Part 7.1 State Contracts Control Board
(1) There is established by this Act a State Contracts Control Board (referred to in this Part as the Board).(2) The Board represents, and is an agency of, the Crown.
(1) The Board has the functions conferred or imposed on it by this Act and the regulations under this Act, or by or under any other Act.(2) The Board has power to do all things necessary or convenient to be done for, or in connection with, the exercise of its functions.
137 Membership and procedure of Board
(1) The Board is to consist of the following members:(a) a person appointed by the Minister as the Chairperson of the Board,(b) at least 3 other persons appointed by the Minister to represent public sector agencies that use goods and services supplied in accordance with this Chapter and the regulations made under it.(2) The regulations may make provision for or with respect to the membership and procedure of the Board.
(1) The Minister may give the members of the Board written directions as to the exercise of the Board’s functions.(2) Any such direction may apply generally or to a particular matter and, without limiting subsection (1), may set out a particular policy to be carried out by the Board.(3) The Board must ensure that it complies with any such direction.(4) A copy of any direction given by the Minister under this section is to be included in the Board’s annual report.
(1) The Board may establish subcommittees to assist the Board in connection with the exercise of any of its functions.(2) It does not matter that some or all of the members of a subcommittee are not members of the Board.(3) The procedure for calling meetings of a subcommittee and for the conduct of those meetings is to be as determined by the Board or (subject to any determination of the Board) by the subcommittee.
(1) The Chairperson of the Board may arrange for the use of Public Service or other public sector staff and facilities to assist the Board in the exercise of its functions.(2) The Chairperson of the Board may engage consultants for the purpose of getting expert advice for the Board in connection with the supply or disposal of goods and services.
141 Delegation of functions of Board
(1) The Board may delegate to an authorised person any of the functions of the Board, other than this power of delegation.(1A) A delegate may subdelegate to an authorised person any function delegated under this section if the delegate is authorised by the terms of the delegation to do so.(2) In this section, authorised person means a member of the Board, a subcommittee of the Board, a member of staff of a Division of the Government Service, a statutory body, a statutory officer or any other person or body of persons approved by the Minister.
(1) The Board must, on or before 31 October in each year, prepare and present to the Minister a report of its work and activities for the year ending on the preceding 30 June.(2) The report may be included in any annual report of the Department for which the Minister is responsible.
Part 7.2 Acquisition and disposal of goods and services
The regulations may make provision for or with respect to the acquisition or disposal of goods or services for the public sector services.
Part 7.3 Competitive neutrality in tendering
144 Purpose and application of Part
(1988 Act, s 107)
(1) The purpose of this Part is to provide the Board with a role under the State’s complaints mechanism, in connection with competitive neutrality principles, as contemplated by the Competition Principles Agreement, so far as they are applicable to public authorities. Other bodies (including the Independent Pricing and Regulatory Tribunal and the Department of Local Government) may also have roles under the complaints mechanism.(2) This Part applies only to a complaint that a public authority has failed to comply with competitive neutrality principles in relation to a tender bid made by the authority in response to an invitation for tenders.(3) However, this Part does not apply to a complaint so far as it is the subject of a direction under section 24G (3) of the Independent Pricing and Regulatory Tribunal Act 1992.
(1988 Act, s 108)
In this Part:Board means the State Contracts Control Board established under Part 7.1.
Chairperson means the Chairperson of the Board.
Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 by the Commonwealth, the Territories and the States, as in force for the time being.
competitive neutrality principles means:
(a) the competitive neutrality principles referred to in the Competition Principles Agreement, and(b) any policies adopted by the State for the purpose of complying with or giving effect to those principles.complaint includes any part or aspect of a complaint.
portfolio Minister has the same meaning as in the Independent Pricing and Regulatory Tribunal Act 1992.
public authority means a public authority of the State.
public trading activities of a public authority means significant business activities relating to goods or services in which the authority is engaged.
public trading agency means a public authority that is engaged in public trading activities, and includes a public authority prescribed by the regulations as a public trading agency, but does not include a local council or any other local authority or a public authority prescribed by the regulations as not being a public trading agency.
State includes the Government or a Minister.
