Schedule 5—Public Works Act exemption
Schedule 5 of the Family Assistance and Other legislation Amendment Bill
2011 proposes to amend the Aboriginal Land Rights (Northern Territory) Act
1976 to stipulate that the Public Works Committee Act 1969 (PWC Act)
does not apply to Aboriginal Land Trusts.
The substance of this proposed amendment is to remove the requirement
for works carried out by Aboriginal Land Trusts to be subject to the scrutiny
of the Public Works Committee (the PWC).
The Aboriginal Land Rights (Northern Territory) Act 1976 provides
for the granting of traditional Aboriginal land in the Northern Territory for
the benefit of Aboriginal people. The Aboriginal Land Rights (Northern
Territory) Act 1976 was the first legislation to provide the basis for
Aboriginal people in the Northern Territory to claim rights to Crown land based
on traditional occupation and association with land.
The Aboriginal Land Rights (Northern Territory) Act 1976
establishes Aboriginal Land Trusts to hold title to land in the Northern
Territory for the benefit of Aboriginal people entitled by Aboriginal tradition
to use or occupy the land concerned. Land trusts hold communal title for land
granted to them as inalienable Aboriginal freehold, meaning that the land
cannot be bought, acquired or forfeited.
The PWC Act provides for the establishment of a joint Parliamentary
Standing Committee on Public Works (the PWC) to scrutinise expenditure on
capital works undertaken by or for the Commonwealth, utilising Commonwealth
The PWC is one of the oldest investigative Committees of the Parliament
and is one of very few avenues for the Parliament to scrutinise capital works
expenditure proposed by the Executive. It plays an important role in the
scrutiny and accountability of Commonwealth agencies and embodies the
fundamental right of the Parliament to scrutinise the appropriations of the
There are very few grounds for exemption from the PWC Act. For
individual projects these are:
- defence purposes
where scrutiny would be contrary to the public interest; and
- the work is of a
The PWC Act sets out that a request for exemption must be justified to
the Finance Minister, the PWC, the Governor-General and/or the House of Representatives
prior to approval.
Similarly, there are very few circumstances under which an authority may
be given blanket exemption from PWC scrutiny. The PWC Act provides that this
may only be approved by the Governor-General where she is satisfied that the authority
‘is engaging in trading or other activities, or is providing services, in
competition with another body or other bodies, or with persons’.
An exemption on these grounds must be justified to the House of
Representatives, where it sits as a disallowable instrument for 15 sitting
For those authorities, such as Australia Post, which are granted
exemption from the PWC, this has been enshrined in the PWC Act itself or in its
regulations, rather than in legislation relating to another authority.
The PWC has consistently noted in its annual reports to the Parliament,
concerns about exemption provisions being inappropriately utilised by agencies
to avoid scrutiny.
The Explanatory Memorandum to the amendment notes that section 5AA of
the PWC Act will still apply to works undertaken by or for the Commonwealth.
Section 5AA sets out the meaning of a public work.
The Committee understands that, currently, capital works for Aboriginal Land
Trusts are undertaken by the Department of Families, Housing, Community
Services and Indigenous Affairs (FaHCSIA) and therefore section 5AA of the PWC
Indeed, under Part IIb of the Aboriginal Land Rights (Northern
Territory) Act 1976, it appears that the Commonwealth holds statutory rights
over Commonwealth funded buildings and infrastructure on Aboriginal lands
unless transferred to the another body. It is clear in this circumstance that
the PWC Act applies.
If this amendment is passed, it is unclear what scrutiny and
accountability processes will be put in place for the administration and
expenditure of these funds if the PWC requirement is removed. Regardless of
which authority administers the funding, FaHCSIA or Aboriginal Land Trusts, it
is important that proper processes of scrutiny and accountability are in place.
The PWC should not be regarded as an impediment to capital works, but
rather the opportunity to ensure expenditure is value for money, and that the
resulting work is apt and fit for purpose.
The Committee recommends that the exemption of the Aboriginal
Land Rights (Northern Territory) Act 1976 from the Public Works
Committee Act 1969 be passed by the House of Representatives without
General comments—Bills referral
The Committee takes this opportunity to make some general comments about
the reforms introduced in the 43rd Parliament which have enabled the
Selection Committee to refer bills to a House of Representatives committee for
an advisory report.
The Social Policy and Legal Affairs Committee states from the outset its
strong support for bill referrals to committees and its desire to engage in a
number of bill inquiries through the course of the parliament.
As at May 2011, a total of 15 bills were referred to four different
House of Representatives committees. Since the beginning of the 43rd
Parliament, some 25 bills have been referred. Of those tabled to date, the
average inquiry length is nearly 27 days.
The Committee appreciates the urgency of the House in considering some
bills; however, timeframes must also balance the need for careful investigation
when a bill has been referred to a committee for inquiry and report. In this
instance, due to the omnibus nature of the bill referred, the Committee has
only been able to highlight issues of concern which it considers require
clarification, rather than conduct its own detailed investigation into these
In addition, with the increase in the number of bill referrals to House
committees, there are obviously instances when Senate committees will be tasked
to conduct inquiries into the same bill. The Committee considers this an
important element in the independence of both Houses. However it also considers
that the work of House and Senate committees should inform consecutive debate
and scrutiny, rather than concurrent inquiries placing additional demands on
These issues have been noted by other committees in their advisory
reports to the House. In addition, the previous
bill referred to this Committee for inquiry was already the subject of a
lengthy and intensive inquiry by a Senate committee.
The Committee expresses it reservations that the bill referral process
as it currently operates can undermine the capacity of committees to fulfil
their independent and investigative functions. The Committee makes these
comments as general observations to the House in order to promote a dialogue on
the processes and value of parliamentary committees.
Graham Perrett MP