Policy Officers and the Caretaker Period

 

No one asks any more from a policy officer during the caretaker period than this: be competent, nonpartisan and diligent.

 

During ordinary government operations, the policy domain works together with the political and administrative domains of government. Mostly this is smooth, despite the inevitable bumps in the road.

 

During elections, things can be quite grey for public servants because the government remains the government-of-the-day yet operates under special “caretaker” conventions. Policy officers in particular should understand the special dynamic that surrounds elections.

Caretaker period

Once the Premier calls on the Governor, and the Governor triggers a general election by issuing the writ,[1] the caretaker period starts. The three domains of politics, administration and policy then shift onto different roads altogether.

 

The caretaker period starts when the writ is issued, and continues until either:

·      it is clear that the government has been returned (that could be election night or some days later) or

·      the government has changed and a new ministry is sworn in.

Government as usual

Calling an election ends the parliament but not the government. Ministers continue to administer their portfolios and public officials continue to do their everyday jobs. Police remain on duty; teachers teach; hospitals minister to the sick; fires are fought. And Ministers remain in office, able to call on the public service as usual.

 

Yet it is not government as usual for policy officers. The fundamental caretaker conventions are about major decisions not being made, decisions that might bind an incoming government and limit its freedom of action, specifically:

 

·     major policy initiatives are not to be implemented

·     significant appointments are not to be made

·     no major contracts or undertakings are entered into.

 

You should read Chapter 9 of the Queensland Cabinet Handbook[2] carefully to understand the details of what should not be done.

 

In addition to what is not done, policy officers may be asked to assist with a range of actions designed to make post-election activity smooth. Ministerial records are closed off; all Cabinet documents are collected and returned to the Cabinet Secretary; Minister’s offices are readied for the return of the Minister or the welcoming of a new Minister. If the government changes, all Ministerial offices are completely cleared, stocked with minimal stationary etc and all computer disks wiped to ensure the a new government does not have improper access to data of the outgoing government.

 

The caretaker period can be very busy for Ministerial Services Branch and the Cabinet Secretariat. Inevitably they will need policy officers in departments to make sure everything is done properly.

Business as usual for approved projects

It is sometimes said, wrongly, that policy and project work should stop during caretaker period.  Approved projects are part of “government as usual” operations and should continue during the caretaker period.  If there is doubt, the chief executive’s authority should be sought to continue or discontinue project work.

Ministerial and opposition responsibilities

During the caretaker period, the ordinary activities of government continue. The Premier and her Ministers remain in office, responsible for the administration of their portfolios.

 

Under the caretaker conventions, the Opposition is entitled to consult departmental officials, but only in a very particular way, detailed in chapter 9.7 of the Cabinet Handbook.[3] A public servant who talks independently or leaks to the Opposition is acting improperly in a partisan way. Even acting on the direction of a Minister about an election announcement could potentially be official misconduct.[4]

 

The Opposition makes a briefing request to the relevant Minister who refers it to the Premier. If approved, briefings are given under the guidance of the department’s chief executive.

Government and Opposition briefs

Departments will be expected to prepare two sets of briefing documents for the incoming government. One set will be drafted on the basis that the current government is returned, the second set on the basis that a new government is elected. Both sets of briefing documents should aim to provide the incoming Minister with a comprehensive statement of the organisation, structure, budget, functions and major current issues facing the department.[5]

 

One major role for policy officers is to prepare two sets of briefs, one for a returned government; the other for a new government. These documents are a little bit like estimates briefs, and indeed there may be some overlap.

 

It is usual for policy officers to be involved in preparing these documents, with co-ordination by each department’s Cabinet Legislation and Liaison Officer (CLLO) and the Premier’s Department.

The caretaker period – an opportunity to upgrade skills and prepare

 

Policy officers should do their jobs, nothing more nor less, competently, impartially and diligently. They have an important role to play in making sure, what ever the outcome of the election, government works well, governs under the rule of law and is efficient in delivering on the government-of-the-day’s policies.  There is every reason to use the caretaker period wisely to develop further skills [insert link] and to work proactively to deliver effective public policy outcomes [insert link to further discussion of this]. 

 

Parliament’s business before and on dissolution for caretaker period

 

The dissolution of the Queensland Parliament will have the following effect on legislation:

• Bills that have been introduced into the Parliament, but have not been passed, automatically lapse
• Bills passed by the Parliament, but have not gained assent, may lapse (it is likely that assent will be given to those passed in the current sitting week as it is known that the election is to be called on Sunday 19 February)
• In particular circumstances, it is possible for subordinate legislation to be approved by Governor in Council during the caretaker period.

 

This is the first caretaker period since the establishment of the new committee system in the Queensland Parliament on 16 June 2011.  Under the new arrangements, Bills are referred to the relevant portfolio committee after the first reading.  The committee then undertakes an open investigation of the matters within the Bill and tables its report in the Legislative Assembly prior to the second reading debate.  The committee report informs the debate and may lead to amendments when the Bill is considered in detail prior to the third reading. (Read more about Queensland’s law-making process.)

