The election night results show National in the lead with 39 per cent of the votes, with Labour on 26.9, Green on 10.8, Act on 9, NZ First on 6.8, and Te Pāti Māori on 2.6.
As it stands, National and Act could form a Government without needing to loop in New Zealand First - but the number could still change and put Winston Peters back into a position of power.
The figure is subject to the counting of the special votes.
People may be counted as special voters if they are voting somewhere other than a voting place, such as a hospital, voting from overseas, or are serving a prison term of less than three years.
There are other reasons someone’s vote may be counted as a special vote, including if they are not on the printed electoral roll at the place they vote, are on the unpublished roll, or enrolled to vote late.
Special votes can be returned up to 10 days after election day and must be physically counted in the electorate they were cast for.
This means the election night results are not finalised until special votes are counted. These votes will be revealed on November 3.
What does it mean if there is overhang?
Parliament is normally made up of 120 members, but the size of Parliament can go over this limit if a party wins more electorate seats than it is entitled to based on its share of the party vote.
When this happens, the party keeps the extra seats, and the size of Parliament is increased - meaning the winning parties will need more seats to make a majority.
This year, National and Act currently have 61 seats between them – enough for a majority. National is also likely to pick up another seat in the upcoming byelection in Port Waikato.
Rawiri Waititi and Merepeka Raukawa-Tait at the Te Pāti Māori gathering on election night. Photo / Andrew Warner
It is also a close race in some electorates. In Te Tai Tokerau, Labour’s Kelvin Davis has 7792 preliminary votes, to Mariameno Kapa-Kingi ‘s 7305 votes.
In Tāmaki Makaurau, Te Pāti Māori candidate Takutai Moana Kemp is a close second to the incumbent, Labour’s Peeni Henare, with 495 votes between them.
With special votes included, Te Pāti Māori’s performance could deliver an overhang of two or three seats, meaning National and Act would need help from New Zealand First to reach a majority of 62 or 63 seats.
NZ First leader Winston Peters has indicated he is prepared to help National and Act to reach a majority if needed.
When will we have a Government and who’s in charge in the meantime?
It may be unlikely New Zealand will have a clear Government when the special votes are released, due to the overhang.
If negotiations are needed with another party, it could still take some time for parties to come to an agreement.
Until this happens, Labour remains in place as a caretaker government. This happens in between an election and the official government formation process.
This means Labour will still be the lawful executive authority with all the powers and responsibilities that go with it, though traditionally governments in these situations have constrained their actions until the political situation is resolved.
Labour leader Chris Hipkins said they will take direction from National on any decisions that need to be made in the caretaker period. Photo / Mark Mitchell
According to the Department of the Prime Minister and Cabinet, if matters arise during this period that require urgent decisions - including emergencies and disasters and issues with long-term implications - decisions should be handled by way of temporary or holding arrangements that do not commit the government in the longer term.
If that is not possible, the decisions should only be made after consultation with other political parties.
Chris Hipkins told media last night that Cabinet would meet on Monday for the last time and put caretaker provisions in place until the new government was sworn in.
“I spoke to Christopher Luxon tonight. I said we will take his direction on any decisions that have to be taken in the caretaker period,” he said.
What is happening with the Port Waikato byelection?
This byelection would create an overhang of one seat.
Act candidate for Port Waikato, Neil Christensen, died shortly before the election.
The Port Waikato byelection will be held on November 25, with the byelection set for tomorrow, October 16. The deadline for candidate nominations to be received will be midday on Friday, and the last day for the return of the Writ will be December 5.
Port Waikato is a safe National seat, held by MP Andrew Bayly.
The Electoral Commission earlier confirmed if Bayly subsequently won the byelection, his list spot would go to the next National candidate on the list. That would give National one more seat than it would have won in the election.
What if there is a recount?
For a limited time after the election, candidates are allowed to apply for a recount for their electorate. It is also possible to apply for a recount of party votes in all electorates.
Applications must be made within three working days of the official results being declared, and applicants must pay a deposit for the recount.
The person must make the application to a District Court judge, and the judge must start the recount within three working days of the application being made.
Applicants must pay a deposit to have votes recounted.
A recount of the electorate vote automatically takes place if the official count results in a tie between candidates in an electorate.
If the judge then finds the initial count was wrong, they will tell the Electoral Commission to amend the official result.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
