Public W orks and Procurement Act 1912 No 45
[1912-45]
New South W ales New South W ales
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Currency of version
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33)
Legislation on this site is usually updated within 3 working days af ter a change to the legislation.
Provisions in force
The pr ovisions displayed in this version of the legislation have all commenced.
Notes—
•Previously named
Public W orks A ct 1912
•Does not include amendments by
Public Works and Procurement Amendment (Enforcement) Act 2018 , Sch 1[5] (not commenced)
Responsible Minister
•Minister for Domestic Manufacturing and Gover nment P rocurement
•Minister for Planning and P ublic Spaces
•Minister for R egional New South W ales
For full details of Ministerial r esponsibilities, see the Administrative Ar rangements (Minns
Ministry—A dministration of A cts) Or der 2023 .
Authorisation
This version of the legislation is compiled and maintained in a database of legislation by the P arliamentary
Counsel's Office and published on the NSW legislation website, and is certified as the for m of that legislation that
is cor rect under section 45C of the Interpr etation A ct 1987 .
File last modified 30 May 2023
Certified by the NSW P arliamentary Counsel as being published on www .legislation.nsw .gov.au Page 1 of 60Public W orks and Procurement Act 1912 No 45
New South W ales New South W ales
Contents
Long title .......................................................................................................................................... 8
Part 1 Preliminary ....................................................................................................................... 8
1Name of A ct....................................................................................................................................... 8
2Repeals and savings .......................................................................................................................... 8
3Definitions ......................................................................................................................................... 8
4Incorporation of Constructing Authority ............................................................................................ 9
4A(Repealed) ......................................................................................................................................... 9
5Regulations ........................................................................................................................................ 9
5ASavings and transitional pr ovisions ................................................................................................... 9
5BDelegation by Minister or Constructing Authority .............................................................................. 9
Part 2 The P arliamentary Standing Committee on Public W orks.................. 10
Division 1 Constitution of and general provisions relating to the
Committee
............................................................................................................................................................. 10
6Definitions ....................................................................................................................................... 10
7Constitution etc of P arliamentary Committee on P ublic W orks........................................................ 10
8Names of members to be notified ................................................................................................... 10
9Election of members of P arliamentary Standing Committee on P ublic W orks ................................. 10
10Election of members of L egislative Council as members of Committee .......................................... 12
11Vacation of office ............................................................................................................................. 12
12Vacancies ........................................................................................................................................ 12Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 2 of 6013Quorum ........................................................................................................................................... 12
14Chair or Deputy Chair ...................................................................................................................... 12
15Division—casting vote ..................................................................................................................... 13
16Declaration of members of Committee ............................................................................................ 13
17Power to sit during r ecess, and in open court .................................................................................. 13
18Reports ............................................................................................................................................ 13
19Minutes ............................................................................................................................................ 13
20Evidence tak en befor e previous Committees .................................................................................. 13
Division 2 Powers of the Committee .............................................................................. 14
21Powers of Committee ...................................................................................................................... 14
22Powers of Committee in r espect of witnesses ................................................................................. 14
23Assessors ......................................................................................................................................... 15
24Functions of Committee ................................................................................................................... 15
Division 3 Sectional committee ........................................................................................ 16
25Constitution etc of sectional committees ........................................................................................ 16
26Further powers of sectional committee ........................................................................................... 16
27Reports of sectional committees ..................................................................................................... 16
28Limit of number of sectional committees etc .................................................................................. 16
Division 4 Committee’s remuneration .......................................................................... 16
29Fees to be paid to members of Committee ...................................................................................... 16
30Fees to be a char ge on consolidated r evenue ................................................................................. 17
31Travelling e xpenses ......................................................................................................................... 17
32(Repealed) ....................................................................................................................................... 17
33Office of pr ofit.................................................................................................................................. 17
Part 3 Public works, how authorised and how contracts made ..................... 17
34Conditions pr ecedent to commencing public works ........................................................................ 17
35Notification of r esolution ................................................................................................................. 19
36Under what cir cumstances negatived pr oposals may be r e-submitted ........................................... 19
37Resolution when to be sufficient authority for e xecution of works etc ............................................ 20
38Contracts how made ........................................................................................................................ 20
Part 4 Preliminary conditions relating to the acquisition of land ................ 21Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 3 of 6039Acquisition of land for authorised works .......................................................................................... 21
40Acquisition of land for public purposes other than authorised works .............................................. 21
41Public works etc specified ................................................................................................................ 21
Part 5 (Repealed) ...................................................................................................................... 22
Part 6 Provisions applicable to every case where land is tak en or
acquired under this Act
............................................................................................................................................................. 22
Division 1 Interpretation ....................................................................................................... 22
50Definition ......................................................................................................................................... 22
Divisions 2–5 (Repealed) ....................................................................................................... 23
Division 6 Powers and duties of Constructing Authority ................................... 23
80Powers of Constructing Authority .................................................................................................... 23
81(Repealed) ....................................................................................................................................... 24
82Power to tak e temporary possession of land ................................................................................... 24
83Authority to separate the lands befor e using them ......................................................................... 25
84Compensation to be made for temporary occupation ..................................................................... 25
85Claims for compensation ................................................................................................................. 26
86Crossing of r oads ............................................................................................................................. 26
87Befor e roads interfer ed with, others to be substituted .................................................................... 26
88Remedy for damage fr om inter ruption of r oad................................................................................ 26
89Restoration of r oads interfer ed with ................................................................................................ 26
90Approaches and fences ................................................................................................................... 27
91Accommodation works .................................................................................................................... 27
91AFences—transfer red railway pr ovisions ......................................................................................... 28
92Differ ences as to accommodation works to be settled by Gover nor................................................ 30
93Power to owners of lands to mak e additional accommodation works .............................................. 30
94Such works to be constructed under the superintendence of the Constructing Authority’s engineer
............................................................................................................................................................. 30
95Owners to be allowed to cr oss until accommodation works ar e made ............................................ 30
96As to damages ................................................................................................................................. 31
97Houses not to be damaged without notice ...................................................................................... 31Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 4 of 60Division 7 Superfluous lands .............................................................................................. 31
98Sale or lease of lands not wanted for any work ............................................................................... 31
99Lands to be conveyed to the pur chasers ......................................................................................... 31
100Receipts ......................................................................................................................................... 31
Part 7 (Repealed) ...................................................................................................................... 32
Part 8 Provisions applicable in every case where land is tak en or
acquired for authorised works
............................................................................................................................................................. 32
Division 1 Exercise of powers by Constructing Authority ................................. 32
132Powers of pur chasing lands ........................................................................................................... 32
133Powers of sale and pur chase of lands ............................................................................................ 32
Divisions 2, 3 (Repealed) ...................................................................................................... 32
Division 4 Lands containing minerals ........................................................................... 32
140A Act subject to Mining A ct 1973 and Coal Mining A ct 1973 .......................................................... 32
141Constructing Authority entitled to minerals ................................................................................... 32
142Working of mines on or near authorised work ............................................................................... 35
143If Constructing Authority unwilling to pur chase, owner may work the mines ................................ 35
144Mining communications ................................................................................................................. 36
145Constructing Authority to mak e compensation for injury done to mines ....................................... 36
146Constructing Authority to mak e compensation for any airway or other work made necessary by the
railway
............................................................................................................................................................. 37
147Power to Constructing Authority to enter and inspect the working of mines ................................. 37
148Penalty ........................................................................................................................................... 37
149Mines work ed contrary to this A ct................................................................................................. 37
Division 5 Gates ......................................................................................................................... 38
150Penalty on persons omitting to fasten gates ................................................................................. 38
Part 9 National works ............................................................................................................. 38
151Declaration of national works ........................................................................................................ 38Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 5 of 60152Functions of Minister ...................................................................................................................... 38
153National works may be handed over to councils ........................................................................... 38
154National works etc may be handed over to T ransport for NSW ...................................................... 38
155Resolution of disputes ................................................................................................................... 39
156Closur e of national works .............................................................................................................. 40
157Appointment of councils as agents ................................................................................................ 40
158Regulations .................................................................................................................................... 40
159Proceedings for offences ............................................................................................................... 40
Part 10 Other matters relating to councils etc ........................................................ 40
160Minister to have certain functions ................................................................................................. 40
161Minister may construct works etc on behalf of councils ................................................................ 41
Part 11 Procurement of goods and services ............................................................. 41
Division 1 Preliminary ............................................................................................................ 41
162Definitions ..................................................................................................................................... 41
163Application of P art......................................................................................................................... 42
Division 2 NSW Procurement Board ............................................................................... 42
164Establishment of NSW P rocurement Boar d.................................................................................... 43
165Membership of Boar d.................................................................................................................... 43
166Ministerial contr ol.......................................................................................................................... 43
167Subcommittees of Boar d............................................................................................................... 43
168Advisory gr oups ............................................................................................................................. 43
169Delegation of Boar d’s functions ..................................................................................................... 44
170Annual r eport of Boar d.................................................................................................................. 44
Division 3 Objectives and functions of Board ........................................................... 44
171Objectives of Boar d....................................................................................................................... 44
172Functions of Boar d......................................................................................................................... 45
173Competitive neutrality in tendering ............................................................................................... 45
Division 4 Procurement arrangements ......................................................................... 46
174Procurement of goods and services by gover nment agencies ....................................................... 46
175Board may issue dir ections or policies for gover nment agencies .................................................. 46Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 6 of 60176Obligations of gover nment agencies ............................................................................................. 47
Division 5 Complaints concerning enforceable procurement provisions
............................................................................................................................................................. 47
176A Affected applicant may mak e complaint ..................................................................................... 47
176B Investigation of complaint ........................................................................................................... 48
176C Suspension of pr ocurement ......................................................................................................... 48
Division 6 Injunctions and compensation for contraventions of
enforceable procurement provisions
............................................................................................................................................................. 49
176D Supreme Court may grant injunctions ........................................................................................ 49
176E Preconditions for granting injunctions ......................................................................................... 50
176F Compensation for contravention ................................................................................................. 51
176G Public inter est certificates ........................................................................................................... 52
176H Rules of court .............................................................................................................................. 52
176I Division does not limit r emedial powers of Supr eme Court .......................................................... 53
Division 7 General ..................................................................................................................... 53
176J Contravention of enfor ceable pr ocurement pr ovision does not affect validity of contract ........... 53
177Delegation of functions by gover nment agencies ......................................................................... 53
178Regulations .................................................................................................................................... 53
First Schedule ............................................................................................................................. 54
Second Schedule ....................................................................................................................... 54
Third Schedule ............................................................................................................................ 55
Fourth Schedule ......................................................................................................................... 55
Fifth Schedule Members and procedure of NSW Procurement Board .......56
Sixth Schedule–Eighth Schedule (Repealed) ............................................................. 59
Ninth Schedule Savings, transitional and other provisions ............................. 59Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 7 of 60Public W orks and Procurement Act 1912 No 45
New South W ales New South W ales
An Act to consolidate the A cts relating to P ublic W orks; and to mak e provision in r elation to
the pr ocurement of goods and services for New South W ales gover nment agencies.
Part 1 Preliminary
1Name of Act
This A ct may be cited as the Public Works and Procurement Act 1912 .
2Repeals and savings
(1)The A cts mentioned in the F irst Schedule to this A ct are, to the e xtent ther ein
expressed, her eby r epealed.
(2)All persons appointed under the A cts her eby r epealed and holding office at the time of
the passing of this A ct shall be deemed to have been appointed her eunder .
(3)All regulations made under the authority of any A ct her eby r epealed and being in
force at the time of the passing of this A ct shall be deemed to have been made under
the authority of this A ct; and any r eferences in any such r egulation to any enactments
hereby r epealed shall be construed as r eferences to the cor responding enactments
contained in this A ct.
3Definitions
In this A ct, unless the conte xt or subject-matter otherwise indicates or r equir es—
Authorised work means any work the car rying out of which has been authorised in
manner her ein pr ovided, and includes any work so authorised under any A ct her eby
repealed.
Committee means the P arliamentary Standing Committee on P ublic W orks as constituted
under the pr ovisions of this A ct, or of any A ct her eby r epealed.
Constructing Authority means the Minister empower ed to car ry out any authorised
work.
Council means the council of an ar ea under the Local Government Act 1993 .Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 8 of 60Court means the Supr eme Court of New South W ales.
Government debentures includes any Gover nment stock issued by the Gover nment of
New South W ales pursuant to any statutory power .
Prescribed means pr escribed by this A ct, or by r egulations made pursuant her eto.
4Incorporation of Constructing Authority
For the purpose of facilitating the acquisition and disposal of land under this A ct the
Constructing Authority, when a Minister, is her eby declar ed to be a corporation sole under
the name of “the Minister ”, and by that name shall have perpetual succession and an
official seal, sue and be sued, and tak e all legal pr oceedings, with power to pur chase, tak e
and hold lands to the Minister and the Minister’s successors for the purposes of this A ct,
and also to dispose of any superfluous lands in accor dance with the pr ovisions of this A ct,
and to give effectual dischar ges in r espect ther eof to any pur chaser .
4A(Repealed)
5Regulations
The Gover nor on the r ecommendation of the Committee may frame r egulations for giving
effect to this A ct.
Editorial note—
SeeInterpretation Act 1987 , sec 39.
5ASavings and transitional provisions
The Ninth Schedule has effect.
5BDelegation by Minister or Constructing Authority
(1)The Minister may delegate any of the Minister’s functions under this A ct, other than
this power of delegation, to—
(a)a gover nment agency, or a gover nment agency employee, or
(b)a person, or a class of persons, authorised for the purposes of this subsection by
the regulations.
(2)The Constructing Authority may delegate any of the Constructing Authority’s
functions under this A ct, other than this power of delegation, to—
(a)a gover nment agency, or a gover nment agency employee, or
(b)a person, or a class of persons, authorised for the purposes of this subsection by
the regulations.
(3)In this section—Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 9 of 60government agency has the same meaning as in P art 11.
government agency employee has the same meaning as in P art 11.
