With a double dissolution election expected soon after the Opposition’s Budget Reply speech, the thoughts of those working for, and within, Federal Government turn towards the Caretaker Period. That is, the period that commences from the dissolution of the House of Representatives (or, as will be the case this time, the dissolution of both Houses of Parliament), until either:

  • the government of the day secures another term – until the election results are clear
  • the opposition succeeds – and it is sworn in as the new government.[1]

WHAT ARE CARETAKER CONVENTIONS?

The Caretaker Period is significant from the perspective of those working for and transacting with Government, as during this period Government will act, in accordance with a series of historically developed ‘Caretaker Conventions’ or behaviours.

At their heart, Caretaker Conventions are designed to ensure future governments are not fettered by the actions or decisions of their predecessors. The Caretaker Conventions also recognise the possibility of a change of government, and the fact that Ministers and their portfolio Departments and Agencies cannot— as a consequence of Parliament’s dissolution – be held to account through the Parliamentary process.[2]

The principal Caretaker Conventions, at all levels of Australian government, are that government avoid:

  • making major policy decisions likely to commit an incoming government
  • making significant appointments
  • entering or commencing major commercial transactions which have or may have legal effect (eg contracts, tenders).[3]

Other Caretaker Conventions are directed at protecting the apolitical nature of the public service and ensuring neither it, nor public resources, are used for electioneering purposes by either the government of the day or the Opposition.[4]

The Caretaker Conventions reflect, to some extent, changing times and social mores. Recent conventions (discussed below) address the uploading of information to Ministerial websites and the use of social media in the pre-election period. While these conventions are new, they draw heavily on earlier Caretaker Conventions on communications and continuation of government advertising.

All Caretaker Conventions are, it is argued, underpinned by two principles, fundamental to Westminster-style government.[5]

Those principles are:

  • preservation and encouragement of an impartial and professional public service
  • each political party, in the lead up to an election, should be given a ‘fair go’.

HISTORY OF THE CARETAKER CONVENTIONS

While Caretaker-like behaviours were seen in Australian political life in the immediate post-Second World War period,[6] the first documented reference to them is in the form of a letter between then Prime Minister Robert Menzies to his ministers regarding the 1951 double dissolution election.

The former Prime Minister writes:

I should also be glad if you would note that whilst continuing to take whatever action you deem necessary in connection with the ordinary administration of your Department, you should not make decisions on matters of policy or those of a contentious nature without first referring to myself.[7]

 The 1983 Constitutional Convention codified this position, stating with respect to Caretaker Period that:

No important new initiative is taken, and no appointment to high office is made, by a government in the period immediately prior to a general election for the House of Representatives unless it can be publicly justified as necessary in the national interest.

Since the late 1980s, the Cabinet Handbook has included a summary of the principal Caretaker Conventions described above. In more recent years, the summary guidance set out in the Cabinet Handbook has been supplemented by specific Guidance on Caretaker Conventions (Caretaker Guidance), issued by the Department of the Prime Minister and Cabinet. While the Caretaker Guidance is intended to flesh out the information provided in the Cabinet Handbook it remains, given the swathe of activities engaged in by government every day, necessarily high level. At the end of the day, compliance with the Caretaker Conventions rests with each Department’s or Agency’s Accountable Authority.[8]

SO WHAT CAN BE DONE DURING THE CARETAKER PERIOD?

While it is clear from the history of the Caretaker Conventions that the conventions are not intended to constrain the routine business of government, they are sometimes viewed – rightly or wrongly – as having a chilling effect on bureaucratic action. That:

Anxious to avoid criticism and controversy, public officials sometimes choose to constrain their administrative prerogatives, even in areas that are not subject to ministerial oversight or intervention under normal circumstances.[9]

The Caretaker Guidance indicates that Department and Agency specific issues arising during the Caretaker Period should be resolved, with reference to the Caretaker Conventions, through the application of judgement and common sense.[10] While it is the case that major policy decisions, major contracts or undertakings and significant appointments should – consistent with the Caretaker Conventions – be avoided, these activities only represent a fraction of the activities undertaken by government, in or outside of the Caretaker Period.

Less glamorous tasks concerned with existing policy implementation, program administration and organisational function play a sizeable role in the day to day work of most Departments or Agencies . Subject to certain limitations, these ‘housekeeping’ activities can, as described below, continue unabated throughout the Caretaker Period.

PROCUREMENT AND CONTRACTING

Departments and Agencies can, throughout the Caretaker Period, continue engage in routine procurement of goods or services.

‘Routine’ procurement or contracting would include acquisition of goods or services necessary to allow the relevant Department or Agency carry out its portfolio responsibilities or statutory functions.

