GUIDANCE ON CARETAKER
CONVENTIONS
DEPARTMENT OF THE PRIME MINISTER AND
CABINET
SEPTEMBER 2001
TABLE OF CONTENTS
1. INTRODUCTION........... 2
2. Major Policy Decisions.. 3
3. Significant Appointments 3
4. Major Contracts or Undertakings 4
5. International Negotiations and Visits 4
6. Avoiding APS Involvement in Election Activities.. 5
6.1 Advertising and Information Campaigns 5
6.2 Internet and Electronic Communications 5
6.3 Use of Agency Premises.. 7
6.4 Political Participation by Officers 7
6.5 Requests from Ministers’ Offices for Information 8
6.6 Charter of Budget Honesty and Other Policy Costings... 8
6.7 Departmental Liaison Officers.... 9
7. Related Matters..... 9
7.1 Tabling of and Responses to Reports..... 9
7.2 Financial Entitlements 9
7.3 Legislation 10
7.4 Cabinet Documents 10
7.5 Pre-election Consultation with the Opposition 11
8. Internal Agency Matters... 12
8.1 Correspondence 12
1.1 Successive governments have accepted
that, during the period preceding an election for the House of Representatives,
the government assumes a ‘caretaker role’.
This practice recognises that, with the dissolution of the House, the
Executive cannot be held accountable for its decisions in the normal manner,
and that every general election carries the possibility of a change of
government.
1.2 The caretaker period
begins at the time the House of Representatives is dissolved and continues
until the election result is clear or, if there is a change of government,
until the new government is appointed.
1.3 During the caretaker
period, the business of government continues and ordinary matters of
administration still need to be addressed.
However, successive governments have followed a series of practices,
known as the ‘caretaker conventions’, which aim to ensure that their actions do
not bind an incoming government and limit its freedom of action. In summary, the conventions are that the
government avoids:
·
making major
policy decisions that are likely to commit an incoming government;
·
making
significant appointments; and
·
entering
major contracts or undertakings.
1.4 There are also
established practices associated with the caretaker conventions that are
directed at protecting the apolitical nature of the public service and avoiding
the use of Commonwealth resources in a manner to advantage a particular
party. The conventions and practices
also aim to prevent controversies about the role of the public service
distracting attention from the substantive issues in the election
campaign.
1.5 The conventions and
practices have developed primarily in the context of the relationship between
Ministers* and their departments (and, by
extension since the commencement of the Public Service Act 1999,
executive agencies). The relationship
between Ministers and other bodies, such as statutory authorities and
government companies, varies from body to body. However, those bodies should observe the conventions and
practices unless to do so would conflict with their legal obligations or
compelling organisational requirements.
1.6 The following notes are intended to explain the conventions
and practices in more detail and to provide guidance for the handling of
business during the caretaker period.
The conventions are neither legally binding nor hard and fast
rules. Their application in individual
cases requires judgement and common sense.
The Department of the Prime Minister and Cabinet is able to provide
information and advice to agencies, but responsibility for observing the
conventions ultimately rests with agency heads or, in cases where they are
involved, with the Prime Minister and Ministers.
1.7 To ensure the consistent application of caretaker guidance
within agencies and to minimise the number of requests for advice to the
Department of the Prime Minister and Cabinet (PM&C), agencies should
appoint one or two senior officers to be the initial contact for caretaker
enquiries. If further advice is
required in relation to particular issues that arise during the caretaker
period, departments and agencies should contact the Government Division in
PM&C on 02 6271 5399.
2.1 Governments
avoid making major policy decisions during the caretaker period that are likely
to commit an incoming government. Whether a particular policy decision qualifies as ‘major’ is a
matter for judgement. Relevant
considerations include not only the significance of the decision in terms of
policy and resources, but also whether the decision is a matter of contention
between the Government and Opposition in the election campaign.
