Public Works Committee Act 1969

The central concept is the public work, defined in s 5AA. A public work means a work (as defined in s 5) that is proposed to be carried out by or for the Commonwealth or an authority of the Commonwealth to which the Act applies, and in respect of which moneys appropriated by the Parliament are proposed to be expended, or in relation to which such moneys are proposed to be expended (s 5AA(2),(3)). It also includes a work proposed to be carried out by a third party if the Commonwealth or such an authority will become the owner and Parliament‑appropriated moneys are to be expended in relation to it (s 5AA(5)). It does not matter whether the Commonwealth or the authority will own the work (s 5AA(4)). A public work does not include a work proposed to be carried out within the Parliamentary zone (as defined in the Parliament Act 1974), a work by way of assistance to an overseas country, or a work declared by regulation not to be a public work (s 5AA(1)(c)-(e)). A work itself is broadly defined in s 5 as an architectural or engineering work, including construction, alteration, repair, refurbishment, fitting out of buildings and structures; installation, alteration or repair of plant and equipment for services in buildings; landscaping and earthworks; demolition and dismantling; land clearing and urban development; and any other matter declared by regulation to be a work. The definition expressly excludes intangible things, production of or dealings with movable property unless declared a movable work by regulation, and plant or equipment not designed for services in a building or structure and not necessary to make a building complete (s 5 definition of work). The threshold amount is $15 million unless another amount is specified by regulation (s 18(9)). Commence is defined in s 5 as including entering into a contract for carrying out the whole or part of the work. An authority of the Commonwealth is defined broadly to include bodies corporate or unincorporated established for a public purpose by or under an enactment, bodies established by the Governor‑General or a Minister otherwise than under an enactment, and incorporated companies over which the Commonwealth can exercise control, but it excludes inter‑governmental bodies and certain ACT self‑government bodies (s 5). The Act applies to every authority of the Commonwealth except those declared by regulation as not applying due to competitive activities (s 6A(3)), the Parliament House Construction Authority, and authorities established for tertiary education in the ACT (s 6A(2)).

The Act primarily affects entities that propose to carry out a public work: the Commonwealth itself and authorities of the Commonwealth to which the Act applies. The definition of authority is broad under s 5 and includes statutory bodies, government‑established bodies without statutory basis, and government‑controlled companies. However, certain authorities are excluded under s 6A(2): the Parliament House Construction Authority, any authority established for tertiary education in the Australian Capital Territory, and any authority that the Governor‑General has declared by regulation not to apply because it engages in trading or other activities in competition with other bodies or persons (s 6A(3)). Contractors and consultants who engage with the Commonwealth or such authorities in respect of a public work are affected because the work cannot be lawfully commenced (including by entering a contract) until the Committee process is complete and the House of Representatives has resolved that the work is expedient. Witnesses summoned under s 21 are affected: they must attend, give evidence, and produce documents, and may be subject to criminal penalties for non‑compliance, including imprisonment for up to 12 months and penalty units, unless they prove reasonable excuse (ss 28, 29, 30). The Act also affects Ministers, who must furnish to the House a statement and plans etc. when a motion to refer a public work is moved (s 18(3)). Members of Parliament are affected in that they may be appointed to the Committee or a sectional committee and must subscribe a declaration under s 8. The Act extends to every external Territory but does not apply to works proposed to be carried out by the Australian Capital Territory or the Northern Territory using their own money (s 6). Occupiers of land, buildings or places in Australia or an external Territory may be subject to entry and inspection by a member or other person authorised by the Committee, after notice given in accordance with regulations (s 27). Assessors, appointed under s 26 to assist with inquiries, must have engineering or other technical knowledge or special local knowledge. The Committee itself is composed of nine members, with protections for their proceedings under s 7(12) - no invalidity due to vacancies.

