Public Works and Procurement Act 1912 (NSW)

Public Works and Procurement Act 1912 No 45 An Act to consolidate the Acts relating to Public Works; and to make provision in relation to the procurement of goods and services for New South Wales government agencies. Part 1 Preliminary 1 Name of Act This Act may be cited as the Public Works and Procurement Act 1912. 2 Repeals and savings (1) The Acts mentioned in the First Schedule to this Act are, to the extent therein expressed, hereby repealed. (2) All persons appointed under the Acts hereby repealed and holding office at the time of the passing of this Act shall be deemed to have been appointed hereunder. (3) All regulations made under the authority of any Act hereby repealed and being in force at the time of the passing of this Act shall be deemed to have been made under the authority of this Act; and any references in any such regulation to any enactments hereby repealed shall be construed as references to the corresponding enactments contained in this Act. 3 Definitions In this Act, unless the context or subject-matter otherwise indicates or requires— Authorised work means any work the carrying out of which has been authorised in manner herein provided, and includes any work so authorised under any Act hereby repealed. Committee means the Parliamentary Standing Committee on Public Works as constituted under the provisions of this Act, or of any Act hereby repealed. Constructing Authority means the Minister empowered to carry out any authorised work. Council means the council of an area under the Local Government Act 1993. Court means the Supreme Court of New South Wales. Government debentures includes any Government stock issued by the Government of New South Wales pursuant to any statutory power. Prescribed means prescribed by this Act, or by regulations made pursuant hereto. 4 Incorporation of Constructing Authority For the purpose of facilitating the acquisition and disposal of land under this Act the Constructing Authority, when a Minister, is hereby declared to be a corporation sole under the name of "the Minister", and by that name shall have perpetual succession and an official seal, sue and be sued, and take all legal proceedings, with power to purchase, take and hold lands to the Minister and the Minister's successors for the purposes of this Act, and also to dispose of any superfluous lands in accordance with the provisions of this Act, and to give effectual discharges in respect thereof to any purchaser. 4A (Repealed) 5 Regulations The Governor on the recommendation of the Committee may frame regulations for giving effect to this Act. Editorial note— See Interpretation Act 1987, sec 39. 5A Savings and transitional provisions The Ninth Schedule has effect. 5B Delegation by Minister or Constructing Authority (1) The Minister may delegate any of the Minister's functions under this Act, other than this power of delegation, to— (a) a government agency, or a government agency employee, or (b) a person, or a class of persons, authorised for the purposes of this subsection by the regulations. (2) The Constructing Authority may delegate any of the Constructing Authority's functions under this Act, other than this power of delegation, to— (a) a government agency, or a government agency employee, or (b) a person, or a class of persons, authorised for the purposes of this subsection by the regulations. (3) In this section— government agency has the same meaning as in Part 11. government agency employee has the same meaning as in Part 11. Part 2 The Parliamentary Standing Committee on Public Works Division 1 Constitution of and general provisions relating to the Committee 6 Definitions In this Division, unless the context or subject-matter otherwise indicates or requires— Clerk means Clerk of Assembly, or any officer acting in his or her place. Member means member of the Legislative Assembly. Speaker means Speaker of the Legislative Assembly. 7 Constitution etc of Parliamentary Committee on Public Works (1) In every Parliament, a committee of members of the Legislative Council and Legislative Assembly, to be called the "Parliamentary Standing Committee on Public Works", shall be elected in manner hereinafter provided. Three of the persons so to be elected shall be members of the Legislative Council, and four shall be members of the Legislative Assembly. (2) Such seven persons shall hold office as a joint committee (subject to the provisions of section eleven hereof) for the duration of the Parliament for the time being, but shall cease to hold office as soon as such Parliament expires by dissolution or effluxion of time, and shall have and may exercise such powers and authorities, perform such duties, and be liable to such obligations, as are by this Act vested in or imposed upon such committee. 8 Names of members to be notified The names of the persons from time to time elected to be members of such Committee shall be notified in the Gazette with all convenient despatch. 