Industry Advocate Act 2017

The Act has a small set of core concepts that determine its scope and effect: SAIPP, public authority, government contract, procurement operations, participant, Industry Advocate, prescribed public authority, and government expenditure. Each term is defined and constrains where the Advocate’s powers operate.

• SAIPP (s 4): The South Australian Industry Participation Policy is a Minister-created, maintained and published policy applying to government contracts of a class or classes specified by the Minister. The Minister must actively seek to promote economic development in South Australia, value for money, development of the steel industry and other strategically important industries, and give capable South Australian businesses full, fair and reasonable opportunity to tender and participate in government contracts (s 4(1)-(2)). The SAIPP may incorporate guidelines (s 4(3)) and must be publicly accessible (s 4(4)).

• Public authority and prescribed public authority (s 3): The Act distinguishes between “public authority”, which includes a broad range of Crown agencies and bodies established for public purposes (s 3 public authority), and “prescribed public authority”, which will be those bodies declared by regulation. The definition of public authority does not include prescribed public authorities (s 3). This allows the regulations to add or remove bodies from the Act’s scope.

• Procurement operations and government contract (s 3): “Procurement operations of an authority” is defined expansively to include procurement of goods and services, management of goods, contract management and disposal of surplus goods (s 3 procurement operations). The definition expressly excludes grants classified as grants under Treasurer’s instructions and other operations excluded by regulation (s 3(e)-(f)). “Government contract” is further defined by reference to procurement operations, public/private partnerships, Commonwealth-funded infrastructure managed by the State and projects receiving State funding or assistance (s 3 government contract). The Act therefore targets procurement and funded projects rather than grant-funded programs where Treasurer’s instructions classify payments as grants.

• Participant (s 3 and s 13(6)): A participant in a contract includes contractors, subcontractors and suppliers and extends to former participants in current or former contracts (s 13(6)). This broad reach brings downstream suppliers and subcontractors into the Advocate’s investigatory and directional powers.

• Industry Advocate (s 5-6): The Advocate is appointed by the Governor and is an agency of the Crown (s 5). The functions (s 6) combine promotional activity (building capability, encouraging local government adoption of similar policies), complaint handling, investigatory monitoring and limited enforcement through directions to participants and reporting to the Minister. The Advocate may assist in negotiating Industry Participation Plans and ensure their compliance with SAIPP prior to finalising contract conditions (s 6(e)).

• Powers and limits: Key powers include requiring information and documents from participants (s 13), issuing directions to participants to comply with SAIPP obligations where non‑compliance is reasonably believed (s 14), and reporting failures to the Minister (s 15). Limits include a prohibition on compelling production of legally privileged materials and protection for natural persons against self-incrimination (s 13(3)-(4)), Ministerial inability to direct a particular investigation and a requirement for written directions and reporting of Ministerial directions (s 7(2)-(3)).

These concepts create a framework where a statutory policy operates through contract terms, monitored and enforced by a Crown agency that has both an advisory and a coercive role limited to directing participants and elevating non-compliance to ministerial attention.

The Act affects a constellation of actors in South Australian procurement and related contracting activity. The primary categories are public authorities and the participants in government contracts, with additional effects on local government, subcontractors and suppliers, businesses based in South Australia and the Industry Advocate’s own staff.

• Public authorities: The Minister must establish the SAIPP for government contracts of classes determined by the Minister (s 4(1)). “Public authority” is broadly defined to capture administrative units, agencies and bodies established for public purposes (s 3 public authority). The Act enables the Minister to select which classes of contracts the SAIPP will cover and to exclude operations or actors by regulation. The Act therefore imposes a governance obligation on the Minister and an expectation that public authorities adhere to SAIPP requirements for procurement operations that fall within the policy’s scope.

• Participants in government contracts: The Advocate’s investigatory and enforcement powers target “participants in a contract”, which the Act defines as parties to the contract and any subcontractors or suppliers engaged for the purposes of the contract (s 3 participants). The definition is extended in the information powers to include former participants in current or former contracts (s 13(6)). This means prime contractors, sub-contractors and supply-chain entities can be required to produce documents, can be issued directions to comply with SAIPP obligations and can be the subject of reports to the Minister regarding non-compliance (s 13, s 14, s 15). The Act therefore directly affects private businesses contracting with the State.

• Businesses based in South Australia: The SAIPP’s objectives require the Minister to seek to promote capable South Australian businesses being given full, fair and reasonable opportunity to tender and participate (s 4(2)(d)). This creates an explicit policy preference that may influence procurement design, tender evaluation and contract conditions, and is the central beneficiary group the Act aims to promote.

• Local government: The Advocate is tasked with encouraging adoption of industry participation policies by local government and with investigating and monitoring compliance with such local government policies where they exist (s 6(h)-(i)). This creates an indirect effect on local councils that adopt their own industry participation frameworks, because their contractors become subject to the Advocate’s oversight.

• Industry Advocate and staff: The Advocate and deputies are senior officials subject to the Public Sector (Honesty and Accountability) Act 1995 (s 10) and are appointed for terms not exceeding five years (s 8(1)). The Act affects how the Advocate will be staffed, how delegations work (s 11-12), and what information can be published given FOI carve-outs (s 17).

• Others affected by confidentiality and information powers: Persons involved in administering the Act, and anyone who provides information to the Advocate, are subject to confidentiality obligations under s 16. Police and officials enforcing other trade or consumer protection laws are specifically permitted recipients under the confidentiality provisions (s 16(1)(d)-(e)).

Who pays: Costs fall primarily on participants in government contracts who must comply with industry participation plan requirements, provide information to the Advocate on notice (or risk a $20,000 penalty under s 13(2)), and may need to adjust subcontracting or procurement practices to meet SAIPP objectives. Public authorities and the State incur administrative costs maintaining and publishing the SAIPP, liaising with the Advocate, and potentially negotiating amendments to Industry Participation Plans when the Advocate intervenes.

Who decides: The Minister decides what classes of contracts the SAIPP applies to and issues the SAIPP (s 4(1)). The Advocate decides investigations, issues directions to participants where the Advocate reasonably believes non-compliance exists (s 14(1)), and refers unresolved matters to the Minister (s 6(d)). The Governor appoints the Advocate (s 5(2)) and may terminate appointments on specified grounds (s 8(2)).

The Act assigns specific duties to the Minister, the Industry Advocate and participants in government contracts, and it recognises certain rights and protections for participants.

Ministerial duties and discretions:

• Establish and maintain the SAIPP and ensure it is published and available for inspection (s 4(1), s 4(4)).
• In establishing and maintaining the SAIPP, the Minister must seek to promote specified objectives including South Australian economic development, value for money, steel and other strategic industries, and giving capable South Australian businesses full, fair and reasonable opportunity to tender (s 4(2)).
• The Minister may give directions to the Industry Advocate but must consult with the Advocate before doing so, cannot direct the Advocate in relation to a particular investigation, and must communicate any direction in writing and include it in the Advocate’s annual report (s 7(1)-(3)).
• The Minister determines classes of government contracts to which the SAIPP applies (s 4(1)) and may, through regulations, declare prescribed public authorities or exclude operations from the procurement definition (s 3(f)).

Industry Advocate duties and powers:

• Promote the objectives of the SAIPP, including building capability and capacity of South Australian businesses (s 6(a)).
• Receive and investigate complaints from businesses and industry representatives about the SAIPP and make recommendations to responsible officers and principal officers of public authorities (s 6(b)-(c)).
• Review and assist in negotiation of Industry Participation Plans to ensure compliance with SAIPP before finalising contract conditions (s 6(e)).
• Investigate and monitor compliance with SAIPP by participants, take action to promote compliance including issuing directions to participants to comply with contractual SAIPP obligations, and report non-compliance to the Minister where appropriate (s 6(f)-(g), s 14, s 15(b)).
• Encourage adoption of industry participation policies by local government and monitor compliance with such policies (s 6(h)-(i)).
• The Advocate may delegate functions in writing, subject to limitations (s 12).

