.”
Sir Geoffrey Palmer, the former prime minister and constitutional law expect, was among those to make a submission to this year’s review of standing orders.
“I think the New Zealand Parliament should have a real look at its methods and procedures so it can handle issues better, as I said to the standing orders committee. These are not normal times and normality may never return given how things are in the world,” he tells Newsroom.
“There is too much work, not a sufficient number of MPs to do it, and not enough time. The fact that a general election is in the offing makes the pressures worse. Officials are under stress as well. There are not normal times and inevitably things go wrong.”
“There is always a temptation in emergency situations to cut corners and depart from constitutional principle. New Zealand lacks the checks and balances to prevent such constitutional slippage.”