In 2004, elections were held in the Australian Commonwealth and in the state of Queensland. During the course of both campaigns, incumbent governments were accused of breaching ‘caretaker conventions’ — the principles and practices that guide the conduct of ministers and officials during an election campaign.

Caretaker conventions have evolved as a check on executive power in circumstances where there is no parliament to which it can be held accountable. They are observed during an election period, in a situation where, for example, a government has lost the support of the legislature, or there is a delay in forming a government after an election. Although the business of government continues, because of the potential for a change of government, caretaker arrangements require that no new policy decisions be taken, no major contracts should be entered into, and that significant appointments should not be made. Caretaker conventions are based on shared understandings of how politicians should behave. They are not law and are not adjudicated by the courts.

The Federal election on October 9 2004 was a bitter contest between the Coalition Government led by Prime Minister John Howard, and the Australian Labor Party under the leadership of Mark Latham. It was an unusually long campaign of 39 days duration; the usual length in recent years has been 33 days. The election was called on Sunday 29 August, although the caretaker period commenced formally following the issuing of writs at around 6 pm on Tuesday 31 August. The result was clear on election night, with the Government returned and normal business resuming on Monday 11 October.

Opposition complaints during the Federal campaign included claims that caretaker conventions had been breached by actions including:

Occasionally, ministers have complained that shadow ministers had also misused the conventions relating to consultation between the Opposition and the public service in the pre-election period. Specifically, they have expressed concerns that requests for information from government departments and agencies have been used as a basis for political attacks rather than as part of their legitimate preparation for government.

In the case of the 2004 Queensland State election, controversy over caretaker conventions erupted after an announcement by then Premier Peter Beattie of a proposed new route for the Tugun Bypass motoway at the southern end of the Gold Coast. The announcement came just two days before polling day – some 24 days into the caretaker period. Long a controversial political issue, the proposed new route would require the compulsory resumption of 14 privately owned dwellings. Officers of the Department of Main Roads were advised of the announcement on 4 February 2004, the night before the Premier’s announcement, and asked by their minister to inform affected residents and discuss with them the impacts on their properties. They did so immediately, hand delivering letters to each of the residents prior to the Premier’s announcement at 10 am. After the election, which saw the Beattie government returned, the Queensland Crime and Misconduct Commission (CMC) received a complaint from the then Leader of the Opposition, Lawrence Springborg MP, alleging the announcement of the Tugun Bypass involved a breach of ‘both the spirit and the letter’ of the caretaker conventions as set out in the Queensland Cabinet Handbook (CMC 2004, p. vii). He alleged a lack of impartiality on the part of officers of the Department of Main Roads, accusing them of ‘acting in a politically partisan manner to implement a major government decision during an election campaign’ (quoted in CMC 2004, p. 2).

The CMC accepted Mr Springborg’s complaint, launching an investigation, the report of which was published in July 2004. It found that the letter from the Department of Main Roads breached caretaker conventions because it lacked the impartiality required of public servants during an election campaign (CMC 2004, p. 26). Although it did not recommend disciplinary action against any of the officers involved, the CMC made 24 recommendations about how the observation of the caretaker conventions could be strengthened in the future, and about how public servants should conduct themselves during an election campaign.

Complaints that incumbent parties have breached caretaker conventions during election campaigns are legion. Arguably, a more adversarial political context has made these complaints more frequent and bitter, with the conflict aggravated through media coverage. Although such complaints rarely gain much popular traction, they pose significant difficulties for public servants who are expected to walk the line of impartiality in the heated and intensely partisan atmosphere of an election campaign.

The 2004 cases offer interesting insights into some of the challenges of applying and interpreting caretaker conventions, and raise questions about:

These questions are explored in this ANZSOG/IPAA research monograph.

