Australian Capital Territory
Legislative Assembly (Members’ Staff) Office-holders’ Hiring Arrangements Approval 2005 (No 1)
Disallowable instrument DI2005-290
made under the
Legislative Assembly (Members’ Staff) Act 1989, s 5 (2) (Office-holders may employ staff) and s 17 (3) (Office-holders may engage consultants and contractors)

    
    
1	Name of instrument
This instrument is the Legislative Assembly (Members’ Staff) Office-holders’ Hiring Arrangements Approval 2005 (No 1).
2	Commencement
This instrument commences on the day after its notification day.
3	Notes
A note included in this instrument is explanatory and is not part of this instrument.
Note	See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
4	Revocation
The following instruments are revoked:
·	DI2004-231
·	DI1997-195
·	DI1997-167

5	Approval for Act, s 5 and s 17
This instrument approves arrangements in accordance with which office-holders may, on behalf of the Territory, employ staff, or engage contractors or consultants, under the Act, section 5 or section 17.
6	Staff employment
An office-holder may only employ staff under an agreement substantially in the form set out in schedule 1.
Note	Staff are also employed subject to conditions of employment under any award or certified agreement under the Workplace Relations Act 1996 (Cwlth) that applies to the staff of office-holders.
7	Contractor and consultant engagements
	(1)	An office-holder may only engage a consultant or contractor under an agreement substantially in the form set out in schedule 2.
	(2)	A contract for services by which an office-holder engages a consultant or a contractor—
	(a)	must be endorsed by the Chief Minister, or a person delegated by the Chief Minister for this purpose, before execution by the parties; and
	(b)	must be in accordance with guidelines issued by the ACT Government Procurement Board.

Dated     16 December 2005.

Jon Stanhope
Chief Minister

Schedule 1	Staff employment
(see cl 6)

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EMPLOYMENT AGREEMENT – STAFF OF OFFICE-HOLDERS

Note:  This Agreement is of no legal effect without the prior endorsement of the Chief Minister, or a person delegated by the Chief Minister for that purpose, or, if it relates to the employment of staff by the Speaker, the Clerk of the Assembly, or a person delegated by the Clerk for that purpose.

This Agreement sets out the terms on which I will employ you, pursuant to subsection 5(1) of the Legislative Assembly (Members’ Staff) Act 1989.

1.	DEFINITIONS

1.1 	In this Agreement, the following words have the following meanings:
(a)	“Act” means the Legislative Assembly (Members’ Staff) Act 1989;
(b)	“Agreement” means this Agreement and includes any attachments or schedules;
(c)	“Award” means the ACT Legislative Assembly Members’ Staff Award 2003 as varied from time to time;
(d)	“Certified Agreement” means the ACT Legislative Assembly Members’ Staff Certified Agreement 2004–2007 and any further certified agreement which replaces that agreement;
(e)	“Determination” means any relevant determination made pursuant to the Act;
(f)	“Direction” means any relevant direction given pursuant to the Act;
(g)	“I” means the person specified in item 2 of the Attachment to this Agreement, on behalf of the Australian Capital Territory, and “my”, “mine” and “me” have corresponding meanings; 
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(h)	“You” means the person specified in item 1 of the Attachment to this Agreement and “your” and “yours” have corresponding meanings.

2.	APPLICATION

2.1 	The terms and conditions of your employment are as set out in:
(a)	the Certified Agreement;
(b)	the Award;
(c)	the Act;
	(d)	any Determinations or Directions;
(e)	this Agreement; and
(f)	other applicable laws.

3.	TYPE AND TERM OF EMPLOYMENT

3.1 	Your type of employment is as specified in item 3 of the Attachment to this Agreement.

3.2 	This Agreement is for the period specified in item 4 of the Attachment to this Agreement unless terminated earlier in accordance with this Agreement, the Certified Agreement, the Act or the Award; or extended in accordance with any Determination or Direction.

4.	PROBATION

4.1	If I determine that a probationary period is to apply to your employment, the period of probation is as specified in item 5 of the Attachment to this Agreement.

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4.2	During the probationary period I will assess whether your work performance is satisfactory and your conduct is consistent with this contract.

5.	DUTIES
5.1	Your duties, as appropriate for your classification, are:
(a)	as specified in item 6 of the Attachment to this Agreement; and 
(b)	such other duties as may be specified by me from time to time having regard to your skills, competence and training.

6.	CLASSIFICATION AND SALARY
6.1	You are employed at the classification specified in item 7 of the Attachment to this Agreement.
6.2	Your salary (excluding allowances) is as specified in item 8 of the Attachment to this Agreement.

7.	OBLIGATIONS

7.1	In performing the duties specified in accordance with clause 5.1, you will:

(a)	be punctual;
(b)	act with propriety, honesty and integrity;
(c)	act with fidelity and good faith to me;
(d)	perform your duties diligently and to the best of your skill and ability;
(e)	obey all lawful directions reasonably incidental to your position or the performance of your duties;
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(f)	comply with the terms and conditions of your employment;
(g)	notify me of any illness or medical condition affecting you which reduces your ability to carry out your duties or obligations under this Agreement;
(h)	notify me of any restrictions by statute, court order, contract, or deed on your legal capacity to perform the full range of duties specified in accordance with clause 5.1;
(i)	not misuse or misappropriate Territory property;
(j)	not harass a member of the public or another public employee, whether sexually or otherwise;
(k)	comply with the requirements of the Code of Conduct for Ministers as varied from time to time.

