Project Development and Construction Management (Amendment) Act 2000

i Project Development and Construction Management (Amendment) Act 2000 Act No. 72/2000 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Amendment of purposes 2 5. Amendment of definitions 2 6. Application of Principal Act 3 7. Amendments of references to the Secretary to the Department of Infrastructure 3 8. Amendments of references to Secretary 4 9. New Part 5A inserted 4 PART 5A—THE SECRETARY TO THE DEPARTMENT OF STATE AND REGIONAL DEVELOPMENT 4 41A. The Secretary to the Department of State and Regional Development is a body corporate 4 41B. Functions of the Secretary to the Department of State and Regional Development 5 41C. Powers of the Secretary to the Department of State and Regional Development 5 41D. Secretary to the Department of State and Regional Development is subject to Ministerial control 7 41E. Department Head's powers are not affected 7 41F. Delegation 7 10. Powers of Registrar of Titles 7 11. Transitional reference to Secretary amended 7 12. Transfer of designated projects 8 PART 8—TRANSFER OF DESIGNATED PROJECTS 8 60. Definitions 8 61. Ministers may designate project 10 62. Ministers may fix relevant date 10 63. Secretaries to prepare allocation statement or statements 10 64. Certificate of Secretary to the Department of Infrastructure 12 65. Effect of transfer on nomination order 13 -- 1 of 21 -- Section Page ii 66. Property transferred to Secretary to the Department of State and Regional Development 13 67. Allocation of property etc. subject to encumbrances 14 68. Substitution of party to agreement 14 69. Secretary to the Department of Infrastructure instruments 15 70. Proceedings 15 71. Interests in land 16 72. Action by Registrar of Titles 16 73. Taxes 16 74. Evidence 17 75. Validity of things done under this Part 17 ═══════════════ ENDNOTES 19 -- 2 of 21 -- 1 Project Development and Construction Management (Amendment) Act 2000† [Assented to 21 November 2000] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Project Development and Construction Management Act 1994 to establish the Secretary to the Department of State and Regional Development as a body corporate, to provide for its powers and functions and the transfer of certain matters to it. Victoria No. 72 of 2000 -- 3 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 2 2. Commencement This Act comes into operation on 1 January 2001. 3. Principal Act In this Act, the Project Development and Construction Management Act 1994 is called the Principal Act. 4. Amendment of purposes In section 1 of the Principal Act, after paragraph (d) insert— "(da) to establish the Secretary to the Department of State and Regional Development as a body corporate; (db) to provide for the transfer of certain matters from the Secretary to the Department of Infrastructure to the Secretary to the Department of State and Regional Development;". 5. Amendment of definitions (1) In section 3(1) of the Principal Act— (a) for the definition of "Secretary" substitute— ' "Secretary to the Department of Infrastructure" means the body corporate constituted under section 35; "Secretary to the Department of State and Regional Development" means the s. 2 See: Act No. 101/1994. Reprint No. 2 as at 12 March 1998 and amending Act Nos 109/1997, 46/1998 and 85/1998. LawToday: www.dms. dpc.vic. gov.au -- 4 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 3 body corporate constituted under section 41A;'; (b) the definition of "the Department" is repealed. (2) In section 3(2) of the Principal Act— (a) after "the Department" (where first and secondly occurring) insert "of Infrastructure or the Department of State and Regional Development"; (b) for "the Department" (where last occurring) substitute "the relevant Department". 6. Application of Principal Act In section 5(4) of the Principal Act, after "Part 5" insert "or Part 5A". 7. Amendments of references to the Secretary to the Department of Infrastructure (1) In the heading to Part 5 of the Principal Act, after "THE SECRETARY" insert "TO THE DEPARTMENT OF INFRASTRUCTURE". (2) In section 35(1) of the Principal Act— (a) after "the Department" (where secondly occurring) insert "of Infrastructure"; (b) in paragraph (b), for "a common" substitute "an official". (3) In section 35 of the Principal Act, for sub-sections (2) and (3) substitute— "(2) The official seal of the Secretary to the Department of Infrastructure must be kept as directed by the Secretary and must not be used except as authorised by the Secretary. (3) All courts must take judicial notice of the official seal of the Secretary to the s. 6 -- 5 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 4 Department of Infrastructure on a document and, until the contrary is proved, must presume that the seal was properly affixed.". 8. Amendments of references to Secretary (1) In sections 37, 38, 39 and 40 of the Principal Act, after "Secretary" (wherever occurring) insert "to the Department of Infrastructure". (2) In section 41 of the Principal Act— (a) after "Secretary" (where twice occurring) insert "to the Department of Infrastructure"; (b) after "Department" insert "of Infrastructure". 9. New Part 5A inserted At the end of Part 5 of the Principal Act, insert— "PART 5A—THE SECRETARY TO THE DEPARTMENT OF STATE AND REGIONAL DEVELOPMENT 41A. The Secretary to the Department of State and Regional Development is a body corporate (1) The person who is for the time being the Department Head (within the meaning of the Public Sector Management and Employment Act 1998) of the Department of State and Regional Development and the successors in office of that person are a body corporate under the name "Secretary to the Department of State and Regional Development" which, by that name— (a) has perpetual succession; (b) has an official seal; (c) may sue and be sued; s. 8 -- 6 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 5 (d) may acquire, hold and dispose of real and personal property; (e) may do and suffer all things that a body corporate may, by law, do and suffer. (2) The official seal of the Secretary to the Department of State and Regional Development must be kept as directed by the Secretary and must not be used except as authorised by the Secretary. (3) All courts must take judicial notice of the official seal of the Secretary to the Department of State and Regional Development on a document and, until the contrary is proved, must presume that the seal was properly affixed. 