Express law No. 62

18 September 2007

Election 2007: caretaker conventions

The Prime Minister is expected to announce a general
election in the near future. Following the announcement
of the election, Parliament will be prorogued and the
House of Representatives will be dissolved.

Upon the dissolution of the House of Representatives,
the government will assume a caretaker position and caretaker
conventions will apply. If the government is returned,
the caretaker period will end when the election result
is clear. If there is a change of government, it will
end when a new Prime Minister and other ministers are
appointed.

The caretaker conventions have significant implications
for the activities of the government during the caretaker
period. Some of the more important aspects of the operation
of the caretaker conventions and associated practices
that apply during the caretaker period are outlined below.

Overview of the operation of the caretaker conventions

During the period preceding an election for the House
of Representatives, the government, as a matter of convention,
assumes a caretaker position. In accordance with the caretaker
conventions, the government should avoid making important
decisions that would be likely to commit an incoming government
and limit its freedom of action.

It should be noted that the caretaker conventions do not
impose legal obligations on ministers, departments or other
Commonwealth agencies or bodies. Therefore, failure to
comply with them would not affect the legal efficacy of
a particular action taken during the caretaker period.

The caretaker conventions are not 'hard and fast' rules,
but they represent good administrative practice. Ultimately,
the appropriateness of a proposed government action is
a matter for the government to decide. When taking such
an action, the government may take into account whether
it could lead to controversy during the election campaign.

Not only departments and agencies but also other bodies,
such as Commonwealth statutory authorities and companies,
are expected to observe the caretaker conventions where
that is consistent with law and there are not compelling
organisational requirements to the contrary.

Important aspects of the operation of the caretaker conventions
and associated practices

The caretaker conventions and associated practices do
not affect the day-to-day business of government. However,
they have significant implications for the activities of
the government during the caretaker period. Most importantly,
the caretaker conventions suggest that a government should
avoid:

  • making major policy decisions
  • making significant appointments
  • entering into major contracts or undertakings
  • involving Australian Public Service (APS) officials
    in election activities.

Major policy decisions

Determining what constitutes a 'major' policy
decision involves matters of judgment. Relevant considerations
include:

  • whether it is significant in terms of policy and resources
  • whether it is a matter of contention in the election
    campaign.

The caretaker conventions apply to the making of decisions,
not to their announcement. The announcement of decisions
may still occur during the caretaker period. However, if
the announcement of a decision is likely to cause controversy
and distract from substantive issues in the election campaign,
then, if possible, it should be made prior to the dissolution.

It is still possible for the government to make a major
policy decision during the caretaker period if necessary.
In those circumstances, the relevant minister would usually
consult the Opposition spokesperson before making the decision.

Significant appointments

In determining what constitutes a 'significant' appointment,
regard would be had to:

  • the importance of the position
  • the degree to which it may be a matter of contention
    between the major parties.

If the deferral of appointment until after the caretaker
period is impracticable, the relevant minister may be able
to consider the following options:

  • making an acting appointment where permissible
  • making a short-term appointment that terminates shortly
    after the end of the caretaker period
  • consulting the relevant Opposition spokesperson regarding
    a full-term appointment.

There have been instances in past caretaker periods where
appointments were made following such consultation.

Major contracts or undertakings

In determining what a 'major' contract or
undertaking might be, regard would be had to:

  • the dollar value involved
  • whether it relates to a matter of routine administration
    or a program or administrative structure that is contentious
  • whether ministerial approval is required.

If it is not possible to defer the commitment, it may
be possible to consider the following options:

  • Consultation may occur between a minister and a relevant
    Opposition spokesperson regarding the commitment. There
    have been instances of such consultation during past
    caretaker periods.
  • Agencies may explain to contractors that there is
    a possibility of a change of government and an incoming
    government may not wish to proceed, and arrange to have
    clauses included providing for termination in that event.

A similar approach could be taken to potential tenderers
so that they are aware of the possibility that a tender
might not be completed.

Ordinarily, the government should also avoid entering
into major commitments in the context of international
negotiations or it may seek to adopt an observer status
until the end of the caretaker period. If the government
needs to participate, it could seek the Opposition's
agreement.

APS involvement in election activities

Established practices have been developed between ministers
and their departments to protect the apolitical nature
of the APS and avoid the use of Commonwealth resources
to advantage a specific party during a caretaker period.

For example, agencies should avoid active distribution
of material during the caretaker period if it promotes
government policies or emphasises the achievements of the
government or a minister. In this context, agencies also
need to be aware of the impact of the Broadcasting Services
Act 1992 and the Commonwealth Electoral Act 1918 on the
conduct of information campaigns.

Other established practices include arrangements relating
to the content and maintenance of agency and ministerial
websites, use of agency premises, and requests from ministers' offices
for information. Ministers may continue to ask for factual
material from agencies during the caretaker period, and
material relating to the day-to-day business of government
is supplied to ministers in the usual way. The way this
material is used is for ministers to determine.

In relation to policy costing by departments during the
caretaker period, the secretaries of the Treasury and the
Department of Finance and Administration have issued guidelines
under the Charter of Budget Honesty Act 1998 (see Charter
of Budget Honesty: Costing Election Commitments
). This
Act does not apply to costings by other agencies during
the caretaker period. Ministers can request costing information
from other agencies in accordance with longstanding practice.

Subject to the need for urgent policy advice on domestic
or international issues–for example, to protect Australia's
interests–agencies should generally decline requests
for policy advice during the caretaker period. Any request
for legal advice on issues affecting a minister in his
or her capacity as an election candidate should be declined.

Related matters

There are also other related practices–for example,
those dealing with consultation between APS officials and
the Opposition and the handling of cabinet documents–that
officials should also be familiar with.

This Express law draws heavily on material prepared by
the Department of the Prime Minister and Cabinet and available
on its website. For further information on the caretaker
conventions and related materials, see the PM&C website:
http://www.dpmc.gov.au/

If further guidance is required in relation to matters
arising during the caretaker period, officials could contact
David Macgill, Assistant Secretary, Parliamentary and Government
Branch, Department of the Prime Minister and Cabinet (T
02 6271 5761).

For further information please contact:

Peter Lahy
Special Counsel
T 02 6253 7085 F 02 6253 7304
peter.lahy@ags.gov.au

Important: The material in Express law is
provided to clients as an early, interim view for general
information only, and further analysis on the matter
may be prepared by AGS. The material should not be
relied upon for the purpose of a particular matter.
Please contact AGS before any action or decision is
taken on the basis of any of the material in this message.