The Committee’s primary duty is to consider each public work referred to it and to report to both Houses on its expedience and related matters as expeditiously as practicable (s 17(1)). In doing so, the Committee must have regard to the five factors listed in s 17(3): the stated purpose and suitability, necessity or advisability, the most effective use of money, revenue potential if relevant, and present and prospective public value. For works proposed by an authority of the Commonwealth, the Committee must also consider the authority’s functions, powers and duties and any ministerial powers over the authority’s activities (s 17(4)). The Committee may recommend alterations to ensure most effective use of money (s 17(2)). The Committee has the right to direct that an inquiry be public or private (s 18A(1)), and to give directions on who may be present at a private inquiry (s 18A(2)). For a work of urban land development services, the Committee may decide to report without holding any inquiry at all (s 18A(3)). For works outside Australia and external Territories, the Committee must consider the work on plans, models and statements and cannot require attendance of persons outside Australia; it may receive written statements from anyone anywhere and take evidence from persons in Australia (s 18B). The Committee has the right to summon witnesses under s 21, administer oaths or affirmations (s 20), and issue a warrant for apprehension of a witness who fails to appear after service and tender of costs (s 22). The Committee may appoint assessors (s 26) and, with authority and notice to the occupier, enter and inspect land, buildings or places in Australia or an external Territory (s 27). The Minister’s duty includes furnishing a statement and plans etc. to the House when a motion for referral is moved (s 18(3)). The rights of witnesses are protected: a witness has the same protection, privileges and liabilities as a witness in the High Court (s 25). A witness may request that evidence be taken in private if it relates to a secret or confidential matter, and the Committee must then take the evidence in private or direct the document be treated as confidential; disclosure without consent or Committee authority attracts a penalty of 12 months imprisonment or 4 penalty units (s 23). The duty not to commence a public work before the Committee process is completed is placed on the Commonwealth and authorities: s 18(5) prohibits commencement before the report is presented; s 18(7) prohibits commencement unless the House of Representatives has resolved that it is expedient; s 18(8) prohibits commencement of a work exceeding the threshold amount unless referral has occurred, an urgent resolution, a defence order, or a repetitive work declaration applies. If the Chair notifies the Minister that the Committee has resolved to review a report, the work cannot commence unless the Committee resolves not to defer it, a further report is made, the House resolves that it is expedient to commence without awaiting the further report, or the House expires (s 19(2)).

The Act creates several criminal offences, all of which are subject to the general principles of criminal responsibility under Chapter 2 of the Criminal Code (s 5A). Offences may be prosecuted summarily or upon indictment, but an offender cannot be punished more than once for the same offence (s 33(1)). A court of summary jurisdiction may commit the defendant for trial or determine the proceedings (s 33(2)), but for an offence under s 31 (false evidence) the court cannot determine the proceedings without the defendant’s consent, and if it does, the maximum penalty is imprisonment for one year (s 33(3)). The specific offences are: failure of witness to attend - a person served with a summons must not fail to appear or fail to continue in attendance; penalty is imprisonment for 12 months or 4 penalty units; the person has a defence of reasonable excuse, but bears the legal burden of proof (s 28). Preventing witnesses from giving evidence - a person must not dissuade or prevent a person from obeying a summons; penalty is imprisonment for 12 months or 4 penalty units (s 29). Refusal to be sworn etc. - a person served with a summons must not refuse or fail to be sworn or make an affirmation, answer a question, or produce a required document; penalty is imprisonment for 12 months or 4 penalty units; reasonable excuse is a defence with the defendant bearing the legal burden (s 30). False evidence - giving false evidence on oath or affirmation before the Committee is an offence punishable by imprisonment for five years (s 31). Protection of witnesses - a person must not use violence, inflict injury, cause violence/damage/loss/disadvantage, or cause punishment of a person for having appeared or being about to appear as a witness or for evidence given; penalty is imprisonment for 12 months or 4 penalty units (s 32). Unauthorised disclosure of private evidence - where evidence is taken in private at the request of a witness, the Committee must not without the witness’s written consent, and a person (including a member) must not without that consent and Committee authority, disclose or publish the evidence; where taken in private otherwise, a person must not without Committee authority disclose or publish; penalty is imprisonment for 12 months or 4 penalty units (s 23(4),(5)). These criminal provisions are complemented by the power to issue warrants for apprehension of witnesses who fail to appear after summons and tender of costs (s 22), and the power to break and enter to execute such warrants (s 22(4)). The Committee has the power to take evidence on oath and to administer oaths (s 20). The Act does not expressly provide for civil remedies for breach of the duty not to commence a public work, but the prohibition in s 18(5) and (7) is statutory and could potentially ground injunctive relief or other consequences under administrative law.

