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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Freedom of Information Amendment
(Open Government--Disclosure of
Contracts) Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Freedom of Information Act 1989 No 5 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Freedom of Information Amendment
(Open Government--Disclosure of
Contracts) Bill 2006
Act No , 2006
An Act to amend the Freedom of Information Act 1989 so as to require publication
of government contracts; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Freedom of Information Amendment (Open Government--Disclosure of
Clause 1 Contracts) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Freedom of Information (Open Government--
Disclosure of Contracts) Act 2006.
2 Commencement
This Act commences on the day occurring 28 days after the date of
assent.
3 Amendment of Freedom of Information Act 1989 No 5
The Freedom of Information Act 1989 is amended as set out in
Schedule 1.
Page 2
Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 15A
Insert after section 15:
15A Disclosure of government contracts with the private sector
(1) Within 60 days after a government contract becomes effective,
the provisions of this section in relation to the contract must be
complied with.
(2) The following particulars of a class 1 contract must be published:
(a) the name and business address of the contractor,
(b) particulars of any related body corporate (within the
meaning of the Corporations Act 2001 of the
Commonwealth) in respect of the contractor, or any other
private sector entity in which the contractor has an interest,
that will be involved in carrying out any of the contractor's
obligations under the contract or will receive a benefit
under the contract,
(c) the date on which the contract became effective and the
duration of the contract,
(d) particulars of the project to be undertaken, the goods or
services to be provided or the real property to be leased or
transferred under the contract,
(e) the estimated amount payable to the contractor under the
contract,
(f) a description of any provisions under which the amount
payable to the contractor may be varied,
(g) a description of any provisions with respect to the
renegotiation of the contract,
(h) in the case of a contract arising from a tendering process,
the method of tendering and a summary of the criteria
against which the various tenders were assessed,
(i) a description of any provisions under which it is agreed
that the contractor is to receive payment for providing
operational or maintenance services.
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Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Schedule 1 Amendments
(3) In addition to the particulars referred to in subsection (2), the
following particulars of a class 2 contract must be published:
(a) particulars of future transfers of significant assets to the
State at zero, or nominal, cost to the State, including the
date of their proposed transfer,
(b) particulars of future transfers of significant assets to the
contractor, including the date of their proposed transfer,
(c) the results of any cost-benefit analysis of the contract
conducted by the agency,
(d) the components and quantum of the public sector
comparator if used,
(e) where relevant, a summary of information used in the
contractor's full base case financial model (for example,
the pricing formula for tolls or usage charges),
(f) where relevant, particulars of how risk, during the
construction and operational phases of a contract to
undertake a specific project (such as construction,
infrastructure or property development), is to be
apportioned between the parties, quantified (where
practicable) in net present-value terms and specifying the
major assumptions involved,
(g) particulars as to any significant guarantees or undertakings
between the parties, including any guarantees or
undertakings with respect to loan agreements entered into
or proposed to be entered into,
(h) particulars of any other key elements of the contract.
(4) In addition to the particulars referred to in subsections (2) and (3),
a copy of a class 3 contract must be published. If the agency
concerned does not publish the contract, or publishes only some
of the provisions of the contract, because of subsection (9), the
agency is to publish:
(a) the reasons why the contract or those provisions have not
been published, and
(b) a statement as to whether it is intended that the contract or
those provisions will be published at a later date and, if so,
when it is likely that they will be published, and
(c) where some but not all of the provisions of the contract
have been published, a general description of the types of
provisions that have not been published.
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Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Amendments Schedule 1
(5) If a material variation is made to a contract that would affect the
particulars that are required to be published under this section in
relation to the contract, the published particulars are to be
amended to reflect the variation within 60 days after the variation
becomes effective.
(6) If a material variation is made to a contract that is required to be
published under subsection (4), a copy of the variation or the
varied provisions is to be published within 60 days after the
variation becomes effective.
(7) The information required to be published under this section in
relation to a contract:
(a) is to be published on the internet website called
https//tenders.nsw.gov.au (or such other internet website
authorised by the Premier for the purposes of this section)
and may be published in such other manner as the
responsible Minister for the agency may approve, and
(b) is to remain on that internet website:
(i) for at least 30 days, or
(ii) until the project to which the contract relates is
complete, the goods and services concerned have
been provided under the contract, the term of the
lease has expired or the real property has been
transferred,
whichever is the greater period.