Participant duties and rights:

• Participants must comply with their contractual obligations in respect of the SAIPP; if the Industry Advocate reasonably believes they are not, the Advocate may direct them to comply (s 14(1)).
• If issued with a direction under s 14, a participant may respond to the Advocate with reasons that non-compliance was reasonable and justifiable; the Advocate must give a reasonable opportunity to respond or to comply before reporting to the Minister (s 14(2)-(3), s 15(b)).
• A participant must provide information or documents required by a written notice from the Advocate within a reasonable time specified, subject to an express maximum penalty of $20,000 for failure to comply (s 13(1)-(2)).
• Legal professional privilege is preserved; the Advocate cannot compel production of privileged material (s 13(3)). A natural person cannot be compelled to provide material that might tend to incriminate them (s 13(4)). These are rights recognised within the information-gathering regime.

Operational duties and constraints:

• The Advocate must include Ministerial directions in its annual report (s 7(3)(b)).
• Confidentiality obligations apply to persons involved in the administration of the Act, with limited exceptions and penalties for improper disclosure (s 16).
• The Advocate is subject to the Freedom of Information Act 1991 in a limited way; it is an exempt agency except for financial/administrative information and non‑identifying statistical information (s 17).

Other rights and employment terms:

• The Advocate and deputies are appointed for terms not exceeding five years and are eligible for reappointment; the Governor sets conditions and may terminate on enumerated grounds including misconduct, conviction for an imprisonable offence, bankruptcy, disqualification under the Corporations Act or incapacity (s 8(1)-(3)). Resignation requires three months’ written notice unless the Minister accepts a shorter period (s 8(4)).

These duties and rights set up a compliance framework that relies primarily on contractual obligations within government contracts, the Advocate’s information powers and a directional enforcement mechanism backed by ministerial reporting.

The Act offers a limited enforcement toolbox that combines information-gathering powers, a civil-direction mechanism against participants, reporting to the Minister and statutory confidentiality offences. It does not create direct civil fines for SAIPP non-compliance beyond the statutory penalty for failure to comply with information notices and the confidentiality offences.

Information and document powers:

• The Industry Advocate may require participants in contracts to provide information or documents in the participant’s possession by written notice served personally or by post (s 13(1)). The notice must specify a reasonable time for compliance (s 13(1)).
• Failure to provide information or documents within the time stated attracts a maximum penalty of $20,000 (s 13(2)). The wording indicates this is a statutory penalty for non-compliance with an information notice rather than a contractual remedy, and it applies to participants as defined, including subcontractors and former participants in current or former contracts (s 13(6)).
• The Act preserves legal professional privilege so that the Advocate cannot compel production of documents privileged on that ground (s 13(3)). Natural persons cannot be compelled to give information or documents if doing so might tend to incriminate them of an offence (s 13(4)).

Directional enforcement:

• If the Industry Advocate reasonably believes a participant is not complying with their contractual SAIPP obligations, the Advocate may issue a written direction requiring the participant to comply (s 14(1)).
• The participant may respond to the Advocate explaining why non-compliance is reasonable and justifiable (s 14(2)). The Advocate must give the participant a reasonable opportunity to respond or to comply before reporting a failure to comply with a direction to the Minister (s 14(3), s 15(b)).
• Where the Advocate is not satisfied that failure to comply was reasonable and justifiable, the Advocate must report the failure to the Minister (s 15(b)). The Act does not prescribe a specific sanction that the Minister must apply once notified; Ministerial or contractual consequences (such as contract termination, withholding payments or seeking remedies under the contract) would depend on the contract terms and separate public law or procurement rules.