Part 2 The P arliamentary Standing Committee on Public W orks
Division 1 Constitution of and general provisions relating to the
Committee
6Definitions
In this Division, unless the conte xt or subject-matter otherwise indicates or r equir es—
Clerk means Clerk of Assembly, or any officer acting in his or her place.
Member means member of the L egislative Assembly .
Speak ermeans Speak er of the L egislative Assembly .
7Constitution etc of P arliamentary Committee on Public W orks
(1)In every P arliament, a committee of members of the L egislative Council and
Legislative Assembly, to be called the “ Parliamentary Standing Committee on P ublic
Works”, shall be elected in manner her einaf ter pr ovided. Thr ee of the persons so to be
elected shall be members of the L egislative Council, and four shall be members of the
Legislative Assembly .
(2)Such seven persons shall hold office as a joint committee (subject to the pr ovisions of
section eleven her eof) for the duration of the P arliament for the time being, but shall
cease to hold office as soon as such P arliament e xpires by dissolution or effluxion of
time, and shall have and may e xercise such powers and authorities, perfor m such
duties, and be liable to such obligations, as ar e by this A ct vested in or imposed upon
such committee.
8Names of members to be notified
The names of the persons fr om time to time elected to be members of such Committee
shall be notified in the Gazette with all convenient despatch.
9Election of members of P arliamentary Standing Committee on Public W orks
(1)Upon a r esolution being passed by the Assembly that the P arliamentary Standing
Committee on P ublic W orks be appointed, of the passage of which the L egislative
Council shall be infor med by Message asking its concur rence, the Speak er shall fix a
date, being within a period of fourteen days fr om the passing of the r esolution, up to
and including which the Speak er shall r eceive nominations of members of the
Legislative Assembly for election and appointment as members of the Committee.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 10 of 60(2)Every such nomination shall be made and signed by at least five members, on a for m
provided by the Speak er for that purpose, and shall be deliver ed to the Clerk together
with the written consent to the nomination of the member nominated.
(3)Wher e members to the number her einbefor e requir ed, and no mor e or less, ar e
nominated, the Speak er shall declar e such members to be elected as members of the
Committee.
(4)Wher e members to a less number than that so r equir ed ar e nominated, the Speak er
shall declar e such members to be elected as members of the Committee, and shall at
the same time declar e such other members as the Speak er thinks fit, being sufficient
to mak e up such r equir ed number, to be elected as members of the Committee.
(5)Wher e members to a gr eater number than that so r equir ed ar e nominated, the
Speak er shall appoint a day, being not later than the seventh day fr om the last day
during which nominations may be r eceived, upon which a ballot shall tak e place for
the election of members of the Committee.
(6)Upon the day so appointed, the Clerk, for the purpose of such ballot, shall fur nish
every member with a ballot-paper in the for m of the Second Schedule to this A ct
containing the names of the members nominated in alphabetical or der of sur names.
(7)Every member shall vote by striking out the names of the members whom the
member does not wish to be elected, and the member shall be deemed to have voted
for the members whose names ar e not struck out on the member’s ballot-paper . No
ballot-paper shall be deemed to be valid if the member has voted for mor e or less
members than the number to be elected.
(8)Every member af ter the member has voted as afor esaid shall deliver the member’s
ballot-paper to the Clerk, giving the Clerk time to note as her einaf ter mentioned every
paper pr eviously pr esented.
(9)The Clerk, on the pr esentation of every ballot-paper, shall place his or her initials
against the name of the member pr esenting the ballot-paper on a list containing the
name of all the members of the L egislative Assembly, and the list of members so
initialled shall be k ept on r ecord with the other pr oceedings of the ballot.
(10) The votes shall be counted by the Clerk, and the r esult of the ballot shall be
deliver ed to the Speak er, together with the r ecords of the pr oceedings of the ballot.
(11) The members, to such r equir ed number as afor esaid, who r eceive the gr eatest
number of votes at the ballot shall be declar ed by the Speak er to be elected as
members of the Committee. Wher e two or mor e members r eceive the same number of
votes, the Speak er shall declar e which of the said members r eceiving the same
number of votes shall be elected.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 11 of 6010Election of members of Legislative Council as members of Committee
The pr ovisions of section nine other than the pr ovisions for passing a r esolution that the
committee be appointed shall, mutatis mutandis, be observed in the election of members
of the L egislative Council to serve on the Committee, and in car rying out such pr ovisions
the P resident of the L egislative Council and the Clerk of P arliaments, or officer acting in
his or her place, shall r espectively be char ged with the duties and powers in the said
section imposed and confer red on the Speak er and Clerk r espectively .
The date to be fix ed by the P resident for the election shall be within a period of fourteen
days fr om the date of the concur rence of the L egislative Council with the r esolution of the
Assembly .
11Vacation of office
(1)Any member of the Committee may r esign his or her seat on such Committee by
writing under his or her hand addr essed to the Gover nor.
(2)The seat of any such member shall also be deemed to have become vacant—
(a)for any r eason which would vacate his or her seat as a member of the Assembly or
Council (as the case may be).
(b) (Repealed)
12Vacancies
Wher e a vacancy occurs in the Committee, the same shall be filled by nomination and
election as afor esaid within thirty -five days fr om the occur rence of the vacancy if
Parliament is then in session, or within thirty -five days af ter the ne xt meeting of
Parliament should such vacancy occur during any r ecess or adjour nment.
Provided that the r espective pr oportions in r espect to the r epresentation on the
Committee of members of the L egislative Council and members of the Assembly
hereinbefor e prescribed shall be observed in the filling up of all such vacancies.
13Quorum
Any thr ee members of the Committee shall for m a quorum competent to e xercise all
powers and authorities and to incur all obligations confer red or imposed by this A ct upon
the Committee.
Provided that no quorum shall consist e xclusively of members of the L egislative Council or
of the L egislative Assembly .
14Chair or Deputy Chair
There shall be a Chair and Deputy Chair of the Committee who shall be elected by the
members of the Committee at their first meeting, or as soon af ter such meeting as mayPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 12 of 60be practicable. The Chair or, in case of the Chair’s absence or other disability, the Deputy
Chair shall pr eside at all meetings of the Committee.
Provided that at any meeting of the Committee at which a quorum is pr esent, the
members in attendance, may, in the absence of the Chair and Deputy Chair, appoint one
of their number then pr esent to be temporary Chair, and such temporary Chair shall have,
during the absence of the Chair and Deputy Chair, all the powers given by this A ct to the
Chair or Deputy Chair of the Committee.
15Division—casting vote
(1)All questions which arise in any Committee shall be decided by a majority of votes of
the members pr esent, and when the votes ar e equal the Chair shall have a second or
casting vote.
(2)In all cases of divisions the names of the persons voting shall be stated on the
minutes and in the r eport.
16Declaration of members of Committee
Every member of the Committee, befor e entering on the duties of his or her office or
sitting at any meeting of such Committee, shall mak e and subscribe a declaration in the
form of the Thir d Schedule her eto.
17Power to sit during recess, and in open court
The Committee may sit and transact business during any adjour nment or r ecess as well as
during the session, and may sit at such times and in such places, and conduct their
proceedings in such manner as may seem most convenient for the pr oper and speedy
dispatch of business, and such Committee shall sit in open court.
18Reports
The Committee shall, befor e the commencement of each session of P arliament, mak e a
report to the Gover nor of their pr oceedings under this A ct; and such r eport shall be laid
befor e both Houses of P arliament within fourteen days af ter the making ther eof, if
Parliament is then sitting, and if not, then within fourteen days af ter the commencement
of the ne xt session.
19Minutes
The Committee shall k eep full minutes of their pr oceedings in such manner as the
Gover nor may dir ect.
20Evidence tak en before previous Committees
Wher e any public work is r eferred to any Committee, and such Committee lapses or
ceases to have legal e xistence, befor e it reports on such public work, the evidence tak en
befor e such Committee and befor e any sectional committee shall, nevertheless, bePublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 13 of 60consider ed by any subsequent committee to whom the same public work may be r eferred
for report pursuant to this A ct as if such evidence had been given befor e and for the
information and guidance of such subsequent committee.
Division 2 Powers of the Committee
21Powers of Committee
For the purposes of this A ct the Committee shall have the following powers, that is to
say—
(a)they may, by themselves or by any person appointed by them to pr osecute an
inquiry, enter and inspect any land, building, place, or material, the entry or
inspection of which appears to them r equisite, upon the pr escribed notice being given
to the owners or occupiers of such land, building, place, or material,
(b)they may r equir e, by summons under the hand of the Chair or Deputy Chair, the
attendance of all such persons as they may think fit to call befor e them and e xamine,
and may r equir e answers or r eturns to such inquiries as they think fit to mak e,
(c)they may, in the pr escribed manner, r equir e and compel the pr oduction of all books,
maps, plans, papers, and documents r elating to the matters befor e them,
(d)they may, by their Chair or Deputy Chair, e xamine witnesses on oath; or wher e a
witness, if e xamined befor e a superior court of r ecord, would be per mitted to mak e a
solemn declaration, or to give evidence in any other way than upon oath, then by such
declaration or otherwise as the case may be.
22Powers of Committee in respect of witnesses
(1)If any person—
(a)whose e xpenses have been paid or tender ed to the person neglects to appear, or
(b)wilfully insults the Committee or any member ther eof, or
(c)misbehaves befor e the Committee, or
(d)interrupts the pr oceedings of the Committee, or
(e)being summoned or e xamined as a witness in any inquiry or matter pending
befor e the Committee, r efuses to be swor n, or to pr oduce any document
mentioned in the summons served upon the person, or to mak e a solemn
declaration as afor esaid, or pr evaricates in the person’s evidence, or r efuses to
answer any lawful question,
the Chair or Deputy Chair may commit any such offender to gaol for any time not
exceeding one month, or may impose upon the person a fine not e xceeding onePublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 14 of 60hundr ed dollars and in default of immediate payment ther eof may commit such
offender to gaol for any time not e xceeding one month unless the fine is sooner paid.
In any such case of committal the Chair or Deputy Chair shall issue a war rant in the
Form A contained in the F ourth Schedule her eto, and such war rant shall be good and
valid without any other war rant or der or pr ocess whatsoever, and the sheriff, the
sheriff’s deputy, and all officers of the police for ce and gaolers to whom the same is
addressed shall obey it.
(2)Wher e any person who has been duly served with a summons to attend as a witness
befor e the Committee, and whose e xpenses have been paid or tender ed to the person
fails to appear in obedience to the person’s summons, the Chair or Deputy Chair, upon
proof of such person having been duly served with such summons, and that such
person’s non-appearance was without just cause or r easonable e xcuse, may issue a
warrant in the for m or to the effect of F orm B of the F ourth Schedule her eto to bring
such person befor e the Committee to give evidence.
(3)Every person r equir ed by the Committee to attend as a witness shall be allowed such
expenses as would be allowed to a witness attending on subpoena befor e a superior
court of r ecord, and, in case of dispute as to the amount to be allowed, the same shall
be referred to the P rothonotary of the Supr eme Court who, on r equest under the hand
of the Chair of the Committee, shall ascertain and certif y the pr oper amount of such
expenses.
23Assessors
(1)The Committee may, in the e xercise of any power by this A ct confer red on them, call
in the aid of one or mor e assessors, who shall be persons of engineering or other
technical knowledge, or possessing special local knowledge or e xperience.
(2)There shall be paid to such assessors such r emuneration as the Committee may
recommend and the Gover nor may appr ove and as P arliament may pr ovide.
24Functions of Committee
The Committee shall, subject to the pr ovisions contained in section thirty -four, consider
and r eport upon all public works to be e xecuted af ter the passing of this A ct (and whether
such works ar e continuations, completions, r epairs, r econstructions, e xtensions, or new
works), in all cases wher e the estimated cost of completing such works e xceeds
$1,000,000.
In considering and r eporting on any such work as afor esaid, the Committee shall have
regard to the stated purpose ther eof, and to the necessity or advisability of car rying it out;
and, wher e such work purports to be of a r eproductive or r evenue pr oducing character,
the Committee shall have r egard to the amount of r evenue which such work may
reasonably be e xpected to pr oduce, and to the pr esent and pr ospective public value of
such work; and generally the Committee shall, in all cases, tak e such measur es andPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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Assembly as to the e xpediency of car rying out the work in question.
Division 3 Sectional committee
25Constitution etc of sectional committees
(1)The Committee may at any meeting constitute sectional committees of itself for all
purposes of this A ct by appointing thr ee or mor e of its members to be a sectional
committee.
(2)Every sectional committee shall have, and may e xercise, for the purpose of car rying
out any business or inquiry delegated to them by the Committee either at or af ter the
time of their appointment, all the powers by this A ct confer red on the Committee, and
shall sit in open court.
(3)Every sectional committee shall appoint a Chair or temporary Chair, who shall be the
person to e xercise the powers confer red by this A ct on, or in the name of, the Chair or
Deputy Chair of the Committee.
26Further powers of sectional committee
The powers and pr ovisions r espectively confer red by and contained in the fif teenth,
seventeenth, twenty -first, twenty -second, and twenty -third sections of this A ct shall be
exercisable by and applicable to every sectional committee appointed as afor esaid.
27Reports of sectional committees
Every such sectional committee shall mak e its r eport as soon as practicable to the
Committee, of and in r espect to all matters delegated to it by such Committee; and such
report with any evidence tak en by such sectional committee shall be dealt with by the
Committee in all r espects, so far as possible, as r eports of select committees ar e dealt
with by the L egislative Assembly .
28Limit of number of sectional committees etc
Not mor e than two sectional committees shall be appointed or shall sit at the same time;
but the Committee may sit at any time notwithstanding that any such sectional
committee or committees may be sitting at the same time.
Division 4 Committee’s remuneration
29Fees to be paid to members of Committee
The members of every Committee shall each r eceive, by way of r emuneration for their
services as such members, a fee for each attendance at a summoned meeting of such
Committee at which a quorum was pr esent, accor ding to the following scale—Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 16 of 60(a)the Chair, or member pr esiding at any meeting in the Chair’s absence, six dollars
thirty cents for each sitting,
(b)every other member, four dollars twenty cents for each sitting.
