The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Secondary prevention of osteoporosis in Australia: Analysis of government-dispensed prescription data

Background Osteoporosis is a common cause of disability and death in elderly men and women. Until 2007, Australian Government-subsidized use of oral bisphosphonates, raloxifene and calcitriol (1α,25-dihydroxycholecalciferol) was limited to secondary prevention (requiring x-ray evidence of previous low-trauma fracture). The cost to the Pharmaceutical Benefits Scheme was substantial (164 million Australian dollars in 2005/6). Objective To examine the dispensed prescriptions for oral bisphosphonates, raloxifene, calcitriol and two calcium products for the secondary prevention of osteoporosis (after previous low-trauma fracture) in the Australian population. Methods We analysed government data on prescriptions for oral bisphosphonates, raloxifene, calcitriol and two calcium products from 1995 to 2006, and by sex and age from 2002 to 2006. Prescription counts were converted to defined daily doses (DDD)/1000 population/day. This standardized drug utilization method used census population data, and adjusts for the effects of aging in the Australian population. Results Total bisphosphonate use increased 460% from 2.19 to 12.26 DDD/1000 population/day between June 2000 and June 2006. The proportion of total bisphosphonate use in June 2006 was 75.1% alendronate, 24.6% risedronate and 0.3% etidronate. Raloxifene use in June 2006 was 1.32 DDD/1000 population/day. The weekly forms of alendronate and risedronate, introduced in 2001 and 2003, respectively, were quickly adopted. Bisphosphonate use peaked at age 80–89 years in females and 85–94 years in males, with 3-fold higher use in females than in males. Conclusions Pharmaceutical intervention for osteoporosis in Australia is increasing with most use in the elderly, the population at greatest risk of fracture. However, fracture prevalence in this population is considerably higher than prescribing of effective anti-osteoporosis medications, representing a missed opportunity for the quality use of medicines.

Corporatizing the 'intellectual machinery' of government : the case of educational policy in Australia

This article analyses what it describes as the corporatization of the ‘intellectual machinery’ of government: the theories, knowledges, research and ‘know how’ utilized by political authorities to render the world thinkable, programmable and subject to intervention. Through an analysis of two key nodal points in national policy on teacher professional standards in Australia over the last decade, the article discloses a shift in the relation between expertise and politics. This is manifested, it is argued, in an increased reliance by policy authorities on corporatized forms of research produced by national and international private consulting firms, Think Tanks, and ‘policy entrepreneurs’ and a concomitant decrease in their reliance on free research produced largely by academics in institutions of higher education. The article seeks to account for this shift in terms of the ‘advanced liberal’ formula for rule which now characterizes government in contemporary Western polities.

"Re-thinking" the influence of regulatory capture in the development of government regulation

On 30 March 2015 the Australian Federal Government launched its "Re-Think" initiative with the objective of achieving a better tax system which delivers taxes that are lower, simpler and fairer. The discussion paper released as part of the "Re:think" initiative is designed to start a national conversation on tax reform. However, inquiries into Australia's future tax system, subsequent reforms and the introduction of new taxes are nothing new. Unfortunately, recent history also demonstrates that reform initiatives arising from reviews of the Australian tax system are often deemed a failure. The most prominent of these failures in recent times is the Minerals Resource Rent Tax (MRRT), which lasted a mere 16 months before its announced repeal. Using the established theoretic framework of regulatory capture to interpret publically observable data, the purpose of this article is to explain the failure of this arguably sound tax. It concludes that the MRRT legislation itself, through the capture by the mining companies, provided internal subsidization in the form of reduced tax and minimal or no rents. In doing so, it offers an opportunity to understand and learn from past experiences to ensure that recommendations coming out of the Re:think initiative do not suffer the same fate.

Literacy, security, governmentality: Defining spaces, managing populations – How has education become part of whole of government security strategy?

In this paper I conduct a Foucauldian discourse analysis of a political speech given by Brendon Nelson in 2006 when the Australian Minister for Defence in the Howard Coalition Government. The speech connects conceptualisations of terror, globalization, education and literacy as part of a whole of government security strategy. The analysis examines this speech as an example of a liberal way of governing the conduct of diverse and unpredictable populations. My analysis suggests that the apparatus of government has been strategically used in order to biopolitically contain the rise of complex social forces and protect a set of homogenous cultural values. The purposes of education and uses of literacy are seen as instruments for the inscription of a coded set of values understood to be synonymous with civil society.