2.2 The conventions apply
to the making of decisions, not to their announcement. Accordingly, the conventions are not
infringed where decisions made before dissolution are announced during the caretaker
period. However, where possible,
decisions should be announced ahead of dissolution if their announcement is
likely to cause controversy which would distract attention from the substantive
issues in the campaign.
2.3 The conventions do
not apply to promises on future policies that the party in government announces
as part of its election campaign.
2.4 If circumstances require the government
to make a major policy decision during the caretaker period that would bind an
incoming government, the Minister would usually consult the Opposition
spokesperson beforehand. During the
1998 election campaign, for example, the Government agreed to provide urgent
financial assistance to drought-affected areas in New South Wales following
consultation with the Opposition.
3.1 Governments
defer making significant appointments during the caretaker period. When considering the advice it would give on
whether an appointment qualifies as ‘significant’, the agency should consider
not only the importance of the position, but also whether the proposed
appointment would be likely to be controversial.
3.2 If deferring the appointment is
impracticable, usually for reasons associated with the proper functioning of an
agency, there are several options:
·
the Minister
could make an acting appointment where permissible;
·
the Minister
could make a short term appointment until shortly after the end of the
caretaker period; or
·
if those
options are not practicable, the Minister could consult the relevant Opposition
spokesperson regarding a full term appointment.
4.1 Governments avoid entering major
contracts or undertakings during the caretaker period. When considering whether a contract or
undertaking qualifies as ‘major’, agencies should consider the dollar value of
the commitment and also whether the commitment involves a routine matter of
administration or rather implements or entrenches a policy, programme or
administrative structure which is politically contentious. A further consideration is whether the
commitment requires ministerial approval.
4.2 If
it is not possible to defer the commitment until after the caretaker period,
for legal, commercial or other reasons, there are a number of options. The Minister could consult the relevant
Opposition spokesperson regarding the commitment. Agencies could also explain the implications of the election to
the contractor and ensure that contracts include clauses providing for
termination in the event of an incoming government not wishing to proceed. Similarly, in the case of tenders, agencies
should warn potential tenderers about the implications of the election and the
possibility that the tender might not be completed.
5.1 The convention that the government avoids
entering major commitments during the caretaker period gives rise to particular
issues in the context of international negotiations. The Government ordinarily seeks to defer such negotiations or
adopts observer status until the end of the caretaker period. The other parties to the negotiations,
however, may not be familiar with the concept of caretaker conventions and the
Government may need to explain the constraints they impose.
5.2 If deferring
involvement or adopting observer status is not feasible, the Government could
limit its role to providing information on its past position, without
committing the incoming government to that position. If it is necessary for the Government to participate fully in the
negotiations, it should advise the other parties to the negotiations that any
outcomes will need to be authorised by the incoming government, or it could
seek the Opposition’s agreement to negotiating positions.
5.3 The Prime Minister
will, if necessary, determine whether visits by foreign dignitaries involving
government hospitality should proceed during the caretaker period. In any case, dignitaries whose visits are
scheduled for the caretaker period or shortly afterwards should be advised of
the election announcement and any changes in arrangements, including the
reduced availability of Ministers and the possibility of a change of
government.
6.1.1 The Government
Communications Unit in the Department of the Prime Minister and Cabinet
reviews all advertising campaigns at the beginning of the caretaker period and
recommends whether those campaigns should continue or be deferred. Bipartisan agreement is sought for campaigns
that are to continue. Campaigns that
highlight the role of particular Ministers or address issues that are a matter
of contention between the parties are normally discontinued. In the 1998 election campaign, for example,
the Natural Heritage Trust Campaign which was promoting community uptake of the
Natural Heritage Programme was ceased.
Campaigns that are of an operational nature such as defence force
recruiting campaigns or public health campaigns, usually continue.
6.1.2 At the beginning of the caretaker period,
individual agencies should review arrangements for the distribution of printed
material, including newsletters.
Agencies should avoid active distribution of material during the
caretaker period if it promotes Government policies or emphasises the
achievements of the Government or a Minister.
