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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Industry Advocate Bill 2017
A BILL FOR
An Act to provide for the appointment of the Industry Advocate and to
provide for the powers and functions of the Industry Advocate.
Contents
8Terms
and conditions of appointment
9Deputy and Acting Industry
Advocate
13Power to require information and
documents
17Application of Freedom of Information
Act 1991
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Industry Advocate
Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
Deputy means the Deputy Industry Advocate appointed under
this Act;
government contract means a contract entered into for any of
the following purposes:
(a) procurement operations of a public authority;
(b) projects undertaken as public/private partnerships;
(c) infrastructure and construction projects funded, wholly or partly, by
the Commonwealth government but managed, wholly or partly, by the State
government;
(d) projects receiving State government funding or assistance;
government expenditure means expenditure by or on behalf of a
public authority;
Industry Advocate means the person holding or acting in the
office of the Industry Advocate under this Act;
participants, in relation to a contract, means the parties to
the contract and any subcontractors or suppliers engaged for the purposes of the
contract;
prescribed public authority means a person or body that has
been declared by the regulations to be a prescribed public authority for the
purposes of this Act;
procurement operations of an authority means—
(a) the procurement of goods or services required by the authority for its
operations, including (without limitation) the procurement of—
(i) a supply of electricity, gas or any other form of energy; or
(ii) intellectual property; or
(b) the management of goods of the authority, including (without
limitation) the care, custody, storage, inspection, stocktaking or distribution
of goods of the authority; or
(c) the management of the authority's contracts for services; or
(d) the disposal of goods surplus to the authority's
requirements,
but does not include operations excluded from this definition by the
regulations;
public authority means—
(a) an administrative unit or other agency or instrumentality of the
Crown; or
(b) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established or subject to control or direction by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown (whether or
not established by or under an Act or an enactment); or
(c) a person or body declared by the regulations to be a public authority
for the purposes of this Act,
but does not include a prescribed public authority;
SAIPP means the South Australian Industry Participation
Policy established under
section 4
.
(1) The Minister must establish and maintain a policy relating to industry
participation in government contracts of a class, or classes, determined by the
Minister and specified in the policy (the South Australian Industry
Participation Policy).
(2) The Minister must, in establishing and maintaining the SAIPP, seek to
promote—
(a) government expenditure that results in economic development for South
Australia; and
(b) value for money for public expenditure; and
(c) the economic development of the steel industry and other strategically
important industries for South Australia; and
(d) capable businesses based in South Australia being given full, fair and
reasonable opportunity to tender and participate in government
contracts.
(3) The SAIPP may operate by reference to, or incorporate, any
guidelines.
(4) The SAIPP and any guidelines referred to in the SAIPP—
(a) must be available for inspection, free of charge, during ordinary
business hours at a place or places determined by the Minister; and
(b) must be published on a website determined by the Minister.
(1) There will be an Industry Advocate.
(2) The Industry Advocate will be appointed by the Governor and is an
agency of the Crown.
The functions of the Industry Advocate are—
(a) to take action to further the objectives of the SAIPP (including,
without limitation, by building the capability and capacity of businesses based
in South Australia to participate in government contracts);
(b) to receive and investigate complaints by and on behalf of business and
their industry representatives about the SAIPP;
(c) to make recommendations (taking into account requirements under any
other law) to responsible officers for procurement and principal officers of
public authorities to resolve complaints, remove impediments or improve
procurement practices and processes;
(d) to refer unresolved complaints and issues to the Minister for
consideration;
(e) to review, and assist in the negotiations for, Industry Participation
Plans to ensure they comply with the SAIPP prior to the finalisation of contract
conditions;
(f) to investigate and monitor compliance with the SAIPP by participants
in government contracts;
(g) to take action to promote and ensure compliance with the SAIPP,
including by issuing directions to participants in government contracts
requiring them to comply with their contractual obligations in respect of the
SAIPP and reporting to the Minister in relation to non-compliance where
appropriate;
(h) to encourage the adoption of industry participation policies by local
government;
(i) to investigate and monitor compliance with local government industry
participation policies by participants in contracts to which such policies
apply;
(j) to take any other action considered necessary for the purpose of
exercising the functions conferred on the Industry Advocate;
(k) to exercise other functions conferred on the Industry Advocate by the
Minister or under this or any other Act.
(1) Subject to this section, the Minister may give directions to the
Industry Advocate.
(2) The Minister—
(a) may not give a direction in relation to a particular investigation
being carried out by the Industry Advocate; and
(b) must consult with the Industry Advocate before giving a
direction.
(3) A Ministerial direction to the Industry Advocate—
(a) must be communicated to the Industry Advocate in writing;
and
(b) must be included in the annual report of the Industry Advocate under
this Act.
8—Terms
and conditions of appointment
(1) The Industry Advocate will be appointed for a term not exceeding
5 years and on conditions determined by the Governor and, at the end of a
term of appointment, will be eligible for reappointment.
(2) The appointment of the Industry Advocate may be terminated by the
Governor on the ground that the Industry Advocate—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment;
or
(c) has become bankrupt or has applied to take the benefit of a law for
the relief of insolvent debtors; or
(d) has been disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth;
or
(e) has, because of mental or physical incapacity, failed to carry out
duties of the position satisfactorily; or
(f) is incompetent or has neglected the duties of the position.
(3) The appointment of the Industry Advocate is terminated if the Industry
Advocate—
(a) becomes a member, or a candidate for election as a member, of the
Parliament of a State or the Commonwealth or a Legislative Assembly of a
Territory of the Commonwealth; or
(b) is sentenced to imprisonment for an offence.