Government community service contracts : restraining abuse of power

The use of grant contracts to deliver community services is now a significant feature of all Australian government administrations. These contracts are the primary instrument governing the provision of such services to citizens and are largely outside the usual parliamentary review mechanisms and constraints. This article examines the extent of the erosion of fundamental constitutional principles facilitated by the use of private contracts, by applying the principles used in scrutiny of delegated legislation to standard form federal and State community service contracts. It reveals extensive executive power which, if the relationship were founded in legislative instruments rather than in private contract, would have to be justified to Parliament at least and possibly not tolerated.

Government procurement contracts and minimum labour standards enforcement: Rhetoric, duplication and distraction?

Government contracts for services typically include terms requiring contractors to comply with minimum labour standards laws. Procurement contract clauses specify reporting procedures and sanctions for non-compliance, implying that government contracting agencies will monitor and enforce minimum labour standards within contract performance management. In this article, the case of school cleaners employed under New South Wales government contracts between 2010 and 2011 is the vehicle for exploring the effectiveness of these protective clauses. We find that the inclusion of these protective clauses in procurement contracts is unnecessary in the Australian context, and any expectations that government contracting agencies will monitor and enforce labour standards are misleading. At best, the clauses are rhetoric, and at worst, they are a distraction for parties with enforcement powers.

Government grants - an abrogation or management of risks?

New public management (NPFM), with its hands-on, private sector-style performance measurement, output control, parsimonious use of resources, disaggreation of public sector units and greater competition in the public sector, has significantly affected charitable and nonprofit organisations delivering community services (Hood, 1991; Dunleavy, 1994; George & Wilding, 2002). The literature indicates that nonprofit organisations under NPM believe they are doing more for less: while administration is increasing, core costs are not being met; their dependence on government funding comes at the expense of other funding strategies; and there are concerns about proportionality and power asymmetries in the relationship (Kerr & Savelsberg, 2001; Powell & Dalton, 2011; Smith, 2002, p. 175; Morris, 1999, 2000a). Government agencies are under increased pressure to do more with less, demonstrate value for money, measure social outcomes, not merely outputs and minimise political risk (Grant, 2008; McGreogor-Lowndes, 2008). Government-community service organisation relationships are often viewed as 'uneasy alliances' characterised by the pressures that come with the parties' differing roles and expectations and the pressures that come with the parties' differing roles and expectations and the pressurs of funding and security (Productivity Commission, 2010, p. 308; McGregor-Lowndes, 2008, p. 45; Morris, 200a). Significant community services are now delivered to citizens through such relationships, often to the most disadvantaged in the community, and it is important for this to be achieved with equity, efficiently and effectively. On one level, the welfare state was seen as a 'risk management system' for the poor, with the state mitigating the risks of sickness, job loss and old age (Giddens, 1999) with the subsequent neoliberalist outlook shifting this risk back to households (Hacker, 2006). At the core of this risk shift are written contracts. Vincent-Jones (1999,2006) has mapped how NPM is characterised by the use of written contracts for all manner of relations; e.g., relgulation of dealings between government agencies, between individual citizens and the state, and the creation of quais-markets of service providers and infrastructure partners. We take this lens of contracts to examine where risk falls in relation to the outsourcing of community services. First we examine the concept of risk. We consider how risk might be managed and apportioned between governments and community serivce organisations (CSOs) in grant agreements, which are quasiy-market transactions at best. This is informed by insights from the law and economics literature. Then, standard grant agreements covering several years in two jurisdictions - Australia and the United Kingdom - are analysed, to establish the risk allocation between government and CSOs. This is placed in the context of the reform agenda in both jurisdictions. In Australia this context is th enonprofit reforms built around the creation of a national charities regulator, and red tape reduction. In the United Kingdom, the backdrop is the THird Way agenda with its compacts, succeed by Big Society in a climate of austerity. These 'case studies' inform a discussion about who is best placed to bear and manage the risks of community service provision on behalf of government. We conclude by identifying the lessons to be learned from our analysis and possible pathways for further scholarship.

