1. GOVERNMENT CONTRACTING – MANAGING RISKS Presented by Colin Hackett – Crown Solicitor’s Office 11 April 2007 Crown Solicitor’s Office

2. Estoppel • Example of estoppel • Metropolitan Transport Authority v Waverley Transit Pty Ltd (1991) 1 VR 181.

3. Legislation against corruption • Independent Commission Against Corruption Act 1988 • South Australia has no equivalent legislation • What is corrupt conduct?

4. ICAC investigations • NSW ICAC investigations • Government Board in NSW • Warrants executed

5. Conflict of Interest (South Australia) “6ZA – Duty of employees with respect to Conflict of Interest (1) If a public sector employee has a pecuniary or other personal interest that conflicts or may conflict with the employee’s duties, the employee must disclose in writing to the relevant authority the nature of the interest and the conflict or potential conflict.”

6. Decisions High Court of Australia • Hot Holdings Pty Ltd and Creasy (2002) HCA51 • Two Officers of the Minister’s Department “involvement”

7. Decisions • Full Court of the Supreme Court of WesternAustralia Findings • Appeal to the High Court of Australia • High Court findings

8. Probity & Conflict of Interest • Auditor-General (SA) • Procurement Process

9. Implied Government Guarantee Pitfalls and Risks of the Process

10. Moral Correctness • Justice Selway QC • Implied guarantee • Ash Wednesday 1980 • Heathfield Dump • Findings

11. InSkill SA • “Tenders will only be accepted from tenderers registered with InSkill SA and any offers received that do not include details of registration with InSkill SA will be regarded as non-conforming tenders.”

12. Negotiation Risks • Seddon • Law of Tenders • Pre-award contract

13. Subject to Contract • Seddon • Drift into a contract

14. Implied Government Guarantee • Justice Selway QC • Risks to Government • Application of the implied guarantee