41B. Functions of the Secretary to the Department of State and Regional Development (1) The Secretary to the Department of State and Regional Development has the following functions— (a) by agreement, to facilitate and manage public construction for departments and public bodies; (b) by agreement, to facilitate and manage construction for other persons or bodies; (c) any functions conferred on the Secretary under Part 3. (2) The Secretary to the Department of State and Regional Development may perform its functions within or outside Victoria. 41C. Powers of the Secretary to the Department of State and Regional Development s. 9 -- 7 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 6 (1) The Secretary to the Department of State and Regional Development has all the powers necessary to perform its functions under section 41B(1)(a) and (b). (2) In addition to the powers referred to in sub- section (1), the Secretary to the Department of State and Regional Development has any powers conferred under Part 3 to perform the functions conferred on the Secretary under that Part. (3) Without limiting sub-section (1), the Secretary to the Department of State and Regional Development, in the performance of its functions under section 41B(1)(a) and (b), may— (a) enter into any agreements or arrangements with any person or body; (b) enter into any agreements or arrangements for the provision by the Secretary to the Department of State and Regional Development of administration, management or information systems or services; (c) do all things necessary or convenient to be done to give effect to the agreements and arrangements referred to in paragraphs (a) and (b); (d) with the approval of the Treasurer, form, participate in the formation of or be a member of a body corporate, association, partnership, trust or other body and enter into a joint venture with any other person. s. 9 -- 8 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 7 (4) The Secretary to the Department of State and Regional Development may exercise its powers within or outside Victoria. 41D. Secretary to the Department of State and Regional Development is subject to Ministerial control In the exercise of powers and functions the Secretary to the Department of State and Regional Development is subject to the direction and control of the Minister. 41E. Department Head's powers are not affected The powers and functions of the person who for the time being constitutes the Secretary to the Department of State and Regional Development are in addition to, and do not affect, that person's powers and functions as a Department Head under the Public Sector Management and Employment Act 1998. 41F. Delegation The Secretary to the Department of State and Regional Development may delegate in writing to any employee or class of employees of the Department of State and Regional Development any of the powers conferred on the Secretary to the Department of State and Regional Development under this Part or the regulations other than this power of delegation.". 10. Powers of Registrar of Titles In section 45(3) of the Principal Act, after "Part 7" insert "or Part 8". 11. Transitional reference to Secretary amended s. 10 s. 11 -- 9 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 8 In section 47(1) of the Principal Act, insert the following definition— ' "Secretary" means the Secretary to the Department of Infrastructure as constituted under section 35;'. 12. Transfer of designated projects At the end of Part 7 of the Principal Act insert— 'PART 8—TRANSFER OF DESIGNATED PROJECTS 60. Definitions In this Part— "allocation statement" means an allocation statement made under section 63; "designated project" means a nominated project designated by the relevant Ministers under section 61; "former Secretary of Infrastructure property" means property, rights or liabilities of the Secretary to the Department of Infrastructure that, under this Part, have vested in or become liabilities of the Secretary to the Department of State and Regional Development; "instrument" includes a document and an oral agreement; "liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective; "property" means any legal or equitable estate or interest (whether present or -- 10 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 9 future and whether vested or contingent) in real or personal property of any description; "relevant date", in relation to an allocation statement or property, rights or liabilities allocated under an allocation statement, means the date fixed by the relevant Ministers under section 62 for the purposes of that statement; "relevant Ministers" means the Ministers administering this Act and the Minister administering the Docklands Authority Act 1991; "rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective; "Secretary to the Department of Infrastructure instrument" means an instrument (including a legislative instrument other than this Act) subsisting immediately before the relevant date— (a) to which the Secretary to the Department of Infrastructure was a party; or (b) that was given to or in favour of the Secretary to the Department of Infrastructure; or (c) that refers to the Secretary to the Department of Infrastructure; or (d) under which— s. 12 -- 11 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 10 (i) money is, or may become, payable to or by the Secretary to the Department of Infrastructure; or (ii) other property is to be, or may become liable to be, transferred to or by the Secretary to the Department of Infrastructure. 