8.	EMPLOYEE WARRANTIES

8.1	You warrant that you:
	(a)	are and will continue to be a fit and proper person to be an employee under this Agreement; and
(b)	have discussed with me the issue of prior criminal convictions and have disclosed to me your convictions, other than spent convictions.  I agree to keep such information strictly confidential.

9.	EXCLUSIVE EMPLOYMENT

9.1	During the period of this Agreement, you must not be employed or engaged by any other person in any other capacity without my prior written approval nor will you engage in any business or undertaking without my prior written approval.
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9.2	You must not accept any payment or other benefit in money or in kind from any person as an inducement or reward for any act or forbearance in connection with your employment.

9.3	You must avoid any conflict of interest and advise me of any actual or potential conflict situation.  You must comply with any requirement that I give to eliminate or otherwise deal with that situation.

10.	DISCLOSURE

10.1	You will not, except so far as is necessary and proper to perform your duties under this Agreement, or as required by law or by me, make public or disclose to any person any information relating to:
	(a)	me and my affairs; or
	(b)	the Australian Capital Territory and its affairs.
10.2	You will use your best endeavours to prevent the use or disclosure by third parties of any information referred to in clause 10.1.

10.3	Upon cessation of your employment, you will hand over to me all information of the kind specified in clause 10.1 in your possession or control.

11.	HOURS OF WORK AND WORKING PATTERN

11.1	You are employed to work the number of hours per fortnight set out in item 9 of the Attachment to this Agreement.
11.2	If employed on a regular part-time basis, you will work in accordance with the working pattern set out in item 10 of the Attachment to this Agreement, unless otherwise agreed by me.
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12	RECORDS OF ATTENDANCE

12.1	You are required to maintain a record of your attendance for duty and absence from duty in an agreed form.

13.	RECOGNITION OF PREVIOUS AUSTRALIAN PARLIAMENTARY SERVICE

13.1	I may agree to recognise your previous Australian parliamentary service for the purpose of determining the accrual of certain entitlements.  My agreement shall be set out in item 11 of the Attachment to this Agreement or otherwise provided to you in writing.

13.2	My agreement as provided in clause 13.1 is subject to the following conditions:
(a)	previous service must have been as a staff member of a Member or Senator of an Australian parliament;
(b)	previous service may count towards the accrual of sick leave and long service leave subject to availability under item 11 of the Attachment to this Agreement;
(c)	previous service for which a payment has, or should have, been made shall not be recognised except in relation to relevant qualifying periods;

(d)	in order to be recognised, the previous service must have terminated no more than:
(i)	two (2) months prior to commencement of employment under the Legislative Assembly (Members’ Staff) Act 1989 in relation to sick leave benefits; and

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(ii)	one (1) year prior to commencement of employment under the Legislative Assembly (Members’ Staff) Act 1989 in relation to long service leave benefits
unless the Chief Minister agrees that an alternative period is appropriate in the circumstances.

14.	TERMINATION BY YOU

14.1	You may terminate this Agreement in accordance with the Act.

15.	AUTOMATIC TERMINATION

15.1	Subject to the Act, this Agreement terminates automatically if any of the circumstances specified in subsection 8(1) or 8(2) of the Act apply.

16.	TERMINATION BY THE EMPLOYER

16.1	I may terminate this Agreement in accordance with the Act, the Certified Agreement, the Award and the Workplace Relations Act 1996 (Cwlth).

16.2	On termination of employment, however occurring, you will immediately deliver to me all work-related property belonging to me or to the Australian Capital Territory which is in your possession or control.

17.	SUSPENSION

17.1	I may by written notice suspend you from duty with or without pay in accordance with the Certified Agreement if in my reasonable opinion you are or may be guilty of misconduct.

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18.	DISCIPLINE

18.1	If in my reasonable opinion you have committed a serious breach of the terms and conditions of this Agreement or you are guilty of misconduct, I may discipline you in accordance with the Certified Agreement.

19.	NO WAIVER

19.1	Failure or omission by either of us to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of either of us to seek redress for any breach of any such provision.

20.	GOVERNING LAW

20.1	This Agreement is to be governed by the law of the Australian Capital Territory.

21.	NOTICES

21.1	All notices, consents, approvals, agreements or other communications by or to the respective parties to the Agreement will be in writing and addressed to the relevant party at their usual address, or such other address as may from time to time be specified by the party in writing.

21.2	All notices, consents, approvals, agreements or other communications delivered in accordance with clause 21.1 are deemed to be duly given or made as follows:
(a)	if delivered by hand, upon delivery;
(b)	if sent by prepaid mail, upon the expiration of two days after the date on which it was so sent;

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	(c)	if sent by facsimile, upon the sender’s facsimile machine recording that the facsimile has been successfully and properly transmitted to the recipient’s address;
	(d)	if sent by electronic mail, upon the sender’s computer recording that the message has been successfully transmitted to the recipient’s electronic mail address.

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Dated			of			
	(date)			(month)			(year)

Signed by the Office-holder

In the presence of

Signed by the employee

In the presence of

Signed	Chief Minister or Clerk of the Assembly (or delegate)
	(delete whichever is appropriate)
Date

(To be signed and dated by the Chief Minister, or a person delegated by the Chief Minister for that purpose, before execution by the Parties, or, if this agreement relates to the employment of staff by the Speaker, to be signed and dated by the Clerk of the Assembly, or a person delegated by the Clerk for that purpose, before execution by the Parties).

