Michael Swanson
A technical, but hopefully informative look at what happens after the election.
New Zealanders vote on 7 November, but the government that results will not be visible for some time afterwards. A short Cabinet Office circular, CO (26) 5, issued on 25 September, sets out how the country is run in the gap. It reads like housekeeping, but it describes a system that works very differently from those in many other democracies. In New Zealand the handover is governed by convention and judgement rather than by a fixed legal timetable.
The calendar, and what it leaves out
The dates in the circular are the mechanical ones. Official results are declared on 27 November. The writ is returned on 3 December, which formally confirms the winning electorate candidates and is followed by the declaration of successful list MPs. Parliament must meet by 14 January 2027, although a new government can bring that forward.
The circular is candid about what it cannot give you: when a new ministry is sworn in, and when government business fully resumes. Those dates depend on negotiations that have not happened yet. The circular gives dates for counting votes but none for forming a government, because under MMP the outcome of the count does not settle who governs.
The caretaker period
Once polls close, the Prime Minister is likely to announce that the government will operate under the “caretaker convention”. The circular stresses that ministers keep full executive authority throughout, and the public service supports them as normal. What changes is how they are expected to use that power, and the expectation depends on how clear the result is.
If it is unclear who will form the next government, everyday administration continues and earlier decisions can be implemented. Significant new policy, changes to existing policy and anything with long-term consequences should be deferred where possible. If deferral is impossible, ministers should seek short-term fixes, and failing that, consult other parties. The circular admits there are “no hard and fast rules”, so ministers must judge each case.
If it is clear who will govern but they have not yet taken office, the rule becomes stricter. The outgoing government should start no new policy and should act on the incoming government’s advice on any significant issue that cannot wait, even if it disagrees. In effect, a government that has lost follows the instructions of one that does not yet legally exist. That is a striking arrangement, and it works only because everyone accepts it.
Ministers are also told to use officials only for portfolio business, not for party purposes such as coalition bargaining.
Negotiating a government
MMP usually produces coalitions or support arrangements, so after election night parties bargain. The circular treats that as politicians’ business, but it sets a rule for the officials in the background. Parties often want official analysis, such as costings of policy proposals. They cannot ask departments directly. Requests go to the Public Service Commissioner, who manages any official involvement under the Public Service Act 2020, and agencies must refer any approaches they receive to the Commissioner. The Commission’s General Election Guidance sets the standards for how this is done.
This makes the Commissioner a neutral gatekeeper, so that no party gets privileged access to the public service and the public service does not become entangled in the bargaining.
The Governor-General’s role is deliberately narrow. By convention, they work out where the confidence of the House lies, based on what parties say publicly, and then appoint accordingly. They do not form the government or join negotiations, and they accept whoever the political process chooses as Prime Minister. The Clerk of the Executive Council supports them impartially and can liaise with party leaders on their behalf.
Handing over
Nothing changes formally until the outgoing ministers resign and the Governor-General appoints new ones. Officials are warned not to assume that an existing minister will keep a portfolio, or that a party’s spokesperson will become the minister for that area. Usually some days pass between a deal being done and the new ministry taking office, and the appointment ceremony marks the end of the caretaker period.
There is a hard legal edge to all this. Ministers who lose their seats can stay on as caretakers, but must leave office at the end of the day after the Electoral Commission declares the list candidates, under the Constitution Act 1986.
New ministers are then given Briefings for the Incoming Minister, normally after they are sworn in. The circular allows the incumbent Prime Minister to authorise earlier release once portfolios are announced. In cases of great urgency, after a deal is done but before portfolios are public, chief executives may advise the incoming government through the Prime Minister-designate, but only with the incumbent Prime Minister’s consent and a process agreed with the Commissioner. The circular takes care to make the outgoing government’s consent part of the process.
How this differs from elsewhere
The United States runs on a fixed date. A new president is inaugurated on 20 January, the outgoing administration leaves as a body, and the incoming team prepares in public for weeks with official support. Nobody is unsure who holds power on a given day. New Zealand has no such moment. The current Prime Minister stays until they resign or are replaced, and the date depends on the politics.
The United Kingdom usually has an overnight handover, because a single party typically wins a majority. When it does not, as in 2010, the same uncertainty arises, and the UK’s Cabinet Manual, which drew on New Zealand’s earlier example, records similar caretaker principles. But for Britain that is the exception. For New Zealand, negotiation is the norm, and the framework is built for it.
Some continental European countries show what the same problem looks like without such a framework. Coalition talks in the Netherlands and Belgium have run for many months, in Belgium’s case well over a year, with caretaker governments in place throughout. New Zealand’s negotiations have generally been much quicker. The 2017 talks took about four weeks. The circular itself expects periods of uncertainty to be “relatively short-lived”, and part of the reason is that the framework leaves no vacuum. The Governor-General follows public statements rather than running a formal process, the Commissioner controls official support, and the incoming government can act through the outgoing one on urgent matters.
Why it matters
First, continuity. At every moment someone has legal authority and the public service knows whose instructions to follow. Governments change without any gap in the machinery.
Second, fairness to voters. The caretaker restraint stops a government that may have lost from committing the country to big decisions before the result is settled. It is a check on power that exists nowhere in statute.
Third, the neutrality of the public service. Officials serve whoever governs, and the arrangements for negotiation and briefing are designed so that no party can claim the bureaucracy was used against it. That trust is what makes a quick handover safe.
Fourth, and less comfortably, the whole thing rests on convention. The circular is guidance, and its language is full of “should”, “usually” and “where possible”. It works because political actors choose to follow it, and because breaches would carry a political cost. Most of the time that is enough. In a tight or bitter result, the discretion built into the rules could be tested, and how ministers behave then would say a lot about how well the conventions hold.
What to watch
After 7 November, listen for the Prime Minister’s caretaker announcement, then for any statement about who is talking to whom. A quiet Public Service Commissioner suggests negotiations are proceeding within the rules. Portfolio announcements will tell you a deal has been done, and the swearing-in tells you the caretaker period is over. The circular promises further Cabinet Office guidance once the result is known. For the full framework, see chapter 6 of the Cabinet Manual.