9 Election of members of Parliamentary Standing Committee on Public Works (1) Upon a resolution being passed by the Assembly that the Parliamentary Standing Committee on Public Works be appointed, of the passage of which the Legislative Council shall be informed by Message asking its concurrence, the Speaker shall fix a date, being within a period of fourteen days from the passing of the resolution, up to and including which the Speaker shall receive nominations of members of the Legislative Assembly for election and appointment as members of the Committee. (2) Every such nomination shall be made and signed by at least five members, on a form provided by the Speaker for that purpose, and shall be delivered to the Clerk together with the written consent to the nomination of the member nominated. (3) Where members to the number hereinbefore required, and no more or less, are nominated, the Speaker shall declare such members to be elected as members of the Committee. (4) Where members to a less number than that so required are nominated, the Speaker shall declare such members to be elected as members of the Committee, and shall at the same time declare such other members as the Speaker thinks fit, being sufficient to make up such required number, to be elected as members of the Committee. (5) Where members to a greater number than that so required are nominated, the Speaker shall appoint a day, being not later than the seventh day from the last day during which nominations may be received, upon which a ballot shall take place for the election of members of the Committee. (6) Upon the day so appointed, the Clerk, for the purpose of such ballot, shall furnish every member with a ballot-paper in the form of the Second Schedule to this Act containing the names of the members nominated in alphabetical order of surnames. (7) Every member shall vote by striking out the names of the members whom the member does not wish to be elected, and the member shall be deemed to have voted for the members whose names are not struck out on the member's ballot-paper. No ballot-paper shall be deemed to be valid if the member has voted for more or less members than the number to be elected. (8) Every member after the member has voted as aforesaid shall deliver the member's ballot-paper to the Clerk, giving the Clerk time to note as hereinafter mentioned every paper previously presented. (9) The Clerk, on the presentation of every ballot-paper, shall place his or her initials against the name of the member presenting the ballot-paper on a list containing the name of all the members of the Legislative Assembly, and the list of members so initialled shall be kept on record with the other proceedings of the ballot. (10) The votes shall be counted by the Clerk, and the result of the ballot shall be delivered to the Speaker, together with the records of the proceedings of the ballot. (11) The members, to such required number as aforesaid, who receive the greatest number of votes at the ballot shall be declared by the Speaker to be elected as members of the Committee. Where two or more members receive the same number of votes, the Speaker shall declare which of the said members receiving the same number of votes shall be elected. 10 Election of members of Legislative Council as members of Committee The provisions of section nine other than the provisions for passing a resolution that the committee be appointed shall, mutatis mutandis, be observed in the election of members of the Legislative Council to serve on the Committee, and in carrying out such provisions the President of the Legislative Council and the Clerk of Parliaments, or officer acting in his or her place, shall respectively be charged with the duties and powers in the said section imposed and conferred on the Speaker and Clerk respectively. The date to be fixed by the President for the election shall be within a period of fourteen days from the date of the concurrence of the Legislative Council with the resolution of the Assembly. 11 Vacation of office (1) Any member of the Committee may resign his or her seat on such Committee by writing under his or her hand addressed to the Governor. (2) The seat of any such member shall also be deemed to have become vacant— (a) for any reason which would vacate his or her seat as a member of the Assembly or Council (as the case may be). (b) (Repealed) 12 Vacancies Where a vacancy occurs in the Committee, the same shall be filled by nomination and election as aforesaid within thirty-five days from the occurrence of the vacancy if Parliament is then in session, or within thirty-five days after the next meeting of Parliament should such vacancy occur during any recess or adjournment. Provided that the respective proportions in respect to the representation on the Committee of members of the Legislative Council and members of the Assembly hereinbefore prescribed shall be observed in the filling up of all such vacancies. 13 Quorum Any three members of the Committee shall form a quorum competent to exercise all powers and authorities and to incur all obligations conferred or imposed by this Act upon the Committee. Provided that no quorum shall consist exclusively of members of the Legislative Council or of the Legislative Assembly. 