Caretaker conventions

Successive governments have accepted that special arrangements apply in the period immediately before an election for the House of Representatives in recognition of the considerations that:

  • with the dissolution of the House, there is no popular Chamber (i.e. the House of Representatives) to which the executive government can be responsible; and
  • every general election brings with it the possibility of a change of government.

By convention, the Government assumes a caretaker role in this period and ensures that decisions are not taken which would bind an incoming Government and limit its freedom of action.

The basic caretaker conventions require a 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.

The basic conventions are directed to the taking of decisions, and not to their announcement. Accordingly, the conventions are not infringed where decisions taken before the caretaker period are announced during the caretaker period. However, it is desirable, if the decisions concern significant initiatives, that they be announced in advance of the caretaker period in order to avoid controversy. The caretaker conventions do not of course apply to new policy promises which a Government may announce as part of its election campaign.

There are other established practices, usually regarded as being part of the caretaker conventions, which govern activities in the election period. These are mainly directed at ensuring that departments avoid any partisanship in the special circumstances of an election campaign and that government resources are not directed to supporting a particular political party. They address matters such as the nature of requests that

Ministers may make of their departments, procedures for consultation by the Opposition with departmental officers, travel by Ministers and their Opposition counterparts and the continuation of government advertising campaigns.

Adherence to the conventions and practices (which of course have no legal standing) is ultimately the responsibility of the Prime Minister. Where Ministers are in doubt about a particular matter, they would raise it with the Prime Minister.

History

Publicity concerning the caretaker conventions has centred on the exceptional cases of ‘caretaker governments’, ie governments which specifically undertake to perform a caretaker role. Examples include:

  • the government of Prime Minister Churchill in 1945, following the break up of the wartime coalition in Britain, which performed a caretaker role until a general election was held; and
  • the government of Prime Minister Fraser in 1975, following the dismissal of the Whitlam Government, which did not have a majority in the (dissolved) House of Representatives and which performed a caretaker role until a general election was held.

A ‘caretaker government’ which falls into this category may choose to apply greater restrictions to its activities than those which apply under the conventions. In the case of the 1975 Fraser caretaker government, for example, Prime Minister Fraser gave specific undertakings to the Governor-General that no appointments or dismissals would be made and no policies would be initiated. This contrasts with the normal caretaker requirement where an element in the initiatives to be avoided is that they are ‘major’ or ’significant’.

Less publicity has been given to the conventions operating in normal caretaker periods. Conventions in similar terms to the basic conventions which now apply go back at least as far as the beginning of the second administration of Sir Robert Menzies. Prime Minister Menzies wrote to all Ministers at the time of the dissolution of both Houses before the 1951 election stating that:

“I should also be glad if you would note that whilst continuing to take whatever action you deem necessary in connection with the ordinary administration of your Department, you should not make decisions on matters of policy or those of a contentious nature without first referring the matter to myself.”

In 1961 it had become established practice for the Prime Minister to remind Ministers of the specific need to avoid ‘major policy decisions or important appointments’ in the caretaker period.

The caretaker period

The formal period for which the caretaker conventions operates dates 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.

Notification of the conventions

Over recent years, practices have developed to remind Ministers and departments of the need to observe the conventions. As soon as a general election has been announced, and sometimes shortly before, a meeting of the Ministry notes a summary of the conventions which will apply from the dissolution of the House of Representatives. Where this has not occurred, the Prime Minister has written to Ministers concerning the conventions.

Shortly afterwards the Secretary to the Department of the Prime Minister and Cabinet issues a circular to staff which includes a summary of the conventions noted by Ministers and other matters, such as correspondence procedures and return of Cabinet documents, which relate to the election period. The Secretary also writes to Secretaries of other departments enclosing a copy of the circular, drawing attention particularly to the summary of conventions and procedures for the handling of Cabinet documents.

