Constitutional Machinery Grinds Away Behind the Political Excitement
Following Aotearoa New Zealand's General Election on 14 October 2023, results are in for the 2.24 million votes counted on election date. Preliminary results for the parties represented in the next Parliament are as follows:
| |
Projected
|
|
|
Party Votes
|
% of Votes
|
Electorate Seats
|
List Seats
|
Total Seats
|
|
National
|
878,288
|
38.95
|
45
|
5
|
50
|
|
Labour
|
606,663
|
26.90
|
17
|
17
|
34
|
|
Green
|
242,845
|
10.77
|
3
|
11
|
14
|
|
ACT
|
202,664
|
8.98
|
2
|
9
|
11
|
|
NZ First
|
145,649
|
6.46
|
-
|
8
|
8
|
|
Te Pāti Māori
|
58,949
|
2.61
|
4
|
-
|
4
|
Source: https://electionresults.govt.nz/
Voter turnout looks to be about 78 percent, down from 82 percent in 2020.
The Electoral Commission will release final results on 3 November 2023 which will include the 567,000 special votes (or 20 percent of the total) not counted on Saturday.
Preliminary results
The preliminary results show that the National and ACT parties hold 61 seats combined, enough for a majority in the House.
The combined effect of the Port Waikato byelection (scheduled for 25 November 2023) and Te Pāti Māori securing four electorate seats (more than its share of party votes), however, means that the new Parliament will most likely comprise 122 seats for the coming term. The two seat "overhang" will achieve proportionality under the formula used to allocate list seats. Significantly, that means 62 (not 61) votes will probably be needed in the House to form a government. Right now, with National and ACT on 61 seats, the outcome of special votes – which could see some seats switch – will be all-important. It is therefore quite possible that New Zealand First will be needed to secure a majority for a National-led government. Beyond "need", there will be other medium and long-term strategic considerations at play that will be exercising the National leadership team.
The preliminary results show just two-thirds of the votes were for the two major parties, Labour and National. That is higher than polls suggested, but still low by historical standards, and could point to a "grumpy" electorate.
Table: "Purple" vote – Labour and National combined percentage of votes cast, 1996-2023*
Mixed member proportional representation:
ELECTION
|
% VOTES CAST
|
| 2023 |
65.85* |
| 2020 |
75.59 |
| 2017 |
81.34 |
| 2014 |
72.17 |
| 2011 |
74.79 |
| 2008 |
78.92 |
| 2005 |
80.20 |
| 2002 |
62.19 |
| 1999 |
69.24 |
| 1996 |
62.06 |
*Preliminary result only
Government formation
National will now start government formation negotiations with ACT and quite possibly with New Zealand First (in at least an exploratory manner). Negotiations are a purely political matter, conducted between parties. By convention, parties should make appropriate public statements about their intentions once they reach an accommodation to form a government. The Governor-General can then ascertain where the confidence of the House lies based on the parties' public statements and appoint a government. Put differently, the Governor-General is an observer rather than a player at this point.
For some context, the table below summarises how long the government formation period has taken after each MMP election:
Election Year
|
Parliament
|
Days from election to ministerial appointments
|
Goverment Formation
|
|
2020
|
53rd
|
20
|
Labour + cooperation agreement from Green
|
|
2017
|
52nd
|
33
|
Labour – NZ First + confidence and supply from Green
|
|
2014
|
51st
|
18
|
National + confidence and supply from ACT, United Future and Māori Party
|
|
2011
|
50th
|
18
|
National + confidence and supply from ACT, United Future and Māori Party
|
|
2008
|
49th
|
11
|
National + confidence and supply from ACT, United Future and Māori Party
|
|
2005
|
48th
|
32
|
Labour and Progressive + confidence and supply from NZ First and United Future
|
|
2002
|
47th
|
19
|
Labour and Progressive + confidence and supply from United Future
|
|
1999
|
46th
|
13
|
Labour and Alliance
|
|
1996
|
45th
|
65
|
National and NZ First
|
Source: https://www.parliament.nz/en/pb/library-research-papers/research-papers/the-2020-general-election-and-referendums-results-analysis-and-demographics-of-the-53rd-parliament/
As a footnote, the relatively new Public Service Act 2020 anticipates a mechanism where, with the Public Service Commissioner's approval, a political party can have access to public service chief executives to assist with government formation negotiations. The Act codifies a previous convention which was rarely, if at all, used. But it is worth noting as a statutory nod to the increasingly accepted rules for government formation.
Caretaker government
The now caretaker Prime Minister Chris Hipkins made clear in this election night concession speech that the government would operate under the caretaker convention until a new National-led government takes office. The Cabinet Office will likely issue formal guidance crystalising how ministerial decision making in the post-election period will work.
The caretaker convention rests on the need for a continuous government to advise the Sovereign and recognises the inherent uncertainty that can exist immediately post-election under MMP when parties need to negotiate to form a Parliamentary majority. Ministers who are not continuing as MPs – for example, Hon Nanaia Mahuta – can continue in office as caretaker ministers until 28 days after polling day (11 November 2023) if a new government has not taken office by then.
There are two limbs of the caretaker convention. Which applies depends on the circumstances:
-
First, where it is not clear who will form the next government. (That appears the applicable limb of the convention right now because the exact composition of governing arrangements has not been finalised and announced.)
-
Second, where it is clear who will form the next government, but they are not yet in office. (That tends to be once negotiations conclude but before the Governor-General appoints Ministers.)
Under the first limb of the caretaker convention, the caretaker government can (generally speaking):
-
continue the normal day-to-day administration of the public sector; and
-
implement decisions taken or determined before the start of the caretaker period;
-
however, decisions relating to significant or potentially controversial issues, issues with long-term implications, national or local emergencies, major international events, new policy initiatives, or changes to existing policy should be deferred, given a temporary or holding arrangement or, where deferral or temporary arrangements are not possible, made after consultation with other political parties to establish whether the proposed action has the support of a majority of the House.
Under the second limb (where the formation of the next government is clear), the caretaker government should not undertake any new policy initiatives and should act on the advice of the incoming government on any matter that cannot be delayed until they formally take office.
Timeline
The following diagram marks the formal dates in the election cycle and shows where we sit right now:
Polling Day - 14 October 2023
↓
Final results announced - 3 November 2023
↓
Writ returned - 9 November 2023
↓
Last date by which new Parliament must sit - 21 December 2023
The important backstop date is 21 December 2023, by which the new Parliament must meet at the latest. On or before that date, MPs are sworn in and the Speaker is elected. The State opening of Parliament by the Governor-General who delivers the Speech from the Throne outlining the Government's plans for the term comes the next day, with Address in Reply debate marking the first confidence vote by the House in the new government.
Watching Brief will keep you updated on any significant developments in the coming weeks during the government formation period.
Please contact one of our experts for any advice on the implications of the election result, likely policy initiatives, or the implications of the caretaker government on decisions relevant to your work.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.