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. Read the Guidance on Caretaker Conventions from PM&C.

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, widely considered one of the leading election experts in the country, writes the Antony Green Election Blog. His 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. See also The Conversation's Election Explainer on the caretaker period.

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 aned Cabinet's November 2018 Guidance on Caretaker Conventions for more

The Caretaker Conventions have been tested at times, 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.

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.

In Australia, we’ve had a relatively calm ride in relation to the Caretaker Conventions, unlike New Zealand, who 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 post the election he had just lost.

If you want to know more, 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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