To the extent that Departments or Agencies propose to release approach to market documentation such as Requests for Tender (RFTs) or Requests for Expressions of Interest (REOIs) during the Caretaker Period, they should ensure that their RFT or REOI includes an acknowledgement by tenderers of the relevant Department’s or Agency’s right to terminate the procurement at any time, for any reason.[11] This will give the procuring Department or Agency the ability to terminate in the event a new government is elected and does not wish to proceed with the proposed procurement.

In relation to contracts and other forms of binding legal arrangement, negotiating and entry into contracts is permitted provided that such contracts are not ‘significant’. Department and Agencies should consider deferring execution of contracts to the extent that these are:

  • high value
  • concerned with the implementation of government policy
  • politically contentious.[12]

Consistent with this, execution of contracting arrangements for the outsourcing of functions that could be, or which have historically been, provided by government, should also be avoided, as should transactions involving the sale or transfer of government assets.

Departments and Agencies should ensure that Contracts entered into during the Caretaker Period include the right ordinarily included in government contracts allowing the Department or Agency to terminate the for convenience in response to a change in government policy. The purpose of including this right is, once again, to ensure that future governments’ discretion is not fettered

LITIGATION AND DISPUTE RESOLUTION

The Commonwealth’s general obligation[13] to consider alternative dispute resolution (ADR) prior to initiating court proceedings and to continually assess its use throughout proceedings, is not displaced during the Caretaker Period. Office of Legal Services Coordination Guidance Note 6 (GN6) (prepared regarding the caretaker guidance issued by the Department of the Prime Minister and Cabinet in 2013) takes the view that ADR is, in general, ‘business as usual’ and should therefore continue during the Caretaker Period.[14] GN6 qualifies this statement, noting that decision making may, in some instances (eg in relation to sensitive settlements or the provision of complex or sensitive advice), be constrained.[15] Presumably, this is on the basis that decisions in these instances could be construed as a major policy commitment or as a significant undertaking.

GN6 also confirms that:

  • deferral of litigation may be appropriate where the matter involves a high level of legal risk or sensitivity, and where it is acceptable to non-Commonwealth parties
  • if deferral cannot, in the interests of justice, be accommodated, agencies are encouraged to find ways to progress this, being mindful to avoid creating major commitments for an incoming government.[16]

Where decisions involving major commitment – including significant settlements in either scale or sensitivity cannot be avoided, the relevant Minister should consult with the relevant Opposition spokesperson.[17]

In relation to court proceedings, the Commonwealth’s model litigant obligations are unaffected by Caretaker Period.[18] Proceedings to which the Commonwealth is a party may continue throughout the period, and would not generally be adjourned as a consequence of its commencement. Interlocutory steps , including discovery, may continue to be undertaken. GN6 notes that deferral or adjournment of proceedings should be considered, taking account of the circumstances of the matter, where these would commit an incoming government, consistent with the Caretaker Conventions.[19]

If deferral is not possible or appropriate, a Department or Agency should only take those steps which are essential to the further conduct of the litigation.

If action is required, and such action may give rise to a major commitment (in terms of scale or sensitivity), the relevant Minister should be advised to consult with the relevant Opposition spokesperson.[20]

The extent to which a Minister is involved, outside of Caretaker Period, in the conduct of litigation will also be relevant to the conduct of litigation during this period.[21]

If a Department or Agency’s practice is to instruct without reference to the Minister, instructions may continue to be issued without consultation. GN6 advises that, a Department or Agency should, nonetheless, consider whether, in view of the significance of the matter (and the possibility of tension between the government of the day and the Opposition on policy), consultation would be appropriate.[22]

If Ministerial clearance is usually sought prior to taking steps, GN6 notes that the “need for consultation should normally be raised with the caretaker Minister as part of the provision of advice”.[23]

Advice to the Minister on the policy implications regarding a decision (as opposed to factual information about the decision) should not be given except in exceptional circumstances.[24]

EMPLOYMENT OF STAFF

Employment processes for APS level and Executive level staff will not generally be affected by the Caretaker Period. Processes for Senior Executive Service staff may also continue, although the relevant Department or Agency should consider whether such appointments are ‘significant’ prior to making any offer of employment. Significant appointments requiring Ministerial approval should, to the extent possible, be deferred, in accordance with the Caretaker Conventions.[25] The Caretaker Guidance indicates that whether a proposed appointment is ‘significant’ should be determined with reference to the importance of the position and also whether the appointment is likely to be controversial. [26]

To the extent that a potentially significant appointment must be made by a Minister, the appointment should:

  • where permitted, be on an acting basis
  • be on a short-term basis to allow reconsideration following cessation of the Caretaker Period.[27]

Where neither of these options is available, then the appointment may be made following consultation between the relevant Minister and his or her Opposition equivalent.[28]

FREEDOM OF INFORMATION REQUESTS

Departments and Agencies can continue to process freedom of information requests made to them throughout the Caretaker Period. Requests from opposing political parties should continue to be addressed in the same manner as other requests.

