Transparency and probity measures in PPP projects: Australia and beyond
Topic: “Transparency and probity measures in PPP projects: Australia and beyond”
Facets of the question/answer include the following:
– What constitutes a PPP
– Different PPP models
– What transparency, accountability and probity guards are usually encompassed in PPPs
– Comparative international examples of PPP (and accountability/transparency/probity measures)
– Australian PPP examples (and accountability/transparency/probity measures)
Principal topics include:
-Historical perspectives on private involvement in the delivery of public infrastructure, how it has changed over time and lessons learnt
– Approaches to the categorising of PPP projects, including the broad distinction between ‘economic’ and ‘social’ infrastructure
– The dynamics of financing versus the fiscal responsibility of repayments and funding
– Features specific to the structuring and procurement of projects within each of these categories, including fundamental aspects such as the need to secure an income stream in relation to economic infrastructure and the relevance of the distinction, in relation to social infrastructure, between delivery of physical infrastructure and delivery of services
– Features specific to particular sectors within each of these categories (eg toll roads, power stations, water, health care, education and corrections)
– The various policy frameworks in place in Australia (and leading international agencies) for evaluation and engagement of private sector involvement in public infrastructure delivery
– Drivers that underpin the structuring, negotiation and delivery of PPP projects, including financing, probity and value for money (including public sector comparator mechanisms), competition, tax (including issues derived from Australia‘s federal structure as opposed to unitary systems in other countries) and construction risk.
* Must use purely academic sources, databases (i.e. Westlaw) and journal articles
* Also refer to legal precedents as references (in italics)
*Spelling, grammar and sentence structure is to be of high standard. Essays will be sent back if not checked.
* 12 point font, 1.5 spacing, 10 point font for references
* Legal referencing (Harvard) – footnotes and alphabetical Reference List. Where books are used, reference page number/s. Please refer to https://guides.is.uwa.edu.au/c.php?g=325349&p=2177349 as specialised referencing required.
* Bibliography and footnotes: primary and secondary references
* No plagiarism or unreferenced sources – I have asked for previous refunds on this basis where it has been detected.
* Make sure you stick to the crux of the question. Background on cases / question context is not overly important.
* References should include some of (the):
Government Policy Documents
1. Infrastructure Australia, Australian Infrastructure Plan (2016)
2. Department of Infrastructure and Regional Development Principles for Innovative Financing, (March 2016)
3. Department of Infrastructure and Regional Development, National PPP Policy Framework (October 2015).
4. Department of Infrastructure and Regional Development, National PPP Guidelines – Overview (December 2008).
5. NSW Treasury, NSW Public Private Partnerships Guidelines (August 2012).
6. Victoria Department of Treasury and Finance, Partnerships Victoria Requirements (May 2013).
7. Australian Government Productivity Commission, Productivity Commission Inquiry Report into Public Infrastructure, Volume 1, No. 71 (May 2014).
8. Australian Government Productivity Commission, Productivity Commission Inquiry Report into Public Infrastructure, Volume 2, No. 71 (May 2014).
9. Australian Department of Infrastructure and Regional Development, Australian Government Response – Productivity Commission Inquiry Report into Public Infrastructure (November 2014).
10. HM Treasury (UK), A New Approach to Public Private Partnerships (December 2012).
11. NSW Government, Unsolicited proposals: Guide for submission and assessment (February 2014).
12. Victoria Department of Treasury and Finance, Unsolicited Proposal Guidelines (February 2014).
13. Northern Australia Infrastructure Facility – Investment Mandate Direction – Draft
14. Colin Duffield, ‘Report on the performance of PPP projects in Australia when compared with a representative sample of traditionally procured infrastructure projects’ (National PPP Forum – Benchmarking Study, Phase II, 17 December 2008).
15. Clayton Utz, Improving the Outcomes of Public Private Partnership (Report, Clayton Utz, 2013).
16. Owen Hayford, Infrastructure reform – he who pays the piper calls the tune, (March 2016).
17. Owen Hayford, The road to Commonwealth infrastructure funding – paved with value capture, (April 2016)
18. Owen Hayford, Why the PPP model for roads is alive and well, (May 2014)
19. Marion Terrill, Roads to Riches – Better Transport Investments, Grattan Institute, (April 2016).
20. KPMG, Public Private Partnerships, (June 2015)
21. Infrastructure Australia Act 2008 (Cth)
22. Infrastructure NSW Act 2011 (NSW)
23. Infrastructure NSW – State Infrastructure Strategy Update 2014
24. Infrastructure Victoria – Laying the Foundations – Discussion Paper, (February 2016).
25. Infrastructure Victoria – We Hear You – consultation report (March/April 2016).
26. Building Queensland Act 2015 (Qld)
27. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 1: Procurement Options Analysis (December 2008).
28. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 2: Practitioners Guide (March 2011).
29. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 3: Commercial Principles for Social Infrastructure (December 2008).
30. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 4: Public Sector Comparator Guidance (December 2008).
31. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 5: Discount Rate Guidance (August 2013).
32. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines, Volume 6: Jurisdictional Requirements , (September 2012).
33. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines Volume 7: Commercial Principles for Economic Infrastructure (February 2011).
34. Department of Infrastructure and Regional Development, National Public Private Partnership Guidelines: Roadmap for applying the commercial principles (February 2011)
35. HM Treasury (UK), A New Approach to Public Private Partnerships (December 2012).
36. NSW Government, Unsolicited proposals: Guide for submission and assessment (February 2014).
37. Victoria Department of Treasury and Finance, Unsolicited Proposal Guidelines (February 2014).
38. David Richmond, Infrastructure Implementation Group, The Premier’s Department, Review of Future Provision of Motorways in NSW (Review, Infrastructure Implementation Group, December 2005). (PM)
39. Peter Fitzgerald, Review of Partnerships Victoria Provided Infrastructure – Final Report to the Treasurer (Report, Growth Solutions Group, January 2004).
40. House of Commons Committee of Public Accounts, Delivering Better Value for Money from the Private Finance Initiative (Twenty-eighth Report of Session, June 2003).
41. House of Lords Select Committee on Economic Affairs, Private Finance Projects and Off-Balance Sheet Debt Volume 1: Report (First Report of Session, 2009/10).
42. Doug Jones, ‘PPPs in the aftermath of the credit crunch’ (Paper presented at 10th Annual National Public Private Partnerships Summit, Melbourne, 17 June 2010). (PM)
43. Doug Jones, ‘Best practices in infrastructure projects’ (Paper presented at IBA Project Finance Conference, Washington DC, 22 April 2009). (PM)
44. Tim Wilson, ‘The way forward for PPPs – Getting the relationship right’, Project Finance International Yearbook 2003. (PM)
45. Alan Millhouse, ‘Public Private Partnerships – The Dawn of a New Era for Project Financing?’ (2002) 18 Building and Construction Law Journal 286.
46. Tom Skotnicki, ‘Double act’, (2001) 23 Business Review Weekly 72-79. (PM)
47. Ernst & Young, The Road Ahead: Future of PPP in Australian road infrastructure (Report, Ernst & Young, 2007). (PM)
48. The Australian Council for Infrastructure Development, Delivering for Australia: A Review of BOTs, BOOTs, Privatisations and Public-Private Partnerships 1988-2004 (Review, The Australian Council for Infrastructure Development, March 2005). (PM)
49. The Australian Council for Infrastructure Development, Working with government: A NSW Government Green Paper (Green paper, The Australian Council for Infrastructure Development , February 2000). (PM)
50. Pat Barrett, ‘Public private partnerships – Are there gaps in public sector accountability?’ (Paper presented at 2002 Australasian Council of Public Accounts Committees 7th Biennial Conference, Melbourne, 3 February 2003).
51. Allison Crowe, ‘CityLink and the BOOT approach to private provision of public infrastructure’ (2002) 5(3) Australian Social Monitor 68. (PM)
52. John Fallon, ‘Privatising Public Infrastructure: Rationale and Key Issues’ (1997) 27(2) Economic Analysis & Policy 175. (PM)
53. Sean Keating, ‘Public-private-brinkmanship’ (2004) September Project Finance Magazine 27-29. (PM)
54. Sharon Klyne, ‘Spencer Street gets derailed’ (2004) July 294 Project Finance International 19-23. (PM)
55. Sharon Klyne, ‘Lane Cove’s capital path’ (2004) April 288 Project Finance International 44-46. (PM)
56. Tina Skliros and Roger Perrins, ‘Australia’ in The International Comparative Legal Guide to PFI/PPP Projects 2007, Global Legal Group 2007, ch 2. (PM)
57. Glen Searle, ‘New Roads, New Rail Lines, New Profits: Privatisation and Sydney’s Recent Transport Development’ (1999) 17(2) Urban Policy and Research 111. (PM)
58. John Shirbin, ‘The Olympic Stadium: Innovation in project financing’ (1999) 22(3) University of New South Wales Law Journal 799.
