Table of Contents
Each Australian jurisdiction has developed its own guidance to support ministerial and departmental decision-making during the caretaker period. Guidance on the observance of caretaker conventions tends to be couched as general principles rather than strict, highly specific rules (Boston et al. 1998 p. 646), although, when a well publicised breach has occurred, the tendency has been to increase the detail in prescribing behaviour. Malone (2007, p. 5) notes ‘the proper operation [of caretaker conventions] is dependent on the public servants who will make judgements on precisely what they mean and how they apply’. That is true, but they also depend to a significant extent on the attitude of the first minister and their receptiveness to advice.
In broad terms, caretaker conventions aim to ensure incoming governments are not bound by last minute decisions or actions of their predecessors, that the neutrality of the public service is preserved, and that the substantial—and arguably increasing—advantages of incumbency are moderated. However, the Government remains the government and the ordinary business of public administration continues.
Within this accepted set of principles, each Australian jurisdiction has developed guidance on the practice of the conventions locally. These guidance documents all acknowledge the overarching principles and contain details about local application.
In this chapter we draw on these guidance documents to present a detailed overview of caretaker arrangements. We look at the practices that have developed around specific issues and government activities. We use cases and examples to illustrate the complex and contested nature of caretaker conventions and highlight areas of similarity and difference of practice.
All jurisdictions cite the taking of major policy decisions as a key area which falls under caretaker conventions. The adherence to three caretaker principles is involved in any decision concerning a major policy matter. They are: (1) not taking a decision for which the Government (or minister) cannot formally be called to account in Parliament; (2) not binding an incoming government to a course of action; and (3) avoiding a decision which is a matter of contention between the Government and the Opposition.
Nevertheless, the emphasis on what constitutes a policy decision is not consistent across all jurisdictions. A number of jurisdictions focus on the taking of a policy decision and others focus on the implementation of a new policy. For example, the Commonwealth, Tasmanian, Western Australian, ACT and Northern Territory governments are concerned to ensure that major or significant policy decisions are not made during the caretaker period. ‘Major or significant’ is not specifically defined, but a decision must be assessed for its policy and financial significance and the likelihood that it would be politically contentious.
The Queensland, Victorian and South Australian governments’ guidance documents state that the bureaucracy should avoid implementing major policy decisions during the caretaker period. It is a fine distinction that has important implications. The jurisdictions that are concerned about implementation of major policy decisions distinguish between prior and future policy intent. The implementation of major policy decisions does not infringe the conventions where decisions are ‘made or implemented before the expiry of dissolution of the Assembly’ and are announced during the caretaker period (Vic DPC 2006: 2). Future policies are also exempt with the majority of jurisdictions acknowledging that the ‘conventions do not apply to promises on future policies that the party in government announces as part of its election campaign’ (DPMC 2004, p. 3).
The sections of the guidance documents on the taking or implementing of major policy decisions acknowledge the reality of political incumbency in that the Government will be maximising its term in office by making decisions right up to issuing of the writs for the election. Both sides will be making major policy commitments throughout the campaign and these commitments will be the centre of extensive media analysis and debate. The claim that a decision was taken prior to the election is hard for an Opposition to challenge because of the confidentiality of Cabinet decisions. But this has not deterred Oppositions from making such claims in the heat of an election campaign.
Two examples illustrate this difficulty:
In 1993, the Keating Labor Government announced that it had signed a five-year Medicare hospitals funding agreement with the Victorian and New South Wales governments just minutes before the Official Secretary read the proclamation to dissolve the House of Representatives for the general election. Its actions in doing so were criticised by the Opposition and media because it would bind an incoming government to provide additional funding for those jurisdictions for a period of five years. The then Prime Minister was unrepentant in his defence of the decisions, arguing that the States’ decisions to sign the agreement ‘at one minute to midnight’ showed they wanted the protection of Labor’s health policy even if Dr Hewson were elected (quoted in Kitney and Maley 1993). State ministers explained the decision in terms of their need for funding certainty, since the Medicare agreement had been due to expire at the end of June 1993. In the event, the Coalition lost the election, and the Keating Labor Government provided $300 million in additional funding for public hospitals over the life of the agreement.
In September 2004, more than two weeks into the caretaker period, the Howard Government announced that it had dispatched officers of the Special Air Service (SAS) to rescue two Australians feared kidnapped by insurgents in Iraq. The Opposition Labor Party claimed the Government had breached the caretaker conventions by not consulting then Leader, Mark Latham, about the deployment. Then Defence Minister, Robert Hill, argued the decision was not binding on a future government and, moreover, that it had been ‘taken in accordance with the contingency plan that had earlier been agreed by Cabinet’ (AAP 2004). The Prime Minister, John Howard, told reporters the decision to establish a hostage crisis team was taken by the National Security Committee of Cabinet before the election campaign. He said: ‘the caretaker doctrine does not require a government to consult the Opposition in relation to the implementation of a decision taken before the caretaker mode commenced’ (quoted in Seccombe and Allard 2004).
As these examples suggest, the environment for making judgements about the taking and implementation of policy decisions during the caretaker period is highly political and subject to intense public scrutiny through the news media.
This has obvious implications for public sector officials and how they should act and manage the complexities which ensue. Managing the interpretation of what constitutes a major policy announcement is a matter for judgement. Such judgements are not required in most matters of ongoing administration, which does and should continue during the caretaker period. The need for judgement arises when issues are contested between the opposing political parties and the matter is controversial. Public sector officials need to be aware of the requirement to act cautiously when there is no possibility of parliamentary oversight of executive decision-making (Wilson 1995). Judgement cannot be acquired at the calling of an election but is built over time and through experience. This is why only the most senior officials should be responsible for caretaker conventions, and why they often consult central agency experts when weighing their decisions.
As an election approaches, senior departmental officers often take stock of factors relevant to the programs and decisions that they have been dealing with. They should be familiar with, for example, the level of bipartisan support for particular policies, whether there is significant community or stakeholder opposition and the potential for significant media attention. The closer the election, the more pressure there is for public sector officials to get things right, particularly if, for example, a recently announced Government policy is unpopular with the Opposition. In all cases it is imperative the bureaucracy behaves responsibly and dependably – rather than trying to second-guess who will win the election.