Authorising provisions (Direction 11)

Direction 11 explains the authority to issue Directions, Instructions, Guidance and Standards for public construction, describes when the Directions start operation, and explains the order of precedence between the Directions and other policies.

 

Effective date: 1 July 2018

11.1 Authority

11.1.1 Issuing of these Directions

These Directions are issued by the Minister responsible for Part 4 of the Project Development and Construction Management Act 1994 (Vic), under section 30 of that Act.

11.1.2 Effectiveness

These Directions are effective from 1 July 2018. They supersede the following directions issued under the Project Development and Construction Management Act 1994 (Vic), which are repealed and replaced from 1 July 2018:

(a) Ministerial Direction No 1 – Tendering provisions for public construction, version 4, effective 1 December 2016 (and the associated Guide to Ministerial Direction No 1 – Tendering provisions for public construction, issued by the Secretary);

(b) Ministerial Direction No 2 – Contractual provisions for public construction, version 2, effective 1 December 2016 (and the associated Guide to Ministerial Direction No 2 – Contractual provisions for public construction, issued by the Secretary); and

(c) Ministerial Direction No 4 – Construction requirements for a community fire refuge, issue 2, effective 1 October 2015.

11.1.3 Issuance of the Instructions

(a) The Secretary has issued Instructions setting out further requirements relating to matters addressed in these Directions.

(b) Pursuant to section 32(e) of the Project Development and Construction Management Act 1994 (Vic), these Directions wholly incorporate the Instructions.

(c) To avoid doubt, in order to comply with these Directions, Agencies must also comply with the Instructions.

11.1.4 Issuance of the Guidance

The Department of Treasury and Finance may issue non-mandatory guidance from time to time to promote consistent understanding of the requirements of these Directions and the Instructions.

11.1.5 Issuance of Standards

(a) The Secretary may issue Standards from time to time.

(b) To avoid doubt, in order to comply with the Directions, Agencies must also comply with the Standards (where relevant).

11.1.6 Discretionary authority, duties and approvals

Pursuant to section 32(e) of the Project Development and Construction Management Act 1994 (Vic):

(a) the Secretary or a person authorised in writing by the Secretary:

(i) may exercise a discretionary authority under these Directions where a discretion is provided for expressly or by necessary implication;

(ii) must perform a duty under these Directions where a duty is imposed expressly or by necessary implication;

(iii) may grant approval under these Directions where a matter is subject to approval expressly or by necessary implication; and

(b) the Secretary or a person authorised in writing by the Secretary may exercise a discretionary authority or grant an approval under the Instructions as appropriate and as consistent with these Directions.

11.2 Order of precedence

To the extent that the requirements of any of these Directions is inconsistent with:

(a) any International Agreement, or another Act or statutory rule relating to public construction, including the Public Administration Act 2004 (Vic), the Financial Management Act 1994 (Vic), or the Financial Management Act Standing Directions 2016, the requirements of these Directions must, where possible, be interpreted to resolve such inconsistency. If it is not possible to resolve the inconsistency, then such International Agreement, or other Act or statutory rule shall prevail;

(b) a Victorian Government Purchasing Board Supply Policy, these Directions shall prevail to the extent of any inconsistency;

(c) the Victorian Alliancing Policy, such policy shall prevail over these Directions to the extent of any inconsistency, provided that the Agency complies with the Victorian Alliancing Policy, including obtaining all necessary approvals; and

(d) the Partnerships Victoria Requirements, such policy shall prevail over these Directions to the extent of any inconsistency, provided that the Agency complies with the Partnerships Victoria Requirements, including obtaining all necessary approvals.

Tools resources and assistance

The Practitioners Toolkit includes key documents, guidance and information relating to the Ministerial Directions and Instructions.

For further information about the Ministerial Directions and Instruction for public construction procurement, please contact the Construction Policy Team.

Reviewed 02/07/2018
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