RICHARD PREBBLE: Luxon is a caretaker

The law is clear. Christopher Luxon remains Prime Minister, but in a caretaker capacity.

He should not make significant policy decisions or use his position for party-political advantage.

Ministers defeated at the election can remain in office until 4 December, when they must leave.

Luxon has the legal power to appoint new ministers. But how should he exercise that power while observing the caretaker convention?

The most obvious solution is to appoint existing Associate Ministers to act in the portfolios of defeated ministers. Where there is no associate, the minister with the closest responsibilities.

Then there is the constitutionally important office of Attorney-General. It may be that the Solicitor-General can exercise many of its functions until a new government is formed.

Luxon needs to take independent advice.

First, from the Secretary of the Cabinet, who advises on the Cabinet Manual and caretaker conventions. Then from the Public Service Commissioner on continuity of administration, and from the Solicitor-General on the legal and constitutional issues.

Luxon should make the constitutional advice he receives public.

The caretaker convention exists to ensure continuity of government, not to allow a Prime Minister to strengthen his party’s position in coalition negotiations.

Luxon should explain how his appointments comply with the caretaker convention before making them.

Richard Prebble is a former Minister and ACT Party leader who writes at I've Been Thinking