By Michael Lucey, Rebekah Lines and Phoebe Powell – McCullough Robertson Lawyers
It is important for businesses and individuals working with government entities or in government sectors to understand the implications of the caretaker period in the lead-up to the forthcoming state and federal elections.
The caretaker period is activated at election time to ensure the neutrality of public institutions and a smooth transition between administrations in the event of a change of government.
Here is a brief overview on some key principles to effectively navigate this period.
When is the caretaker period?
In Queensland, sections 19B and 19C of the Constitution of Queensland 2001 (Qld) stipulate that the state general election is to be held on Saturday October 26, 2024.
The Governor is required to dissolve the Legislative Assembly and issue the writ 26 days prior, marking the commencement of the caretaker period. As a result, the caretaker period will begin on Tuesday October 1, 2024.
The end of the caretaker period is somewhat variable. If the government is re-elected, the caretaker period ceases when the result of the election is clear, typically when the Leader of the Opposition concedes, or when it is clear the government has a sufficient majority to return to government.
If there is a change in government, the caretaker period ends upon the incoming government being sworn in by the Governor.
What is the caretaker period?
The caretaker period is a period during which government is subject to a set of conventions. That is, they are not legally binding (this differs to the restrictions which apply to local government elections in Queensland), but they are accepted and generally followed closely. They are intended to ensure that the day-to-day business of government otherwise continues throughout the caretaker period.
The conventions have been developed to address the following realities of a general election:
- Possibility of government change, which could result in shifts in policy and priorities
- Dissolution of the Legislative Assembly, in which case the government is not held accountable for its decisions in the usual manner
- Prevention of binding action/decisions, the incumbent government’s action during this period should not bind or limit the incoming government’s freedom of action.
At a high level, the conventions are designed to ensure that the government, whilst in caretaker mode avoids:
- Major policy decisions that may bind an incoming government
- Any significant appointments
- Entering into major contracts or undertakings
- Any actions which could provide any appearance of partisanship. This could include a reference to party campaign slogans or by-lines, even if previously announced whilst in government.
The conventions fundamentally exist in the context of government departments, as they derive from the relationship between ministers and their departments.
However, generally, other government bodies, including GOCs, statutory bodies and statutory authorities, will also abide these conventions.
What caretaker is not
While the caretaker role imposes various interim restraints on the operation of government during the caretaker period, it is often not fully understood.
Caretaker does not:
- Apply to the government’s future policy announcements and promises made as part of the electioneering phase
- Commence until the writ dissolving the Legislative Assembly issues
- Impose any actionable legal restrictions
There is also common-sense flexibility to be exercise around some aspects of the caretaker conventions.
For example, established and non-controversial (bipartisan) policies might allow certain actions during the caretaker period that would otherwise be restricted, such as entering into specific contracts.
Implications during the caretaker period
The general impacts on government and businesses during the caretaker period are:
Major Decisions
Delay/policy: If your operations are affected by state approvals or regulatory bodies, these may be impacted by significant delay, particularly if there is a change of government. This can impact timelines for approvals or regulatory decisions, or changes in overall policy settings.
Major contracts and undertakings
Impact on businesses: Significant state contracts or funding arrangements may be postponed, and if not already executed/finalised, could be subject to risk. We recommend reviewing your contracts for flexibility and preparing for possible delays in project approvals or funding disbursements.
Campaigns, costings and hospitality
Neutrality: During this period, government should not apply resources or channels to any form of communication which might be deemed political campaigning or electioneering. It is important that any communications from government entities are conducted in a neutral and impartial manner.
There are important limitations which restrict government agencies from hosting (or allowing premises to be used to host) functions which could be categorised as electioneering party-political, or from providing costings or other policy advice to members of government other than for the purposes of the ongoing day-to-day operations of government during this period.
Understanding and pro-actively preparing for the caretaker period is crucial for government, businesses and individuals working with government.
Although relatively brief, the caretaker period effectively pauses major government decision-making. It is therefore important to plan ahead.
More information on mitigating steps during the caretaker period is available on the McCullough Robertson website.
Michael Lucey is a Partner at McCullough Robertson Lawyers. Rebekah Lines is a Senior Associate at the firm and Phoebe Powell is a Graduate.