Confidentiality offences:

• Persons engaged in administering the Act must not divulge personal information, trade secrets, business processes or financial information acquired through administration of the Act except in limited circumstances detailed in s 16(1) (consent, authorised disclosure, administration of the Act, disclosure to police or to persons administering other trade/consumer laws, or for legal proceedings). A breach attracts a maximum penalty of $20,000 (s 16(1)).
• Information disclosed under the permitted exceptions may only be used for the particular purpose of disclosure; using it for another purpose is separately penalised up to $20,000 (s 16(2)).

Other enforcement features:

• Ministerial directions to the Advocate must be recorded in writing and included in the Advocate’s annual report (s 7(3)). While this is not a penalty, it is a transparency and accountability mechanism that links ministerial supervision to public reporting.
• The Advocate is an agency of the Crown (s 5(2)). The appointment and termination provisions (s 8) create employment and public sector accountability consequences for the Advocate rather than direct enforcement against others.

Notice and due process safeguards:

• The Act provides a procedural safeguard to participants by requiring the Advocate to permit a response to a direction under s 14 before reporting to the Minister (s 14(3)). The Act does not set adjudicative processes or appeal rights within the Act itself for a direction; remedies would therefore be obtained, if at all, through contract law, administrative law (judicial review) or other legal mechanisms external to this statute.

In short, the statutory penalties are focused on failure to comply with information notices (s 13) and unauthorised disclosure/misuse of confidential information (s 16). Enforcement of SAIPP obligations primarily occurs through directions to participants and elevation of unresolved matters to Ministerial attention, rather than fixed civil fines for SAIPP non-compliance contained in the Act.

The Act cross-references and interacts with a series of existing statutes and administrative instruments, and its practical effect depends on procurement law, public finance directions and administrative law principles.

Key statutory and regulatory cross‑references:

• Treasurer’s instructions under the Public Finance and Audit Act 1987: The Act excludes from “procurement operations” funding arrangements that, in accordance with Treasurer’s instructions, are classified as grants (s 3(e)). This creates a direct interaction between the SAIPP’s coverage and the Treasurer’s classification guidance under the Public Finance and Audit Act 1987. Practitioners must examine those Treasurer’s instructions to determine whether a funding stream is a grant or procurement, as this determines whether the Advocate’s remit applies.

• Public Sector (Honesty and Accountability) Act 1995: The Industry Advocate, the Deputy and any acting Advocate are senior officials for the purposes of this Act (s 10). That designation subjects the Advocate to the honesty and accountability obligations under that Act.

• Corporations Act 2001 (Commonwealth): One ground for termination of appointment is disqualification from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 (s 8(2)(d)). This imports Commonwealth corporate disqualification rules into the Advocate’s termination regime.

• Freedom of Information Act 1991 (SA): The Industry Advocate is an exempt agency under the FOI Act in respect of information other than financial and administrative information relating to the Advocate’s operations, and statistical information that does not identify persons or businesses (s 17). That means, subject to those carve-outs, the Advocate is treated specially under the FOI regime and many records related to investigations will be protected from FOI requests. That interacts with transparency obligations and could affect access to documents otherwise available under FOI.

• Other laws for disclosure and law enforcement: The confidentiality exceptions in s 16 permit disclosure to police or to persons concerned in the administration of another law of the State or other jurisdictions relating to trade or commercial practices or consumer protection (s 16(1)(d)-(e)). This allows the Advocate to share information with regulators for enforcement of other laws.

• Contract law and procurement rules: The Advocate’s enforcement powers are framed around contractual obligations to comply with SAIPP. The Act gives the Advocate power to direct participants to comply (s 14), but does not itself amend contract remedies or procurement rules. Outcomes such as contract termination, withholding payments or damages for breach will depend on contract terms and general law. The Advocate may review Industry Participation Plans prior to finalisation of contract conditions (s 6(e)), which affects the negotiation stage of contract formation.

