1. 1 1 1 [ideas clarity results] Effective Use of New Service Funding Agreements Demystifying the standard agreement Dr Nick Seddon Special Counsel, Blake Dawson Waldron

2. 2 [ideas clarity results] The agreement - what is it?  Legally, probably a contract  Case law that indicates that these types of agreements are not contracts  But case law is probably out of date  The government certainly wants this to be a contract

3. 3 [ideas clarity results] What is a contract?  A legally enforceable agreement  Therefore the funding agreement is legally enforceable

4. 4 [ideas clarity results] Legal enforceability - what does that mean?  Ultimately, either party can enforce in a court  Enforcement is problematic with this type of contract  Usual remedies are not very appropriate eg. damages  Lack of enforceability explains why agreement is somewhat prescriptive

5. 5 [ideas clarity results] Self-enforcing remedies (ie. not court enforced)  Most obviously, government can withdraw funding/terminate  Lesser measures are included such as dispute resolution

6. 6 [ideas clarity results] Nature of contract  Obviously very different from commercial contract  Not a zero-sum game like many commercial contracts  Co-operative and work-together ethic in Background

7. 7 [ideas clarity results] The important bits  Clause 2 - duration - is important for funding security  The services - what the organisation has to do  The funding - what the organisation gets to do it

8. 8 [ideas clarity results] Duration Probably a matter of policy but obviously the longer the better from organisation’s perspective eg recent move to triennial funding

9. 9 [ideas clarity results] What the organisation has to do  Combination of cls 3 (services), 5 (various), Sched 2 (services), Sched 3 (reports)  Plus some other bits and pieces eg insurance in cl 5.3 and Sched 6

10. 10 [ideas clarity results] How is performance measured?  Quality of human services very difficult to measure but remember cl 5.6 (User Satisfaction)  Outcomes (item 2 of Sched 2) often very difficult to state  Outputs (item 3 of Sched 2) easier to state but may not be a significant indicator of performance (eg people through the door)

11. 11 [ideas clarity results] How is performance measured?  Performance indicators (item 4 of Sched 2) - how different from outcomes or outputs?  How are performance requirements (item 5 of Sched 2) and quality standards (item 6 of Sched 2) measured and how are they different from items 2-4?

12. 12 [ideas clarity results] How is performance measured?  It is very important to pin these things down so as to avoid potential disagreement later  If they cannot be pinned down then omit them  No point in setting standards that cannot be met or cannot be measured

13. 13 [ideas clarity results] Routine obligations  Meeting various accountability obligations is demanding  For example, reporting requirements  Diverts resources from main task  Nevertheless, must be done

14. 14 [ideas clarity results] Routine obligations  These are measures that can be assessed by the government  Therefore get them right e.g use Outlook or wall planner  During negotiation process, be absolutely clear about what is required  If in doubt discuss and, if necessary, confirm in writing

15. 15 [ideas clarity results] Specific clauses - the indemnity (cl 5.4)  Could look worrying but very low risk  It is about the organisation doing something that exposes the Territory to a loss or a claim - organisation must indemnify the Territory  Either insure (if reasonably available) or go bare (with very small risk of going into liquidation)

16. 16 [ideas clarity results] Specific clauses - conflict of interest (cl 7)  It is not the end of the world to have a conflict  The important point is disclosure (if in doubt - disclose)  The conflict may then be managed  May require no action so long as everyone aware

17. 17 [ideas clarity results] Specific clauses - intellectual property (cl 9)  Could look worrying for organisation  But will rarely be a problem  Both parties are in effect non-profit bodies  If there is a potential problem, then negotiate

18. 18 [ideas clarity results] Assets - what’s covered?  Territory assets listed in Sched 5  if not listed, item worth >$3000 and bought/hired wholly or partly with the Funds  doesn’t cover the microwave or the kettle!

19. 19 [ideas clarity results] Assets - what obligations?  obligations in Sched 5 eg. maintenance and insurance  money used to purchase may have to be returned if termination of agreement (cl 11)  asset may have to be returned if not passed on to another organisation (cl 11)

20. 20 [ideas clarity results] Access to premises  Territory’s right to enter premises (cl 5.1)  must be written notice, reasonable period and reasons given  cannot access private information  can ask for specific gender of person doing inspection

21. 21 [ideas clarity results] Provision of information  Territory’s right to information (cls 5.7 and 6.4)  Request must be in writing  Must give reasonable time for compliance

22. 22 [ideas clarity results] Treatment of information by organisation  clause 8 looks long and complicated  confidential and personal information must not be disclosed  mostly common sense (if in doubt, don’t disclose)  chatting to a friend about a client is disclosure even if you trust the friend

23. 23 [ideas clarity results] Dispute resolution, stopping funds and termination  obviously try to sort out difficulty first  stopping funds or termination of agreement absolute last resort

24. 24 [ideas clarity results] Any questions?