Two State governments—Victoria and Queensland—have recently amended local government legislation to specify ‘caretaker arrangements’ which apply during the election period. The Queensland amendments were based on the Victorian and both follow the same formula. In both states the arrangements bring local government into line with the State and Commonwealth practices. The local government arrangements have a twofold aim:

These new statutory arrangements derived from concerns about official misconduct and the integrity of practices during local council elections. In Victoria, the change to the legislation was a response to a review of the State constitution in 2003. In Queensland, the legislation was in response to a CMC report into the conduct of candidates at the 2004 Gold Coast City Council elections. Like the State and Commonwealth conventions, these local government arrangements are concerned with curtailing the benefits of incumbency and preventing the present administration from making decisions that would commit an incoming council. The arrangements are based on the caretaker principle that every election brings the possibility of a change of government.

The legislation of caretaker arrangements for councils is still in its infancy but it is possible to conceive of a range of complexities that could arise in the face of such a legalistic approach. Local government representatives in Australia tend to be community representatives rather than organised along party lines. This could lead to a lesser constraint on behaviour as there is often no party machine to exercise discipline and set standards of electoral behaviour. Hence the recent trend to legislate caretaker behaviour could be a response to the lack of political sanction that would normally operate against a political party seen to flaunt the caretaker provisions. A legislated response puts the onus back on individual behaviour instead of the mutually agreed responsibility which is the hallmark of a convention.

The role of the Local Government minister as decision-maker has the potential for conflict, particularly if there are partisan differences between the two jurisdictions. There is the potential for claims of breaches to be tested in the courts particularly around definitions of what is a ‘major policy decision’ and ‘election matter’. The legislation is silent on whether council officers can be prosecuted for breaches and it does not identify whether it is the CEO or the Lord Mayor who is the accountable officer for implementing and managing these arrangements during the caretaker period. The caretaker arrangements focus on limiting the advantages of incumbency but do not formalise the rights of the opposing candidates to access briefings from the administration.

Compared to the more detailed guidance documents of the other levels of Australian and New Zealand governments, the legislation is short on detail and nuance. This lack of information could leave the legislation open to challenge and legal interpretation. Legislation is a blunt tool and by legislating these arrangements local government loses some of the evolutionary capacity and flexibility that a non-legislated convention gives. Legislation is time-consuming and difficult to update and cannot easily reflect the nuance of changing practice. A self-managed process, as adopted by New Zealand (see below), keeps the capacity for regular updating to respond to local circumstances and issues as they arise