Reappointed ... Electoral Commissioner Ed Killesteyn (left) has "served with neutrality and distinction'', says Attorney-General Mark Dreyfus. Photo: Penny Bradfield
The caretaker conventions which apply to Australian government start when the House of Representatives is dissolved for an election. The convention acknowledges that, once the House is dissolved, the government cannot be held accountable in the normal manner. Surprisingly for someone with a deep knowledge of Australian government, Adjunct Professor J. R. Nethercote seems not to understand these basic points.
He accuses me and the government of being "shameless" in making appointments without consulting the opposition, of sending "odious signals" in reappointing the Electoral Commissioner, Ed Killesteyn, for a further five-year term from January 4, 2014, of "Pharisaical actions totally contrary to the spirit of caretaker practice", a "lack of statecraft", "sophistry around the caretaker practices", and "lacking the self-awareness to appreciate that ... inappropriate appointments cast a perceptible shadow over those which are defensible".
Menzies' letter said nothing about appointments, let alone suggest that, months before an election, the opposition should be consulted about decisions.
Instead of inventing fictional caretaker rules and colourful terms of abuse, he should have focused on what the conventions actually are and the purpose they serve.
Annex K to the seventh edition of the Cabinet Handbook, which I published as cabinet secretary last year, is in clear terms: "By convention, the government ensures that important decisions are not taken in the caretaker period that would bind an incoming government and limit its freedom of action. The basic caretaker conventions require government to avoid implementing major policy initiatives, making appointments of significance or entering major contracts or undertakings during the caretaker period and to avoid involving departmental officers in election activities. The caretaker conventions operate from the dissolution of the House of Representatives until the election result is clear or, in the event of a change of government, until the new government is appointed."
It continues: "However, it is also accepted that some care should be exercised in the period between the announcement of the election and the dissolution.”
This is a reference to the one or two-day gap that has sometimes occurred between the announcement of the prime minister's intention and the governor-general issuing the writs. It does not refer to the more unusual position which has arisen this year, of Prime Minister Julia Gillard announcing in January that she proposes to ask the Governor-General to issue the writs for an election on September 14. This announcement of intention has placed the Commonwealth in an analogous position to the Australian jurisdictions with fixed parliamentary terms (the ACT, Victoria, NSW, South Australia, Western Australia and the Northern Territory). No one would suggest that these jurisdictions are in permanent caretaker mode, even though the date of the election is already known.
The Guidance on Caretaker Conventions published by the Department of the Prime Minister and Cabinet also makes the conventions clear: "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."
In relation to significant appointments, the PM&C guidance says: "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."
Nethercote wants to add imaginary conventions of his own. The first seems to be that the government is required to consult with the opposition many months before the dissolution of the House. The second seems to be that the government is not free to make any appointments, or even reappointments, which take effect after the Friday before the issue of the writs for the election. There is no basis for any such rules, either in past practice or in principle.
In 2004, the former Howard government continued to exercise the powers of government from the announcement of the election date on Sunday, August 29 until the last moments before the writs were issued on Tuesday, August 31. A 2007 Australian National Audit Office audit of the regional partnerships program showed that $3.3 million in grants were approved between 3.25pm and 4.16pm on August 31, 2004, minutes before the writs were issued. This was two days after then prime minister John Howard had been to Government House to ask the governor-general to issue the writs and announce the election date.
Nethercote refers vaguely to "the Menzies principles concerning practice once the House of Representatives had been dissolved", and to "Sir Robert Menzies' half-page letter on the matter, first issued to ministers in 1951". But he avoids actually quoting from the letter, no doubt because it does not provide any support for the imaginary conventions he is claiming. Menzies' letter, sent to his ministers at the outset of the 1951 double-dissolution elections, said: "I should also be glad if you would note that, whilst continuing to take whatever action you deem necessary in connection with the ordinary administration of your department, you should not make decisions on matters of policy or those of a contentious nature without first referring the matter to myself."
The letter said nothing about appointments, let alone suggest that, months before an election, the opposition should be consulted about decisions.
In 2008, the current government introduced merit-based selection of Australian Public Service agency heads and statutory office holders. This process ensures a fair and even-handed approach to appointments and quite intentionally includes a long lead time for consideration of appointments. Under this process, the secretary of the relevant department is required to "notify the relevant minister or ministers, in writing, of an upcoming expiry of an appointment six months before the expiry date". After this, the "minister will advise incumbents, in writing, at least four months before the expiry of their appointment whether it is intended to reappoint them, not reappoint them, or to advertise the position to test the field" [my emphasis].
The policy also ensures that existing office holders are given sufficient notice as to whether they will be reappointed, and that vacancies will be advertised well in advance of their falling due.
It is particularly unfortunate that Nethercote seeks to create controversy about the reappointment of the Electoral Commissioner. I entirely agree with Justice Michael Kirby's observations, quoted by Nethercote, that the commissioner is "a neutral officer and, indeed, one of the most important, if not the most important, in the executive". This is all the more reason to ensure that his reappointment is secure and above politics. Ed Killesteyn has served with neutrality and distinction for five years. His reappointment gives stability and continuity to the Australian Electoral Commission in this election year. The implication of Nethercote's comments is that the opposition should have been given the opportunity to nominate someone more congenial to their views – introducing partisanship to this neutral office.
The caretaker provisions are there to provide stability in government. Nethercote would do well to acknowledge this.
Mark Dreyfus, QC, is the federal Attorney-General.