 

 

Committee stage

 

Usually, the portfolio committee charged with examining a Bill introduced to the Parliament has six months to consider and report on the Bill.  On dissolution of the Parliament, committees are dissolved and their business lapses.

 

The Committee of the Legislative Assembly can truncate an inquiry of a portfolio committee at any time and can deem the progress of the Bill to Parliament as urgent.  This capacity has been used increasingly in recent months to accelerate the passage of legislation though the Parliament, particularly as the Parliament reaches the end of its three-year term.

 

The Parliamentary sittings this week provide a further example of action taken by the Government to hasten the passage of legislation before the House in the lead up to the prorogation of the Parliament.  On 14 February, the Parliament agreed:

That standing order 136(5) be suspended for the South-East Queensland Water (Distribution and Retail Restructuring) and Other Legislation Amendment Bill to allow the commencement of the second reading debate despite seven days not having elapsed since the tabling of the portfolio committee report on this bill.

 The Bill was passed by the Parliament later that day.

 

Future access to lapsed committee business

Much committee business is conducted in public view, with hearings web-cast and recorded by Hansard.  Such material remains in the public domain for future access. 

 

A new committee does not, as a matter of course, have access to non-public records of its predecessor committee.  It is, however, possible for an expiring committee to pass a resolution prior to the dissolution of Parliament to expressly give access and authority to publish to the next committee.

 

Prepare to present lapsed business to new or continuing Minister

The caretaker period provides the opportunity to prepare to persuade the new Minister or continuing Minister to progress the lapsed policy.  It provides the space to carefully plan how it might progress and to carefully craft a briefing note.  Liaison with your Cabinet and Legislation Liaison Officer is essential.

 

 

Policy-making during elections

Things happen at breakneck speed in election campaigns. The political cycle is frenetic, driven by a combination of deliberate strategy and responses to emerging events.

 

This is not the policy cycle with its embedded consultation and checks-and-balances managed by central agencies. This is politics in the raw - decisions are often made on political instinct rather than careful deliberation of evidence. Policy officers will have the task of turning the next government’s commitments into reality. They must analyse the policy, fill the gaps, and plan carefully for implementation. Policy officers should take a professional interest in party platforms: they may be asked to analyse and implement policies straight after the election!

Political leadership in elections

The major protagonists in the 2012 Queensland election – the ALP Government and the LNP Opposition – will each have their policy committees made up of politically trusted advisors drawn from their party machines and savvy advisors engaged by the parties. The policy committee will meet weekly or more often, mapping out their policies against their opponents’, and recommending adjustments and new policies, keeping a watchful eye on the budget impacts, and developing defensive positions in case the other side gains the upper hand.

 

The real power is the strategy committee. This small, tight group will meet briefly once or twice every day, chaired by the leader or deputy. They will map the strategy for the day ahead and analyse the day behind, all with a view to political advantage.

 

For the ALP the leaders will be Anna Bligh and her Deputy, Andrew Fraser; for the LNP, Campbell Newman and Jeff Seeney, and possibly Tim Nichols. The Courier-Mail suggests some other including the chiefs of staff to the Premier and Leader of the Opposition, the party campaign managers and employed strategists like Bruce Hawker and Mark Textor.[6] It is likely the chiefs of staff will form the link between the two committees.

 

Policy officers only see the results of these daily deliberations unfold in the news, hours or days after the fact. Policy and strategy committees only rarely consider the pace of departmental policy development.

 

The tensions within the political domain during the election is important for policy officers as they come to understand the task ahead of them after the outcome of the election is clear.

 

What will happen in 2012?

Predicting election outcomes is notoriously hard. The strongest indication before polling day is in the public opinion polls published in the major newspapers, and sometimes in leaked party polling (normally kept very confidential).

 

 

But only the actual votes on the actual polling day count! Possible outcomes include:

 

• Anna Bligh’s government is returned with a majority
• the LNP wins a majority of seats, including Ashgrove, and a Newman government is installed
• the LNP wins a majority of seats but Newman fails in his bid for Ashgrove (LNP government would be formed under a different leader, possibly Jeff Seeney, the Opposition Leader)
• no party wins a majority of seats and the balance of power is held by independents and minor parties, resulting in a few days or weeks of negotiations before a minority government of either stripe is formed.

 

 

Election watching and making predictions is fun, but policy officers’ must remain impartial. It is important to keep personal preferences separate from the job of formulating advice and ensuring the government-of-the-day is able to govern well, lawfully and efficiently.

 

You can follow the election as it unfolds on various websites including:

• Anthony Green at the ABC (http://www.abc.net.au/elections/qld/2012/)
• The Courier-Mail (http://www.couriermail.com.au/news/queensland/election2012)
• The Brisbane Times (http://www.brisbanetimes.com.au/queensland/state-election-2012)
• The Pollbludger (http://www.crikey.com.au/qld2012)

 

The machine that is government

If the government is returned, expect several ministerial changes: three current Ministers are not standing for re-election, and some Ministers might lose their seats. The Speaker is also not running in 2012. But otherwise, the shape of government is likely to be stable, with 18 Ministers and 13 departments.