14 Chair or Deputy Chair There shall be a Chair and Deputy Chair of the Committee who shall be elected by the members of the Committee at their first meeting, or as soon after such meeting as may be practicable. The Chair or, in case of the Chair's absence or other disability, the Deputy Chair shall preside at all meetings of the Committee. Provided that at any meeting of the Committee at which a quorum is present, the members in attendance, may, in the absence of the Chair and Deputy Chair, appoint one of their number then present to be temporary Chair, and such temporary Chair shall have, during the absence of the Chair and Deputy Chair, all the powers given by this Act to the Chair or Deputy Chair of the Committee. 15 Division—casting vote (1) All questions which arise in any Committee shall be decided by a majority of votes of the members present, and when the votes are equal the Chair shall have a second or casting vote. (2) In all cases of divisions the names of the persons voting shall be stated on the minutes and in the report. 16 Declaration of members of Committee Every member of the Committee, before entering on the duties of his or her office or sitting at any meeting of such Committee, shall make and subscribe a declaration in the form of the Third Schedule hereto. 17 Power to sit during recess, and in open court The Committee may sit and transact business during any adjournment or recess as well as during the session, and may sit at such times and in such places, and conduct their proceedings in such manner as may seem most convenient for the proper and speedy dispatch of business, and such Committee shall sit in open court. 18 Reports The Committee shall, before the commencement of each session of Parliament, make a report to the Governor of their proceedings under this Act; and such report shall be laid before both Houses of Parliament within fourteen days after the making thereof, if Parliament is then sitting, and if not, then within fourteen days after the commencement of the next session. 19 Minutes The Committee shall keep full minutes of their proceedings in such manner as the Governor may direct. 20 Evidence taken before previous Committees Where any public work is referred to any Committee, and such Committee lapses or ceases to have legal existence, before it reports on such public work, the evidence taken before such Committee and before any sectional committee shall, nevertheless, be considered by any subsequent committee to whom the same public work may be referred for report pursuant to this Act as if such evidence had been given before and for the information and guidance of such subsequent committee. Division 2 Powers of the Committee 21 Powers of Committee For the purposes of this Act the Committee shall have the following powers, that is to say— (a) they may, by themselves or by any person appointed by them to prosecute an inquiry, enter and inspect any land, building, place, or material, the entry or inspection of which appears to them requisite, upon the prescribed notice being given to the owners or occupiers of such land, building, place, or material, (b) they may require, by summons under the hand of the Chair or Deputy Chair, the attendance of all such persons as they may think fit to call before them and examine, and may require answers or returns to such inquiries as they think fit to make, (c) they may, in the prescribed manner, require and compel the production of all books, maps, plans, papers, and documents relating to the matters before them, (d) they may, by their Chair or Deputy Chair, examine witnesses on oath; or where a witness, if examined before a superior court of record, would be permitted to make a solemn declaration, or to give evidence in any other way than upon oath, then by such declaration or otherwise as the case may be. 22 Powers of Committee in respect of witnesses (1) If any person— (a) whose expenses have been paid or tendered to the person neglects to appear, or (b) wilfully insults the Committee or any member thereof, or (c) misbehaves before the Committee, or (d) interrupts the proceedings of the Committee, or (e) being summoned or examined as a witness in any inquiry or matter pending before the Committee, refuses to be sworn, or to produce any document mentioned in the summons served upon the person, or to make a solemn declaration as aforesaid, or prevaricates in the person's evidence, or refuses to answer any lawful question, the Chair or Deputy Chair may commit any such offender to gaol for any time not exceeding one month, or may impose upon the person a fine not exceeding one hundred dollars and in default of immediate payment thereof may commit such offender to gaol for any time not exceeding one month unless the fine is sooner paid. In any such case of committal the Chair or Deputy Chair shall issue a warrant in the Form A contained in the Fourth Schedule hereto, and such warrant shall be good and valid without any other warrant order or process whatsoever, and the sheriff, the sheriff's deputy, and all officers of the police force and gaolers to whom the same is addressed shall obey it. (2) Where any person who has been duly served with a summons to attend as a witness before the Committee, and whose expenses have been paid or tendered to the person fails to appear in obedience to the person's summons, the Chair or Deputy Chair, upon proof of such person having been duly served with such summons, and that such person's non-appearance was without just cause or reasonable excuse, may issue a warrant in the form or to the effect of Form B of the Fourth Schedule hereto to bring such person before the Committee to give evidence. (3) Every person required by the Committee to attend as a witness shall be allowed such expenses as would be allowed to a witness attending on subpoena before a superior court of record, and, in case of dispute as to the amount to be allowed, the same shall be referred to the Prothonotary of the Supreme Court who, on request under the hand of the Chair of the Committee, shall ascertain and certify the proper amount of such expenses. 