The issuing of writs on 11 April 2022 marked the beginning of ‘caretaker period’ to allow for the 2022 federal election. Until the election result is clear, Ministers (and their staff) are expected to observe the ‘caretaker conventions’, the principles and practices that guide the conduct of political actors and the use of public resources during an election campaign.
Caretaker conventions aim to check the power of the executive when there is no parliament for it to be accountable to. They are intended to moderate the advantages of incumbency and to reduce the potential for a sitting government to gain unfair electoral advantage by making inappropriate or partisan use of public resources (including the public service) to support their efforts to be returned to office during the election campaign.
The caretaker principles require that during the caretaker period no new policy decisions be taken; no major contracts be entered into; and that significant appointments should not be made. As the alternative government, the opposition has increased standing. The conventions allow Shadow Ministers to access briefings from senior public servants on machinery of government issues.
During the campaign, both opposition and government policies are collected and analysed by the public service as a basis for advice to the incoming government about how and by when their agenda and commitments can be implemented.
Like all of the conventions that flesh out the practice of Westminster-style government, caretaker conventions are based on shared understanding and experience of how things should happen. They exist and are sustained by mutual agreement by both sides of politics that they will adhere to them. Sanctions against breaches of the caretaker conventions are moral and political. They have no legal standing and are not adjudicated by the courts.
Caretaker conventions are among the most challenged and controversial of all conventions, since they apply episodically (every 3 or 4 years, according to the length of parliamentary terms) during periods of intense partisan contest.
Adversarial politics reaches its zenith when parties have the potential to gain or retain government. The ethics and judgement that politicians require to respect the conventions can be easily overridden by the drive to ‘win the day’ and to maximise political advantage.
Parliament has been prorogued and the House of Representatives has been dissolved, but what does that mean for the Senate? Find out in our latest News and Events article https://t.co/bJR3bysoJQ pic.twitter.com/UqqO9yQDWI
— Australian Senate (@AuSenate) April 11, 2022
The caretaker period is particularly challenging time for senior public servants. They must tread a careful line, balancing their obligation to be responsive to the government of the day (which retains its mandate to govern until the election result is known) with the need to remain impartial and to avoid controversy and perceptions of political partisanship.
Did you hear that bang? The Governor-General issued a proclamation proroguing the 46th Parliament at 9:29am today.
— Australian Parliament House (@Aust_Parliament) April 11, 2022
The @AboutTheHouse was dissolved to allow the election to happen on 21 May.
The Federation Guard then gave a 19-gun salute - a sight to see (and hear!) pic.twitter.com/6cDBqMqlmL
Departments and agencies are obliged under the caretaker conventions to prepare information and briefings for an incoming government (one for a returning government; another for a new government) while keeping the business of government ticking over — all without breaching the spirit and the letter of the caretaker conventions.
Over recent decades, as government has become larger and more complex, caretaker conventions have become codified. A simple letter from the Prime Minister reminding them of their obligations during the caretaker period has been supplanted by detailed guidelines to public servants issued by the Department of Prime Minister and Cabinet.
Codification shifts the onus of responsibility for observing the caretaker conventions away from politicians and onto public servants. Formal guidelines together with legislation enshrining public service values and codes of conduct, means public servants now have legal obligations for non-partisan behaviour that do not apply to breaches by politicians.
This presents an important and insoluble dilemma for officials who may be required — after the election — to account to parliamentary committees or other inquiries for their advice to ministers, their behaviour and that of their agencies during the caretaker period.
Officials now review their caretaker guidance documents after each election to ensure any ambiguity or whiff of controversy from the campaign is accounted for the next time. More and more details being added to the guidance documents as bureaucrats seek to prevent future breaches.
The emphasis on written codes for public servants shifts the onus of responsibility for observing the conventions from politicians to public servants. This has brought a significant and serious unintended consequence — there are now fewer obligations on politicians to behave with appropriate restraint during the caretaker period.
Political problems require political solutions. Ultimately therefore, responsibility for observing the caretaker principles should rest where it is most appropriate, with the Prime Minister and Ministers. Bureaucratic ‘caretakers’ cannot control or significantly influence the behaviour of politicians, especially in the partisan hot-house of an election campaign.
The caretaker conventions are an important handbrake on dysfunctional partisanship. They help to ensure the business of government continues, and safeguard public institutions and public resources until a new administration is formed. Though they are little understood — particularly by the political class, they are a Westminster legacy worth preserving.
Dr Anne Tiernan is a leading Australian scholar in public policy. Her career spans higher education, federal and state government, consultancy and teaching. Now managing director of mission-led consultancy firm Constellation Impact Advisory, Anne consults regularly to organisations committed to purpose and positive impact. She has written extensively on the political–administrative interface, governmental transitions, policy capacity and executive advisory arrangements. Her publications include The Oxford Handbook of Australian Politics (co-edited with Professor Jenny Lewis, 2021), Lessons in Governing: A Profile of Prime Ministers’ Chiefs of Staff and The Gatekeepers: Lessons from Prime Ministers’ Chiefs of Staff (both with RAW Rhodes, Melbourne University Publishing, 2014), Learning to be a Minister: Heroic Expectations, Practical Realities (with Patrick Weller, Melbourne University Press, 2010) and Power Without Responsibility: Ministerial Staffers in Australian Governments from Whitlam to Howard (UNSW Press, 2007).
Dr Tiernan is a National Fellow of the Institute of Public Administration Australia and a Fellow of the Australia and New Zealand School of Government (ANZSOG). An Adjunct Professor with Griffith University, and previously a member of the university’s senior leadership team.
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Jenny Menzies is a consultant in the Policy Innovation Hub at Griffith University. Jenny has over 25 years experience in policy and public administration in both the State and Commonwealth Governments.
As a senior executive within the Queensland Department of the Premier and Cabinet she developed the government’s strategic policy agenda including the Smart State Policy (1998).
She was Cabinet Secretary from 2001 to 2004 and the inaugural Secretary for the Council for the Australian Federation from 2007 to 2009 and a member of the Commonweath Grants Commission 2011-2016. She publishes in the fields of caretaker conventions, federalism and intergovernmental relations.
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