Sitting date: 14 Aug 2025

CONSTITUTION AMENDMENT BILL

First Reading

Hon SCOTT SIMPSON (Minister for ACC) on behalf of the Minister of Justice: I present a legislative statement on the Constitution Amendment Bill.

DEPUTY SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon SCOTT SIMPSON: I move, That the Constitution Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill. At the appropriate time, I intend to move that the bill be reported to the House by four months and one day after the bill receives its first reading.

This bill amends the Constitution Act 1986 to support the continuity of executive Government and a smooth transition of power after elections. Elections are a natural point of uncertainty in our system, and it's important that during a post-election period, the incumbent Government can continue to act in a caretaker capacity. Now, the Constitution Act currently allows Ministers to remain in office after an election for 28 days, and this is meant to give enough time for the election results to be finalised and new MPs to be appointed. When there are recounts or polling adjournments that delay the official count, it can be more than 28 days before election results are finalised, after which time ministerial tenure expires. It is constitutionally untenable for the Governor-General to have an outcome where the Governor-General is left without advisers.

Indeed, this is what happened following the 2023 general election when recounts delayed the return of the writ and the final vote count. While party leaders worked together to find a stop-gap solution in 2023, I consider that a clear and fit purpose rule is preferable to that option. Therefore, this bill ensures that this will not happen again in the future.

This bill amends the Constitution Act so that Ministers can remain in office after an election until the writ is returned and list MPs have been declared by the Electoral Commission. If there are delays to the official vote count, incumbent Ministers will remain in office and executive Government will continue. This will provide certainty and build resilience in our constitutional arrangements following an election.

Given the constitutional importance of arrangements governing the post-election period, I considered it essential to consult with parliamentary parties on the proposals in this bill. I'd like to, at this stage, acknowledge and thank parliamentary parties for their thoughtful contributions to the development of this proposal.

The smooth and swift transfer of power is a critical part of a well-functioning democracy. The changes in this bill will ensure that there will be a continuous executive Government following elections despite any delays to the official count, and this will provide New Zealanders with certainty about the resilience of our post-election processes. I commend this bill to the House.

DEPUTY SPEAKER: The question is that the motion be agreed to.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Kia ora, Madam Speaker. This is, as with a number of constitutional bills, in some ways a tidy up, but you don't tidy up the constitution lightly. The requirement that a Minister of the Crown—a member of the executive—be a member of Parliament has been convention in New Zealand for a long time. It is interesting that it isn't convention everywhere, but in New Zealand we expect people holding a warrant to be a Minister in the Government to be a member of Parliament.

The 28-day rule was an exception to that that came about after the outgoing Muldoon Government kind of muddied the playing field for the incoming Lange Labour Government, and, I think, Geoff Palmer pushed that reform through. The last election showed that under a mixed member proportional (MMP) Government there could be a circumstance where 28 days wasn't enough, and whilst members who were clearly re-elected could be rolled over in their ministerial roles, it became problematic for a Minister who wasn't re-elected, although they had stood, and that was, in fact, Nanaia Mahuta who had to resign her foreign affairs portfolio that was picked up by, I think it was, Grant Robertson. But of course, if there is business to be done, it's a little awkward if all of a sudden, a new Minister has to pick it up from scratch simply because that outgoing Minister wasn't re-elected. So this bill essentially says you can remain a Minister regardless of your status as an MP until a new Government is formed.

Now, I think that probably is the right fit, but let's have a good chat about that at select committee, because there is a very strange situation; for example, a recent poll would have had us with a hung Parliament, and that could cause a quite a protracted period of negotiation across several months, which could, in fact, result in a new election being called. So you've got someone who isn't an MP but could conceivably, in a very narrow set of cases, be there for a long time. So it is absolutely worth thinking about all of those—and, sometimes, we look at it and go, "Oh, that'll never happen." But what we know is that in constitutional situations, things like that, in fact, do happen. It is so important to have a legitimate Government that we have to—the risks are so high that we have to really examine carefully these possibilities.

If we look at it and think that that is a realistic possibility, perhaps we should look at other fixes. But certainly, what did happen did seem to be unnecessary and an unfortunate diversion for the Government of the day. There is of course the convention—the very strong convention—that the Public Service are very keen to enforce, which is that a caretaker Government doesn't really do anything; that they might sign off formal documents and the like, but they won't be instituting any major policy or making any significant appointments. So again, that means that the importance of it perhaps falls away somewhat, but these things are never static, and those things, such as that caretaker convention, are only conventions, another strange kind of quirk of the Westminster system, where we have these unwritten understandings, which are seen as having some more than merely moral force, if not quite legal force, whatever that means. So relying on those kinds of protections can lead us into trouble.