30Fees to be a charge on consolidated revenue
The fees made payable under this Division of this A ct shall be char ged on the consolidated
revenue fund, and the certificate of the Chair or Deputy Chair of the Committee shall be a
sufficient war rant and authority, and dischar ge to the T reasur er for the payment of such
fees fr om such fund.
31Travelling expenses
(1)In addition to the sum payable to every member of the Committee as a sitting fee, the
member shall be paid a further sum of thr ee dollars per diem on account of e xpenses
incur red by the member in, and in the course of travelling, whether by land or water,
whenever such e xpenses and char ges have been incur red bona fide in the
perfor mance of the member’s duties as a member of such Committee, whilst outside
the boundaries of the county of Cumberland.
(2)Such e xpenses and char ges shall be char geable in the same manner, and be paid by
the same person, and on the lik e certificate, and in other r espects in lik e manner as in
the case of fees for sittings.
(3)In all cases in which a sectional committee of the Committee is engaged in the
inspection of any public works outside the county of Cumberland, each day or part of
a day occupied in such inspection shall be deemed to constitute one attendance of
such committee, and to entitle each member ther eof to a fee of four dollars twenty
cents.
32(Repealed)
33Office of profit
Nothing in this Division of this A ct shall be tak en to constitute the office of any member of
the said Committee an office of pr ofit, so as to r ender such member incapable of sitting or
voting as a member of the L egislatur e, or to mak e void the election of such member .
Part 3 Public works, how authorised and how contracts made
34Conditions precedent to commencing public works
(1)No public work of any kind, the estimated cost of completing which e xceeds
$1,000,000, and whether such work is a continuation, completion, r epair,
reconstruction, e xtension, or a new work, shall be commenced, unless sanctioned as
hereinaf ter pr ovided—Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 17 of 60(a)Every such pr oposed work shall, in the first place, be submitted and e xplained in
the L egislative Assembly by some member of the Ex ecutive Council having a seat
in such Assembly (her eafter ter med “the Minister ”).
The e xplanation shall comprise an estimate of the cost of such work when
completed, together with such plans and specifications or other descriptions as
the Minister deems pr oper, and an estimate of the pr obable r evenue to be derived
therefrom. Such estimate, plans, specifications, or descriptions shall be pr epared
and be authenticated or verified in the pr escribed manner .
(b)Upon motion, in the usual manner, made by the Minister or by any member of the
Assembly such pr oposed work shall be r eferred to the Committee for their r eport
thereon.
(c)The Committee shall, with all convenient dispatch, deal with the matter so
referred to them, and, for that purpose may e xercise all powers by this A ct
confer red on such Committee.
(d)The Committee shall, as soon as conveniently practicable, r egard being had to the
natur e and importance of the pr oposed work, r eport to the L egislative Assembly
the result of their inquiries.
(e)After the r eceipt of such r eport the said Assembly shall, by r esolution, declar e,
either that it is e xpedient to car ry out the pr oposed work or that it is not e xpedient
to car ry out the same.
Provided that the said Assembly, instead of declaring affir matively or negatively as
aforesaid, may r esolve that the r eport of the Committee shall, for r easons or purposes
to be stated in the r esolution, be r emitted for their further consideration and r eport to
the said Committee; in which case such Committee shall consider the matter of such
new r eference, and r eport ther eon accor dingly .
(1A) (Repealed)
(2)Provided that the Gover nor may, with r espect to any public work the estimated cost of
which does not e xceed $1,000,000, dir ect that the same shall be car ried out under
this A ct, in which case all the powers and pr ovisions of this A ct relating to authorised
works shall be applicable to such work, and the same shall for all purposes of this A ct
be deemed to be an “authorised work”, and the Minister on whom the car rying out of
such work devolves shall for the lik e purposes be deemed a “ Constructing Authority”.
(3)Wher e the council of an ar ea within the meaning of the Local Government Act 1993
has made an application under section 57 of that A ct for the construction, by the
Minister, of a work of water supply or sewerage or any work incidental to water supply
or sewerage, for the council’s ar ea or part ther eof, or for two or mor e areas as defined
in the said A ct or parts ther eof, the Gover nor, notwithstanding that the estimated costPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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out under this A ct, in which case all the powers and pr ovisions of this A ct relating to
authorised work shall be applicable to such work, and the same shall for the purposes
of this A ct be deemed to be an authorised work.
(4)Wher e the Minister is of opinion that a work of water supply, sewerage or drainage
should be constructed, the Gover nor, notwithstanding that the estimated cost of the
work e xceeds the sum of $1,000,000, may dir ect that such work shall be car ried out
under this A ct, in which case all the powers and pr ovisions of this A ct relating to
authorised works shall be applicable to such work, and the same shall for the
purposes of this A ct be deemed to be an authorised work.
(5)For the purposes of this section, an e xtension or impr ovement of a work of water
supply, sewerage or drainage shall be deemed to be an authorised work.
(6)Wher e the Minister is of opinion that a work being—
(a)a public school, a teachers’ college, a technical college or a detention centr e
within the meaning of the Children (Detention Centres) Act 1987 ,
(b)a hospital, or a mental hospital, or an institution for the tr eatment of the
physically or mentally ill,
(c)public offices or a public building,
should be constructed, the Gover nor, notwithstanding that the estimated cost of the
work e xceeds the sum of $1,000,000, may dir ect that such work shall be car ried out
under this A ct, in which case all the powers and pr ovisions of this A ct relating to
authorised works shall be applicable to such work, and the same shall for all purposes
of this A ct be deemed to be an “authorised work” and the Minister on whom the
carrying out of such work devolves shall for the lik e purposes be deemed a
“Constructing Authority”.
For the purposes of this subsection any such work shall include its continuation,
completion, r epair, r econstruction or e xtension.
35Notification of resolution
Every r esolution of the L egislative Assembly declaring that it is e xpedient or not e xpedient
to car ry out any such pr oposed work shall be notified in the Gazette.
36Under what circumstances negatived proposals ma y be re-submitted
If any such r esolution declar es that it is not e xpedient to car ry out any pr oposed work, no
proposal for a public work in substance identical with the work r eferred to in such
resolution shall be submitted to the L egislative Assembly until af ter the e xpiration of one
year fr om the notification of such r esolution as afor esaid, unless the Gover nor, by writing
under the Gover nor’s hand addr essed to the Committee, declar es that, in the Gover nor’sPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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re-submitted to the said Assembly .
37Resolution when to be sufficient authority for execution of works etc
(1)Every r esolution of the L egislative Assembly declaring that it is e xpedient to car ry out
the work specified or mentioned in such r esolution shall be deemed to impose a
statutory duty on the Minister to intr oduce a Bill into the said Assembly to sanction the
carrying out of such work, upon the passing wher eof by the L egislatur e and in such
form as the L egislatur e may think fit, the authorisation of such work shall become
absolute, and the Constructing Authority shall ther eupon car ry out such work, enter
into such contracts, and tak e all such necessary steps for the pr oper e xecution ther eof
as such Authority may think pr oper.
Provided that no such contracts shall e xceed in the aggr egate by mor e than ten per
centum the estimate for the same submitted as her einbefor e provided.
(2)Wher e the Gover nor has—
(a)pursuant to subsection two or six of section thirty -four of this A ct dir ected that a
work shall be car ried out under this A ct, the Constructing Authority, or
(b)pursuant to subsection thr ee or four of section thirty -four of this A ct dir ected that
a work shall be car ried out under this A ct, the Minister,
shall enter into such contracts and tak e all such necessary steps for the pr oper
execution ther eof as such Constructing Authority or Minister, as the case may r equir e,
may think pr oper.
38Contracts how made
(1)All contracts r eferred to in subsections one and two of section thirty -seven of this A ct
may be made as follows, that is to say—
(a)with r espect to any contract which, if made between private persons, would be by
law r equir ed to be in writing and under seal, the Constructing Authority or the
Minister, as the case may r equir e, may mak e such contract in writing and under
seal, and in the same manner may vary or dischar ge the same,
(b)with r espect to any contract which, if made between private persons, would be by
law r equir ed to be in writing and signed by the parties to be char ged ther ewith,
the Constructing Authority or the Minister, as the case may r equir e, may mak e
such contract in writing, and in the same manner may vary or dischar ge the same,
(c)with r espect to any contract which, if made between private persons, would by law
be valid although made by par ol only and not r educed into writing, the
Constructing Authority or the Minister, as the case may r equir e, may mak e such
contract by par ol only without writing, and in the same manner may vary orPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(2)All such contracts so made shall be effectual in law and shall be binding upon the
Constructing Authority, or the Minister, on behalf of the Cr own, and all other parties
thereto, their heirs, e xecutors, or administrators, as the case may be; and on any
default in the e xecution of any such contract either by the said Authority or the
Minister, or any other party ther eto, such actions or suits may be br ought either by or
against the said Authority, or the Minister, as might be br ought had the same
contracts been made between private parties.
Part 4 Preliminary conditions relating to the acquisition of land
39Acquisition of land for authorised works
The Minister may, for the purposes of an authorised work, acquir e land (including an
interest in land) by agr eement or by compulsory pr ocess in accor dance with the Land
Acquisition (Just T erms Compensation) Act 1991 .
40Acquisition of land for public purposes other than authorised works
(1)This section applies to the acquisition of land for the purposes of any work other than
an authorised work.
(2)The Minister may acquir e land (including an inter est in land) by agr eement or by
compulsory pr ocess in accor dance with the Land Acquisition (Just T erms
Compensation) Act 1991 for the purposes of—
(a)a public work or undertaking specified in section 41 if money has been
appropriated fr om the Consolidated F und (or is otherwise lawfully available) for or
towar ds the car rying out of the work or undertaking, or
(b)a school site or a site for public offices or public buildings.
(3)The Minister is, in r elation to the acquisition of land under this section, tak en to be the
Constructing Authority .
41Public works etc specified
The following shall for the purposes of the last pr eceding section be deemed to be public
works and undertakings, that is to say—
(a)works for and in connection with the supply of water to or for the sewerage of any
city, town, or district,
(aa) works of drainage, including pipes, drains, ditches or channels,
(ab) works for the pr evention of floods or the contr ol of flood waters,
(b)buildings for the occupation of either or both of the Houses of the L egislatur e or forPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(c)hospitals, lunatic asylums, court-houses, gaols, watch-houses, lock-ups, police
barracks or quarters,
(d)light-houses, observatories, pilot stations, quarantine stations or gr ounds,
(e)public schools or any other schools authorised to be established wholly or in part at
the public cost by any A ct in for ce for the time being,
(f)public libraries, mechanics’ institutes, or schools of art,
(g)public wharves, fer ries, piers, jetties, and bridges,
(h)public parks, or gr ounds for public r ecreation, or places for bathing, and for the
reclamation of land for or in connection ther ewith,
(i)public cemeteries,
(j)public wells or works for the conservation of water,
(k)the pr otection and pr eservation of any cave or place of scientific inter est,
(l)the establishment of public abattoirs,
(m) breakwaters, leading marks or beacons for the purposes of navigation, docks, slips,
the pr otection of river banks, the e xcavation of new channels, landing-places for silt,
and any other works for the impr ovement of harbours or rivers,
(n)quarries, or works for pr ocuring stone, gravel, earth, or any other material r equir ed for
the construction of or any purpose connected with any such public work or
undertaking as afor esaid.
For the purposes of this section any such named work or undertaking shall be tak en to
include any e xtension of, or appr oach to, or subsidiary work in connection with any such
named work or undertaking.
Part 5
42–49 (Repealed)
Part 6 Provisions applicable to every case where land is tak en or
acquired under this Act
Division 1 Interpretation
50Definition
In this P art of this A ct, unless the conte xt or subject-matter otherwise indicates orPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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Public work means any work to which this A ct applies, and includes authorised work.
Divisions 2–5
50A–79 (Repealed)
Division 6 Powers and duties of Constructing Authority
80Powers of Constructing Authority
For the car rying out of any public work the Constructing Authority and all persons acting
under the Constructing Authority—
(a)may enter into and upon the lands and gr ounds of any person whomsoever, and
survey and tak e levels of the same, and ascertain and stak e or set out, tak e and
appropriate, for the purposes her ein mentioned, such parts ther eof as may be
necessary and pr oper for the laying out, making and using any public work, and all
other works, matters, and conveniences connected ther ewith,
(b)may in or upon such lands, or any lands adjoining or contiguous ther eto, bor e, dig,
cut, tr ench, embank and sough, r emove or lay, tak e, car ry away and use any earth,
stone, timber, gravel, or sand, or any other materials or things dug, raised, or
obtained ther ein, in constructing such public work and other works, out of any lands
contiguous or adjoining ther eto, and which may be pr oper or necessary for making,
maintaining, altering, r epairing, or using any such public work, or which may hinder,
prevent, or obstruct the constructing, r econstructing, making, maintaining, altering,
repairing, adding to, e xtending, or using the same r espectively,
(c)may mak e or construct in, upon, acr oss, under, or over any lands, str eets, r oads,
rivers, str eams, or other waters, within the lands described in the plans or mentioned
in the books of r eference of any public work, or any cor rection ther eof, such temporary
or per manent inclined planes, tunnels, embankments, aqueducts, bridges, r oads,
ways, passages, conduits, drains, piers, ar ches, cuttings, fences, as ar e consider ed
necessary,
(d)may alter the course of any rivers (not navigable), str eams or water courses for the
purpose of constructing and maintaining tunnels, bridges, passages, or other works
over or under the same, or for any other necessary purpose; and also may divert or
alter, as well temporarily as per manently, the course of any such rivers or str eams of
water, str eets, r oads, or ways, or raise or sink the level of any such rivers or str eams,
streets, r oads or ways, in or der the mor e conveniently to car ry the same over, or
under, or by the side of, any such public work, as may be thought pr oper,
(e)may mak e drains or conduits into, thr ough, or under any lands adjoining any public
work, for the purpose of conveying water fr om or to the same,Public W orks and P rocurement A ct 1912 No 45 [NSW]
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construct such houses, war ehouses, offices, and other buildings, yar ds, stations,
wharves, engines, machinery, apparatus, and other works and conveniences as shall
be thought r equisite,
(g)may alter, or r epair, or discontinue the befor e-mentioned works or any of them and
substitute others in their stead,
(h)wher e any public work is constructed in or passes thr ough any wood-lands or for est,
may fell or r emove any tr ees standing ther eon, within the distance of 46 metr es from
either or every side of such work,
(i)and generally may do all other acts necessary for constructing, r econstructing,
making, maintaining, altering, r epairing, adding to, e xtending, and using such public
work.
