04 Feb 2021

WA Government Caretaker Period commenced on 3 February 2021: the implications for agencies

By Donna Charlesworth and Zoe Timms

WA State Government is entering its Caretaker Period, triggering a requirement for the government and public sector to comply with the caretaker conventions.

With the WA State Premier Mark McGowan recently announcing that WA State election writs will be issued on 3 February 2021, the State's public sector must now make grappling with the caretaker conventions throughout the Caretaker Period a priority, as those conventions will be a factor in almost everything they do during the Caretaker Period.

Caretaker Period

For the upcoming 2021 WA State election, the Caretaker Period:

  • commences on Wednesday 3 February 2021; and
  • ceases when either the election result is clear or until the new government is sworn in.

Caretaker Conventions

During the Caretaker Period, the government is expected to conduct itself within a series of rules known as caretaker conventions. Their purpose is to act as a check on executive power in circumstances where there is no parliament to which it can be held accountable. Although the day to day business of government continues, the caretaker conventions seek to ensure that decisions are not made which would bind an incoming government and limit its freedom of action.

Those conventions include the rules and norms set out the Government of Western Australia's Ministerial Code of Conduct and the Australian Government Department of Prime Minister and Cabinet's Guidance on caretaker conventions.

The caretaker conventions require government, Ministers and public servants to observe the following guidelines:

  • not to make significant appointments;
  • not to make major policy decisions which would be likely to commit an incoming government (including the implementation of new policies or approval of major projects within government programs);
  • not to commit to major contracts or undertakings;
  • that Members of Parliament do not undertake air travel at public expense for electioneering purposes;
  • that electioneering is not undertaken through government advertising, publications or electronic communications; and
  • that public servants not use public resources or their positions to support party political activities.

Ministers are required to adhere to the Premier's guidelines during the Caretaker Period and apply their good judgment and common sense to decisions made across this period.

No significant appointments

Factors to consider when determining whether an appointment is 'significant' is a matter of judgment. However, consideration should be given to the importance of the position and the extent to which it may be a matter of disagreement between the major parties.

If such an appointment is necessary for the function of an agency, the best practice is to utilise acting or short-term appointments, or to consult with the Opposition.

No new major policies, contracts or undertakings

Factors to consider when determining whether a contract or undertaking is "major" include the level of monetary commitment, the nature of the undertaking and the likelihood of bipartisan support.

Guidance from Prime Minister and Cabinet suggests that it is possible to make major policy announcements during the Caretaker Period provided that such announcements do not detract from substantive campaign issues.

Managing the use of Ministerial position and public resources for partisan purposes

While the normal business of government must continue throughout the Caretaker Period, the Caretaker Convention requires that Ministers should not use their position to act in a partisan manner. This involves ensuring that:

  • Ministers should not request Departments to develop new policies,
  • only necessary or routine correspondence is signed by Ministers;
  • public servants and Departmental officers must ensure they do not use their position to act in a partisan manner during the Caretaker Period.

Consequences for conduct undertaken during the Caretaker Period

The caretaker conventions are not legally binding nor hard and fast rules – their application in individual cases requires judgement and common sense.

However, the myriad of decisions that are made by government and public servants during the Caretaker Period will be subject to the spotlight, not only of opposition MPs and their staff, but also the media and election commentators. Non-compliance with the caretaker conventions can attract criticism, unwanted media scrutiny, and serious financial or reputative costs.

Ministers, Departments and public sector agencies should be careful in their decision-making in order to assume compliance with the caretaker conventions as the State Government election approaches in 2021. In light of the significant challenges which continue to be posed as a result of the COVID-19 pandemic, additional caution should be exercised.

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.