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This is a Bill, not an Act. For current law, see the Acts databases.
GOVERNMENT PROCUREMENT AMENDMENT BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Treasurer)
Government
Procurement Amendment Bill 2003
Contents
Page
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Treasurer)
Government
Procurement Amendment Bill 2003
A Bill for
An Act to amend the
Government Procurement Act
2001, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Government Procurement Amendment Act 2003.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Government Procurement Act 2001.
Note 1 The Act is also amended in sch 1.
Note 2 The Cooperatives Act 2002 is amended in s 11 and two
Acts are repealed by s 10.
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain words
and expressions used in this Act, and includes references (signpost
definitions) to other words and expressions defined elsewhere in this
Act.
For example, the signpost definition ‘Territory
entity—see section 3.’ means that the expression
‘Territory entity’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Meaning of Territory
entity
(1) In this Act:
Territory entity—
(a) means an administrative unit, or a Territory entity under the
Auditor-General Act 1996; and
(b) for an unincorporated Territory entity—includes a member of the
entity acting on behalf of the Territory.
(2) However, Territory entity does not
include—
(a) the University of Canberra; or
(b) the University of Canberra College Pty Limited ACN 080 888 231;
or
(c) an entity declared under the regulations not to be a Territory
entity.
5 Procedure
governing proceedings of boardSection 19
(3)
substitute
(3) Business may be carried out at a meeting of the board constituted in
accordance with section 19A.
insert
19A Constitution of board
(1) Business may be carried out at a meeting of the board only if
4 members are present, including 1 non-public employee member.
(2) However, the review of a prescribed procurement proposal may be
carried out at a meeting of the board consisting of—
(a) the chairperson and 1 non-public employee member; or
(b) the chairperson, 1 non-public employee member and 1 other member;
or
(c) 2 public employee members and 1 non-public employee member.
Note The board’s functions include reviewing procurement and
disposal proposals of Territory entities in accordance with the procurement
guidelines (see s 6 (f)).
(3) Subsection (2) does not apply to a prescribed procurement proposal
if—
(a) the chairperson gives a direction that the subsection does not apply
to the proposal; or
(b) a member tells the chairperson that the member objects to the proposal
being reviewed by the board as constituted under the subsection.
(4) In this section:
prescribed procurement proposal means a particular
procurement proposal or a particular kind of procurement proposal approved, in
writing, by the chairperson for subsection (2).
procurement proposal means a proposal by a Territory entity
for—
(a) the procurement of goods, services and works; or
(b) the disposal of goods and works.
substitute
Part 3 Notifiable
contracts
Division
3.1 Preliminary
23 Pt 3 does not apply to Territory owned
corporations etc
(1) This part does not apply to a Territory owned corporation or any other
Territory entity established under the Corporations Act (each of which is an
excluded body).
(2) To remove any doubt, this part applies in relation to a contract
entered into by—
(a) a Territory entity (other than an excluded body) with an excluded
body; or
(b) an excluded body as an agent of a Territory entity (other than another
excluded body).
Example for section
A government department (representing the Territory) enters into a
notifiable contract with a Territory owned corporation. The government
department, but not the Territory owned corporation, is required to notify the
contract under this part.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
24 Definitions for pt 3
In this part:
confidential text, of a notifiable contract, means that part
of the contract that a party to the notifiable contract (including the Territory
or a Territory entity) is required to keep confidential under—
(a) a provision of a contract (including the notifiable contract) that
requires a party to the notifiable contract to keep any part of the notifiable
contract confidential; or
(b) any other requirement imposed by law that has the effect of requiring
a party to the notifiable contract to keep any part of the notifiable contract
confidential.
contract includes a contract as amended.
notifiable amendment, of a notifiable contract—see
section 26.
notifiable contract—see section 25.
notifiable contracts register—see section 27
(1).
public text—the public text of a
notifiable contract is—
(a) the text (if any) of the contract that is not confidential text; and
(b) any confidential text of the contract—
(i) that ceases to be confidential in accordance with the contract or by
the agreement of the parties to the contract; or
(ii) the substance of which has become public knowledge.
responsible Territory entity, for a contract or proposed
contract, means—
(a) the Territory entity that is, or will be, responsible for the
administration of the contract; or
(b) if a Territory entity administers, or will administer, the contract
for another Territory entity—the other Territory entity.
