6.16 On occasion, it may be necessary for a government to remain in office for some period, on an interim basis, when it has lost the confidence of the House, or (after an election) until a government is sworn in 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.
6.19 There are two arms to the caretaker convention:
The principles that apply in each situation are set out below.
6.20 Where it is not clear which party or parties will form the next government following a general election or mid-term loss of confidence in the government, the following principles apply to government business (at every level).
6.21 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 with other political parties about it.
6.22 The caretaker convention colours the whole conduct of government, and requires careful judgement by Ministers, public servants, Crown entities, and other state sector agencies as to whether particular decisions are affected.
6.23 No hard and fast rules are possible. Ministers may need to take into account various considerations (including political considerations), both on whether it is appropriate or necessary to proceed on a matter and on 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.
6.24 Where it is clear which party or parties will form the next government but Ministers have not yet been sworn in, the outgoing government should:
6.25 Situations of this kind are likely to be relatively short-lived, as the Constitution Act 1986 enables a swift transition between administrations once the composition of the new government has been confirmed.
6.26 The day-to-day administration of departments and agencies in the wider state sector will (in general terms) continue during the caretaker period. However, departmental officials and board members and employees of other state 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.
6.27 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 department 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.
6.28 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 appropriate, chief executives and statutory officers should observe the principles of the caretaker convention (see paragraphs 6.19 - 6.25) when making those decisions. The Secretary of the Cabinet is available for guidance.
6.29 The statutory provisions governing decision making within Crown entities, state-owned enterprises, and other state sector agencies impose different obligations from those applicable to decision making within departments. Cabinet expects, however, that agencies in the state sector will apply the principles of the caretaker convention (see paragraphs 6.19 - 6.25) to decision making during the caretaker period, as far as is 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 that have caretaker convention implications. For general guidance on applying the caretaker convention, the heads of Crown entities or other state sector agencies may wish to contact relevant departmental chief executives or the Secretary of the Cabinet.
6.30 As a general rule, Ministers should put before their 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 6.31 - 6.32.)
6.31 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.
6.32 All approaches to other political parties must be cleared in advance with the Prime Minister or Cabinet. Ministers should ensure that they notify the office of the Prime Minister as early as possible of all matters that may require consultation and action during periods of caretaker government.
6.33 During a caretaker period, particular attention should be paid to decisions about expenditure, and requests under the Official Information Act 1982.
6.34 In relation to decisions on expenditure, there must always be authority from Parliament to spend money before expenditure is incurred. (See paragraph 5.65.)
6.35 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 with 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 8.13 - 8.51.