Government Procurement (Judicial Review) Bill 2017 [2017] AUSStaCSBSD 167 (14 June 2017)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to designate the Federal Circuit Court with jurisdiction to receive and review local and international supplier complaints in relation to a breach of the Commonwealth Procurement Rules
Portfolio	Finance
Introduced	House of Representatives on 25 May 2017
Scrutiny principles	Standing Order 24(1)(a)(iii) and (iv)

Broad instrument-making power^[54]

1.72 The bill seeks to establish an independent complaints mechanism for procurement processes. The bill would enable the Federal Court or Federal Circuit Court to grant an injunction in relation to a contravention of the relevant Commonwealth Procurement Rules (CPRs), so far as those rules relate to a 'covered procurement'. Clause 5 of the bill sets out the definition of a covered procurement. It defines a procurement as a covered procurement if the relevant CPRs apply to the procurement and the procurement is not in a class of procurements specified in a determination. Subclause (2) empowers the Minister to make, by legislative instrument, a determination that additional procurements may be exempted from the definition of a covered procurement. The clause does not specify any criteria by which such a determination is to be made.

1.73 The explanatory memorandum states that this ensures that 'additional procurements may be exempted from the CPRs if there are such provisions in Australia’s free trade agreements'.^[55] However, subclause 5(2) does not, by its terms, appear to be limited to determinations reflecting this purpose.

1.74 The committee requests the Minister's advice as to why it is necessary to provide a broad power for the Minister to make a determination exempting classes of procurements from the definition of a 'covered procurement' and whether it is appropriate for the bill to be amended to ensure that additional procurements could only be exempted from the definition if there are such provisions in Australia's free trade agreements (if this is the intention of the provision).

Review rights^[56]

1.75 Subclause 23(1) of the bill provides that a contravention of the Commonwealth Procurement Rules (CPRs) does not affect the validity of a contract, and subclause 23(2) provides that it is immaterial whether the contravention occurred before, at or after the commencement of this Act. The explanatory memorandum merely restates the terms of the provision without providing any explanation of the purpose or effect of the provision.^[57]

1.76 It is unclear whether or not this provision might work to extinguish rights that an affected person might otherwise have to challenge the validity of a contract in circumstances where the CPRs are contravened.

1.77 Clause 14 of the bill provides that the powers conferred on the courts under the bill are in addition to, and not instead of, any other powers. However, the relationship between clauses 14 and 23 is not explained in the explanatory materials.

1.78 The committee requests the Minister's advice as to whether clause 23 could operate to extinguish existing legal rights relating to impugning the validity of a contract by way of proceedings not brought under this legislation, or whether the provision is intended to operate only in relation to proceedings brought under this bill.

[54] Subclause 5(2). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[56] Clause 23. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests