tag:theconversation.com,2011:/id/topics/caretaker-government-6625/articlesCaretaker government – The Conversation2016-05-02T00:24:34Ztag:theconversation.com,2011:article/581582016-05-02T00:24:34Z2016-05-02T00:24:34ZElection explainer: when does the government enter caretaker period and what does it mean?<figure><img src="https://images.theconversation.com/files/120115/original/image-20160426-22383-4h8qr3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bill Shorten was correct to ask for access to senior public servants amid confusion over whether the 'caretaker period' has begun.</span> <span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span></figcaption></figure><p>Ahead of a near-certain double-dissolution election being called for July 2, Labor is <a href="http://www.smh.com.au/federal-politics/federal-election-2016/bill-shorten-calls-for-caretaker-provisions-amid-fears-of-preelection-uncertainty-20160421-goc8yh.html">warning</a> the government that it needs to start acting in accordance with the “caretaker conventions”.</p>
<p>The government, however, has shown no interest in an early caretaker period. It even appears to be revelling in the announcement of important appointments. </p>
<p>In March, the shadow treasurer, Chris Bowen, <a href="http://www.afr.com/news/economy/labors-chris-bowen-hits-scott-morrison-on-unilateral-treasury-appointments-20160327-gns1ta">criticised</a> the government for making senior financial appointments during the “quasi-caretaker” period after the government announced the reappointment of Australian Consumer and Competition Commission chairman Rod Sims. </p>
<p>Late last week, the government <a href="http://www.theguardian.com/australia-news/2016/apr/28/coalition-to-reappoint-disability-discrimination-commissioner">announced</a> it would be appointing a disability discrimination commissioner to the Human Rights Commission before the election is called.</p>
<p>At a technical level at least the government is right to say the caretaker conventions have not yet kicked in. So when does the caretaker period start? And what does it mean in practice?</p>
<h2>Justifications for the caretaker conventions</h2>
<p><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/">Australia’s Constitution</a> is silent on whether the government can continue as normal in the lead-up to an election for the House of Representatives. There is nothing constitutionally prohibiting a business-as-usual approach. </p>
<p>But, by convention, there are limits on what an incumbent government can do in this so-called “caretaker” period. Within these limits, the routine business of government is able to continue.</p>
<p>The caretaker conventions’ central justification is that, once the House of Representatives has been dissolved and until the election result is known, the government is effectively governing without parliamentary oversight. The conventions ensure no major decisions are made without accountability.</p>
<p>The caretaker conventions also reduce the policies and funding commitments an incumbent government can lock an incoming government into. This gives the incoming government greater freedom to pursue its electoral mandate.</p>
<p>The conventions are intended to reduce the politicisation of the public service, by taking away the ability of an incumbent government to inappropriately employ public servants in partisan activities during the election campaign. </p>
<p>Finally, the conventions are intended to reduce any other “advantage” an incumbent government might have because of the resources at its disposal.</p>
<p>Of all the conventions, the caretaker conventions are perhaps the most uncontested. Unusually for conventions, they are written down. At the Commonwealth level, the Department of Prime Minister and Cabinet issues a <a href="https://www.dpmc.gov.au/pmc/publication/guidance-caretaker-conventions">set of guidelines</a> that are updated at each election.</p>
<h2>The scope of the caretaker conventions</h2>
<p>The Commonwealth guidelines summarise the caretaker conventions, which come down to three deceptively simple rules. These are that an incumbent government avoids:</p>
<ul>
<li><p>“major policy decisions” that will commit an incoming government;</p></li>
<li><p>“significant appointments”; or</p></li>
<li><p>“major contracts or undertakings”.</p></li>
</ul>
<p>If it is unavoidable for a government to make such a decision, it should do so in consultation with the opposition.</p>
<p>There are also conventions that regulate government advertising during an election period. The departments of Finance and Prime Minister and Cabinet review all government advertising campaigns at the start of the caretaker period and recommend whether or not they should continue. </p>
<p>Generic, operational campaigns – such as defence force recruiting campaigns – will generally continue. Campaigns that feature particularly politically controversial policies, or highlight particular ministers, will not. </p>
<p>Any decision to continue advertising campaigns should be done only with bipartisan agreement. Legislative restrictions on political advertising apply during an election period.</p>
<p>Behind this remarkable level of surface consensus on the caretaker conventions in the guidelines, however, lies a vast degree of disagreement over their scope and application to individual cases.</p>
<p>The Commonwealth guidelines say their application to individual cases “requires judgment and common sense”. What is a “major policy decision”? When is an appointment “significant”? </p>
<p>Too conservative an approach would inappropriately hamstring day-to-day government. Too liberal an approach might undermine democratic accountability and politicise the public service.</p>
<p>In most election campaigns there is usually a stoush or two over whether the caretaker conventions have been breached. The Victorian Coalition government was accused of breaching the conventions by signing the East West Link contract in late 2014. Labor was in known opposition to the project. The Napthine government argued it signed the contract before the caretaker period started. </p>
