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Thursday, 20 September 2018
Page: 6988

Senator CASH (Western AustraliaMinister for Small and Family Business, Skills and Vocational Education) (16:29): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Government Procurement (Judicial Review) Bill will implement recommendation 11 of the July 2014 Senate Finance and Public Administration References Committee's report into Commonwealth procurement procedures, for the Department of Finance to establish an independent and effective complaints mechanism for procurement processes.

The Bill is consistent with obligations in the World Trade Organisation Agreement on Government Procurement, to which Australia has submitted a bid to accede, and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), which was signed on 8 March 2018.

These obligations require Australia to maintain an impartial and independent body to review and provide remedies for government procurement complaints.

The text of these obligations, and the broader agreements, are publically available for the consideration of Senators.

Beyond meeting international obligations, the Bill will also ensure that regional suppliers and small and medium enterprises have timely access to justice to raise complaints about procurement processes and seek remedies.

The Bill designates the Federal Circuit Court (FCC) with jurisdiction (concurrently with the Federal Court of Australia) to receive and review local and international supplier complaints in relation to a breach of the Commonwealth Procurement Rules (CPRs).

The Bill requires the supplier to first complain to the Commonwealth entity responsible for conducting the procurement. The entity must investigate the complaint and, if the supplier is not satisfied with the outcome of the procuring entity's investigation, they can seek remedies from the FCC, including compensation.

Compensation will be limited to the reasonable costs for the preparation of the tender, or the costs relating to the challenge, or both.

The FCC, with its streamlined processes, will provide an accessible way to lodge complaints, particularly for regional suppliers as it maintains a continuous presence outside major capital cities. Suppliers from rural and regional Australia will not need to travel to major cities to lodge a complaint.

The Bill is not intended to fully prescribe the procedures by which the FCC hears procurement complaints, but rather address three key areas where the FCC will need different jurisdiction and procedures than its current functions.

I will briefly outline the key elements of the Bill:


The Bill will confer jurisdiction on the FCC to hear government procurement complaints where a supplier considers that the CPRs have been breached.

Suppliers must provide evidence of their complaint, including that they have attempted to resolve the complaint with the procuring entity in the first instance.

Timely, Transparent and Effective Review Procedures

The Bill will ensure that the FCC can facilitate timely, transparent and effective review of complaints. Timeliness is an important feature for current procurements, where there still may be an opportunity for the supplier to continue to participate.

The Bill specifies a 10-day timeframe for suppliers to make an application to the FCC to encourage timely efforts to resolve any concerns about a procurement process.

However, the Bill also provides flexibility for the FCC to allow a longer period for applications if there are genuine reasons for the delay.

Remedies and Corrective Action

The Bill will preserve a supplier's ability to participate in procurements by offering remedies and/or compensation if the FCC finds that the CPRs have been breached. Any compensation ordered would be limited to the supplier's reasonable costs incurred in preparing the tender and/or seeking to resolve their complaint. The FCC will not be able to overturn awarded contracts.

The decision to vest jurisdiction in the FCC was informed by extensive consultation between the Department of Finance and the Attorney-General's Department. This included a scoping study, which considered three options for a body to hear supplier complaints. The study considered vesting a federal court with jurisdiction, designating an existing administrative entity and establishing a new tribunal, and concluded that the FCC was the most efficient and accessible mechanism to administer this function.

This Bill shows the Government's commitment to transparent and competitive procurement by giving suppliers the opportunity to seek remedies and improve Commonwealth procurement practices.

I commend the Bill to the Senate.

Debate adjourned.