Victorian election ‘caretaker’ period – impact on planning and environment matters

Public sector workers in planning and environment are no exception. Successive governments have accepted that leading up to an election for the Legislative Assembly, the government adopts a ‘caretaker role’. This role continues until either the election results clearly show the government of the day has secured another term, or until the opposition is sworn in as the new government.

A Victorian State Election will be held on Saturday, 26 November 2022.

Public sector entities and employees must adhere to the Guidelines on the Caretaker Conventions (Guidelines) to protect the political neutrality of public sector agencies, preserve the autonomy of an incoming government and ensure that the State’s resources are used appropriately leading up to the election. A caretaker period precedes all State elections.

The upcoming caretaker period is expected to commence at 6 pm on Tuesday, 1 November 2022 (unless the Legislative Assembly is dissolved before that date), concluding when a clear result is known and implemented.

Caretaker Conventions

After an election is called and the Legislative Assembly 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’.

In summary, the Caretaker Conventions are directed to ensuring that during the caretaker period:

• the government avoids making or implementing major policy decisions that are likely to commit an incoming government;
• the government avoids making significant appointments;
• the government avoids entering major contracts or undertakings;
• intergovernmental negotiations and visits are appropriately managed; and
• the apolitical nature of the public sector is maintained.

These conventions aim to uphold the principles of responsible government that are integral to our Westminster system. Whilst not legally binding, they ‘have normative force given that they derive from constitutional practice and custom’. Additionally, public sector employees who do not adhere to the Caretaker Conventions may breach their legislative and common law employment obligations.

Impact on matters involving Government Ministers

Of particular relevance in the planning and environment context is how the Caretaker Conventions impact matters involving Ministers, specifically scenarios where the Minister for Planning (Minister) may be called upon to enter into agreements or otherwise make decisions which could bind future governments. This could include, but is not limited to, decisions relating to Environmental Effects Statement (EES) and actions stemming from decisions made by the Victorian Civil and Administrative Tribunal (VCAT).

Generally, most functions in the planning and environment context will carry on unaffected by the Caretaker Conventions, however it is prudent to be aware of the key guidelines. The table below outlines the main factors to be mindful of when navigating matters which may involve the Minister.

Guideline	Consideration
Avoid implementing major policy decisions which are likely to bind an incoming government	Whether a decision is “major” depends on: the significance of the decision, in terms of policy and resources; and whether the decision is a matter of contention between the government and Opposition in the election campaign.
Avoid entering major contracts or undertakings	Whether an undertaking or contract is “major” depends on: the value of the commitment; whether the commitment is a routine one or implements a contentious policy; and whether Ministerial approval or a public tender process is required. If it is not possible to defer the commitment until after the caretaker period, for legal or commercial reasons: The Minister can consult the relevant Opposition spokesperson. Agencies can explain the implications of the caretaker period to the contractor and ensure that contracts include clauses providing for termination in the event that an incoming government does not wish to proceed. In the case of tenders, agencies should communicate with potential tenderers about the implications of the caretaker period and the possibility that the tender might not be completed. RFT’s and REOI’s should include an acknowledgement by the tenderer of the Department or Agencies right to terminate the procurement at any time. Where contracts have been entered into prior to the caretaker period, further related agreements may be able to be entered into if: they are subsidiary to, and necessary for the effective implementation or operation of, that ‘head contract’, relating to matters already proceeding, and do not bind any incoming government in a manner not already contemplated in that ‘head contract’; or penalties may be incurred for breach if further agreements are not entered into.

Additional considerations

In relation to VCAT and other litigative scenarios involving the Minister, it is important to be mindful that the State’s model litigant obligations are not affected by the commencement of the Caretaker Periods. Similarly, during the Caretaker Period, a general obligation remains to consider alternative dispute resolution before initiating court proceedings.

The State and individual Ministers will continue to have a responsibility to conduct themselves with the highest professional standards during litigation. Proceedings to which the State is a party may continue throughout the Caretaker Period, and would not generally be adjourned as a consequence of its commencement and interlocutory steps may continue to be undertaken.

It may also be appropriate, in some circumstances, to defer litigation where the matter involves a high level of legal risk or sensitivity, and where it is acceptable to non-State parties. If deferral cannot, in the interests of justice, be accommodated, agencies are encouraged to find ways to progress this whilst seeking to avoid major commitments for an incoming government, such as a “significant settlement”.

Finally, Ministers may continue to request factual material necessary for the day-to-day working of government from public sector bodies during the Caretaker Period in the usual way. Ministers may not, however:

• request public sector bodies to develop new policy initiatives (or to provide further advice on policy initiatives the subject of previous advice). There might, however, be urgent domestic or international issues on which policy advice should clearly be provided to Ministers to allow responsible ongoing administration or to protect Victoria’s interests; or
• require administrative assistance or material if the predominant purpose for the assistance clearly relates to the election rather than the ongoing business of government. It is proper practice for such requirements to be declined and for the Minister to be advised of the reason. If the Minister confirms that he or she requires that assistance, the public sector body should consult with DPC.