Public Works Committee Regulation 2016

The Regulation gives operational shape to several concepts from the Act.

Work is the central concept. Under section 5 of the Act, it includes construction, alteration, maintenance, repair, demolition, and related operations. The Regulation, via section 6, clarifies that this extends to temporary and demountable buildings and structures. This prevents an entity from avoiding Committee scrutiny by using non‑permanent facilities.

Authority of the Commonwealth is defined in the Act and includes government departments, agencies, and certain statutory corporations. The Regulation exempts a specific list of authorities from the Act’s requirements (section 7). Those entities are not required to refer their public works to the Parliamentary Standing Committee on Public Works. The exemptions are broad: they cover not only the named parent entities but also their wholly‑owned subsidiaries and, in some cases, wholly‑owned subsidiaries of those subsidiaries (see items 7, 8, 10B, 10C, 13A, 13B, 14B, 14C). This means a corporate group structured with multiple tiers can escape oversight entirely.

The Committee refers to the Parliamentary Standing Committee on Public Works established by the Act. The Regulation also deals with Sectional Committees, which are sub‑committees created under section 10 of the Act to handle specific matters.

Threshold amount for defence works is defined in section 7A as $75 million. This is a separate, higher threshold than the general threshold (which under the Act is $15 million, subject to other regulations). The Regulation does not set a general threshold; it only sets the defence threshold. The effect is that defence works below $75 million need no Committee approval, speeding up procurement but reducing parliamentary oversight.

Assessor is a person appointed under the Act to assist the Committee. The Regulation provides for their fees (section 11). Witness includes any person summoned to give evidence before the Committee or a Sectional Committee. The Regulation prescribes the form of summons (Schedule 1 Part 3), the form of the oath (Part 1) and affirmation (Part 2), and the form of the warrant for apprehension if a summoned witness fails to appear (Part 4).

Fees and expenses are governed by Part 4. The rates are tied to the High Court Rules 2004, which themselves prescribe amounts for witnesses. This incorporates an external standard, meaning the fee rates change automatically when the High Court Rules change, without requiring an amendment to the Regulation. For expert witnesses and assessors, there is a minimum (the High Court rate) and a maximum (actual fees). For ordinary witnesses, only the High Court hourly rate is used. Travelling expenses and reasonable accommodation are also allowed. Section 12 prohibits double payment: if a person is entitled to fees for attending both the Committee and a Sectional Committee on the same day, they receive only the higher amount.

Summons and warrant are formal documents. The forms in the Schedules track the language of the Act. The summons must specify the place, time, and any documents required. The warrant must be addressed to the persons authorised to apprehend the witness and must specify the place and purpose. Both forms require the signature of the Chair or a member of the Committee or Sectional Committee.

The transitional concept in section 13 is important: the defence threshold increase does not apply retrospectively. That protects the reliance interests of entities that had already referred a defence work before the change.

The Regulation directly affects a range of actors.

Commonwealth authorities are the primary class. Those not listed in section 7 must comply with the Act and refer proposed public works above the threshold amount to the Committee. The listed exempt authorities , a diverse group including ASC Pty Ltd (shipbuilding), Australian Naval Infrastructure, CEA Technologies, Snowy Hydro, NBN Co, Australia Post, Defence Housing Australia, Export Finance and Insurance Corporation, National Intermodal Corporation, and WSA Co Limited , are free from this requirement. Their wholly‑owned subsidiaries at two levels are also exempt. This means that a large portion of Commonwealth‑controlled commercial enterprises, particularly in defence, infrastructure, and postal services, face no parliamentary oversight for their construction projects.

Defence‑related entities are affected by the higher threshold. The Australian Department of Defence, as well as defence contractors operating on Commonwealth land or with Commonwealth funds, must determine whether a public work is for defence purposes. If it is, the $75 million threshold applies. Projects below that need no referral, saving time but reducing scrutiny.

Potential witnesses and assessors are affected by Part 4. Anyone summoned to appear before the Committee or a Sectional Committee is entitled to fees and expenses as set out. Experts and assessors can negotiate fees up to their actual charges, subject to a floor. Ordinary witnesses receive a fixed hourly rate. These provisions affect the cost of participating in Committee inquiries. They also affect the willingness of experts to assist, since the maximum fee is capped at actual fees (i.e., no premium for inconvenience).

Committee members are indirectly affected: the forms they must use for summonses and warrants are prescribed. The Chair or a member must sign these documents. The procedure for oath‑taking is also prescribed, leaving no discretion to vary the wording.

Private sector entities that supply goods or services for public works may be affected if the committee inquiry delays or modifies a project. However, the Regulation itself does not impose duties on them; the duties flow from the Act. The exemption of many authorities may reduce the likelihood of committee inquiries for those entities’ projects.

