Section 5: Contracting out
This section enables the Department to contract out any of its functions to another person or organisation. In doing so, the Department can authorise the extent to which the function is carried out, and the period of time the contract should last. Contracting out a function does not prevent the Department from exercising it.
Where a contractor is carrying out a function on behalf of the Department, subsection (4) ensures that its acts or omissions will be treated as acts or omissions of the Department and the Department will be responsible.
Subsection (5) sets out two exceptions to this:
A contractor’s act or omission will not be treated as being an act of the Department if it is relating to the contract between the Department and the contractor itself. This ensures that, for example, if a contractor breaches the contract by failing to do something, or doing something they should not, the contractor remains responsible and the Department will be able to sue for breach of contract.
The contractor will remain liable if it commits a criminal act.
Subsection (6) ensures that a person who is authorised to carry out a function on behalf of the Department has a right to claim damages or compensation for repudiation of the contract if the Department withdraws its authorisation, thereby making it impossible for the contractor to perform.