This seventh edition of Government Contracts: Federal, State and Local marks 28 years of its life which has seen a very substantial transformation of government. The new contractualism through the use of contract to deliver government needs has been controversial in some areas but it is essentially here to stay. This phenomenon is examined from a lawyer’s perspective. Does the private law institution of contract work satisfactorily in its use for public purposes? The answer is very mixed. Attention is inevitably paid to areas of risk. As noted in the Preface, there have been some spectacularly bad outcomes. This may prompt recommending against outsourcing some functions of government, in particular human services.
As in past editions, this new edition thoroughly analyses the complex and developing mix of private and public law that informs government contracting. Some spectacular areas subside, such as the huge disturbance of the Willliams cases; and some are confronting, such as the Western Australian legislation shutting down an arbitration initiated by Clive Palmer and his companies against the Western Australian government. The legislation was upheld by the High Court.
Preface
Table of Cases
Table of Statutes
The Uses of Contract by Governments
Introduction
The Application of Contract Law to Government Contracts
The Government’s Choice of Contract
The Erosion of Remedies and Accountability
Free Trade Agreements and Government Procurement
The Government’s Power to Contract
The Commonwealth
The States and Territories
Statutory Corporations and Local Government
The Consequences of Lack of Power
Contract Formation
Intention to Create Legal Relations
Statutory Agreements
Authority to Contract on Behalf of Government
Authority to Contract and Statutory Corporations
Failure to Appropriate Funds
Government Privileges and Immunities
Government Bodies as Legal Entities
The Different Meanings of “the Crown”
Statutory Bodies and the Shield of the Crown
Private Bodies and the Shield of the Crown
Government Privileges and Immunities
Executive Necessity, the Rule Against Fettering and Legislative Overriding of Contract
Contract and Future Government Action
The Doctrine of Executive Necessity
The Primacy of Legislation
The Rule against Fettering Future Executive Action
The Rule against Fettering Legislative Action
Legislative Overriding of an Existing Contract
The Effect on the Contract
Government Effectiveness and Estoppel
Government and Competition and Consumer Legislation
The Competition and Consumer Scheme
The Legislation and Government
Carrying on a Business
The Consequences of Exemption
Proportionate liability
Tenders
Introduction
Contractual Analysis of Tenders
The Pre-Award Period
Estoppel
Misleading or Negligent Conduct
Confidentiality
Restitution
Administrative Law Challenges
Access to Information
Administrative Law Remedies
Introduction
The Availability of Administrative Law Remedies
The Grounds for Review
The Ombudsman
Access to Information
Index
This is a worthwhile read for all lawyers, particularly the increasing number of lawyers practising in both commercial and public law.
J Sargent of Counsel, Queensland Law Reporter, 12, (2024)
Seddon’s work is illuminating and a comprehensive treatise on the specific issues that arise in government contracts. It is a must-have for any practitioner practising in this area. Read full review…
Arron Hartnett, Barrister Higgins Chambers, Chapter III. Autumn Edition 2023 – Federal Litigation & Disputes Resolution Section.
The sixth edition of this well-known text comes twenty-three years after the first edition was published in 1995. As its title suggests, it focuses upon the particular legal issues which arise in contracts by the government at all levels, including statutory corporations.
It remains a helpful text for those practising in this area, including covering regular topics of interest such as government tenders and the application of the Competition and Consumer Act 2010 (Cth) to government contracts.
The latest edition also deals with developments occurring in this area since it was last published, including the so-called “Williams saga”, the sovereign risk apparent in the recent High Court decisions in Tabcorp Holdings Ltd v Victoria, and Victoria and Tatts Group Ltd, and the review procedure for tenderers for Commonwealth contracts proposed by the Government Procurement (Judicial Review) Bill 2017 – which at the date of writing, and as at this review, is still making its way through the Parliamentary process.
As with the earlier editions, this text will be a useful source for practitioners, government sector commercial lawyers, and entities regularly contracting with government and tendering for government work.