81(Repealed)
82Power to tak e temporary possession of land
(1)The Constructing Authority and all persons authorised by the Constructing Authority
may enter, fr om time to time, upon any lands—
(a)being within a distance of not mor e than 200 metr es from the near est boundary of
the public work, as delineated on the plans ther eof, and
(b)not being a gar den, or chard, or plantation attached or belonging to a house, nor a
park, planted walk, avenue, or gr ound or namentally planted, and
(c)not being near er to the dwelling-house of the owner of any such lands than a
distance of 500 metr es,
and may occupy the said lands, as long as may be necessary for the construction,
reconstruction, r epair, alteration, addition, to, or e xtension of the public works or the
works connected ther ewith, and may use the same for any of the following purposes
(that is to say)—
(d)for the purpose of taking earth or soil by side cuttings ther efrom,
(e)for the purpose of depositing soil ther eon,
(f)for the purpose of obtaining materials ther efrom for the construction,
reconstruction, r epair, alteration, addition to or e xtension of the public work or
such other works as afor esaid,
(g)for the purpose of for ming r oads ther eon to, or fr om, or by the side of the public
work.
(2)In exercise of the powers afor esaid the Constructing Authority and all such personsPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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used in constructing the public work, and also may tak e from any such lands any
timber, and also dig and tak e from or out ther eof any clay, stone, gravel, sand, or
other things found ther ein, useful or pr oper for constructing the said work or any such
roads as afor esaid, and for the purposes afor esaid may er ect ther eon workshops,
sheds, and other buildings of a temporary natur e.
(3)Nothing in this A ct contained shall e xempt the Constructing Authority fr om any action
for nuisance or other injury, if any, done in the e xercise of the powers her einbefor e
given, to the lands or habitations of any party other than the party whose lands shall
be so tak en or used for any of the purposes afor esaid.
(4)Provided that no stone or slate quar ry, brickfield, or other lik e place which, at the time
of the passing of this A ct is commonly work ed or used for getting materials ther efrom
for the purpose of selling or disposing of the same, shall be tak en or used by the
Constructing Authority, either wholly or in part, for any of the purposes lastly
hereinbefor e mentioned.
83Authority to separate the lands before using them
If any such lands ar e used for any of the purposes afor esaid, the Constructing Authority
shall, if r equir ed so to do by the owner or occupier ther eof, separate the same by a
sufficient fence fr om the lands adjoining ther eto with such gates as may be necessary for
the convenient occupation of such lands; and, in case of any differ ence between the
owners or occupiers of such lands and the Constructing Authority as to the necessity for
such fences and gates, then with such fences and gates as the Gover nor deems necessary
for the purposes afor esaid.
84Compensation to be made for temporary occupation
In any of the cases afor esaid, wher e the Constructing Authority tak es temporary
possession of lands by virtue of the powers her ein granted, the Constructing Authority
shall—
(a)within one month af ter the Constructing Authority’s entry upon such lands, upon
being r equir ed to do so, pay to the occupier of the said lands the value of any cr op or
dressing that may be ther eon, as well as full compensation for any other damage of a
temporary natur e which the occupier may sustain by r eason of the Constructing
Authority so taking possession of the occupier’s lands,
(b)during such occupation of the said lands, pay half -yearly or quarterly to such occupier
or the owner of the lands, as the case may r equir e, a r ent, to be agr eed upon by the
parties, or, if they cannot agr ee, to be fix ed by the L ocal Court,
(c)within six months af ter the Constructing Authority has ceased to occupy the said
lands, pay to such owner and occupier or pay into Court as pr escribed by rules of
Court, for the benefit of all parties inter ested, as the case may r equir e, compensationPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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them, by r eason of the e xercise as r egards the said lands of the powers her ein
granted, including the full value of all such clay, stone, gravel, sand, and other things
taken from such land.
85Claims for compensation
(1)A person who wishes to claim compensation under this Division must lodge a claim for
compensation with the Constructing Authority .
(2)The Constructing Authority may accept the claim for compensation (in whole or in
part) or r eject the claim.
(3)A claim for compensation is tak en to have been r ejected if the Constructing Authority
has not dealt with the claim within 60 days af ter receiving the claim or within 60 days
after completion of the public work concer ned (whichever is the later). However, the
Constructing Authority is not pr ecluded fr om accepting the claim af ter that time.
86Crossing of roads
If the public work cr osses any public highway or car riage r oad, then such work shall not be
carried acr oss, over or under such r oad, unless the pr oposed place and mode of such
crossing and the immediate appr oaches ther eto, and all other necessary works connected
therewith, and the pr ovisions to be adopted for the pr otection of the public using the
same have been pr eviously notified, and have been appr oved of by the Gover nor.
87Before roads interfered with, others to be substituted
If, in the e xercise of the powers her eby granted, it is found necessary to cr oss, cut
through, raise, sink, or use any part of any r oad, whether car riage r oad, horse r oad, tram
road or railway, either public or private, so as to r ender it impassable for, or danger ous, or
extraor dinarily inconvenient to passengers or car riages or to the persons entitled to the
use ther eof, the Constructing Authority shall, befor e the commencement of any such
operations, cause a sufficient r oad to be made instead of the r oad to be interfer ed with,
and shall at the public e xpense maintain such substituted r oad in a state as convenient
for passengers and car riages as the r oad so interfer ed with or as nearly so as may be.
88Remedy for damage from interruption of road
If any party entitled to a right of way over any r oad so interfer ed with by the Constructing
Authority suffers any special damage because the Constructing Authority fails to cause
another sufficient r oad to be made befor e it interfer es with the e xisting r oad, such party
may r ecover the amount of such special damage fr om the Constructing Authority in the
Supreme Court.
89Restoration of roads interfered with
(1)If the r oad so interfer ed with can be r estor ed compatibly with the for mation and use ofPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 26 of 60the public work, the same shall, with all r easonable e xpedition, be r estor ed to as good
a condition as it was in at the time when it was first interfer ed with by the
Constructing Authority or as near ther eto as may be.
(2)If such a r oad cannot be r estor ed compatibly with the for mation and use of the public
work, the Constructing Authority shall cause the new or substituted r oad or some
other sufficient substituted r oad to be, with all r easonable e xpedition, put into a
permanently substantial condition, equally convenient as the for mer r oad or as near
thereto as cir cumstances will allow .
90Approaches and fences
If the public work cr osses any highway (other than a public car riage-way) on the level, the
Constructing Authority shall mak e and at all times maintain convenient ascents and
descents and other convenient appr oaches with hand-rails or other fences; and shall, if
such highway is a bridle-way, er ect and at all times maintain good and sufficient gates,
and if the same is a footway, good and sufficient gates or stiles on each side of the said
work wher e the highway communicates ther ewith.
91Accommodation works
The Constructing Authority shall mak e, and at all times maintain, the following works
(hereinaf ter called accommodation works ), for the accommodation of the owners and
occupiers of lands adjoining any public work, that is to say—
(a)such and so many convenient gates, bridges, ar ches, culverts, and passages over,
under or by the sides of or leading to or fr om the public work as ar e necessary for the
purpose of making good any inter ruptions caused by the public work to the use of the
land thr ough, in, or upon which such public work is made or constructed; and such
work shall be made forthwith af ter such public work or part of it passing over such
lands has been laid out or for med or during the for mation ther eof,
(b)sufficient posts, rails, hedges, ditches, mounds, or other fences for separating the
land, tak en for or for the use of the public work, fr om the adjoining lands not tak en
and pr otecting such lands fr om tr espass, or the cattle of the owners of occupiers
thereof fr om straying ther eout, in consequence of such public work; together with all
necessary gates made to open towar ds such adjoining lands and not towar ds the
public work. All necessary stiles, and such posts, rails, and other fences shall be made
forthwith af ter the taking of any such lands, if the owners ther eof so r equir e, and such
other works as soon as conveniently may be,
(c)all necessary ar ches, tunnels, culverts, drains, or other passages either over or under,
or by the sides of the public work, of such dimensions as will be sufficient, at all times,
to convey the water as clearly fr om the lands lying near or affected by such public
work as befor e the making of the public work or as nearly so as may be; and such
works shall be made fr om time to time as the public work pr oceeds.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 27 of 60Provided that the Constructing Authority shall not be r equir ed to mak e such
accommodation works in such a manner as would pr event or obstruct the working or
using of the public work; nor to mak e any accommodation works with r espect to which the
owners and occupiers of the lands have agr eed to r eceive and have been paid
compensation instead of the making them.
91A Fences—transferred railwa y provisions
(1)Bungendore to Captain’s Flat Railwa y Act 1930 Notwithstanding the pr ovisions of section
91, the Constructing Authority shall not be compelled, nor shall it be the duty of the
said Authority, to mak e or maintain any fence along the line of railway described in
the Schedule to the Bungendore to Captain’s Flat Railway Act 1930 (as in for ce
immediately befor e its r epeal) for the accommodation of any person or for any
purpose whatsoever; but the said Authority may, in its discr etion, mak e and maintain
such fences in connection with the said line of railway as it may think fit.
(2)Coonabarabran to Burren Junction Railwa y Act 1913 Notwithstanding the pr ovisions of
section 91, the Constructing Authority shall not be compelled, nor shall it be the duty
of the said authority to mak e or maintain any fence along the line of railway described
in the Schedule to the Coonabarabran to Burren Junction Railway Act 1913 (as in for ce
immediately befor e its r epeal) for the accommodation of any person or for any
purpose whatsoever; but the said Authority may, in his discr etion, mak e and maintain
such fences in connection with the said line of railway as he may think fit.
(2A) Government Railwa ys (F encing) Act 1902 Notwithstanding the pr ovisions of section 91,
the Constructing Authority shall not in r espect of any of the lines of railway mentioned
in the Second Schedule to the Government Railways (Fencing) Act 1902 (as in for ce
immediately befor e its r epeal) be r equir ed or compelled, nor shall it be the duty of the
said Authority, to mak e or maintain any fence along the said lines of railway for the
accommodation of any person or for any purpose whatsoever; but the said Authority
may, in its discr etion, mak e and maintain such fences in connection with the said lines
of railway as it may think fit.
Note—
The railway lines concer ned ar e Nyngan to Cobar, Nar rabri to Mor ee, Jerilderie to Ber rigan, P arkes to
Condobolin, Nevertir e to W arren, Ber rigan to F inley, T amworth to Manilla, Mor ee to Inver ell, Dubbo to
Coonamble, Goulbur n to Cr ookwell, The R ock to Gr een’s Gunyah, K oorawatha to Gr enfell, Byr ock to
Brewar rina, Gundagai to T umut, Nar rabri to W algett, Culcair n to Ger manton, T emora to W yalong and Manilla
to Bar raba.
(3)Newcastle Islands Development Scheme Railwa y Act 1966 Notwithstanding the pr ovisions
of section 91, the Commissioner for R ailways as constructing authority shall not be
compelled nor shall it be the duty of the Commissioner for R ailways as constructing
authority to mak e or maintain, for the accommodation of any person or for any
purpose whatsoever, any fence along that portion of the work described in the
Schedule to the Newcastle Islands Development Scheme Railway Act 1966 (as in for cePublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 28 of 60immediately befor e its r epeal) e xtending fr om the norther n bank of the South Channel
of the Hunter River to the point adjacent to wharves to be constructed at R otten R ow;
but the Commissioner for R ailways may, in the Commissioner’s discr etion, mak e and
maintain such fences in connection with that portion of the said work as the
Commissioner may think fit.
(4)Sandy Hollow , via Gulgong, to Maryvale Railwa y Act 1927 Notwithstanding the pr ovisions
of section 91, the Constructing Authority shall not be compelled, nor shall it be the
duty of the said Authority, to mak e or maintain any fence along the line of railway
described in the Schedule to the Sandy Hollow , via Gulgong, to Maryvale Railway Act
1927 (as in for ce immediately befor e its r epeal) for the accommodation of any person
or for any purpose whatsoever; but the said Authority may, in its discr etion, mak e and
maintain such fences in connection with the said line of railway as it may think fit.
(5)Whittingham to Mount Thorley Railwa y Act 1975 Notwithstanding the e xclusion by
subsection (3) of the Whittingham to Mount Thorley Railway Act 1975 (as in for ce
immediately befor e its r epeal) of the pr ovisions of section 91(b) to and in r espect of
the scheduled work (within the meaning of that A ct as in for ce immediately befor e its
repeal), the Commission may in its discr etion mak e and maintain such fences in
connection with that scheduled work as it thinks fit.
(6)Wyalong towards Condobolin Railwa y Act 1923 Notwithstanding the pr ovisions of section
91, the Constructing Authority shall not be compelled, nor shall it be the duty of the
said Authority to mak e or maintain any fence along the line of railway described in the
Schedule to the Wyalong towards Condobolin Railway Act 1923 (as in for ce
immediately befor e its r epeal) for the accommodation of any person or for any
purpose whatsoever; but the said Authority may, in its discr etion, mak e and maintain
such fences in connection with the said line of railway as it may think fit.