Delegation and administrative law:

• The Advocate may delegate functions or powers except prescribed functions or powers (s 12(1)). The Minister may also delegate a function or power under the Act (s 12(2)). Delegations are required to be in writing and are revocable (s 12(4)). A delegation to a person who is not a Public Service employee requires Ministerial consent (s 12(3)). These delegation rules interact with public sector employment law and the administrative law principles governing valid delegation and exercise of statutory powers.

Regulation-making power:

• The Governor may make regulations as are contemplated by or necessary for the Act (s 18). Regulations can therefore shape who is a “prescribed public authority”, exclude operations from the procurement definition and affect the practical scope of the SAIPP.

Practical interplays to note:

• The effective reach of the Advocate is shaped by where procurement is treated as grants under Treasurer’s instructions. Projects funded but classified as grants may be excluded (s 3(e)). Commonwealth funding that is managed by the State is captured if it falls within s 3(c), subject to definitions and any conflicting Commonwealth procurement rules.
• The FOI carve-out for the Advocate means that investigative records will largely be shielded from public FOI requests, except for financial/administrative records and non‑identifying statistics (s 17). This interacts with transparency expectations of procurement processes.
• Legal professional privilege and privilege against self-incrimination are explicitly preserved in the information-gathering regime (s 13(3)-(4)). This interacts with the Advocate’s investigatory reach and limits compelled disclosure of certain categories of material.

Overall, the Act is designed to operate alongside existing procurement, corporate and administrative law frameworks, relying on contract terms and existing legal remedies for many compliance outcomes while adding a focused information and directional enforcement role for the Advocate.

The legislative history contained within the Act is concise and records the Act as a 2017 enactment with a commencement date at the start of 2018. The principal Act details are:

• Industry Advocate Act 2017, No 42, assented 31 October 2017 (Act No 42 of 2017) and commenced 1 January 2018, as recorded in the Gazette on 19 December 2017, page 5120 (Legislative history notes at end of Act).

The text provided does not record any subsequent amending Acts or subordinate instruments beyond the regulations power in s 18 and references to potential guidelines incorporated into the SAIPP (s 4(3)). It does not list any transitional or savings provisions or later legislative changes. Practitioners relying on this statutory text should verify the consolidated legislation on the South Australian legislation website or the Index of South Australian Statutes for post-2017 amendments or regulations made under s 18 that could alter scope,for example, regulations that declare particular bodies as prescribed public authorities or exclude classes of operations from the procurement definition (s 3(f)).

The Act shows the standard commencement arrangement and allows the Governor to make regulations contemplated by the Act (s 18). Because the Act’s operational scope depends on delegated instruments,regulations and Ministerial SAIPP content,the full practical effect of the statute is partly implemented by executive instruments and must be checked against those instruments. The Act itself creates the structure and the statutory powers; changes in reach or application are therefore likely to appear through:

• the content of the SAIPP issued by the Minister under s 4;
• regulations made under s 18 that could add or exclude prescribed public authorities, and that could exclude some procurement operations from the s 3 definition; and
• Treasurer’s instructions under the Public Finance and Audit Act 1987, which the Act expressly references in relation to grants being excluded from procurement (s 3(e)).

There is no record in the Act text of subsequent amendments, repeals or consolidation. Users should consult official consolidated legislation and subordinate instruments for any post-2017 updates that would materially change the duties, powers, definitions or penalties in the Act.

The Act as provided contains no citation of cases and no record of litigation. The legislative history notes the Act’s assent and commencement dates but does not list any judicial consideration, interpreted cases, or appellate decisions arising under the Act.