Example for par (b)
A Territory owned corporation administers a contract for an unincorporated
government body. The body is the responsible Territory entity for the contract.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
25 What is a notifiable
contract
(1) For this part, a notifiable contract is any of the
following entered into by the Territory or a Territory entity:
(a) a written contract for the procurement of goods, services or works;
(b) a written contract for the disposal of goods or works.
(2) However, notifiable contract does not include the
following:
(a) a contract with a total consideration, or estimated total
consideration, worth less than $50 000 (or, if another amount is prescribed
under the regulations, the other amount);
Note Contract includes a contract as amended, see s
24.
(b) an intergovernmental agreement;
(c) a contract prescribed under the regulations.
Example of par (a)
The consideration for a contract for the purchase of swings by the
Territory is $45 000. The contract is later amended to increase the total
consideration to $52 500. The contract, as amended, is a notifiable
contract.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) To remove any doubt, none of the following is a notifiable
contract:
(a) a contract of employment;
(b) a contract for the settlement of a legal liability to an
individual.
26 Meaning of notifiable
amendment
For this part, a notifiable amendment of a notifiable
contract is any amendment that, either alone or counted with another amendment
or other amendments that have not been notified in the notifiable contracts
register, increases the total consideration for the contract by at least the
greater of—
(a) 10% (or, if another percentage is prescribed under the regulations,
the other percentage) of the total consideration for the contract as already
notified in the notifiable contracts register; and
(b) $20 000 (or, if another amount is prescribed under the
regulations, the other amount).
Example
The consideration for a contract between the Territory and Acme Pty Ltd for
the supply of road runner retention devices is $190 000.
The minimum value for notification of an amendment, or a series of
amendments, of the contract is $20 000 (ie the greater of $20 000 or
10% of the value of the contract which is $19 000). The contract is
amended on 3 occasions.
The 1st and 2nd amendments are for $15 000 each. While neither of the
amendments is separately notifiable, the total of the 2 amendments is
$30 000 and each of them is therefore a notifiable amendment. When the 2
amendments are notified on the register, the 2 amendments cannot be counted
towards any other notifiable amendment. They increase the total consideration
for the contract to $220 000.
The 3rd amendment is for $21 000. It is not a notifiable amendment
because, even though it is more than $20 000, it is less than 10% of the
total consideration for the contract as amended by all previous notifiable
amendments, ie $22 000.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division 3.2 Notifiable contracts
register
27 Keeping of register
(1) The chief executive must keep a register of notifiable contracts (the
notifiable contracts register).
Note The reference to the chief executive is to the chief executive
of the administrative unit that administers this provision (and not to the chief
executive of each administrative unit), see Legislation Act, s 163.
(2) The register must be kept electronically.
Example of how register may be
kept
The register may be kept in the form of, or as part of, 1 or more computer
databases, and may include data compiled electronically from the
databases.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The chief executive may correct any mistake, error or omission in the
register subject to the requirements (if any) of the regulations.
28 Contents of register
(1) The notifiable contracts register must include the following for each
notifiable contract:
(a) the parties to the contract;
(b) the responsible Territory entity for the contract and any change in
the responsible Territory entity for the contract;
(c) a brief description of what the contract is for;
(d) the date the contract was made;
(e) the date the contract ends;
(f) the value of the total consideration, or estimated total
consideration, for the contract;
(g) if a notifiable amendment of the contract is made—
(i) the change in the value of the consideration to which the amendment
relates; and
(ii) the date the amendment was made;
(h) whether any part of the contract is confidential text;
Note Contract includes a contract as amended, see s
24.
