Tasmanian Liberals accused of breaching caretaking conventions over Marinus Link and TT-line borrowing limit

Australia Broadcast Center

3 days ago

As votes continue to be counted and both major parties continue discussions with crossbenchers to form government following Tasmania's snap election, the government is being accused of breaching caretaker conventions.
Tasmania's Labor opposition has claimed the government's handling of two policy decisions — an increase in the borrowing limit for ferry operator TT-Line and the yet-to-be-made decision on whether to proceed with the Marinus Link undersea power cable — have contravened caretaker conventions.
The government said it would follow all relevant caretaker conventions and that it had briefed Labor on the TT-Line decision, and would consult with Labor on the Marinus decision "in due course".
When the House of Assembly is dissolved for a general election, the government is placed in what is called a caretaker period.
Caretaker conventions outline how the government should operate during the period.
According to the guidelines, the conventions are "neither legally binding nor hard and fast rules" and they should be applied to individual cases with "sound judgement and common sense".
Professor emerita Anne Twomey, a constitutional law expert at the University of Sydney, said the conventions were developed "as a matter of fairness".
"The idea is that during that [caretaker] period, after parliament has been dissolved, where governments are no longer actively responsible to parliament because there's no parliament in existence, then they should be a lot more careful about what they do.
"You don't want to bind a new government, which may have completely different policies, by entering into a whole lot of commitments immediately beforehand to make life difficult for them," Professor Twomey said.
Professor Twomey said it "comes down to the people".
"It's really a political matter as to how effective they are. So, it comes down to the people, particularly when they vote, in terms of deciding whether the government has behaved appropriately," she said.
Under the guidelines, governments are encouraged to avoid making major policy decisions that are likely to commit an incoming government.
However, this is not always possible, Professor Twomey said.
"There is an additional principle that says, if you have to make a major decision in that period, then you should consult the other side as well and try to reach an agreed position," she said.
The government does not require endorsement from the opposition during consultation.
"Ultimately, it's the government that makes decisions.
"But it's better to try and get some kind of agreement between both sides in order to progress matters that are significant and would have an impact on an incoming government," Professor Twomey said.
Labor is calling on the government to release the business case for the Marinus Link undersea power cable project, saying that withholding it is a breach of caretaker conventions.
Marinus would be a second electricity interconnector between Tasmania and Victoria.
A decision by the Tasmanian, Victorian and federal governments on whether to proceed with the project is due by the end of July.
A whole-of-state business case was provided to the government by Treasury in May.
The government promised to release the case 30 days before its final investment decision, however said the release has been delayed due to the early election.
Labor MLC Sarah Lovell said the premier needed to release the business case "as soon as possible".
"These are major financial decisions that will be made by the government.
"These are long-term decisions and under caretaker conventions one of the prerequisites is that decisions that are being made that will impact on future governments need [to have] all that information released to both the opposition and the government, and we're not seeing that from the premier," Ms Lovell said.
On Saturday, Liberal MP Felix Ellis said Labor had not been briefed yet "because no final decision has been made" on Marinus Link.
"We'll continue to work through the process. This is an important investment for our state, and we'll be updating the public as well as the opposition in due course," Mr Ellis said.
State Energy Minister Nick Duigan also said on Saturday that "all relevant information will be publicly released" only once a decision on the project is finalised.
Professor Twomey said the government did not have to be "undecided" before it consulted.
"It's fair enough for a government to take a view as to what it wants to do before engaging in consultation," she said.
"But if you're saying a decision means that's our final decision and we're not going to pay one iota of attention to anything you say, that would be rather pre-empting the consultation and making it pointless."
At the weekend, the government agreed to support a temporary $410 million increase to Bass Strait ferry operator TT-Line's borrowing capacity.
Treasurer Guy Barnett said the government received advice from Treasury on July 25 "recommending TT-Line's guaranteed borrowing limit be increased".
"[Opposition treasury spokesperson] Josh Willie was briefed on July 26, and the decision was announced the same day," Mr Barnett said.
Mr Willie said he received a call just over an hour before the decision was announced.
"Jeremy Rockliff's idea of 'consultation' is a last-minute phone call. That's not consultation — that's a courtesy call after the decision had already been made.
"When a major policy decision is being made during the caretaker period — especially one that would bind a future government — Labor must be consulted before the decision is made," Mr Willie said.
Professor Twomey said caretaker conventions did not outline specific requirements for adequate consultation, rather that was "a matter for the relevant parties to decide".
"Telling someone something an hour before you publicise it does seem to be perfunctory in terms of genuine consultation," she said.
"As a general principle, that would be something that you would think would not be adequate consultation.
"But, again, these are not binding rules. They're just conventions and it's a matter for the political parties to decide how they want to interpret them."