6.21 On occasion, it is necessary for a government to remain in office on an interim basis, when it has lost the confidence of the House or, after an election, until a new ministry is appointed following the government formation process. During such periods, the incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office. However, governments in this situation have traditionally constrained their actions until the political situation is resolved, in accordance with what is known as the convention on caretaker government.
6.22 There are two sets of circumstances in which the government would see itself bound by the caretaker convention.
- After a general election, one of the two arms of the caretaker convention applies until a new administration is appointed (see paragraph 6.24).
- If the government has clearly lost the confidence of the House, one of the two arms of the caretaker convention guides the government's actions until a new administration is appointed, following either negotiations between the parties represented in the current Parliament or a general election.
6.23 In both situations, the government is likely to state explicitly that it is to operate as a caretaker government until the political situation is resolved.
Principles of the caretaker convention
Two arms of the convention
6.24 There are two arms to the caretaker convention. Which arm applies depends on whether:
- it is not clear who will form the next government (see paragraphs 6.25 - 6.28); or
- it is clear who will form the next government, but they have not yet taken office (see paragraphs 6.29 - 6.30).
The principles that apply in each situation are set out in paragraphs 6.25 - 6.30.
6.25 Where it is not clear which party or parties will form the next government after a general election or mid-term loss of confidence in the government, the following principles apply to government business (at every level).
- In general terms, the normal business of government and the day-to-day administration of the public sector may continue during the caretaker period.
- Decisions taken and specific policy determined before the start of the caretaker period may be implemented by a caretaker government (subject to paragraph 6.26).
- Matters may arise, however, that would usually require decisions, such as those concerning:
- significant or potentially controversial issues;
- issues with long-term implications that would be likely to limit the freedom of action of an incoming government (such as the signing of a major contract, or the making of a significant appointment);
- national or local emergencies;
- a major international event, crisis, or disruption;
- new policy initiatives; or
- changes to existing policy.
- Decisions relating to those matters should:
- be deferred, if possible, until the political situation is resolved; or
- if deferral is not possible (or is no longer possible), be handled by way of temporary or holding arrangements that do not commit the government in the longer term (for example, extending a board appointment or rolling over a contract for a short period); or
- if neither deferral nor temporary arrangements are possible, be made only after consultation with other political parties, to establish whether the proposed action has the support of a majority of the House. The level of consultation might vary according to such factors as the complexity, urgency, and confidentiality of the issue (see also paragraph 6.37).
6.26 Occasionally a significant policy decision that was made before a caretaker period will need to be implemented during the caretaker period. Usually the implementation of such decisions can proceed during a caretaker period. If the proposed action would be difficult or impossible to reverse, however, it may be appropriate to consult other political parties about it.
6.27 The caretaker convention colours the whole conduct of government, and requires careful judgement by Ministers, public servants, Crown entities, and other public sector agencies as to whether particular decisions are affected.
6.28 There are no hard and fast rules. Ministers may need to take into account various considerations (including political considerations), in deciding whether it is appropriate or necessary to proceed on a matter and how the matter should be handled. Decisions will also be considered against the background that the incumbent caretaker government has lawful executive authority, until replaced or confirmed in office.
6.29 Where it is clear which party or parties will form the next government but Ministers have not yet been appointed, the outgoing government should:
- undertake no new policy initiatives; and
- act on the advice of the incoming government on any matter of such constitutional, economic, or other significance that it cannot be delayed until the new government formally takes office—even if the outgoing government disagrees with the course of action proposed.
6.30 Situations of this kind are likely to be relatively short-lived, as a swift transition between administrations is enabled by New Zealand's constitutional arrangements, including section 6(2)(a) of the Constitution Act 1986 (see paragraph 6.52).
Decision-making process under the caretaker convention
6.31 The day-to-day administration of public service agencies and other agencies in the public sector will (in general terms) continue during the caretaker period. However, agency officials and board members and employees of other public sector agencies should always take into account the fact that they are operating in a caretaker environment, and exercise special care when making decisions during this time.
Public service agencies and non-public service departments
6.32 Most decisions to which the caretaker convention applies are those relating to significant or potentially controversial issues, issues with long-term implications, new policy initiatives, or changes to existing policy. In the usual course of events, these decisions will be referred to the Minister. The Minister will decide (in consultation, if appropriate, with ministerial colleagues and/or the Prime Minister) how the convention applies and how the decision should be handled. The agency should be ready to provide advice (if required) on applying the caretaker convention, and the options for handling the decision in terms of the convention. The Secretary of the Cabinet is available for guidance.
6.33 On rare occasions, caretaker convention issues may arise in relation to matters that, under statute, fall solely within the decision-making authority of a chief executive or statutory officer. Where this happens, chief executives and statutory officers should observe the principles of the caretaker convention (see paragraphs 6.24 - 6.30) when making such decisions. The Secretary of the Cabinet is available for guidance.
Crown entities, state-owned enterprises, and other public sector agencies
6.34 The statutory provisions governing decision-making within Crown entities, state-owned enterprises, and other public sector agencies impose different obligations from those applicable to decision-making within public service agencies and non-public service departments. Cabinet expects, however, that agencies in the state sector will apply the principles of the caretaker convention (see paragraphs 6.24 - 6.30) to decision-making during the caretaker period, as far as possible taking into account their legal obligations and statutory functions and duties. Cabinet also expects that the agencies will discuss with their Ministers any issues with caretaker convention implications. For general guidance on applying the caretaker convention, the heads of Crown entities or other public sector agencies may wish to contact relevant public service agency chief executives or the Secretary of the Cabinet.
6.35 As a general rule, Ministers should put before their Cabinet colleagues the sorts of issues on which they themselves would wish to be consulted (see paragraphs 5.11 - 5.12). Ministers may wish to discuss with their Cabinet colleagues whether the caretaker convention applies to a particular decision and how it should be handled. If Ministers are in any doubt about whether the caretaker convention applies to a particular matter, they should err on the side of caution and raise the matter with the Prime Minister or at Cabinet. If a Minister considers that a matter requires consultation with other political parties, the proposed consultation must be approved in advance by either Cabinet or the Prime Minister (see paragraphs 6.36 - 6.37).
Coordination and the Prime Minister's role
6.36 In cases where any doubt arises as to the application of the caretaker convention, Ministers should consult the Prime Minister. Final decisions concerning the caretaker convention rest with the Prime Minister.
6.37 All approaches to other political parties must be cleared in advance with the Prime Minister or Cabinet. Ministers should ensure that they notify the Prime Minister as early as possible of any matters that may require consultation and action during periods of caretaker government.
Guidance on decisions about expenditure, and the Official Information Act 1982
6.38 During a caretaker period, particular attention should be paid to decisions about expenditure, and requests under the Official Information Act 1982.
6.39 In relation to decisions on expenditure, there must always be authority from Parliament to spend money before expenditure is incurred (see paragraph 5.70).
6.40 The Official Information Act 1982 continues to operate during a caretaker period. In general, responding to requests for information should be seen as part of the day-to-day business of government, and should be dealt with in the usual way. On rare occasions, requests may raise issues that are likely to be of long-term significance for the operation of government and that require ministerial involvement. In this situation, it may be necessary to consider extending the time limit in order to consult the incoming Minister. Any such extension must comply with section 15A of the Official Information Act 1982. For more information on the Official Information Act 1982, see paragraphs 8.22 – 8.71.