(i) if any part of the contract is confidential text—a brief
indication of what the confidential text relates to;
(j) for a notifiable contract, and any notifiable amendment of the
contract, held by the responsible Territory entity in electronic form—an
electronic copy of the public text (if any) of the contract;
(k) where anyone can obtain a printed copy of the public text (if any) of
the contract as made and of any notifiable amendment of the contract;
(l) anything else prescribed under the regulations.
Examples for par (i)
see examples for s 35 (1) (a)
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The register may include anything else the chief executive considers
appropriate.
Example
Information about and hypertext links to contracts that are not notifiable
contracts.
(3) The regulations may make provision in relation to documents that are
to be entered in the register.
Example
requiring a document to be in portable document format (created in Adobe
Acrobat 5.0) or in rich text format
29 Public access to material on
register
(1) The chief executive must ensure, as far as practicable, that a copy of
the material mentioned in section 28 (1) is accessible at all times on a website
approved by the chief executive.
(2) Access is to be provided without charge by the Territory.
30 Territory entities to provide material for
register
(1) The responsible Territory entity for a notifiable contract must,
within 21 days after the day the contract is made—
(a) enter the material mentioned in section 28 (1) for the contract in the
register; or
(b) give the material to the chief executive for entry in the
register.
(2) The entity must also, within 21 days after the day a change in the
material mentioned in section 28 (1) happens—
(a) update the material for the contract in the register; or
(b) give the updated material to the chief executive for entry in the
register.
Note Contract includes a contract as amended, see s
24.
(3) However, subsection (2) only applies to a change mentioned in section
28 (1) (g) if the change is about a notifiable amendment.
Division 3.3 Availability of notifiable
contracts
31 Public text of contracts to be made
available
(1) The responsible Territory entity for a notifiable contract must make
the public text of the contract as made, and of any notifiable amendment of the
contract, available to the public within—
(a) for the contract—21 days after the day the contract becomes
a notifiable contract; or
(b) for the amendment—21 days after the day the amendment becomes a
notifiable amendment.
(2) The public text must be made available—
(a) if section 28 (1) (j) (Contents of register) applies to the public
text—from the notifiable contracts register in accordance with section 29
(Public access to material on register); and
(b) by allowing anyone to buy a printed copy of the public text, at a
place mentioned in section 28 (1) (k) in relation to the contract, on payment of
the reasonable costs of reproducing it.
Example
A notifiable contract for public works consists of computer-written text in
a form that can be included on the register and a hand-drawn plan. The public
text of the contract that is computer-written must be made available both in
hardcopy and electronically from the notifiable contracts register. The public
text of the hand-drawn plan must be made available in hardcopy.
If the responsible Territory entity has an electronically scanned copy of
the plan, the public text of the scanned copy must also be made available from
the register.
Note 1 A responsible Territory entity is not required to create an
electronic copy of a document that is not in electronic form, see s
33.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision when it appears (see
Legislation Act, s 126 and s 132).
(3) The requirement to make the public text of a notifiable contract
(including any notifiable amendment of the contract) available ends when the
contract ends, but the Territory entity may continue to make the public text
available for any period after the contract ends.
Note Contract includes a contract as amended, see s
24.
32 Making information and contracts available apart
from pt 3
(1) This part does not prevent responsible Territory entities from making
available information about, or the text of, government contracts otherwise than
as required by this part if an agency is required under law to do so or can
otherwise properly do so.
Examples
1 publishing information about a contract in a newspaper advertisement in
addition to complying with s 28 (1) (Contents of register)
2 giving a person an electronic copy of a notifiable contract, without
charge, on a floppy disk, CD or DVD
Note 1 The Freedom of Information Act 1989 and Territory
Records Act 2002 provide for access to documents subject to certain
exemptions.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) In this section:
government contract means a notifiable contract and any other
contract to which the Territory or a Territory entity is a party.