The Secretary’s letter to other Secretaries provides the name of a contact officer in the Department, in view of the Department’s coordinating role in relation to matters arising from the application of the conventions. While questions arising under the conventions are fundamentally for Ministers to determine, the Department is able to provide information and advice to the Government and other departments.

From time to time, instructions are sent out to liaison officers in other departments from operational areas of the Department - such as the Cabinet Office and the Executive Council secretariat - concerning day to day matters arising under the conventions.

Recently, for the first time, a summary of the conventions was presented by the Government to the Parliament. The guidelines on consultation by the Opposition with departmental officers had earlier been tabled in 1976. The text of the summary was incorporated into the Senate Hansard (p. 3665-6, 5 June 1987).

Appointments

The convention is that the Government avoids, wherever possible, making appointments of significance in the caretaker period. Factors in deciding whether or not a particular appointment is significant include the degree to which it may be a matter of contention between the major parties contesting the election, irrespective of its importance otherwise.

As a rule, significant appointments dated to commence after polling day would not be made in the caretaker period. Appointments which would normally be made after the date of dissolution are deferred until after the election, subject to certain exceptions.

Where it is necessary for a significant appointment to be made during the caretaker period - usually for reasons associated with the proper functioning of the agency concerned - there are several options.

One is that provisions for an acting appointment, where available, are used to avoid the need for a substantive appointment. Another is that a short term appointment, normally of up to 3 months duration, is made. A third possibility is that a full term appointment is made, following consultation with the relevant Opposition spokesperson.

There were an unusually large number of appointments requiring consideration during the 1987 election period with the election timed for 11 July, arising from the fact that many statutory appointments fall vacant on 1 July. Following consultation with the Opposition a number of such appointments were made during the election period.

Major contracts or undertakings

The broad rule is that governments should avoid entering into major contracts or undertakings during the caretaker period. This includes commitments which would be politically contentious.

Consistent with this requirement, major project approvals within government programs are normally deferred by Ministers.

On some occasions Opposition spokespersons have been consulted before agreements have been entered. In the 1987 context the Minister for Science obtained the agreement of his Opposition counterpart before proceeding with arrangements for the Thai Deputy Prime Minister to sign a memorandum of understanding on science and technology while visiting Australia during the caretaker period.

Operations of departments

The general rule during the caretaker period is that the normal business of government continues until the incoming government’s wishes are known. Several aspects of a department’s usual activities are, however, affected. While departments are concerned at all times to avoid partisanship, the circumstances of an election campaign require special attention to the need to ensure the impartiality of the Public Service and its ability to serve whatever government is elected.

During the election period Ministers would usually sign only the necessary minimum of correspondence and it is desirable that some correspondence normally signed by Ministers be prepared for signature by departmental officers, rather than left to accumulate. Care is taken in preparing departmental replies not to assume that one party or another will be returned to office. References to post-election action are in terms of the ‘incoming Government’.

Material concerning the day to day business of government is supplied to Ministers in the usual way. It would be accepted as proper practice to decline requests for material or administrative assistance for purposes clearly related to the election rather than the ongoing business of government.

There is a well established practice that in an election period Ministers may continue to request factual material from departments. The purpose to which this material is put is for the Minister to determine. It is also established practice that relevant departments may be asked to cost Government and Opposition policy proposals.

Departmental officers who feel there is a difficulty with a particular request may raise the matter with the Secretary of the department who may if necessary consult with the Minister.

It is also well understood that departmental officers should not as individuals use their official positions or the facilities and access to information associated with such positions to support particular issues or any of the parties in the election campaign.

Consultation by the Opposition with departmental officers

In order to ensure a smooth transition in the event of a change of government, there is provision under appropriate guidelines for pre-election consultation between the Opposition and departmental officers. The guidelines were tabled in the House of Representatives on 9 December 1976 and, with one variation providing for direct approaches by Opposition spokespersons to Ministers, remain current. The guidelines were adopted by the Government following a recommendation by the Royal Commission on Australian Government Administration. Amended guidelines were presented to the Senate on 5 June 1987.

