Caretaker Conventions
Making the playing field even
by Jenny Menzies
With Premier Annastacia Palaszczuk visiting the Governor and the election date set for 25 November, a range of restrictions on the government will now come into play. From now until the result of the election is known, the caretaker conventions apply.
Caretaker conventions aim to check the power of the executive when there is no Parliament to which it can be accountable. The conventions restrain executive power by preventing a government from locking an incoming government into major new policy, funding commitment or significant appointment. They also reduce the ability of the sitting government to gain an unfair electoral advantage by inappropriately drawing on the resources of the public service to support their activities during the campaign.
Yet the business of government continues during the caretaker period and this is where confusion arises. What is the continuing business of government versus an action which would tie an incoming government into a course of action? The suspension by the Health Minister Cameron Dick of the independent Health Ombudsman is an early example of this dilemma. The Health Minister has the power under the Health Ombudsman Act 2013 to suspend the Health Ombudsman if he:
(a)is aware of a matter which is, or may be, a ground for removing the health ombudsman from office under section 250 ; and
(b)considers it is necessary in the public interest for the health ombudsman to be suspended from office pending further consideration of the matter.
The minister exercised that power on Tuesday 31 October, 2017, three days after the calling of the election. But is it a breach of the caretaker conventions.? The answer is no.
The Minister has suspended the Health Ombudsman for sixty days and during that time a report will be finalised into the handling of the matter of the Mater anaesthetic technician. The report will be handed to the next government and it will be their decision on what action to take and their capacity to take that action has not been constrained by the actions of the present Health Minister.
It would be an unusual election campaign that did not have a few caretaker controversies, though the introduction of four year terms should see a reduction of this conflict in Queensland. Four year fixed terms allow for an orderly approach to the run-up to an election and takes the political gamesmanship out of the uncertainty about when the election might be called. Fixed terms mean Parliamentary business can be completed in an orderly manner and all major appointments and contracts finalised.
In Queensland, as with other jurisdictions, a frequent source of conflict has been government advertising. One of the first jobs of the Premier when the election is called is to consider whether any government advertising campaigns should be suspended or curtailed.
The challenge is to continue to advertise material that is in the public interest and to stop communications that are political. Public interest material includes road safety and health promotion campaigns while advertising is considered political if it highlights government achievements and policies, particularly controversial issues.
However, it is the Premier’s call and the Opposition can challenge her judgment but have no capacity to have the decision overturned. This is because conventions are not legally binding. They are a series of obligations with the expectation that each side will observe them when in government. During an election campaign, caretaker conventions formalises the rights of the Opposition as a potential future government, and voluntarily restrains the governing party from exploiting the advantages of incumbency. With so much at stake, it is easy to see why caretaker decisions can easily become a flashpoint during the heightened atmosphere of an election campaign.
The ethics and judgment required for caretaker restraints are easily sidelined in the heat of the political battle where the common goal of both sides is to ‘win the day’ and maximise political advantage. Because the application of the conventions is based on precedent and judgment, it is very difficult for the media or those outside of government to ‘call’ whether a breach has occurred or not and these issues usually remain unresolved for the election campaign.
Though the application of the caretaker conventions is well understood within government during the election campaign. It is the application of the conventions after polling day which has emerged as an issue in recent times. At this election the potential for a hung Parliament and a lengthy vote counting and preference allocation process is likely. This means establishing and transitioning to a new government could be a lengthy process.
This creates many challenges for the public sector who have been holding back major decisions in the expectation of a new Cabinet. Until the next Government is formed, the previous Premier and Cabinet stay in place to ensure there is a continuity of administration. This is important because the unexpected can happen, such as a terrorist attack, financial crisis or natural disaster. The business of government continues, but to ensure an incoming government is not bound by decisions of the caretaker government, any urgent or unavoidable decisions should be made after consultation and agreement with the opposition.
But after the election result is known, the public servants often move quickly to plug any holes in interpretation by updating the guidance on practice. This is because the public service is often caught in the middle of caretaker controversies as it endeavours to maintain that careful balance between independence and its obligation to serve the government of the day.
The downside of this management by the public service is that more and more detail is being added to caretaker guidelines as bureaucrats seek to prevent future breaches. However putting the emphasis on written codes on how to apply the conventions may have an unintended impact. It effectively reduces the incentive for politicians to self-police and in a sense releases them further from the restraints and shackles of a caretaker period.
For further reading on this topic, download the free eBook Caretaker Conventions in Australasia: Minding the shop for government, by Jennifer Menzies and Professor Anne Tiernan
ABOUT THE AUTHOR
JENNIFER MENZIES
Jenny is Senior Associate in the Policy Innovation Hub at Griffith University. Jenny has over 25 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 and a member of the Commonweath Grants Commission 2011 -2016. She publishes in the fields of caretaker conventions, federalism and intergovernmental relations.
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