59. Ernst & Young, Impact of property on public infrastructure (Study, Ernst & Young, 2006). (PM)
60. Ernst & Young, Asia Pacific PPP Market (Report, Ernst & Young, July 2006).
61. Driss Bererhi and Michaël Armandou, ‘French PPPs: On the road to a mature market or time for new reform?’ in Privatisation & Public Private Partnership Review (Euromoney, 2007/8) 91-95. (PM)
62. Silvia Fessl and Otto Waechter, ‘Public Private Partnerships: New Models and Emerging Players – An European/Austrian Perspective’ (Paper presented at the International Bar Association Conference on Project Finance, Washington DC, 26 April 2007). (PM)
63. Richard Norment, ‘Public-private partnerships in the United States’ in Privatisation & Public Private Partnership Review (Euromoney, 2007/2008) 188-191. (PM)
64. Bruce Papernik and Geoffrey Yarema, ‘Public-private partnerships: Recent developments in the US transportation sector’ in Privatisation & Public Private Partnership Review (Euromoney, 2007/2008) 49-55. (PM)
65. United Nations Commission on International Trade Law, UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects (2001)
66. United Nations Commission on International Trade Law, UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects (2004)
Days 3, 4 and 5
67. KPMG, PPP Procurement – Review of Barriers to Competition and Efficiency in the Procurement of PPP Projects (Review, KPMG, May 2010).
68. Janet Holmes à Court, ‘PPPs: Tendering for major infrastructure projects’ (Speech to Committee for Economic Development in Australia, Melbourne, 21 October 2004). (PM)
69. Andrew Chew, David Starkoff and Mark Sheldon, “The Effect of Andrews v ANZ: Going Beyond Bank Fees – It’s About Performance Too!” (2013) The International Construction Law Review 196. (PM)
70. David Levin, “The Unsuccessful Tender – Legal Rights and Remedies” (2010) 26 BCL 324.
71. Owen Hayford, ‘Recent developments in tender process contracts’, Project Insights, Clayton Utz, 4 May 2006
72. Bill Napier, ‘Process Contracts in Government Commercial Tendering’ (2011) 27 JCL 171.
73. Department of Local Government, Circular to Councils on PPP Legislation and Guidelines (September 2005)
74. Michael Riches, ‘Risk allocation for insolvency in PPPs’ (2005) 6(2) Insolvency Law Bulletin 25-8. (PM)
75. Victoria Department of Treasury and Finance, Contract Management Guide (June 2003).
76. Doug Jones, ‘PPPs: New Models and Emerging Players’ (Paper presented at the International Bar Association Conference on Project Finance, Washington DC, 26 April 2007) (PM)
77. Commissioner of Taxation v Citylink Melbourne Limited  HCA 35
78. Freedom of Information Amendment (Open Government – Disclosure of Contracts) Act (No 115) 2006 (NSW)
79. Eastlink Project Act 2004 (formerly known as Mitcham-Frankston Project Act 2004) Act No. 39/2004 (Vic)
80. Emilia Budisavljevic, ‘Have we forgotten the first ‘P’ in Public-Private Partnerships?’ (2014) 158 Australian Construction Law Newsletter 32. (PM)
81. Graeme Hodge and Carsten Greve, ‘Public-Private Partnerships: An International Performance Review’ (2007) May/June, 67:3, Public Administration Review, 545–558. (PM)
82. Nabil Orow and Michael Andrew, ‘Funding the Privatisation of Public Utilities – Taxation Aspects of Structured Finance’ (1999) 28 Australian Tax Review 121. (PM)
83. Richard Webb and Bernard Pulle, ‘Public Private Partnerships: An Introduction’ (Parliamentary Library Research Paper No. 1 2002-2003, Appendix Two, Department of the Parliamentary Library, 2002).
84. Peter Megens, ‘Construction risk and project finance: risk allocation as viewed by contractors and financiers’ (1997) 8 Journal of Banking and Finance Law and Practice 23-44. (PM)
85. Angela Flannery and Clive Craven, ‘Key Legal Issues’ (Paper presented at APLMA PPP Seminar, Australia 9 May 2002). (PM)
86. Allyson Pollock, David Price and Stewart Player, The Private Finance Initiative: A Policy Built on Sand (Report, Unison, October 2005).
87. Chris Clifton and Colin Duffield, ‘Improved PFI/PPP service outcomes through the integration of Alliance principles’ (2006) 24(7) International Journal of Project Management: Governance Issues in Public Private Partnerships 573-586.
88. Marko Misko and Matthew Bell, ‘Invitations to treat are not what they used to be: Critical legal issues in government tendering’ (Paper presented to 6th Annual In-House Counsel Conference, Sydney, 25-27 February 2002). (PM)
89. Matthew Bell, ‘From an invitation to treat to an invitation to tread…warily’ (2003) 19 Building and Construction Law Journal 89.
90. Ian Harvey, ‘The Hughes Aircraft Case and the Private Law of Public Tenders’ (1998) 5 Australian Journal of Administrative Law 207. (PM)
91. Andrew Phang, ‘Tenders, Implied Terms and Fairness in the Law of Contract’ (1998) 13 Journal of Construction Law 126. (PM)
92. Marko Misko, ‘The Liability of Contract Administrators’ (Paper presented 26 November 2004). (PM)
93. Victorian Government, Government response to the Public Accounts and Estimates Committee Report on private investment in public infrastructure (October 2006).