BRR: Welcome to BoardRoom Radio. With the election called and campaigning in full swing, the government has moved into what's known as a caretaker position which, depending on the outcome, will end with the re-election of the Gillard government or the election of Tony Abbott as our new prime minister. But, until then, there are important caretaker conventions that apply. Joining us to discuss these conventions and other related practices we have Peter Lahy. He's a Deputy General Counsel for the Australian Government Solicitor in Canberra. Welcome, Peter.
PL: Hello David, how are you?
BRR: Very good. Well, Peter, can we kick off with what's meant by 'caretaker conventions' and who do they apply to?
PL: Well, the caretaker conventions really are a series of practices that the incumbent government adopts to ensure that its actions don't bind a future government and limit its freedom of action. And, to that end, they undertake not to engage in certain activities during the caretaker period and that caretaker period runs, in essence, from the time the House of Representatives is dissolved until the election result is clear in the case where a government is returned or, if a government isn't returned, when a new government is appointed. So during that period, what a government would seek to avoid is making any major policy decisions that are likely to commit an in-coming government, making any significant appointments and entering into any major contracts or undertakings.
BRR: Well, just looking at those major policy decisions, we're certainly seeing alot in the press at the moment. I understand there's also an interplay between making policy decisions and announcing them during this caretaker period. Can you look into that a bit closer and provide some examples as well?
PL: There certainly is an interplay between those two, in the sense that the conventions are not infringed by the announcement of a major policy during the campaign where the decision on that major policy was taken before then. As to examples, it's a little bit hard just to identify which might fall into that category because they can often be developing on from previous times or they may have a long history, a long… but what I can say is that, if it's likely to be an appointment about a controversial matter, it is desirable for the policy to be made and announced prior to the caretaker period kicking in, rather than during the campaign because that can lead to, well, as perhaps not unexpectedly, can lead to distraction from other, other things going on during the campaign.
BRR: Well if, if I may just indulge, at the moment, we seem to be getting a number of policy, let's call them, 'announcements' at the moment if you take Julia Gillard's latest climate change policy in her speech. Are we to assume then that that was a policy decision taken prior to the caretaker period?
PL: No. No, the caretaker conventions don't restrict parties declaring their policies which they're going to go forward with and implement in government. That's part of their election campaigning process.
BRR: Right, okay. So there is a distinction for, I guess, policies which take effect should a party or should the government win or be re-elected, I should say?
PL: That's right, and put forward as part of their election campaigning.
BRR: The caretaker period is obviously a sensitive time for, for the public servants, so how can they ensure that they're not using Commonwealth resources to favour a particular party during this period and remain apolitical?
PL: Well, that's an important point you've made there. It is a sensitive time for public servants and there have developed a number of practices which are intended to protect, you know, its apolitical nature - ah, and avoid the use of Commonwealth resources so that a particular party would be advantaged. That covers across a range of activities. To take a couple of examples, in relation to advertising and information campaigns, agencies would be expected to avoid distribution of material during the caretaker period if it promoted government policies or emphasised the achievements of the government or a minister. Now, that's not intended to cut across operational-type campaigns, such as defence force recruiting or public health campaigns and they would usually be expected to continue. You know, another example would be in the area of internet and electronic communications, being engaged in by the bureaucracy. For example, agencies should check their icons and links to ensure that they can't be interpreted as promoting a government policy. And then there's also arrangements about dealings between agencies and ministers' offices, for example, so outside urgent need for policy advice, there might be a domestic or international issue that, directly affecting Australia's interests, outside those kinds of areas, agencies would generally decline requests for policy advice during the caretaker period from a minister. So they're some of the areas, of course, just to make it clear that these conventions apply to all departments and core government agencies, but they're also treated as applying, in effect, to other Commonwealth sector bodies such as Commonwealth companies or Commonwealth statutory authorities where that can be applied consistent with their relevant legal requirements and any compelling organisational requirements. So they are applied broadly across the Commonwealth bureaucracy.
BRR: And we call them 'conventions' so, just to be clear, are these hard and fast rules? What happens if the conventions are breached, so to speak?
PL: Well they are conventions and that's why they're called conventions. They're not legally binding. They're practices that have grown up to secure the end that we talked about earlier. But, if they weren't followed in any particular case, they wouldn't affect the legal position. For example, if the Commonwealth entered into a contract during this period that was claimed to be a major contract, that contract from a legal perspective, that contract would be valid and binding. The government may be criticised for having done that, for whatever reason, but that wouldn't affect the efficacy of the transaction.
BRR: Are there any other related practices that don't fall within the caretaker conventions as such, but are nonetheless important?
PL: Ah, yes, there are a range of other practices that, that agencies and departments implement during this period which relate directly to the election that are not necessary to the actual conventions themselves. In particular they might be dealing with the way that APS officials deal with the opposition in terms of briefing and providing briefings to opposition shadow ministers, how Cabinet documents are to be gathered together in a single place and then, depending on the outcome of the election, how those documents are then dealt with. And also dealing with correspondence from, from members of the public and constituents. There are guidelines set out that, ah, for example regulate the dealings between the government officials and opposition shadow ministers, for example. These briefings need to be initiated by the shadow minister and that, through the relevant minister's office, those officials are not, as part of that activity, are not authorised to discuss government policies or give opinions and ministers or ministerial staff wouldn't be present at those briefings. But there is a range of guidelines that officials need to be familiar with for the purposes of participating in those briefings.
BRR: Peter, some great insights there and, no doubt, they'll remain very important for the next month or so until we see an outcome to the election. We'll leave it there for now. Thank you again for your time today.
PL: Alright then, David.
BRR: That was Peter Lahy, Deputy General Counsel for the Australian Government Solicitor, dialling in from the political hot-bed of Canberra.