Caretaker practice and appointments

The appointment of the electoral commissioner, Ed Killesteyn, for a fresh, five-year term commencing on January 4, 2014, sends odious signals about the possible behaviour of the Gillard Labor government in retreat in the few months before the general election of September 14 this year.

Apologists for the government have been quick to point out that, as the House of Representatives has not been dissolved, the government is, in a literal sense, free to do as it chooses (as it is doing). This defence not only gilds the lily; it mocks it.

The caretaker guidance published by the Department of the Prime Minister and Cabinet does not cover appointments of this nature because it (entirely reasonably) does not contemplate that decisions will be made well-nigh eight months in advance, to take effect more than three months after the election. (There are limits to the number of hypothetical situations which can be embraced in a single, shortish public service document.)

The government's Pharisaical action is totally contrary to the spirit of caretaker practice. As the present Parliament is reminiscent of that of 1969-72, when the Gorton and McMahon governments had a failing grip on power, so the conduct of the Gillard government evokes similar sentiments to those pervasive as the old Coalition, after a generation in office, neared its Götterdämerung.

But even in those days of decay and death, the visiting British political scientist from Nuffield College, Oxford, (now Sir) David Butler, was ''struck by the horror with which ministers and civil servants alike reacted to the suggestion that an outgoing government might make some lame duck appointments''. Of course, a fresh five-year term in a statutory post is hardly ''lame duck''.

Sir Paul Hasluck who, like PM&C, hardly contemplated forward-looking appointment action of the sort effected by the Gillard government, explained the rationale about not making appointments of this sort in terms of the need to avoid situations in which ''an expiring government'' may do something which an incoming government may ''immediately try to cancel''.


The electoral commissioner is not the only significant public officer to be touched by the government's lack of statecraft as it prepares to face the people. But the importance of this office may be clearly discerned in Justice Michael Kirby's observation, from the bench of the High Court, that the electoral commissioner is ''a neutral officer and, indeed, one of the most important, if not the most important, in the executive''.

Another comparably important office is that of the governor of the Reserve Bank, Glenn Stevens. His seven-year term is scheduled to conclude on September 17. He has been appointed for another three years, meaning that if the Parliament elected in September runs its full course, the post will next fall vacant as another election looms. Apparently, this decision was made unilaterally without any consultation with the opposition, and in particular the opposition's treasury spokesman, Joe Hockey. Once more, the defence is that we are not in a caretaker situation!

The government itself shows no sensitivity about these decisions. According to the Attorney-General, Mark Dreyfus: ''Look, we're not that close to the election. The business of government has to go on. There needs to be continuity and stability in Australian government. The Australian government makes thousands and thousands of appointments each year to a whole range of courts and tribunals and statutory boards, as well as very important positions like the governor-general, and there's a long lead time for some of these appointments.''

In a memorable punch-line, Dreyfus declaimed: ''I've got no intention of ceasing making appointments because Tony Abbott wants to destabilise the government of our country. We'll go on making appointments in the ordinary course up to the beginning of the caretaker period, when the writs are given for the elections.'' He rounded up with a boast that the government had made ''appointments that I'm very proud of, on merit''.

Dreyfus's problem is that it is not simply a case of merit; it is also a case of propriety. And it is upon that rock that the government, in its impatience, has stumbled. The Attorney-General lacks the self-awareness to appreciate that, to the extent his argument has weight, inappropriate appointments cast a perceptible shadow over those which are defensible.

The growing debate on these questions neglects some important aspects. It is not that we know the date of the election which renders these appointments sensitive; they would have been sensitive anyway because there had to be a general election before the end of the year no matter what.

Michael Kirby observed that the electoral commissioner is 'a neutral officer and, indeed, one of the most important, if not the most important, in the executive'.

The sensitivity is, however, reinforced because the appointments take effect after the announced date for issue of the writs for the general election. Sophistry around the caretaker practices, as they are more accurately described, is just that - sophistry, a distraction from the real issues.

It is unlikely that this course of events has been watched with equanimity in the upper echelons of the public service. But today's occupants are less well-placed than their predecessors of the McMahon period to provide firm guidance on proper practice to the ministry. As we are occasionally reminded, the era of the imperial public service is over.

(One of the great qualities of an imperial public service is that it provides an essential protection for government when the masters and mistresses develop Caligula's disease, as their fortunes fail and the polls fall.)

Back in 1972, it was, indeed, the public service which activated the Menzies' principles concerning practice once the House of Representatives had been dissolved. Sir Robert Menzies' half-page letter on the matter, first issued to ministers in 1951, was given very wide circulation in the middle of 1972 and was not especially welcomed by the then prime minister, Gough Whitlam.