23 Assessors (1) The Committee may, in the exercise of any power by this Act conferred on them, call in the aid of one or more assessors, who shall be persons of engineering or other technical knowledge, or possessing special local knowledge or experience. (2) There shall be paid to such assessors such remuneration as the Committee may recommend and the Governor may approve and as Parliament may provide. 24 Functions of Committee The Committee shall, subject to the provisions contained in section thirty-four, consider and report upon all public works to be executed after the passing of this Act (and whether such works are continuations, completions, repairs, reconstructions, extensions, or new works), in all cases where the estimated cost of completing such works exceeds $1,000,000. In considering and reporting on any such work as aforesaid, the Committee shall have regard to the stated purpose thereof, and to the necessity or advisability of carrying it out; and, where such work purports to be of a reproductive or revenue producing character, the Committee shall have regard to the amount of revenue which such work may reasonably be expected to produce, and to the present and prospective public value of such work; and generally the Committee shall, in all cases, take such measures and procure such information as may enable them to inform or satisfy the Legislative Assembly as to the expediency of carrying out the work in question. Division 3 Sectional committee 25 Constitution etc of sectional committees (1) The Committee may at any meeting constitute sectional committees of itself for all purposes of this Act by appointing three or more of its members to be a sectional committee. (2) Every sectional committee shall have, and may exercise, for the purpose of carrying out any business or inquiry delegated to them by the Committee either at or after the time of their appointment, all the powers by this Act conferred on the Committee, and shall sit in open court. (3) Every sectional committee shall appoint a Chair or temporary Chair, who shall be the person to exercise the powers conferred by this Act on, or in the name of, the Chair or Deputy Chair of the Committee. 26 Further powers of sectional committee The powers and provisions respectively conferred by and contained in the fifteenth, seventeenth, twenty-first, twenty-second, and twenty-third sections of this Act shall be exercisable by and applicable to every sectional committee appointed as aforesaid. 27 Reports of sectional committees Every such sectional committee shall make its report as soon as practicable to the Committee, of and in respect to all matters delegated to it by such Committee; and such report with any evidence taken by such sectional committee shall be dealt with by the Committee in all respects, so far as possible, as reports of select committees are dealt with by the Legislative Assembly. 28 Limit of number of sectional committees etc Not more than two sectional committees shall be appointed or shall sit at the same time; but the Committee may sit at any time notwithstanding that any such sectional committee or committees may be sitting at the same time. Division 4 Committee's remuneration 29 Fees to be paid to members of Committee The members of every Committee shall each receive, by way of remuneration for their services as such members, a fee for each attendance at a summoned meeting of such Committee at which a quorum was present, according to the following scale— (a) the Chair, or member presiding at any meeting in the Chair's absence, six dollars thirty cents for each sitting, (b) every other member, four dollars twenty cents for each sitting. 30 Fees to be a charge on consolidated revenue The fees made payable under this Division of this Act shall be charged on the consolidated revenue fund, and the certificate of the Chair or Deputy Chair of the Committee shall be a sufficient warrant and authority, and discharge to the Treasurer for the payment of such fees from such fund. 31 Travelling expenses (1) In addition to the sum payable to every member of the Committee as a sitting fee, the member shall be paid a further sum of three dollars per diem on account of expenses incurred by the member in, and in the course of travelling, whether by land or water, whenever such expenses and charges have been incurred bona fide in the performance of the member's duties as a member of such Committee, whilst outside the boundaries of the county of Cumberland. (2) Such expenses and charges shall be chargeable in the same manner, and be paid by the same person, and on the like certificate, and in other respects in like manner as in the case of fees for sittings. (3) In all cases in which a sectional committee of the Committee is engaged in the inspection of any public works outside the county of Cumberland, each day or part of a day occupied in such inspection shall be deemed to constitute one attendance of such committee, and to entitle each member thereof to a fee of four dollars twenty cents. 