Table of Contents
The previous chapter undertook a detailed analysis of the elements of the caretaker conventions in all Australian jurisdictions. This chapter will identify and explore the elements of the New Zealand and emerging local government approaches.
In Chapter 2 we looked at the historical factors that drove the documentation of the New Zealand caretaker conventions. Adoption of the mixed-member proportional electoral system (MMP) led to increased uncertainty and delay in the formation of new governments. The MMP system brought with it the potential for extended caretaker periods as the process of government formation could now be as lengthy as the nine weeks taken after the first MMP election demonstrated. These longer periods of transition from one government to the next highlighted the need for greater prescription and codification. To respond to these changed circumstances, there was a consolidation and addition of advice to The Cabinet Manual after the 1996 election.[1] In New Zealand this trend was in response to a changed electoral system while, in Australia, greater prescription has been largely driven by a desire for rules and certainty about public service behaviour.
As in other Westminster-style systems, the principle behind the constraint imposed by the New Zealand caretaker conventions is based on the sovereignty of Parliament and the recognition that, during the election period, the executive cannot be held accountable to the Parliament. The New Zealand convention is nevertheless quite clear that the ‘incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office’ (NZDPM&C 2001, p. 54). The key difference between the conventions of the Australian jurisdictions and New Zealand is the much greater focus on transitions and government formation and much less emphasis on detailed guidance on the management of issues during the actual election campaign. The Cabinet Manual is silent on many procedural issues such as how to handle appointments, correspondence, use of government facilities, advertising campaigns and management of the internet which are now a feature of the Australian guidance documents.
Experience in New Zealand has led to detailed clarification of the principles in managing the interregnum before a new government is formed. The conventions describe the ‘two arms’ of the convention:
where it is clear who will form the next government, but they have not yet taken office; and
where it is not clear who will form the next government. (NZDPM&C 2001, p. 54).
When it is clear who will form the next government, the incumbent but outgoing government is constrained on undertaking any new policy initiatives but should act on the advice of the incoming government on any matters of significance, even if the outgoing government disagrees with the course of action. As we saw in Chapter 2, this formulation is a direct response to the crisis of 1984.
The second ‘arm’ of advice, on how to manage when it is not clear who will form the next government, is more detailed, a consequence of the length of time before a government could be formed after the 1996 election. Confusion around what the outgoing Government could and could not do led to development of two principles which are:
decisions taken and specific policy determined before the start of the caretaker period may be implemented by a caretaker Government; and
in general terms, the normal business of government and the day to day administration of departments and agencies in the wider state sector may continue during the caretaker period.
However, it is recommended that a range of decisions around significant issues which might bind an incoming government should either be deferred, handled by temporary arrangements or subject to consultation with other parties. The Cabinet Manual stresses the need for careful judgement by ministers, public servants and Crown entities and does acknowledge there are no ‘hard and fast rules’ (NZDPM&C 2001, p. 55) and a range of considerations will need to be taken into account before a decision is made.
This section of The Cabinet Manual outlines the different roles of departments, Crown entities and ministers during the caretaker period. It reconfirms the advice that the day-to-day administration of departments continues and all issues with caretaker convention implications should be referred to the minister for decision. A section reminds Crown entities and State-owned enterprises of their obligation to apply the principles of the caretaker period, taking into account their legal responsibilities and other statutory duties.
Responsibility for final decisions about the application of caretaker conventions rests with the Prime Minister, although preliminary assistance is available from the Secretary of the Cabinet. As well, the Prime Minister must be consulted on all issues that may require consultation with other political parties. The New Zealand guidance does not contain detailed guidance on the management of particular issues that has become the norm for the Australian jurisdictions. For example, there is no advice on how to handle international negotiations, visiting dignitaries or significant appointments. Here Cabinet Circulars and guidance provided by the State Services Commission (see below) provide the necessary detail.[2]
Significantly, and in contrast to Australian experience, New Zealand governments assert a mandate to govern for a three year period. As such, according to Cabinet Office Circular CO (05) 2, ‘they are not bound by the caretaker convention during the pre-election period (unless the election has been caused by the government losing the confidence of the House mid-term). This means that the Government has full power to make decisions in the pre-election period’. However, successive governments have chosen to restrict their actions in the period immediately prior to a general election, recognising the potential for a change of government. Restraint has, for example, been exercised in making significant appointments, and in relation to some government advertising (CO (05) 2, 4). The period of restraint is usually about three months before the latest date that an election can be held.
A large proportion of The Cabinet Manual guidance concerns the process for the formation of a new government. It is the Governor General’s role to ascertain whether parties have the support to form a government. As part of that process, negotiating parties may seek advice from the public service, and departmental officials may provide that advice if authorised to do so by the Prime Minister. Detailed advice for public sector officials on how to manage those negotiations is published by the NZ State Services Commission in Negotiations Between Political Parties to Form a Government: Guidelines on Support from the State Sector (www.ssc.govt.nz). This guidance sets out the arrangements under which parties negotiating to form a government are able to access information and analysis from government departments. The State Services Commissioner is the contact point for receiving and responding to these requests.
These instructions are detailed and set out the different responsibilities for critical public sector employees such as the Chief Executive of the Department of the Prime Minister and Cabinet, the Cabinet Secretary and the Secretary to the Treasury. The Clerk of the Executive Council is responsible for providing impartial support to the Governor-General while the State Services Commissioner keeps the Prime Minister informed on what assistance is being given to different political parties. There is extreme sensitivity about the provision of information and analysis to political parties and this is reflected in the requirement that only a small number of senior officials be involved to exert the ‘careful judgement and discretion’ required (NZSSC 2005, p. 4).
As well as the material contained in The Cabinet Manual and the specific guidance on negotiations during government formation, a third document is also relevant to implementing the New Zealand caretaker conventions. For each election, the State Services Commission publishes a current version of State Servants, Political Parties and Elections: Guidance for the 2005 Election Period (SSC 2005). This document more closely resembles the guidance documents of Australian jurisdictions and is focussed on providing information to the public sector. It covers communication campaigns, use of agency resources, costing of policies and arrangements for public sector officials standing for election. This document is supplemented by an ‘Election Fact Sheet’, framed specifically to address questions state sector employees may have about their conduct during the election campaign (www.ssc.govt.nz/election-guidance-factsheet).
Detailed work has been undertaken on the procedures for the costing of both Government and Opposition policies. The bureaucracy must receive a written request from the Minister of Finance or the department’s minister before any work can be undertaken. All work including sources and procedures must be documented in full and no additional commentary or subjective assumptions are allowed. The costing guidelines confirm that ministers ‘will not require or use information on costings in a way that might damage the neutrality of the public service, and hence its ability to serve successive governments’ (SSC 2005, p. 11).
The material provided on caretaker conventions in New Zealand is detailed and regularly updated. This has arisen because of the electoral uncertainty which now exists under the MMP system and the potential for an extended caretaker period for government formation following polling day. Detailed advice is provided by both the Secretary to the Cabinet and the State Services Commission. This flurry of documentation in the 1990s reflected the transition from a long period of single party majority governments to majority and minority coalition governments (Boston et al. 1998, p. 648). The introduction of MMP saw a rapid increase in detail on how to manage issues in a time of increased uncertainty, particularly post election. That advice has been refined after the past couple of elections and now offers a detailed guide for the incumbent party, the incoming government (in the event of a change) and the public service on how to handle itself in unsettled times.