The ‘caretaker convention’ requires that some parts of NZ government activity stop and some not. Here’s what it means practically.
Yesterday marked a month since the election. As the days count up towards one of the longer negotiating periods under MMP and Winston Peters momentarily disappears in a plume of rodeo smoke, Christopher Luxon is coming under pressure to prove his self-professed skills in matters of merger and acquisition.
The PM-to-be insists there was only so much he could do until the special votes were recorded 12 days ago, but whether you accept that explanation or not, in an international context it’s not so bad. The last German election, in 2021, took 10 weeks to get a government in place, and most were pretty relaxed about that. And it would take another 509 days before New Zealand matched the time it took Belgium to form a government across 2010 and 2011.
In the meantime, we have the “caretaker convention”. Regrettably, that is not an annual opportunity for hardworking school janitors to gather for a weekend and throw ideas around. It is in fact the framework according to which government – or lack of government, perhaps – is currently operating.
While National, Act and NZ First seek to sand back the “jagged edges” of coalition negotiations, the caretaker convention sets out how the caretaker government goes about its caretaker business. In short that means: do as little as you can, and if you have to do stuff, do it as impermanently as possible. Oh, and get the blessing of the incoming lot.
“Until these three parties can reach a place where they can collectively start making decisions for a country as a whole, we have no option but keeping with those already in place running things, or having a chatter with the other team and getting their approval for anything new that needs to happen,” says Andrew Geddis, a constitutional expert at the University of Otago. The good news: “It seems to be operating exactly as you’d expect.”
A constitutional “quirk” – not remotely, sorry, a constitutional crisis – saw the outgoing and incoming prime ministers Chris agree to advise the governor general to extend the caretaker arrangements “until a new government is formed”. That was required because recounts kicked out the day for the return of the writ which in turn means ministers have to leave office.
This extension – which came without any formal ceremony, alas – saw all ministers keep their portfolios, with the exception of Nanaia Mahuta, who handed the foreign affairs warrant to Grant Robertson, a caretaker-caretaker, if you like, “as she has not been re-elected”, according to an official statement.
“Legally,” says Geddis, “she could have stayed as minister under the same statutory provision that allowed for reappointment of all the other serving ministers.” It was presumably considered in the “spirit of the rules” that she should step aside having been defeated in Hauraki-Waikato. Notably, however, Andrew Little, who has announced he won’t take up his list seat, remains a caretaker minister of a whole bunch of things.
Cabinet itself is operating in a skeletal form. A kitchen-cabinet-esque group has been delegated the authority to “take decisions on any urgent matters arising that require cabinet-level decisions”. The mini-cab consists of Hipkins, Kelvin Davis, Grant Robertson and “the relevant portfolio minister as appropriate”.
But: what does it mean in practical terms? What hasn’t been done that would have been had a government been sworn in?
Most obviously, perhaps, is that the usual business of parliament, such as MPs sitting in the chamber, taking questions and debating bills, and select committees scrutinising legislation or quizzing officials, is halted. For some this is more pressing than others. To take two examples: a number of councils are “crying out” for clarity on water reforms. Infrastructure NZ, meanwhile, wrote to Luxon last week to highlight “the urgency of addressing New Zealand’s infrastructure issues”.
Some – including the three parties that are set to form a government – are anxious to open the government books and make changes as soon as possible, including in a likely pre-Christmas mini-budget (“emphasis on ‘mini’,” said Nicola Willis this week). However critical the need to freshly assess the fiscal situation might be, however, it is nothing like the situation in 1984, says Geddis, which saw the last genuine constitutional crisis to visit a change in government, thanks to a furious and obstinate Robert Muldoon.
This time around, the caretaker difference that has made the most headlines relates to foreign affairs. Yesterday Luxon confirmed that he would not achieve his goal of getting a government done and dusted so that he could get sworn in as prime minister and jet across to San Francisco and Apec.
Luxon has very reasonably emphasised that for all the bilateral and multilateral flesh-pressing opportunities of the Asia-Pacific economic summit, the stitching together of a viable and enduring governing coalition takes priority. “There’ll be another Apec,” he said, although whether there will be another Apec during his prime ministership that has both the leaders of the US and China gathered as part of the technicolour-shirt supergroup is another matter.
Damien O’Connor, the caretaker minister of trade, is in California for New Zealand already, and will remain there to represent us – caretakerly – during the leaders’ bit.