The guidelines come into operation before the caretaker period, applying as soon as the election announcement has been made, or three months before the expiry of the House of Representatives, whichever date occurs first.

Consultations are initiated by Opposition spokespersons making a request for access to the relevant Minister, who notifies the Prime Minister of the request and whether it has been granted.

The subject matter of the discussion between officers and Opposition spokespersons relates to the machinery of government and administration, and may include the practicalities of implementing policies proposed by the Opposition. Officers are not authorised to discuss Government policies or offer opinions on party political matters.

Officers are to inform Ministers when the discussions are taking place and Ministers are entitled to seek assurances that the discussions kept within the agreed purposes. Prior to the 1987 election, the Prime Minister agreed to a request that the Leader of the Opposition meet with several Secretaries of departments on the basis that discussions adhere to the guidelines and be held in Canberra. The Leader of the Opposition was subsequently unable to attend and the discussions were held by the Deputy Leader of the Opposition, two Opposition spokespersons and a National Party frontbencher with the Secretaries of the Departments of the Prime Minister and Cabinet, Treasury and Finance and the Chairman of the Public Service Board on 9 July 1987 in the Department of the Prime Minister and Cabinet.

Travel during the election campaign

Dating from at least 1940, it has been the practice that Ministers do not claim travelling allowance for the duration of the election campaign (ie from the day of the Prime Minister’s campaign launch to the day after polling day). The only exceptions are where Ministers travel for Cabinet meetings or primarily in connection with their ministerial duties. Similar restrictions also apply to their Opposition counterparts and the leaders of other major parties.

By longstanding convention, charter aircraft are not used, other than by the Prime Minister and the Leader of the Opposition, during the election campaign except in special circumstances where the travel is essential and related specifically to portfolio or office-holder responsibilities.

It is also the practice for a number of Special Purpose Aircraft to be allocated to the Opposition during the election campaign. In respect of the 1987 campaign, the Prime Minister approved the allocation of two aircraft each to the Government and the Opposition, with a fifth aircraft allocated to the Government, subject to availability. This reflected the precedents established by previous governments. The cost of accompanying media reporters and political advisers are recovered by the Government on the basis of the equivalent economy airfare.

Cabinet documents

The convention (separate from the caretaker conventions) is that Cabinet papers are confidential to the government which created them. Accordingly, such papers are not made available to succeeding governments drawn from different political parties. Before each House of Representatives election, departments ensure that all Cabinet documents are accounted for and stored so that, if there is a change of government, they can be returned promptly to the Cabinet Office. This allows the necessary assurances to be given to a government about the custody of its papers. These matters are dealt with in theCabinet Handbook.

Legislation

It is the practice for Bills which have passed both Houses of Parliament to be assented to by the Governor-General before dissolution of the House of Representatives. While there is at least one case where a Bill received assent after dissolution - involving a Bill passed in the 1930s relating to financial arrangements with the States - it has been considered prudent to finalise assent before dissolution. This practice is based on possible doubts concerning the constitutional validity of Acts which receive assent in the period between dissolution and the opening of the new Parliament, rather than any caretaker considerations.

It is also the practice for the Executive Council to meet immediately before dissolution. At this meeting, regulations, including those made under Acts just assented to, and ordinances are approved.

It is also possible, where there is a need and where there is no infringement of the basic caretaker conventions, for regulation and ordinances to be approved at meetings of the Executive Council held in the caretaker period. Such meetings are infrequent, being held from time to time when required by the amount of business.

Legislation may be proclaimed during the caretaker period but, other than in exceptional circumstances, proclamations which have a commencement date after the date of the election are not made.

Other matters

It has become accepted that the Prime Minister considers whether any Government advertising campaigns which would otherwise be conducted during the caretaker period should be suspended or curtailed.

