Still Governing
The Turnbull government is not (yet) a caretaker government.
by Jennifer Menzies and Professor Anne Tiernan
As soon as Prime Minister Malcolm Turnbull turned up at a busy construction site to announce to the assembled media questions started about the logistics of a long campaign and the legitimacy of government decision-making until that date at
‘an appropriate time after the Budget has been delivered, I will be asking the Governor-General to dissolve both houses of the parliament for an election, which I expect to be held on 2 July’.
It is expected, the Prime Minister will visit Governor-General Peter Cosgrove after the Opposition Leader’s Budget Reply speech on 5 July. Now the election date is known the question is whether the government is constrained by the caretaker conventions?
Since Queenslanders supported a referendum to adopt four-year parliamentary terms in March 2016, the Commonwealth is now the only Australian jurisdiction where three-year terms are the norm.
Historically, prime ministers have jealously guarded their prerogative to choose the timing of an election for maximum political advantage. Julia Gillard subverted this tradition when in late January 2013 she announced a federal election would be held in September of that year. Her rationale was the need to reduce speculation and uncertainty and to provide her minority government with clear air to govern for a full term.
Of course by then, Gillard was gone; replaced by her predecessor Kevin Rudd, who changed the date. But the die was cast. Three years on, the eerie parallels on the conservative side have been widely remarked upon and warrant no further discussion here.
Importantly, neither Gillard’s announcement then nor Turnbull’s now, pose any difficulties for the business of government, which will continue until the writs for the election are issued and the Parliament is formally dissolved. In 2016, the Governor-General will act on the government’s advice that there should be a simultaneous dissolution of both houses.
The issuing of the writs by the Governor-General, which specify both the date of the election and the date by which the writs must be returned, marks the formal commencement of the caretaker period.
The caretaker conventions are intended to moderate the advantages of incumbency by constraining the power of the executive during an election campaign. The caretaker conventions, and increasingly detailed guidance documents prepared by the Department of the Prime Minister and Cabinet, are designed to guide the behaviour of ministers and public servants during an election campaign. They constrain the incumbent government from making major policy decisions, significant appointments, entering into major contracts or other decisions that would unreasonably bind an incoming government.
Malcolm Turnbull’s announcement that the election will be in nearly three months time, with a caretaker period rather longer than the average of thirty days, is unusual, but not unprecedented.
A long lead-time is routine in jurisdictions with fixed parliamentary terms. Governments and officials tend to use this time to finalise the legislative program and Cabinet decision-making. But the bitterly-fought 2014 Victorian election showed the potential for adversarial politics and ‘hyper-partisanship’ to undermine (perhaps fatally after the East-West Link controversy) the shared norms and reciprocity that underpin the caretaker conventions.
As usual, the real challenge will fall to the federal bureaucracy. Between now and the formal dissolution of Parliament, it must manage the ‘phony war’ that will rage between the Coalition, Labor, the Greens and Independents (and their staffers) and seven cross-bench Senators (and their staffers) facing premature electoral oblivion. If recent experience is anything to go by, things could get messy. It’s not evident many of our serving parliamentarians or their staff has a strong command of the caretaker principles and expectations of conduct during the election campaign.
The commencement of the caretaker period provides the Australian Public Service a buffer not available to it during a normal term of government. It enables it to separate its activities from the incumbent government and to draw a stronger distinction between its obligations to be responsive to ministers and the principles of impartiality expected of a career bureaucracy during an election campaign.
Three areas pose particular challenges for the public service. These will be first, to separate requests for information that relate to the continuity of government business from those for information, which could confer an unfair advantage during the election campaign. Public funds will continue to pay the expenses of ministers and their staff until the official campaign launch, now increasingly held towards the end of the campaign.
Separating genuine campaigning activities from responding to the normal course of requests from a ministerial office will require judgment by senior officials and real mastery of their craft. Ministerial offices will continue to expect high levels of support from the public sector.
The second challenge for the bureaucracy will be to not only maintain impartiality in a highly contested and partisan environment, but to exercise another key obligation of the caretaker period preparing two sets of detailed briefs: one for an incoming government, another for a returning government.
A third challenge is already evident and can be expected to intensify between now and the dissolution of Parliament, and again during the campaign proper. This concerns government advertising campaigns — always contentious and risky for public servants caught in the cross-fire.
Of course, the focus on the public service obscures the reality that the obligation to observe the caretaker conventions rests with politicians. However fierce the political contest, it is their responsibility to uphold appropriate standards before, during and after the election campaign (particularly in the event of a hung parliament). It falls to the key protagonists — Malcolm Turnbull and Bill Shorten to preserve this critical and valuable feature of our Westminster-style political system.
Detailed information about the Caretaker Conventions is available in our 2014 monograph, Jennifer Menzies and Anne Tiernan Caretaker Conventions in Australasia: Minding the Shop for Government.
ABOUT THE AUTHORS
JENNIFER MENZIES
Jenny is Deputy Director of the Policy Innovation Hub at Griffith University. 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.
Jenny is also a Member of the Commonwealth Grants Commission and Director of the consultancy Policy Futures.
ANNE TIERNAN
Professor Anne Tiernan is Director of the Policy Innovation Hub 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.
