Memorandum on the Confidentiality in Procurement to the Board of Directors of TransACT - Assignment Example

Pathfinder Assignment To: TransACT Board From: Date: Subject: Memorandum on the Confidentiality in Procurement to the Board of directors of TransACT. Question 1: There has to be realised that the law that is upheld in the Country holds in a sense a contradictory view to the question of privacy in the matters of dealings and tenders. The law clearly states that the privacy and confidentiality maintenance is a duty that has to be performed where certain information has to be kept from the general public as a precautionary step in cases of corporate dealing and if the contract provides for the privacy then the party which discloses the information will be viewed as a arbitrator of law1. These two thus point out the inherent contradiction that exists in the country’s law system. This act law does not affect the operation of a state law /territorial law that has clear provision as regards use, correction, disclosure, collection and/or transfer of personal information held in connection with credible reporting and is able to work concurrently with this act. What does it tell us? It looks into ensuring that the information that is gathered by the government during the conduction of an investigation is not misused or mishandled. The Privacy Act 19882, is a recognition of the value placed by the company on the manner in which the government handle the company’s information and lays stringent guidelines to which the government and its agencies must follow3.  Act 11- Information Privacy Principles (IPPs) has governing directives to the investigating offices as to the storage, collection, disclosure, and use of company information by government agencies. Why is it useful? The most important aim that the law aims and successfully fulfills is with regards to the provisions of the National Privacy principles, where it establishes firm principles with regards to the handling of company information by the government and/or other organizations in reference to the effect of other laws4. It also forms the basis of a federal statute that forbids the disclosure of specific material held by a company5 with the premise that its release could intrude into the privacy of the subject of the report /documents6. Who wrote it? The act was drafted by the Legislative Drafting & Publishing, Attorney General’s Department in Canberra. Where can it be accessed? The law can be located online in the web Privacy Act 1988 C2009C00070   1988 No.119   Act Compilation http://www.comlaw.gov.au/ComLaw/legislation/actcompilation1.nsf/0/183B454E7401C036CA25754C00174BD6/$file/Privacy1988_WD02HYP.pdf What does it tell us? It was formulated and developed by the office of the Legislative Drafting & Publishing, Attorney General’s Department in Canberra, to ensure that the privacy and the confidentiality of the private property of the citizens of the country can be upheld and maintained7. It provides a comprehensive report with brief review of copyright act as regards intellectual property, patents and trademark with legal, historical, domestic and international angles8. The act looks at ensuring that the during the disclosing or marketing the company’s invention or design in Australia, no invalidation to a future patent or design in another country is made. Why is it useful?   The fact remains that in the day and age of the existence and flourishing of a global economic order, where there has been experienced a collapse of the international and local barriers this law holds an important place. It gives coherence to the functioning of the various organizations and provides directives to the organization of the various policies of the organizations and corporations. Also there has to be realized that it holds relevance with regards to other countries and making viable selections to which copyright laws should be included in the Copyright Act and given due emphasis9. Who wrote it?  The Copyright Act was written by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra in 1968. Where can we find it?  It is available in  Australian Copyright Council’s office-PO Box 1986 Strawberry Hills NSW 2012 ,245 Chalmers Street Redfern NSW 2016, Tel (copyright information) +61 2 9318 1788, Tel (administration & sales) +61 2 9699 3247,fax +61 2 9698 3536,email info@copyright.org.au or through the ,Web address: www.copyright.org.au, ABN: 63 001 228 780 What does it tell us? The Freedom of Information act was enacted by the legislature of the country to ensure that there is transparency of functioning of all the organizations, especially that of the government bodies. It enables citizens to access information through a simple procedure, but there are certain restrictions that are present. The legislature has placed them under section 43 of the Act which contains matters where the act cannot be applied given the fact that they contain trade secrets and confidential information. Thus, the protection of the confidential information is maintained by the law. Why is it useful? The law is of great importance as it helps ensure that there is maintained a high level of clarity and transparency in the working of almost all the sections of the governmental organizations as well as other organizations and corporations that are regulated by the government. The fact remains that although there have been certain restrains that have bee applied to the Freedom of Information Act, it has allowed for a large amount of information and data to become public which was earlier classified. Who wrote it? The law was formulated largely by the Commonwealth Attorney-General's Department and was adopted in the year of 1982. Where can we find it? It can be found in Acts of the Parliament Commonwealth of Australia, 1982, Vol 1, page 7. There has to be ensured that the information that is communicated at the time of submission of tender is kept confidential as a substantial amount of information is transferred to the federal government. Thus, it is important that confidentiality from a third party is maintained at all times. TransACT is tenderer and would therefore want to ensure that the information that is transferred and kept confidential. What does it tell us? The Government of Australia deals with confidential information as per a policy provided in the Guidance on Confidentiality in Procurement – FMG3 which provides information as to which information is actually confidential and which is not10. This policy also provides for keeping confidentiality of certain information for different periods11.  