Campaigns which highlight the role of particular Ministers or which address issues which are controversial between the major political parties would normally be discontinued. Advertisements promoting rights or entitlements or which are of an operational nature usually continue.

For the 1987 election period, the Prime Minister decided that any promotions or advertisements which featured Ministers should be withdrawn, and confirmed a decision to withdraw Defence recruiting advertisements which featured himself and the Minister for Defence.

Examples of Government advertising which continued during the election period were the anti-heroin advertisements for the Drug Offensive and a campaign publicising new conditions of eligibility for the First Home Owners Scheme.

If necessary, the Prime Minister also considers whether particular visits to Australia by foreign dignitaries, involving government hospitality, should proceed. In any case, the dignitaries are advised of the election announcement and any changes in arrangements, including the reduced availability of Minister.

In some cases a decision has been made to cancel or reorganise a visit. No cancellations were made in 1987. The most recent instance of a deferral was that of a visit proposed by the French Minister for Foreign Trade in February 1983.

As a final observation, it might be noted that the caretaker conventions and pre-election practices, despite their general terms, have been relatively free from controversy, being both reasonably well understood and observed. Successive Australian governments from both sides of politics have accepted the need for such conventions to apply at election time.

The following are the text of the summary of the caretaker conventions and the guidelines for pre-election consultation with officials by the Opposition which were incorporated in the Senate Hansard of 5 June 1987.

Handling of Government business during the election period

In a general sense, the business of government continues during the election period, and this applies to ordinary matters of administration.

The following is a summary of the caretaker conventions which apply:

  1. following the dissolution the Government assumes a ‘caretaker’ role and by convention avoids:
    • taking major policy decisions likely to commit an incoming Government;
    • making appointments of significance;
    • entering major undertakings or contracts.
  2. in the case of appointments of significance due to take effect after the date of dissolution, Ministers should:
    • defer appointment; or
    • if an appointment needs to be made for continuity purposes, appoint for a short term only to carry through until after the election period; or,
    • if a short term appointment is not practicable, appoint for the full term following consultation with the relevant Opposition spokesperson.
  3. in the period between the election announcement and the dissolution there may be some major initiatives or appointments of significance which Ministers judge should not proceed.
  4. some Government advertising campaigns may need to be suspended or curtailed depending on the nature of the campaign.
  5. consultation by the Opposition parties with departmental officers should be consistent with the attached guidelines which are substantially the same as those tabled in the House on 9 December 1976.
  6. particular cases where Ministers may be in doubt on the application of the caretaker conventions would be raised with the Prime Minister.

Guidelines for pre-election consultation with officials by the Opposition

  • The pre-election period is to date from three months prior to the expiry of the House of Representatives or the date of announcement of the House of Representatives election, whichever date comes first. It does not apply in respect of Senate elections only.
  • Under the special arrangement, shadow Ministers may be given approval to have discussions with appropriate officials of Government departments. Party Leaders may have other Members of Parliament or their staff members present. A Departmental Secretary may have other officials present.
  • The procedure will be initiated by the relevant Opposition spokesperson making a request of the Minister concerned who is to notify the Prime Minister of the request and whether it has been agreed.
  • The discussions will be at the initiative of the non-Government parties, not officials. Officials will inform their Ministers when the discussions are taking place.
  • Officials will not be authorised to discuss Government policies or to give opinions on matters of a party political nature. The subject matter of the discussions would relate to the machinery of government and administration. The discussions may include the administrative and technical practicalities and procedures involved in implementation of policies proposed by the non-Government parties. If the Opposition representatives raised matters which, in the judgement of the officials, sought information on Government policies or sought expressions of opinion on alternative policies, the officials would suggest that the matter be raised with the Minister.
  • The detailed substance of the discussions will be confidential but Ministers will be entitled to seek from officials general information on whether the discussions kept within the agreed purposes.

Extract from the Department of the Prime Minister and Cabinet Annual Report 1986-87, pp 39-44,

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