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Home / New Zealand

Mai Chen: Making the voters' decision work

NZ Herald
18 Sep, 2014 09:30 PM5 mins to read

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One of these men will have to prove to the Governor-General that he has the numbers and the support needed to form a government. Photo / Getty Images

One of these men will have to prove to the Governor-General that he has the numbers and the support needed to form a government. Photo / Getty Images

Opinion by
Return of all the ballots switches on a complex system that will eventually deliver us a new government

What happens after our election party hangovers on Sunday? How is the new government formed, and when does it get back to business as usual?

Since Parliament was dissolved on August 14, parliamentary business has been on hold, and while the Government has continued to make some decisions and appointments, many others have been suspended. This is consistent with the usual practice of restraint before an election. But the hiatus can be a dampener on business and household decision-making. So, when does Government resume?

The first thing that happens after the election is resolution of who has been elected to Parliament. For most electorates and list MPs, this should be apparent on election night, or once special votes are counted. But if the result is close, the courts may become involved. A recount may be held in front of a district court judge - an example is the recount in Waitakere which returned Paula Bennett to Parliament in 2011.

Recounts can be sought up to three days after the result is declared, but they can decide only whether the votes have been correctly counted - not whether the election was properly conducted.

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More serious concerns about the election's conduct, such as corrupt or illegal practices (including bribery, treating or undue influence of voters) affecting the result, can be contested by High Court electoral petition.

The High Court considers the voting in an electorate, and can void the result if corrupt or illegal practices have "so extensively prevailed that they may be reasonably supposed to have affected the result".

The court can also strike off any votes obtained through corrupt or illegal practices, and decide who has been elected.

Such petitions can be filed up to 28 days after the result is formally notified, and if electorate changes occur, the Electoral Commission must reallocate list seats accordingly.

Finally, a petition can be filed with the Court of Appeal complaining that the Electoral Commission did not use the correct procedure under the act when allocating votes.

Once the membership of the new Parliament is settled, a prospective government will have to satisfy the Governor-General that it has the confidence of the House - meaning the numbers in Parliament to pass confidence motions and money bills. If National wins more than half of the seats in the new Parliament outright, as some polls suggest, that will be a straightforward exercise for the Governor-General. But the usual result scenario under MMP, where no one party has an outright majority, is more complex.

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In a speech last year, the Governor-General explained that, before appointing a new government, he would require a group of parties proposing to form a government to give "clear and public statements", and "unambiguous explanations of their intentions on matters of confidence, so it is obvious to everyone where party allegiances in the House will lie".

So if Labour or National were to claim the confidence of the House because of support by a group of minor parties, the Governor-General would require clear public statements of support from each of those minor parties - usually in support agreements between those parties and National or Labour. Such agreements detail policy and legislative concessions in return for the minor party's support.

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The Governor-General has also said that if a party publicly says it will not vote on confidence matters, he would take that into account when deciding which party of group or parties had the confidence of the House - because, in effect, the threshold to pass a confidence motion would be lower.

As for the likely timeframes, the Constitution Act requires Parliament to reconvene by November 20.

Until negotiations are completed and the new government is sworn in, the caretaker convention applies to the incumbent Government - to keep the machinery of government ticking over and the ship of state on course, but not to change course unless essential, and then only in consultation with the opposition.

Thus the incumbent Government could keep governing until it lost a motion of confidence in Parliament. A loss-of-confidence vote, with no alternative coalition able to demonstrate it had the confidence of Parliament, would probably result in a new election, something minor parties would be anxious not to trigger.

An extended period of limbo, such as happened in 1996, is not good for business or consumer confidence.

Once a government is appointed, new ministers will be sworn in and citizens and businesses will start briefing ministers to get priority for their issues.

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Once Parliament is formally reconvened, the Government will set out its policy and legislative agenda for the next three years in the Speech from the Throne, and reinstate any business from the previous Parliament that it wishes to carry over, including bills that have yet to pass.

Parliament may then only sit for four or five weeks before adjourning for Christmas and a summer holiday until the Cabinet reconvenes in late January.

• Mai Chen is a partner of Chen Palmer and adjunct professor at the University of Auckland Business School

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