Where the company provides information to the Government, the company need to reach an agreement with the government that the subsequent information is confidential and gets a binding writing to the agreement to ensure that the additional information is covered by the confidentiality12. Why is it useful?   The law is of particular use to the company  in examining constitutional issues, existing laws of confidentiality from the Australian common laws and selecting portions of the law that are pertinent to protection of the company’s information released to the government for the tendering purposes. The law of confidentiality also provides a remedy for the unauthorized disclosure and/or use of confidential information and that which is entrusted to a company in circumstances which either implicitly or expressly impose an option of confidence. Who wrote it?  It was written by judges through the decisions made by courts and other similar tribunals instead of through executive branch action or legislative statutes decisions of courts in Australia. A "common law system" is a legal system that provides great precedential weight to common law, on the premise that it is not just to treat similar facts uniquely on individual instances. Where can we find it?   This report can be found online in the following web address-www.finance.gov.au/publications/fmg-series/03-guidance-on-confidentiality-in-procurement.html. What does it tell us? As has been specified by the Australian common law, in case of arbitration between two parties the hearing and the case will be kept clear of the public eye. Under the ACICA, which is the Australian Centre for International Commercial Arbitration, Article 18.2 states that in cases of disputes of arbitration, there shall be no disclosure of any information without the consent of the concerned parties. This helps ensure that the clause of confidentiality which is concluded in the contract is maintained. Why is it useful? There has to be realised, the ACICA establishes and maintains the fact that confidentiality plays an important role while the contract is being formulated as it assures those who are party to the contract that the information will be accessed only by those in authority and thus the confidence of the contract is maintained. Who wrote it? The law was earlier formulated by the trustees and delegates like Chapman, Davies Steve, and others in the APRA under subsection 56 (5c) and was later also elaborated under Legislative Instrument Act 2003. Where can we access it? It can be accessed online at ComLaw - Federal Register of Legislative Instruments URL: Australia Law www.LAW.GOV.AU and Australia Prudential Regulation Authority found in the URL: www.Apra.gov.au. What does it tell us?  The act’s stipulates on the legislative requirements of the design on how it had been done. Sometime the company would be required to provide the design structure of the goods to be delivered. Such designs information or samples provided should be protected and kept safely. It also provides guidance on the patent Act how the company should patent its ideas and such that they are reserved to be own by them and no one else would use such information. Finally it has the details of trade mark Act. If the company will have to design products or services for supply and will need to be trade marked then it should protect it from being stolen. Why is it useful? This Act is very useful its helps to protect and safe guard the right of the intellectual property of the pursuant and organizations. This also like the copyright act help maintain the originality and ownership rights to the creator and artist of certain model or design. Who wrote it? The act was enacted by the Parliament of Commonwealth Australia in the year of 1998. Where can it be found? The act can be accessed online at the website www.intellectualproperty.org.com. At the time that the various organizations tender their various proposals a large amount of classified information is transferred. The confidentiality of these has to be maintained to ensure protection. TransACT would want to ensure that the information is protected to the maximum capacity it can be so that no third party is privy to it. What does it tell us? The Australian Copyright act of 1968 aims at ensuring that the integrity and the originality of the artist as well as the various creators are upheld and protected. The right to issue copyright is reserved to the government of the country but this proves problematic as it gives more importance to the crown and subjugates democratic forces13. But with time there has emerged a more egalitarian system and today this act is usually reviewed by the CLRC, which is the Copyright Law Review Committee. Why is it useful? Through the copyright act the government ensures that counterfeits are controlled and also ensures that the originality of the individual organizations and creators are maintained. It aims at curbing piracy. Who wrote it? It was first enforced by the Spicer committee in the year of 1969 under the