Local Government Act 1993 No 30
Historical version for 1 January 2011 to 17 February 2011 (accessed 18 December 2014 at 16:40) Current version

Part 6 Public-private partnerships

Division 1 Preliminary

400B   Definitions

(1)  For the purposes of this Act, a public-private partnership means an arrangement:
(a)  between a council and a private person to provide public infrastructure or facilities (being infrastructure or facilities in respect of which the council has an interest, liability or responsibility under the arrangement), and
(b)  in which the public infrastructure or facilities are provided in part or in whole through private sector financing, ownership or control,
but does not include any such arrangement if it is of a class that has been excluded from the operation of this Part by the regulations.
(1A)  For the purposes of subsection (1), the provision of public infrastructure or facilities includes the delivery of services during the carrying out of any project under the public-private partnership.
(2)  In this Part:

arrangement includes a contract or understanding (whether or not involving the formation of an entity).

entity means any partnership, trust, corporation, joint venture, syndicate or other body (whether or not incorporated).

PPP guidelines means the guidelines in force from time to time under section 400C.

private person means any person other than:

(a)  the Government (including the State, the Crown and a Minister of the Crown), or
(b)  a public or local authority (including a council or a State owned corporation), or
(c)  a public sector employee or other person or body acting in an official capacity on behalf of the Government or a public or local authority.

relevant council, in relation to public-private partnership or proposed public-private partnership, means the council that has entered into, or is proposing to enter into, the partnership.

significant project means:

(a)  any project with an estimated total cost of more than $50 million or such other amount as may be prescribed by the regulations, or
(b)  any project in respect of which the relevant council’s financial contribution, or its equity position, amounts to 25% or more of the council’s annual revenue that is lawfully available for spending on facilities or services of the kind to which the project relates.

(3)  In determining a relevant council’s financial contribution or equity position in relation to a project for the purposes of this Part, all elements of the project that the council provides are to be taken into account, including land value, the provision of non-monetary goods and services and any costs associated with the council’s contractual liability in the event of the council incurring a loss under the project.
(4)  For the purposes of this Part, a project under a public-private partnership that is carried out in stages is to be treated as a single project. The PPP guidelines may also specify other circumstances in which related projects carried out under a public-private partnership are to be treated as a single project for the purposes of this Part.

400C   Guidelines to be followed by councils in relation to public-private partnerships

(1)  The Director-General may from time to time issue guidelines requiring specified procedures and processes to be followed by councils in relation to entering into, and carrying out projects under, public-private partnerships.
(2)  Without limitation, the PPP guidelines may contain provisions requiring:
(a)  feasibility and risk assessment, and
(b)  the identification of appropriate governance and administrative arrangements (including appropriate management structures and auditing requirements), and
(c)  the undertaking of on-going risk management measures, and
(d)  due diligence in the carrying out of projects under public-private partnerships.

400D   Ancillary provisions relating to PPP guidelines

(1)  The PPP guidelines are to be made available to councils in such manner as the Director-General thinks appropriate.
(2)  The Director-General may from time to time amend or replace the PPP guidelines.

Division 2 Restrictions relating to public-private partnerships

400E   General requirements

(1)  A council must not:
(a)  enter into a public-private partnership, or
(b)  carry out any project under a public-private partnership,
except in accordance with this Part.
(2)  Without limiting subsection (1), a council is required to comply with the PPP guidelines at all times while carrying out a project under a public-private partnership.

400F   Council to provide assessment of PPP project to Director-General

(1)  A council must not enter into a public-private partnership unless the council has provided the Director-General with an assessment of the project to be carried out under the partnership.
(2)  In providing such an assessment, the general manager of the council is required to certify that it has been prepared in accordance with the PPP guidelines.
(3)  If:
(a)  the project to be carried out under the public-private partnership is a significant project, or
(b)  the Director-General is of the opinion, having regard to the criteria specified in the PPP guidelines, that the project has a high risk,
the Director-General is to advise the council that the project is required to be referred to the Project Review Committee for review.
(4)  If the Director-General advises the council that the project is not required to be referred to the Project Review Committee, the council is entitled:
(a)  subject to obtaining the Minister’s consent under section 358 (1) (a), to enter into the public-private partnership, and
(b)  subject to this Division, to carry out the project that is the subject of the assessment.

400G   Minister may require PPP project to be referred to Project Review Committee

(1)  The Minister may direct a council to refer any project that is to be carried out, or is being carried out, under a public-private partnership to the Project Review Committee for review.
(2)  Any such direction:
(a)  may be given at any stage in the process of entering into the public-private partnership or in the carrying out of the project under the partnership, and
(b)  must be complied with by the council.
(3)  A direction may be given under this section only if the Minister is of the opinion that the council concerned has not complied with the PPP guidelines in relation to entering into the public-private partnership or carrying out the project.

