Taking care of business when an election is called

By Caroline Bush and Michael Palfrey.

Key Points:
The conventions generally do not prevent the ordinary functions of Government, but they will affect major decisions.

With the calling of a Federal election the Government moves into a mode in which it accepts the caretaker conventions. During the caretaker period, the Government typically observes restraint in the way it exercises its public authority. It avoids making policy decisions that are not of pressing urgency, refrains from making significant new appointments and from entering into major contracts. The aim of the caretaker conventions is to ensure that one Government’s actions do not bind an incoming Government and limit its freedom of action.

The "Guidance on Caretaker Conventions" has recently been updated by the Department of the Prime Minister and Cabinet, setting out the principles and procedures to be observed by the Government and those who advise it during the election period.

For Commonwealth decision-makers, the key point to remember is that the conventions generally do not prevent the ordinary functions of Government, but they will affect major decisions.

When do the caretaker conventions apply?

The caretaker period begins with the dissolution of the House of Representatives or three months before the Parliamentary term is due to expire, whichever is first, and ends either when it is clear that the existing Government will be returned, or, if there is a change of Government, the new Government is appointed.

During the caretaker period, the ordinary business of the Government continues, subject to the caretaker conventions. Nothing in the conventions precludes the Government of the day from meeting the continued requirements of effective Government.

Responsibility for observing the conventions ultimately rests with the agency heads or the Prime Minister or Ministers in cases where they are involved. In this context, the Guidance on Caretaker Conventions suggests that to ensure the consistent application of caretaker guidance within agencies, agencies should appoint one or two senior officers to be the initial contact for caretaker inquiries. If further advice is required agencies can, if necessary, contact the Department of the Prime Minister and Cabinet.

What is their legal status?

Caretaker conventions are not legally binding and a breach does not mean that a law has been broken. At worst, a breach leads to political outrage and public outcry. Nonetheless, a breach of the conventions may in some circumstances raise suspicions that decisions have not been made according to guidelines, policy or selection criteria.

The conventions also change according to time, experience and general societal standards.

What do they cover?

The "Guidance on Caretaker Conventions" identifies three main types of decisions to avoid during the caretaker period:

• Major policy decisions. Indicators of a major policy decision include those decisions likely to commit an incoming Government, that are of significant policy and/or financial significance or are likely to be politically contentious. If major decisions are necessary, the responsible Minister would usually consult with the Opposition spokesperson before making such a commitment. While the convention only applies to the making of decisions and not the announcing of decisions, where possible, decisions made before the election period should be announced before that period.
• Significant appointments. In providing advice on whether an appointment is significant, agencies should consider not only the significance of the position but whether the appointment would likely be controversial. When a major appointment is to be made, the Minister may make an acting appointment, short-term appointment, or consult the opposition spokesperson about a full-term appointment.
• Entry into major contracts or undertakings. Considerations in determining what is a "major" contract include the dollar value, whether it is a routine matter or whether it may be politically contentious. If it is not possible to defer a contractual commitment, the Minister may consult the Opposition spokesperson or the agency may advise the party affected that the decision is subject to reversal if there is a change of Government and include a termination for convenience clause in the contract.

Election commitments and advertising

The conventions do not prevent the making of election promises by Ministers. The costing of Government and opposition election commitments by the Treasury and the Department of Finance and Administration during the caretaker period is regulated by the Charter of Budget Honesty Act 1998.

At the beginning of the caretaker period, all advertising campaigns are reviewed by the Government Communications Unit in the Department of Prime Minister and Cabinet and individual agencies review the distribution of printed material and the contents of websites, so as to ensure that the material cannot be interpreted as promoting Government policy. The conduct of information campaigns during election periods is also regulated by legislation.

Consultation

The Guidance on Caretaker Conventions also addresses the issue of pre-election
consultation with officials by the opposition, Guidelines for which were presented to the Senate in June 1987.

These Guidelines provide a framework for opposition spokespersons to communicate directly with officials to discuss machinery of Government, administration, technical practicalities and procedures, following approval by the relevant Minister. This consultation period begins three months before the expiry of the Parliament or the announcement of the election, whichever is earlier.

Summary

The application of the caretaker conventions in individual cases requires judgment and common sense.

For further information, please contact Caroline Bush.