Table of Contents
The scope and application of caretaker conventions will continue to evolve. In previous chapters we have documented the similarities and differences between the jurisdictions under consideration and looked at the implications of changing practice.
Caretaker conventions are among the most challenged and controversial of all conventions. They apply during the most intense time of adversarial politics—when both major parties have the potential to retain or gain government. Minor slips and inexactitudes are exploited by both sides. There is intense pressure on public servants to justify their decisions regarding perceived support or partiality for the incumbent government. As outlined in Chapter 2, conventions are about a shared understanding and mutual responsibility for their upkeep. Perhaps the nature of modern adversarial politics gives the concept of conventions a somewhat antiquated air. The introduction of ministerial codes of conduct and anti-corruption commissions indicates political participants appear less trusting of mutuality and are becoming more interested in enforceable sanctions.
An important corollary of this development is whether the voluntary nature of caretaker conventions can be sustained in contemporary politics? Caretaker conventions were established on the principle of ‘self-policing’ but as accusations intensify about alleged government breaches of conventions, might not future governments consider establishing an independent arbiter? A transition from the status of convention to a set of legally enforceable rules would see a radical recasting of caretaker arrangements.
It is difficult to pinpoint precisely when the maintenance of caretaker conventions shifted from being a political responsibility to a primarily bureaucratic one. In his 1951 letter to ministers, Menzies was clear it was their responsibility to exercise judgement in the continuing operation of their departments. As this monograph has demonstrated, a simple letter reminding ministers of their responsibilities has been, since the 1970s, supplanted by increasingly detailed guidance designed to support public servants to make decisions across a broad range of government activities. Most jurisdictions, with the exception of NSW, have a system to review their guidance documents after each election to respond to recent controversies or ambiguities. This has led to a pattern of increasing prescription and specification as jurisdictions try to prevent repetition of claimed breaches and controversies by increasing or adding new suggestions about how to handle a particular situation.
The guidances have evolved into strangely hybrid documents. They acknowledge the responsibility of government politicians to adhere to the conventions, for example, ‘adherence to the conventions is ultimately the responsibility of the Premier and the government collectively’ (Vic DPC 2006, p. 2). Yet the advice contained is focussed on assisting the public sector to put boundaries around and manage the relationship with their political masters. An example of this can be seen in the Victorian guidance document, which is described as being ‘intended to explain the conventions and practices in more detail and to provide guidance for the handling of business during the caretaker period’ (Vic DPC 2006, p2).
Increasing prescription has the potential to diminish bi-partisan agreement on the caretaker conventions. If conventions are mutually agreed principles that guide political behaviour, that mutuality may be eroded by incumbents adding new levels of detail to the guidance documents. Quite often, the updating is undertaken at a bureaucratic level, as officers try to counteract criticism by adding advice on how to manage, for example, the impact of the internet. To preserve the mutuality of caretaker conventions amendments should be agreed by both major political parties to ensure the acceptance of bi-partisan responsibility for their maintenance and observance.
Codification and prescription also leads to a focus on interpretation and a loss of flexibility. An emerging concern is that increased prescription will lead to legal sanctions for breaches for the public service. Codification also shifts the responsibility to adhere to the restraints away from politicians and displaces it to the public service. The public sector’s tendency to document and regulate might, in the longer term, transfer the spotlight from political behaviour to bureaucratic interpretation and application. This is already evident in some of the commentary on caretaker conventions (see, for example, Malone 2007).
Introduction of statutory sets of public service values and codes of conduct means that public servants now have legal obligations for non-partisan behaviour and these apply during the caretaker period. This was tested during the Tugun Bypass example cited in Chapter 7. Although it has not been repeated since, the potential remains for public servants to be caught in similar breaches with the possibility that disciplinary or financial sanctions could be applied. The implication is clear although little publicised at present. Public servants are exposed in ways that ministers still are not. This changing environment will only accelerate the trend to prescription which can be used as a bulwark against ministerial demands for responsiveness during the caretaker period.