Of course, the Muldoon constitutional crisis was a situation where a constitutional convention was just blatantly ignored. But it's going to be another fun bill in front of the Justice Committee, because we really don't have enough to do! And so this will be a good addition to our workload. Kia ora, Madam Speaker.

CELIA WADE-BROWN (Green): Thank you, Madam Speaker. I've got a number of things to point out here. First of all, our constitution actually needs transformation, not just tweaking. The reports of Matike Mai, the issues of whether we have a second House, improvements to select committee processes—these are all the things that it would be great to be grappling with.

I do appreciate the way that Minister Goldsmith wrote to our co-leaders back in June and we had a chance to consider this, discuss this, and as a party we are fine with this very minor change. It would be so refreshing if this wasn't an exception.

I also agree it's not only if the counting takes longer, there is the potential for some natural disaster to cause a hiccup and therefore we need to just continue as we are for a little longer. But what I find really extraordinary is that here is the Government bringing something forward to say, "If there is a hiccup with the counting, we can carry on and we know how and we're not going to fall into some sort of hiatus.", while simultaneously saying, "Oh gosh, counting at the moment is taking a long time. There's a delay in the counting. We must get rid of same-day enrolments. We must even get rid of them for a fortnight beforehand."

So it seems contradictory that you're tidying up a fairly hypothetical situation and yet, under the guise of being tidy, under the guise of being ready, and under the guise of "they can't count it quick enough", those entitlements for people voting from prisons, people who have moved house, people who are actually waiting till nearer the election—because sometimes policies only get announced just before the election or there's some big scandal or you did your advance voting and you think, "Well, I've just heard a little bit more about that candidate. I don't want to vote for them. I wish I'd waited." It is not necessarily a matter of being disorganised. People may think their details are up to date and then find when they go to the polling booth that they're not up to date.

I think that the idea of allowing for the situation where the count's taking a little longer is supportive in a fairly modest way of our democracy. But I would like the Minister to respond as to whether this is not a complete contradiction.

I also had a constituent raise a particular issue about this detail. This bill has yet to finish its first reading, it's going to go to select committee—I have no great concerns that we won't be able to iron out some bits of wording—but I think it's wonderful that somebody's already watching in enough detail to come back and say that they're writing to me in the capacity of Green Party spokesperson for democracy and electoral reform "to express a concern that the Constitution Amendment Bill, which is currently before the House, has clause 5 where it allows Parliamentary Under-Secretaries to remain in office until the election of the next Parliament." While this constituent supports intent, as does the Green Party, "the wording seems vague enough that, arguably, a Parliamentary Under-Secretary ceasing to be a member of Parliament for some reason other than an election, perhaps early in the three-year term of Parliament, could be allowed to stay on until the next election."

All I am doing is urging us to look at that point when it comes to the select committee and look forward to subbing in on the Justice Committee. Thank you.

TODD STEPHENSON (ACT): Thank you, Madam Speaker. I rise to take a short call on the Constitution Amendment Bill. Just for my colleague in the Green Party Celia Wade-Brown, you do have to be enrolled but that doesn't require you to vote or vote for a particular person, but it is very important and, in fact, is a legal requirement you are enrolled. So just to clear up any confusion there. This is a small but sensible change.

As the Hon Dr Duncan Webb actually outlined, this was an issue at the last election, where we actually had members of this House who were Ministers but who weren't re-elected have to give up their warrants. All this is trying to do is actually just put in place very sensible arrangements around the transition at an election.

It has been obviously consulted with by all parties across the House even before being introduced, which I think is very important, and, of course, it is going to go to the Justice Committee, which I'm lucky enough to serve on and we will look at it at more detail.

It also has been informed by a number of other reviews, including the review of the last general election that, again, the great Justice Committee undertook, and also some other independent work by the Electoral Commission.

So, yes, this is a relatively small change, obviously important, it will obviously be looked at in detail, but ACT does commend it to the House. We look forward to looking at it in more detail shortly.

ANDY FOSTER (NZ First): I also rise to take a short call because this is both a short bill and a very small bill, but it is a constitutional necessity. I think somehow we've managed to get away without it, but you could conceivably get into the situation where you get to the end of 28 days and suddenly, as it says, the Governor-General has no advisers—i.e., there is no Government, and that's slightly problematic. So you do need somebody who is operating there in a caretaker role until the new Government is able to be put in place. And, really, essentially, that is all that this is about.