The Act expressly references and interacts with several other enactments. Criminal Code application: s 5A provides that Chapter 2 of the Criminal Code (general principles of criminal responsibility) applies to all offences against the Act. Parliamentary Papers Act 1908-1963: s 37 provides that s 23 of this Act (on private evidence) has effect despite s 2 of that Act, and where evidence taken in private is disclosed or published in accordance with s 23, s 4 of the Parliamentary Papers Act applies as if it were publication under authority under s 2 of that Act. This means that such disclosure or publication is deemed to be made on the authority of the Parliament and attracts the protections and privileges under the Parliamentary Papers Act. Parliament Act 1974: the definition of Parliamentary zone in s 5 is taken from that Act, and works within that zone are excluded from the definition of public work (s 5AA(1)(c)). Australian Capital Territory (Self‑Government) Act 1988: the definition of authority of the Commonwealth excludes bodies established by or under an enactment within the meaning of s 3 of that Act (s 5). Norfolk Island Legislation Amendment Act 2015 and related amendments extended or amended the Act in relation to Norfolk Island, as shown in the legislation history. The Act also interacts with regulations made under s 40, which may declare matters to be works (paragraph (f) of work definition) or not works (paragraph (k)), declare works to be public works or not (s 5AA(1)(b),(e)), specify a different threshold amount (s 18(9)), and prescribe forms for oaths, summonses, warrants, and notices for entry on land. The Governor‑General must take into account any relevant Committee recommendation before making such regulations (s 40(2)). The Act also overrides certain provisions of the Parliamentary Papers Act as described. The Act’s exclusion of the Parliament House Construction Authority (s 6A(2)(b)) reflects specific legislation governing that body. The definition of enactment in s 5 includes Acts, ACT Ordinances, and instruments made under them, thereby affecting the scope of authorities covered. Section 38 deems evidence taken by the former Committee under the Commonwealth Public Works Committee Act 1913 to be evidence under this Act, ensuring continuity for the purposes of this Act and the Parliamentary Papers Act. The Act does not explicitly refer to the Public Governance, Performance and Accountability Act 2013 (PGPA Act) or other Commonwealth procurement rules, but in practice the Committee’s scrutiny interacts with those frameworks because a public work cannot lawfully proceed without the parliamentary clearance under this Act, which may affect budget planning and procurement timelines.

The Public Works Committee Act 1969 (No. 92, 1969) commenced on 24 November 1969. It has been amended by numerous Acts, as recorded in Endnote 3 of the compilation. Significant amendments include: the Public Works Committee Act 1972 (No. 57, 1972) which amended the limitation of annual expenditure in s 36; the Public Works Committee Act 1973 (No. 140, 1973) which amended s 18; the Statute Law Revision Act 1973 (No. 216, 1973) which repealed sections 3 and 4 and made minor amendments; the Public Works Committee Act 1974 (No. 48, 1974) which amended several sections including s 7, s 12, s 18, s 19, s 23, s 33, s 37; the Public Works Committee Amendment Act 1981 (No. 20, 1981) which made substantial changes including inserting s 6A (bodies to which Act applies), s 18A (inquiries), s 18B (overseas works), and amending s 17 and s 18; the Administrative Services Legislation Amendment Act 1989 (No. 5, 1989) which amended s 18 and s 40; the Qantas Sale Act 1992 (No. 196, 1992) which amended s 6A to remove Qantas from the definition; the Crimes and Other Legislation Amendment Act 1997 (No. 20, 1997) which repealed s 34; the Finance and Administration Legislation Amendment (Application of Criminal Code) Act 2001 (No. 109, 2001) which inserted s 5A and amended offences in ss 28-32 to refer to the Criminal Code; the Public Works Committee Amendment Act 2006 (No. 132, 2006) which was a major amending Act that inserted s 5AA (meaning of public work), inserted the definition of threshold amount and repetitive work in s 18, amended the definition of work in s 5, updated references to Chair and Deputy Chair, and made numerous other amendments to ss 7, 8, 9, 11, 12, 18, 19, 20, 21, 22, 23, 26, 27, 30, 32, 35, and 40; the Statute Law Revision Act 2012 (No. 136, 2012) which amended s 7; the Norfolk Island Legislation Amendment Act 2015 (No. 59, 2015) which amended s 6 to update references to Norfolk Island; the Statute Update Act 2016 (No. 61, 2016) which amended s 23, 28, 29, 30, 32 to update penalty references; and the Statute Update (A.C.T. Self‑Government (Consequential Provisions) Regulations) Act 2017 (No. 13, 2017) which amended s 5 and s 6. The compilation is current to 22 March 2017.