(8) If a person other than a member of staff of the agency (including,
for example, a party to a government contract) disagrees with the
way in which an agency has interpreted its obligations under this
section, the agency is to obtain the opinion of the Chairperson of
the State Contracts Control Board in relation to the matter.
(9) None of the provisions of this section that require the publication
of a copy of a contract or information in relation to a contract
require the publication of:
(a) the commercial-in-confidence provisions of a contract, or
(b) details of any unsuccessful tender, or
(c) any matter that could reasonably be expected to affect
public safety or security, or
(d) a copy of a contract, a provision of a contract or any other
information in relation to a contract that is of such a nature
that its inclusion in a document would cause the document
to be an exempt document.
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Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Schedule 1 Amendments
(10) This section does not apply to or in respect of any of the
following:
(a) a government contract entered into by or on behalf of an
agency before the commencement of this section,
(b) a government contract entered into by the Department of
State and Regional Development that involves the
provision of industry support.
(11) Information is required to be published under this section by an
agency only to the extent that the agency has the information or
it is reasonably practical for it to obtain the information.
(12) The regulations may apply all or any of the provisions of this
section to a local authority and may modify those provisions in
their application to a local authority.
(13) For the purposes of this section, a government contract becomes
effective:
(a) except as provided by paragraph (b), when it is entered into
by or on behalf of the agency concerned, or
(b) if the contract contains a provision to the effect that one or
more conditions are to be met before the obligations of the
parties under the contract are enforceable--when the
condition or conditions have been met.
(14) In this section:
agency does not include a State owned corporation (or its
subsidiaries) as defined in the State Owned Corporations Act
1989 or a local authority.
class 1 contract means any government contract under which:
(a) the total estimated value of the project, or
(b) the total estimated value of the goods or services over the
term of the contract, or
(c) the value of the real property transferred, or
(d) the rent for the term of the lease,
is likely to be $150,000 or more.
class 2 contract means a class 1 contract in respect of which any
of the following paragraphs applies:
(a) there has not been a tender process, the proposed contract
has not been made publicly available and the terms and
conditions of the contract have been negotiated directly
with the contractor,
Page 6
Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Amendments Schedule 1
(b) the proposed contract (whether or not made publicly
available) has been the subject of a tendering process and
the terms and conditions of the contract have been
substantially negotiated with the successful tenderer,
(c) the obligations of one or more parties under the contract to
maintain or operate infrastructure or assets could continue
for 10 years or more,
(d) the contract involves a privately financed project as
defined by guidelines published by the Treasury (as in
force from time to time),
(e) the contract involves a transfer of a significant asset of the
agency concerned to another party to the contract in
exchange for the transfer of an asset to the agency.
class 3 contract means a class 2 contract under which:
(a) the total estimated value of the project, or
(b) the total estimated value of the goods or services over the
term of the contract, or
(c) the value of the real property transferred, or
(d) the rent for the term of the lease,
is likely to be $5,000,000 or more.
commercial-in-confidence provisions, in relation to a
government contract, means any provisions of the contract that
disclose:
(a) the contractor's financing arrangements, or
(b) the contractor's cost structure or profit margins, or
(c) the contractor's full base case financial model, or
(d) any intellectual property in which the contractor has an
interest, or
(e) any matter whose disclosure would place the contractor at
a substantial commercial disadvantage in relation to other
contractors or potential contractors, whether at present or
in the future.
contractor, in relation to a government contract entered into by
an agency, means the person with whom the agency has entered
into the contract.
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Freedom of Information Amendment (Open Government--Disclosure of
Contracts) Bill 2006
Schedule 1 Amendments
government contract means:
(a) a contract between an agency and a private sector entity
under which the agency or private sector entity agrees:
(i) to undertake a specific project (such as a
construction, infrastructure or property
development project), or
(ii) to provide specific goods or services (such as
information technology services), or
(iii) to transfer real property to the other party to the
contract,
(b) a lease of real property where the parties to the lease are an
agency and a private sector entity,
but does not include a contract of employment.
private sector entity means any person or body (whether
incorporated or unincorporated) who or which is not an agency.
[2] Schedule 1 Exempt documents
Insert after clause 7 (1) (a):
(a1) if it contains matter the disclosure of which would disclose
the commercial-in-confidence provisions of a government
contract (within the meaning of section 15A), or
[3] Schedule 1, clause 7 (1) (b) (i)
Insert "or commercial-in-confidence provisions" after "trade secrets".
[4] Schedule 1, clause 7 (1) (c) (i)
Insert ", commercial-in-confidence provisions" after "trade secrets".
Page 8
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