The only thing stopping you is yourself

Winston Peters says John Key will hold an early election. John Key says he won't. John Key is right - but not for the reasons he says.

On today's RNZ's Morning Report, John Key poured cold water over Wintson Peters' confident assertion that NZ would have an election early in 2017 because the National Government was struggling to hold things together. Here's how summarised Mr Key's comments: 

"The reality have an early election you can't just say it's a lovely day in March, let's have an election," Key told RNZ.

In order to hold a snap election the Government would have to lose a vote of no confidence or go to the Governor General and say it could no longer command a majority.

New Zealanders didn't want an early election, he said. Kiwis liked a "strong, stable government" and a three-year cycle was short enough as it was.

Key said he expected to announce the date for next year's elections early in 2017, like he did last time around.

In 2014, the Government announced the date in March.

I've two supportive comments to make on this, before issuing a gentle corrective to the PM.

The first supporting comment is that I think Mr Key is right to say that there's no public appetite for an early trip to the polls. National's polling may have slipped a little, but it's only a little. Those polls also show solid majorities saying that the country is going in the right direction. The Government isn't losing votes in the House on a regular basis, nor is it unable to progress its legislation through the House. So I don't see any real reason why we'd be looking at an election before September-November of next year, as the ordinary triennial timetable would dictate.

Second, Mr Key is to be congratulated for his plan to tell us the precise 2017 election date early next year. As I wrote here, there is scope for a Prime Minister to play around with the announcement of an election date in order to try and obtain a political advantage. I think Helen Clark did so back in 2002, when she called the election early in an attempt to capitalise on Labour's commanding opinion poll lead.

To his credit, Mr Key has made a habit of giving everyone a lead-in of several months. In 2011, the election date was announced some 9 months out. In 2014, six months notice was given. Everyone was on the same page as to when voting would take place, meaning all the parties were on a level playing field when it came to planning their campaigns. This is A Good Thing, which I think should be made a concrete part of our law.

However, one aspect of Mr Key's statement is plain wrong. It simply isn't true that before calling an early election "the Government would have to lose a vote of no confidence or go to the Governor General and say it could no longer command a majority." 

(In case you're thinking that he's been misquoted in the article, he hasn't. It's a fair transcription of what he said to RNZ)

Here's how New Zealand's premier text on matters pertaining to electoral law discusses the issue:

In terms of formal constitutional practice, the Governor-General—the Sovereign’s representative in New Zealand, acting pursuant to the prerogative powers bestowed under the Letters Patent—is responsible for dissolving Parliament, calling a general election and subsequently summoning the new Parliament.[1] However, the core constitutional convention that the Governor-General must act on the advice of his or her principal advisor, the Prime Minister, means that choosing an election date really is the privilege of the Prime Minister.

This open-ended, discretionary power is then subject to only two qualifications. The first is that should the government lose the confidence of the House of Representatives (that is, it fails to gain the support of a majority of MPs participating in any parliamentary vote relating to a matter of confidence or supply), the Prime Minister is constitutionally required to advise the Governor-General that he or she can no longer serve as a responsible advisor. If no alternative parliamentary majority exists that would enable the leader of another political party to become Prime Minister and head of a new government, the Governor-General will then be obliged to call an election as constitutional convention dictates that he or she must always have a responsible advisor in place.[2]

Furthermore, in the exceptional circumstance when it appears the Prime Minister and his or her government have lost the confidence of the House of Representatives, but he or she refuses to leave office voluntarily, the Governor-General may independently invoke the reserve powers of the Crown to dissolve Parliament and call an election.[3] 

In the end, Mr Key's mistake probably doesn't matter all that much. As he has no intention of advising the Governor General to hold an early election, the only way there will be one is if his Government loses the confidence of the House. But let it be noted that not holding an early election is his decision - and if he wanted to change it and hold an election at an earlier point in time (as, for instance, the NBR's Rob Hosking advocates), there is nothing to stop him from doing so.


[1]       Letters Patent Constituting the Office of the Governor-General of New Zealand 1983; Constitution Act 1986, s 18. See also Simpson v A-G [1955] NZLR 271, 279–281.

[2]       See Hon Dame S Cartwright, “Our Constitutional Journey” [2006] NZ Law Rev 291, 298–299.

[3]       C Morris, “The Governor-General, the Reserve Powers, Parliament and MMP: A New Era” (1995) 25 VUWLR 345.