Table of Contents
The source of a convention is frequently difficult to trace because of the lack of an authoritative text and the lack of an established authority to issue or adjudicate conventions (Sampford 1987, p. 369). Most of the conventions guiding political life in Australia and New Zealand derive from the Westminster tradition and the logic of parliamentary government (Davis et al. 2001, p. 12).
Turning specifically to caretaker conventions, these guide the conduct of governments and the bureaucracy during election periods (until a new government is sworn in)[1] or in circumstances, for example, where a government has lost its parliamentary majority. These conventions ensure that somebody has a ‘hold of the formal levers of power until a new government can be formed’ (Laver and Shepsle 1994, pp. 291-292). Boston et al. (1998, p. 631) note that while periods of caretaker government occur in all parliamentary democracies, they tend to be both more frequent and protracted in countries with proportional representation because election outcomes are often less clear cut, and the need to form coalition or minority governments can cause significant delays.
Within Westminster systems, caretaker conventions sit within a subset of conventions about the accountability of the elected Government to Parliament (Marshall 1984, p. 18). Rhodes and Weller (2005, p. 2) note that the Westminster model comprises ‘a set of beliefs and a shared inheritance that creates expectations and hands down rules that guide and justify behaviour.’ The belief that the party in opposition is an alternative executive-in-waiting and, therefore, entitled to a smooth transition to office should voters award it an electoral majority, is fundamental. This belief is lent weight by the progressive institutionalisation of the Opposition’s role through entitlements (and, in some cases, salaries) for shadow ministers and office-holders, the provision of staff, specific arrangements in the Standing Orders and so on. Caretaker conventions moderate the substantial advantages of incumbency by constraining the power of the political executive during the election campaign and until a new government is appointed. They provide guidance to ministers, the Opposition and public servants about how the business of government should be conducted during the caretaker period.
Broadly, caretaker conventions specify that during the caretaker period:
governments should avoid making major policy decisions that are likely to commit an incoming government—the government and the public service should thus maintain the policy ‘status quo’ (Boston et al. 1998);
governments should also avoid making significant appointments or signing major contracts; and
governments should not include public servants in election activities.
Like other types of conventions discussed above, caretaker conventions have evolved to add detail to the administrative practices derived from the Constitution. In common with other aspects of the Westminster tradition, they adapt to reflect changing practices and political mores. They evolved through experience, from observation of practices elsewhere and on the basis of advice from constitutional experts and commentators, political leaders and the Cabinet Office (McLeay 1999, p. 12). This means the application of the conventions is both simple and complex at the same time. The application of conventions is in some ways simple, because they are based on two principles:
with the dissolution of the House, there is no popular chamber to which the Executive government can be responsible; and
every general election brings with it the possibility of a change of government (Department of the Prime Minister and Cabinet, Annual Report 1986-1987, p. 39).
Applying the conventions can also be complex because difficult judgements sometimes have to be made about whether an action will cause a breach of those underlying principles. Unlike laws, the interpretation of which can be tested in courts, conventions reflect the beliefs and practices of political actors — their interpretation is fluid, often contested and subject to a dynamic and constantly evolving political environment. New challenges or technical possibilities, such as the use of the departmental internet by the incumbent party, can arise during an election campaign. The administration of caretaker conventions depends on a body of corporate knowledge about past application combined with sound judgement to deal with new issues as they arise.
The highly charged atmosphere of general elections in Australia and New Zealand means that caretaker conventions have not been without their controversies. Debate generally has been around their application in specific circumstances rather than the fundamentals of the principles that define them. The evolution of caretaker conventions in these two countries has focused on increasing detail on ‘guidance’ on how to apply them. Challenges to their application during an election campaign have led to further additions to formal guides about their application to clarify and remove existing ambiguities. The intention is not to change the ‘rules’ but to reduce breaches by a more precise statement of the application (Sampford 1987, p. 373).
Claimed breaches of caretaker conventions are a mainstay of election campaigns. In Australia, responsibility for the administration of the caretaker conventions rests with the Prime Minister, the Premier or the Chief Minister who are required to ‘self-police’ the rules (Jaconelli 2005, p. 176). Self-policing is not always the preferred option for an Opposition that may suspect a breach of the conventions by those in power. In the heat of an election campaign, an Opposition is understandably reluctant to have the leader of the party they are challenging arbitrating on complaints about their own behaviour. A disgruntled complainant has but two sanctions to call on—moral sanctions or political sanctions.
Alleged breaches of caretaker conventions during an election campaign revolve around the perception that the government has benefited from using the resources of office to give them an unfair advantage over the Opposition (see, for example, McMullan 2007, pp. 27-31). The weight of public condemnation may be sufficient to embarrass and politically damage the government for the perceived breach, especially if the issue is taken up vigorously by the media. The intention is to harm the political capital of the government by showing their moral deficiency and their inability to be trusted with handling the delicate niceties of the system of government.
It would be true to say that almost every election sees a public skirmish about an alleged breach of the caretaker conventions. It is now part of the political grist of election tactics. It is always difficult to resolve these allegations as decisions are made on the basis of fine judgements about the applicability of the conventions in a particular circumstance. The lack of an authoritative mediation process means that it can never be ascertained whether a violation has, in fact, occurred (Jaconelli 2005, p. 163).
An area which has received little attention is the accusation of a breach against a public servant. Ironically, the sanctions for a breach by the bureaucracy are more real and enforceable than the moral or political sanctions applying to politicians. For example, at the commencement of this monograph, we noted that the Queensland Crime and Misconduct Commission (CMC) was asked to investigate a complaint from the Leader of the Opposition that departmental officers had acted in a politically partisan way (CMC 2004, p. 2).[2] Although it was clear that the CMC had no jurisdictional power over the Premier (CMC 2004, p. 3), it was considered that a deliberate breach of the caretaker conventions could amount to misconduct and be grounds for possible disciplinary action under the Public Service Act (CMC 2004, p. 5). A detailed analysis of this case is undertaken in Chapter 7.
So, periodically, caretaker conventions are one of the more scrutinised of constitutional conventions because alleged breaches occur in the heated atmosphere of an election campaign with the attendant media attention upon the unfolding political process. This has led to increased documentation, the development of guidance documents for governments and—in particular—the public service to explain and assist with decision-making during this time. The next section of this monograph identifies and explores the elements which make up the caretaker conventions of the Commonwealth and New Zealand governments, the Australian States and Territories.