Important Note: the Crown Contracts Confidentiality Policy applies to all contracts entered into by inner-Budget agencies and those instrumentalities required to comply with the Treasurer's Instructions issued in accordance with the Financial Management and Audit Act 1990 - not just procurement contracts!
The Crown Contracts Confidentiality Policy (Treasurer's Instruction 1401) provides that contracts between the Crown and any other party must not contain confidentiality provisions unless otherwise approved by an agency Head. Such approval can only be given in specified circumstances. Treasurer's Instruction 1401 sets out the policy coverage and compliance requirements.
The policy also requires contracts valued at more than $2 million to be made publicly available. Access requirements are contained in Treasurer's Instructions 1110 and 1212 (procurement contracts) and Treasurer's Instruction 1402 (all other contracts).
Guidance information is contained in the following publications. Links to these are included in the Resource Centre in the right hand side of this page.
- Crown Contracts Confidentiality Policy;
- Crown Contracts Confidentiality Policy - Frequently Asked Questions; and
- Guidelines for determining requests for confidentiality in accordance with the Crown Contracts Confidentiality Policy.
The policy does not apply to:
- a contract in existence prior to 15 February 2007;
- a novation of a contract that occurs by exercise of a contractual entitlement to novate in existence on 15 February 2007;
- a confidentiality provision in a contract that relates to information protected under the Personal Information Protection Act 2004 (Tas) or the Privacy Act 1988 (Cwlth), that is itself included in a contract;
- a confidentiality provision included in a contract to comply with an obligation under a statute or to comply with an order of a Court; or
- contracts of employment under the State Service Act 2000.
Procurement and the Crown Contracts Confidentiality Policy
Note: the information below is specific to procurement and applies is addition to the usual policy requirements referred to in Treasurer's instruction 1401, 1402 and the guidance information.
Additional requirements in relation to procurement activity are contained in Treasurer's Instructions 1124 and 1229 and summarised below.
Advice to suppliers
All potential suppliers are to be notified of the Government's policy position on confidentiality, either through the Request for Tender/Quotation documents or, where a procurement process is not conducted, by way of formal advice in writing.
Confidentiality prior to the award of a contract
All information provided by a supplier submitting a tender or quotation response is to be treated as confidential until the preferred supplier is selected and a contract is awarded.
Confidentiality in relation to contracts
After the awarding of a contract, information provided during the procurement process by each unsuccessful supplier is to continue to be treated as confidential. However, the contract with the successful supplier is required to comply with the requirements of the Crown Contracts Confidentiality Policy.
As noted in the publication, Crown Contracts Confidentiality Policy, except where approval has been given by a Head of Agency to include a confidentiality provision, all contracts should state that:
- the terms and conditions of the contract are not confidential as between the parties or any of them; and
- any party may publish or otherwise disclose any part or parts of the contents of the contract without reference to any other party.
For suitable wording for all contracts, Crown Solicitor's advice should be sought.
Approval of confidentiality provisions by a Head of Agency
A Head of Agency may approve the inclusion of a confidentiality provision in a contract entered into by his or her Agency, but only strictly in accordance with the provisions of Treasurer's Instruction 1401.
Guidance information is contained in the publication, Guidelines for determining requests for confidentiality in accordance with the Crown Contracts Confidentiality Policy.
Providing access to contracts valued at more than $2 million
Agencies are required to make publicly available all contracts valued at over $2 million. The publication must occur within 10 working days of:
- the date that all parties sign the actual written contract; or
- the date that signed counterparts are exchanged; or
- in cases where there is a period of due diligence or specific conditions that need to be satisfied before the contract is formally finalised, the date that the contract is completed (note that completed does not mean the completion of the delivery of goods and/or services provided under the contract).
Detailed information on the accessibility requirements are contained in the following documents:
|Contract type||Treasurer's Instruction||Guidance documentation|
|Procurement contacts (any contract arising from a procurement including direct selections etc)||Treasurer's Instructions 1110 and 1212||Crown Contracts Confidentiality Policy|
Access to contracts valued at or under $2 million
Only contracts valued at over $2 million need to be published on the Tenders website. However, as it is not permitted to include confidentiality provisions in a contract without approval by the Head of Agency, contracts valued at or under $2 million will be available through the normal Right to Information Act processes.