The 2023 general election is now just days away. Polls show that it is unlikely that any one party will be able to form a government by a clear majority, as is generally the case under MMP (the 2020 general election being an obvious exception to that rule). It also remains to be seen which parties will be part of the next government, and the nature of MMP means that this might not be known for some time after election night.
This update looks at what we can expect after election day - that is, how a new government is formed, what the old government can and can't do before then, and what the election means for bills still in train, and even recently passed legislation.
How is a government formed once the votes are counted?
There are no laws about how parties form a government, nor the negotiations that take place between different political parties that might be able to form a government (if no party has a clear majority). That's all politics. Negotiations generally take place in confidence, and the outcome of negotiations - and who will form the next government - is generally not known until the relevant party leaders make public announcements.
The Governor-General has a role in the formation of a Parliament, as they are responsible for summoning, proroguing (temporarily suspending), and dissolving Parliament (section 18 of the Constitution Act 1986).
By convention, the Governor-General has a role in the formation of a new government, as a party leader must generally be able to demonstrate to the Governor-General that they can form a government that will have the confidence of the House - that is, at least half of the MPs will support the government. Parties will often agree that by entering into coalition agreements or confidence and supply (or support) agreements. A coalition agreement provides for a closer relationship between two or more parties than a support agreement, with a distinguishing characteristic of coalition agreements being that coalitions are represented in Cabinet.
By law, the new Parliament must sit no more than six weeks after the 'return of writs' for a general election, ie the certification of the official election results (with all special votes counted, and no recounts to come) (section 19 of the Constitution Act). For the 2023 election, writ day is no later than 9 November 2023, which means that the new Parliament must sit by 21 December 2023. It is often expected (and hoped) that a new government will have been formed by then, though Parliament must still sit even if that is not the case. Ministers can also be appointed before Parliament has sat for the first time - even new MPs can be appointed as Ministers before Parliament formally sits.
How long it will take to form a government will of course depend on the final vote count, and what the relevant parties are able to negotiate and agree. There is no set timetable for this, and as we've seen in previous elections, forming a government can take anything from a few days to a number of weeks. New Zealand began using MMP in 1996, with it taking nine weeks after the 1996 election to form a government. Since then, governments have all been formed within five weeks of election day. In 2020, the Government was formed on 31 October, two weeks after the election day. The last time New Zealand had a coalition government was 2017 - the general election was held on 23 September, and New Zealand First's announcement that they would form a minority coalition government with Labour (with confidence and supply from the Green Party) was made less than a month later on 19 October.
Even under MMP, a government has always been formed after election day. However, if neither of the major parties have the numbers to form a government (even with one or more other parties), and it is unclear where the confidence of the House lies, a second election is a possibility. While rarely exercised, the Governor-General could, using her reserve powers, call for a fresh election.
What happens while those negotiations are underway, and before we have a new government?
The government of the day can govern right up until the day of a general election, and there are no formal legal constraints on a government's ability to do so. However, by convention, governments often act with some restraint during the pre-election period, for example by not making significant appointments to public roles.
However, the caretaker convention applies immediately after a general election until a new government is formed, and that can constrain a government. Exactly how the caretaker convention will operate after the 2023 general election depends on how clear it is as to who will form the next government.
If it is clear who will form the next government, by convention the outgoing government will not undertake new policy initiatives. If urgent constitutional, economic or other significant issues arise that require immediate decisions, the caretaker government is expected to act on the advice of the incoming government.
Even if it is not clear who will form the next government, the normal business of government can continue. Decisions made before the election can also be implemented, though there is an expectation of restraint for significant decisions. However, under the caretaker convention, decisions relating to new matters should be deferred to the extent possible, and consultation with other political parties may become necessary.
The caretaker convention will be of most relevance if there is a change in the main political party that will form part of the new government. As reflected in the Cabinet Office Manual, during the caretaker period, Ministers and the public sector will be very mindful of the convention when going about the business of government:
The caretaker convention colours the whole conduct of government, and requires careful judgement by Ministers, public servants, Crown entities, and other public sector agencies as to whether particular decisions are affected. There are no hard and fast rules. Ministers may need to take into account various considerations (including political considerations), in deciding whether it is appropriate or necessary to proceed on a matter and how the matter should be handled. Decisions will also be considered against the background that the incumbent caretaker government has lawful executive authority, until replaced or confirmed in office.
What might happen to bills and laws after the election?
In the leadup to the dissolution of Parliament on 8 September 2023, the Labour government passed some significant law reforms. Notably:
- The Natural and Built Environment Act 2023 and Spatial Planning Act 2023, which will eventually replace the Resource Management Act 1991, became law on 24 August (see our insight - The Natural and Built Environment Bill set to become law)
- The Water Services Entities Amendment Act, which amends the Water Services Entities Act 2022, was passed on 16 August 2023 (this relates to what was previously known as the "Three Waters" reforms)
- The Therapeutic Products Bill, which will eventually replace the Medicines Act 1981, became law on 26 July 2023 (see our insight - Parliament passes the Therapeutic Products Bill)
However, there were 52 bills that were still working their way through Parliament when it was dissolved. These are a mixture of bills introduced by the government and private member's bills, and include for example:
- The Ram Raiding Offending and Related Measures Amendment Bill
- The Electoral (Lowering Voting Age for Local Elections and Polls Legislation) Bill
- The Emergency Management Bill, which if passed will replace the Civil Defence Emergency Management Act.
By law, all of those bills automatically lapsed when Parliament was dissolved (section 20 of the Constitution Act). The new Parliament will generally pass a motion reinstating a lot of business of the previous Parliament during its first sitting. Generally members' bills are reinstated, however if there is a change in government, it's possible that some bills introduced by the previous government may not be reinstated.
A reinstatement motion can also allow other business of the last Parliament to continue, such as consideration of petitions.
If there is a change in government, we can also expect to see new legislation introduced, including to make changes implemented through legislation passed by the previous government. For example, as part of its 100 Day Action Plan, the National Party has promised to:
- Repeal the Fair Pay Agreements Act 2022
- Introduce legislation to disestablish the Te Aka Whai Ora Māori Health Authority
- Begin disestablishing Te Pūkenga, which was created when the Labour government merged the 16 polytechs
- Repeal the water services entities legislation
- Repeal the Natural and Built Environment Act and Spatial Planning Act, and introduce a new fast track consenting regime
- Begin work to establish a new National Infrastructure Agency, which is likely to require new legislation (if for example it is a Crown entity or departmental agency).
Similarly, some Labour Party election promises set out in its 2023 plan will require new legislation, such as:
- Amending GST legislation to remove GST from the sale of fruit and vegetables
- Introducing four weeks' paid partner's leave
- Changing the regulatory regime for vaping products.
Like many people, we await the election outcome with interest, and hope that we will get a sense of the make up of the next government, what legislative change that might bring, and what those changes will mean, sooner rather than later.
This article was written by Natasha Wilson (partner) and Alexia McEwen (solicitor).
