Written by: Donna Kirk – Pro Leaders Academy Pty Ltd

 

Australia is a representative democracy. In this political system, eligible people vote for candidates to carry out the business of governing on their behalf. The democratic election process requires that parliament be dissolved, and the people vote for their choice of government.  This takes time; however, the business of government must continue to operate albeit under different conventions.

This is referred to as the ‘caretaker period’. This begins 26days before polling day with the end of the period dependent on the outcome of the election.

If the government is returned, the caretaker period ends when the result becomes clear. That is:

  • when the Leader of the Opposition concedes defeat, or
  • when it is clear the government has won sufficient seats to form government.

If the government changes following an election, the caretaker period ends when the incoming government is sworn in.

A caretaker period is important before a general election because with the dissolution of the Legislative Assembly, the Executive cannot be held accountable for its decisions in the normal manner, and every general election carries the possibility of a change of government.

Decision making during the caretaker period.

The following is an excerpt from the Department of the Premier & Cabinet Guidelines on the Caretaker Conventions. From a project or procurement perspective Point #4 highlights why, activity tends to reduce during this period.

  1. Caretaker provisions explicitly recognise that after the dissolution of parliament, the business of government must continue and that “ordinary matters of administration” must be addressed. Provisions allow for the normal operations of all government departments. However, the caretaker conventions impose some restrictions on the conduct of the caretaker government. The conventions broadly include the following:
  1. The Government will cease taking major policy decisions except on urgent matters and then only after formal consultation with the Opposition. The conventions apply to the making of decisions, not to their announcement. Accordingly, the conventions are not infringed if decisions made before dissolution are announced during the caretaker period. However, when possible, decisions would normally be announced ahead of dissolution.
  2. The Government will cease making major appointments of public officials but may make acting or short-term appointments.
  3. The Government will avoid entering major contracts or undertakings during the caretaker period. If it is not possible to defer the commitment until after the caretaker period for legal, commercial or other reasons, a minister could consult the Opposition, or agencies could deal with the contractor and ensure that contracts include clauses providing for termination in the event of an incoming government not wishing to proceed. Similar provisions cover tendering.
  4. The Government ordinarily seeks to defer such major international negotiations or adopts observer status until the end of the caretaker period.
  5. The Australian Public Service adopts a neutral stance while continuing to advise the Government. There are several cases, notably the pricing of Opposition election promises, in which the APS investigates and reports for the benefit of the electorate at large.

Noting this, business must continue and if it is not possible to defer a commitment until after the caretaker period, for legal, commercial, or other reasons, there are several options including:

  • ministerial consultation with the relevant Opposition spokesperson regarding the commitment
  • explanation of the implications of the election to the contractor (consideration could be given to including a clause in contracts providing for termination in the event of an incoming government not wishing to proceed)
  • in the case of tenders, agencies should warn potential tenderers about the implications of the election and the possibility that the tender might not be completed.

As a government employee required to continue to deliver services, it is important to apply the Probity lens to any project or procurement decisions being made during this time – ask ‘will it pass the pub test?’

Footnote:

Interestingly there have only ever been two exceptional situations to the caretaker government process:

  • 1901- being the very first Australian federal government, with the Prime Minister Edmund Barton sworn in 1 January, the first elections for the new Parliament of Australia weren’t held until 30 March 1901. Due to the need to quickly establish administrative processes and make important appointments, Bartons government were not as inhibited by the caretaker conventions as later governments have been.
  • 1914 The Outbreak of WWI – the incumbent government had called for an election in June for September and was going into caretaker mode. However, Britain declared war against Germany in August, and Australia went onto a war footing. The caretaker conventions had to be relaxed because of the state of war. This was done with the support of all major parties.

 

NOTE: The content of this article is intended to provide a general guide to the subject matter, and specialist advice should be sought about your specific circumstances. The content must not be relied upon as legal, technical, financial or other professional advice.