<p>While the government was <a href="http://www.theage.com.au/comment/politicians-reluctant-to-twiddle-thumbs-in-caretaker-periods-20141109-11jlko.html">technically correct</a>, Labor successfully campaigned hard on the decision. There was a general feeling that the government ought to have exercised greater restraint.</p>
<p>Another controversy erupted in the lead-up to the 2013 federal election. Throughout the caretaker period, the Rudd government continued to run a A$30 million <a href="http://www.theguardian.com/world/2013/aug/02/asylum-seeker-ads-could-cost-37m">advertising campaign</a> in Australia and overseas in support of its asylum seeker policies. The opposition did not support the continuation of the campaign – at least in Australia. It argued that it was politically partisan. </p>
<p>Complaints were made to the <a href="http://www.abc.net.au/pm/content/2014/s4014996.htm">Department of Prime Minister and Cabinet</a> and the <a href="https://www.anao.gov.au/work/correspondence/government-advertising-%E2%80%94-boat-no-visa-advertising-campaign-continuation-during">auditor-general</a>. Both explained that compliance with the conventions ultimately rested with ministers, not public servants – and that public servants must comply with ministerial directions even when they believed they were in breach of the conventions.</p>
<h2>When does the ‘caretaker period’ start?</h2>
<p>There is occasionally some confusion as to when the “caretaker period” starts. </p>
<p>Prime Minister Malcolm Turnbull has said an election will be held on July 2, but that he will not ask the governor-general to dissolve parliament until after the budget is brought down. So, are we in caretaker mode yet?</p>
<p>The simple – although not quite complete – answer is no. The Commonwealth guidelines are relatively clear as to when the caretaker conventions begin:</p>
<blockquote>
<p>… at the time the House of Representatives is dissolved. </p>
</blockquote>
<p>The conventions continue:</p>
<blockquote>
<p>… until the election result is clear or, if there is a change of government, until the new government is appointed.</p>
</blockquote>
<p>There is some confusion, because the guidelines also provide for “pre-election consultation” between the opposition and appropriate government officials, subject to the government’s approval. Such consultation is:</p>
<blockquote>
<p>… intended to ensure a smooth transition if an election results in a change of government. </p>
</blockquote>
<p>These are not strictly “caretaker conventions”. They are a practice that the major parties have agreed upon since the mid-1970s.</p>
<p>Pre-election consultation is authorised to occur over a longer period than that in which the caretaker conventions operate: from the date of the announcement of the election or three months from the expiry of the House of Representatives, whichever comes first. As such, Opposition Leader Bill Shorten was correct to <a href="http://www.smh.com.au/federal-politics/federal-election-2016/bill-shorten-calls-for-caretaker-provisions-amid-fears-of-preelection-uncertainty-20160421-goc8yh.html">call on Turnbull</a> to allow him and his shadow ministry access to senior public servants.</p>
<p>Some disagreement still remains over when the caretaker period starts – or, at least, when governments should exercise some caution as to major decisions, appointments and contracts.</p>
<p>Turnbull would do well to learn from recent experience in Victoria. While governments might be technically correct that a decision falls outside the caretaker period, the public has little sympathy for a government that rushes to lock in a major policy commitment when it knows an election is near.</p><img src="https://counter.theconversation.com/content/58158/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabrielle Appleby receives funding from the Australian Research Council.</span></em></p>It is unusual to invoke the caretaker conventions so far out from an election. So why is Labor clamouring for them to kick in?Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/399222015-04-10T01:11:36Z2015-04-10T01:11:36ZIf the UK parliament is hung again, Cameron can squat at Number 10<p>For the second election in a row, it looks like the British people will produce a <a href="http://www.telegraph.co.uk/news/general-election-2015/11519632/Election-2015-latest-polls-and-odds-Labour-take-two-point-lead-but-punters-prefer-Tories.html">hung parliament</a> at the <a href="https://theconversation.com/us/topics/uk-general-election-2015">May 7 poll</a>. At this stage, it is predicted neither the Conservatives nor Labour will have an overall majority. Each will need to rely on a kaleidoscopic array of minor parties to form a coalition government.</p>
<p>As the home of the Westminster tradition, exported to colonial democracies such as Australia, India and Canada, the British seem to get surprisingly muddled about such a prospect. </p>
<p>This confusion is likely to be compounded by <a href="http://www.independent.co.uk/news/uk/politics/general-election-2015-labour-seeks-legal-advice-to-stop-cameron-squatting-in-no-10-even-if-tories-win-fewer-seats-10142361.html">media reports</a> that Labour leader Ed Miliband has sought legal advice on how to remove Prime Minister David Cameron from Downing Street in the event of a hung parliament. Labour is concerned about the perceived value of “incumbency” if Cameron remains in office, while negotiations with the minority parties continue.</p>
<p>Labour is going down this path because of the ongoing confusion about how to manage the transition to a coalition government that occurred after the 2010 general election. </p>
