Senior Labour minister David Parker was unaware his party was going to vote in favour of a controversial 60 percent entrenchment clause in the Three Waters legislation proposed by the Green Party.
Asked by Newshub on Tuesday whether he knew about the 60 percent threshold for entrenching part of the legislation - something his party supported during urgency in Parliament but now admits was a "mistake" - Parker said he wasn't.
"I was not aware that we were going to vote in favour of the 60 percent entrenchment clause," he said. "I have always been opposed to the use of entrenchment for policy propositions as opposed to constitutional."
Chief Labour Whip Dr Duncan Webb said he cast the vote for Labour MPs in accordance with the caucus' intention, but wouldn't say whether the MPs were aware in caucus of the 60 percent threshold.
"I am happy I cast the vote in accordance with the wishes of caucus."
The Government's returning the legislation to the House on Tuesday to overturn the amendment, which has been heavily criticised by constitutional experts and prompted a damning letter from the Law Society to Local Government Minister Nanaia Mahuta.
There was outrage as entrenchment - which means a special majority of parliamentarians is needed to amend legislation - is normally only used on constitutional matters, like electoral law, not policies like Three Waters.
Despite the Government backdown, key figures, including Mahuta and Leader of the House Chris Hipkins haven't clarified whether Labour MPs were aware they were voting in support of a 60 percent threshold, rather than the usual 75 percent.
Prime Minister Jacinda Ardern, who's confirmed entrenchment was discussed at Labour's caucus, repeated on Tuesday that entrenchment is "generally understood to mean you have to have 75 percent [of parliamentarians]".
She said the amendment from the Greens wasn't tabled until after the caucus meeting and she hadn't seen the individual proposal.
Eugenie Sage, the Green MP who proposed the amendment, has said the party had made it clear the party wanted a 60 percent threshold, including in a Select Committee report.
The Government previously sought support from other parties for an entrenchment clause, to keep water assets in public ownership, but didn't receive cross-party support. Crown Law advice also said entrenchment required a "high constitutional threshold".
Mahuta, the minister responsible for shepherding the Three Waters legislation through Parliament, on Tuesday said that Select Committee report was public and Labour MPs on the committee were aware of it. She didn't say if she told other Labour MPs of the Greens' proposition.
Asked if Labour MPs were fully aware of the details of the 60 percent amendment when they cast their vote, Mahuta just pointed to what the Greens had laid out in the Select Committee report.
"To the extent that the Select Committee report had identified what the Greens' position was," she said.
Mahuta said the caucus accepted the Crown Law advice about a "75 percent threshold for entrenchment clauses, that is a high threshold and it is a constitutional threshold".
She said that is why "we did not include that within the legislation".
However, she wouldn't say why Labour MPs then went on to vote for the Greens' 60 percent threshold clause.
Asked again directly whether she had conversations with Labour MPs that it would be a 60 percent threshold, Mahuta didn't say.
"That's a Greens proposal and it was made clear in their minority report. When the Select Committee tabled their response, it was clear what the Greens' view was and I reflected in the House, through the Committee stages, what we had accepted.
"We accepted Crown Law advice around the 75 percent threshold being a high mark to pass and it is usually reserved for constitutional issues."
Mahuta said once the amendment was tabled by the Greens, it was "very clear" it was a 60 percent threshold.
Hipkins, who has responsibility for the legislative programme in the House, wouldn't say if the 60 percent threshold was discussed in caucus, but said a "mistake was made in voting on the 60 percent".
"We shouldn't have supported the 60 percent… I'm not going to get into the entrails of that. A mistake was made. We are fixing the mistake."
Hipkins denied the mistake showed Labour was inexperienced.
"I don't think an inexperienced government would have led New Zealand through a global pandemic in the way that we did. Sometimes even the most experienced governments will make a mistake."