(7)Subsections (1)–(6), r espectively, r e-enact (with minor modifications) the following
provisions and ar e transfer red pr ovisions to which section 30A of the Interpretation Act
1987 applies—
(a)section 6 of the Bungendore to Captain’s Flat Railway Act 1930 ,
(b)section 6 of the Coonabarabran to Burren Junction Railway Act 1913 ,
(b1) section 4 of the Government Railways (Fencing) Act 1902 ,
(c)section 8 of the Newcastle Islands Development Scheme Railway Act 1966 ,
(d)section 6 of the Sandy Hollow , via Gulgong, to Maryvale Railway Act 1927 ,
(e)section 5(4) of the Whittingham to Mount Thorley Railway Act 1975 ,
(f)section 6 of the Wyalong towards Condobolin Railway Act 1923 .Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 29 of 6092Differences as to accommodation works to be settled by Governor
If any differ ence arises r especting the kind or number of any accommodation works or the
dimensions or sufficiency ther eof or r especting the maintaining ther eof, the same shall be
deter mined by the Gover nor, who shall also appoint the time within which such works
shall be commenced and e xecuted.
93Power to owners of lands to mak e additional accommodation works
If any owner or occupier of lands affected by such public work considers the
accommodation works made by the Constructing Authority or dir ected by the Gover nor to
be made by the Constructing Authority insufficient for the commodious use of his or her
lands, such owner or occupier, at any time, at his or her own e xpense, may mak e such
further works for that purpose as he or she thinks necessary, and as ar e agr eed to by the
Constructing Authority .
94Such works to be constructed under the superintendence of the Constructing
Authority’s engineer
If the Constructing Authority so desir es, all such last-mentioned accommodation works
shall be constructed under the superintendence of the engineer or other officer
superintending the making or construction of any public work, and accor ding to plans and
specifications to be submitted to and appr oved by the Constructing Authority .
Provided that the Constructing Authority shall not be entitled to r equir e either that plans
should be adopted which would involve a gr eater e xpense than that incur red in the
execution of similar works by the Constructing Authority, or that the plans selected should
be executed in a mor e expensive manner than that adopted in similar cases by the
Constructing Authority .
95Owners to be allowed to cross until accommodation works are made
Until the Constructing Authority has made the bridges or other pr oper communications
which, under the pr ovisions her ein contained, it is r equir ed to mak e between lands
intersected by the public work, and no longer, the owners and occupiers of such lands and
any other person whose right-of -way is affected by the want of such communication, and
their r espective servants may, at all times, fr eely pass and r epass with car riages, horses,
and other animals dir ectly (but not otherwise) acr oss the part of the public work
constructed or made thr ough, in, or upon their r espective lands, solely for the purpose of
occupying the same lands or for the e xercise of such right-of -way, and so as not to
obstruct the passage along such public work or to damage the same.
Provided that if the owner or occupier of any such lands has, in his or her ar rangements
with the Constructing Authority, r eceived or agr eed to r eceive compensation for or on
account of any such communications instead of the same being for med, such owner or
occupier or those claiming under the owner or occupier shall not be entitled so to cr oss
the public work.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 30 of 6096As to damages
In the e xercise of the powers granted by this A ct, the Constructing Authority and all other
persons shall do as little damage as possible; and, if r equir ed, full satisfaction shall be
made in manner her ein pr ovided, to all persons inter ested in any lands or her editaments
which ar e used, injur ed, or pr ejudicially affected, for all damages sustained by them by
reason of the e xercise of such powers.
97Houses not to be damaged without notice
(1)Nothing in this A ct contained shall empower the Constructing Authority or any person,
in the e xercise of the powers granted by this A ct to injur e, or damage any messuage,
dwelling-house, or other per manent building, or the immediate appurtenances
thereof, without the consent in writing of the owner and occupier ther eof respectively,
until af ter the e xpiration of thr ee months fr om the time the Constructing Authority has
given notice to such owner that the same is r equir ed under this A ct.
(2)This section does not apply to anything done af ter land has been acquir ed by the
Constructing Authority .
Division 7 Superfluous lands
98Sale or lease of lands not wanted for any work
(1)The Constructing Authority may, with the appr oval of the Gover nor, sell or lease, in
such manner, upon such ter ms and conditions and subject to such easements,
covenants, pr ovisions, e xceptions and r eservations as the Constructing Authority may
deem e xpedient, any lands acquir ed under the pr ovisions of this A ct either befor e or
after the commencement of the Public Works (Amendment) Act 1961 and which ar e
not requir ed for the purposes of any work for which they wer e acquir ed.
(2)All moneys r eceived by the Constructing Authority pursuant to any sale or lease made
under subsection one of this section shall be applied in such manner as the Gover nor
directs.
99Lands to be conveyed to the purchasers
(1)Upon payment or tender to the Constructing Authority of the pur chase money in
respect of any sale under subsection one of the last pr eceding section, the
Constructing Authority shall convey the lands, for and on behalf of the Cr own to the
purchasers ther eof, by deed duly r egister ed.
(2)A deed so e xecuted and r egister ed shall be effectual to vest the lands comprised
therein in the said pur chaser for the estate so pur chased by the pur chaser .
100 Receipts
A receipt under the hand and seal of the Constructing Authority shall be a sufficientPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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expressed to be r eceived.
Part 7
101–131 (Repealed)
Part 8 Provisions applicable in every case where land is tak en or
acquired for authorised works
Division 1 Exercise of powers by Constructing Authority
132 Powers of purchasing lands
The powers of acquiring lands for authorised works by this A ct confer red upon the
Constructing Authority may be e xercised fr om time to time, and whether the particular
work for which lands may have been acquir ed has actually been constructed or not.
133 Powers of sale and purchase of lands
The Constructing Authority may sell and convey any lands so acquir ed, or any part
thereof, in such manner and for such considerations and to such persons as the
Constructing Authority may think fit, and may pur chase other lands for the lik e purposes,
and af terwar ds sell and convey the same, and so fr om time to time.
Divisions 2, 3
134–140 (Repealed)
Division 4 Lands containing minerals
140A Act subject to Mining Act 1973 andCoal Mining Act 1973
This A ct is subject to the Mining Act 1973 and the Coal Mining Act 1973 .
141 Constructing Authority entitled to minerals
(1)In this section minerals means mines or deposits of minerals within land tak en under
this A ct after the commencement of the Public Works and Local Government
(Amendment) Act 1967 , including land so tak en af ter that commencement pursuant to
the authority confer red by any other A ct, whether passed befor e or af ter that
commencement.
(2)Subject to this section, the Constructing Authority shall be entitled to all minerals
other than—
(a)minerals that ar e expressly e xcepted in the notification of the taking, or
(b)minerals that wer e vested in the Cr own immediately befor e the taking, not beingPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 32 of 60minerals so vested that—
(i)are expressly appr opriated as such in the notification of the taking, or
(ii)necessarily must be dug or car ried away or used in the construction of the
works,
but any e xception r eferred to in paragraph (a) of this subsection shall be deemed not
to include minerals that necessarily must be dug or car ried away or used in the
construction of the works.
(3)Subject to subsection (3A), the Gover nor may, by notification published in the
Gazette—
(a)befor e payment of compensation for the taking of minerals within the land
described in the notification, and
(b)befor e any disposition of those minerals, being a disposition made by the
Constructing Authority or other person in whom, by or under this or any other A ct,
they ar e vested in consequence of the taking,
declar e that minerals tak en and within the land so described ar e divested fr om the
Constructing Authority or, wher e some other person is specified, that person, and
vested in a specified person for a specified estate, subject to all trusts, obligations,
estates, inter ests, contracts, char ges, rates and rights-of -way or other easements fr om
which they wer e freed and dischar ged upon the taking, other than such of them as
may be e xpressly e xcepted in the notification, and ther eupon those minerals shall be
divested and shall vest accor dingly .
For the purposes of this subsection and of any notification published ther eunder
minerals shall not include any minerals that, immediately befor e the taking, wer e
vested in the Cr own or any minerals that necessarily must be dug or car ried away or
used in the construction of the works.
(3A) Wher e a resumption application r elating to land tak en under this A ct (whether or not
pursuant to the authority confer red by any other A ct passed befor e or af ter the
commencement of this subsection) has been lodged under section 31A(2) of the Real
Property Act 1900 with the R egistrar -General—
(a)a notification under subsection (3) published in the Gazette af ter the
commencement of this subsection may not divest fr om the Constructing Authority,
or other person in whom they ar e vested, the minerals tak en and within that land,
and
(b)any transfer of those minerals af ter that land has been br ought under the
provisions of the Real Property Act 1900 shall, for the purposes of subsection (5),
be deemed, upon its r egistration under that A ct, to vest those minerals under thisPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 33 of 60section in the transfer ee.
(4)Upon publication of a notification under subsection (3), the Constructing Authority or
other person fr om whom they ar e declar ed by the notification to be divested shall, in
respect of minerals vested under that subsection by the notification—
(a)wher e the minerals so vested ar e under the pr ovisions of the Real Property Act
1900 , mak e a request under section 46C of that A ct in r elation to those minerals
and fur nish such of the evidence r equir ed in connection ther ewith as may be in his
or her possession or under his or her contr ol, or
(b)wher e the minerals so vested ar e not under the pr ovisions of the Real Property Act
1900 , forwar d a copy of the notification of the vesting to the R egistrar -General
who shall, upon r eceipt ther eof, cause a memorandum of the vesting of those
minerals to be pr epared and r egister ed in the General R egister of Deeds k ept
under the Registration of Deeds Act 1897 and, for the purposes of that A ct, that
memorandum shall be deemed to be a r egistration copy of an instrument duly
register ed under that A ct.
(4A) A request made by the Constructing Authority or another person in compliance with
subsection (4)(a) shall be deemed to have been made by the person entitled so to do
under section 46C of the Real Property Act 1900 .
(5)Wher e, pursuant to a vesting under this section, a person has become entitled to an
estate or inter est in minerals equivalent to an estate or inter est in those minerals
converted by section forty -five of this A ct into a claim for compensation the person
shall, notwithstanding anything contained in this A ct, be deemed never to have been
entitled to compensation pursuant to that claim.
(6)For the purposes of this section, wher e land described in a notification published
under subsection thr ee of this section is land that by any A ct is declar ed upon the
taking ther eof to be vested in the Cr own as Cr own land within the meaning of the
Crown Land Management Act 2016 or land subject to a declaration under section 25A
of the Crown Lands Consolidation Act 1913 , the minerals tak en and within that land
(other than minerals that, immediately befor e the taking, wer e vested in the Cr own
and minerals that necessarily must be dug or car ried away or used in the construction
of the works) shall be deemed never to have been so vested or r eserved and sections
forty-three and forty -four and subsection one of section forty -five of this A ct shall, in
the case of minerals so deemed never to have vested, be deemed to have applied to
and in r espect of those minerals, upon the taking ther eof.
(7)The costs and e xpenses of making any r equest or effecting any r egistration under
subsection four of this section shall be bor ne by the Constructing Authority or the
other person r eferred to in that subsection and no stamp duty shall be char geable in
respect of any such r equest or any instrument wher eby minerals ar e vested under this
section.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 34 of 60(8)Without limiting the discr etion confer red upon the R egistrar -General by section 46C of
theReal Property Act 1900 , the R egistrar -General shall not, when cr eating a folio of
the R egistrar k ept under that A ct or making r ecordings in that R egister in r espect of
minerals pursuant to a r equest made under subsection (4)(a), be r equir ed to mak e any
recordings in that R egister, other than—
(a)such r ecordings as may, in the R egistrar -General’s opinion, be necessary with
respect to the vesting of the minerals in the person and for the estate specified, in
the notification of the vesting of those minerals, as the person in whom, and the
estate for which, they wer e ther eby vested, and
(b)any r ecordings r elating to the land described in the notification, being r ecordings
that appear ed in that R egister immediately befor e the taking of that land, other
than r ecordings r elating only to estates or inter ests e xcepted in the notification.
(9)Nothing in this section shall be construed as affecting the pr ovisions of sections one
hundr ed and forty -two to one hundr ed and forty -nine, both inclusive, of this A ct.
(10) In this section, a r eference to a notification of the taking of land includes a r eference
to an acquisition notice under the Land Acquisition (Just T erms Compensation) Act
1991 .
142 Working of mines on or near authorised work
(1)If the owner, lessee, or occupier of any mines or minerals lying under any authorised
work or any work connected ther ewith, or within 40 metr es from the boundary ther eof,
is desir ous of working the same, such owner, lessee, or occupier shall give to the
Constructing Authority notice in writing of his or her intention so to do, thirty days
befor e the commencement of working.
(2)Upon the r eceipt of such notice, the Constructing Authority may cause such mines to
be inspected by any person appointed by the Constructing Authority for the purpose.
(3)If it appears to the Constructing Authority that the working of such mines or minerals
is likely to damage the authorised work, and if the Constructing Authority is willing to
make compensation for such mines or any part ther eof to the owner, lessee, or
occupier, then such owner, lessee, or occupier shall not work or get such minerals.
(4)If the Constructing Authority and such owner, lessee, or occupier do not agr ee as to
the amount of such compensation, the same shall be settled as in other cases of
disputed compensation as pr ovided in the Land Acquisition (Just T erms Compensation)
Act 1991 .
143 If Constructing Authority unwilling to purchase, owner ma y work the mines
(1)If befor e the e xpiration of such thirty days the Constructing Authority does not state
the Constructing Authority’s willingness to tr eat with the owner, lessee, or occupier forPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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said mines or any part ther eof for which the Constructing Authority has not agr eed to
give compensation.
Provided that such work shall be done in a manner pr oper and necessary for the
beneficial working of the mine, and accor ding to the usual manner of working such
mines in the district wher e the same ar e situate.
(2)If any damage or obstruction is occasioned to the authorised work by impr oper
working of such mines, the same shall be forthwith r epair ed or r emoved, as the case
may r equir e, and such damage made good by the owner, lessee, or occupier of such
mines or minerals and at his or her own e xpense.
(3)If such r epair or r emoval is not forthwith car ried out by such owner, lessee, or
occupier, or, if the Constructing Authority thinks fit, without waiting for the same to be
so car ried out, the Constructing Authority may car ry out the same and r ecover fr om
such owner, lessee, or occupier the e xpense occasioned ther eby by pr oceedings in the
Court.
