Who knows or cares about Caretaker Conventions?


by Anne Tiernan and Jennifer Menzies

Queensland Premier Campbell Newman’s decision to call a snap election for 31 January brought an unexpectedly early start to the inevitable drama of the contest as the two major political parties compete for office. Here, as in NSW which goes to the polls on 28 March 2015, and indeed in all Australian jurisdictions, away from the spotlight, historic safeguards are in place to maintain the impartiality of the public sector during the campaign and to allow for the smooth transition for the incoming government.

The issuing of the writs by the Acting Governor on 6 January 2015 marked the beginning of the ‘caretaker period’ for the 2015 Queensland election. Until the election result is clear, Ministers (and their staff) are expected to observe the ‘caretaker conventions’ — principles and practices that guide the conduct of political actors and the use of public resources during an election campaign.

What are Caretaker Conventions?

Caretaker conventions aim to check the power of the executive when there is no Parliament for it to be accountable to. They are intended to moderate the advantages of incumbency and to reduce the potential for a sitting government to gain unfair electoral advantage by making inappropriate or partisan use of public resources (including the public service) to support their efforts to be returned to office during the election campaign.

The caretaker principles require that during the caretaker period no new policy decisions be taken; no major contracts be entered into; and that significant appointments should not be made. As the alternative government, the Opposition has increased standing. The conventions allow Shadow Ministers to access briefings from senior public servants on machinery of government issues. During the campaign, both Opposition and Government policies are collected and analysed by the public service as a basis for advice to the incoming government about how and by when their agenda and commitments can be implemented.

Like all of the conventions that flesh out the practice of Westminster-style government, Caretaker conventions are based on shared understanding and experience of how things should happen. They exist and are sustained by mutual agreement by both sides of politics that they will adhere to them. Sanctions against breaches of the caretaker conventions are moral and political. They have no legal standing and are not adjudicated by the courts.

Caretaker conventions are among the most challenged and controversial of all conventions, since they apply episodically (every 3 or 4 years, according to the length of parliamentary terms) during periods of intense partisan contest.

Adversarial politics reaches its zenith when parties have the potential to gain or retain government. The ethics and judgement that politicians require to respect the conventions can be easily overridden by the drive to ‘win the day’ and to maximise political advantage.

By their nature, the Caretaker conventions only exist if both sides of politics continue to regard them as important and binding.
Ultimately leaders — prime ministers and premiers set the tone for the observance or not of the caretaker conventions. They are the final decision-makers on how the conventions are interpreted (informed by public service advice) and respected (or not) by ministers and their staff in the heat of an election campaign.

Testing the limits of incumbency

We have recently completed a revised edition of our 2007 book Caretaker Conventions in Australasia: Minding the Shop for Government (Canberra: ANU Press). Our research covers the Caretaker conventions at all levels of Australian government (Commonwealth, State and local) and in New Zealand. It includes a review of the controversies that seem inevitably to arise during election campaigns in Australian jurisdictions.

Our analysis of recent elections revealed reluctance on the part of sitting governments to exercise restraint during the caretaker period. We document some examples of this tendency for incumbents to push the limits of incumbency for partisan advantage. Key pressure points seem to be government-funded advertising campaigns, grant programs, and as we saw in the November 2014 Victorian election, the signing of major contracts.

We found the most flagrant breaches of the Caretaker conventions tend to come from governments facing electoral oblivion who calculate they have little to lose by seeing through a policy commitment or continuing an advertising campaign. Such pragmatic partisan decisions have an important administrative half-life. Each time an incumbent offends the mutuality and reciprocity of the caretaker conventions, the more likely the then Opposition will take it just that bit further themselves the next time they are in office.


In the line of partisan fire

The caretaker period is particularly challenging time for senior public servants. They must tread a careful line, balancing their obligation to be responsive to the government of the day (which retains its mandate to govern until the election result is known) with the need to remain impartial and to avoid controversy and perceptions of political partisanship.

Departments and agencies are obliged under the caretaker conventions to prepare information and briefings for an incoming government (one for a returning government; another for a new government) while keeping the business of government ticking over — all without breaching the spirit and the letter of the caretaker conventions.

Over recent decades, as government has become larger and more complex, caretaker conventions have become codified. A simple letter from the Prime Minister or Premier to Ministers reminding them of their obligations during the caretaker period has been supplanted by detailed guidelines to public servants issued by the Prime Minister’s or Premier’s Department.

Codification shifts the onus of responsibility for observing the caretaker conventions away from politicians and onto public servants. Formal guidelines together with legislation enshrining public service values and codes of conduct, means public servants now have legal obligations for non-partisan behaviour that do not apply to breaches by politicians.

This presents an important and insoluble dilemma for officials who may be required — after the election — to account to parliamentary committees or other inquiries for their advice to ministers, their behaviour and that of their agencies during the caretaker period. Former Secretary of the Commonwealth Department of Finance, David Tune, found this out in February 2014 when he was asked questions about the Rudd government’s decision to continue the controversial No Boat, No Visa advertising campaign during the 2013 federal election.

Officials now review their caretaker guidance documents after each election to ensure any ambiguity or whiff of controversy from the campaign is accounted for the next time. More and more details being added to the guidance documents as bureaucrats seek to prevent future breaches.

The emphasis on written codes for public servants shifts the onus of responsibility for observing the conventions from politicians to public servants. This has brought a significant and serious unintended consequence — there are now fewer obligations on politicians to behave with appropriate restraint during the caretaker period.

Political problems require political solutions. Ultimately therefore, responsibility for observing the caretaker principles should rest where it is most appropriate, with the Prime Minister or Premier and Ministers. Bureaucratic ‘caretakers’ cannot control or significantly influence the behaviour of politicians, especially in the partisan hot-house of an election campaign.

The Caretaker conventions are an important handbrake on dysfunctional partisanship. They help to ensure the business of government continues, and safeguard public institutions and public resources until a new administration is formed. Though they are little understood — particularly by the political class, they are a Westminster legacy worth preserving.

Listen to Anne talk about Caretaker Conventions

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.

Download their free book, Caretaker Conventions in Australasia: Minding the Shop for Government from ANU Press.

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