Before Dreyfus and his colleagues set about making the thousands of appointments to which he referred when interviewed, Prime Minister Julia Gillard would be wise to counsel her colleagues to bring some judgment to any likely vacancies. A series of questionable appointments taking effect after the election - in fact, after dissolution of the House and issue of the writs - will only further tarnish the retreating ministry's doubtful reputation.

  • Friday, August 9, should be the cut-off date for any appointments taking effect after the issue of the writs on August 12.
  • No government appointments should be made to any post where the date of commencement falls after the date set by the Prime Minister for the issue of writs.
  • If, in a particular case, it is necessary to make an appointment, and some acting arrangement cannot be devised, the responsible minister should proceed only with the concurrence of the Opposition Leader.

It is just a case of adapting section 3 of PMC's guidance with proper regard for the purposes lying behind the stipulated caretaker practices. But there should be no ambiguity or equivocation in doing so.

And if Gillard regards this as foreign territory, she should not hesitate to consult Labor senator John Faulkner, who has, over more than 1½ decades, had something of a fastidious interest in caretaker practice. Dreyfus would clearly profit from conversation on such matters with Faulkner.

The year 1972 witnessed another twist in Westminster practice, again largely attributable to Sir David Butler. This was the concept of pre-election consultations between the opposition and the public service. According to Butler, ''in Britain in 1964 and to a lesser extent in 1969-70, civil servants did have fairly extensive contact with the shadow cabinet''.

The contacts, virtually all made with the knowledge and approval of existing ministers, covered the structure and working of departments and ''the problems of personnel and administration''. The officials, for their part, ''listened to the policy plans they might soon be asked to implement''.

''Discussion with a number of those involved on both sides of these conversations suggests that they did not cause any practical problems or arouse any political anxieties,'' Butler said. ''It is clear that such encounters did a lot to educate both sides about each other and that they served the interests of the nation by smoothing over the dislocations that must come not only to a department but also to many of its clients when there is a change of government.''

In Butler's view, it was ''not clear [in July 1972] how far such contacts are going on in Canberra today, either with or, much worse, without approval of ministers. It seems that the number is much smaller than has been the custom in London. If there is a change of government Australia as a whole will be the loser for this lack of informed preparation.''

A major reason why Butler may have thought that there was much less consultation in Canberra than London is simply that there was none except on a totally informal basis.

Butler's speech gave rise to active consideration of the advantages that might arise if there was some contact. The incumbent prime minister, William McMahon, however, placed a ban on any such activity on the basis that it might be regarded as implying an expectation that the government might be defeated.

The public service was not totally left to prepare for a possible changeover by close reading of Hansard, newspapers and speeches by leading figures in the opposition. One department head, the Defence Department secretary, Sir Arthur Tange, with the agreement of his minister, David Fairbairn, ignored the prime minister's ruling and lunched with the shadow defence minister, deputy Labor leader Lance Barnard, in the dining room of Old Parliament House.

At the end of the Whitlam government's first year in office, Whitlam announced that, in future, such discussions between the opposition leadership and senior administrators would be permissible. A few months later, with a double-dissolution election imminent, the opposition leader, Billy Snedden, raised the question of some meetings but insisted on an assurance of complete confidentiality. While the government said it would not be inquiring about the content of any opposition-public service discussions, this did not satisfy Snedden and nothing happened.

Thereafter, while there have been a variety of contacts between shadow ministers and senior officials, formal and informal, both sides of politics, in preparing for the possibility of taking office, have not in any extensive or systematic way made much use of opportunities for pre-election consultations.

Where the other great Westminster jurisdictions (Westminster itself and Ottawa) also differ in an obvious sense from Canberra is in the absence in the latter of fairly formal discussions about a possible transition. In a number of recent cases in both Whitehall and Ottawa, a senior member of the opposition leader's staff has been an authoritative conduit between the aspirants to power and the cabinet secretary (in the case of Canberra, it would be the PM&C secretary). If there is any comparable channel of communication between oppositions in Canberra and the head of PM&C, it is marked by a discretion so profound that even its existence is discreet.

In the present instance, this ought to be a matter of some anxiety. Apart from the usual speculations about the likely fate of senior officials should the reins of government change hands in September, an incoming administration will be confronted with a need for a fairly substantial restructure of the departmental machinery of government, given how disorganised it has become in recent years.

J. R. Nethercote is an adjunct professor with the Public Policy Institute at the Australian Catholic University.