NZ will have a caretaker government for weeks. What that means and how it works

New Zealand’s provisional election results have created considerable uncertainty, and may feel frustrating for many voters. But fortunately there are guidelines for the parties and for the process of government during this limbo period.

Final results – which will include a large number of special votes – won’t be known until November 27, and it will take some weeks of negotiations between the parties before any viable coalition agreement can be made.

The caretaker convention and the guidance of the Cabinet Manual – the “authoritative guide to central government decision making” – now come into play.

How we got here

As of today, neither the left nor right is giving any ground. Opposition leader, Labour’s Chris Hipkins, did not concede defeat on election night. On the other hand, he was in no position to claim a victory either.

Incumbent prime minister, National’s Christopher Luxon, said, “National is once again the largest party in parliament and we have a pathway to forming the next government.” He too is in no position to say much more.

Thanks to a parliamentary overhang caused by widespread vote splitting, National has 3,650 fewer votes than Labour. But National provisionally holds 42 seats to Labour’s 36. That is clearly not proportional in the way the mixed member proportional system (MMP) is designed to work.

However, the party with the most seats doesn’t necessarily form the next government, as we saw in 2017 when Jacinda Ardern’s Labour got over the line with the help of New Zealand First.

The preliminary results have Luxon’s three party coalition (National, ACT and New Zealand First) holding 67 out of 131 seats – a narrow majority on the night.

But this may be reduced once special votes are counted, meaning Hipkins still stands a chance of leading a four-party coalition (Labour, Green, Te Pāti Māori, Opportunity).

The basic goal for both sides is to command a majority of the seats in the House of Representatives. The question at the moment is who will lead that majority, and which parties will it consist of. A government rules only so long as it has the confidence of the house.

So, given the cliffhanger outcome and the time it will take to resolve, what happens in the meantime?

Caretaker government in action

Under the caretaker convention, incumbent prime minister Luxon and his team of ministers remain in office. It’s not correct to say “there’s no government”. The governor general must always have responsible advisers and day-to-day administration must continue.

During this caretaker period, significant decisions will be deferred or attended to with a light touch. If a national emergency arose, however, then the caretaker government would of course act, of necessity.

Significant or controversial issues that can’t be deferred should be decided in consultation with other parties, to ensure the matter has the confidence of the house.

How the caretaker ministers conduct themselves in this period is a matter of political judgement and attention to the decision-making context. As the Cabinet Manual puts it, “There are no hard and fast rules.”

Decision making is constrained for the time being, but the government of the country will continue.

Special votes tend to lean to the left. The final count, then, may see a seat or two change hands. Wairarapa, for instance, is provisionally held by National’s Mike Butterick, but only by 139 votes.

The size of the overhang (currently a record-breaking 11 seats) may also change.

Those variables will affect how the parties on both sides of the house negotiate to reach agreements to form the next government. Once a workable majority is found on one side or the other, the parties in that coalition must make it clear to the public what their arrangements are.

The governor general does not guide or participate in the negotiations, but appoints the ministers to the new government once it’s clear which parties have the confidence of the house.

An obligation for stable government

There should be no need for a fresh election. It’s up to the parties now to find a majority. There are strong incentives for them to do so, and no party wants to be blamed for forcing the country to return to the polls.

If the final numbers deprive Luxon’s incumbent coalition of a majority, commentators have mostly assumed there may be a role for the newcomer Opportunity Party. But Opportunity’s policies are more compatible with the three parties of the left.

Given the party’s MPs are all new to parliament, though, it may make sense for them to support a government on a confidence and supply basis, or even by promising to abstain on confidence votes – if their support is actually needed.

A majority can always be found, but that always requires some compromises – that is the point of the system. The parties are under a powerful obligation to provide a stable government – and, constitutionally, the governor general must never be without responsible advisers (ministers).

For the time being, then, there is a caretaker government and public administration carries on. The people have cast their votes to elect their representatives. It’s now up to those representatives to form the next government.

Grant Duncan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.