Although there is evidence of earlier informal acceptance of the need for caution during the caretaker period (Wilson 1995), the first public record of caretaker conventions in Australia is in the form of a letter from the Prime Minister, Robert Menzies, to his ministers at the outset of the 1951 double dissolution elections, stating:
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 (quoted in DPM&C 1987, p. 40).
By 1961, the established practice was that the Prime Minister would write to all ministers advising them explicitly of the need to avoid ‘major policy decisions or important appointments’ in the relevant period. The ball was firmly in the ministers' court, it being their responsibility to behave accordingly.
The need for more detailed guidance, particularly on consultations with the Opposition, became relevant when, after two decades of Coalition government, the 1969 election raised the prospect of a change of government. In the event, three more years would elapse before it became a reality. The 1972 election saw the public service confront a transition for the first time in 23 years.
Former Governor-General, Sir Paul Hasluck, added to the sparse material on caretaker conventions by identifying what he thought was the key intent of the convention in his Queale Memorial Lecture in 1972:
… no new decisions on matters of major policy should be taken and no appointments to high office should be made. The common-sense of this convention is to avoid a situation in which an expiring government may do something, which a month or so later, an incoming government may immediately try to cancel. The philosophy of it is that if a question on major policy is being put to the electorate at an election, a government should not make final decisions on that question before the electorate has given its answer (Hasluck 1979, p. 18).
In 1983 and 1985 the Constitutional Conventions—meetings of Commonwealth, State and local government politicians—sought to codify and declare the conventions that guide the Australian political system.[3] Resolution 32, adopted at the 1983 meeting, is based on the Hasluck pronouncement (Lindell 1988, p. 322), and is the only resolution on the caretaker convention. It stated:
No important new initiative is taken, and no appointment to high office is made, by a government in the period immediately prior to a general election for the House of Representatives unless it can be publicly justified as necessary in the national interest. (Proceedings of the Australian Constitutional Convention, 1983).
Marshall (2004, p. 42) notes, however, that unlike the courts, the Australian Convention:
… had no particular hold on the public imagination or claim to deference and it is unclear what the effect or significance of promulgating a declaration of this kind can be. Unless or until the committee’s conclusions are embodied in legislation (when they would cease to be conventions), there seems no very good reason for anyone to defer to the views of such a body.
The Governor-General can require additional restrictions during an election campaign, but these are rare: with the only example in the Australian context related to the double dissolution elections in 1975 when the ‘caretaker Prime Minister’, Malcolm Fraser, appointed after the Whitlam government was sacked, gave specific undertakings to then Governor-General Sir John Kerr that no appointments or dismissals would be made and no policies would be initiated (DPM&C 1987 p. 40). More usually, the Governor-General’s role in caretaker arrangements might be exercised through Executive Council. Hasluck (1979, p. 18) gives a flavour of this potential in the following observation:
Of course the business of the country cannot be wholly suspended and there may be emergencies in which action should be taken at once, but, if a single Minister overlooks the convention, it is customary to defer his recommendation and draw the attention of the Prime Minister to the fact so that it becomes a matter for the Prime Minister or his Cabinet to decide whether the urgency is so great that action must be taken at once.
The conventions were gradually refined over the years (Codd 1996, p. 23). The first detailed text of their intent and application was published in 1987 as a special article in the Department of Prime Minister and Cabinet's Annual Report 1986-87. Noting the relative lack of written material on the conventions, it reflected ‘the Department’s experience in relation to the conventions and associated practices, arising from its advisory and coordinating role’ (DPM&C 1987, p. 39). Arguably, it indicates that the imperative for clarifying caretaker arrangements had shifted from the realm of the political (guidance to Ministers about what they could and should do) to the administrative. It also meant that political conventions have become ‘legalistic’, with lawyers increasingly brought in to administer or comment on them.
It has been noted that conventions evolve with political practice and reflect prevailing mores. In addition, we can state that formal guidance on their application has equally increased significantly in Australian jurisdictions since the 1980s. A major review and consolidation of the existing caretaker arrangements was undertaken by the Department of the Prime Minister and Cabinet (DPM&C) after the 1987 election. A significant addition was a set of Guidelines for Pre-Election Consultation with Officials by the Opposition. The issue of what kind of contact should be allowed between public servants and the alternative government had been bubbling since the 1970s. Whitlam had unsuccessfully sought permission from then Prime Minister, William McMahon, to meet with public servants prior to the 1972 election to discuss the administrative implications of Labor’s policies (Hawker and Weller 1974, p. 100).