144 Mining communications
(1)If the working of any such mines under the authorised work or within the
abovementioned distance ther efrom is pr evented as afor esaid, by r eason of
apprehended injury to such authorised work, the r espective owners, lessees, and
occupiers of such mines and whose mines e xtend so as to lie on both sides of the
authorised work may cut and mak e so many airways, headways, gateways, or water -
levels thr ough the mines, measur es, or strata, the working wher eof is so pr evented, as
may be r equisite to enable them to ventilate, drain, and work their said mines.
(2)No such airway, headway, gateway, or water -level shall be of gr eater dimensions or
section than the pr escribed dimensions and sections, and wher e no dimensions ar e
prescribed, not gr eater than 2.5 metr es wide and 2.5 metr es high, or of such a natur e
as to injur e or to impede the passage on, to, thr ough or over the same.
145 Constructing Authority to mak e compensation for injury done to mines
(1)The Constructing Authority shall fr om time to time pay the owner, lessee, or occupier
of any such mines, lying on both sides of the authorised work—
(a)all such additional e xpenses and losses as such owner, lessee, or occupier incurs
by reason of the severance of the lands lying over such mines by the authorised
work, or of the continuous working of such mines being inter rupted as afor esaid,
or by r eason of the same being work ed in such manner and under such
restrictions, as not to pr ejudice or injur e the railway, and
(b)for any minerals not tak en or pur chased by the Constructing Authority which
cannot be obtained by r eason of making or constructing and maintaining thePublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(2)If any dispute or question arises between the Constructing Authority and such owner,
lessee, or occupier as afor esaid, touching the amount of such losses or e xpenses, the
same shall be settled by arbitration as her einbefor e mentioned.
146 Constructing Authority to mak e compensation for any airwa y or other work made
necessary by the railwa y
If any loss or damage is sustained by the owner or occupier of the lands lying over any
such mines, the working wher eof has been so pr evented as afor esaid, by r eason of the
making of any such airway or other work as afor esaid, which or any lik e work would not
have been necessary to be made but for the working of such mines having been so
prevented as afor esaid, the Constructing Authority shall mak e full compensation to such
owner or occupier for the loss or damage so sustained by the owner or occupier, if the
owner or occupier is not also the owner, lessee, or occupier of any mine under such lands
in connection with which such airway or other work has been made.
147 Power to Constructing Authority to enter and inspect the working of mines
For better ascertaining whether any such mines ar e being work ed or have been work ed so
as to damage the authorised work, the Constructing Authority, af ter giving twenty -four
hours’ notice in writing, may enter upon any lands, thr ough, in, on or near which the
authorised work is constructed, and wher ein any such mines ar e being work ed or ar e
supposed so to be, and may enter into and r eturn from any such mines or the works
connected ther ewith. F or that purpose the Constructing Authority may mak e use of any
apparatus or machinery belonging to the owner, lessee, or occupier of such mines, and
may use all necessary means for discovering the distance fr om authorised work to the
parts of such mines which ar e being work ed or about so to be.
148 Penalty
If any such owner, lessee, or occupier of any such mine r efuses to allow any person,
appointed by the Constructing Authority for that purpose, to enter into and inspect any
such mines or works in manner afor esaid, every person so offending shall for every such
refusal forfeit to the Constructing Authority a sum not e xceeding 0.5 penalty unit.
149 Mines work ed contrary to this Act
(1)If it appears that any such mines have been work ed contrary to the pr ovisions of this
Act, or any A ct her eby r epealed, the Constructing Authority may give notice to the
owner, lessee, or occupier ther eof to construct such works and to adopt such means
as may be necessary or pr oper for making safe the authorised work and pr eventing
injury ther eto.
(2)If, after such notice, any such owner, lessee, or occupier does not forthwith pr oceed to
construct the works necessary for making safe such authorised work, the ConstructingPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 37 of 60Authority may construct such works and r ecover the e xpense ther eof fr om such
owner, lessee, or occupier by pr oceedings in the Court.
Division 5 Gates
150 Penalty on persons omitting to fasten gates
(1)If any person omits to shut and fasten any gate set up at either side of any authorised
work for the accommodation of the owners or occupiers of the adjoining lands as soon
as the person and the car riages or cattle or other animals under the person’s car e
have passed thr ough the same, the person shall be liable for every such offence to a
penalty not e xceeding 0.5 penalty unit.
(2)Every such penalty may be r ecover ed in a summary way befor e the L ocal Court at the
suit of any person authorised by the Constructing Authority .
Part 9 National works
151 Declaration of national works
(1)The Gover nor may, by pr oclamation, declar e any r oad, bridge, fer ry, wharf, public
reserve or public work of any kind in any ar ea to be a national work.
(2)A national work is, for the purposes of this A ct, tak en to be an authorised work and
the Minister is tak en to be the Constructing Authority .
(3)A work may be a national work whether or not it is a new work or an e xisting work.
152 Functions of Minister
(1)The Minister is to maintain, manage and administer national works.
(2)The Minister has, and may e xercise and enjoy, the powers and immunities of a council
under the Local Government Act 1993 for the purpose of the construction, contr ol,
protection, maintenance and management of national works.
153 National works ma y be handed over to councils
(1)The Minister, with the agr eement of a council, may, by notice published in the
Gazette, declar e that a national work is handed over, either temporarily or
permanently, to a council.
(2)A work which is handed over to a council is to be maintained, managed and
administer ed by the council and ceases to be a national work while it is so maintained,
managed and administer ed.
154 National works etc ma y be handed over to T ransport for NSW
(1)The Minister, with the agr eement of T ransport for NSW, may, by notice published inPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 38 of 60the Gazette, declar e that—
(a)a road, bridge, fer ry or tunnel that is a national work, or
(b)any other r oad, bridge, fer ry or tunnel that is maintained, managed and
administer ed by the Minister,
is handed over, either temporarily or per manently, to T ransport for NSW .
(2)A road, bridge, fer ry or tunnel which is handed over to T ransport for NSW is to be
maintained, managed and administer ed by T ransport for NSW and (in the case of a
national work) ceases to be a national work while it is so maintained, managed and
administer ed.
(3)Transport for NSW has, and may e xercise and enjoy, the powers and immunities of a
council under the Local Government Act 1993 for the purpose of the contr ol,
protection, maintenance, and management of any r oad, bridge, fer ry or tunnel
maintained, managed and administer ed by it.
(4)Transport for NSW, with the agr eement of a council, may, by notice published in the
Gazette, declar e that a r oad, bridge, fer ry or tunnel—
(a)that is maintained, managed and administer ed by T ransport for NSW pursuant to
this section, and
(b)that was, immediately befor e it was handed over to T ransport for NSW, a national
work,
is handed over, either temporarily or per manently, to a council.
(5)A work which is handed over to a council is to be maintained, managed and
administer ed by the council.
155 Resolution of disputes
(1)Any dispute arising under section 153 or 154 between the Minister and a public
authority may be r esolved by agr eement between the Minister and the Minister
administering the A ct under which the public authority is constituted.
(2)Any dispute arising under section 154 between T ransport for NSW and a council may
be resolved by agr eement between the Ministers administering the A cts under which
those public authorities ar e constituted.
(3)If agr eement cannot be r eached, the dispute is to be r esolved by the P remier .
(4)A public authority must comply with any dir ection arising out of the r esolution of the
dispute under this section.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 39 of 60156 Closure of national works
The Minister may temporarily or per manently close a national work to the public and may
dismantle any structur e and dispose of its materials.
157 Appointment of councils as agents
(1)The Minister may appoint a council as the Minister’s agent for the car e, contr ol and
management of a national work.
(2)The council may act as the Minister’s agent even if the national work concer ned is
partly outside the council’s ar ea.
(3)A council acting as the Minister’s agent may tak e legal pr oceedings in its own name to
recover penalties for offences r elating to a national work.
158 Regulations
(1)The Gover nor may mak e regulations, not inconsistent with this A ct, for or with r espect
to—
(a)the construction, contr ol, management, maintenance and pr otection of national
works, and
(b)the regulation, r estriction or suspension of the use by the public of national works,
and
(c)the collection of fees and char ges for the use of any national work other than a
road or bridge.
(2)A regulation may cr eate an offence punishable by a penalty not e xceeding 5 penalty
units.
159 Proceedings for offences
Proceedings for an offence against a r egulation made under this P art ar e to be dealt with
summarily befor e the L ocal Court.
Part 10 Other matters relating to councils etc
160 Minister to have certain functions
The Minister has, and may e xercise and enjoy, the powers and immunities of a council
under the Local Government Act 1993 , for the following purposes—
(a)the construction, contr ol, pr otection, maintenance and management of r oads, bridges,
ferries, wharves or public works of any kind in the W ester n Division,
(b)the construction, and pr otection during construction, of any works car ried out by the
Minister for a council.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 40 of 60161 Minister ma y construct works etc on behalf of councils
The Minister may, at the r equest of the Minister for L ocal Gover nment, er ect, construct or
carry out for a council, any works necessary or convenient in connection with any works or
undertakings that the council might lawfully er ect, construct or car ry out.
Part 11 Procurement of goods and services
Division 1 Preliminary
162 Definitions
In this P art—
affected applicant , in relation to an alleged contravention or pr oposed contravention of
an enfor ceable pr ocurement pr ovision, means—
(a)a person (or a partnership or other gr oup of persons)—
(i)that supplies, or could supply, goods or services, and
(ii)whose inter ests ar e affected by the alleged contravention or pr oposed
contravention, or
(b)any other person, gr oup of persons or body of a kind pr escribed by the r egulations.
Board means the New South W ales P rocurement Boar d established under section 164.
Board direction or policy means a dir ection or policy issued by the Boar d under section
175.
enforceable procurement provision means a pr ovision of a Boar d direction or policy
(or a pr ovision of a document r eferred to in a Boar d direction or policy) that is e xpressed
to be an enfor ceable pr ocurement pr ovision by the dir ection or policy .
goods and services means goods and services of any kind.
government agency means any of the following—
(a)a gover nment sector agency (within the meaning of the Government Sector
Employment Act 2013 ),
(b)a NSW Gover nment agency,
(c)any other public authority that is constituted by or under an A ct or that e xercises
public functions (other than a State owned corporation),
(d)any State owned corporation pr escribed by the r egulations.
government agency employee means a person employed in or by a gover nmentPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 41 of 60agency .
government agency head means the person who is the chief e xecutive officer, or who
exercises the functions of chief e xecutive officer, of a gover nment agency .
international procurement agreement means an inter national agr eement that applies
to procurements by Australian Gover nments and covers pr ocurements by New South
Wales.
procurement of goods and services means the pr ocess of acquiring goods and services
by—
(a)identif ying the need to pur chase goods and services, and
(b)selecting suppliers for goods and services, and
(c)contracting and placing or ders for goods and services,
and includes the disposal of goods that ar e unserviceable or no longer r equir ed.
procurement list means a list of suitable suppliers (including suppliers selected using a
prequalification scheme) intended to be used mor e than once for pr ocurements by or for
one or mor e gover nment agencies, but does not include a pr ocurement panel.
procurement panel means a panel of suppliers for pr ocurements by or for one or mor e
gover nment agencies who, following successful tenders, have enter ed into contracts for
inclusion on the panel.
public interest certificate —see section 176G.
163 Application of P art
(1)This P art applies to the pr ocurement of goods and services by or for a gover nment
agency, which includes—
(a)the pr ocurement of goods and services r equir ed by a gover nment agency to
exercise its statutory functions, and
(b)the pr ocurement of goods and services by a gover nment agency pursuant to the
agency’s specific statutory powers of pr ocurement.
(2)This P art does not apply to the pr ocurement of goods and services by or for—
(a)a local council or other local authority, or
(b)the P arliament of New South W ales.
Division 2 NSW Procurement BoardPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 42 of 60164 Establishment of NSW Procurement Board
(1)There is established by this section the New South W ales P rocurement Boar d.
(2)The Boar d is a NSW Gover nment agency .
(3)The Boar d has the functions confer red or imposed on it by or under this or any other
Act.
165 Membership of Board
(1)The Boar d is to consist of the following members—
(a)the Secr etary of the T reasury,
(b)the heads of at least 6 other Departments (within the meaning of the Government
Sector Employment Act 2013 ), being the Departments deter mined by the Minister
from time to time.
(2)The Secr etary of the T reasury is to be the Chairperson of the Boar d.
(3)The F ifth Schedule contains ancillary pr ovisions r elating to the members and
procedur e of the Boar d.
166 Ministerial control
(1)The Boar d is subject to the dir ection and contr ol of the Minister in the e xercise of its
functions.
(2)Without limiting subsection (1), the Minister may dir ect the Boar d to comply with a
specified Gover nment-wide pr ocurement policy .
(3)A copy of any dir ection given by the Minister to the Boar d under this section is to be
included in its annual r eport for the year in which the dir ection was given.
167 Subcommittees of Board
(1)The Boar d may establish subcommittees to assist the Boar d in connection with the
exercise of any of its functions.
(2)The subcommittees may have members who ar e not members of the Boar d.
(3)The pr ocedur e for calling meetings of a subcommittee and for the conduct of those
meetings is to be as deter mined by the Boar d or (subject to any deter mination of the
Board) by the subcommittee.
168 Advisory groups
The Boar d may establish advisory gr oups (comprising members fr om the public and
private sectors) to advise the Boar d on such matters r elating to the pr ocurement of goodsPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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169 Delegation of Board’s functions
(1)The Boar d may delegate to an authorised person any of its functions, other than this
power of delegation.
(2)A delegate may subdelegate to an authorised person any function delegated by the
Board if the delegate is authorised in writing to do so by the Boar d.
(3)In this section, authorised person means any of the following—
(a)a member of the Boar d or a subcommittee of the Boar d,
(b)a Public Service employee,
(c)a statutory body,
(d)a statutory officer,
(e)any other person or body, or person or body of a class, pr escribed by the
regulations.
170 Annual report of Board
(1)The Boar d must, on or befor e 31 October in each year, pr epare and pr esent to the
Minister a r eport of its work and activities for the year ending on the pr eceding 30
June.
(2)The Minister must lay the r eport or cause it to be laid befor e both Houses of
Parliament as soon as practicable af ter receiving the r eport.