You could also say it is the Parliamentary Under-Secretary's anti-discrimination bill, because clearly they feel a bit put upon—or there is a feeling that they are a bit put upon at the moment, so it fixes that little anomaly. I think this has been talked about for several Parliaments in a row, that this ought to be dealt with, so finally we're dealing with this. I guess the only question I would have is why it can't be lumped in with a bunch of other pieces of legislation, so that it's more efficient. But, clearly, we need to have this there just in case.

Of course, we had the situation where we were talking about the whole voting system and when people are entitled to enrol. One of the reasons we made those changes is to try and make sure that we don't end up in this situation of actually getting past the end of 28 days because we haven't had results actually come through, and we just slow the whole process down. They kind of fit in a way—belt and braces, hand in glove, if you like. So I commend this bill to the House.

RIMA NAKHLE (National—Takanini): It's a pleasure to rise as we begin the journey of the Constitution Amendment Bill. This bill, what it seeks to do is amend the Constitution Act 1986. Essentially, the purpose of why we're embarking on this journey as such is to make sure that our country always has an operating Government between election day and when the new Parliament is sworn in. I look forward to conversing about the pros, and maybe there might be some cons, in the Justice Committee, one that I'm very privileged and honoured to be part of—a very hard-working committee. But for now, I'll commend this bill to the House.

VANUSHI WALTERS (Labour): It's a pleasure to stand in support of this bill. Although, much like my colleagues on this side of the House, I do have to raise some issues in terms of how we've arrived here, but also the real focus on listening to submitters during the bill. In truth, members have been speaking about the Electoral Amendment Bill, because the genesis of this bill was that they were together as part of an omnibus bill before they were introduced to the House. However, we do have a New Zealand Bill of Rights Act section 7 vet on the initial omnibus bill, so I do think it's very relevant that members are speaking to that as well.

I agree with my colleague Celia Wade-Brown that there does seem to be a conflict in terms of the philosophy behind the two, in that this is removing a statutory time limit to enable, in my view, a focus on democracy, democratic protections, and stability. Now, one could argue that democratic stability is also about listening to as many potential voters as possible and allowing as flexible a process as possible for them to be registered. Therefore, it would have felt very awkward, in my view, for that omnibus bill to stay intact. So I can see the logic in separating the two to try and create some distance between the philosophies.

But if you were to listen to an argument that was just made that, essentially, one of the reasons that the Government is proposing to limit the ability of voters to register up to election day is to avoid breaching the 28-day rule. Well, the Government is then just fixing that issue, and therefore it shouldn't be an issue to give as many voters the right to register up to election day, because, essentially, they're removing the 28-day rule. So in my view it would make sense to do that, if that creates the issue, and then allow people to enrol to vote so we can hear from as many people as possible. So the philosophy behind the two just don't sync at all for me.

I do welcome as many submitters on this bill as possible. I think it's important that we hear from many people. I'm hoping that we hear from Sir Geoffrey, who did put in place the 28-day rule. My colleague Duncan Webb has spoken to the genesis of that rule being in place, which was the situation in 1984 when you had the incoming Labour Government and Muldoon's Government and a serious question about whether the New Zealand dollar needed to be devalued or not—some extreme tension which lead to the creation of that rule. My concern is this: that was a situation where we had a first-past-the-post Government. We now have a mixed-member proportional Government. The period of negotiation is potentially going to be much longer. Again, as the Hon Dr Duncan Webb said, we may face a hung Parliament at some stage. So my sense is that I would like to hear submissions on the removal of the 28-day rule, but also on what additional things we could put in place to ensure we have a protected system.

Now, we had Jonathan Boston in front of us when we were considering the four-year term submissions. I put a question to him about whether the caretaker provisions which are currently referred to, I think, in chapter 6 of the Cabinet Manual, whether they should be legislated for. Right now they're not, and they're actually quite broad. So there are two questions there, really, for potential submitters out there who are listening. One is: are the caretaker provisions in the Cabinet Manual specific enough? They're framed quite generally. For example, Governments aren't to take major decisions and they shouldn't make significant appointments. But we potentially could do with some clarity around that. The second question is: should those provisions be lifted into legislation so that they are rules by which we have to abide? My sense is that if we are taking away this 28-day rule, these are things that we ought to be considering.

The last thing in my last 20 seconds is that I think we need to think about the rules applying to an existing Government leading up to an election versus the ones in a caretaker period, and note them as separate. Right now the Cabinet Manual does not do that. So I welcome submissions and commend it to select committee.

TOM RUTHERFORD (National—Bay of Plenty): Thank you, Madam Speaker. It gives me great pleasure to rise in support of the Constitution Amendment Bill. If there's one thing I enjoy in being a member of the Justice Committee, it is anything relating to constitution. This is a good change around amending the bill to improve the resilience of the mechanisms that provide for the continuity of executive Government. The many points that many members from across this House have made, I'm looking forward to fleshing those out through the select committee process and receiving the submissions to the committee as well. Therefore, I commend it to the House.