The Act itself does not name any specific court cases. The provisions of the Act have been interpreted by the federal courts and the High Court in a number of decisions, but the source text provided does not include any reference to such cases. Accordingly, no case law can be cited from the Act itself. Practitioners should be aware that the Committee’s powers to summon witnesses and the prohibition on commencing works have been the subject of judicial consideration, but the Act’s text does not discuss any litigation. The Act contains standard procedural protections for witnesses (s 25 - same privileges as in the High Court) and provisions for warrants and apprehension (s 22) that mirror ordinary parliamentary committee powers, and such provisions have been tested in other contexts. However, without specific case names in the source, it would be improper to invent or infer any.

Several less obvious features of the Act can trap practitioners. Definition of ‘commence’ is broad: s 5 defines commence to include entering into a contract for carrying out the whole or part of the work. This means that simply signing a contract for the work before the committee process is complete can be an unlawful commencement, even if physical work has not started. Threshold amount is not fixed: the $15 million threshold in s 18(9) can be changed by regulation; a practitioner must check the current regulations to know the applicable threshold. Repetitive work declarations require Committee agreement: the Minister may declare a work to be repetitive only if the Committee has agreed (s 18(8A)(b)). This prevents unilateral ministerial exemption. Defence orders are by Governor‑General, not the Minister: an order under s 18(8)(c) must be made by the Governor‑General and must declare that referral would be contrary to the public interest; this is a high‑level executive action. Exclusion of overseas assistance works: s 5AA(1)(d) excludes works proposed to be carried out by or for the Commonwealth by way of assistance to an overseas country; but this is only an exclusion from the definition of public work, so if the work is not a public work, no referral is required - however, if it falls within another part of the definition, it may still require scrutiny. Overseas works have limited evidence powers: where a public work is to be carried out outside Australia and external Territories, the Committee cannot require or request the attendance of any person who is outside Australia (s 18B(b)), and may only take evidence from persons in Australia. This could hamper inquiries into overseas projects. Movable property works: the definition of work excludes production of movable property unless the work is declared by regulation to be a movable work to which the Act applies (s 5 definition of work, paragraph (h)). So aircraft, ships, satellites may be caught only if the regulations so provide. Intangible things are excluded: paragraph (g) of the work definition excludes production of intangible things - so software, intellectual property, or research projects may not be works. Authorities can be exempted for competitive activities: under s 6A(3), the Governor‑General can make regulations declaring that the Act does not apply to an authority engaging in trading or services in competition with others. This can be a significant carve‑out. ACT and NT works are excluded if using their own money: s 6(2) provides that the Act does not extend to a work proposed to be carried out by the ACT or NT using moneys of that Territory. However, if Commonwealth money is involved, the work may still be a public work under s 5AA(2) or (3). Section 8 declaration: members of the Committee must make a declaration in the form in the Schedule before proceeding to discharge duties; failure to do so may affect the validity of proceedings? Section 7(12) says the exercise of a power is not invalidated by a vacancy, but does not excuse failure to declare; s 8 is mandatory. Quorum is five members: s 13; a sectional committee quorum is a majority of its members (s 10(8)). Voting and dissents: s 14(3) requires that if members do not vote unanimously, the minutes and report must record names and voting if a member so requires - this ensures transparency but can lead to extensive reporting. Inquiries may be dispensed with: for urban land development services works, the Committee can decide to report without holding any inquiry (s 18A(3)). This is an exception to the usual inquisitorial process. Expiration of the House of Representatives: a review under s 19 ceases to defer the work if the House expires before the further report (s 19(2)(d)), effectively resetting the process in a new Parliament. Annual report is mandatory only if proceedings occurred: s 16 requires the Committee to cause a report of its proceedings to be laid before each House within 15 sitting days after each 31 December, but only of proceedings during that year. If there were no proceedings, no report is required. Allowances are capped: s 36 limits total allowances paid to $30,000 per financial year, which is a very low cap given modern costs, though it may have been amended by later Acts not shown in the compilation (the endnotes suggest this section was amended only by Act No. 57, 1972, increasing the limit from $20,000 to $30,000). Practitioners should verify the current cap via later amendments not reflected in this compilation.

