November 2013 / 2
Presented by Dr Ashley Tsacalos, Partner, Norton Rose Fulbright
Tuesday 26 November 2013, 10:45am – 11:45am
This session will examine the liability and administrative law issues associated with government decisions to end a government scheme/program or effect a key policy change that has both financial and non-financial consequences for individuals and the private sector generally. It will also include a discussion of risk management strategies and practices associated with the conceptualisation and implementation of government schemes and programs. A number of case studies will be referred to and discussion about the various lessons learnt.
Summary
According to the Australian National Audit Office (ANAO):
“Implementation and delivery of Australian Government policy initiatives is one of the key responsibilities of government agencies. In recent years there has been an increasing focus on and a community expectation of, sound policy implementation and seamless delivery of government policies — on time, within budget and to an acceptable level of quality”.[1]
The ANAO’s Better Practice Guide for the “Implementation of Programme and Policy Initiatives: Making implementation matter”, considers the importance of adequate attention, during policy development, to implementation risks and practicalities. It then proceeds to addresses other key considerations as the initiative develops from the initial policy concept including . governance; risk management; implementation planning; procurement and contract management; stakeholder management; resources; communication; and monitoring and review.
This provides a useful framework in terms of the conceptualisation and implementation of a policy or program for the purposes of considering the specific question of: how to plan for the possible cancellation of the policy or program? This issue needs to be considered specifically in this phase as it determines the types of issues that may arise upon cancellation and the mechanisms or protections that may be available to assist in the event that cancellation eventuates. However, there will be issues that arise upon cancellation that could not have been foreseen or anticipated as well as those issues that are an inevitable result of cancellation that will need to be addressed.
In light of this, this seminar is divided into two parts:
1. Policy design and implementation – issues to address in preparation for possible cancellation
2. Policy cancellation – issues that arise upon cancellation.
The issues discussed will be addressed by reference to appropriate examples and case studies.
1. Policy design and implementation – issues to address in preparation for possible cancellation
a) Risk management, including an exit strategy (as part of contingency planning)
b) Specific risk allocation clauses:
i. insurance and insurance-related clauses
ii. indemnity clauses
iii. limitation of liability clauses
c) Other relevant contractual clauses:
i. liquidated damages clauses
ii. fitness for purpose clauses
iii. termination for convenience clauses
iv. dispute resolution clauses
v. “reasonable cooperation and assistance” provisions
d) Administrative law issues
i. merits review
ii. judicial review
e) Compliance and enforcement
i. information gathering powers
ii. civil penalty regime
iii. criminal sanctions
2. Policy cancellation – issues that arise upon cancellation.
a) Liability
i. negligence
ii. misfeasance in public office
iii. other actions
b) Dealing with claims, disputes and litigation:
i. alternative dispute resolution mechanisms
ii. compensation schemes – including the CDDA Scheme and Act of Grace Payments
iii. model litigant obligations
iv. document management
c) Other issues
i. FOI and other compulsory production processes
ii. administrative law issues
iii. employment issues and OHS prosecutions (Comcare or State WorkCover agencies
iv. parliamentary reviews, inquiries and third party reviews
v. royal commissions, commissions of inquiry and judicial inquiries (and coronial inquiries)
Presenter:
Norton Rose Fulbright AustraliaNovember 2013 / 2
Dr Ashley Tsacalos
Partner
Norton Rose Fulbright Australia
Level 18, Grosvenor Place, 225 George Street, Sydney
Level 6, 60 Marcus Clarke Street, Canberra
Tel +61 2 9330 8151 | Mob +61 402 31 32 33 | Fax +61 2 9330 8111
November 2013 / 2
Norton Rose Fulbright
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Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski L.L.P., each of which is a separate legal entity, are members (“the Norton Rose Fulbright members”) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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[1] Australian National Audit Office, “Implementation of Programme and Policy Initiatives: Making implementation matter”, Better Practice Guide, October 2006, p.1.