A detailed exploration of recently promulgated caretaker conventions highlights the dilemmas associated with codifying and formalising practices that derive from shared understandings about what constitutes ‘appropriate’ political behaviour. It also exposes a fundamental transformation in their scope and intent. Historically, caretaker conventions were developed as simple guidances for ministers, reminding them of the need to moderate their conduct during the election period because of the lack of an operating parliament to which they were accountable. Over time, responsibility for maintaining and updating the guidance documents has been taken over by the bureaucracy. As a result, the focus of guidance documents has shifted from an emphasis on ministerial constraint to one of supporting bureaucratic decision-making in uncertain times. This has added complexity to the guidances with the result that they have become documents that perform dual and potentially irreconcilable functions — in seeking to provide, on the one hand, guidelines about what constitutes appropriate political behaviour and, on the other, advice aimed at protecting the bureaucracy from controversy and claims of partisanship.

The crafting and updating of documents by public servants has added detail on issues primarily of concern to the bureaucracy. The traditional purpose of the guidance documents has become conflated with bureaucratic attempts to shield public servants from potentially inappropriate ministerial demands for responsiveness during an election campaign. One conservative commentator has observed that caretaker conventions are a good example of A.F. Davies’ claim that Australians have a particular ‘talent for bureaucracy’. Instead of ministers being required to act responsibly during an election campaign, the onus is now on how the bureaucracy deals with ministerial requests as well as their access to, and use of, government infrastructure.

This subtle shift of emphasis from the behaviour of ministers to public servants has created additional constraints on the activities of public administration during the caretaker period. For example, the original intent of the guidance not to undertake significant appointments in the caretaker period was directed towards governments and was aimed at deterring them from ‘stacking’ boards and statutory authorities with sympathetic appointees, particularly if they were in danger of losing office. Although guidance was aimed at major appointments, meaning appointments in which a minister has a role (usually statutory appointments), some jurisdictions now provide advice to administrators on limiting the appointment of senior bureaucrats, including down to mid-levels. Anxious to avoid criticism and controversy, public officials sometimes choose to constrain their administrative prerogatives, even in areas that are not subject to ministerial oversight or intervention under normal circumstances. The dual nature of the conventions has led to continuing confusion over where responsibility lies in preventing breaches and who should enforce the conventions. Is it the role of the public service to patrol the boundaries of acceptable ministerial behaviour or should responsibility for observing the conventions lie primarily with ministers?

Given the inherent dilemmas of the caretaker period, there has been an increasing tendency to codify and formalise guidance on the caretaker conventions. As the comparative overview of caretaker arrangements in Appendix A of this monograph demonstrates, there is significant policy transfer and learning between jurisdictions, although there are local differences in the application of caretaker principles.

Of course, elections are a fraught time for public administrators in Westminster-style political systems. For the duration of the ‘caretaker period’—the period between the calling of an election and the return of the existing government or the commissioning of a new government—public servants must tread a careful line: they must be seen to be apolitical; although they may be required to brief the government’s political opponents, they must maintain the policy status quo and ensure administrative continuity until the election result is known. In this context, they must administer policy, provide advice and manage programs in a highly charged and adversarial political environment in which key actors—ministers, ministerial staff, shadow ministers, the Opposition, its staff and journalists—can be expected to have varying degrees of familiarity and appreciation of the application (and nuances) of the practices and procedures developed to regulate how a government should operate once an election is called.

Paradoxically, the application of the caretaker conventions becomes enormously significant, if only for a short period of time, each three or four years. For the vast majority of public sector employees this means they only have a sporadic and limited contact with the conventions and, at any election, many officers are working in a caretaker environment for the first time.

This monograph collects that knowledge about and explores some of the judgements that public sector employees might be required to make in order to give a comprehensive overview of the principles and practice of caretaker conventions in Australian and New Zealand jurisdictions. It examines what our caretaker conventions are, where they originated and how they have evolved and includes a glossary of key terms and concepts. Using cases and examples from recent elections, it explores some of the pressures on the interpretation and management of caretaker conventions. This ANZSOG/IPAA monograph collates and consolidates, for the first time, current guidance documents on the caretaker period and presents a comparative analysis of caretaker arrangements as they stand in Australian Commonwealth, State, Territory and local governments, and New Zealand. The monograph addresses issues of practical concern to politicians in both government and opposition, as well as to public servants, to assist them in managing during the caretaker period. It aims to demystify and critically assess many of the practices that have evolved.