That absence in the statute text is not evidence that litigation could not arise. The Act creates several potential nodes of dispute where litigation or administrative review would be foreseeable in practice, including but not limited to:

• challenges to the validity of a Ministerial direction to the Industry Advocate, especially if the complainant alleges failure to comply with s 7 procedural requirements such as consultation between Minister and Advocate or the statutory prohibition on directing a particular investigation (s 7(2)). Any such challenge would be grounded in administrative law principles, though the Act does not itself specify review mechanisms.
• disputes over the Advocate’s exercise of information powers under s 13, including contested claims of reasonable time, scope of the notice, applicability of legal professional privilege (s 13(3)), and the operation of the privilege against self-incrimination for natural persons (s 13(4)). Enforcement of the s 13 penalty could be litigated if invoked in proceedings.
• legal conflicts arising from the Advocate issuing a direction to a participant under s 14 and the participant contesting the lawfulness of that direction or seeking to defend non-compliance by invoking the reasonableness and justifiability pathway in s 14(2). Because the Act does not provide an internal appeal or review process for directions, affected parties may seek remedies through contract law or judicial review of administrative action.
• confidentiality disputes under s 16, such as allegations of unauthorised disclosure of commercial information or the permitted use of disclosed information, could generate civil claims or statutory enforcement, given the $20,000 maximum penalties and statutory prohibition on using disclosed information for other purposes (s 16(2)).

Practitioners should be aware that the Advocate’s status as an agency of the Crown (s 5(2)), combined with FOI exemptions (s 17), may shape litigation strategies involving access to documents and the availability of remedies. For example, the FOI exemption means many investigative records will not be accessible via FOI, shifting the avenues for evidence to other discovery mechanisms in litigation or statutory disclosure channels such as production notices under s 13.

Because no cases are named in the Act, and no litigation record appears in the legislative history provided, this section records an absence of statutoryly listed litigation but highlights predictable dispute points where legal proceedings may be brought and where practitioners will need to consider privilege, procedural fairness, and the intersection of contract remedies with administrative oversight. Users should search case law databases and official court records for any subsequent judicial decisions interpreting the Act or its provisions.

This section flags operational and legal pitfalls that are embedded in the Act’s drafting and structure. Each item is grounded in a statutory provision and describes the mechanism of risk or unintended consequence rather than offering policy judgement.

1. Scope depends on Ministerial choice and regulations (s 4(1), s 3, s 18)

• The SAIPP applies only to government contracts of classes determined by the Minister (s 4(1)). The Minister also decides policy content (s 4) and regulations can declare or exclude prescribed public authorities or classes of procurement operations (s 3(f), s 18). As a result, the Advocate’s practical jurisdiction may be narrower or broader depending on administrative choices. Procurement practitioners must confirm whether a specific contract is captured by the current SAIPP and any regulations.

2. Grants may be excluded (s 3(e))

• Procurement operations specifically exclude provision of funding classified as grants under Treasurer’s instructions (s 3(e)). Projects funded by the State or Commonwealth may still escape SAIPP coverage if Treasurer’s instructions classify the funding as a grant. Relying parties should not assume all state-funded projects fall under SAIPP without checking Treasurer’s guidance.

3. Advocate can compel non-privileged documents including from former participants (s 13(1), s 13(6))

• The Advocate’s notice power reaches participants and former participants in current or former contracts (s 13(6)). While legal professional privilege and the privilege against self-incrimination are preserved (s 13(3)-(4)), other commercially sensitive material can be compelled. Participants should maintain clear records about what is privileged and plan for document retention and production.

4. Monetary penalty limited to information notice non-compliance and confidentiality breaches (s 13(2), s 16)

• The Act prescribes a maximum $20,000 penalty for failure to comply with a s 13 notice (s 13(2)) and for unauthorised disclosure or improper use of confidential information (s 16(1)-(2)). The Act does not create statutory monetary fines for failure to meet SAIPP obligations per se; enforcement of SAIPP compliance relies on directions and ministerial reporting (s 14-15). Parties should be aware that the Advocate’s direction may trigger contract-based remedies outside the Act.