Taxpayers and the public are the ultimate group affected. The exemptions and higher threshold reduce the transparency and accountability of significant public expenditure. For example, Australia Post and NBN Co can undertake large building projects without committee oversight. On the other hand, the Regulation may reduce delays and compliance costs for those entities, potentially lowering costs to consumers. The trade‑off is a loss of democratic scrutiny.

The Regulation imposes few new duties beyond those in the Act, but it elaborates on existing ones.

Duty to use prescribed forms. People issuing a summons to a witness must use the form in Part 3 of Schedule 1. Likewise, warrants for apprehension must use the Part 4 form. The oath and affirmation must follow the wording in Parts 1 and 2. Failure to use the correct form may invalidate the summons or warrant, but the Regulation does not state a consequence; the Act would govern validity.

Right to fees and expenses. Any witness appearing before the Committee or a Sectional Committee has a right to be paid fees and travelling expenses as allowed by the Chair (section 11). This is not discretionary: the Chair “is to be paid such fees and travelling expenses as the Chair … allows in accordance with this section.” That means the Chair has discretion to fix the amount but must comply with the minimums and maximums set out. For expert witnesses and assessors, the Chair must allow at least the High Court rate and at most the actual fees. For ordinary witnesses, the Chair must use the High Court hourly rate. Travelling expenses, meals, and accommodation must be reasonable.

Right to a minimum fee for experts and assessors. An expert witness or assessor cannot be paid less than the High Court rate, even if their actual fees are lower. This protects them from being undercompensated, but also means the Committee cannot reduce fees simply because the witness agrees to a lower amount.

Duty not to claim double payment. Section 12 prohibits a witness or assessor from receiving fees and expenses for appearing before both the Committee and a Sectional Committee on the same day or for the same journey. The person must be paid only the greater amount. This is a straightforward anti‑double‑dipping rule that applies despite section 11.

Right of the Committee to compel appearance. The forms derived from sections 8-10 give the Committee the power to compel a person to attend, give evidence, and produce documents. The summons must be in the prescribed form. The warrant for apprehension is a coercive power, exercisable if the summoned witness fails to appear or continue attendance. These are significant rights of the state, balanced by the fee entitlements.

Transitional right to rely on previous threshold. For works referred before the amendment increasing the defence threshold, the old lower threshold applies (section 13). This gives entities certainty that once a work is referred, the threshold change will not retroactively affect that referral.

No new rights of appeal or review are created. The Regulation does not provide any mechanism to challenge a decision on fees or a summons. The Act’s provisions on penalties for non‑attendance remain in force.

The Regulation itself does not create any penalty provisions. It is a prescriptive instrument that sets out procedures. The penalties flow from the parent Act.

Under the Act, a person who fails to appear in response to a summons without reasonable excuse is liable to a penalty (the Act prescribes a fine and/or imprisonment). The warrant for apprehension (Schedule 1 Part 4) is the enforcement mechanism that allows a person to be taken into custody and brought before the Committee. The Regulation prescribes the form of that warrant, including the required recitals (that the person has been summoned and failed to appear or continue in attendance). The warrant must be addressed to the persons authorised to execute it (typically police officers or court bailiffs).

There is no penalty provision in the Regulation for non‑compliance with the fee rules. If a Chair underpays a witness, the witness’s remedy would be under general law (e.g., a claim for the amount due), but the Regulation does not specify any enforcement mechanism for the fee schedule.

For the exemption list in section 7, there is no penalty for an authority that incorrectly believes it is exempt. The Regulation merely declares that the Act does not apply to those authorities. If an authority not listed undertakes a public work above the threshold without referring it, it would be in breach of the Act. The Act may provide for injunctive relief or other consequences, but the Regulation is silent.

The transitional provision (section 13) contains no penalty for a person who relies on the old threshold after the amendment; it simply states that the amendment does not apply to works already referred. That is a rule of application, not enforcement.

Overall, the Regulation is a procedural and definitional instrument. Enforcement of the Act’s obligations (such as the duty to refer works) is separate. The Regulation’s main contribution to enforcement is providing the correct forms to ensure that summonses and warrants are legally effective. If those forms are not used, the underlying coercive powers may be invalid, which could lead to procedural challenges. The Committee will enforce its own processes using the Act’s powers.

The Regulation sits under the Public Works Committee Act 1969 and cannot override it. It fills gaps left by the Act.

