In Brief | Caretaker Conventions

Following the calling of the Commonwealth election, it’s a great time to re-familiarise ourselves with the Caretaker Conventions. The following resources may help you understand this important aspect of public administration!

During the caretaker period (generally the period between the dissolution of the House of Representatives and the election result), the business of government continues and ordinary matters of administration still need to be addressed. Australia’s Constitution is silent on whether the government can continue as normal in the lead-up to an election for the House of Representatives. There is nothing constitutionally prohibiting a business-as-usual approach. However, successive governments have agreed to follow a series of practices, known as the Caretaker Conventions, which aim to ensure their actions do not bind an incoming government and limit its freedom of action. 

The Caretaker Conventions’ central justification is that, once the House of Representatives has been dissolved and until the election result is known, the government is effectively governing without parliamentary oversight. The conventions ensure no major decisions are made without accountability. Antony Green's blog entry The Operation of Caretaker Conventions provides a good overview of how the Conventions operate and some recent examples of their application in Australia.

The Australian Prime Ministers Centre also has a fact sheet on the caretaker conventions in Australia. And see The Conversation's Election Explainer on the caretaker period and a recent article by former WA Premier Geoff Gallop in The Mandarin The Public Service and Caretaker Government.

Looking internationally, there are different approaches. Canada only recently made its Caretaker Conventions open through a public document, whereas Australia has had a transparent written approach to the Caretaker Conventions since the time of the Menzies Government. See the Department of the Prime Minister and Cabinet's November 2018 Guidance on Caretaker Conventions for more.

In the UK, there is little overt guidance on caretaker government. Director of the Constitution Unit at University of London, Robert Hazell, put the case for explaining the rationale for the caretaker convention in the Cabinet Manual. This was further discussed by a UK Parliamentary Comittee in 2015.

In Australia, we’ve had a relatively calm ride in relation to the Caretaker Conventions, unlike New Zealand, which faced a major crisis in 1984 when the then Prime Minister, Sir Robert Muldoon, refused to devalue the New Zealand dollar on the advice of the Reserve Bank immediately after the election he had just lost.

The Caretaker Conventions have been tested at times, though, most recently during the long transition between the 2010 election and the forming of the Gillard government. During that period, the three key Independents asked to be briefed by Treasury, leaving officials contemplating their obligations under the Conventions.

Following the 1999 Victorian election, when the final result was not clear for nearly a month,  the Department of Premier and Cabinet set up a reference group to facilitate a whole-of-government decision-making process that was “effective, efficient and timely”. See Rethinking Caretaker Conventions for Australian Governments in the Australian Journal of Public Administration (IPAA members only) for an account of the Victorian case, including how they dealt the matter of the formal appointment of an Auditor-General and the execution of a contract with a private provider of health services.

There is often interest in contracts and other legal arrangements that are entered into directly before a caretaker period commencing, where the decision is not covered by the Conventions. In relation to contracts and other forms of binding legal arrangement, negotiating and entry into contracts is permitted provided that such contracts are not ‘significant’. Department and Agencies should consider deferring execution of contracts to the extent that these are: high value; concerned with the implementation of government policy; or politically contentious.This guidance note by the Attorney-General's Department provides information on dispute resolution during the caretaker period.

The reserve powers  under our Westminster system of government include the power to appoint or dismiss a Prime Minister and to refuse to grant an election or prorogue Parliament.  Questions are sometimes raised about the reserve powers during the caretaker period. For example, if a government, that was not responsible to the Parliament, advised the Governor-General to act in breach of the caretaker conventions by implementing an important decision with ongoing ramifications that would bind any future government. Read this lecture by constitutional expert Professor Anne Twomey for more.

If you want to go into Caretaker Conventions more deeply, consider the open access October 2015 ANZSOG monograph Caretaker Conventions in Australasia  by Jennifer Menzies and Anne Tiernan. 

"In the second revised edition of this monograph, Jennifer Menzies and Anne Tiernan capably chart the often hazardous terrain of the ‘caretaker period’ that ensues from the time an election is called until a new government is formed. This is a landscape fraught with political and administrative dangers – particularly for public servants who are required to ‘mind the shop’ and keep the basically machinery of government going."

Feedback welcome here!
 

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