Queensland Law Reporter – 6 April 2018 – [2018] 13 QLR
Reviews of previous editions:
“The 5th edition of this worthy volume incorporates new material, including commentary on the Competition and Consumer Act 2010 and the Australian Consumer Law which replaced the Trade Practices Act. Seddon considers the more philosophical issues surrounding public contracting as a government activity. The application of the rules of contract law to government contracts raises many questions.
Seddon’s work is the “go-to” volume in the area of government contracts, and this latest edition continues that fine tradition.” – Jane Grace, Ethos, ACT Law Society, March 2015
“This is a lawyers’ textbook. … The subject-matter is arcane, yet vital in practice. The explanations, and ordering of material, are clear. Mr Seddon is direct. He shares his views. If you doubt a view he has shared, check the footnote. This is a scholarly work. The ease of reading belies the serious intent.– David Marks, Hearsay, July 2013, 63
“An excellent reference for those in the business supplying goods and services to government, both in terms of being up to date on the latest changes in law, and for anyone seeking to contrust a practical checklist on any part of the contracting process.” – David Parker, Law Institute Journal of Victoria, November 2009
“Dr Seddon has put together in the one readable volume the legal principles and case law (almost all of which was handed down in the last 25 years) to produce a mini-encyclopaedia on the subject. For those working in the area, it is well worth acquiring.” – (2005) 79 Australian Law Journal
“This third edition indicates just how much the whole process of government contracting has developed over the nine years since the first edition appeared.” – Public Administration Today, July-Oct 2005
“The third edition of this book provides a comprehensive coverage of issues that arise when contracting with all levels of government in Australia. The risks specific to government contracts that are covered include the power of government to contract; Crown privileges and immunities; and the ability of governments to override contracts through legislation. The author also deals extensively with governmental tenders and administrative law remedies. This edition introduces new issues, including how the Australia-US Free Trade Agreement will affect Australian government procurement; political interference in the government contracting process; and the distinction between statutory licences and government contracts. … The book is clearly written and easy to read. It will be invaluable to any practitioner engaged in negotiating contracts with any level of government. The author highlights areas of the law of contracting with government that remain uncertain, which should assist practitioners in assessing specific risks and drafting contracts accordingly.” – Law Institute Journal (Vic), Vol 79(4), April 2005
“This work, an intensive account of a specialist area of contract law, is in its third edition in less than nine years. That is in itself a considerable recommendation about the quality of this book and its usefulness. It is written by Dr Nicholas Seddon, a co-author of Cheshire and Fifoot’s Australian edition. It was written for a specialist Australian legal audience but I expect it to be of interest to public servants and lawyers in other jurisdictions. It is now a work of some 400 pages.
It may well turn out to be of greater interest to lawyers who practice in other areas of contract and commercial law than they might initially expect. The law relating to government contracts (to use a contemporary analogy) lies between the grinding tectonic plates of contract, administrative law and complex legislation. The result of these tensions is a sense of very rapid state of development of legal ideas in these areas. …
Quite apart from general revision and accounts of recent case law, the third edition covers areas absent from the previous editions including the Free Trade Agreement, the role of political interference in government decision making, the distinction between a statutory licence and a contract and an expanded discussion of when legalisation does or does not bind government entities.
This text is an authoritative account of an important area of contract is unlikely to be surpassed for many years. It deals with an area of the law that is likely to increase rapidly in importance over the next decade and would be a valuable addition to the library of any practitioner specialising in commercial law.” – (2005) 26 Qld Lawyer
“In the construction industry, government’s role and influence are more and more akin to those of a commercial enterprise. Accordingly, … Mr Seddon’s second edition is both topical and valuable. … Tendering is the commercial threshold of construction projects yet it is ill-understood and often badly done. Mr Seddon’s deep insight into both the problems and important lessons to be learnt will be especially appreciated.” … – Building & Construction Law Journal, February 2000
“…it is a very user-friendly text … illustrating once again that a brilliant mosaic of our law is extremely interesting when the spotlight is put upon a little section of it.” – Justice Michael Kirby, Australian Law Journal
“…the explanations are admirably lucid and concise, and overall the book provides an excellent, accessible and well structured account of the relevant principles of law.” – Professor Sue Arrowsmith