Attachment

ATTACHMENT TO THE EMPLOYMENT AGREEMENT

	Item 1 [Clause 1.1(h)]
Name of employee:
Address of employee:
Date of Birth of employee:

	Item 2 [Clause 1.1(g)]
Name of Office-holder:

	Item 3 [Clause 3.1]
Type of Employment: (Eg. “fixed term”, “casual”)

	Item 4 [Clause 3.2]
Period of Agreement:

	Item 5 [Clause 4.1]
Period of Probation (must be specified where the employment is subject to probation):
Note:	The probationary period would normally be 3 months, or up to a maximum of 12 months if this is deemed reasonable having regard to the nature and circumstances of the employment.

	Item 6 [Clause 5.1(a)]
Duties (must be consistent with the classification and salary specified in Items 7 and 8):
	Note:	(1)	Specify the key duties from the relevant Work Level Standard; or
	(2)	If the person is engaged to undertake a specified project, provide a description of the project and/or scope of the project.

	Item 7 [Clause 6.1]
Classification (must be in accordance with the Certified Agreement):

	Item 8 [Clause 6.2]
Salary (full-time equivalent):
Salary Point (1st, 2nd or 3rd):
Note:	(1)	Specify the relevant annual salary and salary point in accordance 
			with the Certified Agreement.
(2)	The annual salary includes any non-cash benefits to which the employee is entitled under flexible remuneration arrangements, but excludes any long service leave allowance and leave loading.

	Item 9 [Clause 11.1]
Fortnightly Hours of Work (standard full-time hours are 73.5 hours per fortnight):

	Item 10 [Clause 11.2]
Working Pattern (days and times that work will be performed if less than full time):

	Item 11 [Clause 13.1]
Recognition of Previous Australian Parliamentary Service

Yes/No (strike out the answer that does not apply)

If yes, supply details of previous employment.

Schedule 2	Contractor and consultant engagements

(see cl 7 (1))

Date							

[INSERT BRIEF TITLE OF SERVICES]

AGREEMENT

BETWEEN

[INSERT OFFICE-HOLDER’S NAME] 

AND

[INSERT FULL NAME OF CONTRACTOR INCL. ACN IF COMPANY]

	

CONTENTS
1.	Interpretation
2.	Services
3.	Term
4.	Contract Price
5.	No Assignment or Subcontracting
6.	Contract Material
7.	Contractor’s Personnel
8.	Non-Disclosure of Contract Information
9.	Non-Disclosure of Confidential Text
10.	Insurance and Indemnity
11.	Termination
12.	Dispute Resolution
13.	General
14.	Legislative Assembly (Members’ Staff) Act 1989
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3

PARTIES:

[INSERT OFFICE-HOLDER’S NAME] of Legislative Assembly Building, Civic Square, London Circuit, Canberra City, on behalf of the Australian Capital Territory pursuant to section 17 of the Legislative Assembly (Members’ Staff) Act 1989 (“Office-holder”)

[INSERT FULL NAME, INCLUDING ACN FOR A COMPANY OR ABN FOR OTHER ORGANISATION] of [INSERT ADDRESS (OF REGISTERED OFFICE IF FOR A COMPANY)] (“Contractor”).

BACKGROUND

A.	The Office-holder is an office-holder of the Legislative Assembly.

B.	Section 17 of the Legislative Assembly (Members’ Staff) Act 1989 allows an office-holder to engage a consultant or contractor for the provision of services necessarily incidental to the performance of his or her ministerial or parliamentary duties.

C.	The Office-holder is satisfied that the services set out in this Agreement are necessarily incidental to the performance of his or her ministerial or parliamentary duties.

D.	The Office-holder has agreed to purchase, and the Contractor has agreed to provide, the services on the terms and conditions in this Agreement.

IT IS AGREED by the parties as follows:
1.	Interpretation

1.1	Definitions

The following definitions apply in this Agreement, unless the context otherwise requires:

“Confidential Text” means any text of this Agreement that:

(1)	either party proposes should not be disclosed (including on a public contract register); and

(2)	is specified in Item 7 Schedule 1 to this Agreement.

“Contract Information” means the kind of information that:

(1)	is or relates to documents, submissions, consultations, policies, strategies, practices and procedures of the Office-holder or the Territory which are by their nature confidential;

(2)	is notified (whether in writing or not) by the Office-holder to the Contractor as being confidential;

(3)	is specified in Item 6 Schedule 1 to this Agreement; or

(4)	is Personal Information, 

	but does not include information that:

(5)	is or becomes public knowledge other than by breach of this Agreement;

(6)	has been independently developed or acquired by the Contractor; or

(7)	has been notified in writing by the Office-holder to the Contractor as not being confidential.

“Contract Material” means all material created, written or otherwise brought into existence as part of, or for the purpose of performing the Services including, but not limited to, all reports (whether in draft or final form), documents, equipment, information and data stored by any means.

“Contract Officers” means, in relation to each party, the representatives whose names, addresses and contact details are specified in Item 1 Schedule 1 to this Agreement, or as notified in writing from time to time by one party to the other.

“Contract Price” means the amounts specified in, or calculated in accordance with, Item 3 Schedule 1 to this Agreement.

“GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).

“Invoice” means an invoice that:

(1)	is a valid tax invoice (if GST is payable in respect of the provision of the Services);
(2)	clearly sets out the amount that is due for payment, is correctly calculated and is in respect of Services that have been performed in accordance with this Agreement;
(3)	sets out details of the Services provided, and sets out or is accompanied by any other details or reports required under this Agreement; and
(4)	is rendered at the times specified in Item 3 Schedule 1 to this Agreement (if any), and addressed to the Office-holder’s Contract Officer.

