Book Review: Government Contracts (5ed)

The Queen could do no wrong.

A claim against the Crown was brought by petition of right to the Governor.

Queensland’s reforms of 1866 eased that process. The reforms endured 114 years.

Yet there were wrinkles.

In 1976, the BAQ suggested things be improved. And the government listened. The Queensland Law Reform Commission’s report No.24, Actions against the Crown, is an education in the remaining defects.

The Crown Proceedings Act 1980 resulted. That Act, like ss.58 & 64 Judiciary Act (Cth), seems simple enough. Yet Mr Seddon’s popular title, about government contracts, is in its 5th edition.

There is much margin, for example, in the equation of rights of a sovereign with those of a subject as nearly as possible. I conceive this as the raison d’être for such a book. But Mr Seddon achieves a deal more.

Government work continues to be contracted out. Economists’ discussion of this new contractualism does not confront practicalities. There are costs in contract drafting and administration. Contracts do have limitations in achieving public policy outcomes, for example, where “failure to fulfil a purpose cannot be measured according to contract’s basic benchmark of damages”: para 1.2.

Having shared that insight, Mr Seddon leaves that debate to the economists. This is a lawyers’ textbook.

A new edition was warranted by changes to Commonwealth consumer protection law, if by nothing else. Mr Seddon’s thesis is that amendments, in the transition from the Trade Practices Act, have made government immune to the Australian Consumer Law in most procurement activities: Chapter 6. His analysis is required reading before commencing action in relation to tendered work for government.

Pape (the tax bonus case) and Williams (the school chaplains’ case) remain topical. Mr Seddon works through the consequences, indicating where the hidden shoals may still be. (Chapter 2)

The State Agreement in Port of Portland (another recent High Court decision) shows what infinite care in contract drafting for the Crown can achieve. Drafted another way, to get the same economic result, the contract would clearly have failed. Mr Seddon puts the case in context. He points as much to the problems avoided by the decision, as to the basis for the decision itself.

Mr Seddon does not cover the law of contract, as such. And he excludes public sector employment. He covers the extra features of contracting with the Crown.

The subject-matter is arcane, yet vital in practice. The explanations, and ordering of material, are clear. Mr Seddon is direct. He shares his views. If you doubt a view he has shared, check the footnote. This is a scholarly work. The ease of reading belies the serious intent.

The law is stated as at 1 March 2013. My copy came with a sticker under the Preface, noting the proclamation of a reform, from 1 February, by which Queensland local governments became bodies corporate. That in itself shows Mr Seddon’s industry.

David W. Marks

Level 16

Inns of Court