33 Entities not required to create electronic copies
If a responsible Territory entity does not have a notifiable contract in
electronic form, this part does not require the entity to create an electronic
copy of the contract.
Division 3.4 Confidential
text
34 Notice of effect of div 3.4 to contracting
parties
(1) This section applies in relation to a proposed notifiable contract
if—
(a) a party to the contract, including the Territory or a Territory
entity, proposes that any part of the contract be confidential text;
or
(b) any part of the contract will be confidential text because of a
requirement imposed under law that requires a party to the contract to keep the
part confidential.
(2) The responsible Territory entity for the contract must ensure that
this division is drawn to the attention of all the proposed parties to the
contract (other than the Territory or a Territory entity).
35 Grounds for confidentiality of
information
(1) The responsible Territory entity for a contract to which section 34
applies must not propose that any part of the text of the contract be
confidential text, or agree to any part of the contract being confidential text,
unless satisfied that—
(a) the disclosure of the text would—
(i) be an unreasonable disclosure of personal information about a person;
or
(ii) disclose a trade secret; or
(iii) disclose information (other than a trade secret) having a commercial
value that would be, or could reasonably be expected to be, destroyed or
diminished if the information were disclosed; or
(iv) be an unreasonable disclosure of information about the business
affairs of a person; or
(b) a requirement imposed under law requires a party to the contract to
keep the text confidential.
Examples for par (a)
1 intellectual property including software source codes
2 information on the design and operation of goods
3 hourly rates, on-costs and management fees
4 individual components of the total contract price
Example for par (b)
a failure to comply with the requirement would create an action for breach
of confidence
Note 1 The Information Privacy Principles apply to a Territory
entity. Personal information may be disclosed under a Territory law
(see Privacy Act 1988 (Cwlth), s 14, principle 11 (1) (d)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, the responsible Territory entity for the contract must not
propose that any part of the text of the contract be confidential text, or agree
to any part of the contract being confidential text, if—
(a) the substance of the information to which the text relates is public
knowledge; or
(b) the effect of the proposal or agreement—
(i) would be to inappropriately restrict a Territory entity in the
management or use of Territory assets; or
(ii) would not be in the public interest; or
(iii) would be to require the obligation of confidentiality to apply for
longer than is reasonably necessary to protect the interest to which it
relates.
(3) In this section:
personal information—see the Privacy Act 1988
(Cwlth), section 6.
36 Model confidentiality clause required for
confidential text
The text of a notifiable contract must not be made confidential text
unless—
(a) a confidentiality clause that incorporates the substance of the model
confidentiality clause in schedule 1, as far as is applicable, is included in
the contract; and
(b) the confidentiality clause does not limit disclosure of information to
a greater extent than provided in the model confidentiality clause.
37 Invalidity of non-complying confidentiality
clauses
A confidentiality clause in or applying to a notifiable contract is void
if—
(a) the clause does not comply with section 36; or
(b) the clause was included in the contract in contravention of section 35
(Grounds for confidentiality of information).
38 Contracts and information to be given to
auditor-general
(1) In this section:
confidential text includes text that purports to be
confidential text.
reportable contract means a notifiable contract that contains
confidential text.
reporting period means a 6-month period ending on 31 March or
30 September.
(2) The responsible Territory entity for a reportable contract must give
the auditor-general—
(a) a copy of the contract (including the confidential text) within
21 days after the day the contract becomes a notifiable contract;
or
(b) if there is any change in the confidential text of the
contract—a copy of the relevant amendment of the contract, or the contract
as amended, within 21 days after the day the confidential text is
changed.
(3) The entity must, for each relevant reporting period, give the
auditor-general either—
(a) a list of the following:
(i) the reportable contracts that became notifiable contracts during the
relevant period;
(ii) the reportable contracts which had confidential text changed during
the relevant period; or
(b) a statement that no reportable contracts became notifiable or changed
during the relevant period.