(3)The r eport may be included in any annual r eport of the Department for which the
Minister is r esponsible.
Division 3 Objectives and functions of Board
171 Objectives of Board
The objectives of the Boar d are as follows—
(a)to develop and implement a Gover nment-wide strategic appr oach to pr ocurement,
(b)to ensur e best value for money in the pr ocurement of goods and services by and for
gover nment agencies,
(b1) to ensur e that goods and services pr ocured by and for gover nment agencies ar e not
the pr oduct of moder n slavery within the meaning of the Modern Slavery Act 2018 ,
(c)to impr ove competition and facilitate access to Gover nment pr ocurement business byPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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enterprises,
(d)to reduce administrative costs for gover nment agencies associated with pr ocurement,
(e)to simplif y procurement pr ocesses while ensuring pr obity and fair ness.
172 Functions of Board
(1)The Boar d has the following functions—
(a)to oversee the pr ocurement of goods and services by and for gover nment
agencies,
(b)to develop and implement pr ocurement policies,
(c)to issue dir ections or policies under section 175 that apply to gover nment
agencies,
(d)to monitor compliance by gover nment agencies with the r equir ements of this P art
(including Boar d directions or policies),
(e)to investigate and deal with complaints about the pr ocurement activities of
gover nment agencies,
(f)to develop appr opriate pr ocurement and business intelligence systems for use by
gover nment agencies,
(g)to collect, analyse and publish data and statistics in r elation to the pr ocurement of
goods and services by and for gover nment agencies,
(h)such other functions as ar e confer red or imposed on the Boar d by or under this or
any other A ct.
(2)The Boar d has power to do all things necessary or convenient to be done for, or in
connection with, the e xercise of its functions.
(3)The Boar d is to e xercise its functions in accor dance with any applicable Gover nment-
wide pr ocurement policies.
173 Competitive neutrality in tendering
(1)The Boar d has the function of ensuring compliance by public authorities of the State
with competitive neutrality principles r eferred to in the Competition P rinciples
Agreement made on 11 April 1995 by the Commonwealth, the T erritories and the
States, as in for ce for the time being.
(2)The r egulations may mak e further pr ovision for and with r espect to the Boar d’s
function under this section.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 45 of 60(3)A person who contravenes a pr ovision of the r egulations made under this section that
is specified for the purposes of this section is guilty of an offence.
Maximum penalty—100 penalty units or imprisonment for 6 months, or both.
Division 4 Procurement arrangements
174 Procurement of goods and services by government agencies
(1)The Boar d may establish a scheme under which a gover nment agency accr edited by
the Boar d may pr ocure goods and services for that agency or for other gover nment
agencies, subject to any ter ms and conditions of its accr editation.
(2)The Boar d may also authorise a gover nment agency to car ry out specified
procurement of goods and services without Boar d accr editation.
175 Board ma y issue directions or policies for government agencies
(1)The Boar d may issue—
(a)directions to gover nment agencies r egarding the pr ocurement of goods and
services by and for gover nment agencies, and
(b)policies that apply to the pr ocurement of goods and services by and for
gover nment agencies.
(2)A direction or policy may apply to gover nment agencies generally or to a particular
gover nment agency .
(2A) A direction or policy may apply, adopt or incorporate (whether with or without
modifications) any publicly accessible document as in for ce or effect at a particular
time or as in for ce or effect fr om time to time.
(2B) All or some of the pr ovisions of a dir ection or policy (or the pr ovisions of a document
referred to in the dir ection or policy) r elating to an inter national pr ocurement
agreement may be e xpressed to be enfor ceable pr ocurement pr ovisions.
(3)Without limiting the generality of subsection (1), the Boar d may issue dir ections or
policies r egarding—
(a)the methods to be used for pr ocuring goods and services, and
(a1) without limiting paragraph (a), r easonable steps that ar e to be tak en to ensur e
that goods and services pr ocured by and for gover nment agencies ar e not the
product of moder n slavery within the meaning of the Modern Slavery Act 2018 ,
and
(b)contracts for the pr ocurement of specified goods and services, andPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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are requir ed, and
(d)the limits on duration of contracts, and
(e)any matters r elating to pr ocurement pr ocedur es arising fr om a complaint about
the pr ocurement activities of a gover nment agency .
(4)The Boar d must r egularly consult with the Anti-slavery Commissioner about the for m
and content of dir ections that should be issued during the year under subsection (3)
(a1) and tak e into account any r ecommendations of the Commissioner .
176 Obligations of government agencies
(1)A gover nment agency is to e xercise its functions in r elation to the pr ocurement of
goods and services in accor dance with—
(a)any policies and dir ections of the Boar d that apply to the agency, and
(b)the ter ms of its accr editation (if any) by the Boar d, and
(c)the principles of pr obity and fair ness.
(1A) A gover nment agency must tak e reasonable steps to ensur e that goods and services
procured by and for the agency ar e not the pr oduct of moder n slavery within the
meaning of the Modern Slavery Act 2018 .
(2)A gover nment agency is also to ensur e it obtains value for money in the e xercise of its
functions in r elation to the pr ocurement of goods and services.
(3)A gover nment agency is, at the r equest of the Boar d, to pr ovide infor mation to the
Board about its activities in r elation to the pr ocurement of goods and services.
Division 5 Complaints concerning enforceable procurement provisions
176A Affected applicant ma y mak e complaint
(1)A person (the complainant ) may mak e a written complaint about the conduct of a
gover nment agency that it is alleged is a contravention or pr oposed contravention of
an enfor ceable pr ocurement pr ovision if the person is an affected applicant in r elation
to the alleged or pr oposed contravention.
(2)The complaint must be made to the gover nment agency head of the agency
concer ned.
(3)The complainant may withdraw a complaint by a further written notice given to the
gover nment agency head.Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 47 of 60176B Investigation of complaint
(1)A gover nment agency head to whom a complaint is made under this Division must—
(a)investigate the conduct that is the subject of the complaint, and
(b)attempt to r esolve the complaint by taking steps that, in the cir cumstances, ar e
reasonable and pr ompt, and
(c)prepare a written r eport of the investigation.
(2)The gover nment agency head may discontinue the investigation if—
(a)the complainant withdraws the complaint, or
(b)the complainant infor ms the gover nment agency head that the complainant
considers the complaint to be r esolved, or
(c)proceedings ar e commenced in the Supr eme Court under Division 6 in r elation to
the conduct that is the subject of the complaint, or
(d)the gover nment agency head considers it is r easonable to do so in the
circumstances.
(3)The gover nment agency head must discontinue the investigation if—
(a)the Supr eme Court mak es either of the following findings in pr oceedings
commenced under Division 6 in r elation to the conduct the subject of the
complaint—
(i)that the conduct was a contravention of an enfor ceable pr ocurement pr ovision,
(ii)that the conduct was not a contravention of an enfor ceable pr ocurement
provision, or
(b)the continuation of the investigation would be lik ely to r esult in pr ejudice to the
proper administration of justice.
176C Suspension of procurement
(1)A gover nment agency head to whom a complaint is made under this Division must
suspend all pr ocesses involved in the pr ocurement that the gover nment agency head
considers would adversely affect the complainant’s participation in the pr ocurement if
the pr ocesses wer e continued.
(2)However, subsection (1) does not apply if—
(a)a public inter est certificate has alr eady been issued in r espect of the pr ocurement,
orPublic W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 48 of 60(b)a contract for the pr ocurement has alr eady been enter ed into .
(3)The gover nment agency head must ensur e that suspended pr ocesses r emain
suspended until the time when the earliest of the following occurs—
(a)the complainant withdraws the complaint,
(b)the complainant infor ms the gover nment agency head that the complainant
considers the complaint to be r esolved,
(c)a public inter est certificate is issued in r espect of the pr ocurement af ter the
complaint is made,
(d)proceedings ar e commenced in the Supr eme Court under Division 6 in r elation to
the conduct that is the subject of the complaint.
Note—
The Supr eme Court may grant an interim injunction under section 176D to pr event the continuation of
conduct that may be a contravention of an enfor ceable pr ocurement pr ovision pending a final deter mination
on the issue.
(4)When a complaint r elates to a r efusal or failur e to include a supplier on a pr ocurement
list or pr ocurement panel—
(a)if the pr ocess for compiling the list or establishing the panel has not yet
ended—the suspension of pr ocesses involved in the pr ocurement must include the
process of compiling the list or establishing the panel, and
(b)if the pr ocess for compiling the list or establishing the panel has ended—the
suspension of pr ocesses involved in the pr ocurement does not pr event the use of
other suppliers on the list or panel for pr ocurements.
(5)For procurement lists that have alr eady been compiled and to which new suppliers
may be added, subsection (4) does not pr event—
(a)the addition of new suppliers to the list, or
(b)the use of suppliers who ar e already included on the list.
Division 6 Injunctions and compensation for contraventions of
enforceable procurement provisions
176D Supreme Court ma y grant injunctions
(1)If a gover nment agency has contravened, is contravening or is pr oposing to
contravene an enfor ceable pr ocurement pr ovision, the Supr eme Court may, on the
application of an affected applicant, grant an injunction r estraining the agency fr om
doing so or r equiring the agency to do any act or thing necessary to avoid or r emedyPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(2)The Supr eme Court may not grant an injunction under this section if the Court is
satisfied that a contract has alr eady been enter ed into for the pr ocurement concer ned.
(3)The Supr eme Court may grant an interim injunction pending deter mination of an
application under this section if the Court thinks it is desirable to do so .
(4)However, the Supr eme Court may not grant an interim injunction if a public inter est
certificate has been issued in r espect of the pr ocurement concer ned unless the Court
is satisfied that it would be in the public inter est to do so .
(5)In deter mining whether to grant an injunction under this section, the Supr eme Court
must consider whether—
(a)the grant of the injunction would r esult in a significant delay to the pr ocurement
concer ned, and
(b)the making of an or der under section 176F for the contravention or pr oposed
contravention would be a mor e appr opriate r emedy in the cir cumstances.
(6)The power of the Supr eme Court to grant an injunction under this section r estraining a
gover nment agency fr om engaging in conduct may be e xercised—
(a)whether or not it appears to the Court that the agency intends to engage again, or
to continue to engage, in conduct of that kind, and
(b)whether or not the agency has pr eviously engaged in conduct of that kind, and
(c)whether or not ther e is an imminent danger of substantial damage to any person if
the agency engages in conduct of that kind.
(7)If the gover nment agency is not a corporation, an injunction under this section may
be addr essed to the gover nment agency head for the agency .
(8)The Supr eme Court may dischar ge or vary an injunction granted under this section.
176E Preconditions for granting injunctions
(1)This section pr ovides for certain pr ocedural pr econditions befor e an injunction may be
granted under section 176D.
(2)An injunction is not to be granted unless the Supr eme Court is satisfied that the
application for the injunction was made—
(a)for a contravention that is alleged to have occur red—within 10 days or any other
period pr escribed by the r egulations af ter the later of the following days—
(i)the day on which the alleged contravention occur red,Public W orks and P rocurement A ct 1912 No 45 [NSW]
Current version for 16 June 2022 to date (accessed 1 November 2023 at 19:33) Page 50 of 60(ii)the day on which the applicant became awar e, or ought r easonably to have
become awar e, of the alleged contravention, or
(b)for a contravention that it is alleged is occur ring—within 10 days or any other
period pr escribed by the r egulations af ter the day on which the applicant became
awar e, or ought r easonably to have become awar e, of the alleged contravention,
or
(c)for an alleged pr oposed contravention—within 10 days or any other period
prescribed by the r egulations af ter the day on which the applicant became awar e,
or ought r easonably to have become awar e, of the alleged pr oposed
contravention, or
(d)within any longer period as may be allowed by the Court.
(3)The Supr eme Court must not allow a longer period under subsection (2)(d) unless the
Court is satisfied that—
(a)the applicant’s failur e to mak e the application within the applicable period
referred to in subsection (2)(a), (b) or (c) is attributable to the applicant’s
reasonable attempt to r esolve the complaint as r eferred to in subsection (4)(b), or
(b)there are special cir cumstances that war rant allowing a longer period.
(4)Also, an injunction is not to be granted unless the Supr eme Court is satisfied that—
(a)the applicant has made a complaint under Division 5 concer ning the conduct of a
gover nment agency for which the injunction is sought, and
(b)if the Court considers that it would have been r easonable for the applicant for the
injunction to have attempted to r esolve the complaint—the applicant has made a
reasonable attempt to r esolve the complaint befor e applying for the injunction.
176F Compensation for contravention
(1)If a gover nment agency has contravened, is contravening or is pr oposing to
contravene an enfor ceable pr ocurement pr ovision, the Supr eme Court may, on the
application of an affected applicant, mak e an or der for the payment of compensation
to the applicant in r espect of the contravention or pr oposed contravention.
(2)The amount of compensation or dered must not e xceed the sum of—
(a)the reasonable pr ocurement pr ocess e xpenditur e incur red by the applicant, and
(b)the reasonable e xpenditur e incur red by the applicant in connection with making a
complaint under Division 5 about the contravention or pr oposed contravention,
and
(c)the reasonable e xpenditur e incur red by the applicant in connection with making aPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(3)Despite subsection (2)—
(a)an amount of compensation cannot include—
(i)expenditur e in connection with making or attempting to r esolve a complaint if
it is incur red af ter the affected applicant ought r easonably to have known that
litigation was lik ely, or
(ii)costs alr eady awar ded by a court or tribunal to the affected applicant in
respect of pr oceedings befor e the court or tribunal, and
(b)costs cannot be awar ded by a court or tribunal to the affected applicant in r espect
of proceedings befor e the court or tribunal af ter an amount of compensation is
ordered if the amount alr eady includes those costs.
(4)If the gover nment agency is not a corporation, the or der may be made against the
State rather than the agency .
(5)In this section—
procurement process expenditure , in relation to a pr ocurement, means—
(a)the e xpenditur e in pr eparing a tender or e xpression of inter est for the
procurement, and
(b)the e xpenditur e in applying for inclusion in a pr ocurement list used for the
procurement, and
(c)the e xpenditur e in tendering for inclusion in a pr ocurement panel used for the
procurement.
