There’s a general Federal Election coming up in May 2022. In the lead up to the Federal Election, the Commonwealth caretaker conventions will apply.
What are these conventions?
Come a general election, the apolitical nature of the APS finds expression in the caretaker conventions—which apply during the election period (also called the caretaker period). The conventions balance the need for government to continue to function during this period with the need to ensure that the incoming government has the policy flexibility to implement its programme and is not hamstrung by the former government’s decisions.
Under the conventions, during the caretaker period the incumbent government does not:
- make major decisions that are likely to commit the incoming government
- make significant appointments
- enter into major contracts or undertakings.
However, routine and administrative operations of departments, agencies and Ministers continue as usual.
Apart from their application through the APS Values, the caretaker conventions are not legally binding. The APS Values in the Public Service Act 1999 confirm that the Australian Public Service is apolitical. It does not support any particular candidate or party, including in a Federal Election. This is the case for the APS as a whole and for individual APS employees. The APS Commissioner’s Directions elaborate on this—individuals in the APS have a personal duty to serve:
… the Government of the day with high quality professional support, irrespective of which political party is in power and of personal political beliefs (emphasis added)
The APS Values apply directly to APS employees. However, they also apply to individuals engaged by agencies of the Commonwealth outside the APS, including expressly or by implication under the individuals’ terms of employment or engagement.
When does the caretaker period kick in?
Assuming the Government intends to hold a normal (House of Representatives and half-Senate) election, the latest day on which it can be held is 21 May 2022. The election must be called at least 33 days before that (18 April 2022). Whilst the Prime Minister makes the announcement and decides the date, the election is actually called by the Governor-General issuing the writs for the election.
The caretaker conventions start to apply on the issue of the writs, not the announcement by the Prime Minister – recall Prime Minister Gillard announced the September 2013 election in January.
The conventions stop applying when:
- the election result makes it clear that the current government is returned to office; or
- if the current government loses—a new Ministry is appointed.
So, what’s a major decision?
Whether a decision is “major” is a matter of judgement. Among the things to be considered are the significance of the decision in terms of resources and policy, whether the decision will restrict the incoming government’s ability to act — either because of a legal or contractual commitment, or as a matter of practical reality — and whether the decision is a matter of contention between the incumbent government and opposition.
There may well be cases where government has to make a major decision urgently, such as in relation to significant international commitments. In those cases, the relevant minister consults the minister’s opposite number in the major opposition party to ensure that the opposition is aware of the matter.
Decisions by the Treasurer on foreign investment applications are generally seen as giving rise to caretaker concerns. To avoid the challenge of dealing with the opposition, such decisions are extended beyond the caretaker period. Commercial deals need to have regard to this risk. FIRB nevertheless continues to assess proposals during the caretaker period.
Of course, the conventions don’t apply to campaign promises that parties announce during the campaign. They are announcements, not decisions.
And what’s a significant appointment?
Again, it’s a matter of judgment. The importance of the post is clearly a significant consideration, as is the tenure of the appointee. For example, an appointment of a federal judge (who holds office till reaching age 70) may be significant. Senior board positions on independent Commonwealth agencies would also be regarded as significant, especially if there are restrictions on the government’s ability to remove them from office.
And again, whether the proposed appointment is likely to be controversial is relevant.
In those cases where urgent appointments must be made for the proper functioning of a body, the best option would be to make an acting appointment or a short-term appointment.
And a major contract or undertaking?
Once again, it’s a matter of judgement. The dollar value of the commitment is clearly relevant. The procurement of a major capital asset would be covered by the conventions, as would support arrangements (especially financial support) for significant infrastructure, especially if the infrastructure proposal itself is politically contentious or implements or entrenches a policy, programme or administrative structure, or if it requires ministerial approval. With the expansion of the reach of the Security of Critical Infrastructure legislation, the range of proposals giving rise to major matter consideration has increased significantly.
Routine commitment in the ordinary course of administration would not be covered by the conventions.
The Commonwealth’s usual practice of including “termination for convenience” clauses in procurement contracts is specifically to ensure that future governments can unwind commitments if policy changes. Even if there are no “termination for convenience” clauses, the general law allows the Commonwealth to unwind a commitment for sound governmental policy reasons.
Legislation
Bills in progress
On service of the writs for a general election the House of Representatives is prorogued (dissolved). All proceedings end and all business (including Bills on the Notice Paper but not passed by the House) lapses. Those Bills would have to be reintroduced into the newly-constituted House.
Bills passed but not assented to
Bills that have passed both Houses should be presented for assent by the Governor-General before the dissolution of the House of Representatives. The Department of Prime Minister and Cabinet’s guidance on caretaker conventions notes that questions have been raised about the constitutional validity of Acts where the Bill was assented to during the caretaker period.
Subordinate legislation
The Executive Council (Governor-General) will approve regulations where there is no breach of the caretaker conventions.
Subordinate legislation made by Ministers or under delegation by officials should also be assessed according to the caretaker conventions; they should only be made if no breach of the conventions would be involved.
Government activity
During the caretaker period there are a number of areas where government activity is impacted. These include:
- major procurement decisions are not taken;
- APS and ministerial positions are not to be used to support a political party. Costings of political promises can be undertaken;
- Agency premises are not to be used for political party purposes; and
- Government advertising campaigns (always a source of election controversy) are reviewed. Bipartisan agreement is sought for campaigns recommended to continue eg COVID information.