GLEN BENNETT (Labour): Kia ora, Madam Speaker. Constitution is not necessarily my forte and not something I get out of bed with excitement and passion about. But I'm glad that some people do get really excited. That's wonderful. And it takes all sorts for the House of Representatives—because that's what it is, right?

1986 was a good year. I was 11 years old, so to do the math—

Hon Dr Ayesha Verrall: Big birthday!

GLEN BENNETT: It's like a sequel from my previous call. Anyway, focus, focus! It's Thursday afternoon.

In 1986, when the original law was passed, it was a different Parliament. It was a different environment. It was first past the post. Cabinet was obviously made up of members of the ruling party; there were no coalition deals and that type of thing. There were no coalition deals and that type of thing. There were 95 MPs in the New Zealand Parliament in 1986. There were 20 members of Cabinet and there were very few, I understand, under-secretaries. But of course now with the MMP system, now with the fact there are negotiations that take place, and now with the fact that it isn't just clear cut on the night of who is in power, we need to go back and to reconsider, as this House does on multiple occasions. The world changes and this place also moves and changes with the times—sometimes slower than it should, but it does move and change with the times.

So as we look and as we've heard from others this afternoon, what the bill does—I won't really go into it, actually, because it has been traversed and talked about, but my contribution wants to be about the faith in democracy and taking this to select committee and taking this out to the public for submissions. The Minister who brought this bill to the House this afternoon talked about the fact that he is going to move that this will be reported back to the House in four months and one day, which we can't debate because it's beyond four months. It may be small, it may seem like just a practical piece of work that we're doing that makes sense, but the challenge I want to put to the Government and to the Minister is that that democracy is under threat around the world and also in New Zealand, and there is a need to protect democracy and people's faith in democracy.

So, yes, we can do a shorter process and have it done and dusted and back in the House in four months and one day, but I want us to think about what signals it sends to the public. Yes, it's a few pages long, but actually it is around ensuring that people have faith in democracy. It's not just us in our little bubble doing our own thing, protecting ourselves, and making sure we're paid properly or making sure that, yes, Government continues to stand up and has continuity. It's making sure that people can engage in the process, that people can feel and see that the process is transparent, that people can have faith in the process that we undertake in this House, and that we're not just slamming things through for the sake of it or just to make sure that, yeah, that might be right, that might be necessary, it might create more flexibility, and what others have talked about.

I want to come back to the fact that as it goes off to the Justice Committee, as submissions open, how do we make sure it is open, it is transparent, and people feel included in the process going forward so that faith in democracy is protected, because it is important. You might think, "Oh, yeah, come on, Glen, it's just, you know, la, la, la!" But actually, it is important because we've seen, in this House, laws that have gone through in urgency, We've seen, in this House, things that have been done. I happily criticise the Government, but also take responsibility for what we are doing to make sure that we protect the institution—not for ourselves, not for our Cabinet, not for our parties, but protect the institution for New Zealanders, for democracy, and for a way forward that means that people choose to come and vote, choose to engage in this House, choose to engage in the legislation process, and choose to know that we're doing what is right, not for us but for our country and for democracy.

So as it goes to select committee—six months, we'd love that; I understand we have the numbers—but let's consider the fact that it's around ensuring people have faith in our democracy and that we're doing what is right for the people and not what is right for us.

DAVID MacLEOD (National—New Plymouth): Thank you, Madam Speaker. I'll start by actually wishing that previous speaker Glen Bennett a happy birthday for yesterday, and I'll tell him that it's just a number; don't worry too much about that. Also, I acknowledge there's another birthday girl that has just taken her seat here with Savannah as well, so happy birthday to you, Savannah.

So I stand as the last speaker on the last call of this first reading on the Constitution Amendment Bill. As has already been traversed by numerous speakers, it does some changes to the electoral process both leading up to the election as well as subsequent to the election. I actually think that these changes have been thought about for many terms prior to now. Obviously, one of them is getting rid of what they call the 28-day rule and another one there is stopping same-day enrolment.

So I'm looking forward to seeing the work that comes back to the House from the Justice Committee—a very busy committee, as we all know. I think they're up to almost 50 bills that they've put through this particular term—a huge amount of work. With that, I commend this bill to the House.

Bill read a first time.

DEPUTY SPEAKER: The question is, That the Constitution Amendment Bill be considered by the Justice Committee.

Bill referred to the Justice Committee.

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