Compliance with the Public Works Committee Act 1969 requires careful pre‑expenditure planning. Before any public work is commenced, the responsible entity (Commonwealth department or authority of the Commonwealth to which the Act applies) must first determine whether the proposed work falls within the definition of public work under s 5AA. This involves checking: (a) whether the work is a work as defined in s 5 - architectural or engineering work, including construction, alteration, repair, etc., and not excluded as intangible, movable property not declared, or certain plant and equipment; (b) whether the work is proposed to be carried out by or for the Commonwealth or an authority to which the Act applies, or by a third party where the Commonwealth will become owner; (c) whether any moneys appropriated by the Parliament (or moneys of the authority) are to be expended in respect of or in relation to the work; (d) whether any exclusion applies, such as works within the Parliamentary zone, works by way of overseas assistance, works by the ACT or NT using their own money, or works declared not to be public works by regulation. If the work is a public work, the next step is to assess its estimated cost as defined in s 18(9). If that cost exceeds the threshold amount ($15 million or such other amount as prescribed), the work cannot be commenced unless one of the four conditions in s 18(8) is satisfied: (i) the work has been referred to the Committee and the House of Representatives has passed a resolution that it is expedient to carry it out; (ii) the House has resolved that due to urgency it is expedient without referral; (iii) the Governor‑General has ordered that the work is for defence purposes and referral would be contrary to public interest; or (iv) the work has been declared a repetitive work under s 18(8A). Even if the estimated cost is below the threshold, the work must not be commenced at all unless it has been referred to the Committee and the House has resolved that it is expedient (s 18(5),(7)). Accordingly, the primary compliance pathway is: prepare a statement of the work including purpose, plans, specifications and particulars (s 18(3)); have a motion moved in either House referring the work to the Committee; the Committee will then conduct an inquiry (which may be public or private, and may include site inspections, witnesses, and assessors); the Committee reports to both Houses on expedience and related matters; the House of Representatives then considers the report and must resolve that it is expedient to carry out the work before commencement. If the Committee recommends alterations, they should be considered. The work must also not commence while the Committee is reviewing an earlier report under s 19, unless an exception applies. Entities subject to the Act should ensure that all contracts and project management milestones are scheduled after the House resolution date, and that the definition of commence is understood to include contract signing. If an authority proposes a work, it should confirm with the relevant Minister that the authority is not excluded under s 6A(2) or (3). If the work is an overseas work, the Committee’s limited evidence‑gathering powers should be anticipated. All persons involved - from project officers to contractors - should be aware of the criminal penalties for interfering with witnesses or failing to comply with a summons. Keeping records of compliance steps, including the referral motion, Committee report, and House resolution, is essential to demonstrate lawful authority for the expenditure.