<h2>How Brown buckled to media pressure</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=777&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=777&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=777&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=977&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=977&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77576/original/image-20150409-15244-uzev7k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=977&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">How The Sun covered the aftermath of the 2010 election.</span>
</figcaption>
</figure>
<p>Four days after the 2010 election, Gordon Brown tendered his resignation as prime minister to the Queen, despite continuing negotiations by both major parties with the Liberal Democrats on forming government.</p>
<p>Brown’s precipitate decision was in response to media frenzy about his “legitimacy” to remain in office until the next government was formed. </p>
<p>This culminated in the tabloid newspapers accusing him of being a “<a href="http://www.thesun.co.uk/sol/homepage/news/election2010/2964713/Gordon-Brown-squatting-in-No-10.html">squatter in Downing Street</a>”. Brown’s resignation left the nation without a functioning executive and the Queen without an advisor.</p>
<p>So what should happen after an election when the result of who will form the next government is still unclear?</p>
<h2>How the caretaker conventions work</h2>
<p>A set of established principles – the caretaker conventions – guide the conduct of the incumbent government. </p>
<p>Caretaker conventions check the power of the executive, when there is no parliament to answer to. The conventions are designed to constrain the power of the government by preventing an outgoing government from locking an incoming government into major new policy, funding commitment or significant appointment.</p>
<p>Applying the conventions allows for a continuity of government until the next government is sworn in. Continuity of government is important because the unexpected can happen, such as a terrorist attack, financial crisis or natural disaster. To leave a country without a functioning government is a worrying precedent.</p>
<p>The business of government can continue, with any urgent or unavoidable decisions being made after consultation and agreement with the opposition. The caretaker provisions provide a framework for an extended period of caretaker government and have done so during other lengthy transitions in comparable Westminster-style countries such as Canada, <a href="https://medium.com/the-machinery-of-government/caretaker-and-transitions-b75e571909ea">Australia and New Zealand</a>. </p>
<h2>Lessons from Australia for British leaders</h2>
<p>Australians have seen <a href="https://medium.com/the-machinery-of-government/caretaker-and-transitions-b75e571909ea">two recent examples</a> of how the caretaker conventions can and should work. Earlier this year, in the aftermath of Queensland’s January 31 state election, then Premier Campbell Newman and his government remained as <a href="https://theconversation.com/the-newman-government-still-runs-queensland-so-what-can-it-do-37210">caretakers</a> for a fortnight until it was clear the Labor opposition had the numbers to form a minority government. </p>
<p>There was an even longer transition period after Australia’s 2010 federal election, while both the caretaker prime minister, Julia Gillard, and the opposition leader, Tony Abbott, negotiated with the independents to form government.</p>
<p>In Britain, Brown’s resignation as prime minister set an unfortunate precedent by caving in to ill-informed media pressure to resign. It looks like the current Labour leader is seeking to compound that precedent by once again seeking to prematurely force a caretaker government from office. </p>
<p>The imposition of hyper-partisan politics into the caretaker period is unfortunate. The professionalism of party machine politics has led to a ruthless approach to maximising political advantage. Conventions continue to exist and be applied only if both sides of politics accept them as shared norms of behaviour. </p>
<p>To overcome this confusion in governance in the UK, a consensus needs to be formulated at the political level on the principles that apply in the caretaker period after election day and when that period ends.</p>
<p>In the meantime, the current prime minister needs to resist reinforcing the precedent to prematurely evacuate Downing Street after the May 7 election. Cameron can and should continue to “squat” until the result is known and it is clear who can command a majority in the House of Commons.</p>
<hr>
<p><em>You can read The Conversation UK’s in-depth coverage of the UK election <a href="https://theconversation.com/uk/election-2015">here</a>, and more articles on the Machinery of Government in Australia <a href="https://medium.com/the-machinery-of-government">here</a>.</em></p><img src="https://counter.theconversation.com/content/39922/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Menzies does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Britain looks set for another hung parliament after the May 7 election – a prospect that gets people surprisingly muddled. Australia could teach Britain’s leaders a lesson in caretaker governments.Jennifer Menzies, Adjunct Senior Research Fellow, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/168172013-08-07T20:16:18Z2013-08-07T20:16:18ZExplainer: what are the caretaker government conventions?<figure><img src="https://images.theconversation.com/files/28838/original/553kp5x5-1375855201.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Now that governor-general Quentin Bryce has issued the writs for the election and dissolved parliament, the government is in caretaker mode. But what does this mean?</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>The Coalition has raised <a href="http://www.news.com.au/breaking-news/abbott-wants-answers-over-caretaker-convention-on-png-deal/story-e6frfkp9-1226692577614">concerns</a> that the <a href="http://www.abc.net.au/news/2013-08-06/an-auspng-asylum-deal/4869128">Memorandum of Understanding</a> with Papua New Guinea over the Manus Island asylum seeker processing deal was entered into after the caretaker conventions commenced. </p>