“Office-holder Material” means any material provided by the Office-holder to the Contractor for the purposes of this Agreement including documents, equipment, information and data stored by any means.

“Personal Information” means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

“Procurement Act” means the Government Procurement Act 2001 (ACT).

“Services” means the services described in Schedule 2 to this Agreement.

“Special Conditions”, if any, mean the conditions agreed by the parties and set out in Schedule 3 to this Agreement.

“Specified Personnel”, if applicable, means the person(s) named in Item 4 Schedule 1 to this Agreement, or any other employee or agent of the Contractor, who is approved by the Office-holder from time to time for the purpose of clause 7.2.

“Term” means the term specified in Item 2 Schedule 1 to this Agreement, or if extended under clause 13.5, that extended term.

“Territory” means:

(1)	when used in a geographical sense, the Australian Capital Territory; and

(2)	when used in any other sense, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth).

1.2	General

	In this Agreement, unless a contrary intention is expressed:

(1)	references to “Contractor” includes any employees, agents or subcontractors of the Contractor;

(2)	references to legislation or to provisions in legislation include references to amendments or re-enactments of them and to all regulations and instruments issued under the legislation;
(3)	words importing a gender include the others; words in the singular number include the plural and vice versa; and where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; 

(4)	“include” is not to be construed as a word of limitation;

(5)	clause headings are for convenient reference only and have no effect on the interpretation of the provisions to which they refer; and

(6)	an obligation imposed by this Agreement upon more than one person binds them jointly and severally.

2.	Services

2.1	Performance of Services

The Office-holder engages the Contractor to perform the Services in accordance with the provisions of this Agreement.

2.2	Care and skill

The Contractor must perform the Services to the standard of care and skill expected of a person who regularly acts in the capacity in which the Contractor is engaged and who possesses the knowledge, skill and experience of a person qualified to act in that capacity.

2.3	Equipment

The Contractor must provide all equipment in performing the Services, unless otherwise stated in this Agreement, or unless approval has been given by the Office-holder to use specified Territory equipment.

2.4	Progress of Services

The Contractor must provide a written report to the Office-holder on the progress of the Services as requested by the Office-holder from time to time.

3.	Term

3.1	Commencement

This Agreement commences on the date:

(1)	specified in Item 2 Schedule 1 to this Agreement; or 

(2)	on which the Chief Minister, or an officer authorised for this purpose, endorses it,  

whichever is later.

3.2.	Endorsement

This Agreement does not have effect until the Chief Minister, or an officer authorised for this purpose, endorses it.  Until this Agreement is endorsed, neither party may:

(1)	exercise any rights under this Agreement;

(2)	enforce any obligations under this Agreement;

(3)	perform Services under this Agreement; or

(4)	in any way act pursuant to this Agreement.

3.3	Extension

This Agreement ends on the date specified in Item 2 Schedule 1 to this Agreement unless extended under clause 13.5 or terminated under the provisions of this Agreement.

4.	Contract Price

4.1	Invoice

The Office-holder must pay the Contractor the Contract Price following receipt of a correctly rendered invoice and otherwise in accordance with Item 3 Schedule 1 to this Agreement. 

4.2	Correctly rendered invoice

An invoice is correctly rendered if:

(1)	GST is payable in respect of the provision of the Services, the Contractor has rendered to the Office-holder a valid tax invoice as required by the GST Act;

(2)	the amount claimed in the invoice is due for payment, is correctly calculated and is in respect of Services which have been performed in accordance with this Agreement;

(3)	the invoice sets out details of the Services provided, and sets out or is accompanied by any other details or reports required under this Agreement; and

(4)	the invoice is rendered at the times specified in Item 3 Schedule 1 to this Agreement and addressed to the Office-holder’s Contract Officer or such other officer notified by the Office-holder to the Contractor to receive invoices for payment.

4.3	Incorrect payments

If, after payment, an invoice is found to have been incorrectly rendered, any underpayment or overpayment will be recoverable by or from the Contractor, as the case may be and, without limiting recourse to other available remedies, may be offset against any amount subsequently due by the Office-holder to the Contractor.

4.4	Deferral of payment

The Office-holder may, without limiting any other right he or she may have, defer payment of the Contract Price payable to the Contractor until the Contractor has completed the Services to the satisfaction of the Office-holder.

5.	No Assignment or Subcontracting

5.1	The Contractor will not subcontract the performance of the Services or assign the whole or part of this Agreement without the prior written consent of the Office-holder.  In giving consent, the Office-holder may impose any conditions the Office-holder considers appropriate.

5.2	For the purpose of clause 5.1, a change of ownership or underlying control of the Contractor of more than 50 per cent is deemed an assignment.

6.	Contract Material

6.1	Ownership of Contract Material

Ownership of all Contract Material, including any intellectual property rights, vests on its creation in the Office-holder. 

6.2	Use of Contract Material

The Contractor must ensure that:

(1)	the Contract Material is used only for the purpose of this Agreement;

(2)	the use of any Contract Material will not infringe the intellectual property rights of any third party; and

(3)	no fees, royalties or other payments are payable in respect of any third party rights as a result of the Office-holder’s (or any permitted user’s) use of any Contract Material.