colonial British regime but was later redrafted in the year of 1968. Where can it be found? It can be accessed online at www.copyright.org.au. What does it tell us? Although the book is one of the older editions and is a little out of sync with the new legalities that have emerged in the field, it is still an excellent reading for the legal backings that can be established while preparing and developing a tender. It provides for all the necessary steps that are required for the formation of a tender and looks into all the various legal protection that can be applied while formulating a tender or a contract. How is it useful? Although it is not current, being published in 1993, this book is still instructive in terms of terdering practice. By analyzing three situations which are: documents concerning tenderers` business, commercial, financial or professional affairs and documents communicated in confidence to the government and if tenderers submit sensitive information orally in relation to a tender, writers made the obligation of the organization calling for tenders and the responsibility of government and the right of tenderers.   Who wrote it? It was written by Longman Cheshire in the year of 1993 in south Melbourne. Where can it be found? University of Canberra Library    Call number: HD2365.T46 1993  What does it tell us? The two authors tells us the definition of confidential information and the obligation of third parties which receive unauthorized confidential information. The authors focus on the case, Coco v. A.N. Clarke (Engineers) Ltd [1969] RPC 41 and Fraser v. Thames Television Ltd [1982] 2 All Er 101. They indicate that to maintain there is an infringement of confidential information, the plaintiff must prove that : 1. the information is specified to be confidential in nature; and 2. the information has been imparted in circumstances importing an obligation of confidence; and 3. in breach of confidence, there is an unauthorized use of that information to the detriment of the party communicating it. How is it useful? To protect our confidential information, we have to make the definition of the confidential information. The book introduces a broadly cited case, Coco v. A.N. Clarke (Engineers) Ltd [1969] RPC 41, to show what is the confidential information in terms of statutory authority. With the legal definition, we can concentrate on the information needing protection. Who wrote it? It was written by Andy Gibson and Douglas Fraser and published in 2005 at New South West. Where can it be found? Available in hardcopy form from the listed libraries. Location Call number Australian National University Library b22295896; HELD University of Canberra Library KN250.G42 2005 National Library of Australia 3103249;N 346.9407 G448-2 Australian Taxation Office. Jan Brady Library SL 346.9407 GIB:2 Appendices i. Article for Australian Intellectual Property Law Bulletin ii. Australian Prudential Regulation Authority (confidentiality) determination No.1 of 2009 iii. Copyright Act 1968 iv. Australian Prudential Regulation Authority (confidentiality) determination No.1 of 2010 v. Review of intellectual property legislation under the Competition Principles Agreement vi. Privacy Act 1988 Reference: An Introduction to Intellectual Property; accessed on 9th March, 2010 from http://www.ipaustralia.gov.au/strategies/index.shtml Australia: Australian Common Law, accessed on March 9, 2010 at http://nabut.com/Law+of+Australia.html> Garner, B A 2001: A Dictionary of Modern Legal Usage 2 revised Ed, Oxford University Press US. Volokh E 2009: Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? July 23, 2009 at 6:48pm, accessed on 12th, March, 2010, http://volokh.com/posts/1248389303.shtml Freedom of Information Act 1982, accessed on March 12, 2010 from http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/ ALA: Confidentiality and Coping with Law Enforcement Inquiries: Guidelines for Library and its Staff, accessed on 8th March, 2010 at http://www.ala.org/Template.cfm?Section=ifissues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=21654  Salmond, John William 1907: Jurisprudence, or, The Theory of the Law (2 Ed.), Stevens and Haynes Case Law File Ref: F2008075 Kelvin Clive Pearson and Shelley Anne Pearson Vs Real Estate and Business Agents Supervisory Board, accessed on March 9 2010 at  http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WAICmr/2008/49.html?query=(privacy%20or%20surveillance%20or%20data%20protection%20or%20personal%20information%20or%20personal%20data) File Ref: F2004089 West Australian Newspapers Limited Vs Department of the Premier and Cabinet, accessed on march 9 2010 at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WAICmr/2006/23.html?query=(privacy%20or%20surveillance%20or%20data%20protection%20or%20personal%20information%20or%20personal%20data) Legislation Australian common Law of confidentiality, accessed on 9th March, 2010 at www.finance.gov.au/publications/fmg-series/03-guidance-on-confidentiality-in-procurement.html Australian Capital Territory Consolidated Acts. Government Procurement ACT 2001 – SECT 36 accessed on March 9 2010 at http://www.austlii.edu.au/au/legis/act/consol_act/gpa2001281/s36.html Tur, Richard: Griffith Law Review, Confidentiality and Accountability, 1992 GriffLawRw 9; (1992) 1(1) Griffith Law Review 73, accessed on March 12, 2010 at http://austlii.org/au/journals/GriffLawRw/1992/9.html Act Compilation: Privacy Act 1988 C2009C00070, 1988 No.119, accessed on 9th March, 2010 at http://www.comlaw.gov.au/ComLaw/legislation/actcompilation1.nsf/0/183B454E7401C036CA25754C00174BD6/$file/Privacy1988_WD02HYP.pdf Privacy Act 1988: Australian Copyright Council’s office, 245 Chalmers Street Redfern NSW 2016, accessed on March 9 2010 at http://www.austlii.edu.au/au/legis/cth/consol_act/pa1988108/ Read More