Interaction with the High Court Rules 2004. Sections 11(2)(a) and 11(4) expressly reference the High Court Rules 2004 for the calculation of witness fees. This incorporates those rules by reference. If the High Court Rules are amended, the fee rates under the Regulation automatically change. This reduces the need for frequent amendments but introduces a dependency on another instrument not made by the Committee. Users must check the current version of the High Court Rules.

Interaction with other Acts exempting authorities. The note to section 7 states that some Acts dealing with particular authorities (e.g., Aboriginal Land Trusts) also provide that the Act does not apply. The Regulation does not list those authorities; the user must check the specific Acts. This creates a patchwork of exemptions.

Interaction with the Act’s definition of “work”. Section 6 expands that definition by including temporary and demountable structures. This aligns with the Act’s purpose of parliamentary oversight for all major public building works, regardless of permanence.

Interaction with state and territory laws. The Regulation is a Commonwealth instrument. It does not interact with state planning or building laws, but the underlying public works may also be subject to state approvals. The Committee’s inquiry process under the Act does not replace or override state requirements.

Interaction with procurement rules. The exemptions in section 7 mean that entities like Australia Post and NBN Co are not subject to the Act’s referral requirement, but they remain subject to the Commonwealth Procurement Rules (if applicable) and their own enabling Acts. The Regulation does not harmonise these regimes.

Interaction with the Act’s penalty provisions. The forms prescribed in Part 3 (summons, warrant) are necessary to activate the Act’s penalties for non‑attendance. If a summons is not in the prescribed form, it may be invalid, and the witness could argue that they were not properly summoned.

Interaction with the Privacy Act 1988. The warrant for apprehension requires personal details. The Regulation does not address privacy, but the use of the warrant would likely require compliance with privacy principles.

Interaction with the transitional provisions of amending regulations. Section 13 preserves the operation of the previous threshold for works already referred. This interacts with the general rule against retrospective effect in the Acts Interpretation Act 1901.

The Regulation was originally made in 2016. Based on the text of the Regulation as provided, it has been amended at least once, by the Public Works Committee Legislation Amendment (2019 Measures No. 1) Regulations 2019. That amendment inserted new items into the exemption table (items 10A-10C for CEA Technologies Pty Limited and its subsidiaries; items 13A-13B for National Intermodal Corporation Limited subsidiaries; items 14A-14C for Snowy Hydro Limited and its subsidiaries). It also introduced section 7A (defence threshold of $75 million) and the transitional provision section 13.

The amendment changed the regime in two substantial ways: it expanded the list of exempt authorities to include new entities (especially those involved in defence and energy), and it raised the threshold for defence works from the general $15 million to $75 million. This latter change significantly reduced the number of defence projects that require Committee approval. The transitional provision (section 13) prevented the threshold increase from applying to works already referred, protecting existing referrals.

The Regulation’s name was originally the Public Works Committee Rules 2016? Actually, it is titled “Regulation 2016”. The Act uses the term “regulations” for instruments under it (see section 6A(3) referring to “regulations”). It is a legislative instrument registered on the Federal Register of Legislation. Its exact amendment history beyond the 2019 change is not evident from the text. However, the exemption table includes items with numbers that are not sequential: items 1-15 but missing item 3 (and item 10A, 10B, 10C etc.). This suggests that item 3 may have been repealed or renumbered. But the text does not show that. The absence of item 3 in the table (jump from 2 to 4) indicates a possible earlier amendment removing an authority. The note to section 7 mentioning “Some Acts dealing with particular authorities” also suggests that other exemptions exist outside this regulation.

The amendment history is relevant for practitioners assessing whether an authority was exempt at a particular time. The current text is the authoritative version, but historical versions matter for works proposed before amendments. The transitional provision only covers the 2019 amendment to the threshold, not to the exemption list.

The Regulation itself does not record any litigation history. There is no reference in the instrument to any court cases interpreting its provisions. Given that it is a procedural and definitional regulation, it is unlikely to have been litigated directly. However, the parent Act has been the subject of judicial consideration in Australian courts, particularly regarding the meaning of “work” and the obligation to refer. The Regulation’s provisions on forms and fees have not, to public knowledge, generated reported cases.

The list of exempt authorities may give rise to disputes if an entity claims exemption incorrectly. The regulation’s clarity on the two‑tier subsidiary exemption reduces interpretive ambiguity.

The use of the prescribed forms for summons and warrants may be challenged in contempt proceedings if a witness argues the summons was invalid due to non‑compliance with the form. There is no reported case on this point for this specific regulation.

Given the lack of litigation history, the Regulation appears to operate in the background without causing major legal disputes. Its terms are straightforward, and the main controversies likely arise under the Act rather than under the regulation.

Several traps exist for the unwary.