32 (Repealed) 33 Office of profit Nothing in this Division of this Act shall be taken to constitute the office of any member of the said Committee an office of profit, so as to render such member incapable of sitting or voting as a member of the Legislature, or to make void the election of such member. Part 3 Public works, how authorised and how contracts made 34 Conditions precedent to commencing public works (1) No public work of any kind, the estimated cost of completing which exceeds $1,000,000, and whether such work is a continuation, completion, repair, reconstruction, extension, or a new work, shall be commenced, unless sanctioned as hereinafter provided— (a) Every such proposed work shall, in the first place, be submitted and explained in the Legislative Assembly by some member of the Executive Council having a seat in such Assembly (hereafter termed "the Minister"). The explanation shall comprise an estimate of the cost of such work when completed, together with such plans and specifications or other descriptions as the Minister deems proper, and an estimate of the probable revenue to be derived therefrom. Such estimate, plans, specifications, or descriptions shall be prepared and be authenticated or verified in the prescribed manner. (b) Upon motion, in the usual manner, made by the Minister or by any member of the Assembly such proposed work shall be referred to the Committee for their report thereon. (c) The Committee shall, with all convenient dispatch, deal with the matter so referred to them, and, for that purpose may exercise all powers by this Act conferred on such Committee. (d) The Committee shall, as soon as conveniently practicable, regard being had to the nature and importance of the proposed work, report to the Legislative Assembly the result of their inquiries. (e) After the receipt of such report the said Assembly shall, by resolution, declare, either that it is expedient to carry out the proposed work or that it is not expedient to carry out the same. Provided that the said Assembly, instead of declaring affirmatively or negatively as aforesaid, may resolve that the report of the Committee shall, for reasons or purposes to be stated in the resolution, be remitted for their further consideration and report to the said Committee; in which case such Committee shall consider the matter of such new reference, and report thereon accordingly. (1A) (Repealed) (2) Provided that the Governor may, with respect to any public work the estimated cost of which does not exceed $1,000,000, direct that the same shall be carried out under this Act, in which case all the powers and provisions of this Act relating to authorised works shall be applicable to such work, and the same shall for all purposes of this Act be deemed to be an "authorised work", and the Minister on whom the carrying out of such work devolves shall for the like purposes be deemed a "Constructing Authority". (3) Where the council of an area within the meaning of the Local Government Act 1993 has made an application under section 57 of that Act for the construction, by the Minister, of a work of water supply or sewerage or any work incidental to water supply or sewerage, for the council's area or part thereof, or for two or more areas as defined in the said Act or parts thereof, the Governor, notwithstanding that the estimated cost of the work exceeds the sum of $1,000,000, may direct that the work shall be carried out under this Act, in which case all the powers and provisions of this Act relating to authorised work shall be applicable to such work, and the same shall for the purposes of this Act be deemed to be an authorised work. (4) Where the Minister is of opinion that a work of water supply, sewerage or drainage should be constructed, the Governor, notwithstanding that the estimated cost of the work exceeds the sum of $1,000,000, may direct that such work shall be carried out under this Act, in which case all the powers and provisions of this Act relating to authorised works shall be applicable to such work, and the same shall for the purposes of this Act be deemed to be an authorised work. (5) For the purposes of this section, an extension or improvement of a work of water supply, sewerage or drainage shall be deemed to be an authorised work. (6) Where the Minister is of opinion that a work being— (a) a public school, a teachers' college, a technical college or a detention centre within the meaning of the Children (Detention Centres) Act 1987, (b) a hospital, or a mental hospital, or an institution for the treatment of the physically or mentally ill, (c) public offices or a public building, should be constructed, the Governor, notwithstanding that the estimated cost of the work exceeds the sum of $1,000,000, may direct that such work shall be carried out under this Act, in which case all the powers and provisions of this Act relating to authorised works shall be applicable to such work, and the same shall for all purposes of this Act be deemed to be an "authorised work" and the Minister on whom the carrying out of such work devolves shall for the like purposes be deemed a "Constructing Authority". For the purposes of this subsection any such work shall include its continuation, completion, repair, reconstruction or extension. 