(4) The list must contain—
(a) the following information for each reportable contract mentioned in
subsection (3) (a) (i):
(i) the parties to the contract;
(ii) a brief description of what the contract is for;
(iii) the date the contract was made;
(iv) the date the contract ends;
(v) the value of the total consideration, or estimated total
consideration, for the contract; and
(b) for each reportable contract mentioned in
subsection (3) (a) (ii)—the thing that the change relates
to; and
(c) any other information prescribed under the regulations.
(5) The list or statement must be given to the auditor-general within
21 days after the day each relevant reporting period ends.
39 Auditor-general’s reporting obligations for
contracts etc
(1) As soon as practicable after the day each reporting period ends under
section 38, the auditor-general must give the appropriate Legislative Assembly
committee the information given to the auditor-general under
section 38 (3) (a).
(2) The auditor-general may also give the committee any other information
the auditor-general considers appropriate.
(3) A responsible Territory entity for a reportable contract under
section 38 must, if asked by the committee, give the committee the
information the committee requires about the decision to agree to the inclusion
of confidential text in the contract.
(4) For this section:
appropriate Legislative Assembly committee means a standing
committee of the Legislative Assembly nominated, in writing, by the
Speaker.
(5) A nomination under subsection (4) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
Division 3.5 Other
matters
40 Effect of disclosure of confidential
information
(1) This section applies if confidential text, or information about
confidential text, is disclosed under this part.
(2) The disclosure does not affect the continuing force of the obligation
of confidence.
41 Effect of other disclosure
laws
This part does not affect any other law in force in the Territory about the
disclosure of documents or information.
Note 1 The Freedom of Information Act 1989 and Territory
Records Act 2002 provide for access to documents subject to certain
exemptions.
Note 2 The Information Privacy Principles under the Privacy Act
1988 (Cwlth) provide for the disclosure of personal information in certain
circumstances.
42 No liability for complying with pt
3
(1) The Territory or a Territory entity is not civilly liable to another
party to a reportable contract, or to anyone else, for anything done honestly
under this part.
(2) In this section:
reportable contract—see section 38 (1) (Contracts and
information to be given to auditor-general).
Part 4 Interest on commercial
accounts
43 Application of pt 4
(1) This part does not apply to a Territory owned corporation or any other
Territory body established under the Corporations Act.
(2) This part applies to a contract entered into by the Territory or a
Territory entity for the procurement of goods, services or works, other than a
contract—
(a) with a consideration of at least $10 000 (or, if another amount
is prescribed under the regulations, the other amount); and
(b) that states that this part does not apply to it.
44 Definitions for pt 4
In this part:
commercial account means an account given to the Territory or
a Territory entity for the payment of money in relation to goods, services or
works provided to the Territory or a Territory entity under a
contract.
Examples of payments
a deposit, part payment, instalment payment or a bond or other refundable
money
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
payment date, for a commercial account,
means—
(a) the day worked out in accordance with the contract as the day when the
account is payable; or
(b) in any other case—the day on which the account is received by
the Territory or the Territory entity.
relevant date, for the payment of a commercial account, means
the 25th day of the month after the month in which the payment date for payment
of the account happens.
Note Month means calendar month, see Legislation Act, dict,
pt 1.
45 Interest on unpaid accounts
(1) This section applies if the Territory or a Territory entity does not
pay a commercial account in full by the relevant date for the account.
(2) The Territory or the Territory entity is liable to pay the creditor a
further amount by way of interest on the amount of the account that remains
unpaid from time to time.
(3) Interest is payable at the rate worked out under the Supreme Court
Rules, order 42A (Interest on judgments) as if the unpaid amount were a judgment
of the Supreme Court.
(4) If payment of the account is made by mail, the payment is taken to be
made when it is posted.