<p>But what are these conventions and what are the consequences of breaching them?</p>
<h2>What are the caretaker conventions?</h2>
<p>The caretaker conventions have been adhered to by all political parties in Australia for decades. They set the ground rules for how governments are to behave in the lead-up to the election and in the post-election period until the election result is clear and a new government (if there is a change of government) is appointed. The Department of Prime Minister and Cabinet issues formal <a href="http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf">Guidance on Caretaker Conventions</a> before each election.</p>
<p>The caretaker conventions started applying to the Commonwealth government at 5:30pm on August 5, 2013, upon the dissolution of parliament.</p>
<h2>Why do the caretaker conventions exist?</h2>
<p>There are two rationales for the operation of the caretaker conventions. The first is that once parliament is dissolved, ministers are no longer “accountable” to parliament for their actions and should therefore be constrained in the way they behave.</p>
<p>The second rationale is that it is unfair if a (potentially) outgoing government can bind a future government just before it comes into office. If it could do so, a losing government could leave all kinds of booby-traps or impose enormous financial commitments upon its successor. </p>
<p>The caretaker conventions are intended to avoid unfairness and to constrain potentially inappropriate actions while parliament is dissolved and until the newly elected government takes office.</p>
<h2>What limits apply to government actions during the caretaker period?</h2>
<p>During the caretaker period, the ordinary administration of government must continue. It is only in relation to particular high level matters that there are any constraints. The conventions therefore provide that during the caretaker period the government should not: take major policy decisions that are likely to commit an incoming government; make significant appointments; or enter into significant contracts or undertakings.</p>
<p>Deciding whether a policy is major or an appointment or contract is significant is a matter of judgement. There are no hard and fast rules. Factors include whether or not it is a routine or contentious matter, whether it commits government resources, whether it involves large amounts of money, the length of any commitment and whether or not it can easily be reversed. </p>
<p>If circumstances arise where a major decision has to be made during the caretaker period (for example about whether to commit Australian troops to military action or whether to provide emergency relief to deal with a natural disaster), it is customary for the government to consult the Opposition to try to find a mutually agreed position.</p>
<h2>What are the consequences of a breach of the caretaker conventions?</h2>
<p>The caretaker conventions are just conventions. They are not law and are therefore not legally binding limits on the powers of the government. Ministers still have the formal power to enter into contracts and make decisions as long as they continue to hold office. There are therefore no legal grounds to challenge the validity of contracts or appointments simply because they are made during the caretaker period.</p>
<p>There is a possibility (albeit a remote one) that the governor-general could refuse to act upon advice (for instance, to make an appointment) during the caretaker period, or defer any action until after the caretaker period was over, if that advice involved a serious breach of the caretaker conventions. In constitutional terms, this would be because ministers are not responsible to parliament during the caretaker period, and therefore are not the “responsible advisers” of the governor-general. </p>
<p>For example, in Canada in 1896, after the Tupper government had lost the election but before a new government was sworn-in, prime minister Charles Tupper advised the governor-general to appoint a number of senators and judges. The governor-general refused and left it to the new government to advise upon filling the places. Equally, South Australian premier Don Dunstan sought the appointment of a new governor days before the election in 1968. However, the appointment was deferred until after the election, and the incoming government decided to appoint someone else.</p>
<h2>What about Manus Island?</h2>
<p>The Memorandum of Understanding with PNG is a borderline caretaker convention issue. It was reportedly entered into by Australia’s representative before 5:30pm on August 5 when parliament was dissolved, but was not executed by the PNG government until afterwards. </p>
<p>Given that the issue is when the decision of the Commonwealth government was actually made - rather than the decision of the PNG government - it would appear to have been made and formally executed before the caretaker period commenced. Hence it would appear not to be a breach of the conventions, even though it came very close to the line. Even if it had crossed the line, this would not be grounds for a legal challenge as it would only have breached a convention - not the law. Any consequences would be political.</p><img src="https://counter.theconversation.com/content/16817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the ARC and occasionally does consultancy work for governments and inter-governmental organisations.</span></em></p>The Coalition has raised concerns that the Memorandum of Understanding with Papua New Guinea over the Manus Island asylum seeker processing deal was entered into after the caretaker conventions commenced…Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.