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Government Decisions and Actions in the Pre-election Period

CO (17) 1

22 February 2017

Intended for

All Ministers
All Chief Executives
All Senior Private Secretaries
Speaker of the House of Representatives
Clerk of the House of Representatives
Chief Parliamentary Counsel
Controller and Auditor-General
Chief Ombudsman
Official Secretary, Government House

Government Decisions and Actions in the Pre-election Period

Introduction

1As announced by the Prime Minister on 1 February 2017, the 2017 general election is to be held on Saturday, 23 September 2017. The “pre-election period” is generally regarded as being the three months before a general election. This year, the pre-election period will commence on Friday, 23 June 2017.

2This circular provides guidance on government decisions and actions during the pre-election period. It covers:

2.1government decision making generally during the pre-election period;

2.2making appointments in the pre-election period;

2.3conducting government advertising campaigns during the pre-election period;

2.4the provision of information by the state services in the pre-election period.

Summary

3The government has the right to govern until the election. The caretaker convention does not apply in the pre-election period.

4Successive governments, however, have exercised restraint in the pre-election period in two main areas, as follows:

4.1when making significant appointments (while there is no “blanket ban” on the making of such appointments, a considered process, undertaken in consultation with the Cabinet Office, should be followed);

4.2when taking action that might result in government advertising campaigns being held during the election campaign (the State Services Commission (SSC) is able to provide advice to officials in this area).

Right to govern until the election

5The government has a three year mandate to govern. It is not bound by the caretaker convention during the pre-election period (unless the government loses the confidence of the House before then – see Chapter 6 of the Cabinet Manual for further information about the caretaker convention). This means that the government has full power to make decisions in the pre-election period. Cabinet continues to meet over this period up until the election to consider government business.

6Successive governments have, however, chosen to restrict their actions to some extent in the period immediately before a general election. This is in recognition of the fact that an election, and therefore potentially a change in government, is imminent. Restraint has, for example, been exercised in making significant appointments, and in relation to some government advertising (see Chapter 6 of the Cabinet Manual).

7On some occasions in the past, Ministers have sought advice about whether specific actions or decisions should be taken in the pre-election period. It is for the Prime Minister to make the final decision as to whether or not a decision or action (including a significant appointment) should proceed during the pre-election period.

8From a practical perspective, the election period can be a difficult time for Ministers to focus on big or difficult policy questions. A general election always results in a period of reduced decision making capacity at the ministerial and Cabinet level, while Ministers are occupied with the election campaign. Chief executives should talk to their Ministers in the earlier part of the year about the matters that they wish to see advanced before the election, and agree on timeframes for getting the relevant papers to Ministers and to Cabinet.

Appointments in the pre-election period

9It has been the practice for governments to exercise restraint in making significant appointments in the pre-election period. Whether or not a particular appointment is “significant” is a matter of judgement. A case by case assessment is required, taking into account factors such as:

9.1the public profile of the position or organisation;

9.2whether the organisation has a significant strategic or decision making role;

9.3whether the organisation controls significant assets or funds;

9.4whether the organisation is an executive body, as opposed to an advisory or technical one.;

10It would be helpful if Ministers were able to consider, at an early stage, the significant appointments within their portfolios that are due to commence during the pre-election period. The post-election period (and particularly any caretaker government period) can also be a difficult time for Ministers to make appointments. Officials should therefore review the appointments that will need to be made by their Minister during the period from June to late 2017, including appointments to a newly established board during this time.

11Appointments that are not considered to be significant may proceed in the usual way. If a significant appointment falls due in the pre-election period, or in the immediate post-election period, the Minister responsible for the appointment should consider either:

11.1allowing the appointee to remain in office past the expiry date of his or her appointment (i.e. defer the appointment or reappointment decision), if the governing legislation or other relevant rules allow that; or

11.2if the governing legislation or other relevant rules do not allow the appointee to continue in the position beyond the expiry date of the appointment, whether a short term appointment, a reappointment, or an acting appointment can be made.

12These principles apply to significant appointments that commence during the pre-election period, even if decisions on the particular appointment are to be made before the pre-election period commences.

13All papers proposing appointments during the pre-election or the immediate post-election period, including short term or acting appointments or reappointments, should be put to the Cabinet Appointments and Honours Committee and Cabinet in the usual way.

14The Cabinet Office is available to provide guidance and advice on precedents, and on the process to be followed if an appointment to a significant position is proposed.

Government Advertising

15During the pre-election period, successive governments have chosen to avoid holding advertising campaigns that may create a perception that funds are being used to finance publicity for party political purposes (see Chapter 6 of the Cabinet Manual and the Guidelines for Government Advertising, which are set out on the Cabinet Office website). Ministers and officials should be alert to this issue when making decisions that might result in government advertising campaigns during the election campaign. Government advertising is defined as “any process for which payment is made from public funds for the purpose of publicising any policy, product, service, or activity provided at public expense by the government”.

Provision of information by the state services in the pre-election period

16The neutrality of the public service and other agencies in the state sector must be protected throughout the pre-election period. Particular care should be taken to ensure the appropriate use of officials for policy development purposes in the lead-up to a general election. Policy work carried out by officials for a Minister should not be used to develop party political material or be labelled as party policy. A “government policy” should generally be confirmed through the Cabinet and Cabinet committee decision-making process and then announced by the Minister in his or her official capacity..

17Once government decisions have been announced, however, they can appear in party political material used in an election campaign, as long as they are identified as government decisions.

18Political party policies that have not been worked on by officials or been the subject of government decisions may, of course, appear in party political material used in the election campaign. Such policies must not, however, be labelled “government policies”.

Further advice

19The Secretary of the Cabinet is available to provide advice on decisions and actions around election time. See also the Guidance for the Election Period: State Servants, Political Parties, and Elections, which will be reissued by SSC early in the election year.

20Further guidance will be issued by the Cabinet Office and SSC on election-related issues as the year progresses.

Michael Webster
Secretary of the Cabinet

Enquiries:

Anna Fleming, Legal and Constitutional Advisor
Ph: (04) 817 9741
Email: anna.fleming@dpmc.govt.nz

Rachel Clarke, Cabinet Appointments and Honours Committee
Ph: (04) 494 9741
Email: rachel.clarke@dpmc.govt.nz