6.3	Moral rights

The Contractor must:

(1)	use its best endeavours to include in the Contract Material an attribution of all authors of any work that comprises or forms part of the Contract Material; and

(2)	procure from all authors of any work that comprises or forms part of the Contract Material, their genuine written consent for the Office-holder to:

(a)	attribute the authorship of the work to the Office-holder;

(b)	not attribute the authorship of the author when using the work (including exhibiting or performing the work in, or to the, public); and

(c)	materially altering the work in any way.

6.4	Office-holder Material

Office-holder Material will remain the property of the Office-holder and the Contractor must use that material only for the purpose of providing the Services or otherwise in accordance with any conditions notified to it by the Office-holder.

6.5	Contractor’s Material

Material owned by the Contractor and used for the purpose of providing the Services remains the property of the Contractor and the Contractor grants to the Office-holder a perpetual, royalty-free licence to use the Contractor’s material to the extent necessary for the Office-holder to obtain the full intended benefit of the Services including the use of Contract Material.

6.6	Safekeeping and preservation of material

The Contractor must ensure the safe keeping and proper preservation of Contract Material and Office-holder Material in its possession or control.

6.7	Delivery of material to Office-holder

On the expiration or earlier termination of this Agreement, the Contractor must deliver to the Office-holder all Contract Material and Office-holder Material (other than copies of material that the Office-holder has authorised the Contractor to retain).

6.8	Meaning of “use”

For the purpose of clause 6, “use” includes supply, reproduce, publish, perform, communicate, broadcast, adapt and copy.

7.	Contractor’s Personnel

7.1	Suitability of personnel

The Contractor must:

(1)	ensure the Services are performed by persons who are fit and suitable to perform the Services; and

(2)	comply with all reasonable requirements notified by the Office-holder regarding the suitability and fitness of persons engaged by the Contractor for the performance of the Services.

7.2	Specified Personnel

The Contractor must:

(1)	ensure that the Services are performed by Specified Personnel (if any) or such other persons approved in writing by the Office-holder; and

(2)	if Specified Personnel are unable to perform any of the Services, provide replacement personnel acceptable to the Office-holder at no additional charge and at the earliest opportunity.

7.3	Security

The Contractor must, if using the Office-holder’s or Territory’s premises or facilities to perform the Services, comply with all security and office regulations in effect at those premises or regarding those facilities, as notified or directed by the Office-holder.

7.4	Employee and industrial relations obligations

The Contractor must, if required by the Office-holder or the Territory, provide verification of the Contractor’s compliance with its employee and industrial relations obligations for the purpose of the Procurement Act.

8.	Non-Disclosure of Contract Information

8.1	Contractor must not disclose Contract Information

Except as provided in this Agreement, the Contractor must not disclose Contract Information to any person without the prior written consent of the Office-holder except to the extent that the Contract Information is:

(1)	required or authorised to be disclosed by law;

(2)	disclosed to the Contractor’s solicitors, auditors, insurers or advisers; 

(3)	generally available to the public; or

(4)	in the possession of the Contractor without restriction in relation to disclosure before the date of receipt from the Office-holder.
8.2	Contractor to protect Contract Information

The Contractor must take all reasonable measures to ensure that:

(1)	Contract Information accessed or held by it in connection with this Agreement is protected against loss, unauthorised access, use, modification, disclosure or other misuse in accordance with reasonable procedures for that purpose; and

(2)	only authorised personnel have access to the Contract Information.

8.3	Contractor’s use of Contract Information

The Contractor must:

(1)	use Contract Information held in connection with the Agreement only for the purposes of fulfilling its obligations under this Agreement;

(2)	comply with the “Information Privacy Principles” set out in the Privacy Act 1988 (Cwlth) as if they were provisions of this Agreement; 

(3)	not transfer Contract Information held in connection with this Agreement outside the Territory, or allow any person (other than authorised personnel) outside the Territory to have access to it, without the prior approval of the Office-holder; and 

(4)	without limiting clause 10.2, indemnify the Office-holder and the Territory against any successful claim or proceeding made against the Office-holder or the Territory resulting from the Contractor’s breach of its obligations under this clause 8.

8.4	Contractor must notify the Office-holder

The Contractor must immediately notify the Office-holder if the Contractor becomes aware that:

(1)	a disclosure of Contract Information may be required by law; or

(2)	an unauthorised disclosure of Contract Information has occurred.

8.5	Acknowledgement of effect of Crimes Act

The Contractor acknowledges that the publication or communication of any fact or document by a person which has come to its knowledge or into its possession or custody by virtue of the performance of this Agreement (other than to a person to whom the Contractor is authorised to publish or disclose the fact or document) may be an offence under section 153 of the Crimes Act 1900 (ACT), the maximum penalty for which is 2 years imprisonment.

9.	Non-Disclosure of Confidential Text

9.1	Office-holder may make Agreement publicly available

In giving effect to the principles of open and accountable government, the Office-holder may disclose documents and information unless he or she has otherwise agreed, or is otherwise required under law, to keep the information confidential.  In accordance with those principles, this Agreement may be a notifiable contract under the Procurement Act and, if so, the Office-holder will be required to make the text of this Agreement available to the public, including by publication on a public contracts register.

9.2	Confidential Text

Clause 9.3 will apply if Confidential Text is specified in Item 7 Schedule 1 to this Agreement.  If the Agreement is a notifiable contract under the Procurement Act, the grounds on which the text is confidential are set out in Item 8 Schedule 1 to this Agreement.