46 Exclusion of inconsistent contractual
terms
A term in a contract is void if—
(a) for a contract with a total consideration worth less than the
prescribed amount for section 43—the term excludes the application of this
part to the contract; or
(b) the term provides for the payment of interest on an unpaid commercial
account that has been rendered under the contract.
47 Availability of funds to pay
interest
(1) Interest payable under this part is payable whether or not there is an
appropriation available for the purpose.
(2) If a commercial account is payable out of a trust banking account
under the Financial Management Act 1996, section 51 (Departmental trust
banking accounts), any interest payable under this part for the account is also
payable out of the account.
48 Reporting of excluded
contracts
(1) The responsible chief executive officer for a Territory entity must
include in the entity’s annual report a statement of the number of
contracts administered by the entity that were excluded from the operation of
this part during the period to which the report relates.
(2) In this section:
annual report means the report that the entity is required to
prepare under the Annual Reports (Government Agencies) Act
1995.
responsible chief executive—see section 50 (Responsible
chief executive to ensure Act complied with).
Part 5 Miscellaneous
49 Discounts for prompt payments
(1) This section applies to a contract for the procurement of goods,
services or works by the Territory or a Territory entity (other than a Territory
owned corporation or any other Territory body established under the Corporations
Act).
(2) The Territory or the Territory entity must not enter into the contract
unless satisfied—
(a) the best discount that can reasonably be obtained for the prompt
payment of a commercial account rendered under the contract is available to the
Territory or Territory entity; or
(b) if no such discount is available—that reasonable commercial
negotiations would not result in the availability of such a discount.
(3) In this section:
commercial account—see section 44.
50 Responsible chief executive to ensure Act complied
with
(1) The responsible chief executive officer for a Territory entity must
ensure that the entity complies with this Act.
(2) In this section:
department—see the Financial Management Act
1996, dictionary.
public sector company—see the Auditor-General Act
1996, dictionary.
responsible chief executive means—
(a) for a department—the responsible chief executive of the
department under the Financial Management Act 1996; or
(b) for a Territory authority—the chief executive officer of the
authority under the Financial Management Act 1996; or
(c) for a public sector company—the person responsible for managing
the affairs of the company; or
(d) for a joint venture or trust in which the Territory or a Territory
entity has a controlling interest—the responsible chief executive of the
department or Territory entity that is responsible for matters most closely
related to that interest.
51 Approved forms
(1) The Minister may, in writing, approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
Note For other provisions about forms, see Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
52 Regulation-making power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may—
(a) make provision in relation to any matter about which provision may be
made by the procurement guidelines; and
(b) provide that prescribed things are, or are not, to be regarded as
goods, services or works for this Act.
(3) The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty
units for offences against the regulations.
53 Review of Act
(1) The Minister must review the operation of this Act as soon as
practicable after 24 May 2006.
(2) A report on the outcome of the review must be presented by the
Minister to the Legislative Assembly by 24 November 2006.
(3) This section expires on 31 December 2006.
Part 6 Transitional
provisions
54 Government Contractual Debts (Interest)
Act
(1) This section applies to a contract made by the Territory or a
Territory entity before the commencement of this section.
(2) A reference in the contract to the Government Contractual Debts
(Interest) Act 1994 is taken to be a reference to part 4 (Interest on
commercial accounts).
(3) Any liability to pay interest under the Government Contractual
Debts (Interest) Act 1994 is taken to be a liability to pay interest under
part 4.
55 Public Access to Government Contracts
Act—general
(1) This section applies to a contract made by the Territory or a
Territory entity before the commencement of this section that is in force
immediately before the commencement of this section.
(2) A reference in the contract to the Public Access to Government
Contracts Act 2000 (the repealed Act) is taken to be a
reference to part 3 (Notifiable contracts).
(3) A confidentiality clause in the contract that complies with the
repealed Act, section 12 (Confidentiality clause in a government contract)
is taken to comply with section 36.
(4) An agreement under the repealed Act, section 13 (Grounds for
confidentiality of information) is taken to be a proposal under section
35.