While the Caretaker Guidance does not provide any indication as to how freedom of information requests lodged during the Caretaker Period in relation to matters involving, expenses or costs incurred by Parliamentarians should be managed, some Victorian local governments have adopted a policy, in relation to local government caretaker periods, of dealing with such requests, where possible, outside the applicable caretaker period but within the relevant statutory timeframe for response.[29] Such an approach has the practical advantage of avoiding issues such as whether a decision to release documents could, if those documents were sufficiently sensitive, constitute a major policy decision or commit a future government to a future course of action.

EXTERNAL COMMUNICATIONS

Consistent with both the Caretaker Guidance and the Australian Government Digital Transformation Office’s Guide on the Caretaker Conventions, Departments and Agencies can continue to issue external communications during the Caretaker Period, provided some additional steps are taken. Those steps are to address the risk of Departmental or Agency resources being used, or perceived to be used, to support a particular political party.[30]

Department or Agency Websites: Information can continue to be uploaded on to Department and Agency websites, provided it is:

  • a portfolio related announcement by a Minister (as opposed an election commitment)
  • purely factual material
  • related to existing policies or programs.[31]

Information placed on the website prior to the commencement of the Caretaker Period may be retained. The Caretaker Guidance suggests that Ministerial statements which are strongly critical of the Opposition should be removed.[32]

Links outside the .gov.au domain should be prefaced with exit/entry messages.[33]

Ministerial websites: information may be uploaded to a Ministerial websites maintained by a Department or Agency provided it is relating to existing policy or a matter of fact. Material relating to election commitments must not be added.[34]

The Caretaker Guidance suggests that agencies may wish to place a notice on the Ministerial website noting that election-related material may be found on the Government’s political party website or include a link to that site.[35]

Information or links placed on the Ministerial website prior to the commencement of the Caretaker Period may be retained.[36]

Ministerial media releases should be uploaded to the relevant Minister’s political party website, unless these concern administrative operations of high public interest/time sensitive nature (e.g. regarding public health or terrorism threat).[37]

The content of interactive components (e.g. comments, chat rooms, discussions threads) of websites within the .gov.au domain should be moderated throughout the Caretaker Period.[38] The Caretaker Guidance suggests including the following notification to users:

In the period preceding an election for the House of Representatives, the Australian Government assumes as caretaker role. It is important during that time that Australian Government resources are not used to communicate political material. As this website is hosted by [insert name of relevant Department], the site will be moderated from the time the House of Representatives is dissolved until after the election to ensure that political material is not placed on the site.[39]

Social media: the Caretaker Guidance indicates, as a general principle, Departments and Agencies may continue to use social media provided the practices described above relating to Ministerial websites are followed. The Caretaker Guidance notes that social media is, given its raison d’etre of engagement, inherently more difficult to control.[40] The Caretaker Guidance is pragmatic in its approach to this, noting it may not be possible to completely prevent political material from being posted or directed by the public to externally hosted Departmental or Agency accounts.[41]

Rather, Departments and Agencies should undertake a stocktake of their social media presence at the outset of the Caretaker Period and determine the most appropriate way of managing content in each case.[42] The Caretaker Guidance suggests that possible approaches include:

  • not posting content for the duration of the Caretaker Period
  • disabling, pre-moderating, or monitoring comments
  • uploading a notice that the Department or Agency is operating in a Caretaker Period and cannot respond to political content.[43]

These approaches are, as a practical matter, not exhaustive, and may need to be applied cumulatively.

CORRESPONDENCE MANAGEMENT

Ministerial correspondence can continue to be addressed throughout the Caretaker Period. The Caretaker Guidance notes that PM&C’s own internal practice is to minimise the amount of correspondence requiring ministerial signature and to utilise alternative signatories instead.[44]

BUSINESS AS USUAL? BUT I WAS HOPING FOR A REST!

While the Caretaker Period is, as described above, for the most part business as usual for government, there is inevitably some reduction in work flow across the Commonwealth. Harried public servants have traditionally used this time to take stock, and to gird themselves for the glassy-eyed days of new government. If you are one such public servant, grey-faced from toil, with a mountain of flex -or time off in lieu – before you, we recognise the information above may have limited appeal. We therefore, by way of conclusion, offer some alternative suggestions for productive use of each of the 56 or so days of Caretaker Period that lie before you.

Happy Caretaker Period one and all!