A federal election is due to be held this year.

There is considerable speculation the election may be a “double dissolution” election, where the House of Representatives and the Senate are dissolved, and all Senators’ seats are contested. This would involve Parliament being dissolved in May and the election being held in July.

During the period of the election campaign, “caretaker conventions” apply. They are designed to preserve the freedom of action of the incoming government, and to avoid controversies about politicisation of the public service and Commonwealth agencies during the campaign.

This Alert sets out the impact of the “caretaker conventions” on decision-making, and announcements of decisions, about Defence projects and programs.

Need to Know

After an election is announced, “caretaker conventions” dictate that Government

  • makes no major policy decisions
  • makes no significant appointments
  • does not enter into major contracts or undertakings.

What is a “major policy decision” and a “major contract” is a matter for judgment.

The caretaker conventions cease to apply when the Government is returned or a new Ministry is appointed.

Defence will need to take into account, in its planning for major projects and programs, the implications of the caretaker conventions for decision-making and ensure that appropriate allowances are made in project and program schedules

What are the caretaker conventions?

The caretaker conventions are that Government, during the “caretaker period”

  • makes no major policy decisions
  • makes no significant appointments and
  • does not enter into major contracts or undertakings.

Major policy decisions

Whether a decision on a particular project or program is regarded as a “major policy decision” is a matter for judgment.

Considerations in making that judgement include the resource implications of the decision, the flow-on effects of the decision, including the extent to which the decision “locks in” or commits government – or precludes particular options - and the extent to which the decision is or relates to a matter of contention between political parties or candidates in the election.

For example

  • given the potential implications of major building programs for the Naval Shipbuilding and Repair sector, the economies of different States / Territories and the extent to which naval shipbuilding and submarine construction have already become the subject of party political comments, key decisions on these programs would be regarded as major policy decisions for the purposes of the conventions
  • a decision that may have a substantial impact in a particular electorate (such as infrastructure development) may be regarded as a major policy decision for the purposes of the conventions, especially if the decision is politically controversial.

A political party’s election policies are not covered by the caretaker conventions.

Major contracts or undertakings

Whether a particular contact is regarded as a “major contract” is also a matter for judgment. Contracts for principal roles in the major naval projects or programs – for example, shipbuilder, platform system designer, combat system integrator - and associated major infrastructure agreements – may be regarded as major contracts for the purposes of the conventions.

We consider that the convention precludes, not only formal entry into contract, but also the approval by Government of the outcome of negotiations as to the terms of contracts, before final signature.

Government corporate bodies?

A corporate Commonwealth agency is not expressly covered by the caretaker conventions.

However, actions that Ministers or Departments may take in relation to a corporate Commonwealth agency are covered.

It is good practice for a corporate Commonwealth agency to observe the spirit of the conventions, especially in relation to decisions and actions that could lead to a perception that the agency was acting in a partisan way.

When the conventions apply

The conventions are applied from the time when the House of Representatives is dissolved by the Governor General (or, in the case of a double dissolution, both the House and the Senate are dissolved). If the election results in the Government being returned, it ends when that is clear. If the election results in the Government losing office, it ends when the new Ministry is appointed.

Business and usual and pre-dissolution decisions

The conventions do not prevent “business as usual”, as they only apply to “major” decisions and contracts.

Nor do they prevent an announcement of a decision that was made, or entry into a contract that was approved, before the Parliament was dissolved – although “major” decisions should preferably be announced before the Parliament is dissolved to avoid interference with the campaign.

Implications

Defence will need to take into account, in its planning for major projects, programs and procurement activities, the implications of the caretaker conventions for decision-making and ensure that appropriate allowances are made in project and program schedules.