The Operation of Caretaker Conventions (ANTONY GREEN)

February 05, 2013
The Operation of Caretaker Conventions

As long as governments have the confidence of the House of Representatives, or in the case of supply matters the approval of the Parliament, and as long as they are not acting illegally, they can continue to make all the normal decisions that a government is required to make.

When a government does not have the confidence of the House, they are limited in the functions they can perform. Any matter that requires the approval of the Governor General at an Executive Council meeting could be declined as the Governor General would not have to accept advice from Ministers without the confidence of the House.

In the modern era, periods when the government does not have confidence are almost entirely limited to the period between when the Parliament is dissolved for an election and when it is clear that a new government can be formed. The conventions would also apply to any baton change period if a government lost the confidence of the House.

To cover this period, a set of ‘caretaker’ conventions have developed, governing what the government can and cannot do.

A brief summary of the conventions can be found in Appendix K of the Australian government’s Cabinet Handbook (7th edition). You can find a copy of the handbook at http://www.dpmc.gov.au/guidelines/docs/cabinet_handbook.pdf and Appendix K is on Page 51.

A full set of the current rules can be found at http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf. This document is prepared for the use of the public service and is designed to give some backing to public servants who choose to say no to a government request during the caretaker period.

The first paragraph of Appendix K sets out in broad detail what the caretaker conventions are about.

By convention, the Government ensures that important decisions are not taken in the caretaker period that would bind an incoming government and limit its freedom of action. The basic caretaker conventions require Government to avoid implementing major policy initiatives, making appointments of significance or entering major contracts or undertakings during the caretaker period and to avoid involving departmental officers in election activities.

Paragraph 2 then sets out when the Caretaker period is to apply for (my emphasis added):

The caretaker conventions operate from the dissolution of the House of Representatives until the election result is clear or, in the event of a change of government, until the new government is appointed. However, it is also accepted that some care should be exercised in the period between the announcement of the election and the dissolution. There is no caretaker period for separate half Senate elections.

So what happens when a Prime Minister does what Julia Gillard did last week in announcing an election more than six months before the dissolution of Parliament? What is meant by “some care should be exercised in the period between the announcement of the election and the dissolution”?

The first thing to say is that the conventions are not directly enforceable by the courts, but may be taken into account and enforced indirectly.

Trying to get a court to enforce the wording of Paragraph 2 would be very diffcult as it is nothing more than a guidance note. The Cabinet Handbook is written by the public service under instruction from the government. It can easily be re-written, and a new version is usually issued after every election.

For instance, the inconclusive nature of the 2010 election result meant the public service had to adopt a new set of guidelines to cope with negotiations with cross bench members. You can find a copy here http://www.dpmc.gov.au/guidelines/docs/guidelines_post_election_consulation.pdf)

It can be argued that paragraph 2 was written with the intent of covering the normal election announcement period, of the election date being announced a few days before the dissolution was proclaimed. The rule is designed to stop government making lots of quick decisions at the last minute.

But was it intended that this section apply to an election announced six months before the dissolution?

Posted by Antony Green on February 05, 2013 at 10:28 AM in Electoral Law, Federal Politics and Governments | Permalink
Comments

Presumably this ‘some care’ guidance is not relevant for fixed term governments. Therefore it would seem unlikely that it could reasonably refer to an extended period such as this.

COMMENT: Parliaments with fixed terms re-write these provisions. The UK has re-written all the caretaker conventions in its Cabinet Manual to deal with having passed fixed term legislation, providing a clearer definition of the caretaker period.

Posted by: LittleLoudGuy | February 05, 2013 at 10:47 AM

Interestingly, the DPMC’s “Guidance on Caretaker Conventions” (at Section 7.5) provide for pre-election consultation with the Opposition from the date an election is “announced” (or three months from the expiry of the HoR, whichever comes first).

This permits the Opposition to “have discussions with appropriate Departmental officers”, subject to “approval”.

The DPMC’s “Guidance” carefully distinguishes this entitlement from the “Caretaker Conventions” as it is the subject of separate Guidelines, first tabled in 1976, with the current arrangements tabled in the Senate in 1987.

Of course it would be open to the Government to submit new guidelines that address the particulars of the present situation (or even simply deny approval until a time closer to the election). But it is clear that the “Consultation Guidelines” anticipated a period well in advance of whenever the House might be dissolved and the Caretaker Conventions took effect.

COMMENT: The UK Cabinet Manual goes into much greater detail on this point.

Posted by: Smurray38 | February 05, 2013 at 10:58 AM

If tomorrow the Coalition announced a policy for the election, would the Government be able to pass legislation or enter into contracts etc that would prevent that policy being implemented if the Coalition won government?

Alternatively, would the government be able to implement the policy to nullify its impact. e.g. if the Coalition announced a tax cut, would the government be able to enact the same tax cut by putting it into l-a-w?

COMMENT: In theory, any law passed by one government can be undone by a law passed by a future government. In practice it gets much messier, and providing compensation for contracts undone by a new government is one of the messy points in this area.

Sometimes a doomed government can have its ability to operate limited by an opposition. The last NSW Labor government found itself unable to proceed with some of its electricity privatisations when the opposition spooked bidders out of tendering for purchase.

Posted by: SomeGuyOnTheInternet | February 05, 2013 at 11:21 AM
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