Staking a claim : the role of stakeholders in government

The stakeholder approach which emerged under the auspices of new public management has been in use in public agencies for the past 25 years. However it remains a difficult and demanding task for agencies to determine who their stakeholders are and how to optimise interactions with them. This paper will examine how government agencies identify, classify and engage with stakeholders who have competing demands, differing access to resources and the ability to exert political pressure. To do this, the stakeholder approaches of nine agencies at three levels of government in Queensland were studied. The contribution of this paper is the development of a Stakeholder Classification Model for Public Agencies which could be used to create more focused and relevant stakeholder interventions.

Impeding good governance implementation in Indonesian regional government : the effect of a bureaucratic generation gap

The implementation of ‘good governance’ in Indonesia’s regional government sector became a central tenet in governance research following the introduction of the national code for governance in 2006. The code was originally drafted in 1999 as a response to the Asian financial crises and many cases of unearthed corruption, collusion, and nepotism. It was reviewed in 2001 and again in 2006 to incorporate relevant political, economical, and social developments. Even though the national code exists along with many regional government decrees on good governance, the extent of implementation of the tenets of good governance in Indonesia’s regional government is still questioned. Previous research on good governance implementation in Indonesian regional government (Mardiasmo, Barnes and Sakurai, 2008) identified differences in the nature and depth of implementation between various Indonesian regional governments. This paper analyses and extends this recent work and explores key factors that may impede the implementation and sustained application of governance practices across regional settings. The bureaucratic culture of Indonesian regional government is one that has been shaped for over approximately 30 years, in particular during that of the Soeharto regime. Previous research on this regime suggests a bureaucratic culture with a mix of positive and negative aspects. On one hand Soeharto’s regime resulted in strong development growth and strong economic fundamentals, resulting in Indonesia being recognised as one of the Asian economic tigers prior to the 1997 Asian financial crises. The financial crises however revealed a bureaucratic culture that was rife with corruption, collusion, and nepotism. Although subsequent Indonesian governments have been committed to eradicating entrenched practices it seems apparent that the culture is ingrained within the bureaucracy and eradication of it will take time. Informants from regional government agree with this observation, as they identify good governance as an innovative mechanism and to implement it will mean a deviation from the “old ways.” Thus there is a need for a “changed” mind set in order to implement sustained governance practices. Such an exercise has proven to be challenging so far, as there is “hidden” resistance from within the bureaucracy to change its ways. The inertia of such bureaucratic cultures forms a tension against the opportunity for the implementation of good governance. From this context an emergent finding is the existence of a ‘bureaucratic generation gap’ as an impeding variable to enhanced and more efficient implementation of governance systems. It was found that after the Asian financial crises the Indonesian government (both at national and regional level) drew upon a wider human resources pool to fill government positions – including entrants from academia, the private sector, international institutions, foreign nationals and new graduates. It suggested that this change in human capital within government is at the core of this ‘inter-generational divide.’ This divergence is exemplified, at one extreme, by [older] bureaucrats who have been in-position for long periods of time serving during the extended Soeharto regime. The “new” bureaucrats have only sat in their positions since the end of Asian financial crisis and did not serve during Soeharto’s regime. It is argued that the existence of this generation gap and associated aspects of organisational culture have significantly impeded modernising governance practices across regional Indonesia. This paper examines the experiences of government employees in five Indonesian regions: Solok, Padang, Gorontalo, Bali, and Jakarta. Each regional government is examined using a mixed methodology comprising of on-site observation, document analysis, and iterative semi-structured interviewing. Drawing from the experiences of five regional governments in implementing good governance this paper seeks to better understand the causal contexts of variable implementation governance practices and to suggest enhancements to the development of policies for sustainable inter-generational change in governance practice across regional government settings.

Can governments use their construction contracts to improve training outcomes?

This paper explores the likely efficacy of government agencies using their contracting relationships with private firms to affect training outcomes in the construction industry. Specifically, it reports on the results of a study of two training policies of theWestern Australian government. Empirical data is drawn from the government’s Tender Registration System between 1997 and 2006. The main finding of the quantitative analysis is that in the absence of strong industry commitment to policy objectives, the contracting approach is likely to result in high levels of avoidance activity and generate very few benefits. The results of a qualitative investigation also support these findings.