Only two tiers of subsidiaries are exempt. For most entities, only wholly‑owned subsidiaries and wholly‑owned subsidiaries of those subsidiaries are exempt (items 7, 8, 10B, 10C, 13A, 13B, 14B, 14C). A third‑tier subsidiary is not exempt. The user must trace ownership to confirm.

The defence threshold applies only to “public work for defence purposes”. This phrase is not defined in the Regulation. It may be disputed whether a dual‑use building (e.g., a shared office facility used by defence and civilian agencies) qualifies. The absence of a definition creates uncertainty.

Temporary and demountable structures are works. Many entities may assume that a temporary building (like a site office or portable classroom) is not a public work. Section 6 brings them in, unless the entity is exempt.

The exemption table has gaps. Item 3 is missing. This could be a drafting oversight or a deliberate removal. Users cannot assume that the first 15 items are consecutive. They must read the table as is.

Fees are tied to the High Court Rules 2004. Those rules may refer to specific dollar amounts or calculation methods. The High Court Rules have been replaced by the High Court Rules 2004 (as amended). If the High Court Rules are amended or replaced, the reference may become ambiguous. The Regulation does not provide a fallback.

Double payment prohibition catches simultaneous attendance. A person who appears before both the Committee and a Sectional Committee on the same day must choose the higher fee. But if the Committees meet on different days, they can claim both. The prohibition also applies to travel expenses for the same journey.

The transitional provision (section 13) is narrow. It only applies to the defence threshold amendment from 2019. Any later amendments to the exemption list or other parts are not covered. Works referred before any future amendment will not automatically be protected unless a transitional provision is included.

The forms are mandatory. A summons that does not follow the exact wording in Schedule 1 Part 3 may be invalid. The form includes placeholders and asterisked options; the issuer must delete the inapplicable parts. Failure to do so could create ambiguity.

Warrant for apprehension requires careful execution. The warrant must specify the persons to whom it is addressed. If it is not directed to a proper officer (e.g., a police officer), it may not be enforceable.

The exemption for Wine Australia (item 9) is a statutory authority for the wine industry. Its inclusion is unusual given the Act’s focus on public works. It shows that the exemption list is not limited to defence‑related entities.

Compliance with the Regulation requires awareness of its interaction with the Act.

For Commonwealth authorities not listed in section 7. They must determine whether a proposed work is a public work (including temporary/demountable structures per section 6). If it exceeds the general threshold (set by the Act, not the Regulation), they must refer it to the Committee. The Regulation does not affect that duty. They should also ensure that any summons they issue (if they are a delegated committee) uses the prescribed form in Schedule 1 Part 3.

For exempt authorities. They need to do nothing under the Regulation; the Act does not apply to them. But they should keep records to demonstrate that they fall within an exempt category (e.g., evidence of wholly‑owned subsidiary status). If an exemption is incorrectly claimed, the authority may later be found to have breached the Act.

For entities dealing with defence works. They must check whether the work is for defence purposes. If the estimated cost is $75 million or more, they must refer it to the Committee (unless the entity itself is exempt under section 7). If the cost is below $75 million, no referral is needed under the Act. They should document the cost estimate and the rationale for the defence purpose.

For witnesses and assessors. When summoned, they must attend at the specified time and place. They should retain evidence of travel and accommodation expenses. The Chair (or Sectional Committee Chair) will determine the fees; the witness or assessor should request payment using the prescribed procedure (not detailed in the Regulation but presumably by submitting a claim). They must not claim double payment if they attend both a Committee and a Sectional Committee on the same day; they should claim only the higher amount.

For Committee staff issuing summonses and warrants. They must use the exact forms in the Schedules. The form for the oath and affirmation must be read verbatim. The summons must include the correct place, time, and documents required. The warrant must include the correct details of the witness and the failure to appear. The signature must be from the Chair or a member.

For anyone seeking to enforce a summons. They should ensure the summons is served in accordance with the Act. The warrant for apprehension must be addressed to authorised officers (usually police or court officers). The warrant should be executed promptly and the witness brought before the Committee.

Monitoring changes to the High Court Rules. Those responsible for paying fees should check the current High Court Rules to determine the applicable hourly rate and travellers’ expenses. The Regulation does not impose a duty to publish the rates, so users must obtain them independently.

Transitional matters. If a work was referred to the Committee before the 2019 amendment, the old lower threshold applies. Entities should check the date of referral. If they receive a summons or are involved in a work that straddles an amendment, they should seek legal advice.

Overall, the Regulation is not onerous for those who are already familiar with the Act. The main compliance risk is the automatic incorporation of the High Court Rules and the strict form requirements. The exemptions are broad and clearly drafted, but the two‑tier subsidiary rule should be checked carefully.