CAPSL Seminar 13 April 2003 - Melbourne

On 13 April CAPSL held  sessions on Outsourcing Government Services; Ethics; and Public/ Private Partnerships. Brief summaries of the papers follow.

OUTSOURCING GOVERNMENT SERVICES 

Rebecca French, Solicitor, Victorian Government Solicitor's Office.

Rebecca spoke of the problems inherent in issues such as the jurisdiction of the Victorian and Commonwealth of Australia's Ombudsman legislation in respect of  access to contractors acting for government agencies under outsourcing contracts. These problems are not simply whether jurisdiction extends to a contractor but also whether the contractor's action is relevantly "administrative" , an issue which may be difficult to determine as much Government action may also have a "commercial " flavour.

Bill Bale, Solicitor General, Tasmania

Bill outlined a number of basic concerns and issues in outsourcing as government moves from being the provider of services to being a procurer/regulator. The 6 main points of concern to him were:-

 That general government policy, the special position of the State in dealing with third parties and the interests of the community at large be reflected in the drafting and negotiation as public interest remains a dominant consideration;

 ensuring the basics of legal status, empowerment and procedural matters are aptly attended to;  

 ensuring that the contracts have strong incentives to ensure continuity of service deliver;  

 the need for clarity and certainty in price and cost clauses;  

 maintenance by the contractor of an appropriate level of privacy and confidentiality in relation to the information which comes into the contractor’s possession in connection with the contract 

 Ensuring the State has an appropriate interest in any intellectual property or tangible assets that may be generated by the contract, preferably by retaining ownership but where that is not possible having apt licensing of rights. 

Sian Smith, Fire Service NZ

Sian illustrated problems, which can arise by giving an outline of her experiences in two outsourcing contracts involving the NZ Fire Service.One she described as a success, the other a failure. The failure highlighted a number of problems that can be encountered when attempting to outsource government services. The special status of the NZ Fire Service as a purely service delivery organisation was not appreciated in the context of an outsourcing proposal that was based on splitting policy and service delivery.

Sian outlined the successful process used to select a law firm to provide
external legal services for the NZ Fire Service to use.

ETHICS FOR PUBLIC SECTOR LAWYERS 

Justice Brad Selway, Supreme Court South Australia

Justice Selway spoke of ethics issues for public sector lawyers being the same as faced by lawyers generally but noted particular problem issues relate to:- 

·       identifying who is the client,

·       identifying who has authority to give instructions,

·       determining in a particular case whether the authority to instruct has been exceeded,

·       determining whether your duties include a pro-active duty to inquire; and

·       determining what to do in cases of high level illegality.

On the point of identifying who can give instructions, he noted how as, in some jurisdictions, the role of the Attorney General differs and has changed, identifying who can instruct can vary.  He also touched upon the model litigant principle and how it too may be perceived as changing.

Patrick Duffy, Member, NSW Law Society's Government Solicitors Committee 

The paper adopts a number of general topics, then sets out propositions, discussion, illustrations and comments on each. Topics include Fiduciary Status of the public sector legal officer, "Who is the Client", "Standard and Independence of Advice", "Duty of Confidentiality", "Model Litigant", "Overriding responsibility to the Courts", "Conflict of Interest" , Involvement of Legal Officers in giving policy advice" and Selection and Dealing with External Legal Service Providers".

The NSW Law Society's Government Solicitors Committee has called for comments on the draft. The paper can be accessed at http://www.lawsociety.com.au/uploads/filelibrary/10502078491342_0.3215083855668845.pdf

 PRIVATE/PUBLIC SECTOR PARTNERSHIPS

Tim Cave, Project Manager, Victorian Department of Justice 

Tim is with the Victorian Department of Justice and was project manager for recent and very successful Victorian County Court project. It related to private sector provision of a accommodation and other services to the Department of Justice for Melbourne's new $140 million County Court Complex. The complex is a multi storey building housing initially Courts with possible expansion of the number of Courts in the future.  

Tim outlined the factors involved in the homework to ensure that the project was delivered on time, to plan and within budget. Whilst Government continues to provide services relating to the actual administration of justice, such as judges, case list management, registry, court reporting and transcription, the private provider delivers the building, court rooms, as well as non-core services on a value for money basis, so helping to reduce waiting times for court appearances, provide better security for the judiciary and other court users as well as reducing court costs through the use of new technology. 

Greg Ross, Consultant, Eakin McCaffery Cox, Solicitors, Sydney 

My paper noted that outsourcing is not new and outlined a number of the problems and pitfalls which have been experienced in a number of Commonwealth Jurisdictions. I emphasised the need for careful thinking through the services to be provided and the need for facilitating legislation to avoid particular projects becoming frustrated when 'overlooked' or 'hiding' legislation raises its head. 

Michael Antrum, Legal Counsel for the University of Western Sydney, and President of the Lawyers Reform Association.

His talk addressed the following issues: 

· Such ventures are rarely “partnerships”; 

· The importance of identifying the public sector’s traditional weak spots in any agreement including IP protection, commercialisation models, and termination options; 

· The need for independent review of proposed agreements, and avoiding simple acceptance of “the commercial model”; 

· The need to clearly articulate the public client’s needs which may not be understood by the private “partner”; and 

· Particular clauses for careful review by the public sector lawyer in venture agreements. 

 5 June 2003