6.41 The process of government formation occurs most commonly following an election, but may be necessary if the government loses the confidence of the House mid-term. The principles and processes set out in paragraphs 6.42 - 6.47 apply in situations of both post-election and mid-term government formation.
Principles and processes of government formation
6.42 The process of forming a government is political, and the decision to form a government must be arrived at by politicians. Government formation may involve one or more parties.
6.43 In a case where government formation involves multiple parties, once the political parties have reached an adequate accommodation, and it is possible to form a government, it is expected that the parties will make appropriate public statements of their intentions. Where negotiations between parties are required, any agreement reached by the parties during their negotiations may need to be confirmed subsequently by the political parties involved, each following its own internal procedures.
6.44 By convention, the role of the Governor-General in the government formation process is to ascertain where the confidence of the House lies, on the basis of the parties' public statements, so that a government can be appointed. It is not the Governor-General's role to form the government or to participate in any negotiations (although the Governor-General might wish to talk to party leaders if the talks were to have no clear outcome).
6.45 Accordingly, the Governor-General will, by convention, abide by the outcome of the government formation process in appointing a government. The Governor-General will also accept the political decision as to who will lead the government as Prime Minister.
6.46 During the government formation process, the Clerk of the Executive Council provides official, impartial support directly to the Governor-General, including liaising with party leaders as required on behalf of the Governor-General. The Clerk facilitates the transition between administrations if there is a change of government. The Clerk assists the outgoing and incoming Prime Ministers and provides constitutional advice, as appropriate, on any proposed government arrangements. See paragraphs 1.33 – 1.37 for further information about the role of the Clerk of the Executive Council.
6.47 Parliament must meet not later than six weeks after the date fixed for the return of the writs for a general election (see section 19 of the Constitution Act 1986), although it may be summoned to meet earlier. If, following an election, a government has not yet been formed by the time that Parliament meets, the Address in Reply debate may resolve matters, as it provides an early opportunity for a confidence vote. If Parliament is in session following a mid-term government formation process, a vote of confidence may also usefully be initiated to demonstrate where the confidence of the House lies.
6.48 Where a government formation process results in a change of administration, Ministers usually remain in office in a caretaker capacity until the new government is appointed, at which time the outgoing Prime Minister will advise the Governor-General to accept the resignations of the entire ministry.
6.49 Section 6(2)(b) of the Constitution Act 1986 may require some Ministers in the caretaker government to resign before the government formation process has concluded, following a general election. Section 6(2)(b) requires any Minister who has not been re-elected to Parliament to resign from the Executive within 28 days of ceasing to be a member of Parliament. In this event, the Prime Minister may ask another Minister in the caretaker government to be acting Minister in the relevant portfolio(s), or may appoint a new Minister to the portfolio(s) (in a caretaker capacity).
6.50 Ministerial Services in the Department of Internal Affairs provides practical assistance to outgoing Ministers in relation to staff, office, and other practical arrangements, including guidance on the storage and disposal of Ministers' official papers (see paragraphs 8.112 - 8.119). The Cabinet Office seeks information from outgoing Ministers about gifts they have received while in office (see paragraphs 2.88 - 2.96). See also the guidance about post-Ministerial employment at paragraph 2.114.
Appointment of a new government
6.51 Since the introduction of New Zealand's proportional representation electoral system, it has been the practice to hold a full appointment ceremony when a government is formed after an election, even when the composition of the government has not greatly changed. The ceremony formally marks the formation and commencement of the new administration and marks the end of the caretaker period.
6.52 Section 6(2)(a) of the Constitution Act 1986 helps ensure a swift transition between administrations. It provides that any candidate at a general election can be appointed as a Minister, before being confirmed as elected, but must vacate that office if not confirmed as a member of Parliament within 40 days of being appointed to the Executive. Section 6(2)(a) does not apply to Parliamentary Under-Secretaries, who cannot be appointed until their election as members of Parliament has been confirmed.
6.53 Further information on the appointment of Executive Councillors and Ministers is set out in paragraphs 1.26 - 1.27 and 2.15 - 2.17.