 

A Newman government promises to bring major changes to the machinery of government, reversing the Bligh reforms that reduced the number of departments, leading to multi-minister agencies. Already on the cards for a Newman government:

 

• one Minister for each department and maybe one department for each Minister (meaning at least 5 extra departments)
• possible de-amalgamation of local governments
• changes to the role of the Coordinator-General
• revival of a separate Agriculture Department
• yet more regionalised administration of Health.

 

2012 local government elections

Local government elections are held every four years. 2012 is a scheduled election year for all Queensland local governments.

 

The usual day for elections is the last Saturday in March, but this day can be changed by regulation.

 

For 2012, the usual date would have been Saturday 31 March, just one week after the day now nominated for the State election.

 

The Premier decided that the day would be changed, possibly to the last Saturday in April, subject to negotiation with local governments. The election is now scheduled for Saturday 28 April 2012. The full election timetable is at the Electoral Commission website.[7]

 

Special statutory obligations are placed on local governments during the caretaker period. These are not mere conventions, as in State Government. Councils are prohibited from making “major policy decisions” except in exceptional circumstances and with the prior approval of the Minister for Local Government. Major policy decisions made during the election period are invalidated by statute.[8]

 

The Acts define “major policy decisions” in terms of matters affecting the chief executive officer and major contracts:[9]

 

(a)  about the appointment of a chief executive officer of the local government; or

(b)  about the remuneration of the chief executive officer of the local government; or

(c)   to terminate the employment of the chief executive officer of the local government; or

(d)  to enter into a contract the total value of which is more than the greater of the following—

(i)             $150000;

(ii)           1% of the local government’s net rate and utility charges as stated in the local government’s audited financial statements included in the local government’s most recently adopted annual report.

 

The caretaker period for local government is the “election period”, namely:

 

the period—

(a)   starting on the day when public notice of the holding of the election is given under section 301(1); and

(b)  ending on the close of the poll in the election.

 

For 2012, the period is Saturday 10 March 2012 to Saturday 28 April 2012.[10]

 

Policy officers in local governments need to read the relevant Acts carefully and the Caretaker Period Protocol for their Council, if it has one.[11]

 

If there is no particular guidance for your Council, check out the Queensland Caretaker Conventions (see separate article in this issue) and our list of online resources.

 

Caretaker period resources online

 

Tiernan, A. & Menzies J. (2007) Caretaker Conventions in Australasia: Minding the Shop for Government

http://epress.anu.edu.au/anzsog/caretaker/pdf/whole_book.pdf

http://epress.anu.edu.au/anzsog/caretaker/html/frames.php

 

Queensland Cabinet Handbook – Chapter 9

http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/exec-council-handbook/caretaker.aspx

 

Queensland Department of Local Government and Planning

Arrangements for the Caretaker Period during the 2012 Local Government Elections

http://www.dlgp.qld.gov.au/newsletters-and-brochures/bulletin-23-11.html

 

Local Government Association of Queensland

LGAQ welcomes special election caretaker arrangements

http://www.lgaq.asn.au/web/guest/news/-/journal_content/56/10136/1641942

Scenic Rim Council Caretaker Period Protocol

http://www.lgaq.asn.au/c/document_library/get_file?uuid=1c25f803-0d06-43b9-9b85-d12dca3cf622&groupId=10136 (login required)

Commonwealth Government Guidance

Caretaker Conventions

http://www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf

 

Australian Government Webguide – Caretaker Conventions

http://webguide.gov.au/required-information/caretaker-conventions/

 

Prime Facts: The Caretaker Conventions in Australia

http://static.moadoph.gov.au/ophgovau/media/.../63-Caretaker-role.pdf

 

NSW ‘Caretaker’ Conventions and Other Pre-Election Practices: 2011 General State Election

http://www.dpc.nsw.gov.au/__data/assets/pdf_file/0018/105183/Caretaker_conventions_and_other_pre-election_practices_-_2011_general_state_election.pdf

 

Tasmania: Caretaker Conventions

http://www.dpac.tas.gov.au/divisions/executive/caretaker_conventions

 

ACT: 2008 General Election: Guidance on Caretaker Conventions

http://www.cmd.act.gov.au/__data/assets/pdf_file/0005/113576/act-ctkr08.pdf

New Zealand: Cabinet Handbook

http://cabinetmanual.cabinetoffice.govt.nz/6.16

 

 

 

Election resources

Electoral Commission of Queensland

Educational brochures

http://www.ecq.qld.gov.au/resources.aspx?id=107

State Government

http://www.ecq.qld.gov.au/QLD2012/State_Election.html

Local Government

http://www.ecq.qld.gov.au/LG2012/Local_Government.html

 

Legislation

Electoral Act 1992

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/E/ElectoralA92.pdf

 

Local Government Elections Act 2011

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LoclGovtElecA11.pdf

 

Local Government Act 2009 http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LocalGovA09.pdf

 

City of Brisbane Act 2010

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CityBrisA10.pdf