9.3	Office-holder must not disclose Confidential Text

Except as provided in this Agreement, the Office-holder must not disclose Confidential Text to any person except to the extent that Confidential Text:

(1)	is text that the Contractor has requested to be kept confidential and the Contractor has given its prior written consent to the disclosure (which consent will not be unreasonably withheld);
(2)	is required or authorised to be disclosed under law;
(3)	is reasonably necessary for the enforcement of the criminal law;
(4)	is disclosed to the Office-holder’s solicitors, auditors, insurers or advisers;
(5)	is generally available to the public;
(6)	is in the possession of the Office-holder without restriction in relation to disclosure before the date of receipt from the Contractor;
(7)	is disclosed by the responsible Minister in reporting to the Legislative Assembly or its committees; or
(8)	is disclosed to the ombudsman or for a purpose in relation to the protection of the public revenue.

10.	Insurance and Indemnity

10.1	Contractor’s insurance

The Contractor must effect and maintain for the Term:
(1)	all insurance coverage required to be effected by it by law;

(2)	public liability insurance with coverage in the amount of not less than $20 million (or any other amount specified in Item 5 Schedule 1 to this Agreement) in respect of each claim;

(3)	professional indemnity insurance coverage in the amount of $10 million (or any other amount specified in Item 5 Schedule 1 to this Agreement) in respect of each claim and in the annual aggregate; and

(4)	any other insurance specified in Item 5 Schedule 1 to this Agreement,

with an insurer having a Standard and Poor’s or Best’s Rating A- or better and must produce evidence of that insurance as required by the Office-holder or the Territory.

10.2	Indemnity

The Contractor indemnifies the Office-holder, the Territory, their employees and agents against liability in respect of all claims, costs and expenses and for all loss, damage, injury or death to persons or property caused by the Contractor, its employees, agents or contractors in connection with the provision of the Services, except to the extent that the Office-holder or the Territory caused the relevant loss, damage or injury.

10.3	Claims to be made good

The Contractor must, at its expense, make good the amount of all claims, loss, damage, costs and expenses the subject of the indemnity in clause 10.2 and the Office-holder may deduct the amount, or any part of it, from any moneys due or becoming due to the Contractor.

11.	Termination

11.1	Default

The Office-holder may terminate this Agreement at any time by written notice to the Contractor, if the Contractor:

(1)	is or becomes bankrupt or insolvent, enters into voluntary administration or makes any arrangement with its creditors or takes advantage of any statute for the relief of insolvent debtors;

(2)	fails to commence timely provision of the Services or to meet any timeframes specified in this Agreement; or

(3)	is in breach of a provision of this Agreement, where that breach:
(a)	if capable of being remedied, is not remedied within the period specified in a written notice by the Office-holder, or
(b)	is not capable of being remedied.

11.2	Termination for any reason or reduction of Services

The Office-holder may, at any time by written notice to the Contractor, terminate this Agreement or reduce the Services for any reason, and in that event:

(1)	the Office-holder will be liable only for:

(a)	payments under this Agreement for Services rendered before the date of termination; and

(b)	subject to clauses 11.2(2) and 11.2(3), any reasonable costs incurred by the Contractor and directly attributable to the termination or reduction of Services, but not in respect of loss of prospective profits;

(2)	on receipt of a notice of termination or reduction, the Contractor must:

(a)	stop work as specified in the notice;

(b)	take all available steps to minimise loss resulting from that termination or reduction of Services to protect Office-holder Material and Contract Material; and

(c)	continue to perform any part of the Services not affected by the notice; and

(3)	in the event of a reduction of the Services, the Office-holder’s liability to pay the Contract Price will, in the absence of agreement to the contrary, abate proportionately to the reduction in the Services.

11.3	No prejudice

Nothing in this clause 11 prejudices any other rights or remedies of the Office-holder in respect of any breach of this Agreement.

12.	Dispute Resolution

12.1	Negotiation of Dispute

If a difference or dispute (“Dispute”) arises in relation to this Agreement, then either party may give written notice to the other that a Dispute exists, which specifies details of the Dispute.  The parties agree that, following the issue of that notice, they will endeavour to resolve the Dispute by negotiations, including by referring the Dispute to persons who have authority to intervene and direct some form of resolution.

12.2	Mediation of Dispute

If the Dispute has not been resolved pursuant to clause 12.1 within 28 days of the notice of the Dispute, then the parties agree that they will undertake a mediation process.  The mediator will be an independent mediator agreed by the parties or, failing agreement, nominated by the chairperson of The Institute of Arbitrators and Mediators Australia, ACT Chapter.  Unless otherwise agreed, the parties will share the costs of the engagement of the mediator.

12.3	No prejudice

Nothing in this clause 12 will prejudice the rights of either party to institute proceedings to enforce the Agreement or to seek injunctive or urgent declaratory relief in respect of any Dispute.

13.	General

13.1	Conflict of Interest

The Contractor:

(1)	warrants that, at the date of entering into this Agreement, no conflict of interest exists or is likely to arise in the performance of the Services and of its other obligations under this Agreement; and

(2)	must, if a conflict, or risk of conflict, of interest arises during the Term:
(a)	notify the Office-holder immediately in writing of that conflict or risk, and

(b)	comply with any requirement of the Office-holder to eliminate or otherwise deal with that conflict or risk.

13.2	No employment, partnership or agency relationship

(1)	Nothing in this Agreement constitutes the Contractor, or its employees, agents or subcontractors as employees, partners or agents of the Office-holder or the Territory or creates any employment, partnership or agency for any purpose.

