A couple of weeks ago we received an email from a CCF reader who asked if we could write about our caretaker conventions. So here we go.

Our Constitution is silent about what should happen after an election is called, but allows for Government Ministers to continue in their Ministerial positions after their Parliamentary position has been dissolved.

Each Minister is the head of a Government department or even several departments and for continuity of our System of Government the Minister remains in their position for up to three months. But because Ministers cannot be held responsible to the House of Representatives after the Parliament has been dissolved we go into caretaker mode, by convention.

The caretaker conventions

At every election there is a chance that a new government could be installed, so we have the caretaker period. This practice recognises that after the dissolution of the House (and in this case the Senate) the Executive cannot be held accountable for its decisions in the normal manner. These caretaker conventions also formalise the rights of the Opposition as a potential future government. If the Opposition were to win government, they should not be tied to decisions made by the previous government during this period. 

The Department of Prime Minister and Cabinet write a guidance paper on the caretaker conventions. The main points in the guide cover:

• Major policy decisions
  
  • government should avoid making any major policy decisions
  • Ministerial offices should not request policy advice from agencies
  • agencies should decline a request if advice requires public resources and is for use in an election campaign
• Significant Appointments
  
  • avoid making any significant high level appointments
  • if absolutely necessary, consider temporary appointments or bipartisan support
• Major Contracts or Undertakings
  
  • consider delaying contractual negotiations
  • warn tenderers of the risk of cancellation
  • include termination for convenience clauses
• International Negotiations and Visits
  
  • consider rearranging or delaying international visits
  • where necessary, explain caretaker conventions to foreign counterparts
• Australian Public Service (APS) role in Election Activities
  
  • APS must remain apolitical at all times
  • restrict nature of information published
  • monitor use of agency resources
  • ensure requests for information are not for political purposes

Much of the guidance on caretaker convention relates to those employed by Government agencies. The caretaker provisions are directed at protecting the apolitical nature of the public service and to avoid the use of Commonwealth resources to advantage a particular party.

The Department of Prime Minister and Cabinet is able to provide information to Government departments about the caretaker conventions, but responsibility for observing the conventions rests with the agency head or any Minister if they are involved.

It has been reported that the caretaker conventions were breached in this election period by the Chairman of the Government owned NBN Co. The Department of Communications wrote to the Department of Prime Minister and Cabinet to seek advice about NBN Chairman Ziggy Switkowski publishing an article about the NBN in the Sydney Morning Herald. You can read the article here. The advice given was that the article was not consistent with the established practices associated with the caretaker conventions.

In a letter to the Manager of Opposition Business Tony Burke, the Secretary of the Department of the Prime Minister and Cabinet, Dr Martin Parkinson stated that:

…some of the comments in the opinion piece are not consistent with established practices around caretaker conventions, which are directed at protecting the apolitical nature of government bodies and preventing controversies about the role of those bodies distracting attention from the substantive issue of the election campaign.

So, what happens to Ziggy Switkowski?

Maybe nothing. However, this depends how far the Opposition would like to take it.

In Caretaker Conventions in Australasia: Minding the Shop for Government sanctions for breaches of caretaker conventions by bureaucrats are described as real and enforceable. If departmental officers act in a politically partisan way during the caretaker period, they could be in breach of the APS Code of Conduct in the Public Service Act 1999. Sanctions include: termination of employment; reduction in classification; re‑assignment of duties; reduction in salary; deductions from salary, by way of fine; a reprimand.

For politicians, the Caretaker conventions are unenforceable. They are a guideline and there is no penalty for not following them. However, media scrutiny and public condemnation can embarrass and politically damage the person who breached the conventions.

Before caretaker mode

Quite often, just before an election is called the Government will make a number of major appointments to Government positions. This election was no different.

In the few weeks before the election was officially called Government Ministers made more than 100 appointments for Government positions. Crikey has reported on this:

Just last week alone, there were three Human Rights Commissioners appointed, four federal court roles, a new Reserve Bank governor in Philip Lowe, a new Reserve Bank board member in Ian Harper (of the Harper review), new members to the National Museum council, new members to the National Maritime Museum council, new members to the Australia Post board, new members to the classification board, and several new ambassadors (something Labor could undo if it wins, following the precedent set by the Abbott government)

Dozens of emails were sent out by the government in the last hours of Friday listing positions to be filled. In a single press release, Brandis announced 76 appointments or re-appointments to the Administrative Appeals Tribunal.

Whatever the reason for appointing so many people to Government positions in the last few days before caretaker mode ticks over, it has been described as a way to get around the conventions.

Decisions that Governments make immediately prior to an election can have a lasting effect. The former Victorian Government signed major contracts for the East West Link project not long before the last election and it has cost taxpayers $1.1 Billion to get out of these contracts.

How long can caretaker mode go on for?

We remain in caretaker mode until the election result is clear or, if there is a change of government, until the new government is appointed. But there is a section of the Constitution that stipulates how long a Minister can hold office without being an MP or a Senator.

The last paragraph of section 64 states:

Section 64…Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

Now, most election campaign periods are quite a bit shorter than the one we are having at the moment. They are all done and dusted well within the three months. But this long election campaign will drag the whole process out to almost three months. In fact, the latest nominated day for the return of writs on Monday 8 August, is the final day of the three month period (Parliament was dissolved on 9 May).

The election is on 2 July, and we would normally expect a result pretty quickly after that.

However, we have a new voting system in the Senate, which could take longer to count. Election analyst Antony Green has written that all Senate ballot papers will have to be entered into a data system, in previous elections only 5% had to be entered this way. And if we end up with a hung parliament it may take some time to negotiate who will hold Government. After the 2010 election that resulted in a hung parliament, negotiations took place over 17 days.