Thereafter, a summary of the guidance on caretaker conventions, with an emphasis on Cabinet matters, was incorporated as part of the 'Cabinet Handbook'. At less than two pages it is far less detailed than the DPM&C guidance document (which now runs to 10 pages). It is reviewed and updated after each election on the advice of the Government Division of DPM&C, which provides assistance to agencies in interpreting the conventions during the caretaker period.
Increasingly, guidance documents are being presented as helping ‘to avoid controversies about the role of the public service’ during the caretaker period (DPM&C 2004). Passage of the Public Service Act 1999 (Cwlth), sections 10 and 13 of which set out the ‘Australian Public Service (APS) Values and Code of Conduct’, has formalised public servants’ obligations in this respect, incorporating in legislation explicit obligations regarding the behaviour of public servants. As part of its statutory responsibility to promote and uphold the Code, the Australian Public Service Commission (APSC) has developed educational resources to assist public servants, including the recent Good Practice Guide: Supporting Ministers: Upholding the Values. A short section of this guide deals briefly with issues that may arise during the caretaker period (APSC 2006, pp. 48-50).
State and Territory jurisdictions have tended to follow the Commonwealth example, adopting the underlying principles and acknowledging its lead in formalising, publishing and updating caretaker conventions. But different electoral timetables, local specificities and individual experience has meant the codified conventions are not consistent across all jurisdictions. The comparative analysis of different jurisdictional arrangements in Chapter 4 shows the nature and extent of some of these local variations.
In Queensland and South Australia the caretaker conventions are spelt out in a Cabinet Handbook. In Tasmania and Victoria, they are issued as guidance documents by the respective departments of Premier and Cabinet. In New South Wales and Western Australia, they are contained in a government memorandum to ministers issued by the Premier following announcement of the general election. In the Australian Capital Territory (ACT) and the Northern Territory, guidance documents are issued by the Chief Minister’s departments.
Local governments in Australia are established under State legislation and have no constitutional recognition or status. State governments have broad powers in respect of local councils, including over their governance and the distribution of financial grants from the Commonwealth (Kane 2006). The legislative and operating framework for local councils takes the form of a Local Government Act, and Regulations established under that Act.
Until recently, local government was distinct from other tiers of Australian government in that no formal guidance was provided about the conduct of incumbents during election periods. The Victorian government first introduced ‘caretaker arrangements’ to cover the conduct of council elections, through amendments to the Local Government Act 1989 (Vic) contained in the Local Government (Democratic Reform) Act 2003 (Vic). This legislation introduced a range of electoral reforms, including caretaker provisions. These came into use for the first time in elections for 25 Victorian local councils held in November 2004.
Victoria’s caretaker arrangements require councils to observe ‘special arrangements’ during the period leading up to a general council election. The intent of these arrangements is to avoid the use of public resources in a way that may unduly affect the election result and minimise councils making certain types of decisions that may limit the decision-making ability of the incoming council.
Caretaker arrangements for Victorian local governments apply during the ‘election period’ only, which is defined in the Local Government Act 1989 (Vic) as ‘the period from entitlement day, when the voters’ rolls close, until the election day … [t]his is a 57 day period in Victorian local government elections’. Section 76(C)3 of the Act requires councils to develop and approve a Code of Conduct for the council, including a statement about caretaker procedures, while Section 76(C)4 outlines specific requirements for such procedures, with reference to Sections 93(A) and 55(D) of the Act.
The Queensland Government has recently followed Victoria’s lead in establishing caretaker arrangements for local councils as part of a suite of reforms aimed at ensuring (inter alia) ‘accountable and transparent local government elections’ (QDLGPSR 2005). These reforms were precipitated by a CMC investigation into the conduct of the Gold Coast City Council election in March 2004, and alleged improprieties on the part of several councillors (CMC 2006).[4] Previously, neither the Local Government Act 1993 (Qld) nor the City of Brisbane Act 1924 (Qld) placed limits on the conduct of councillors during election periods.
During its inquiry, the CMC issued a discussion paper on the local government electoral process, questioning whether existing Queensland legislation was sufficient to maintain the integrity of the local government electoral process (CMC 2005). This followed the release by the Department of Local Government, Planning, Sport and Recreation (QDLGPSR) of its own discussion paper, Queensland Council Elections, in December 2005. The Local Government and Other Legislation Amendment Act 2007 was passed by the Queensland Parliament in April 2007. The new caretaker provisions will be applied for the first time during Queensland local council elections, due in March 2008.
Significantly, caretaker arrangements for local government are legislated in Queensland and Victoria—they have become matters of law, adjudicated by the ministers for local government, rather than matters purely of judgement, as characterises the situation in other levels of Australian government and internationally. The implications of these developments are yet to be tested, and may indeed not yet be fully appreciated, but they represent a significant departure from practice in other Westminster-style political systems.
