Page 1505 - Week 05 - Wednesday, 4 May 2016
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Madam Speaker, as I said, the grounds for keeping text confidential are reasonable and they are sensible. The procurement act provides that a territory entity may propose or agree to keep text confidential if it is personal information; a trade secret or other business information that has a commercial value, which could reasonably be expected to be destroyed or diminished if it were disclosed; information about the business affairs of a person; information that could put public safety or the security of the territory at risk; or information that is required by law to be kept confidential.
Mr Coe’s rather clumsy bill would have this information published in full for any project that is “related to” light rail. That potentially includes development within the light rail corridor. As I enunciate the reasons that this is such a poor bill, remember that it could apply to a raft of other projects that are within that development corridor.
Mr Coe, in his presentation speech, stated that his focus is on the financial aspects of the contract and that he is willing to work with the government to amend his bill so that trade secrets or intellectual property are not revealed. I am assuming he would also agree to have personal information withheld but even with all of those changes his bill would still be completely unacceptable.
Mr Coe’s bill would take effect on a contract that has already been tendered, had a number of interactive bidding sessions and been carefully evaluated and negotiated, including in good faith on the part of the selected tenderer—all activities that have taken considerable time and effort, and therefore expense. The months of work for both the territory and the consortia have been conducted under the clear understanding that defined classes of text within the contract may be kept confidential when the contract is published. Now Mr Coe, through his legislation, would have the territory, in effect, change its mind. If enacted, if we voted for this bill today, it would result in the territory effectively going back on its word. We sought tenders under a particular regime and we would be changing that regime in a way that would have significant potential ramifications for the successful consortium.
If the territory were to publish information in the capital metro contract that would otherwise have been kept confidential, potentially commercially valuable information would be revealed to the consortium’s competitors. It is reasonable to assume that Canberra Metro may endeavour to seek some form of recompense for what could be very significant commercial consequences. Mr Coe’s bill would leave the territory exposed to the possibility of litigation from the consortium. There is a real chance that the consortium may seek to sue the territory for damages if the bill passes.
But the potential damage is not limited to just the consortium. If any enterprise imagined for a second that the territory would go back on an understanding that was in place when tenders were submitted, when interactive bidding sessions were held, when tenders were evaluated, and during negotiations—an understanding enshrined in territory legislation—if they imagined for a second that text that would otherwise be agreed by the responsible territory entity to be confidential would suddenly be required to be published in its entirety, for all to see—the territory’s commercial standing would be demolished. And not just here, but across the world. As Mr Coe is
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