Passive distribution of material, such as continued placement in the agency’s
offices or distribution in response to requests, is acceptable.
6.1.3 Agencies
should also be aware that the conduct of information campaigns during the
election period is regulated by legislation.
Section 42 and Schedule 2 of the Broadcasting Services Act 1992
deal with radio and television broadcasts and section 328 of the Commonwealth
Electoral Act 1901 deals with printed material. In broad terms, the legislation requires any advertisement or
literature which is actively distributed and contains material likely to affect
voting to identify the person who authorised the material and, in the case of
printed matter, the name and address of the printer.
6.2.1 In July 2000, the Department of the Prime Minister and Cabinet
and the Office for Government Online circulated guidance on the content and
maintenance of agency and ministerial websites. The guidance is available at www.ogo.gov.au/projects/standards/GuidanceOnWebsites.htm. Agencies are expected to ensure that the
websites they maintain take account of that guidance at all times.
6.2.2 During the caretaker period, agencies also need to take
additional steps, which are outlined below, to ensure that agency resources are
not used to support any particular political party. Agencies should review their websites at the beginning of the
caretaker period accordingly.
6.2.3 Agency websites may retain material
placed on the website before the commencement of the caretaker period in most
cases. Exceptions might be recent
ministerial statements that criticise the Opposition in strong terms. Agencies should check the wording of any
icons and links on their websites to ensure that they cannot be interpreted as
promoting a Government policy. Agencies
should add only the following material to their websites during the caretaker
period:
·
portfolio-related announcements, if that is the usual practice (the
definition of portfolio-related will require judgement within each agency, but,
as examples, election promises should not be placed on an agency website, but a
ministerial press release relating to a public health warning might
appropriately be added);
·
purely factual material, including costings prepared and published
under the Charter of Budget Honesty Act; and
·
information on existing policies and programmes, unless the information
includes attacks on the Opposition or other political material.
6.2.4 If agency websites contain links to websites outside the gov.au
domain, agencies should consider the need for entry/exit messages. (See 6.2.8 below.)
6.2.5 In the case of ministerial websites, agencies may
continue to maintain or fund the maintenance of the website during the
caretaker period if that was the practice prior to the caretaker period. Material placed on the minister’s website
before the caretaker period may be retained, as may links between the Minister’s
and agency’s websites. In relation to
the addition of material:
· agencies should
add to ministerial websites only material relating to matters of existing
policy or purely factual material.
Agencies should not add material concerning future policies, election
commitments, how-to-vote material or media releases and speeches that criticise
opponents, promote the Government or pursue election issues;
· agencies may also
wish to place a notice on the ministerial website noting that election-related
material is not available on the website.
The notice could refer visitors to the government party’s website, or
include a link to that website;
· if the
maintenance of the website has become the responsibility of the Minister rather
than the agency, ministerial staff may add any material to the website as long
as there is no cost to the Commonwealth and a notice is added to the
effect that since the commencement of the caretaker period the website is
neither the responsibility of nor a cost to the agency.
6.2.6 If the
Minister’s website is personal and not maintained by the agency, the Minister
might consider placing a disclaimer on the website to the effect that no
Commonwealth resources are being used to communicate political material.
6.2.7 If an
agency-maintained/funded ministerial website contains links to websites
outside the gov.au domain, such as political party websites, agencies should
give particular attention to the need to include appropriate entry/exit
messages. Such messages could be along
the lines of ‘you are now leaving the website of [X]. The website you are entering is not maintained or funded by the
Commonwealth of Australia’.
6.2.8 Electronic
bulletin boards and e-mail systems provided by agencies should not be used
to publish political material. Material
from political parties and how-to-vote material, whether produced by a union, a
church or any other organisation should not be displayed. APS employees should also refer to the Guidelines
of Official Conduct of Commonwealth Public Servants* regarding the display of political
material.
