General disclosure principles

Accountability of the executive government to the legislature, and freedom of information for citizens, are key principles of the Westminster system of government operating in the Commonwealth, State and Territory jurisdictions.

As a general principle, this requirement for visibility and accountability means that full disclosure should be the default position for a PPP contract with the private sector, except for consideration of voluntary disclosure of the following:

•  trade secrets;

•  genuinely confidential business information; and

•  material which, if disclosed, would seriously harm the public interest.

Government must weigh up the public interest in maintaining confidentiality of the above matters against the public interest of disclosure. Confidentiality is particularly important during the bid stage where bidders supply confidential and sensitive commercial information and the disclosure of cost structures would compromise the competitive bidding process. However, transparency of the bid process is paramount to give bidders certainty and to meet public procurement probity requirements.

When drafting contracts, government must ensure that appropriate information on the project's performance is available for release during the service period. To facilitate this, contracts should include an acknowledgment by private parties that disclosure by government of information relating to the contracts under Freedom of Information (FOI) Acts will not breach confidentiality under the contracts. Furthermore, private parties should provide contractual undertakings to use reasonable endeavours to assist government meet its obligations under the relevant FOI Acts.

All PPPs will be subject to a government's specific disclosure requirements arising from tenders and contracts as determined by individual jurisdictions.