5. Direction mechanism places the burden on the Advocate’s reasonable belief (s 14(1))

• The Advocate may issue a direction where the Advocate reasonably believes a participant is not complying with contractual SAIPP obligations (s 14(1)). The statutory threshold is the Advocate’s reasonable belief rather than a judicial determination, so participants may be directed based on investigatory findings the Advocate deems sufficient. Participants must be ready to respond promptly and to justify non-compliance as reasonable and justifiable under s 14(2).

6. Limited procedural protections in the Act for contesting directions (s 14(2)-(3))

• The Act requires the Advocate to give a participant a reasonable opportunity to respond or to comply before reporting a failure to comply (s 14(3)). The Act does not set out an internal appeal or escalation process against a direction or against a Ministerial response once the Advocate reports non-compliance. Remedies may therefore be limited to external legal processes, such as judicial review or contractual remedies.

7. FOI exemption reduces public transparency (s 17)

• The Advocate is an exempt agency under the Freedom of Information Act 1991 except for financial and administrative information and non‑identifying statistical information (s 17). Investigative records and correspondence will often be shielded from FOI, reducing external visibility into the Advocate’s investigations and Ministerial interactions. Stakeholders concerned with transparency should plan accordingly.

8. Confidentiality exceptions widen potential disclosures (s 16(1))

• The confidentiality regime permits disclosure without consent in multiple scenarios (s 16(1)(b)-(e)), including authorised disclosures and sharing with police or persons administering other trade or consumer laws. Businesses must recognise that information provided to the Advocate may be shared with regulators and law enforcement in defined circumstances.

9. Delegation and revocability (s 12)

• Delegations by the Advocate or the Minister must be in writing and are revocable at will (s 12(4)). Delegation to non-Public Service employees requires Ministerial consent (s 12(3)). Stakeholders should verify who is exercising functions on behalf of the Advocate, as delegations may concentrate decision-making power in delegated officers or external delegates.

10. Industry Participation Plans review prior to final contractisation (s 6(e))

• The Advocate has a statutory role in reviewing and assisting negotiations for Industry Participation Plans before finalisation of contract conditions (s 6(e)). Parties negotiating contracts must account for potential Advocate input at the Industry Participation Plan stage and build contingencies into negotiation timetables.

These “gotchas” highlight areas where contract negotiators, procurement officers, suppliers and legal advisers must pay attention to definitions, the Minister’s choices, evidence retention and disclosure, and procedural steps for responding to directions or information notices.

This section provides practical, source-grounded steps for public authorities, participants in government contracts, and advisers to reduce legal and operational risk under the Act. Each recommendation refers to the relevant statutory provision.

For public authorities and Ministers

• Confirm SAIPP coverage: Determine whether a contract falls within the classes specified by the Minister under s 4(1). Check the current SAIPP publication on the Minister’s designated website and inspect any guidance or guidelines incorporated by the policy (s 4(3)-(4)).
• Align procurement and Treasurer’s instructions: Review Treasurer’s instructions under the Public Finance and Audit Act 1987 to confirm whether a funding arrangement is classified as a grant and therefore excluded from procurement operations (s 3(e)). Document the classification rationale for auditability.
• Publish and make available SAIPP guidelines: Ensure the SAIPP and any incorporated guidelines are published and available for inspection, as required by s 4(4). Maintain records of publication and locations for inspection.
• Build Industry Participation Plans into procurement timelines: Expect the Advocate to review and assist negotiation of Industry Participation Plans prior to finalising contract conditions (s 6(e)). Allow time in procurement schedules for Advocate review and potential modification.
• Coordinate with the Advocate on complaints and recommendations: The Advocate may make recommendations to responsible officers and principal officers to resolve complaints and improve procurement practices (s 6(c)). Treat Advocate requests and recommendations as part of procurement governance and record actions taken in response to recommendations.
• Consider confidentiality and FOI implications: Recognise that the Advocate is an exempt agency under FOI (s 17) and that some investigative materials will not be disclosable. If the procurement project involves politically sensitive information or third-party commercial secrets, coordinate disclosure protocols with the Advocate.

