It’s that time again: taking care in Caretaker

It’s that time again in the cycle of Government when attention turns to ‘caretaker’ and what is expected of an impartial public service in the lead-up to an election.

Indeed, in case you missed it, we have an election coming up in NSW on Saturday 25 March 2023!

The caretaker period is due to commence at the beginning of the day on Friday 3 March 2023.

Department of Premier and Cabinet has published its customary Guidance Note: ‘Caretaker’ Conventions and Other Pre-election Practices – 2023 General State Election’, supported by Premiers Memorandum M2022-11 2023 State Election – Caretaker Conventions. All agencies are required to be aware of the relevant conventions and practices.

It’s good practice to plan ahead in your projects, recruitment and other activities for the caretaker conventions. The application of the conventions is not black and white, and requires the exercise of judgment and common sense. Understandably, decision-makers don’t appreciate being put in a position where they need to make those judgments. So, if there’s any chance an issue may not be appropriate for dealing with during the caretaker period, make sure it’s raised and planned for ahead of time, based on the best possible advice.

In this NSW Government Bulletin, we’ve provided a short refresher on the core principles of the caretaker conventions. Our aim is to highlight the issues you need to be aware of.

This article is no substitute for reading the DPC Guidance Note, which can be found here: M2022-11-Guidance-Note-Caretaker-Conventions-2023-State-Election.pdf. The DPC Guidance Note is clear and well-written, and covers other pre-election practices in addition to the caretaker conventions. It also provides practical guidance and a point of contact for resolving difficult issues that may arise in the application of the conventions.

What are the Caretaker conventions?

The Caretaker conventions are an important set of conventions. They promote impartiality in public administration in the run-up to an election. They seek to limit the use of power by an incumbent Government to scuttle the policy agenda taken to the electorate by an incoming government, by making decisions, commitments or appointments that bind the incoming government to a different approach.

The conventions commence on the day the Legislative Assembly is dissolved, and recognise that the Executive Government is no longer accountable to Parliament from that date.

The everyday business of government continues throughout the caretaker period, as it must.

However, significant new decisions, appointments or contractual commitments should be avoided.

Significant new decisions

The focus of this convention is on significant policy decisions that are likely to commit an incoming Government.

Significant appointments

This convention is not intended to affect day-to-day public sector recruitment or the independent merit recruitment process of the public service.

However, it could still be relevant to an otherwise ordinary recruitment, if there is a political contest over policy priorities in the area where recruitment is taking place. For example, recruiting to a new agency or initiative where the opposition policy is to abolish the agency or unwind the initiative.

The best place to start, as always, when determining if an appointment is ‘significant’ for the purposes of the caretaker conventions, is the DPC Guidance Note.

The DPC guidance note makes it clear there are various factors to consider when determining whether an appointment qualifies as ‘significant’. These include:

“such matters as the seniority, importance and profile of the position, the duration of the appointment, the manner in which the appointment is to be made (for example, whether the appointment is made by the Minister or the Governor) and also whether the proposed appointment is likely to be controversial.”

Significant contractual commitments

This convention focuses on major contracts or agreements (including inter-governmental agreements) – again, coming back to the purpose of the conventions, the focus in on agreements that bind the government to significant expenditure, projects or a particular policy direction.

It does not prevent routine or day-to-day contracts being entered into.

Determining whether contractual commitments should be made or not is a difficult balancing act. Advice should be sought from DPC in any circumstance where there is doubt.

It can be incredibly costly to taxpayers and the State to unwind contractual commitments, and often the costs are prohibitive. This could mean, in any given circumstance, the democratically elected incoming government is unable to implement an initiative it took to the electorate, either directly or because otherwise available funds are now allocated to the contract.