146 Complaints about competitive neutrality
(1988 Act, s 109)
(1) The Minister may refer to the Board, for investigation and report, a complaint about a public trading agency with respect to:(a) a failure of the agency to comply with competitive neutrality principles in relation to any or all of its public trading activities, or(b) the inappropriate manner in which competitive neutrality principles are applied by or to the agency in relation to any or all of its public trading activities,so far as the complaint relates to a tender bid made by the agency in response to an invitation for tenders.(2) The Minister is not to refer a complaint to the Board unless satisfied:(a) that the complaint relates to any or all of the public trading activities of the agency, and(b) that the complainant is able to demonstrate that a person (the competitor) competes, or seeks to compete, in a particular market with the agency and is hindered or is likely to be hindered from or in doing so by the matters complained of, and(c) that the competitor is materially affected by the matters complained of or is likely to be so affected, and(d) that the complaint has been made by the competitor or by a person or body authorised by the competitor to make the complaint on behalf of the competitor, and(e) that the subject-matter of the complaint has been raised with the agency and the complainant has reasonable grounds for not being satisfied with the response to the complaint.(3) The Board is required to notify the complainant, the agency, the agency’s portfolio Minister and the Treasurer of the reference and that an investigation will be conducted into the complaint.(4) If the Minister has referred a complaint to the Board for investigation and report, the Minister may withdraw or amend the reference at any time before the Minister has received the report from the Board.(5) The regulations may make provision for or with respect to the manner of making complaints for the purposes of this Part.
(1988 Act, s 110)
(1) The Board is to conduct an investigation into and make a report on any complaint referred to it and not withdrawn by the Minister.(2) The Board is, as far as possible, to use its best endeavours to complete the investigation and report within 10 weeks after receiving the complaint or such other period as the Minister may approve from time to time.
(1988 Act, s 111)
(1) The report of the Board with respect to a complaint is to contain a statement of its findings and recommendations about the complaint.(2) If the Board finds that the complaint has been wholly or partly substantiated, the report is to contain a statement about:(a) any need for changes to the conduct of the public trading agency to ensure future compliance with competitive neutrality principles with regard to tendering bids made by it in response to invitations for tenders, and(b) any policy changes that should be considered by the State.(3) Copies of the report are to be furnished to the complainant, the agency, the agency’s portfolio Minister, the Treasurer, and the Minister.(4) The Board is to arrange for the report to be publicly available.
149 Portfolio Minister’s response to report
(1988 Act, s 112)
(1) Within 8 weeks after a report about a public trading agency has been furnished to the agency’s portfolio Minister, the portfolio Minister is to prepare a written response to the report. This requirement does not apply where the report states that the investigation concerned was terminated because the complainant did not comply or did not fully comply with a request under section 153.(2) The response must include a statement as to whether or not the recommendations have been adopted or are proposed to be adopted and must include a statement of the reasons why any recommendation will not be adopted (whether wholly or partly).(3) Copies of the response are to be furnished to the complainant, the agency, the Treasurer, the Minister, and the Board.(4) The Board is to arrange for the response to be publicly available.
(1988 Act, s 113)
In this Division:investigation means an investigation by the Board for the purposes of this Part.
(1988 Act, s 114)
(1) Subject to this Part, in an investigation, the Board:(a) is to act with as little formality as possible, and(b) may inform itself on any matter in any way it thinks fit and is not bound by the rules of evidence, and(c) may receive information or submissions in the form of oral or written statements, and(d) may consult with such persons as it thinks fit.(2) The investigation is to be conducted in private as far as possible, and accordingly the Board is not to conduct public hearings, public seminars and public workshops except with the approval of the Minister.(3) Nothing in this section prevents the Board from holding one or more meetings for the purposes of the investigation, but all such meetings are to be held privately.(4) The Board is required to seek and consider submissions from the public trading agency that is the subject of the complaint to which the investigation relates and the Treasurer, but is not required to seek or consider submissions from any other person.(5) The regulations may make provision for or with respect to the conduct of investigations.
