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The understanding that caretaker conventions have no standing in law and, therefore, are not enforceable is gradually being tested. The characteristic of conventions is that they are not legally binding and are based on evolving practice rather than legislation. Regular updating of the guidances has been a response to the emergence of issues in the heat of election campaigns. Jurisdictions have continued to extend and refine the advice given in the light of alleged breaches and controversies. In recent years there has been a trend to a more legalistic approach through the translation of conventions into legislation with the addition of legal penalties for breaches.
This chapter will explore some recent examples of quasi-judicial oversight of caretaker conventions. First, the Queensland Crime and Misconduct Commission’s (CMC) report into an alleged breach; and, second, recent Victorian and Queensland Government legislation embodying caretaker conventions in local government statutes. We will also look at the New Zealand model as a best practice guide for council communications
In February 2004, during the last week of the State election campaign, Queensland Premier Peter Beattie made an announcement on a proposed route of a bypass road, known as the ‘Tugun Bypass’, at the southern end of the Gold Coast. The new route would involve resumption of 14 houses. Officers from the Department of Main Roads were advised of the announcement the night before and asked by the then Minister for Transport to inform the affected residents of the announcement and the impact it would have on their properties. Limited time was available for departmental officers to draft and distribute a letter to affected residents before the Premier’s announcement the next morning. The text of that letter is provided in Exhibit 2.
After the election the CMC received a complaint from the Leader of the Opposition, Mr Lawrence Springborg MP, alleging the announcement of the bypass involved a breach of ‘both the spirit and the letter’ of the caretaker conventions. He alleged a lack of impartiality by the officers of the Department of Main Roads who were ‘acting in a politically partisan manner to implement a major Government decision during an election campaign’.
Exhibit 2 – Tugun Bypass Letter
5 February 2004
Dear Resident
TUGUN BYPASS PROPOSED ROUTE
As you are aware, in late 2003, the New South Wales Government withdrew support for the proposed C4 option, largely on environmental grounds, despite extensive studies being undertaken which had shown that environmental impacts were manageable.
The Queensland Government has maintained its commitment to finding a solution to the congestion in the Tugun and Bilinga area and has been reviewing alternative routes, including those to the east of the airport.
The Premier today announced a proposed route which has the least impact on the broader community. This route will run from Stewart Road Currumbin, on the eastern side of the airport connecting to the Tweed Bypass.
Following the Premier’s announcement, I advise that the proposed route will have an impact on your property.
You may wish to discuss this further with us. We invite you to contact (Public Consultation Officer) on (07 5583 8328).
Yours sincerely
A/District Director South Coast Hinterland
The CMC accepted the complaint and investigated. A report, The Tugun Bypass Investigation, was issued in July 2004. The CMC found that the letter was in breach of the caretaker conventions because it lacked the impartiality required during an election campaign (CMC 2004, p. 26). However, the CMC did not recommend disciplinary action against the officers involved. Four recommendations were made about additional training for public sector agencies on the content and application of caretaker conventions, including reinforcing the requirement for public servants to avoid any appearance of political partiality during the caretaker period (CMC 2004, p. 32).
The CMC report is one of the few detailed analyses of an alleged breach of a caretaker convention. All of the participants, from the Director-General to those delivering the letter to the residents of Alinda Street, were interviewed and the information presented gives a snapshot of a range of officers at different levels trying to do their job to support multiple stakeholders. The report identified the decisions made over 24 hours and why those decisions were taken. It highlighted the challenges of working in the heated atmosphere of an election campaign and the shortened timeframes within which decisions and judgements have to be made.