(5) The repealed Act, section 6 (Public text of a contract) and
section 7 (Government contracts must be made public) continue to apply to
the contract as if the repealed Act were in force.
(6) However, if the contract is notified in the notifiable contracts
register, the repealed Act—
(a) sections 6 and 7 cease to apply to the contract; and
(b) division 3.2 (Notifiable contracts register) and division 3.3
(Availability of notifiable contracts) apply to the contract.
56 Public Access to Government Contracts
Act—reportable contracts
(1) This section applies to a contract to which the Territory or a
Territory entity is a party and that was in force immediately before the
commencement of this section.
(2) The responsible Territory entity for the contract must comply with the
repealed Act, section 8 (2) as if that subsection were in force.
(3) However, section 38 (Contracts and information to be given to
auditor-general) applies to the contract if it is notified in the notifiable
contracts register.
(4) In this section:
responsible Territory entity—see section 24.
repealed Act means the Public Access to Government
Contracts Act 2000.
57 First report by auditor-general under this
Act
Despite section 38 (Contracts and information to be given to
auditor-general), the 1st reporting period under the section is the
period—
(a) beginning immediately after the end of the last 6-month period under
the Public Access to Government Contracts Act 2000, section 8A that ended
before the repeal of that Act; and
(b) ending at the end of the 1st relevant reporting period under section
38.
58 Transitional regulations
The regulations may modify the operation of this part to make provision in
relation to any matter that, in the Executive’s opinion, is not, or is not
adequately, dealt with in this part.
59 Expiry of pt 6
This part expires 1 year after the day it commences.
insert
Schedule 1 Model confidentiality
clause
(see s 36)
M Confidentiality obligations of
Territory
(1) In this contract, confidential information means
[list of the kinds of information to be kept confidential].
(2) In giving effect to the principles of open and accountable government,
the Territory may disclose documents and information unless it has otherwise
agreed, or is otherwise required under law, to keep the information
confidential.
(3) Except as provided in this contract, the Territory must not disclose
the confidential information to anyone without the prior written consent
[insert the name of the party or the party’s representative] (which
consent will not be unreasonably withheld) except if the confidential
information—
(a) is required or authorised to be disclosed under law; or
(b) is reasonably necessary for the enforcement of the criminal law;
or
(c) is disclosed to the Territory’s solicitors, auditors, insurers
or advisers; or
(d) is generally available to the public; or
(e) is in the possession of the Territory without restriction in relation
to disclosure before the date of receipt from [insert the name of the party
or the party’s representative]; or
(f) is disclosed by the responsible Minister in reporting to the
Legislative Assembly or its committees; or
(g) is disclosed to the ombudsman or for a purpose in relation to the
protection of the public revenue.
(4) The Government Procurement Act 2001, part 3 (Notifiable
contracts) applies to this contract.
(5) The following grounds mentioned in that Act, section 35 (1)
apply to this clause: [list relevant grounds].
substitute
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 In particular, the Legislation Act, dict, pt 1, defines the
following terms:
• administrative unit
• auditor-general
• body
• Corporations Act
• Territory owned corporation
• the Territory.
board, for part 2 (Government procurement board), means the
Australian Capital Territory Government Procurement Board.
chairperson, for part 2 (Government procurement board), means
the chairperson of the board.
commercial account, for part 4 (Interest on commercial
accounts)—see section 44.
confidential text, of a notifiable contract, for part 3
(Notifiable contracts)—see section 24.
contract, for part 3 (Notifiable contracts)—see
section 24.
member, for part 2 (Government procurement board),
means—
(a) the chairperson; or
(b) a public employee member; or
(c) a non-public employee member.
notifiable amendment, of a notifiable contract, for part 3
(Notifiable contracts)—see section 26.
notifiable contract, for part 3 (Notifiable
contracts)—see section 25.
notifiable contracts register, for part 3 (Notifiable
contracts)—see section 27 (1).
payment date, for a commercial account, for part 4 (Interest
on commercial accounts)—see section 44.
procurement guidelines, for part 2 (Government procurement
board), means the procurement guidelines under this Act.
public text, of a notifiable contract, for part 3 (Notifiable
contracts)—see section 24.
relevant date, for the payment of a commercial account, for
part 4 (Interest on commercial accounts)—see section 44.
responsible Territory entity, for a contract or proposed
contract, for part 3 (Notifiable contracts)—see section 24.