A NSW example that illustrates the issues that can arise relates to the Sydney Harbour Tunnel. There, the incoming government sought to challenge the contract because it was opposed to the tunnel project. The Opposition Liberal Party, led by Nick Greiner, campaigned against the Tunnel for the 1988 elections. It promised voters it would hold a public inquiry into the Tunnel if it was elected. It did not deliver on this promise, announcing in May 1988 that it had decided to go ahead with the Tunnel, saying it could not get out of the contract the previous government had made(A contract cancellation price of $100 million is cited in news reports of the time).

An impartial public service should remain mindful of the political context surrounding any proposed contract, no matter how far progressed the tender process may be.

When does the caretaker period end?

The caretaker period ends when:

  • if the current Government is returned – the election result is clear
  • if there is a change of Government – the new Premier is commissioned to form a Government.

How long this period is will depend on how clear and how close the election result is.

Pre-election period

Aside from the caretaker period, there are established practices and expectations of the public service that apply in the lead up to an election.

During the months leading up to an election, agencies should pay special attention to the need to ensure impartiality and maintain confidence in the apolitical nature of the public service and its ability to serve whichever government is elected.

There are established protocols that apply during this period and a legal requirement, in the case of the Government Advertising Act 2011. The DPC Guidance Note outlines what is expected of agencies.

The DPC Guidance note makes it clear there is no precisely defined time from which observance of pre-election practices is required.

However, for the purposes of the Guidance Note, the term ‘pre-election period’ means a period commencing after the Legislative Assembly ceases to sit for the last time before the election.

The Legislative Assembly, on 17 November 2022, resolved to adjourn until 12 noon on Tuesday 28 February 2023. So, there may be at least one further sitting day during 2023. This would make the ‘pre-election period’ as defined by the DPC Guidance Note, a very short period (a few days only).

Given this, our recommendation to agencies would be to heed the general message of the Guideline Note, and not place too much reliance on the last sitting day. To quote from the Guidance Note:

“It would … be prudent to assume that all of the pre-election practices should generally be observed in the months leading up to the election, and particularly [but not only] once the Legislative Assembly has ceased sitting for the last time before the election “.

In the media

First home buyers can opt this weekend to pay land tax after historic stamp duty laws pass

In a ‘significant win’ for the New South Wales Government, historic new laws will allow first home buyers to opt in to a land tax for properties under $1.5 million (10 November 2022). More…

Parliamentary inquiry into road safety

Road safety will be the focus of a new Parliamentary Inquiry as part of the NSW Government’s commitment to zero road deaths by 2050 (22 November 2022). More…

NSW government creates Reconstruction Authority for natural disaster management

The NSW government is having another crack at setting up a natural disaster authority – but this time the body will have some far-reaching powers that have some on edge (18 November 2022). More…

NSW Government reforms bring late-night economy back to life

The State’s night-time economy is thriving, with close to 200 live performance venues able to play later and for longer since the NSW Government’s 24-Hour Economy reforms commenced two years ago (21 November 2022). More…

Practice and Courts

Decisions Reserved – Supreme Court of NSW Court of Appeal

The Court of Appeal maintains a list of matters before the Court for which judgment is reserved (18 November 2022). Read more here.

AAT Bulletin Issue No.22/2022

The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals divisions (31 October 2022). Read more here.

Publications – articles, papers and reports

Regulatory and Compliance Priorities Statement 2022-23

In considering the most significant near-term threats, the EPA has identified six major risks it will prioritise for 2022-23. Read more here.

NSW Health Annual Report 2021-22

The Annual Report outlines the functions and activities of NSW Health over the 2021-22 financial year. Read the report here.

Weekly Economic Report 21 November 2022

The NSW Treasury Corporation outlines the latest financial and economic trends in its weekly economic report. Read the report here.

Weekly Economic Report 14 November 2022

The NSW Treasury Corporation outlines the latest financial and economic trends in its weekly economic report. Read the report here.

Anti-Discrimination NSW Annual Report 2021-22

Anti-Discrimination NSW outlines the agency’s goals and activities for 2021-2022 in its annual report. Read the report here.