The development of New Zealand’s caretaker conventions has followed a similar trajectory to that of Australia. It is broadly agreed that its arrangements have been shaped by three important experiences:
the 1984 constitutional crisis;
the ‘hung parliament’ following the 1993 general election; and
the adoption in 1996 of the mixed member proportional (MMP) electoral system.
The July 1984 general election delivered a landslide victory to Labour, but it was expected to be around 10 days before the return of the writs. Controversy arose, however, when outgoing National Party Prime Minister, Sir Robert Muldoon, refused to act on advice from the New Zealand Reserve Bank that the dollar should be devalued because of a run on the nation’s foreign currency reserves.[5] The situation was exacerbated by the market’s expectation that Labour would devalue the currency by between 15 and 20 per cent. After the election, as a currency crisis loomed, the defeated Muldoon refused to meet with officials over the weekend despite their concerns that opening of the foreign exchange markets would trigger a financial crisis. The incoming Prime Minister, David Lange, supported devaluation and suggested that ‘Muldoon should either implement the incoming Government’s instructions or resign and let another member of the National Cabinet take over as caretaker Prime Minister for a week until Labour took office’ (Gustafson 2000, p. 392). After much wrangling, Muldoon relented under pressure from his Cabinet colleagues,[6] but the situation raised questions about the authority and responsibilities of a defeated government during the period leading up to its formal replacement by an incoming administration.
The experience was a catalyst for more explicit guidance about the actions of outgoing governments during the caretaker period. Recommendations of a 1986 Officials Committee on Constitutional Reform were accepted by both parties. Boston et al. (1998, p. 636) note that ‘the wording adopted by the Officials Committee corresponded closely to that employed at the time of the 1984 crisis by the outgoing Attorney-General, Jim McLay, in a press statement’. Although formalised by its subsequent incorporation into the Cabinet Office Manual, the convention had been operative in that it was accepted by both the Labour and National parties from the time of McLay’s statement.
In contrast to the situation in 1984, the outcome of the 1993 election was initially unclear. To address uncertainty over the conduct of business in the period until the new government could be determined, the Cabinet Office issued a circular outlining criteria for Cabinet and ministerial decision-making. It suggested that caretaker governments should refrain from significant decisions and outlined interim procedures to be followed in the event that urgent decisions were required—specifically, that these should be taken only after consultation with Opposition party leaders. As matters transpired, within a fortnight the National Party had achieved a clear (if slim) majority, leaving the proposed arrangements untested, notwithstanding their having bipartisan support. The criteria were subsequently incorporated into the Cabinet Office Manual in 1996 (Boston et al. 1998, p. 637).
The adoption of a mixed member proportional (MMP) electoral system has had a profound impact on New Zealand’s caretaker arrangements. Boston et al. (1998, p. 637) note this development ‘supplied the necessary political incentive for a more careful formulation of the conventions governing caretaker administrations’. The period between 1993 and 1996 was a time of transition during which the constitutional implications of greater political uncertainty and longer caretaker periods were widely canvassed. The 1996 election, the first held under the new system, produced no clear result. The government remained in caretaker mode throughout the nine weeks it took to broker a coalition. Boston et al. (1998, pp. 68-73) describe the challenges created for the ongoing business of government in New Zealand by the unexpectedly lengthy caretaker period.
As a consequence of these experiences, the New Zealand guidance, detailed in the Cabinet Office Manual, identifies two additional sets of circumstances (aside from election campaigns) in which governments are bound by caretaker conventions:
after a general election: the convention applies until a new administration is sworn in or it becomes clear that the incumbent government continues to have the support of the House necessary to govern; and
if the Government has clearly lost the confidence of the House: the convention guides the government’s actions until either it is confirmed in office or a new administration takes its place.
The guidance explains that there are ‘two arms’ of the convention, each of which has its own constitutional principles. These are, first, when it is clear who will form government, but they have not yet taken office and, second, where it is not clear who will form the next government.
The complexities and uncertainties of New Zealand’s electoral processes have necessitated development of highly prescribed caretaker arrangements and practices. The Cabinet Office Manual has been periodically updated to incorporate the new understandings that have evolved through practice. Constitutional expert Elizabeth McLeay (1999, p. 12) notes:
The treatment of caretaker government in successive editions nicely demonstrates how conventions evolve: through practical experience (good and bad); from observation of practices elsewhere; and through constitutional advice from the Crown Law Office, constitutional commentators, Prime Ministers and, of course, the Cabinet Office itself. Thus, many factors have influenced, and are continuing to influence, the formulation of rules on how caretaker governments should behave.