Territory entity—see section 3.
The following Acts are repealed:
• Government Contractual Debts (Interest) Act 1994 No
107
• Public Access to Government Contracts Act 2000 No
75.
11 Cooperatives
Act 2002, schedule 6, item 6.7
omit
12 Other
amendments—sch 1
The Act is also amended in schedule 1.
Schedule
1 Other
amendments
(see s 12)
substitute
An Act about the procurement of goods, services and works by the Territory
and Territory entities, and for other purposes
in part 1, insert
4A Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
substitute
6 Functions of board
The functions of the board are—
(a) to develop, implement and review policies and practices
about—
(i) the procurement of goods, services and works by Territory entities;
and
(ii) the disposal of goods and works by Territory entities; and
(b) to establish an accreditation system for the procurement and disposal
activities of Territory entities; and
(c) to develop and make guidelines for—
(i) the procurement of goods, services and works by Territory entities;
and
(ii) the disposal of goods and works by Territory entities; and
(d) to monitor the procurement and disposal activities, competencies and
systems of Territory entities; and
(e) to give advice to Territory entities on procurement and disposal
issues; and
(f) to review procurement and disposal proposals of Territory entities in
accordance with the procurement guidelines; and
(g) to assist in the development of training and development courses and
activities relevant to the procurement and disposal activities of Territory
entities; and
(h) to provide advice to the Minister on any issue relevant to the
procurement and disposal activities of Territory entities or the operation of
this Act; and
(i) to exercise any other function given to the board under this Act or
any other Territory law; and
(j) to do anything else—
(i) incidental, complementary or helpful to the board’s other
functions; or
(ii) likely to improve the effective and efficient exercise of the
board’s other functions.
Note A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
substitute
(2) The procurement guidelines may make provision about—
(a) the procurement of goods, services and works by Territory entities;
and
(b) the disposal of goods and works by Territory entities.
Examples
1 the policies and practices that must or may be observed
2 the procedures that must or may be followed
3 the accreditation of people involved, and procedures followed, in
procurement and disposal activities
4 reporting on procurement and disposal activities
5 procurement and disposal proposals that are to be reviewed by the
board
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
insert
(5) The regulations may provide that prescribed activities are, or are
not, to be regarded for this Act as—
(a) procurement or disposal; or
(b) procurement or disposal activities.
[1.6] Section
12 (1), note
substitute
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, div 19.3.
Note 2 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
substitute
15 Abuse of position
(1) A person commits an offence if—
(a) the person uses information gained because of being a member of the
board; and
(b) the person does so with the intention of dishonestly obtaining a
benefit for the person or someone else.
Maximum penalty: imprisonment for 5 years.
(2) A person commits an offence if—
(a) the person has stopped being a member of the board; and
(b) the person uses information that the person obtained because of being
a member; and
(c) the person does so with the intention of dishonestly obtaining a
benefit for the person or someone else.
Maximum penalty: imprisonment for 5 years.
(3) In this section:
dishonestly—a person acts dishonestly
if—
(a) the person’s conduct is dishonest according to the standards of
ordinary people; and
(b) the person knows that the conduct is dishonest according to those
standards.
insert
Division 2.5 Other
matters
22 Power to obtain information and
documents
(1) In relation to the exercise of its functions, the board may, in
writing, ask a Territory entity to give stated information or a stated document
to the board within a stated time and in a stated way.
(2) The Territory entity must comply with the request.
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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