Given the forthcoming Queensland state general election, it is important, not only for individuals within government, but also for businesses and stakeholders working with government or in government sectors, to understand the implications of the caretaker period.
The caretaker period takes effect come election time to ensure the neutrality of public institutions and the 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 26 October 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 1 October 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; and
- 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; and
- 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; nor
- 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.
Mitigating steps during the caretaker period
There are a number of steps which can be taken to minimise disruption during the caretaker period:
1. Can the activity be postponed?
Consider delaying any non-essential announcements or decisions until the outcome of the election is known, and the new policy environment is better understood. If the government is re-elected, there may be minimal disruption. However, if there is a change in government, it is important to adjust plans to minimise potential impacts on any incoming government’s decision-making or policy positions.
2. Interim appointments
If roles must be filled during caretaker, subject to any statutory limitations which may apply, consideration should be given to acting appointments only to avoid the need for any longer term or substantive appointments.
3. Escalation/Bipartisan approval
The purpose of the caretaker period is to preserve the underlying environment, ensuring that no actions be taken during this time which would unfairly influence or prejudice a potential change of government. Therefore, if a major decision must be made, consideration should be given to escalation via Director-General, or a similar senior official, who can then consult with the relevant minister. The minister may seek input from the corresponding shadow minister to ascertain whether a bipartisan position can be reached.
4. Bipartisan involvement
If there is to be a launch, opening or announcement of a government or government-backed initiative during the caretaker period, consideration should be given to inviting both the existing government minister and shadow minister or candidate.
5. Contractual carve-outs
If contracts (and particularly significant contracts) need to be entered into during the caretaker period, then consideration should be given to an extended due diligence phase, or break/termination clauses in the event of a change of government and the new government not wishing to continue.
6. Is the activity essential for day-to-day operations?
Consideration should be given to the question – is this activity part of the day to day operation of government? If yes, then it is likely it will not be restricted by caretaker in any substantive manner.
7. Is Ministerial involvement required?
If decisions involve ministerial input or involvement, generally a Director-General or a similar senior official should represent the government to ensure impartiality.
Key takeaways
Understanding and pro-actively preparing for the caretaker period is crucial for both government, businesses and individuals working with government, alike.
Although relatively brief, the caretaker period effectively pauses major government decision-making. It is therefore important to plan ahead.
Should you have any questions around the caretaker period, we welcome you to contact our specialist Government team who can assist you with compliance strategies around the relevant caretaker conventions, or discuss how to effectively manage any potential impacts and mitigate risks during this transitional phase.