Caretaker and Transitions: How to manage through uncertainty?
by Anne Tiernan and Jennifer Menzies
THE OUTCOME OF SATURDAY’S ELECTION remains unknown, but the protocols that ensure the business of government in Queensland continue remain in force.
Without a sitting Parliament to be answerable to, the caretaker conventions provide arrangements that enable the outgoing government and the government-in-waiting to manage any major issues that might arise.
The caretaker period ends when the election result is known — when the continuation of the incumbent government is confirmed or a new government is commissioned.
The increasing incidence of close election results and hung parliaments is making the period that the caretaker conventions apply post-election lengthier.
CARETAKER CONVENTIONS AIM TO CHECK the power of the executive when there is no Parliament to which it can be accountable. The conventions are designed to restrain executive power — in the post election phase particularly by preventing an outgoing government from locking an incoming government into major new policy, funding commitment or significant appointment.
For the public service, uncertainty in the aftermath of an election creates a range of practical problems:
- Who is eligible to receive advice and briefing from departments?
- How should agencies prepare incoming government briefs when the composition of the government and the timing of the swearing-in of a new ministry are unclear?
- What happens with urgent decisions or in a crisis such as a terrorist incident or a natural disaster?
In Queensland, the situation is even more confused with the Premier having lost his seat. Technically, Campbell Newman is still the Premier. As such, he is responsible for government decisions and ensuring the caretaker conventions are observed until the next government is formed.
Two jurisdictions that have recent experience with extended transitions are New Zealand and the federal government after 2010. How both of these administrations developed protocols to handle the uncertainty and this experience can be used as a template for the Queensland situation.
The New Zealand mixed member proportional (MMP) electoral system seldom delivers any party a clear majority. Coalition governments can takes an extended period to form — particularly when there is a change of government. New Zealand has developed clear and well understood arrangements for the operation of caretaker conventions post-election.
It has evolved approaches to managing this interregnum, that address two potential scenarios:
- where it is not clear who will form the next government; or
- where it is clear who will form the next government, but they have not yet taken office.
In Queensland we are dealing with the second situation. In that case the New Zealand system would apply the following principles:
- decisions taken and specific policy determined before the start of the caretaker period may be implemented by a caretaker government, and
- in general terms, the normal business of government and the day-to-day administration of departments and agencies in the wider state sector may continue during the caretaker period.
However, it is recommended that decisions concerning significant issues that might bind an incoming government should be deferred, be handled by temporary arrangements or be subject to consultation with other parties.
The New Zealand Cabinet Manual stresses the need for careful judgement by Ministers, public servants and Crown entities. It acknowledges there are no ‘hard and fast rules’ and that a range of considerations will need to be taken into account before a decision.
In Australia, the 2010 federal election saw, for the first time, the challenges of a long transition within the Commonwealth government. The media focus was firmly on the implications of a hung parliament and which party the independent cross-benchers would support to form government.
To manage these unusual circumstances, the Department of the Prime Minister and Cabinet quickly developed and distributed Guidelines for Post-election Consultations with Independent Members. These guidelines advised that senior officials could hold discussions with independent members after agreement from the Prime Minister and after giving notice of the meeting to the Leader of the Opposition.
This restricted public service advice to:
- matters relating to machinery of government and administration, including the administrative and technical practicalities and procedures involved in implementation of policies proposed by the government and Opposition parties;
- information on the international, economic and budget outlook, including the costs of government and Opposition policies and their net impact on the Pre-Election Economic and Fiscal Outlook aggregate budget estimates, and
- factual information of the kind that an official might provide to a parliamentary committee.
In Queensland, the caretaker conventions in the Cabinet Handbook have a detailed section on consultation with the Opposition before an election. The guidelines make provision for such consultation with the following mechanisms:
- Consultations with departments are initiated by the Opposition spokesperson making a request for access to the relevant Minister, who will notify the Premier as to the nature of the request and as to whether it has been granted;
- The subject matter of the discussion between officers and the Opposition spokespersons relates to the machinery of government and administration and the resources generally available in the portfolio area as they would relate to the implementation of Opposition policy. Officers are not authorised to discuss the merits of policies of either the government or the Opposition;
- Officers are to inform Ministers when the discussions are taking place and Ministers are entitled only to seek assurances that the discussions are kept within the agreed purposes. The content of the discussion is confidential to the participants.
HOWEVER, THIS DOESN’T ASSIST WITH the real and present issues now facing the Queensland public service as it navigates this extraordinary period of uncertainty.
What happens if an issue or emergency arises that requires a decision from the incumbent government? The situation in Queensland raises fundamental questions about the authority and responsibilities of the caretaker government which is likely to lose its majority, during the period leading up to its formal replacement by an incoming administration.
At the moment, the Premier and the LNP Cabinet Ministers are still the official government. This is complicated by the fact that Newman has lost his seat of Ashgrove. Media reports that he has packed up his offices raises the obvious question of whether he is continuing to discharge his duties as Queensland Premier.
The first decision to be taken by a government department in managing an urgent decision is whether it can be deferred? If the answer is no, then the outgoing Premier or Minister must consult with the Opposition to agree a bipartisan approach to the decision. Despite the uncertainty, the State still needs an acting government and a functioning executive to deal with crises and unavoidable decisions until the new government is appointed.
With the increasing tendency to hung Parliaments and minority governments, the Queensland experience should lead to an evolution of the caretaker convention which gives greater guidance to the public sector on how to manage that time between election day and the swearing in of the new administration.
For further information about Caretaker Conventions, download the free book, Caretaker Conventions in Australasia: Minding the Shop for Government from ANU Press.
ABOUT THE AUTHORS
ANNE TIERNAN
Anne Tiernan is a Professor in the School of Government and International Relations at Griffith University. Professor Tiernan’s research focuses on the work of governing. Her scholarly interests include: Australian politics and governance, policy advice, executive studies, policy capacity, federalism and intergovernmental coordination. She has written extensively on the political-administrative interface, caretaker conventions, governmental transitions and the work of policy advising.
JENNIFER MENZIES
Jennifer Menzies is Adjunct Senior Research Fellow in the School of Government and International Relations at Griffith University and is a Member of the Commonwealth Grants Commission and Director of the consultancy Policy Futures.
Jenny has over 20 years experience in policy and public administration in both the State and Commonwealth Governments.
As a senior executive within the Queensland Department of the Premier and Cabinet she developed the government’s strategic policy agenda including the Smart State Policy.
She was Cabinet Secretary from 2001 to 2004 and the inaugural Secretary for the Council for the Australian Federation from 2007 to 2009. She publishes in the fields of caretaker conventions, federalism and intergovernmental relations.
