Guidance on what happens with non-finalised legislation appears rather vague and variable. The formulation used by the Commonwealth, New South Wales and Victoria is that if Bills have passed through both Houses they should be assented to by the Governor-General or Governor before the dissolution of the lower House. In respect of Bills passed by both Houses, but still awaiting Royal Assent after the dissolution, the Commonwealth Office of Parliamentary Counsel (OPC) has noted, ‘it would be improper for such Bills not to receive assent’ (Drafting Direction No. 4.10). The Commonwealth guidance acknowledges the constitutional uncertainty on the validity of Acts that receive assent in the period between dissolution and the opening of the new Parliament. To avoid such controversies, the OPC endeavours to ensure that all such Bills are assented to prior to dissolution of the House.

Queensland is quite specific that Bills introduced but not passed lapse as do Bills awaiting Royal Assent. South Australia and Western Australia have a slightly different practice in that all Bills not through both Houses automatically lapse when the lower House is dissolved. South Australia makes provision for legislation passed and assented to before the election to be proclaimed during the caretaker period. In Western Australia there is provision for Bills to be given assent during the caretaker period, notwithstanding the dissolution of the Legislative Assembly. Western Australia allows for Bills to be proclaimed when they come into operation during the caretaker period. The Tasmanian formula is that Bills passed by both Houses should be assented to by the Governor, but may lawfully receive assent later. Tasmania also has provision for legislation to be ‘proclaimed’ during the caretaker period, but with the caveat that the decision to make the proclamation should not be made once the caretaker period has begun. Proclamations that fall within this period (made from earlier decisions) will still have effect.

The ACT and the Northern Territory approaches are slightly different. The ACT allows for a minister to approve by gazettal the commencement of legislation that has been passed in the Legislative Assembly. In the Northern Territory, Bills which have been introduced to the Legislative Assembly but not passed, automatically lapse, although every effort should be made before prorogation to gain assent from the Administrator to those Bills already passed. There is a capacity, based on the advice of the Clerk of the Legislative Assembly, for a proposed law to be presented to the Administrator for consent during the caretaker period.

There is general agreement amongst all jurisdictions on the handling of subordinate legislation. Where there is no infringement of the caretaker conventions, it is considered acceptable for subordinate legislation to be approved by the Governor-in-Council, or equivalent, during the caretaker period. So, for instance, a Governor may approve minor amendments to traffic regulations if they are forwarded by the Transport Department during the caretaker period.