NSW Health Annual Report 2021-22

This annual report describes the performance and operation of NSW Health during 2021–22. Read the report here.

NSW Treasury Annual Report 2021-22

This volume reports on the operations and performance of the NSW Treasury, together with the consolidated financial statements for the period 1 July 2021 to 30 June 2022. Read the report here.

Cases

FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367

Administrative Law – public access to government information – request for information – balancing public interest considerations – prejudice to the supply of confidential information that facilitates the effective exercise of an agency’s functions – whether Tribunal at first instance misinterpreted the provisions of the Surveillance Devices Act and Surveillance Devices Regulations. Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public access) Act 2009 (NSW); Surveillance Devices Act 2007 (NSW); Surveillance Devices Regulation 2014 (NSW).

Guimaraes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 372

ADMINISTRATIVE LAW – Government Information (Public Access Act) 2009 – effect of disclosure of information under Government Information (Public Access Act) 2009 – for information to be revealed it must be publicly disclosed – effect of s 63 of Administrative Decisions Act 1997. Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009.

Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373

ADMINISTRATIVE LAW – administrative review – Government information – onus of proof – scope of GIPA application - reasonable searches – confidential hearing and evidence – scope of application – whether documents held – public interest test – balancing the public interest. Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (NSW); Government Information (Public Access) Act 2009 (NSW); Guardianship Act 1987 (NSW); Health Records and Information Privacy Act 2002 (NSW); Ombudsman Act 1974 (NSW); Privacy and Personal Information Protection Act 1998 (NSW); State Records Act 1998 (NSW); Work Health and Safety Act 2011 (Cth).

Molloy v Secretary, Department of Education [2022] NSWIRComm 1100

PUBLIC SECTOR DISCIPLINARY APPEAL – casual school teacher – sustained allegations of misconduct – name placed the list of people not to be employed by the Department of Education (the NTBE list) – whether placement of name on NTBE list constitutes dismissal – whether placement of name on NTBE list is an appealable decision. Industrial Relations Act 1996; Teaching Service Act 1980.

Ross v Lane [2022] NSWCA 235

ADMINISTRATIVE LAW – jurisdictional facts – applicability of State Environment Planning Policy 65 – whether application of SEPP 65 was a matter for the Court or the consent authority to determine. PLANNING LAW – planning approval – development application – applicability of State Environment Planning Policy 65 – Design Quality of Residential Apartment Development (“SEPP 65”) – Council approved development application for modifications and extensions to the first respondent’s apartment including construction of additional storey – substantially affected views from one floor of appellant’s apartment in neighbouring block –whether development approval invalid – whether SEPP 65 applicable – whether SEPP 65 complied with – whether development application involved the “substantial redevelopment or the substantial refurbishment of an existing building”. Crimes (Administration of Sentences) Act 1999 (NSW), s 135; Interpretation Act 1987 (NSW), s 33; Land and Environment Court Act 1979 (NSW) ss 25B, 58; Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 4.9, 4.11-4.18, 4.59 ; Environmental Planning and Assessment Regulation 2000 (NSW), cll 50, 54; Sch 1, Pt 1, cl 2.

Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102

APPEALS – from exercise of discretion – failure to exercise discretion. APPEALS – leave to appeal – principles governing. APPEALS – leave to appeal – principles governing – public importance. EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – jurisdiction. EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers. EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – termination – unfair dismissal. Industrial Relations Act 1996 (NSW) ss 84, 89, 175, 188; Workplace Injury Management Workers and Workers Compensation Act 1998 (NSW) s 105; Anti-Discrimination Act 1977 (NSW) s 49D.

