Guidance Note 9 – Dispute resolution during caretaker period
Legal Services Directions
The key topics covered in this guidance note include:
- what the caretaker conventions are and what they mean for Commonwealth agencies
- the use of alternative dispute resolution during the caretaker period, and
- guidance on engaging in litigation during the caretaker period.
1. This guidance note is to be read in conjunction with the Department of the Prime Minister and Cabinet (PM&C) Guidance on Caretaker Conventions.1
2. In the first instance, agencies should address caretaker questions to their portfolio department’s internal point of contact for caretaker matters. The portfolio caretaker contacts may be able to respond to the question or, if required, can seek advice from PM&C.
3. If further advice is required regarding alternative dispute resolution (ADR) or handling litigation during the caretaker period, agencies should contact the Office of Legal Services Coordination (OLSC) at olsc@ag.gov.au.
The caretaker conventions
4. The ‘caretaker period’ refers to the period leading up to a Federal election. It begins with the dissolution of the House of Representatives and continues until the election result is clear or, if there is a change of government, until the new government is appointed.
5. During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed. Successive governments have followed a series of practices known as the ‘caretaker conventions’, which aim to ensure that their actions do not bind an incoming government and limit its freedom of action.
6. The caretaker conventions are not legally binding, and their application requires judgement and common sense.
7. In summary, the conventions are that the government avoids:
- making major policy decisions that are likely to commit an incoming government
- making significant appointments
- entering major contracts or undertakings
8. The conventions apply to the making of decisions, not to their announcement. Accordingly, the conventions are not infringed where decisions made before the dissolution of the House are announced during the caretaker period.
9. The caretaker conventions may affect the way ADR and litigation involving the Commonwealth should be handled. They do not displace the Commonwealth’s obligations to the courts or tribunals, or the obligations set out in the Legal Services Directions 2025 (Directions). During the caretaker period, the government must still act to protect the interests of the Commonwealth, deal with claims promptly, not cause unnecessary delay in litigation or dispute resolution, and keep the costs of litigation to a minimum.2
10. Responsibility for observing the caretaker conventions ultimately rests with the agency head. The following principles should be considered before making decisions regarding the conduct of ADR and litigation during the caretaker period.
ADR during the caretaker period
11. Commonwealth agencies are required to consider ADR prior to initiating court proceedings and to continually assess the use of ADR during those proceedings.3
12. The vast majority of ADR would be expected to continue during caretaker periods.
13. The caretaker conventions may restrain making major decisions, such as sensitive settlements, or the provision of complex or sensitive advice in relation to ADR. Seeking to defer ADR may be appropriate where the matter involves a high level of legal risk or sensitivity, and where it is acceptable to non-Commonwealth parties.
14. In circumstances where delay would not be in the interests of justice, agencies should seek ways to progress ADR, being mindful to avoid creating major commitments for an incoming government. Where decisions involving major commitments are unavoidable, such as the settlement of large or particularly sensitive matters, agencies should consider whether the relevant Minister should be advised to consult with the relevant Opposition spokesperson.
Litigation during the caretaker period
15. During litigation, the Commonwealth has a responsibility to conduct itself in accordance with the highest professional standards.4 This responsibility is not affected by the commencement of the caretaker period.
16. Court timeframes, including the filing of submissions, evidence, and the scheduling of appearances are not generally adjourned due to the caretaker period. The deferral or adjournment of steps in legal proceedings that would commit an incoming government on a major policy matter should be carefully considered.
17. In some cases, it may be appropriate to seek an adjournment from the court or tribunal or seek consent from the other party to delay settlement negotiations until the result of the election is known. If deferral is not possible or appropriate in the circumstances, the agency should take only those steps that are essential to the further conduct of the litigation.
- For example, if the Commonwealth’s right to appeal needs to be preserved, a protective appeal should be lodged.
18. In cases where action that would commit an incoming government is essential, the agency should consider whether the relevant Minister should be advised to consult with the relevant Opposition spokesperson. Consultation only needs to be considered where a proposed action would involve a significant commitment in terms of scale or sensitivity.
- For example, a matter may involve an issue of significant policy disagreement between the government and the Opposition.
19. If, in the usual course of administration, the agency would need to seek clearance from the Minister before filing documents or issuing other instructions, then, if relevant, the need for consultation with the Opposition should be raised with the Minister as part of this process.
20. Where consultation occurs, it should be clear that information is only shared for the purpose of consulting with the Opposition in accordance with the caretaker conventions. It should also be made clear that legal professional privilege is not waived and the information cannot be further disclosed. Legal advice may need to be sought to ensure this.
21. The caretaker conventions restrict agencies from providing Ministers with policy advice. Factual information about litigation involving the Commonwealth can be provided on request or volunteered in certain circumstances.
- For example, where the Minister is a party to litigation, the Minister may be provided with information about a decision handed down and a copy of the judgment.
22. Advice on the policy implications of a decision should not be given unless exceptional circumstances might require an urgent response. In this situation, agencies should consult with the Department of the Prime Minister and Cabinet.
23. If legal proceedings commenced or foreshadowed during the caretaker period may be the subject of an application for Ministerial assistance under the Parliamentary Business Resources Regulations 2017, the Attorney-General’s Department should be notified as soon as possible.
Where can I get further help?
24. If you have any questions about dispute resolution during the caretaker period, please contact OLSC at olsc@ag.gov.au.
Office of Legal Services Coordination
Phone: 02 6141 3642
E-mail: olsc@ag.gov.au
Issued: March 2026
This guidance material is of a general nature only and does not convey or contain legal advice.
Endnotes
- In 2024 the guidance could be accessed on the PM&C website at Guidance on Caretaker Conventions, December 2024.
- Part 5, Division 2 of the Legal Services Directions 2025.
- See subsection 41(e) and section 43 of the Directions.
- Note 2, section 41 of the Directions.