35 Notification of resolution Every resolution of the Legislative Assembly declaring that it is expedient or not expedient to carry out any such proposed work shall be notified in the Gazette. 36 Under what circumstances negatived proposals may be re-submitted If any such resolution declares that it is not expedient to carry out any proposed work, no proposal for a public work in substance identical with the work referred to in such resolution shall be submitted to the Legislative Assembly until after the expiration of one year from the notification of such resolution as aforesaid, unless the Governor, by writing under the Governor's hand addressed to the Committee, declares that, in the Governor's opinion and in view of the public interest, it is desirable that any such proposal should be re-submitted to the said Assembly. 37 Resolution when to be sufficient authority for execution of works etc (1) Every resolution of the Legislative Assembly declaring that it is expedient to carry out the work specified or mentioned in such resolution shall be deemed to impose a statutory duty on the Minister to introduce a Bill into the said Assembly to sanction the carrying out of such work, upon the passing whereof by the Legislature and in such form as the Legislature may think fit, the authorisation of such work shall become absolute, and the Constructing Authority shall thereupon carry out such work, enter into such contracts, and take all such necessary steps for the proper execution thereof as such Authority may think proper. Provided that no such contracts shall exceed in the aggregate by more than ten per centum the estimate for the same submitted as hereinbefore provided. (2) Where the Governor has— (a) pursuant to subsection two or six of section thirty-four of this Act directed that a work shall be carried out under this Act, the Constructing Authority, or (b) pursuant to subsection three or four of section thirty-four of this Act directed that a work shall be carried out under this Act, the Minister, shall enter into such contracts and take all such necessary steps for the proper execution thereof as such Constructing Authority or Minister, as the case may require, may think proper. 38 Contracts how made (1) All contracts referred to in subsections one and two of section thirty-seven of this Act may be made as follows, that is to say— (a) with respect to any contract which, if made between private persons, would be by law required to be in writing and under seal, the Constructing Authority or the Minister, as the case may require, may make such contract in writing and under seal, and in the same manner may vary or discharge the same, (b) with respect to any contract which, if made between private persons, would be by law required to be in writing and signed by the parties to be charged therewith, the Constructing Authority or the Minister, as the case may require, may make such contract in writing, and in the same manner may vary or discharge the same, (c) with respect to any contract which, if made between private persons, would by law be valid although made by parol only and not reduced into writing, the Constructing Authority or the Minister, as the case may require, may make such contract by parol only without writing, and in the same manner may vary or discharge the same. (2) All such contracts so made shall be effectual in law and shall be binding upon the Constructing Authority, or the Minister, on behalf of the Crown, and all other parties thereto, their heirs, executors, or administrators, as the case may be; and on any default in the execution of any such contract either by the said Authority or the Minister, or any other party thereto, such actions or suits may be brought either by or against the said Authority, or the Minister, as might be brought had the same contracts been made between private parties. Part 4 Preliminary conditions relating to the acquisition of land 39 Acquisition of land for authorised works The Minister may, for the purposes of an authorised work, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. 40 Acquisition of land for public purposes other than authorised works (1) This section applies to the acquisition of land for the purposes of any work other than an authorised work. (2) The Minister may acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of— (a) a public work or undertaking specified in section 41 if money has been appropriated from the Consolidated Fund (or is otherwise lawfully available) for or towards the carrying out of the work or undertaking, or (b) a school site or a site for public offices or public buildings. (3) The Minister is, in relation to the acquisition of land