Mourched v Chief Commissioner of State Revenue [2022] NSWCATAP 362

REVENUE LAW – land tax – proper construction of the exemption in s 10(1)(u) of the Land Tax Management Act 1956 – proper construction of whether or not land ‘is used solely for the provision of an approved education and care service’ proper construction of whether or not the land ‘is the place where the children are educated or cared for by the service’. Civil and Administrative Tribunal Act 2013 (NSW) ; Interpretation Act 1987 (NSW); Land Tax Management Act 1956 (NSW).

Mansfield v Secretary, Department of Communities and Justice [2022] NSWCATAD 367

ADMINISTRATIVE LAW – summary dismissal – freedom of information – government information public access – no reasonable excuse for delay – Government Information (Public Access) Act 2009 (NSW). Administrative Decisions Review Act (NSW) 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009.

Elliott v Commissioner of Police, NSW Police Force [2022] NSWCATAD 365

LICENSING – firearms – licence revocation – safe storage – negligence – theft – public interest. Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW); Firearms Regulation 2017 (NSW).

Community Resource Network v NSW Department of Justice [2022] NSWCATAD 363

ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – out of scope – Government Information (Public Access) Act 2009 (NSW). Civil and Administrative Tribunal Act (NSW) 2013; Evidence Act (NSW) 1995; Government Information (Public Access) Act 2009.

ENS v Commissioner for Fair Trading [2022] NSWCATAD 364

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – administrative review of conduct of the agency. Administrative Decisions Review Act 1997 (NSW) – s 55; Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 64; Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 15, 16, 53, 55; Strata Schemes Management Act 2015 (NSW) – s 218.

Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 362

ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations. Civil and Administrative Tribunal Act (NSW) 2013; Evidence Act (NSW) 1995; Government Information (Public Access) Act 2009.

Appian CCC Pty Ltd v Burwood Council [2022] NSWLEC 1619

DEVELOPMENT APPLICATION: centre-based child care centre – effect of proposed development on heritage conservation area – whether plan of management will be complied with – whether acoustic performance is acceptable. Burwood Local Environmental Plan 2012, cll 5.10, 6.1; Education and Care Services National Regulation 2011, r 108; Environmental Planning and Assessment Act 1979, ss 4.17, 8.7; State Environmental Planning Policy (Educational facilities and Child Care Facilities) 2017, cl 23; State Environmental Planning Policy No 55-Remediation of Land, cl 7; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26.

ENS v Commissioner for Fair Trading [2022] NSWCATAD 356

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – administrative review of a reviewable decision – administrative review of conduct of the agency. Administrative Decisions Review Act 1997 (NSW) – s 55; Civil and Administrative Tribunal Act 2013 (NSW) – ss 50, 64; Government Information (Public Access) Act 2009 (NSW); Privacy and Personal Information Protection Act 1998 (NSW) – ss 4, 9, 10, 13, 16, 18, 20, 21, 25, 55; Strata Schemes Management Act 2015(NSW) – s 218; Strata Schemes Management Regulation 2016 (NSW) – rr 58, 59.

Poore v Commissioner of Police, NSW Police Force [2022] NSWIRComm 1079

EMPLOYMENT AND INDUSTRIAL LAW – Public Sector – Police – application for Review pursuant to s 181D of Police Act 1990 (NSW) – practice and procedure – failure of applicant to comply with directions – motice of motion – dismissal of proceedings for failure to prosecute the proceedings with due despatch – failure of applicant to provide reasons for non-compliance – ex parte communication with the Commission. Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61(3), 91(1); Industrial Relations Act 1996 (NSW). ss 4, 89(5), 90A(1), 90A(2),166(1); Legal Profession Uniform Law (NSW), s 11; Police Act 1990 (NSW), ss 181D, 181E, 181G; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 22.5, 22.6, 22.7; Uniform Civil Procedure Rules 2005 (NSW), rr 7.1(6), 10.1(1), 12.7.