6.3.1 There may be occasions where agency premises can appropriately
be used during the caretaker period by political parties for public events,
such as media conferences, or where they are the obvious place for a function
(for example, the opening of a building by a Minister). In the case of official functions involving
the use of agency resources, it would generally be appropriate for the
Opposition spokesperson, member or candidate to be given the opportunity to be
present.
6.3.2 While
there should be no difficulty with the responsible use, by all parties
campaigning in an election, of agency premises that are normally open to the
public, it is most important during an election campaign that public servants
not become caught up with party political activity. For that reason, it is not appropriate that use of premises
extend to such activities as engaging public servants in political dialogue, or
using public servants for logistical support for political functions. Nor, of course, should use of premises unreasonably
disrupt the normal operations of the offices concerned.
6.3.3 Ministerial
visits to departments for consultations would, of course, be in order for the
conduct of routine government business, in accordance with the caretaker
conventions.
6.4.1 The APS
values in the Public Service Act 1999 state that the ‘APS is apolitical,
performing its functions in an impartial and professional manner’. The Code of Conduct requires APS employees
to ‘disclose and take reasonable steps to avoid conflicts of interests (real or
apparent)…’ and ‘use Commonwealth resources in a proper manner’.† Therefore officials should not use agency
resources or their positions to support particular issues or parties during the
election campaign. The Guidelines on
the Official Conduct of Public Servants, especially the chapters on
‘Participating in Political Activities’ and ‘Use of Official Facilities’,
provide further guidance.* In particular, the Guidelines cover the
wearing or displaying of political material in official premises.
6.4.2 Officials
need to exercise judgement if they are scheduled to speak at public functions
during the caretaker period. In the
case of controversial issues, officials should decline invitations to
speak. In the case of non-controversial
issues, officials may speak, but should explain that the Government is in
caretaker mode and that they will limit their statements to factual issues and
matters of administration. Officials
should avoid publicly explaining or promoting policies during the caretaker
period.
6.5.1 Ministers
may continue to request factual material from agencies during the caretaker
period and material relating to the day to day business of government is
supplied to Ministers in the usual way.
The purpose to which such material is put is for Ministers to
determine. However, to avoid controversy in the election
period about claimed breaches of the apolitical and impartial values of the
APS, it may be appropriate to decline a request for assistance if it required
the use of significant resources and was clearly for use in the election
campaign. If
in doubt, agencies should discuss with the Minister or his/her senior staff the
purpose for which the material is to be used.
6.5.2 In most instances, agencies should also decline requests for
policy advice during the caretaker period.
There might, however, be urgent domestic or international issues on
which policy advice should clearly be provided to Ministers to allow
responsible ongoing administration or to protect Australia’s interests. Requests for legal advice on issues
affecting the Minister in his or her capacity as a candidate should be
declined.
6.5.3 Agencies can proceed with policy development work
during the caretaker period so that they are in a position to provide advice to
the incoming government, provided that contact with Ministers’ offices is not
required.
6.6.1 Particular
issues arise in relation to policy costings during the caretaker period. The costing of Government and Opposition
election commitments by the Treasury and the Department of Finance and
Administration (Finance) is regulated by the Charter of Budget Honesty Act
1998. The Secretaries of the
Treasury and Finance issue guidelines under the Act before or at the beginning
of the caretaker period.
6.6.2 The
Charter of Budget Honesty Act provides for the Secretaries of the Treasury and
Finance to prepare costings of publicly announced Government and Opposition
election commitments during the caretaker period. The Act does not apply to:
·
costings
outside the caretaker period;
·
costings by agencies other than Treasury or Finance during the
caretaker period. Ministers can request
costing information from other agencies in accordance with longstanding
practice. Where necessary, those
agencies may seek advice from Treasury and Finance on strictly factual issues
and costing methodology, but Treasury and Finance in providing such factual
advice will not thereby be endorsing or confirming costings. Any such costings must not be presented as
costings under the Charter of Budget Honesty;
·
costing of
minor party and independents’ commitments during the caretaker period. Ministers can request any agency, including
Treasury and Finance, to provide costing information in relation to these
commitments. Any requests to Treasury
and Finance should go through the offices of the Treasurer and the Minister for
Finance and Administration.
