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Contemporary governments use contracts as a key tool of governance. Outsourcing of public services is commonplace. But should we regulate the use of such tools by means of public administrative law, or through private law, or a mixture of both? Is there an accountability deficit? What are the advantages and risks of contracting out, and how can and should the law respond?
Professor Janet McLean brings both public law and private law perspectives to bear on the subject of public contracting drawing on Australian, New Zealand and United Kingdom examples.
Principal topics include:
- The distinctive normative bases of private and private law and their implications for government contracts
- The decision to outsource
- The reach of judicial review, freedom of information and human rights law, and financial reporting rules, into the realm of contract law
- Implied terms, procedural requirements and interpretative methods in contract law
- Procurement rules and other internal government guidance
- Public private financing initiatives and other examples of government contracting
- The auditor-general and the role of private auditors.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have gained a sophisticated understanding of government contracting in its theory and practice
- Demonstrate an ability to articulate, analyse and explore whether and how the different normative commitments of public and private law can be reconciled in their application to government contracts
- Have gained specialised knowledge of the legal doctrines and practices which currently apply to government contracts in Australia, United Kingdom and New Zealand including recent developments in the field
- Be able critically to examine, analyse, interpret and assess the effectiveness of these legal rules against case studies
- Have an advanced and specialised understanding of the factors driving government contracting and the tensions they create.
Last updated: 10 November 2019