(4) The Industry Advocate may resign by notice in writing to the Minister
of not less than 3 months (or such shorter period as is accepted by the
Minister).
9—Deputy
and Acting Industry Advocate
(1) The Minister may appoint a person (who may be a Public Service
employee) to be the Deputy Industry Advocate.
(2) The Deputy may—
(a) act as the Industry Advocate during any period for
which—
(i) no person is for the time being appointed as the Industry Advocate;
or
(ii) the Industry Advocate is absent from, or unable to discharge,
official duties; and
(b) when not so acting, perform functions or exercise powers of the
Industry Advocate by delegation from the Industry Advocate.
(3) The Minister may appoint a person (who may be a Public Service
employee) to act as the Industry Advocate during any period for
which—
(a) no person is for the time being appointed as the Industry Advocate or
the Industry Advocate is absent from, or unable to discharge, official duties;
and
(b) no person is for the time being appointed as the Deputy or the Deputy
is absent from, or unable to discharge, official duties.
(4) The terms and conditions of appointment of the Deputy or other person
appointed to act as the Industry Advocate will be determined by the
Minister.
The Industry Advocate, the Deputy and any other person appointed to act as
the Industry Advocate are senior officials for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
(1) The Industry Advocate's staff consists of—
(a) Public Service employees assigned to assist the Industry Advocate;
and
(b) persons employed by the Industry Advocate, with the consent of the
Minister and on terms and conditions determined by the Minister, to assist the
Industry Advocate.
(2) The Industry Advocate may, under an arrangement established by the
Minister administering an administrative unit of the Public Service, make use of
the services or staff of that administrative unit.
(1) The Industry Advocate may delegate to a person (including a person for
the time being performing particular duties or holding or acting in a particular
position) a function or power under this or any other Act (except a prescribed
function or power).
(2) The Minister may delegate to a person (including a person for the time
being performing particular duties or holding or acting in a particular
position) a function or power under this Act.
(3) A function or power may only be delegated to a person who is not a
Public Service employee with the consent of the Minister.
(4) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter;
and
(d) is revocable at will.
(5) A delegated function or power may, if the instrument of delegation so
provides, be further delegated in accordance with that instrument.
13—Power
to require information and documents
(1) The Industry Advocate may, by written notice served personally or by
post, require a participant in a contract to give the Industry Advocate, within
a reasonable time specified in the notice, information or documents in the
participant's possession that the Industry Advocate requires for the performance
of the Industry Advocate's functions under this Act.
(2) A participant required to give information or documents to the
Industry Advocate under this section must provide the information or documents
within the time stated in the notice.
Maximum penalty: $20 000.
(3) A participant cannot be compelled to give information or a document
under this section if the information or document is privileged on the ground of
legal professional privilege.
(4) A natural person cannot be compelled to give information or a document
under this section if the information or document might tend to incriminate the
person of an offence.
(5) If a participant gives the Industry Advocate a document in compliance
with a requirement under this section, the Industry Advocate may retain the
document for so long as is necessary to make a copy of the document, or to
otherwise inspect the document, and the document must then be returned to the
participant.
(6) In this section—
participant in a contract includes a former participant in a
current or former contract.
(1) If the Industry Advocate reasonably believes that a participant in a
government contract is not complying with their contractual obligations in
respect of the SAIPP, the Industry Advocate may, by notice in writing, direct
the participant to comply with those obligations.
(2) If, following
receipt of a notice under this section, the participant is of the opinion that,
in the circumstances, failure to comply with the obligations is reasonable and
justifiable, the participant may provide a response to the Industry Advocate
outlining their opinion and the reasons for it.
(3) The Industry Advocate must, before reporting to the Minister on a
failure to comply with a direction under this section (in accordance with
section 15
), give the participant a reasonable opportunity to provide a response
under
subsection (2)
or to comply with the direction.
The Industry Advocate—
(a) may report to the Minister in relation to any current or former
government contract or other matter relevant to the functions of the Industry
Advocate; and
(b) must report to the Minister in relation to any failure to comply with
a direction under
section 14
(unless the Industry Advocate is satisfied that the failure to comply with
the obligations was reasonable and justifiable).
(1) A person must not divulge or communicate personal information,
information relating to trade secrets or business processes or financial
information acquired by reason of being, or having been, employed or engaged in,
or in connection with, the administration of this Act, except—
(a) with the consent of the person to whom the information relates;
or
(b) as authorised by the Industry Advocate or the person's employer;
or
(c) in connection with the administration of this Act; or
(d) to a police officer or a member of the police force of another State,
a Territory of the Commonwealth or the Commonwealth; or
(e) to a person concerned in the administration of another law of the
State, or a law of another State, a Territory of the Commonwealth or the
Commonwealth, relating to trade or commercial practices or the protection of
consumers; or
(f) for the purposes of legal proceedings.
Maximum penalty: $20 000.
(2) Information that has been disclosed under this section for a
particular purpose must not be used for any other purpose by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $20 000.
17—Application
of Freedom of Information
Act 1991
The Industry Advocate is an exempt agency for the purposes of the
Freedom
of Information Act 1991
in respect of information other than—
(a) financial and administrative information relating to the operations of
the Industry Advocate; and
(b) statistical information that does not identify any particular person
or business.
The Governor may make such regulations as are contemplated by this Act or
as are necessary or expedient for the purposes of this Act.