The public service and caretaker government

By Geoff Gallop

Tuesday March 19, 2019

Elections are periods of intense emotion and elevated temptation. The stakes are high and the political process is highly charged. The government will want to maximise the benefits that come from incumbency and the opposition (and MPs generally) will want to extract all they can from the extra authority that comes their way in an election.

For the hundreds of citizens who seek election, it’s a character as well as a political test. Some lose all sense of reality and fall prey to the political condition “electionitis” and its “anything goes” symptoms. Power and the prospect of gaining it can have the most unfortunate impacts on the human psyche!

It’s a time when some of our most cherished liberal and democratic doctrines about are put to the test: How do we ensure that the election is free and fair?

Focus, too, is placed on the public service: Is its integrity being supported and for its part is the service itself remaining properly apolitical despite the highly charged atmosphere into which it is thrown?

To meet those tests, Australia has inherited and developed a range of institutions and practices. Three stand out:

  • the constitutional right to freedom of political communication established by the High Court in 1992 (see Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth)
  • an independent electoral commission to administer the elections themselves and caretaker conventions
  • guidelines to ensure that the executive arm of government doesn’t use the human and financial resources of government to gain an unfair advantage.

So too should they be designed to protect the apolitical nature of the service and prevent incumbent governments from placing last-minute constraints on what a future government can or can’t do. After all, the whole point of an election is to create the possibility for a change in the direction public policy takes.

What these conventions and guidelines mean for public servants is the question I seek to focus on rather than what they mean for governments, oppositions and the political class generally. Nor will I deal with what might be a vice-regal role in all of these matters. It has been comprehensively covered in Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (2018), chapter 6.

The caretaker mode

The trigger for the caretaker conventions to come into play is the dissolution of parliament and the issue of writs for the election. From that point until the election is held and a clear result found — and that may take some time if alliances are needed to form a government — a jurisdiction is said to be in caretaker mode.

It’s worth noting that in relation to advertising and information provision, NSW has a “quarantine period” for two months prior to its fixed date for the election, in which special caretaker guidelines are outlined. A range of exceptions is made, for example, in relation to public health and safety and matters related to the election itself. This was done on the basis that governments were saturating TV with what amounts to political advertising in the time just before the official caretaker period commenced (see Government Advertising Act, 2011).

In the caretaker period the government of the nation, state or territory has to continue, emergencies be dealt with, wages paid, and the many works of government performed just as before.

However, when it comes to relations with and appointments to the public service (and other agencies of the State), the making and implementing of law and policy, to entering into new agreements or contractual relationships, and the use of public money and facilities, a high standard of responsibility is expected.

Former MP, Minister and Governor-General Paul Hasluck put it this way:

“No new decisions on matters of major policy should be taken and no appointments to high office should be made. The common sense of this convention is to avoid a situation in which an expiring government may do something, which a month or so later, an incoming government may immediately try to cancel. The philosophy of it is that if a question on major policy is being put to the electorate at an election, a government should not make final decisions on that question before the electorate has given its answer” (The Office of Governor-General, 1979, p.18).

So too is responsibility expected of opposition parties (and MPs generally) in relation to the consultation rights they are afforded.

In relation to pre-election consultation with the public service, Menzies and Tiernan (Caretaker Conventions in Australasia, 2014) explain (p.52):

“The scope of the meeting is limited to machinery of government, administrative and technical issues; it is stressed that officials are not authorised to discuss government policy or give opinions”.

At the same time ministerial offices are restricted in what they can request from the public service. Tiernan and Menzies again (p.43):

“During the caretaker period, departments are restricted to giving factual advice – not policy advice – to ministerial offices.”

For oppositions to abuse the privilege by publicly “reading into” what they are told or ministers adding the information they receive into party political material would be inappropriate.

Focus on the public service

In all of this, public servants are often put into the spotlight. It might be dealing with requests like the ones mentioned above. It might be responding to correspondence from the opposition agitated at what it claims is a breach. It might be a requirement to attend an inter-government meeting as an observer. It might be the administration of the guidelines themselves for example in relation to the use of government facilities or funding for travel arrangements during an election. It might relate to departmental websites and the use of the internet to ensure their political neutrality. It might be requests (or indeed demands) from ministers to their ministerial staff about work priorities, when one of them happens to be a secondee from the public service. It might be a case of contract timelines that need to be met or appointments that need to be made for the work of government to be effective. It might also be the case that the minister having been defeated in the election delegates to the departmental secretary responsibility for dealing with an outstanding contract matter as was the case in Victoria in 1999.

