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Legislative Assembly for the ACT: 2010 Week 01 Hansard (Wednesday, 10 February 2010) . . Page.. 262 ..


MR CORBELL (Molonglo—Attorney-General, Minister for the Environment, Climate Change and Water, Minister for Energy and Minister for Police and Emergency Services) (9.14): Mr Speaker, I want to put a couple of issues on the record before Mr Hanson’s motion is passed.

The motion will be passed, because the government will not object to this motion at all. The first reason for that is that I accept and understand that there is a legitimate interest by members to see this document, and the government has no objection to being ordered by the Assembly to produce the document. It is important to put on the record the reasons why this course of action needs to be adopted.

As I indicated earlier in the debate this evening, the contract that the territory has entered into with Bovis Lend Lease has a confidentiality clause in it in relation to disclosure of matters relating to the determination and arbitration of any disputes between the territory and the contract of BLL. The territory inserted into the contract clauses which allow the responsible minister to not abide by that confidentiality clause should it be necessary for the purposes of reporting to the Assembly in relation to the operations of the contract.

The territory and the government have always recognised that there will be circumstances where the Assembly itself will be interested in the exercise of issues around dispute between the territory and the contractor, and made sure that there were provisions in the contract that allowed the Assembly to see this. We are not in any way hiding behind any sort of commercial-in-confidence procedure. In fact, we have explicitly made sure that there are provisions in the contract to allow us to be exempt from what would otherwise be quite a routine confidentiality clause.

This expert determination was conducted by Mr Steven Goldstein. As members will see, it is 69 pages long and it outlines in detail his judgement and his determination as a legal expert in the arbitration of disputes under the contract that the territory was not responsible for the delays and that the delays were a consequence of BLL’s failure to install the security system on time.

It is important to note that BLL has not challenged this determination. It is also important to remind members why these types of clauses are in commercial contracts. They are put in commercial contracts, particularly construction contracts, to avoid the need for parties to resort immediately to the court. When these clauses are put into contracts, it allows the parties to resolve the dispute without going to court—and all the cost and time that is entailed in that—in the first instance, by instead appointing an expert independent arbiter to determine the dispute. Parties do have the opportunity, once that determination is made, to appeal it and to resort to court processes. It is worth noting that BLL have not sought to proceed to court in relation to this determination by the independent expert, and the time period has now elapsed.

Essentially, this matter about this dispute is at an end. The territory has been successful. The independent arbiter has ruled in our favour. The independent arbiter has ruled that the territory is entitled to pursue liquidated damages. That is something which is now the subject of further negotiations between the territory and the contractor.


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