(2)	The Contractor must not represent itself, and must ensure its employees, agents and subcontractors do not represent themselves, as being employees, partners or agents of the Office-holder or the Territory.

13.3	Entire Agreement

This Agreement comprises the entire agreement between the parties in relation to the Services and supersedes any prior representations, negotiations, writings, memoranda and agreements.
13.4	Severability

Any provision of this Agreement which is illegal, void or unenforceable will not form part of this Agreement to the extent of that illegality, voidness or unenforceability.  The remaining provisions of this Agreement will not be invalidated by an illegal, void or unenforceable provision.

13.5	Variation

This Agreement may be varied only by the written agreement of the parties prior to the expiration of this Agreement.  A variation does not have effect until the Chief Minister, or an officer authorised for this purpose, endorses it.  Until the Chief Minister, or an officer authorised for this purpose, endorses the variation, neither party may:

(1)	exercise any rights under the variation;

(2)	enforce any obligation under the variation;

(3)	perform Services under the variation; and

(4)	in any way act pursuant to the variation.

13.6	No Waiver

Failure or omission by the Office-holder at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of the Office-holder to avail him or herself of the remedies he or she may have in respect of that provision.

13.7	Governing law

This Agreement is governed by and construed in accordance with the law for the time being in force in the Territory and the parties submit to the non-exclusive jurisdiction of the courts of the Territory.

13.8	Compliance with laws

The Contractor must comply with the laws from time to time in force in the Territory in performing the Services.

13.9	Notices

Any notice, including any other communication, required to be given or sent to the Office-holder or to the Contractor under this Agreement must be in writing and given to the relevant Contract Officer.  A notice will be deemed to have been given:

(1)	if delivered by hand, on delivery;

(2)	if sent by prepaid mail, on the expiration of two days after the date on which it was sent;

(3)	if sent by facsimile, on the sender’s facsimile machine recording that the facsimile has been successfully and properly transmitted to the recipient’s address; or

(4)	if sent by electronic mail, on the other party’s acknowledgement of receipt by any means,

to the relevant Contract Officer set out in Item 1 Schedule 1 to this Agreement or such other person, address or facsimile number as may be notified by a party to the other from time to time.

13.10	Special Conditions

In the event of any inconsistency between any Special Condition and any other provision of this Agreement then, to the extent of any inconsistency, the Special Condition will prevail.

13.11	Survival of clauses

Clauses 8, 10.2 and 10.3 will survive the expiration or earlier termination of this Agreement.

14.	Legislative Assembly (Members’ Staff) Act 1989

This Agreement is subject to Division 5.1 of the Legislative Assembly (Members’ Staff) Act 1989, which forms part of this Agreement.

	◊	◊	◊

SCHEDULE 1

CONTRACT DETAILS

Item 1.	Contract Officers	For the Office-holder:	
See clauses 1.1 and 13.9	[Insert name of Contract Officer]
[Insert contact details – address and facsimile]

For the Contractor:	
[Insert name of Contract Officer]
[Insert contact details – address and facsimile]

Item 2.	Term	From [eg. the date of this Agreement]
See clauses 1.1, 3 and 13.5	until [Insert end date]

Item 3.	Contract Price	(1)	Total Contract Price:	$[Insert]
	See clauses 1.1 and 4
		(2)	If the Contract Price is payable:

(a)	as a lump sum, an Invoice may only be rendered following completion of the Services; or

(b)	by instalments, Invoices may only be rendered in accordance with the following.

Amount	When Invoice may be rendered	
	[If appropriate, the instalments may be linked to the completion of milestones listed in Schedule 2.
If Contract Price is not payable by instalments, insert “Not used”.]	

(3)	Except if otherwise stated in this Agreement, the Contract Price is:

(a)	payable within 30 days of receipt by the Office-holder of an Invoice;

(b)	inclusive of GST and all other taxes, duties and charges; and

(c)	inclusive of all disbursements, including out-of-pocket expenses incurred by the Contractor.

(4)	[If disbursements are to be paid, insert details eg. specify categories of disbursements and upper limit payable by the Office-holder or whether disbursements are to be approved in advance before the Office-holder pays].

Item 4.	Specified Personnel	Not applicable.  [Insert names if relevant]
See clauses 1.1 and 7.2

Item 5.	Other amounts and	Not used, see clause 10.1.
Insurance	[Only  complete  if  insurance  requirements  differ
See clause 10.1	from, or are in addition to, the default provisions in clause 10.1.  Note: advice from the ACT Insurance Authority should be obtained before changing insurance requirements]

Item 6.	Contract Information:	Not used.
See clauses 1.1 and 8	[Only insert details of any information (other than
Confidential Text) that the Office-holder requires the Contractor to keep confidential in addition to what is already set out in the definition of Contract Information.  If details in the definition of Contract Information are sufficient, retain “Not used”]

Item 7.	Confidential Text:	Not used.
See clauses 1.1 and 9	[Only insert details of any text in the Agreement
that either party requires the Office-holder to keep confidential.  For example, name and other personal details of Contract Officers or Specified Personnel; hourly rates or other individual components of the total Contract Price.

