The public service is expected to be responsive to the government it serves. This obligation does not disappear during the caretaker period. This is mainly an issue with ministerial offices which are accustomed to a different relationship with the bureaucracy, and can be dealt with by establishment of agreed protocols at the commencement of the caretaker period.
Ministerial staff play important roles in exacting responsiveness from the public service (Tiernan 2007). The growth in their numbers and reach has created new challenges for public servants during the caretaker period. The potential for staff to make inappropriate or unreasonable requests of departments is occasionally highlighted in articles about the caretaker period (Malone 2007) and was clearly evident in the 'Children Overboard' case, which unfolded in the partisan glare of the 2001 Federal election (Tiernan 2007; Weller 2002).
In the Victorian case, Davis et al. (2001, p. 19) noted the tensions public servants face as they seek to remain politically impartial while dealing with ministerial advisers ‘whose main objectives were overtly political’. They note the conventions are ‘silent on the role of political advisers during the caretaker period’ (Davis et al. 2001, p. 20). Former Deputy Prime Minister, Brian Howe (2001, p. 28), observes that ‘advisers have become essential when ministers/shadow ministers need to understand points of difference in technical detail likely to arise during an extended caretaker period’, but he concedes their unelected and unaccountable status raises issues when they represent their principals in negotiations. Keating (2002, p. 120) agrees there is a problem with ministerial staffs’ lack of accountability. He stresses the need for public servants to be confident that political staff accurately represent the views of their minister and are acting on his/her authority when claiming to do so.
Given the potential for ministerial staff to conduct themselves in ways that are not strictly in accordance with the spirit of the caretaker conventions, Keating (2002, p. 120) suggests that public servants should insist on directly briefing the minister or shadow minister during the caretaker period and ensure that their personal agreement is obtained for any unavoidable decision taken. This recommendation would essentially place the responsibility for initiating contact with either the Government and/or the Opposition in an election context on public servants—a situation that would pose considerable difficulties for all but the most senior officials.
Recognising the particular sensitivities of the caretaker period for managing the departmental–ministerial office interface, the Australian Public Service Commission (APSC) has developed a number of resources to assist public servants in discharging their obligations using good judgement and common sense. In its most recent publication, Supporting Ministers: Upholding the Values, the APSC emphasises:
The need for the ordinary business of government to continue during the caretaker period—it warns agencies to be careful not to allow the possibility that an election will be called to constrain the capacity of the elected government to govern;
The need for officers to be familiar with and follow official guidelines about the operations of caretaker conventions;
That potential problems and difficulties may be avoided if effective liaison with the minister’s office occurs prior to the election. It recommends establishing formal protocols for managing briefing requests and other issues;
That senior departmental officers have primary responsibility for managing the interface with ministers and the Opposition as alternative government during the caretaker period;
The desirability of consulting with central agency experts on the caretaker conventions if difficult or sensitive issues arise that are of concern to departmental officers. It is suggested that a single point of contact be established for this purpose.
In many ways the Commonwealth Government practice of ministerial staff decamping from Canberra to campaign offices in Sydney or Melbourne may reduce some of the demands on public servants. In State governments, where ministerial offices are often co-located with departments, the challenge may be greater, but accountability and oversight regimes for ministerial staff are comparatively stronger in Australian State jurisdictions than in the Commonwealth.
Technological change, notably the rise of the internet and email, has necessitated development of new practices and guidance to assist public servants to manage within the spirit and intent of the caretaker conventions. The implications of technological change were not canvassed in earlier iterations of the guidance documents and issues of government websites simply did not arise. The 2004 guidance document gave agency heads discretion to determine their own portfolio’s approach to websites. This attracted some criticism. Malone (2007, p. 4) has called for stronger prescription and consistency to assist public servants in maintaining their impartiality during the caretaker period. Such developments would further reinforce the tendency to bureaucratise caretaker conventions.
The increased pace and complexity of government decision-making is much remarked upon by practitioners and scholars. An uncertain international security and threat environment has added to this complexity, creating demands for governments to take decisive action even during election campaigns. Controversy followed the Howard Government’s decision to deploy an SAS hostage crisis team to Iraq in 2004, and there were questions about the Government’s use of the military in its Pacific Solution policy during the 2001 Federal election. In 2004, the Australian embassy in Jakarta was bombed; the attack occurred during the caretaker period. Because governments need to move quickly in such situations, academic John Uhr (in AAP, 15 September 2004) has argued there may be a need for ‘supplementary rules’ to guide crisis decision-making.
During long periods of incumbency, ministers and their staffs become accustomed to the high levels of support provided by departments. Depending on their level of experience, ministers and members of their staff may find it difficult to adjust to the reduced levels of assistance with advice and briefing from officials. Recent research indicates that the average period of incumbency is 11.6 years for governments federally, and just under 11 years in State jurisdictions (Strangio 2006). In office, governments enjoy substantial advantages in terms of staffing and resources, and the capacity to use advertising and other political ‘weapons’ in their efforts to retain elected office. The likelihood that a serving government will be returned may create difficulties for public servants in ‘standing up’ to a minister or his/her staff over a caretaker conventions issue.