The development of strategies to drive government and academic policy to underpin e-portfolio practice

The impact of government policy can become a strong enabler for the use of e-portfolios to support learning and employability. E-portfolio policy and practice seeks to draw together the different elements of integrated education and learning, graduate attributes, employability skills, professional competencies and lifelong learning, ultimately to support an engaged and productive workforce. Drawing on and updating the research findings from a nationwide research study conducted as part of the Australian ePortfolio Project, the present chapter discusses two important areas of the e-portfolio environment, government policy and academic policy. The focus is on those jurisdictions where government and academic policy issues have had a significant impact on e-portfolio practice, such as the European Union, the Netherlands, Scandinavian countries and the United Kingdom, as well as in Australia and New Zealand. These jurisdictions are of interest as government policy discussions are currently focusing on the need for closer integration between the different education and employment sectors. Finally, issues to be considered as well as strategies for driving policy decision making are presented.

Contractual relationships for better stewardship of privatised critical infrastructures

Governments increasingly rely on forms of privatisation to provide critical public infrastructure yet when those infrastructures fail to meet community expectations government bears the political and economic risks, being held accountable by the public as steward for those infrastructures. Reconfiguration of the contractual relationships may achieve better stewardship. Many of the forms of privatization rely on Agency theory prescriptions, conceptualizing organisations and individuals as motivated solely by self-interest. Stewardship theory (Van Slyke 2007) has developed as a complement to Agency theory offering the possibility of contractual relationships which maximize stewardship outcome. Stewardship theory asserts that pro-stewardship factors cause the agent/steward to act in the interests of the principal. This research has interrogated the literature finding that of the pro-stewardship factors, sense of responsibility is pre-eminent and has a significant link to the agent acting as a steward. The research has explored how important it is that the steward feel sense of responsibility and the actions that sense of responsibility. Case studies of privatized core elements of urban water systems infrastructure were explored. Data has been gathered primarily from archival sources and individual interviews of government and private sector executives key to those systems. This paper reports the findings as to the extent of stewardship, how important it is that the steward acts in the interests of the principal, even to the steward’s detriment and the importance of the steward feeling a sense of responsibility. The actions which increase that sense of responsibility will be assembled to position the research to better proceed with the analysis of the data as to these actions.

The government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (CTH)

This thesis examines the role of government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (Cth) and the policy considerations which Australian law should take into account in that role. There are two recurring themes arising in this examination which are significant to the recommendations and conclusions. The first is whether the needs and status of government should be different from private sector institutions, which also obtain copyright protection under the law. This theme stems from the 2005 Report on Crown Copyright by the Copyright Law Review Committee and the earlier Ergas Committee Report which are discussed in Chapters 2 and 8 of this thesis. The second is to identify the relationship between government copyright law and policy, national cultural policy and fundamental governance values. This theme goes to the essence of the thesis. For example, does the law and practice of government copyright properly reflect technological change in the way we now access and use information and does it facilitate the modern information management principles of government? Is the law and practice of government copyright consistent with the greater openness and accountability of government? The thesis concludes that government copyright law and practice in each of the three governmental roles recognised under the Copyright Act 1968 has not responded adequately to the information age and to the desire and the ability of individuals to access information quickly and effectively. The solution offered in this thesis is reform of the law and of public policy that is in step with access to information policy, the promotion of better communication and interaction with the community, and the enhanced preservation of government and private copyright materials for reasons of government accountability, effective administration and national culture and heritage.

Earnings management and the role of the audit committee: an investigation of the influence of cross-listing and government officials on the audit committee

This paper extends research on the corporate governance practices of transitional economies by examining whether the ability of the audit committee to constrain earnings management in Chinese firms is associated with the listing environment and the presence of government officials on the audit committee. Despite considerable regulatory reforms by the Chinese Securities Regulatory Commission, there remain incentives for Chinese firms to manage earnings. However, government initiatives to encourage domestic firms to cross-list on the Hong Kong Stock Exchange are accompanied by improved governance. We find that the expertise and independence of the audit committee for cross-listed (CL) Chinese firms are associated with lower abnormal accruals, our measure of earnings management. Both domestic only listed firms and CL Chinese firms appoint government officials as independent members on the audit committee. However, due to the political connection between government officials and the controlling shareholder (the State), these appointments can severely mitigate audit committee independence. Subsequently, we find a significant and positive association between audit committee independence and experience and earnings management when there are government officials on the audit committee.