6.7.1 Particular issues also arise in
relation to Departmental Liaison Officers (DLOs). DLOs are provided by agencies to assist Ministers’ offices with
necessary liaison work with agencies, and the need for that work should be
reviewed at the commencement of the caretaker period. If there is ongoing work of a liaison nature during the caretaker
period, DLOs may remain with Ministers' offices. However, DLOs are APS rather than Members of Parliament
(Staff) Act 1984 employees. They
should therefore avoid assisting Ministers in ways that could create a
perception that they are being used for party political purposes.
7.1.1 Responses to outstanding parliamentary committee
reports should be taken up with the incoming government. Agencies may, however, undertake appropriate
preparatory work and consultation at the agency level so that they are in a position
to provide early advice to the incoming government.
7.1.2 Reports of an administrative nature,
such as annual reports, can be tabled out of session. However, where a report contains information that is likely to be
controversial, consideration should be given to whether tabling should be
deferred until after the caretaker period.
7.2.1 During the caretaker
period, agency provision of entitlements for Ministers* and their staff should be assessed on a
case-by-case basis. Agencies should not
cover claims relating to the election campaign or a political event, as these
costs are to be borne by the respective political party. Examples of claims that would not be covered
include requests for additional laptop computers or mobile telephones for
ministers or their staff unless there was a demonstrable official purpose.
7.2.2 Claims relating to the
management of essential government business can be covered by agencies; for
example, to support Ministers attending Cabinet meetings or primarily in
connection with their ministerial duties.
7.2.3 In the case of claims
that cover a combination of government and political business, agencies can
grant a partial reimbursement to cover government activities.
7.2.4 In relation to
entitlements funded by the Department of Finance and Administration, guidelines
on entitlements for Ministers and Parliamentary Secretaries are produced by the
Ministerial and Parliamentary Services Group in that Department.
7.2.5 It has been a
longstanding convention that Ministers do not claim travelling allowance from
the day of the Prime Minister’s campaign launch (or National Party launch in
the case of National Party Ministers) to the day after polling day. The only
exceptions are where Ministers travel for Cabinet meetings or primarily in
connection with their ministerial duties.
7.3.1 Bills that have passed both Houses of
Parliament should be assented to by the Governor-General before the dissolution
of the House of Representatives. There
is at least one instance – involving a Bill passed in the 1930s - where a Bill
received assent after dissolution.
However, questions have been raised about the constitutional validity of
Acts that receive assent in the period between dissolution and the opening of
the new Parliament.
7.3.2 Legislation can be proclaimed during
the caretaker period but, other than in exceptional circumstances,
proclamations which have a commencement date after the date of the election are
not made.
7.3.3 The Executive Council usually meets
immediately before the dissolution to approve regulations and ordinances,
including those made under Acts just assented to. Where there is no infringement of the basic caretaker
conventions, the Executive Council may approve regulations and ordinances
during the caretaker period. However,
meetings are infrequent during the caretaker period and are held only when
required by the amount of business.
7.4.1 Successive
governments have accepted the convention that Ministers do not seek access to
documents recording the deliberations of Ministers in previous
governments. Cabinet documents, in
particular, are considered confidential to the government that created
them. In this context, all Cabinet documents,
including files, Submissions, Memoranda, Business Lists and Minutes (decisions)
should be returned to the custody of the Cabinet Liaison Officer in the
Parliamentary Business Section, or equivalent, in each agency, for storage
until the result of the election is known.
The Cabinet Liaison Officer should advise the Cabinet Secretariat in the
Department of the Prime Minister and Cabinet when they have accounted for all
documents and ensured they are securely stored.
7.4.2 The Cabinet Secretariat may issue further procedural guidelines on the handling of Cabinet documents before or at the commencement of the caretaker period. The Cabinet Secretariat is the appropriate contact for further advice on such matters. Advice on the security and handling of Cabinet docum