400H   Director-General may require council to provide assessment of varied PPP project

(1)  If the Director-General is of the opinion that a project that is to be carried out, or is being carried out, under a public-private partnership has been, or is proposed to be, varied in a significant manner, the Director-General may require the relevant council to provide the Director-General with an assessment of the project as varied or proposed to be varied. Section 400F (2) applies in relation to any such assessment.
(2)  If the Director-General is of the opinion that the project has or will become:
(a)  a significant project, or
(b)  a high risk project (having regard to the criteria specified in the PPP guidelines),
the Director-General is to advise the council that the project is required to be referred to the Project Review Committee for review.
(3)  The relevant council must comply with a direction under subsection (1).

400I   Review of PPP project by Project Review Committee

(1)  If a project is required or directed to be referred to the Project Review Committee for review, the relevant council must not enter into a public-private partnership to carry out the project, or proceed with the carrying out of the project under a public-private partnership, unless:
(a)  the relevant council has provided the Project Review Committee with an assessment of the project in accordance with the PPP guidelines, and
(b)  the Project Review Committee has reviewed the project and is satisfied that the requirements of the PPP guidelines have been complied with in relation to the project.
(2)  The relevant council has the responsibility of demonstrating to the Project Review Committee, in conducting its review of the project, that the requirements of the PPP guidelines have been complied with in relation to the project.
(3)  If the Project Review Committee advises the council that the Committee is satisfied that the requirements of the PPP guidelines have been complied with in relation to the project, the council is entitled:
(a)  to enter into the public-private partnership (if it has not already entered into it), or
(b)  subject to this Division, to proceed with the carrying out of the project.
(4)  The Project Review Committee’s decision as to whether or not the relevant council has complied with the requirements of the PPP guidelines in relation to a project is final and cannot be reviewed by any court or tribunal.

Division 3 Local Government Project Review Committee

400J   Establishment and constitution of Project Review Committee

(1)  A Local Government Project Review Committee is established.
(2)  The Project Review Committee is to consist of the following members:
(a)  the Director-General (or an officer of the Department nominated by the Director-General) who is to be the chairperson of the Committee,
(b)  the Secretary of the Treasury (or an officer of the Treasury nominated by the Secretary),
(c)  the Director-General of the Department of Premier and Cabinet (or an officer of that Department nominated by that Director-General),
(d)  (Repealed)
(e)  the Director-General of the Department of Planning (or an officer of that Department nominated by the Director-General of that Department),
(f)  such other persons as may be appointed by the Director-General for the purposes of enabling the Project Review Committee to exercise its functions.
(3)  The appointment by the Director-General of persons as members of the Project Review Committee under subsection (2) (f) is to be made on the basis of the nature, or subject-matter, of the project that is before the Committee for review. In doing so, the Director-General is to ensure that any person appointed as a member has the relevant expertise to enable the Committee to properly exercise its functions in relation to the project concerned.
(4)  Without limiting subsection (3), the Director-General may appoint persons from the private sector as members of the Project Review Committee.
(5)  The Project Review Committee has such functions as are conferred or imposed on it by or under this or any other Act.
(6)  Schedule 3 has effect with respect to the members and procedure of the Project Review Committee.

Division 4 Miscellaneous provisions

400K   Compensation not payable

(1)  Compensation is not payable by or on behalf of the State arising directly or indirectly from any of the following matters occurring before or after the commencement of this Part:
(a)  the enactment of the Local Government Amendment (Public-Private Partnerships) Act 2004 or the operation of this Part,
(b)  the exercise by the Minister, an officer of the Department or a member of the Project Review Committee of any function under this Part (including any failure or delay in exercising any such function),
(c)  any statement or conduct in connection with public-private partnerships or this Part.
(2)  Compensation is not payable by a council to any private person as a consequence of the council being prevented, by the operation of this Part, from entering into a public-private partnership or from carrying out a project under a public-private partnership.
(3)  However, subsection (2) does not apply in relation to a council if the public-private partnership concerned is a partnership referred to in section 400N (2).
(4)  In this section:

compensation includes damages or any other form of monetary compensation.

conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.

statement includes a representation of any kind, whether made verbally or in writing and whether negligent, false or misleading or otherwise.

the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes an officer, employee or agent of the Crown or any member of the Project Review Committee.

400L   Decision by council to enter into public-private partnership

Any decision by a council in relation to entering into a public-private partnership may only be made by resolution of the council.

400M   No contracting out

This Part applies regardless of the terms of any arrangement between a council and a private person.

400N   Application of Part

(1)  This Part does not apply to any public-private partnership that a council resolved, before 28 June 2004, to enter into.
(2)  However, if a council resolved, on or after 28 June 2004 but before the commencement of this Part, to enter into a public-private partnership, this Part applies to and in respect of the partnership.
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