61. Ministers may designate project The relevant Ministers, by instrument, may designate any nominated project for which the Secretary to the Department of Infrastructure is the facilitating agency as a designated project for the purposes of this Part. 62. Ministers may fix relevant date The relevant Ministers, by notice published in the Government Gazette, may fix the relevant date for the purposes of an allocation statement under section 63. 63. Secretaries to prepare allocation statement or statements (1) The Secretary to the Department of Infrastructure and the Secretary to the Department of State and Regional Development must give to the relevant Ministers and the Treasurer within the period of 3 months after 1 January 2001, or such longer period as is approved by the relevant Ministers and the Treasurer, a statement or statements approved by the Treasurer and the relevant Ministers relating to the property, rights and liabilities of the Secretary to the s. 12 -- 12 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 11 Department of Infrastructure in relation to a designated project as at the relevant date. (2) A statement under this section in relation to a designated project— (a) must allocate to the Secretary to the Department of State and Regional Development all the property, rights and liabilities of the Secretary to the Department of Infrastructure which relate to the project; and (b) must be signed by the Secretary to the Department of Infrastructure and the Secretary to the Department of State and Regional Development. (3) If a statement under this section is approved by the Treasurer and the relevant Ministers— (a) the Treasurer and the relevant Ministers must sign the statement; and (b) the statement is an allocation statement for the purposes of this Part. (4) The Treasurer and the relevant Ministers may at any time direct the Secretary to the Department of Infrastructure and the Secretary to the Department of State and Regional Development to amend a statement given to them under this section as specified in the direction. (5) An allocation statement under this section may be amended by writing signed by the Treasurer and the relevant Ministers. (6) In this section, "statement" and "allocation statement" include a statement or allocation statement amended in accordance with this section. s. 12 -- 13 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 12 64. Certificate of Secretary to the Department of Infrastructure (1) A certificate signed by the Secretary to the Department of Infrastructure certifying that property, rights or liabilities of the Secretary to the Department of Infrastructure specified in the certificate have been allocated under an allocation statement to the Secretary to the Department of State and Regional Development is, unless revoked under sub- section (2), conclusive evidence— (a) that the property, rights or liabilities have been so allocated; and (b) that the property, rights or liabilities vested in or became the property, rights or liabilities of the Secretary to the Department of State and Regional Development on the relevant date. (2) If the Treasurer and the relevant Ministers so direct the Secretary to the Department of Infrastructure in writing, the Secretary to the Department of Infrastructure must revoke a certificate given under sub-section (1) by issuing another certificate or certificates in place of the first certificate. (3) The Secretary to the Department of Infrastructure— (a) must keep a register of certificates issued under this section; and (b) must make the register reasonably available for inspection by the Secretary to the Department of State and Regional Development or any other interested person. s. 12 -- 14 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 13 65. Effect of transfer on nomination order On and after the relevant date— (a) in any nomination order in force as at that relevant date relating to the designated project, a reference to the Secretary to the Department of Infrastructure as the facilitating agency for that project must be construed as a reference to the Secretary to the Department of State and Regional Development as the facilitating agency for that project; and (b) the Secretary to the Department of State and Regional Development is deemed to be the facilitating agency for that project; and (c) unless revoked, amended or varied in accordance with this Act, any other provision of the nomination order and any application order in force as at the relevant date relating to that project continue to apply to that project. 66. Property transferred to Secretary to the Department of State and Regional Development On the relevant date— (a) all property and rights of the Secretary to the Department of Infrastructure that are allocated under an allocation statement to the Secretary to the Department of State and Regional Development vest in the Secretary to the Department of State and Regional Development; and s. 12 -- 15 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 14 (b) all liabilities of the Secretary to the Department of Infrastructure that are allocated under an allocation statement to the Secretary to the Department of State and Regional Development become liabilities of the Secretary to the Department of State and Regional Development. 