176G Public interest certificates
A gover nment agency head may issue a written certificate (a public interest
certificate ) stating that it is not in the public inter est for a specified pr ocurement to be
suspended while—
(a)a complaint made under Division 5 is being investigated, or
(b)an application for an injunction made under section 176D is being consider ed.
176H Rules of court
(1)Rules of court may be made under the Supreme Court Act 1970 or the Civil Procedure
Act 2005 , not inconsistent with this A ct or the r egulations, r egulating practice and
procedur e in r espect of pr oceedings in the Supr eme Court under this Division.
(2)Subsection (1) does not limit the rule-making powers confer red by the Supreme CourtPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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176I Division does not limit remedial powers of Supreme Court
This Division does not limit any power that the Supr eme Court has apart fr om this Division
to provide r emedies for contraventions or pr oposed contraventions of enfor ceable
procurement pr ovisions.
Division 7 General
176J Contravention of enforceable procurement provision does not affect validity of
contract
A contravention of an enfor ceable pr ocurement pr ovision does not affect the validity of
any contract.
177 Delegation of functions by government agencies
A gover nment agency or gover nment agency head may delegate to a member of staff of
the agency any function confer red or imposed on the agency or agency head pursuant
to—
(a)the ter ms and conditions of the agency’s accr editation by the Boar d, or
(b)any Boar d direction or policy, or
(c)any pr ovision of Division 5 or r egulations made for the purposes of section 178(1A)(a).
178 Regulations
(1)The Gover nor may mak e regulations, not inconsistent with this A ct, for or with r espect
to—
(a)the pr ocurement of goods and services by and for gover nment agencies (including
but not limited to e xemptions fr om any of the r equir ements of this P art), and
(b)any other matter that by this P art is r equir ed or per mitted to be pr escribed.
(1A) Without limiting subsection (1), the r egulations may mak e provision for or with
respect to the following—
(a)complaints concer ning the conduct of gover nment agencies in connection with
enfor ceable pr ocurement pr ovisions that apply to them, including by pr oviding
for—
(i)the persons, gr oups of persons or bodies who have standing to mak e
complaints, and
(ii)the kinds of complaints that may be made, andPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(iv)the resolution of complaints (including the suspension of pr ocurements
pending their r esolution),
(b)preconditions for the making or granting of applications under Division 6 that ar e
additional to those specified in the Division.
(1B) A regulation made for the purposes of subsection (1A)(a) may pr ovide for complaints
to be dealt with in a way that is differ ent fr om Division 5 (whether generally or in
relation to particular kinds of complaints).
(2)The r egulations may authorise the Boar d to enter into ar rangements with public
bodies other than gover nment agencies in r elation to the pr ocurement of goods and
services by and for those bodies.
First Schedule
(Section 2)
Reference to Act Title or short title Extent of repeal
No 26, 1900 Public Works Act 1900 The whole
No 58, 1901 Public Works Committee Election Act 1901 The whole
No 5, 1904 Public Works Committee Act 1904 The whole
No 1, 1908 Public Works (Interest) Act 1908 The whole
No 4, 1911 Public Works (Leasing) Act 1911 The whole
Second Schedule
(Section 9(6))
Form of Ballot-P aper
Election of Members of Parliamentary Standing Committee on Public Works
Names of members nominated
(In alphabetical or der of sur names)
Andrews, Charles.
Briggs, Henry .
Carey, Geor ge.
Directions
(1) Each member shall vote by striking out the names of the members whom the member does not wish to be
elected.
(2) The member must leave uncancelled as many names as ther e are members to be elected, and no mor e orPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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(3) After voting, the member must deliver the member’s paper to the Clerk, giving the Clerk time to note every
paper pr eviously pr esented.
Third Schedule
(Section 16)
I, A.B., do solemnly and sincer ely pr omise and declar e that, accor ding to the best of my skill and ability, I will
faithfully, impartially, and truly e xecute the office and perfor m the duties of a member of the P arliamentary
Standing Committee on P ublic W orks.
(Signed ) A.B.
Fourth Schedule
(A)
(Section 22(1))
To the Sheriff of New South W ales, the Sheriff’s deputy and all officers of the P olice F orce of the said
State, and to the k eeper of the gaol at
THESE ar e to command you, the said Sheriff and all officers as afor esaid, to appr ehend A .B. (the offender), and to
convey the offender to the said gaol, and to deliver the offender to the said k eeper ther eof, together with this
warrant; and you, the said k eeper, ar e her eby r equir ed to r eceive the offender into your custody in the said gaol,
and the offender ther e safely to k eep for the ter m of [orunless the sum of shall be sooner
paid], I, the undersigned of the (or ), having now her e adjudged the said A .B.
[to pay a fine of , and in default of immediate payment ther eof] to be imprisoned for the said ter m, for
that the offender, the said A .B.,
[Here state the offence to the following effect, as the case may require ].
That A .B. having been duly summoned as a witness, and having had his or her e xpenses paid or tender ed,
neglected to appear befor e the P arliamentary Standing Committee on P ublic W orks, (or) that A .B., wilfully insulted
the said committee, (or) C.D., one of the members of the said committee, (or) that A .B. inter rupted the
proceedings of the said committee, (or) that A .B., misbehaved befor e the said committee, (or) that A .B. having
been summoned or being e xamined as a witness in a certain inquiry or matter pending befor e the said committee,
refused to be swor n or to pr oduce a certain document mentioned in the summons served on the offender, viz.,
, (or) that A .B. having been so summoned, r efused to be swor n or to mak e a solemn declaration
pursuant to the Public Works Act 1912 (or) that A .B. was guilty of pr evarication in his or her evidence, or r efused
to answer a certain lawful question.
Given under my hand this day of .
C.D.,Chair ( orDeputy Chair) of the P arliamentary Standing Committee on P ublic W orks.
(B)
(Section 22(2))
Form of warrant
In the matter of the Public Works Act 1912 and
To the Sheriff of New South W ales, the Sheriff’s deputy and assistants, and to all officers of the P olice F orce of the
said State.
WHEREAS, pursuant to the pr ovisions of section twenty -two of the said A ct, it has this day been pr oved to me thatPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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Standing Committee on P ublic W orks pursuant to the Public Works Act 1912 , but has failed to appear .
This is to r equir e you forthwith to appr ehend the said , and to detain the said in custody
and bring the said befor e the said committee to give evidence.
Given under my hand and seal at aforesaid, this day of in the year of our
Lord one thousand nine hundr ed and
A.B.,Chair ( orDeputy Chair) of the said Committee.
Fifth Schedule Members and procedure of NSW Procurement Board
(Section 165)
1Deputy Chairperson
(1)The Minister may appoint a member of the Boar d to act as Deputy Chairperson during
the illness or absence of the Chairperson, and may r evoke any such appointment.
(2)In the absence of the Chairperson, the Deputy Chairperson may, if available, act in
the place of the Chairperson.
(3)While acting in the place of the Chairperson, the Deputy Chairperson has all the
functions of the Chairperson.
2Deputies of members
(1)The Minister may, fr om time to time, appoint a person, or the holder of a specified
office, to be the deputy of a member of the Boar d, and may r evoke any such
appointment.
(2)In the absence of a member, the member’s deputy may, if available, act in the place
of the member .
(3)While acting in the place of a member, a person has all the functions of the member
and is tak en to be a member .
3Disclosure of pecuniary interests
(1)If—
(a)a member has a dir ect or indir ect pecuniary inter est in a matter being consider ed
or about to be consider ed at a meeting of the Boar d, and
(b)the inter est appears to raise a conflict with the pr oper perfor mance of the
member’s duties in r elation to the consideration of the matter,
the member must, as soon as possible af ter the r elevant facts have come to the
member’s knowledge, disclose the natur e of the inter est at a meeting of the Boar d.
(2)A disclosur e by a member at a meeting of the Boar d that the member—Public W orks and P rocurement A ct 1912 No 45 [NSW]
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(b)is a partner, or is in the employment, of a specified person, or
(c)has some other specified inter est relating to a specified company or other body or
to a specified person,
is a sufficient disclosur e of the natur e of the inter est in any matter r elating to that
company or other body or to that person which may arise af ter the date of the
disclosur e and which is r equir ed to be disclosed under subclause (1).
(3)Particulars of any disclosur e made under this clause must be r ecorded by the Boar d
and the r ecords must be available at all r easonable hours for inspection by any person
on payment of the fee deter mined by the Boar d.
(4)After a member has disclosed the natur e of an inter est in any matter, the member
must not, unless the Minister or the Boar d otherwise deter mines—
(a)be pr esent during any deliberation of the Boar d with r espect to the matter, or
(b)take part in any decision of the Boar d with r espect to the matter .
(5)For the purposes of the making of a deter mination by the Boar d under subclause (4),
a member who has a dir ect or indir ect pecuniary inter est in a matter to which the
disclosur e relates must not—
(a)be pr esent during any deliberation of the Boar d for the purpose of making the
deter mination, or
(b)take part in the making by the Boar d of the deter mination.
(6)A contravention of this clause does not invalidate any decision of the Boar d.
(7)For the purposes of this clause, a member is tak en to have a pecuniary inter est in a
matter if the gover nment agency to which the member belongs has such an inter est.
(8)This clause applies to a member of a subcommittee of the Boar d and the
subcommittee in the same way as it applies to a member of the Boar d and the Boar d.
4Personal liability
A matter or thing done or omitted to be done by the Boar d, a member of the Boar d, or a
person acting under the dir ection of the Boar d does not, if the matter or thing was done or
omitted to be done in good faith for the purpose of e xecuting this or any other A ct, subject
a member or a person so acting personally to any action, liability, claim or demand.
5General procedure
The pr ocedur e for the calling of meetings of the Boar d and for the conduct of business atPublic W orks and P rocurement A ct 1912 No 45 [NSW]
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6Quorum
The quorum for a meeting of the Boar d is a majority of its members for the time being.
7Presiding member
(1)The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson, or in
the absence of both the Chairperson and the Deputy Chairperson, a person elected by
the members of the Boar d who ar e present at a meeting of the Boar d) is to pr eside at
a meeting of the Boar d.
(2)The pr esiding member has a deliberative vote and, in the event of an equality of
votes, has a second or casting vote.
8Voting
A decision supported by a majority of the votes cast at a meeting of the Boar d at which a
quorum is pr esent is the decision of the Boar d.
9Transaction of business outside meetings or by telephone
(1)The Boar d may, if it thinks fit, transact any of its business by the cir culation of papers
among all the members of the Boar d for the time being, and a r esolution in writing
approved in writing by a majority of those members is tak en to be a decision of the
Board.
(2)The Boar d may, if it thinks fit, transact any of its business at a meeting at which
members (or some members) participate by telephone, closed-cir cuit television or
other means, but only if any member who speaks on a matter befor e the meeting can
be hear d by the other members.
(3)For the purposes of—
(a)the appr oval of a r esolution under subclause (1), or
(b)a meeting held in accor dance with subclause (2),
the Chairperson and each member have the same voting rights as they have at an
ordinary meeting of the Boar d.
(4)A resolution appr oved under subclause (1) is, subject to the r egulations, to be
recorded in the minutes of the meetings of the Boar d.
(5)Papers may be cir culated among the members for the purposes of subclause (1) by
facsimile or other transmission of the infor mation in the papers concer ned.Public W orks and P rocurement A ct 1912 No 45 [NSW]
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The Minister may call the first meeting of the Boar d in such manner as the Minister thinks
fit.
11Authentication of documents
Any document r equiring authentication by the Boar d may be sufficiently authenticated if it
is signed by the Chairperson or by any gover nment agency employee authorised to do so
by the Chairperson.
Sixth Schedule–Eighth Schedule (Repealed)
Ninth Schedule Savings, transitional and other provisions
(Section 5A)
Public W orks (Interest) Amendment Act 1986
1Previous interest rate under section 126A
The inter est payable under section 126A(1) in r espect of any period befor e the
commencement of the Public Works (Interest) Amendment Act 1986 is payable
at the rate at which it would have been payable had that A ct not been enacted.
2Interest rate pending T reasurer ’s notification
Until a notification is published under section 126A(5) on or af ter the
commencement of the Public Works (Interest) Amendment Act 1986 , the
interest rate payable under section 126A(1) on and fr om that commencement
is—
(a)wher e the total amount of compensation is less than $50,000—12 per cent
per annum, or
(b)wher e the total amount of compensation is $50,000 or mor e—12.5 per cent
per annum.
Effect of repeal of certain Acts
3Repeal of Acts does not affect operation of savings and transitional
provisions
(1)Despite the r epeal of the A cts listed in Column 1 of the T able to this
subclause, the pr ovisions listed in Column 2 continue to have effect and ar e
taken to have been transfer red to this A ct.
TablePublic W orks and P rocurement A ct 1912 No 45 [NSW]
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Broken Hill W ater and Sewerage
(Radium Hill) Amendment Act 1954Sections 3–8 and Schedule
Warwick Farm Railway (Amendment)
Act 1924Sections 2 and 3 and the Schedule
(2)The pr ovisions listed in Column 2 of the T able to subclause (1) ar e
transfer red pr ovisions to which section 30A of the Interpretation Act 1987
applies.
Transferred provisions—Railwa ys
4Maintenance of roads and bridges
The pr ovisions listed in the following T able ar e tak en to have been transfer red
to this A ct and to be transfer red pr ovisions to which section 30A of the
Interpretation Act 1987 applies.
Table
Column 1 Column 2
Great Northern Railway Deviation (Singleton to Nundah) Act
1951Section 6
Newcastle Islands Development Scheme Railway Act 1966 Section 7
Port K embla Inner Harbour (F urther Construction) Act 1961 Section 8
Railway Construction (East Hills to Campbelltown) Act 1983 Section 10
Sutherland to Cronulla Railway Act 1936 Section 6
Whittingham to Mount Thorley Railway Act 1975 Section 10Public W orks and P rocurement A ct 1912 No 45 [NSW]
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