It might also be a request from government to do something which the public service believes to be a breach of the guidelines agreed upon. A good example from recent times was the “By Boat, No Visa”, $30 million campaign by the Rudd government before and in during the 2013 election. Controversy followed the failure of the government to get bipartisan agreement — as required by the caretaker guidelines — for the advertisement to continue in the caretaker period itself. But continue they did and as Dr Ian Watt, Secretary of the Department of the Prime Minister and Cabinet said at the time: “Decision-makers, including Ministers are not prevented from making decisions, as the conventions are not legally binding” (see Menzies and Tiernan, pp, 45-47). In this case, a government decision was made and a direction to the public service delivered.

One would hope that in all these matters the guidelines would be watertight but as is the case with most matters in politics there are differing interpretations given to basic concepts like “significant”, “consultation”, “policy decisions”, “policy implementation” and “politicisation”. Remarkably, interpretations might change when oppositions become governments and governments become opposition. Such liberties aren’t expected of our public service when they are required to make a call themselves or advise others about what is acceptable and what isn’t.

Differences, even if subtle, between the jurisdictions, commonwealth, state and territory, over the detail provided to assist in interpretation make it even more complicated; differences for example on how to assess and what is deemed a significant appointment, how to handle requests for policy costings or on how to define a “policy decision”. Is it the taking of a policy decision or the implementation of a new policy? On these differences, see chapter 5 in Caretaker Conventions by Menzies and Tiernan.

Menzies and Tiernan (p.77) also provide an alert to public servants about their obligations:

“The introduction of statutory sets of public service values and codes of conduct mean that public servants now have legal obligations for non-partisan behaviour, and these apply during the caretaker period”.

On this point it is worth reading the 2004 report of Queensland’s Crime and Misconduct Commission (CMC): The Tugun Bypass Investigation, in particular, the sections Possible official misconduct on the part of a departmental officer, pp.4-5 and Recommendations, pp.30-32. The CMC points out that given public service codes of conduct and Queensland’s Public Service (1996) and Public Sector (1994) Acts a deliberate breach of caretaker conventions by a departmental officer “could conceivably amount to official misconduct, if the facts supported imposition of a sanction of dismissal or grounds for possible disciplinary action under the Public Service Act” (p.5).

It focused on the question of correspondence and letter-writing where it’s clear that in an election setting all eyes will be on what is and isn’t said by a public servant. The CMC concluded, in this case, a letter sent to potentially affected residents following an election commitment given by the government did contain some “inappropriate passages” but that this was due to a lack of understanding of the conventions rather than any political bias. They quote a UK Cabinet Office document (2001 General Election Guidance) that says letters in a caretaker period should be “simple, straightforward and give no room for misrepresentation”. That’s good advice!

This example reminds us — as does the one on “By Boat, No Visa” — that the myriad of decisions that are made by governments and public servants during this period will be subject to the spotlight not only of opposition MPs and their staff but also the media and election commentators. Governments, their opponents and the public service itself need within their teams those who have accumulated knowledge about these matters and can advise sensibly. This becomes particularly important if an election isn’t decisive and major parties are negotiating with the minors and any independents.

This was the case in Victoria in 1999, when the final result was not clear for nearly a month and the Department of Premier and Cabinet set up a reference group (and secretariat) to facilitate a whole-of-government decision-making process that was “effective, efficient and timely”.

The Secretary of Premier and Cabinet chaired the reference group, whose membership included the head of the Cabinet Office, and other senior personnel. It met daily, reviewed issues sent up by agencies for consideration and had authority to decide in the case of urgency.

See Glyn Davis, Bill Scales, Alice Ling and Roger Wilkins, “Rethinking Caretaker Conventions for Australian Governments”, Australian Journal of Public Administration, 60 (3) September 2001, pp.17-21. for an account of the Victorian case, including how they dealt the matter of the formal appointment of an Auditor-General and the execution of a contract with a private provider of health services.

I trust my comments indicate the importance of this matter for public servants. They are always “on the line” when it comes to the public interest but even more so in the caretaker period. There is no alternative but for them to be well prepared for the requests that will come from “above” (the government) and from “outside” (the opposition and other MPs). These won’t just come at a high level but perhaps also in the electorates themselves. When a decision is there to be made individual public servants at all levels should regard common sense and ethics as useful guides, as with all of their work. However, in the event of complication and doubt about the application of caretaker conventions in specific instances public servants would be well-advised to seek advice from their colleagues. With that in mind their agencies have a responsibility to ensure there is an experienced advisory team on hand to assist. As Menzies and Tiernan (p.38) point out in their comprehensive overview: “Judgment cannot be acquired at the calling of an election, but is built up over time and through experience. This is why only the most senior officials should be responsible for caretaker conventions, and why they often consult central agency experts when weighing up their decisions”.

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