With the next federal election due to occur before 17 May 2025, if you haven’t already, it is time to start preparing for the upcoming Caretaker Period.

Overview

Usually, simultaneous elections of both the House of Representatives and half-Senate occur.

The latest possible date for a simultaneous election is Saturday 17 May 2025. This means that there is a chance that a federal election could be called at any time.

The Caretaker Period begins upon the dissolution of the parliament in the lead up to an election.

Under the caretaker convention, the Australian Government is required to refrain from making major or significant decisions, but this does not mean everything must grind to a halt.

Our team is here to help guide you through the Caretaker Period to ensure a smooth transition.

Caretaker Conventions

After an election is called and the parliament is dissolved, and until the results of the election are announced, the government is effectively governing without parliamentary oversight.

During this period, the actions of the government reflect a series of historically developed behaviours, known as the ‘Caretaker Conventions’.

The Caretaker Conventions establish that the government must:

• avoid making major policy decisions
• avoid making significant appointments
• not enter into major commercial transactions, such as contracts or tenders, which may have legal effect.

These conventions aim to ensure that incoming governments are not limited or constrained in implementing its new policies and vision.

Their purpose is to ensure that throughout the election process the public service maintains impartiality, and that each political party should be given a ‘fair go’.

Each election cycle, the Department of Prime Minister and Cabinet publishes comprehensive guidance on the caretaker conventions which can be accessed via the Prime Minister and Cabinet website.

We anticipate that the guidance on the caretaker conventions will be updated soon.

What to do during the Caretaker period

It may appear at a first glance, the Caretaker Conventions constrain public servants and their work, however this is not the intention.

The conventions aim to maintain ‘business as usual’, so the routine of departments and agencies should not be greatly interrupted leading up to an election.

Although the Caretaker Guidelines indicate that major policy decisions, significant appointments, and major contracts should be avoided, these activities only represent a small portion of the activities undertaken by government. Other, less glamorous tasks concerned with existing policy implementation, program administration and organisation function, that play an integral role in the day to day work of most departments and agencies, will continue.

What is considered as major or significant, and therefore to be avoided during the Caretaker Period, is a matter of judgment and common sense. Decisions that are of high importance or value or are likely to be perceived as controversial are more likely to be considered ‘major or significant’.

Agencies should consider appointing one or two senior officials to act as points of contact for Caretaker related enquiries.

Procurement and contracting

During the Caretaker Period, departments and agencies may continue to engage in routine procurement of goods or services. Such ‘routine’ activity will include acquisition of goods or services necessary to allow the department or agency to carry out its portfolio responsibilities or statutory functions.

Departments or agencies proposing to release approach to market documentation such as Requests for Tender (RFTs) or Requests for Expressions of Interest (REOIs) should always endeavour to include an acknowledgement by tenderers of the right of the relevant departments or agency right to terminate the procurement at any time, for any reason. This is especially important during the Caretaker Period, as this provides a newly elected government with the option to bow out of procurements with which it does not wish to proceed.

Negotiation and entry into contracts and other forms of binding legal arrangement is permitted, provided these are not ‘major’. Agencies should consider deferring execution of contracts if they are:

• high value
• concerned with the implementation of government policy
• politically contentious.

Departments and agencies should always ensure that contracts entered into during the Caretaker Period include the right to terminate for convenience in response to a change in government policy.

Litigation and dispute resolution

The Commonwealth has a responsibility to conduct itself with the highest professional standards during litigation. This onus is not affected by the commencement of the Caretaker Periods. Similarly, during the Caretaker Period, a general obligation remains to consider alternative dispute resolution (ADR) before initiating court proceedings.

Office of Legal Services Coordination Guidance Note 6 (GN6) outlines specific obligations for litigation and dispute resolution during the Caretaker Period. Consistent with the conventions, the primary concerns raised in GN6 are to avoid major commitments for an incoming government and to avoid, where possible, settlements that are significant in either scale or sensitivity.

Employment of staff

During the Caretaker Period, employment processes for the Australian Public Service (APS) and Executive level staff should not generally be affected. ‘Significant’ appointments requiring Ministerial approval should, if possible, be deferred in accordance with the Caretaker Conventions. Such significance should be determined with reference to the importance of the position and also whether the appointment is likely to be controversial.

When a potentially significant appointment must be made during the Caretaker Period, the appointment should:

• if permitted, be on an acting basis, or otherwise
• be on a short-term basis.

Both options allow reconsideration by the incoming government following cessation of the Caretaker Period. If neither option is available, then the appointment may be made following consultation between the relevant Minister and their Opposition equivalent.

Avoiding APS involvement in election activities

Leading into an election, the Caretaker Conventions seek to cement the APS value of impartiality and to uphold the apolitical nature of the APS. Not only does this require that those working in the Public Service maintain the APS Values and APS Code of Conduct but it also places the following obligations on their departments and agencies:

• avoid using Commonwealth resources for party political purposes
• maintain and monitor department and agency websites and social media with purely factual material related to existing policies or programs
• limit ministerial correspondence to day-to-day business to avoid policy development or the promotion of an election campaign.

It is also important for government officials to exercise judgment when speaking at public functions, including declining invitations to speak or controversial issues and to avoid explaining or promoting Government policies.

Updating Agency and Ministerial Websites

Agencies should only add the following material to their websites during the caretaker period:

• portfolio-related announcements that reflect business as usual practices (for example, a public health announcement)
• purely factual material
• information on existing policies or programs, unless they contain negative references to the Opposition or other political statements.

Agencies should consider updating their website to reflect that the site will be monitored to ensure that political material is not placed on the website.

Ministers should only add material relating to existing policy or factual material to their websites and avoid making political statements or putting election/how-to-vote material on their websites. Ministers may also choose to place notices on the ministerial websites which advise that the website is not being administered or funded by the relevant agency during the Caretaker Period.

Key takeaways

Putting the necessary preparations into place early will assist you in navigating the Caretaker Period smoothly.

Be aware of the requirements and consider any further guidance released by the Department of Prime Minister and Cabinet to ensure you uphold the Caretaker Conventions.