For participants in government contracts (prime contractors, subcontractors, suppliers)

• Prepare for information notices: The Advocate may serve written notices requiring information or documents (s 13(1)). Identify a central compliance lead to receive notices, preserve potentially responsive records and manage timely production. Notices must be complied with within the reasonable time specified to avoid a $20,000 penalty (s 13(2)).
• Assert and preserve privilege: Identify materials covered by legal professional privilege and document privilege claims. The Act expressly protects legally privileged materials (s 13(3)), so ensure privilege logs or other record-keeping are prepared to justify any non-production.
• Protect natural persons’ rights: If an information notice requires material that might tend to incriminate a natural person, advise that person of s 13(4) protection and manage production accordingly.
• Anticipate Advocate directions and reply promptly: If the Advocate issues a direction to comply with SAIPP obligations (s 14(1)), the participant may respond explaining why non-compliance is reasonable and justifiable (s 14(2)). Prepare factual and legal bases for such responses and submit them within the reasonable opportunity the Advocate must give (s 14(3)).
• Contract drafting and Industry Participation Plans: Include clear SAIPP compliance clauses and mechanisms for modifying Industry Participation Plans in contracts. Because the Advocate can review Industry Participation Plans before finalisation (s 6(e)), ensure plans are evidence-based and contain verifiable commitments.
• Confidentiality of information provided to the Advocate: Recognise that information provided to the Advocate may be treated as confidential under s 16, but that permitted disclosures include sharing with police or regulators (s 16(1)(d)-(e)). Manage expectations with commercial partners about how shared information could be used.

For local government entities

• Consider adopting an industry participation policy: The Advocate is tasked with encouraging local government adoption (s 6(h)) and monitoring compliance with such policies where they exist (s 6(i)). Evaluate local policy design, make it transparent, and coordinate with the Advocate when a policy is introduced.
• Assess contracting processes: Local governments adopting such policies should adjust procurement processes and contract templates to align with SAIPP objectives and be prepared for Advocate requests and oversight.

For legal and compliance advisers

• Document compliance decisions: Keep contemporaneous records showing how bidding and supplier selection decisions met SAIPP criteria and value for money principles, particularly if the Advocate inquires or issues a direction (s 4(2), s 14).
• Plan for litigation contingencies: Because the Act does not set internal appeals against directions, advise clients on contractual remedies and the possibility of judicial review under general administrative law for contested decisions or procedural failures.
• Track regulations and SAIPP updates: The Act’s practical effect depends on regulations and on the SAIPP the Minister issues (s 4(1), s 18). Maintain a watch on subordinate instruments and SAIPP updates.

Document retention and governance

• Retain records of Industry Participation Plans, tender evaluations, supplier communications, subcontract arrangements and all documents that could be requested under s 13. Because the Advocate can retain a document temporarily to copy or inspect (s 13(5)), maintain originals and copies and a log of production.
• Ensure confidentiality controls align with s 16: Limit internal access to material provided to or obtained in connection with the Advocate’s administration; train staff on permitted disclosures and the penalties for misuse of disclosed material (s 16(1)-(2)).

Implementation checklist

• Verify whether project is captured by SAIPP and any regulations.
• Ensure Industry Participation Plan is prepared and aligned with SAIPP objectives.
• Designate a compliance officer to respond to s 13 notices and s 14 directions.
• Prepare privilege logs and legal advice to preserve privilege claims.
• Document decisions and rationale for supplier selection and subcontracting.
• Coordinate with the Advocate early in negotiations where practicable per s 6(e).

By following these steps, public authorities and participants can reduce enforcement risk, respond effectively to information requests and directions, and align contracting practice with the SAIPP’s published objectives and requirements.