Chapter 4. When do the conventions apply?

Under the Australian Constitution, the House of Representatives continues for three years from the first meeting of the House and no longer, but may be dissolved earlier by the Governor-General (s. 28). The term of the current Parliament ends when the three-year term of the House of Representatives expires or is dissolved by the Governor-General on the advice of the Government. There are two constitutional mechanisms by which this can occur:

A general election follows either the dissolution of the House or the expiration of its three year term. The ‘Governor-General in Council’ (that is, acting on the advice of the Federal Executive Council) then issues a writ directing the Electoral Commissioner to conduct an election in accordance with prescribed procedures. The writ specifies the date on which the election will be held and the date for the return of the writ. It is deemed to have been issued at 6 pm on the date of issue.

Exhibit 1 – Key dates in commencement of caretaker conventions: Australian Commonwealth^[1]

Importantly, ministers sitting in the Senate, as members of the Government, are bound by caretaker conventions for the period of the election until the outcome is known. This applies whether or not any Senate elections (periodical, general or territorial) are being held simultaneously with a general election for the House of Representatives.

The process that follows is outlined in Exhibit 1.

Until 1925, the Australian Parliament was prorogued before the dissolution of the House of Representatives; this practice was discontinued between 1928 and 1993, but later reinstated on advice from legal experts (Odgers' Australian Senate Practice 2004, Ch. 19). Accordingly, in 1993 and 1996, Governors-General first prorogued Parliament by proclamation, issuing another proclamation the same day to dissolve the Parliament. Since 1998, prorogation and dissolution have been combined in one proclamation.

An Executive Council meeting is usually held between the calling of the election and the issuing of the writs. This is a ‘tidy-up’ meeting that deals with last minute issues—such as the making of regulations under recently enacted legislation. This is seen as a legitimate house-keeping activity, but can be used cynically by governments—for example, as an opportunity to make last-minute appointments. Until 1996, the Executive Council meeting was preceded by a Cabinet meeting, but to date, the Howard government has avoided this practice.

As noted, the timetable between the announcement of an election and the issuing of writs (i.e. the period when caretaker conventions formally commence) can vary. Since 1940, the average gap has been 19 days (Hughes and Costar 2006, p. 47). It has been argued this reflected a ‘convention’ that some time should elapse between the announcement of the election and the issuing of the writs since the latter coincides with closure of the electoral rolls (Sawer 2006). Malcolm Fraser controversially altered this practice in 1983, when the writs were issued and the electoral rolls closed at 6 pm the same day (4 February) as his surprise announcement of a double dissolution election for 5 March. Fraser was accused of excluding many thousands of citizens from exercising their right to vote and an action was mounted in the High Court, albeit unsuccessfully. The Joint Select Committee on Electoral Reform (JSCER), established by the Hawke Labor Government in 1983, considered the issue as part of a wide-ranging review of Australia’s electoral system. It recommended a proclamation by the Governor-General to announce the election date a minimum of seven days before writs are issued. Subsequent amendments to the Commonwealth Electoral Act 1918 in 1983 inserted a stipulation that writs must be issued within 10 days of the dissolution (s.151(2)). The JSCER recommendation was incorporated as a separate provision (s.155). This provision remained unchanged until passage of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act (Cwlth) in 2006.^[2] Section 151(2) was unchanged by recent amendments.

Since the late 1980s, the time that has elapsed between announcement of an election and issue of the writs has declined markedly. For elections held between 1990 and 2004, the average time elapsed was around three days. However, the perception that a ‘gap’ exists between calling of the election and commencement of caretaker conventions remains strong.^[3] The bitterly fought 2001 election, held in the wake of the September 11 terrorist attacks, may have done much to fuel concerns about government actions in this period (see, for example, Marr and Wilkinson 2003).

Prime Minister John Howard visited the Governor-General on Friday 5 October 2001 asking him to dissolve the House of Representatives for the November 10 election, but writs were not issued until midday on Monday 8 October. During this intervening period, the United States launched air-strikes on Afghanistan in retaliation for the terrorist attacks on New York and Washington.^[4]

At issue was whether the Prime Minister was obliged to consult then Leader of the Opposition, Kim Beazley, about a decision to commit 1,000 Australian troops to the so-called ‘War on Terror’. John Howard argued that he would ‘observe the conventions’, but that while he would inform Mr Beazley about developments, he would not make joint decisions. The Prime Minister noted:

The Government was also criticised for entering into an arrangement to process asylum-seekers offshore in Papua New Guinea and Nauru (a policy that became known as the ‘Pacific Solution’), just half an hour before caretaker conventions were due to commence at midday (Marr and Wilkinson 2003, pp. 178-79). This became the subject of contention during subsequent Senate estimates hearings, with government officials maintaining caretaker conventions had not been breached as (they argued) the agreements reached related to existing aid policy, and in any event were concluded before the conventions formally commenced (F&PA Committee Hansard, 28 May 2002, pp. 192-197). Asked her advice on this matter, the senior DPM&C expert on caretaker conventions noted that the situation was urgent (the fate of the asylum seekers could not await the election outcome), but that in the circumstances the Opposition should be advised of the decision and of the fact that any such decisions would bind any incoming government.

In 2004, controversy arose when a Senate Select Committee conducted a one-day hearing during the caretaker period. The Committee had been established on 30 August 2004 to examine matters arising from public statements by a former ministerial staffer, Mike Scrafton, about conversations with the Prime Minister during the so-called ‘Children Overboard’ affair (which, perhaps ironically, had occurred during the 2001 election campaign). The Prime Minister had announced the election date on Sunday 29 August, but the House was not dissolved, nor the writs issued, until Tuesday 31 August. The Committee held a public hearing one day later, on 1 September. Questions were raised about the appropriateness of this action given the politically contentious nature of the issues under consideration, and whether the prorogation of the Parliament meant the Senate should not be meeting. The issue of whether the Senate has a right to meet or exercise its powers after a dissolution is highly contested, but practice has been that the Senate has not met between prorogation and before opening of the new Parliament, but it has frequently authorised its committees to continue to do so.^[5]