Code for the Tendering and Performance of Building Work 2016 [F2016L01859]-Further response required [2017] AUSStaCSDLM 85 (22 March 2017)

• Further response required

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Further response required

The committee requests further explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Correspondence relating to these matters is included at Appendix 2.

Instrument	Code for the Tendering and Performance of Building Work 2016 [F2016L01859]
Purpose	Sets the Australian Government’s standards of conduct for all building contractors or building industry participants that seek to be, or are, involved in Commonwealth funded building work
Last day to disallow	9 May 2017
Authorising legislation	Building and Construction Industry (Improving Productivity) Act 2016
Department	Employment
Scrutiny principle	Standing Order 23(3)(c)
Previously reported in	Delegated legislation monitor 1 of 2017

Availability of merits review

The committee commented as follows:

Scrutiny principle 23(3)(c) of the committee’s terms of reference requires the committee to ensure that instruments do not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal.

With reference to the above, the committee notes that section 18 of the Code for the Tendering and Performance of Building Work 2016 [F2016L01859] (the code) provides for the imposition of exclusion sanctions on an entity that is covered by the code. Exclusion sanction is defined in subsection 3(3) as a period during which a building entity covered by the code is not permitted to tender for, or be awarded, Commonwealth funded building work.

If the ABC Commissioner (the commissioner) is satisfied that a code covered entity has failed to comply with the code, the commissioner may refer the matter to the minister with recommendations that a sanction should be imposed. If such a matter has been referred to the minister, the minister may impose an exclusion sanction on the entity, or issue a formal warning to the entity that a further failure may result in the imposition of an exclusion sanction.

While section 19 of the code requires the minister to provide written notification of their intention to impose an exclusion sanction, and provides for the entity to make a submission in relation to the proposed sanction, it does not appear that the minister's decision to impose an exclusion sanction is subject to merits review.

The ES to the code does not provide information as to whether the decision to impose an exclusion sanction possesses characteristics that would justify the exclusion of such decisions from merits review.

The committee requests the advice of the minister in relation to the above.

Minister's response

The Minister for Employment advised:

Section 19 of the Code protects the integrity of the decision-making process in relation to exclusion sanctions by outlining a number of steps that must be taken before a decision to issue an exclusion sanction
is made. It provides that written notice must be given to the code covered entity detailing the alleged breach of the Code and inviting the entity
to make a submission in relation to the matter within 21 days.
If a submission is made, that submission must be considered before a decision to impose an exclusion sanction is made.
I note that a decision to impose an exclusion sanction would be amenable to judicial review under the Administrative Decisions (Judicial Review)
Act 1977, which is an appropriate review mechanism for these decisions.

Committee's response

The committee thanks the minister for her response.

The committee notes the minister's advice that written notice must be given to the code covered entity detailing the alleged breach of the code and inviting the entity

to make a submission in relation to the matter within 21 days, and that any submission made must then be considered before a decision to impose an exclusion sanction is made.

The committee also notes the minister's advice that a decision to impose an exclusion sanction would be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

However, the minister's response does not provide a justification for excluding merits review of decisions to impose exclusion sanctions on entities that are covered by the code.

The committee draws the minister's attention to the Attorney-General's Department, Administrative Review Council's publication, What decisions should be subject to merit review? as providing useful guidance for justifying the exclusion of merits review.^[1]

The committee requests the further advice of the minister in relation to the above.

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^[1] Attorney-General's Department, Administrative Review Council, What decisions should be subject to merit review? (1999), http://www.arc.ag.gov.au/Publications/Reports/Pages/ Downloads/Whatdecisionsshouldbesubjecttomeritreview1999.aspx (accessed 2 March 2017).