Arguably more important was the Pacific Islands Forum which recently wrapped up in the Cook Islands. The solution there was to send the caretaker deputy prime minister, Carmel Sepuloni, alongside the most recent National minister of foreign affairs, Gerry Brownlee. She attended the formal leader stuff while he undertook a handful of bilateral catchups on the sidelines. That it all went so apparently smoothly “just goes to show how very little difference there is between the parties on foreign policy”, says Geddis.
Then there is the most compelling and horrific episode playing out in global affairs: the Israel-Gaza conflict. In caretaker mode, the response from the New Zealand government has been relatively slow and circumspect, with statements issued only after consultation with the putative incoming executive. Most recently, Grant Robertson issued remarks on Monday backing Australia’s cautious statement seeking “next steps towards a ceasefire”.
The suspension of normal parliamentary service means that other avenues where you might typically expect to see debate over the international response to a crisis such as that playing out in Gaza are missing. There are no statements in the house, no questions to ministers, no post-cabinet press conferences.
There are other international engagements with domestic implications that continue indifferent to New Zealand’s governing hiatus. A Christchurch Call leaders’ summit was held in Paris on Saturday, hosted by French president Emmanuel Macron. In this case, at least, New Zealand had a “special envoy”, Jacinda Ardern, on the case, co-chairing the event in fact, and it’s not clear whether a minister or officials would have been otherwise present, but it did limit the options.
Another branch of the tech apocalypse, artificial intelligence, was meanwhile the subject of a major global meeting, the AI Safety Summit, hosted in early November with a nod to Alan Turing at Bletchley Park in the UK. Notwithstanding the mawkish interview of Elon Musk by prime minister Rishi Sunak, this was a watershed event, resulting in the Bletchley Declaration, a milestone commitment to regulatory measures signed by 23 countries including the US, China, the EU and Britain.
New Zealand was not among them. After working through the caretaker convention, MBIE and Foreign Affairs decided not to send officials, and no minister was present; the sole representative was the deputy high commissioner to the United Kingdom, attending as an observer.
It’s not the end of the world. The next such summit is in South Korea in six months, with another to follow in France. New Zealand will likely sign up to the declaration in due course. But it’s the sort of thing we should be part of, not least given the assessment of one expert that “New Zealand is floundering in our regulation of AI”.
Cop 28 doesn’t kick off in Dubai for a fortnight yet, and it seems highly unlikely a new government won’t be in place by then. But whoever gets chucked the ministerial warrant for climate change will be wanting a bit of time to get fully briefed before they head away – New Zealand is expected to face plenty of pressure. To the extent that the next climate minister might be one of the few hoping talks do drag out into December so that James Shaw has to go and face the music instead.
On the domestic front, government operations have not ground to a halt. This is not like, say, a US government shutdown when workers are furloughed and public services stripped back. “Day to day administration of departments and other agencies in the public sector may continue as usual,” is the advice. But: “significant decisions, new policy, or changes to existing policy and actions with long-term implications should … be deferred if possible.”
If decisions can’t be deferred, “temporary or holding arrangements” are the go. If that won’t cut it, the caretaking team should consult such that it can “establish whether the proposed action has the support of a majority of the House of Representatives”. The Cabinet Office circular continues, as if waving its arms at a lecture theatre of pedants, “no hard and fast rules are possible”. The injunction to ministers: “Final decisions concerning the caretaker convention rest with the prime minister.”
How does that work in practice? In normal times, the associate minister for immigration is tasked with making reasonably regular decisions about, for example, residency applications in circumstances where a “special direction” is required.
The current (caretaker) associate minister is Rachel Brooking, and she “has been making decisions on cases that have gone to the Immigration Protection Tribunal and where the Tribunal has made a recommendation”, a spokesperson for the prime minister said. “However, on other decisions the minister is waiting on the incoming government.”
That means a growing pile of papers to assess, each with human consequences and most with anxious families counting the days. And it could change. “Given negotiations are ongoing we are looking at restarting this decision making,” we were told.
And while there is nothing in the caretaker guidelines that requires the public sector to predict the outcome of coalition negotiations, “irrespective of a formal change of government you can see them starting to morph towards the new political realities – they know how to read the tea leaves”, says Geddis, pointing to a leaked email from the MBIE CEO to staff signalling a range of cuts to everything including Christmas parties.