Watching Brief: Final election results – New Zealand First holds balance of power

It's official. Winston Peters' New Zealand First party holds the balance of power in the new Parliament, and there will be a National-led government. The Electoral Commission announced the final results of the 2023 general election this afternoon. New Zealanders cast 2,883,412 votes, or a 78.2 percent voter turnout (down from 82.2 percent at the 2020 election). The National Party lost two seats on its election night result, meaning that the National and ACT parties need New Zealand First to secure a majority in the House of Representatives.

2023 General Election results

The main points to note from the final election results are:

• National lost two MPs compared to election night, taking its total MPs to 48.
• The Green Party gained one MP.
• Te Pāti Māori increased its MPs from four on election night to six, winning the seats of Te Tai Tokerau and Tāmaki Makaurau.
• Only the Green Party and Te Pāti Māori increased their percentage of the party vote much from election night. Otherwise, the party vote percentages stayed roughly unchanged. National, ACT, and NZ First lost tiny percentages, and Labour gained a tiny percentage.
• The success of Te Pāti Māori in electorate seats compared to party votes creates a two seat "overhang" to ensure proportionality in the House. That means a 122 seat House. The overhang will increase to 123 seats after the Port Waikato by election on 25 November 2023.
• 62 MPs are needed for a Parliamentary majority – whether in a 122 or 123 seat House.

The official results show that National now holds 48 seats and ACT 11 seats – a combined total of 59 seats. With National and ACT on 59, a National-led government needs New Zealand First's eight seats on confidence and supply votes to cross the 62-vote threshold. We can expect negotiations for coalition or confidence and supply agreements to continue in earnest and in haste. We are at 20 days and counting since polling day, which means this is already the fourth longest government formation period post-election since MMP's introduction in 1996.

Where do we go from here?

The chart below provides an approximate indication of the sequence of events (political and constitutional) from here. 

Official Results - 3 November 2023

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Recounts

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Return of the writ 

9 November 2023 (later if recounts)
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Parties announce agreements

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Governor-General appoints Prime Minister and Ministers / Caretaker Government Ends

↓

Parliament meets / State Opening of Parliament

(within 6 weeks of the return of the writ - 21 December 2023 at the latest)

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Legislation to give effect to 100 Day Action Plan

On recounts, an electorate candidate can apply for a recount of the electorate vote, or a party secretary can apply for a recount of the party vote in a particular electoral district or nationwide. Applications are made to a District Court Judge within three working days after the official results are declared, and the recount must commence within three days of receiving the application. That means anyone seeking a recount has until the end of Wednesday 8 November 2023 to apply for a recount. The recount can amend the final result, and potentially delay the return of the writ (which would otherwise occur no later than 9 November 2023). The writ is the formal instruction to hold the election, with the names and results printed on the reverse side of the writ. A delayed return of the writ affects the backstop date by which the new Parliament must meet.

We note some exceptionally close electorate results which could prompt recounts:

We know that government formation negotiations are underway already. Now that the final results are out, National, ACT and NZ First will move to conclude negotiations.

By constitutional convention, parties should make appropriate public statements about their intentions once they reach an agreement to form a government. The Governor-General, as an observer rather than a participant of such negotiations, ascertains where the confidence of the House lies based on the parties' public statements and appoints a government. The appointment of a government is separate to Parliamentary processes and can occur at any time, provided that the Governor-General is satisfied that the government can command a majority in the House, based on the public statements. This also marks the end of the caretaker government.

Once Ministers are appointed, we expect that they will start acting on the plans indicated in National's 100 Day Action Plan. Christopher Luxon, as incoming Prime Minister, indicated that the House would sit until close to Christmas and resume in January 2024 rather than the week after Waitangi weekend – as is usually the case.

Parliament will meet no later than six weeks after the return of the writ (as is required by the Constitution Act 1986). Therefore, the last possible date on which Parliament must meet is 21 December 2023, unless the return of the writ is delayed by recounts. The first event is the Commission Opening by High Court judges, where MPs are sworn in and a Speaker is elected. The following day is the State Opening of Parliament with the Governor-General delivering the speech from the throne setting out the Government's agenda. The Address in Reply debate marks the first confidence vote by the House in the new government.

Port Waikato by-election

And finally, the Port Waikato seat will not return an MP in the general election due to the sad death of the ACT Party candidate in the seat. Port Waikato will hold a by-election on 25 November 2023. There is a high chance that National MP Andrew Bayly will win, given that he has won this electorate for the past three elections (including when the electorate was named Hunua). Labour has not nominated a candidate for the by-election. Therefore, we can assume that National will gain another electorate seat with this by-election and take its total number of MPs to 49.

Watching Brief will continue to keep you updated on any government formation developments. Please see here for our previous publication on the preliminary results of the 2023 general election and commentary on the caretaker convention.

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.