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Express law

18 September 2007

Election 2007: caretaker conventions

The Prime Minister is expected to announce a general election in the near future. Following the announcement of the election, Parliament will be prorogued and the House of Representatives will be dissolved.

Upon the dissolution of the House of Representatives, the government will assume a caretaker position and caretaker conventions will apply. If the government is returned, the caretaker period will end when the election result is clear. If there is a change of government, it will end when a new Prime Minister and other ministers are appointed.

The caretaker conventions have significant implications for the activities of the government during the caretaker period. Some of the more important aspects of the operation of the caretaker conventions and associated practices that apply during the caretaker period are outlined below.

Overview of the operation of the caretaker conventions

During the period preceding an election for the House of Representatives, the government, as a matter of convention, assumes a caretaker position. In accordance with the caretaker conventions, the government should avoid making important decisions that would be likely to commit an incoming government and limit its freedom of action.

It should be noted that the caretaker conventions do not impose legal obligations on ministers, departments or other Commonwealth agencies or bodies. Therefore, failure to comply with them would not affect the legal efficacy of a particular action taken during the caretaker period.

The caretaker conventions are not ‘hard and fast’ rules, but they represent good administrative practice. Ultimately, the appropriateness of a proposed government action is a matter for the government to decide. When taking such an action, the government may take into account whether it could lead to controversy during the election campaign.

Not only departments and agencies but also other bodies, such as Commonwealth statutory authorities and companies, are expected to observe the caretaker conventions where that is consistent with law and there are not compelling organisational requirements to the contrary.

Important aspects of the operation of the caretaker conventions and associated practices

The caretaker conventions and associated practices do not affect the day-to-day business of government. However, they have significant implications for the activities of the government during the caretaker period. Most importantly, the caretaker conventions suggest that a government should avoid:

  • making major policy decisions
  • making significant appointments
  • entering into major contracts or undertakings
  • involving Australian Public Service (APS) officials in election activities.

Major policy decisions

Determining what constitutes a ‘major’ policy decision involves matters of judgment. Relevant considerations include:

  • whether it is significant in terms of policy and resources
  • whether it is a matter of contention in the election campaign.

The caretaker conventions apply to the making of decisions, not to their announcement. The announcement of decisions may still occur during the caretaker period. However, if the announcement of a decision is likely to cause controversy and distract from substantive issues in the election campaign, then, if possible, it should be made prior to the dissolution.

It is still possible for the government to make a major policy decision during the caretaker period if necessary. In those circumstances, the relevant minister would usually consult the Opposition spokesperson before making the decision.

Significant appointments

In determining what constitutes a ‘significant’ appointment, regard would be had to:

  • the importance of the position
  • the degree to which it may be a matter of contention between the major parties.

If the deferral of appointment until after the caretaker period is impracticable, the relevant minister may be able to consider the following options:

  • making an acting appointment where permissible
  • making a short-term appointment that terminates shortly after the end of the caretaker period
  • consulting the relevant Opposition spokesperson regarding a full-term appointment.

There have been instances in past caretaker periods where appointments were made following such consultation.

Major contracts or undertakings

In determining what a ‘major’ contract or undertaking might be, regard would be had to:

  • the dollar value involved
  • whether it relates to a matter of routine administration or a program or administrative structure that is contentious
  • whether ministerial approval is required.

If it is not possible to defer the commitment, it may be possible to consider the following options:

  • Consultation may occur between a minister and a relevant Opposition spokesperson regarding the commitment. There have been instances of such consultation during past caretaker periods.
  • Agencies may explain to contractors that there is a possibility of a change of government and an incoming government may not wish to proceed, and arrange to have clauses included providing for termination in that event.

A similar approach could be taken to potential tenderers so that they are aware of the possibility that a tender might not be completed.

Ordinarily, the government should also avoid entering into major commitments in the context of international negotiations or it may seek to adopt an observer status until the end of the caretaker period. If the government needs to participate, it could seek the Opposition’s agreement.

APS involvement in election activities

Established practices have been developed between ministers and their departments to protect the apolitical nature of the APS and avoid the use of Commonwealth resources to advantage a specific party during a caretaker period.

For example, agencies should avoid active distribution of material during the caretaker period if it promotes government policies or emphasises the achievements of the government or a minister. In this context, agencies also need to be aware of the impact of the Broadcasting Services Act 1992 and the Commonwealth Electoral Act 1918 on the conduct of information campaigns.

Other established practices include arrangements relating to the content and maintenance of agency and ministerial websites, use of agency premises, and requests from ministers’ offices for information. Ministers may continue to ask for factual material from agencies during the caretaker period, and material relating to the day-to-day business of government is supplied to ministers in the usual way. The way this material is used is for ministers to determine.

In relation to policy costing by departments during the caretaker period, the secretaries of the Treasury and the Department of Finance and Administration have issued guidelines under the Charter of Budget Honesty Act 1998 (see Charter of Budget Honesty: Costing Election Commitments). This Act does not apply to costings by other agencies during the caretaker period. Ministers can request costing information from other agencies in accordance with longstanding practice.

Subject to the need for urgent policy advice on domestic or international issues—for example, to protect Australia’s interests—agencies should generally decline requests for policy advice during the caretaker period. Any request for legal advice on issues affecting a minister in his or her capacity as an election candidate should be declined.

Related matters

There are also other related practices—for example, those dealing with consultation between APS officials and the Opposition and the handling of cabinet documents—that officials should also be familiar with.

This Express law draws heavily on material prepared by the Department of the Prime Minister and Cabinet and available on its website. For further information on the caretaker conventions and related materials, see the PM&C website: http://www.dpmc.gov.au/

If further guidance is required in relation to matters arising during the caretaker period, officials could contact David Macgill, Assistant Secretary, Parliamentary and Government Branch, Department of the Prime Minister and Cabinet (T 02 6271 5761).

 

For further information please contact:

Peter Lahy
Special Counsel
T 02 6253 7085 F 02 6253 7304
peter.lahy@ags.gov.au

Important: The material in Express law is provided to clients as an early, interim view for general information only, and further analysis on the matter may be prepared by AGS. The material should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this message.