All jurisdictional guidance documents contain a section on avoiding significant appointments during the caretaker period and there is a degree of unanimity on handling the issue between the different jurisdictions. The majority of jurisdictions state that the ‘significance’ of an appointment can be assessed through two considerations – the importance of the position and the likelihood that the appointment would be controversial. Many have codified the level of appointment with precision.
Tasmania, Western Australia and Queensland all offer a classification of what constitutes a ‘significant appointment’. For Tasmania, it is the ‘head or deputy head of an agency, head of a division or branch whose activities are deemed sensitive, members of statutory bodies and statutory office holders’ (Tas DPC 2006, p. 4). Queensland defines appointments to Senior Executive Service and Senior Officer positions as ‘significant’ and prescribes that these should not be processed. Queensland guidances also advise that care should be taken in appointment to AO8 and AO7 levels (Beattie 2006). Western Australia recommends no action be undertaken on senior officer positions classified PSA Level 8 and above (WADPC 2005, p. 2).
Significant appointments should not be controversial because of the range of options available to manage the situation. The options are:
appoint on a short term or acting basis (to be confirmed at a later date);
defer appointment until after the election; and
consult the Opposition (although the Opposition may not accede).
Both Western Australia and Queensland also advise that if a contract is due to expire during the caretaker period it is acceptable to issue a short term contract for up to three months.
Jurisdictions have accepted that they should exercise constraint in making senior appointments during the caretaker period but, technically, caretaker conventions were developed to guide ministerial behaviour, not the behaviour of public servants. The limitation on appointments has evolved as a self-imposed constraint. The New South Wales and Commonwealth guidances mention only that ministers should avoid making significant appointments. They are silent on senior appointments within the public service.[1] Their concern is restricted to appointments of members to statutory bodies and statutory office-holders. Other jurisdictions have expanded what would initially have been a concern about stacking boards in the dying days of a government to encompass all senior government appointments.
A level of prescription contained in a guidance document is usually an indication that it has been an area of controversy in the past. In Victoria in 1999 an appointment became an issue because, as noted in Chapter 3, the results of the election were not clear for nearly a month after polling day. The appointment of a new Auditor-General had been approved and announced before the election. Because the appointee was relocating from New Zealand, the formality of approval by the Governor-in-Council did not happen until he had taken up his position. The appointee had already signed a legally binding contract for the position. The Labor Opposition indicated that if it were to form government it would support the appointment, but the Opposition did not support the signing of the instrument during the caretaker period (Davis et al. 2001, p. 18).
The prescriptive detail included in the Queensland guidance was driven by controversy about the signing of employment contracts with department heads in the lead-up to an election. In 1989 incoming Premier, Wayne Goss, announced that his Labor Government would take a ‘close look’ at decisions, appointments or contracts entered into by the outgoing National Party Government during the caretaker period. Of particular concern to the incoming Government was the outgoing Premier Russell Cooper’s decision to renew the contract of a senior Treasury official the day before the election was held (Roberts 1989). In 1996 the minority government of Wayne Goss was criticised for signing a five-year contract with an agency head one day before the Mundingburra by-election, which Labor lost. Unable to secure the support of independents, Goss was forced to resign his commission as Premier. The incoming Coalition Government sacked the CEO, and was forced to pay out the balance of his contract.