67. Allocation of property etc. subject to encumbrances Unless an allocation statement otherwise provides, if, under this Part, property and rights vest in the Secretary to the Department of State and Regional Development or liabilities become liabilities of the Secretary to the Department of State and Regional Development— (a) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and (b) the rights to which the Secretary to the Department of Infrastructure was entitled in respect of those liabilities immediately before they ceased to be liabilities of that Secretary vest in the Secretary to the Department of State and Regional Development. 68. Substitution of party to agreement If, under an allocation statement, the rights and liabilities of the Secretary to the Department of Infrastructure under an agreement are allocated to the Secretary to the Department of State and Regional Development— s. 12 -- 16 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 15 (a) the Secretary to the Department of State and Regional Development becomes, on the relevant date, a party to the agreement in place of the Secretary to the Department of Infrastructure; and (b) on and after the relevant date, the agreement has effect as if the Secretary to the Department of State and Regional Development had always been a party to the agreement. 69. Secretary to the Department of Infrastructure instruments Each Secretary to the Department of Infrastructure instrument relating to former Secretary to the Department of Infrastructure property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to the Secretary to the Department of Infrastructure were a reference to the Secretary to the Department of State and Regional Development. 70. Proceedings If, immediately before the relevant date, proceedings relating to former Secretary to the Department of Infrastructure property (including arbitration proceedings) to which the Secretary to the Department of Infrastructure was a party were pending or existing in any court or tribunal, then, on and after that date, the Secretary to the Department of State and Regional Development is substituted for the Secretary to the Department of Infrastructure as a party to the proceedings and has the same rights in the proceedings as the Secretary to the Department of Infrastructure had. s. 12 -- 17 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 16 71. Interests in land Without affecting the generality of this Part and despite anything to the contrary in any other Act or law, if, immediately before the relevant date, the Secretary to the Department of Infrastructure is, in relation to former Secretary to the Department of Infrastructure property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date— (a) the Secretary to the Department of State and Regional Development is deemed to be the registered proprietor of that interest in land; and (b) the Secretary to the Department of State and Regional Development has the same rights and remedies in respect of that interest as the Secretary to the Department of Infrastructure had. 72. Action by Registrar of Titles On being requested to do so and on delivery of any relevant instrument or document, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of this Part. 73. Taxes No stamp duty or other tax is chargeable under any Act in respect of anything done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of this Part, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of s. 12 -- 18 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 17 property, rights or liabilities of the Secretary to the Department of Infrastructure. 74. Evidence (1) Documentary or other evidence that would have been admissible for or against the interests of the Secretary to the Department of Infrastructure in relation to former Secretary to the Department of Infrastructure property if this Part had not been enacted, is admissible for or against the interests of the Secretary to the Department of State and Regional Development. (2) Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of the Secretary to the Department of Infrastructure and to entries made in those books of account before the relevant date, whether or not they relate to former Secretary to the Department of Infrastructure property. (3) In sub-section (2), "books of account" has the same meaning as in Division 3A of Part III of the Evidence Act 1958. 75. Validity of things done under this Part (1) Nothing effected by this Part or done or suffered by the Secretary to the Department of Infrastructure, the State, a Minister or the Secretary to the Department of State and Regional Development under this Part— (a) is to be regarded as placing the Secretary to the Department of Infrastructure, the State, a Minister or the Secretary to the Department of State and Regional Development in breach of contract or confidence or as otherwise s. 12 -- 19 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 18 making any of them guilty of a civil wrong; or (b) is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or (c) is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or (d) releases any surety or other obligee wholly or in part from any obligation. (2) The validity of any act or transaction of the Secretary to the Department of Infrastructure must not be called in question in any proceedings on the ground that any provision of this Part had not been complied with.'. ═══════════════ s. 12 -- 20 of 21 -- Act No. 72/2000 Project Development and Construction Management (Amendment) Act 2000 19 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 August 2000 Legislative Council: 26 October 2000 The long title for the Bill for this Act was "to amend the Project Development and Construction Management Act 1994 to establish the Secretary to the Department of State and Regional Development as a body corporate, to provide for its powers and functions and the transfer of certain matters to it and for other purposes." Endnotes -- 21 of 21 --