Legislation

Health Legislation (Miscellaneous) Amendment Act (No 2) 2022 No 41 (2022-667) – published LW 11 November 2022

Property Tax (First Home Buyer Choice) Act 2022 No 60 (2022-682) – published LW 11 November 2022

Regulations and other miscellaneous instruments Biodiversity Conservation Amendment (Bee Keeping and Grazing) Regulation 2022 (2022-684) – published LW 18 November 2022

Constitution (Executive Council Processes) Amendment (Prescribed Period) Regulation 2022 (2022-685) – published LW 18 November 2022

Electricity Infrastructure Investment Amendment (Non-Contestable Revenue Determinations) Regulation 2022 (2022-686) – published LW 18 November 2022

Electricity Infrastructure Investment Amendment (Renewable Energy Sources) Regulation 2022 (2022-687) – published LW 18 November 2022

Fisheries Management Legislation Amendment (Licences) Regulation 2022 (2022-688) – published LW 18 November 2022

Liquor Amendment (Special Events Extended Trading) Regulation 2022 (2022-683) – published LW 16 November 2022

Property and Stock Agents (Qualifications) Amendment Order 2022 (2022-690) – published LW 18 November 2022

Rail Safety (Adoption of National Law) Amendment (Oral Fluid Analysis) Regulation 2022 (2022-691) – published LW 18 November 2022

Road Transport Legislation Amendment Regulation 2022 (2022-692) – published LW 18 November 2022

State Authorities Non-contributory Superannuation Amendment (LiveBetter Services Limited) Order 2022 (2022-693) – published LW 18 November 2022

State Authorities Superannuation Amendment (LiveBetter Services Limited) Order 2022 (2022-694) – published LW 18 November 2022

Superannuation Amendment (LiveBetter Services Limited) Order 2022 (2022-695) – published LW 18 November 2022

Water Sharing Plan for the Macquarie Bogan Unregulated River Water Sources Amendment Order 2022 (2022-689) – published LW 18 November 2022

Health Practitioner Regulation (Adoption of National Law) Regulation 2022 (2022-668) – published LW 11 November 2022

Order regarding volunteers taking part in emergency operations (2022-681) – published LW 11 November 2022 at 10:20am

Uniform Civil Procedure (Amendment No 99) Rule 2022 (2022-669) – published LW 11 November 2022

Work Health and Safety (Mines and Petroleum Sites) Amendment Regulation (No 2) 2022 (2022-670) – published LW 11 November 2022

Environmental Planning Instruments Kempsey Local Environmental Plan 2013 (Map Amendment No 2) (2022-696) – published LW 18 November 2022

Muswellbrook Local Environmental Plan 2009 (Map Amendment No 1) (2022-697) – published LW 18 November 2022

Parramatta Local Environmental Plan 2011 (Map Amendment No 6) (2022-698) – published LW 18 November 2022

Tweed Local Environmental Plan 2014 (Amendment No 37) (2022-699) – published LW 18 November 2022

Willoughby Local Environmental Plan 2012 (Amendment No 31) (2022-700) – published LW 18 November 2022

Byron Local Environmental Plan 2014 (Map Amendment No 3) (2022-671) – published LW 11 November 2022

Camden Local Environmental Plan 2010 (Amendment No 51) (2022-672) – published LW 11 November 2022

Cumberland Local Environmental Plan 2021 (Map Amendment No 2) (2022-673) – published LW November 2022

Liverpool Local Environmental Plan 2008 (Amendment No 91) (2022-674) – published LW 11 November 2022

Queanbeyan-Palerang Regional Local Environmental Plan 2022 (Amendment No 2) (2022-675) – published LW 11 November 2022

Shoalhaven Local Environmental Plan 2014 (Map Amendment No 8) (2022-676) – published LW 11 November 2022

Sydney Local Environmental Plan (Green Square Town Centre – Stage 2) 2013 (Amendment No 4) (2022-677) – published LW 11 November 2022

Sydney Local Environmental Plan 2012 (Amendment No 82) (2022-678) – published LW 11 November 2022