Note: If the Agreement is a notifiable contract under the Procurement Act, text may only be deleted from the public text of the Agreement if the Office-holder is permitted to not disclose the text on the basis of one or more of the grounds set out in section 35(1) of the Act and specified in Item 8 below]

Item 8.	Grounds for	Not used.
confidentiality of	[Only  complete  this  Item if  the  Agreement  is  a
Confidential Text	“notifiable  contract” under  the  Procurement  Act
See clause 9	and  Confidential Text  is to be  kept  confidential.
In that case, the Office-holder must be satisfied that at least one of the grounds for confidentiality set out in section 35(1) of the Act applies to the Confidential Text.  The following paragraph must be modified as appropriate and inserted here]

“The Procurement Act, part 3 (Notifiable Contracts) applies to this Agreement.  The Office-holder is satisfied that the Confidential Text is “confidential information” for the purposes of that Act because disclosure of the text would:

[FOR EXAMPLE
(1)	be an unreasonable disclosure of personal information about a person; or

(2)	be an unreasonable disclosure of information about the business affairs of a person.]”

SCHEDULE 2

THE SERVICES

The Contractor must provide the Services as follows within any specified timeframes.

Item Number	Details of Services	Timeframe for
Completion	
1	[Insert full details of Services to be performed including, eg. objectives, methodology, consultations, reports to be prepared and any timeframes for the performance of the Services eg. provision of draft and final reports etc]
		
2	[Insert details as required]
		
3	[Insert details as required]
		
4	[Insert details as required]

SCHEDULE 3

SPECIAL CONDITIONS
See clause 13.10

	[If there are no Special Conditions, insert “Not used”.] 

Item 1.	Privacy of Personal Information

	[This Special Condition should only be used in circumstances where the Contractor has access to Personal Information as part of the Services and more extensive privacy provisions are warranted.  If the Contractor is unlikely to have access to Personal Information in performing the Services, or access to insignificant amounts of Personal Information, then the standard provisions in clause 8 should be sufficient and this Special Condition should not be included in the Agreement.]

1.1	Additional privacy obligations

The following obligations are in addition to those set out in clause 8.

1.2	Employee awareness

The Contractor must ensure that any employee of the Contractor or any subcontractor, requiring access to any Personal Information held in connection with this Agreement:

(1)	makes an undertaking in writing in a form prescribed by the Office-holder to not access, use, disclose or retain Personal Information except in performing their duties of employment or contractual obligations; and 

(2)	is informed that failure to comply with this undertaking may be a criminal offence and may also lead the Contractor to take disciplinary action against the employee or subcontractor.

1.3	Reasonable requests, directions and guidelines

The Contractor must, in respect of any Personal Information held in connection with this Agreement, co-operate with any reasonable requests or directions of the Office-holder arising directly from, or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Act 1988 (Cwlth) or otherwise, including the issuing of any guidelines concerning the handling of Personal Information.

1.4	Indemnity and compensation

(1)	The Contractor indemnifies the Office-holder and the Territory in respect of any liability, loss or expense incurred arising out of or in connection with a breach of the obligations of the Contractor under this Item or for a breach of the Privacy Act 1988 (Cwlth).

(2)	In this Item “liability, loss or expense” includes any amount paid by the Office-holder, or the Territory, on behalf of the Commonwealth for an interference with the privacy of an individual being a reasonable amount as compensation for loss or damage for which the Commonwealth would have been liable under the Privacy Act 1988 (Cwlth) if that breach had been that of the Office-holder or the Territory. 

1.5	Handling of complaints

A complaint alleging an interference with the privacy of an individual in respect of any Services performed by the Contractor (“Complaint”) will be handled by the Office-holder and in accordance with the following procedures:

(1)	if the Office-holder receives a Complaint the Office-holder will immediately notify the Contractor of only those details of the Complaint necessary to minimise any breach or prevent further breaches of this Agreement;

(2)	if the Contractor receives a Complaint it must immediately notify the Office-holder of the nature of the Complaint but will only release Personal Information to the Office-holder concerning the complainant with that person’s consent; and

(3)	after the Office-holder has given or been given notice in accordance with paragraphs (1) or (2) above, the Office-holder will keep the Contractor informed of all progress with the Complaint concerning the actions of the Contractor.

1.6	Survival of Item

This Item survives the expiry or earlier termination of this Agreement.

DATE OF THIS AGREEMENT

SIGNED for and on behalf of the
[INSERT OFFICE-HOLDER’S NAME]
in the presence of:

…………………………………………….
Signature of Witness

…………………………………………….
Print name

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……………………………………….
Signature of Office-holder/Delegate*
*delete whichever is not applicable

……………………………………….
Print name	
SIGNED for and on behalf of
[NAME & ACN OF CONTRACTOR] 
in the presence of:

………………………………………….…
Signature of Witness

…………………………………………….
Print name	)
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……………………………………….
Signature of Contractor or authorised officer* 
*delete whichever is not applicable (see note below)

……………………………………….
Print name and position

……………………………………….
Signature of second authorised officer*
*see note below

……………………………………….
Print name and position

Affix common seal
if required under constitution

	
Note:  

Date: 	Must be dated on the date the last party signs the Agreement or, if signed counterparts of the Agreement are exchanged, the date of exchange.  Also date the cover page.

Individual:	Must be signed by the individual Contractor and witnessed.

Incorporated Association: 	Must be signed in accordance with the Contractor’s constitution, which may or may not require the common seal to be affixed.  As a minimum, 2 authorised officers must sign. 

Company:	Must be signed in accordance with section 127 of the Corporations Act 2001 (Cwlth), for example, by 2 directors or a director and a secretary.  Common seal may be affixed if required under the Contractor’s constitution.