Who will be our next Prime Minister? And what will be the shape of the government they lead? Victoria University’s Dr Dean Knight examines NZ’s electoral system

More than 2.5 million votes are likely to be cast by the close of polling at 7pm on Saturday. But the counting of those votes will not, in itself, determine whether Bill English or Jacinda Ardern will be Prime Minister for the next three years. The next Prime Minister will only become apparent through a largely political process of government formation that follows polling day. But this political and constitutional process is carefully managed to ensure it reflects the democratic wishes of New Zealanders. 

We do not directly elect the Prime Minister or government. The MPs we elect to the House of Representatives effectively determine who fills those roles from within their ranks, operating like an electoral college, in conjunction with the Governor-General as the ultimate constitutional referee.

In a formal sense, the next Prime Minister is appointed by the Governor-General, on behalf of the Sovereign, under the royal prerogative. That is, the power to appoint the Prime Minister is a long-standing power of kings and queens to appoint people to advise them about the exercise of their royal duties. Nowadays, almost all the powers of the Sovereign and Governor-General are only exercised on the advice of democratically-elected ministers. 

The appointment of the Prime Minister is one of the very rare situations where the Governor-General is called on to exercise independent judgment – or what’s sometimes called a “reserve power”. But the power is carefully governed by constitutional principle and convention to ensure its exercise is democratically legitimate. 

These principles and conventions have become more sophisticated under MMP with the advent of multi-party government. The first-past-the-post system usually created a clear electoral winner and the leader of the party with a majority of seats in the House was appointed Prime Minister without any fuss. However, decisive outcomes are unlikely under MMP and no party has yet won outright. Instead, parties have entered into different governance arrangements with other parties in order to ensure they have sufficient support to govern.  

Confidence is the lifeblood of a government. It is its mandate to govern, expressed by the MPs in the House on our behalf.

A series of carefully worded constitutional speeches by successive Governors-General, subsequently reflected in the Cabinet Manual, has clarified the relevant principles and processes. The basic rule is a simple one. The prime minister and their government must command the confidence of the House. As one Governor-General explained it, “the Governor-General will always appoint as Prime Minister the person who has been identified through the government formation process as the person who will lead the party or group of parties that appears able to command the confidence of the House of Representatives”. 

Confidence is the lifeblood of a government. It is its mandate to govern, expressed by the MPs in the House on our behalf. In practical terms, it means having a majority of votes on certain important votes in Parliament. These votes include express motions of confidence or no confidence (such a motion is usually moved in the Address-in-Reply debate – the first debate of each new Parliament) and votes on the Budget and other money bills (without parliamentary approval to spend money, the government can’t function).

The government must survive these key votes, otherwise it loses its mandate. Thus, in order to be appointed Prime Minister, Bill English or Jacinda Ardern must get at least 61 of the 120 MPs elected to the House willing to express confidence in their proposed government. Slightly more might be required if there is an overhang (that is, if a party wins more electorate seats than the number of seats in the House it would be entitled to based on its party vote) where the size of Parliament is more than 120 MPs. Slightly fewer might be required if a party agrees to abstain on matters of confidence. This target – a majority in the House on matters of confidence – has been explained by Governors-General as the quantity dimension.

The other dimension is clarity. Convention dictates that party leaders provide clear, public statements on their intentions on matters of confidence following the completion of negotiations. Parties usually publicly release their coalition, confidence-and-supply or other support agreements so the Governor-General and the public are left in no doubt about each party’s. Governors-General have emphasised the need for certainty and transparency in order that they may fulfil their role of assessing which party or group of parties commands confidence – and fulfil that role at arm’s-length from the political fray. 

Governors-General in New Zealand have wisely treated the process of government formation as a political one, to be undertaken by politicians. Reflecting the neutrality of their office, the Governor-General does not take any active role in negotiations. Their sole role is to ascertain where the confidence of the House lies, effectively seeking to anticipate the first vote on confidence to be held once the House meets. If there is no clear outcome following negotiations, the Governor-General may find it necessary to talk to party leaders, but to date this has not proved necessary.

While we don’t directly vote for our Prime Minister or government, our preferences expressed at the ballot box remain the crucial ingredient.

The constitutional target is commanding the confidence of the House, however achieved. Importantly, as Governors-General have noted in their constitutional speeches, the highest polling party does not have any special constitutional position, unless they secure an unlikely absolute majority. In other words, constitutionally, the party with the most party votes does not get first shot at forming a government. While MMP has so far seen the highest polling parties leading governments, a constitutionally legitimate government may also be formed by groups of other parties. Giving a head-start, whether constitutionally or politically, to the highest polling party would undercut the clear and democratically faithful target of commanding the confidence of the House – unnecessarily complicating our evaluation of a government’s legitimacy. 

No formal timeframe is set for the process of forming a government. The caretaker convention means much of the business of government can continue, albeit subject to additional restrictions. If we know who will take over as the next government, the government will only act on advice of the incoming government, even though that incoming government has not been formally sworn into office. If we don’t yet know who will take over, the government will avoid making significant decisions; and, if one must be taken, they will only act after consultation with other political parties to ensure the course of action has majority support. The caretaker convention therefore ensures any decision made during the government formation and transition period has a democratic mandate. Thus, the political process of garnering the necessary support can take as long or as little time as is needed. 

Key milestones help catalyse that process. The formal declaration of election results – expected to be by Saturday October 7 – provides certainty about the final make-up of the House. This may be especially significant if the outcome is close. Parliament must also meet by Thursday November 23 (no later than six weeks after the day fixed for the return of the writ, as required by s 19 of the Constitution Act 1986). The government need not be formed before Parliament reconvenes, especially because the caretaker convention means the wheels of government can continue to turn as necessary. But the parties usually want negotiations to be sorted sooner and the Prime Minister is usually appointed well before Parliament reconvenes. Certainly, we expect a government to emerge more quickly than the 18 months it took in Belgium following their election in 2010! 

The birth of a new government is signified by a formal appointment ceremony, where the Prime Minister is sworn into office by the Governor-General. Once the Prime Minister is sworn into office, the democratic legitimacy and full authority of government is restored. The Prime Minister can then advise the Governor-General to appoint their government ministers and get on with their new government programme. The recent practice has been to hold a formal appointment ceremony even in cases where the incumbent Prime Minister is to remain in office; while formal appointment and fresh oaths are, strictly speaking, unnecessary, the ceremonial milestone marks the commencement of the new government and signals the end of the caretaker period.

In the unlikely event negotiations fail and no party or group of parties is able to command confidence, a fresh election may be needed. The re-dealing of the cards would hopefully ensure a new political settlement and a government able to command the confidence of the House. However, the incumbent Prime Minister’s ability to request a new election is significantly constrained because they, by definition, do not command the confidence of the House. Calling a new election in these circumstances is subject to the caretaker convention – needing majority support of MPs in the House. 

While we don’t directly vote for our Prime Minister or government, our preferences expressed at the ballot box remain the crucial ingredient. The constitutional conventions governing the birth of our next government are based on democratic principles to ensure the legitimacy of the next person serving as Prime Minister.

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