1.5  Enforceability of the contract

(a)  If the Commonwealth enters into the project agreement under its executive power, then it will be bound by its terms because its executive power to contract is unlimited. The same is also the case for the States/Territories (unless the project agreement deals with an area for which the Commonwealth has exclusive responsibility under the Constitution).

(b)  If legislation is enacted to support the project agreement, there must be compliance with the requirements of that legislation.  If the project agreement does not observe these requirements then it will be void.

(c)  All jurisdictions have enacted legislation removing common law immunity of the Crown.2  In accordance with the terms of this legislation, and subject to paragraph (b) above, the private party will be entitled to commence proceedings against the relevant government to enforce the terms of the project agreement.

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2  For example the Crown Proceedings Act 1958 (Vic) and the Crown Proceedings Act 1988 (NSW).