Sydney Local Environmental Plan 2012 (Amendment No 83) (2022-679) – published LW 11 November 2022

Tamworth Regional Local Environmental Plan 2010 (Amendment No 24) (2022-680) – published LW 11 November 2022

Bills introduced

Government Aboriginal Land Rights Amendment Bill 2022

Environmental Planning and Assessment Amendment (Private Native Forestry) Bill 2022

Government Sector Audit and Other Legislation Amendment Bill 2022

Integrity Legislation Amendment Bill 2022

NSW Reconstruction Authority Bill 2022

Point to Point Transport (Taxis and Hire Vehicles) Amendment Bill 2022

Privacy and Personal Information Protection Amendment Bill 2022

Non-Government Forestry Amendment (Timber Harvesting Safety Zones) Bill 2022

Health Services Amendment (Nurse-to-Patient and Midwife-to-Patient Ratios) Bill 2022

Crimes Amendment (Custody of Knives) Bill 2022 Forestry Amendment (Koala Habitats) Bill 2022

Independent Commission Against Corruption Amendment (Validation) Bill 2022

Prevention of Cruelty to Animals Amendment (Independent Office of Animal Welfare) Bill 2022

Bills revised following amendment in Committee Companion Animals Amendment (Puppy Farms) Bill 2022

Crimes Legislation Amendment (Coercive Control) Bill 2022

Fisheries Management Amendment (Enforcement Powers) Bill 2022

Government Sector Audit and Other Legislation Amendment Bill 2022

Government Sector Employment Amendment Bill 2022

Integrity Legislation Amendment Bill 2022

Motor Accident Injuries Amendment Bill 2022

NSW Reconstruction Authority Bill 2022

Point to Point Transport (Taxis and Hire Vehicles) Amendment Bill 2022

Animal Research Amendment (Right to Release) Bill 2022

Building and Other Fair Trading Legislation Amendment Bill 2022

Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022

Electronic Conveyancing Enforcement Bill 2022

Government Sector Employment Amendment Bill 2022

Port of Newcastle (Extinguishment of Liability) Bill 2022

Prevention of Cruelty to Animals Amendment (Prohibitions for Convicted Persons) Bill 2022

Treasury and Energy Legislation Amendment Bill 2022

Bills passed by both Houses of Parliament

Aboriginal Land Rights Amendment Bill 2022

Crimes Amendment (Protection of Criminal Defence Lawyers) Bill 2022

Crimes Legislation Amendment (Coercive Control) Bill 2022

District Court Amendment Bill 2022

Fisheries Management Amendment (Enforcement Powers) Bill 2022

Government Sector Audit and Other Legislation Amendment Bill 2022

Government Sector Employment Amendment Bill 2022

Integrity Legislation Amendment Bill 2022

Medicines, Poisons and Therapeutic Goods Bill 2022

Motor Accident Injuries Amendment Bill 2022

NSW Reconstruction Authority Bill 2022

Point to Point Transport (Taxis and Hire Vehicles) Amendment Bill 2022

Prevention of Cruelty to Animals Amendment (Prohibitions for Convicted Persons) Bill 2022

Privacy and Personal Information Protection Amendment Bill 2022

Animal Research Amendment (Right to Release) Bill 2022

Building and Other Fair Trading Legislation Amendment Bill 2022

Children and Young Persons (Care and Protection) Amendment (Family is Culture) Bill 2022

Electronic Conveyancing Enforcement Bill 2022

Port of Newcastle (Extinguishment of Liability) Bill 2022

Property Tax (First Home Buyer Choice) Bill 2022

Treasury and Energy Legislation Amendment Bill 2022

Bills assented to Building and Other Fair Trading Legislation Amendment Act 2022 No 61 – Assented to 14 November 2022

Electronic Conveyancing Enforcement Act 2022 No 62 – Assented to 14 November 2022

Treasury and Energy Legislation Amendment Act 2022 No 63 – Assented to 14 November 2022