In anticipation of the 2019 Federal election being called at any moment, those working for the Australian Government are preparing for the Caretaker Period. Successive governments have accepted that leading to an election for the House of Representatives, the government adopts a ‘caretaker role’.^[1]This role continues until either the election results clearly show that the government of the day has secured another term, or until the opposition is sworn in as the new government.^[2]

Caretaker conventions

After an election is called and the House of Representatives is dissolved, and until the results of the election are announced, the government is effectively governing without parliamentary oversight.^[3]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.^[4]

These conventions aim to uphold the principles of responsible government that are integral to our Westminster system.^[5] 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’.

What to do during the Caretaker period

At 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. ^[6]

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, if it does not wish to proceed with.

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

• high value
• concerned with the implementation of government policy
• politically contentious.^[7]

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.^[8] Similarly, during the Caretaker Period, a general obligation^[9] remains to consider alternative dispute resolution (ADR) before initiating court proceedings.^[10]

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.^[11]

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.^[12] 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.^[13] If neither option is available, then the appointment may be made following consultation between the relevant Minister and his or her Opposition equivalent.^[14]

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. ^[15] Not only does this require that those working in the Public Service maintain the Values and Code of their employment, 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.