Only one rule will matter in post-election brawl

Politicians aired a few contradictory statements about MMP this week, so NBR went to a constitutional expert to clarify the rules of engagement after Saturday’s ballot.

Otago University law professor Andrew Geddis clarifies there is only one rule that matters when it comes to post-election negotiations.

That is: the first party, or (coalition of parties) to make a public statement that it has the support of 61 or more MPs* can go to the Governor General and claim the right to form a government.

That’s it.

Forget Bill English’s comments earlier this week (which he has now walked back) about the incumbent leading the process.

Or Winston Peters' claim during his trainwreck RNZ interview that, by convention, NZ First should talk to the party with the most votes first.

That might be the Mr Peters’ personal opinion about what the feels like the right thing to do – and, indeed, such a statement might give him a degree of political cover if he decides to lean away from Labour and the Greens.

But the fact is that “There is no law, constitutional convention or other constitutional rule as to who talks to whom following the election or the order in which people must talk to each other. There's no reason anyone should be confused about this — the Cabinet Manual sets out the process quite clearly,” Prof Geddis says.

"No one has 'the first crack' at forming a government," says the Otago academic.

Mr Peters could talk to National first, or Labour first, or both at once.

Most votes? Means nothing 
The one rule also means winning the most votes means nothing if a party falls short of 61 MPs.

For the sake of illustration, say the results on Election Day fall exactly as predicted by the final 1 News-Colmar Brunton poll.

That would mean National on 58 seats, and its allies ACT and the Maori Party one each for a total of 60, while Labour had 46 and the Greens 9 for a total of 55.

NZ First, with six seats, would be kingmaker.

If Labour and the Greens can offer enough goodies to lure Mr Peters to their side, a Red-Green-Black coalition would get to 61 MPs and form a government. It would count for nothing that National got the most votes.

The rules around timing
There aint any.

If Mr Peters wants to drag coalition talks out for two months, as he did after the first MMP election in 1996, that is his (or any other party’s prerogative).

Prof Geddis notes the record for an MMP-style system is 18 months in Belgium.

While MMP talks continue after September 23, the National-led government will remain in power, albeit in a caretaker capacity. “It can mow the lawns and repair windows but not initiate new legislation,” Prof Geddis says.

What if there's a hung Parliament?
A final note: Getting to 61 MPs’ support doesn’t necessarily mean a formal coalition. National (or Labour) could do a deal with NZ First on confidence and supply; that is, bare minimum budget support to keep the government functioning, then address legislation piece by piece.

And if NZ First simply refuses to support National (or Labour) on confidence and supply, or otherwise no grouping of parties can get to 61, we will have a hung parliament and the Governor-General Dame Patsy Reddy would have to step in and call a fresh election.

“I just don’t think that would happen,” says Prof Geddis, who considers it unlikely due to the likely public backlash.

“That would be absolute political suicide for NZ First. It would cease to exist as a party. The public would absolutely crucify it for forcing us to vote again,” he says.

“There are very strong political incentives for NZ First to make a deal with one side or the other to let them govern. Of course, NZ First will try to get as much as it can out of that deal.”

Winston Peters (photo: Jerry Yelich O'Connor)

All about Winston
Is it democratic that one man – Winston Peters – will probably decide the government after 7pm tomorrow?

“That’s the reality of coalition formation,” Prof Geddis says.

“People have tried repeatedly to pin Winston Peters down repeatedly, to get him to say in advance ‘What are we going to get if we vote for you?’ And he just refuses to answer us.

“So that leaves us in the position of: those people who voted for NZ First want him to be in Parliament; they want him to be represented there. And because it’s actually Parliament that chooses the government, not us directly, that then allows him his position in Parliament to make that decision as to who’s going to govern."

It’s what you get when you have proportional representation; it splits up representation in Parliament if no one party has a majority, Prof Geddis says.

“In a party like New Zealand First where they have one guy who dominates it, it does give them that power. Unfortunately, that’s just the way the system works.”

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