152 Public trading agency to provide information, documents and evidence
(1988 Act, s 115)
(1) For the purposes of an investigation, the Chairperson may, by notice in writing served on an officer of the public trading agency that is the subject of the complaint to which the investigation relates, require the officer to do any one or more of the following:(a) to send to the Board, on or before a day specified in the notice, a statement setting out such information as is so specified,(b) to send to the Board, on or before a day specified in the notice, such documents as are so specified,(c) to attend a meeting of the Board to give evidence.(2) If documents are given to the Board under this section, the Board:(a) may take possession of, and make copies of or take extracts from, the documents, and(b) may keep possession of the documents for such period as is necessary for the purposes of the investigation to which they relate, and(c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Board.
153 Complainant may be requested to provide information, documents and evidence
(1988 Act, s 116)
(1) For the purposes of an investigation, the Chairperson may, by notice in writing served on the complainant, request the complainant to do any one or more of the following:(a) to send to the Board, on or before a day specified in the notice, a statement setting out such information as is so specified,(b) to send to the Board, on or before a day specified in the notice, such documents as are so specified,(c) to attend a meeting of the Board to give evidence.(2) If documents are given to the Board under this section, the Board:(a) may take possession of, and make copies of or take extracts from, the documents, and(b) may keep possession of the documents for such period as is necessary for the purposes of the investigation to which they relate, and(c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Board.(3) If the complainant does not comply or fully comply with a request under this section, the Board may terminate the investigation, and the Board’s report may be limited to a statement that the investigation was terminated for that reason.
(1988 Act, s 117)
(1) If a person provides information (protected information) to the Board on the understanding that the information is confidential and will not be divulged, the Board is required to ensure that the information is not divulged by it to any person, except:(a) with the consent of the person who provided the information, or(b) to the extent that the Board is satisfied that the information is not confidential in nature, or(c) to a member of the Board or an officer working for the Board.(2) If:(a) the Board is satisfied that protected information provided to the Board by a complainant needs to be divulged to a person in order that the complaint can be properly dealt with, and(b) the exceptions in subsection (1) (a)–(c) are not applicable,the Board may notify the complainant that the Board proposes to divulge the information to a specified person, or in its report, after a specified period.(3) After the specified period, and despite subsection (1), the Board may divulge the information to the specified person or in its report, unless the complainant withdraws the complaint.(4) If the Board is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Board for the purposes of an investigation, it may give directions prohibiting or restricting the divulging of the information.(5) A person must not contravene a direction given under subsection (4).Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
(6) A reference in this section to information includes information contained in any evidence given at a meeting of or hearing before the Board and information contained in any documents given to the Board.
(1988 Act, s 118)
(1) A person must not, without reasonable excuse:(a) refuse or fail to comply with a notice served under this Division, or(b) refuse or fail to answer a question that the person is required to answer by the Chairperson at any meeting of or hearing before the Board under this Division.(2) It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate the person or make the person liable to any forfeiture or penalty.(3) A person must not:(a) give to the Board, whether orally or in writing, information that the person knows to be false or misleading in a material particular (unless the person informs the Board of that fact), or(b) at a meeting of or hearing before the Board, give evidence that the person knows to be false or misleading in a material particular.(4) A person must not hinder, obstruct or interfere with the Chairperson or any other member of the Board in the exercise of functions for the purposes of this Division as Chairperson or other member.(5) A person must not take any action that detrimentally affects the employment of another person, or threaten to do so, because that other person has assisted the Board in any investigation.(6) Subsection (1) does not apply to a complainant in relation to a notice served on the complainant under section 153.Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.
156 Cabinet information and proceedings
(1988 Act, s 120)
(1) This Part does not enable the Board:(a) to require any person to give any statement of information or answer any question that relates to confidential proceedings of Cabinet, or(b) to require any person to disclose Cabinet information, or(c) to inspect Cabinet information.(2) For the purposes of this section, a certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that:(a) any information or question relates to confidential proceedings of Cabinet, or(b) information is Cabinet information,is conclusive of that fact.(3) In this section:Cabinet includes a committee of Cabinet or a subcommittee of such a committee.
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
(1988 Act, s 121)
The Board, or the Department whose annual report covers the Board, is required to include in its annual report a statistical summary of complaints received by the Board, investigations conducted by the Board, and complaints disposed of by the Board, during the period covered by the annual report.