Division Description Changes — Bills — Government Procurement (Judicial Review) Bill 2017; Second Reading — 17th Oct 2018

Change	Division
senate vote 2018-10-17#16 Edited by mackay staff on 2023-06-09 08:44:14	Title Bills — Government Procurement (Judicial Review) Bill 2017; Second Reading Government Procurement (Judicial Review) Bill 2017 - Second Reading - Agree with the bill's main idea Description ~~<p class="speaker">Glenn Sterle</p>~~ <p>Labor will support this bill. On its own, this bill would be relatively non-controversial. It implements a more accessible judicial review process to allow suppliers to challenge procurement decisions. This bill will provide suppliers with a more timely, effective, transparent and non-discriminatory review process when it comes to breaches of the Commonwealth Procurement Rules, also known as CPRs. The bill allows suppliers to ask the Federal Circuit Court to review their case instead of the Federal Court. This is likely to be cheaper, faster and more readily available in regional areas. This bill is expected to benefit Australian businesses, but the government is failing to maximise the opportunities of our $50 billion a year procurement program.</p> The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2018-10-17.279.1) to agree with the main idea of the bill. In parliamentary jargon, they voted to read the bill for a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/). ### Bill's main idea According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1819a/19bd026): *> The Government Procurement (Judicial Review) Bill 2017 (the Bill) proposes to fill a gap in the current arrangements in administrative law relating to Commonwealth procurement, and to address obligations under relevant free trade agreements, by creating new rules for making and investigating complaints in relation to the contravention of relevant** Commonwealth Procurement Rules (CPRs).* > > Specifically, the Bill: > *> provides domestic and foreign tenders/suppliers with a statutory basis to challenge an actual or apprehended Commonwealth procurement decision for a contravention of relevant parts of* the CPRs by providing the Federal Court, and the Federal Circuit Court (the Courts) the power to deal with particular procurement disputes (relating to ‘covered procurements’), and grant injunctions or order compensation to aggrieved suppliers for a breach of the relevant CPRs* > > * makes it mandatory for the aggrieved supplier at first instance, to refer the complaint for investigation by the accountable authority for the relevant Commonwealth entity, before the supplier can bring a complaint before the Courts and > *> requires* the accountable authority to suspend the procurement while the complaint is being investigated, unless the secretary of that authority has issued a ‘public interest certificate’ for that procurement.* <p>We do, however, believe that more can be done to ensure that the test is maximised and that we are supporting, most importantly, Australian jobs. We also need to fix transparency around procurement decisions and processes. We need to make sure that Australians know exactly how much money is being spent on external contractors and consultants. Labor will ensure that government spending and procurement data is collected on a central database, including contract reporting and consultancy spending, and will require agencies to keep records of subcontractors used. Future governments won't be able to hide what this government has hidden. The government should ensure that the WTO's agreement on government procurement does not further constrain the Commonwealth's ability to support Australian businesses, and that is why we will support this bill.</p> ~~<p class="italic"> <i>(Quorum formed)</i></p>~~ ~~<p class="speaker">Rex Patrick</p>~~ <p>I rise to make a brief contribution to the Government Procurement (Judicial Review) Bill 2017. I note that in the Senate Finance and Public Administration Legislation Committee's report on this bill Labor made some additional comments outlining come concerns. The additional comments included:</p> <p class="italic">Labor Senators are concerned that it is premature to legislate a dispute resolution arrangement to meet international obligations in the GPA prior to negotiations on the agreement being finalised. Delaying consideration of this bill would ensure Parliament has the opportunity to consider the agreement in full.</p> ~~<p>They went on to say:</p>~~ <p class="italic">The Joint Standing Committee on Government Procurement report <i>Buying into our Future</i> also expressed concerns that this bill should not be progressed until the GPA negotiations are finalised.</p> <p>I note that Australia's accession agreement to the World Trade Organization government procurement agreement has recently been finalised but not formally accepted by WTO members. This bill is being debated and will likely pass today because of the related TPP legislation, but the provisions of this bill will also apply to the WTO accession. This means that the bill will have passed before anyone from parliament has seen Australia's commitment in the WTO procurement agreement. It is critical that the parliament be able to scrutinise Australia's accession agreement before voting on this bill, but yet again we are being let down by the Labor Party on an important issue of transparency.</p> <p>In line with my comments on the two customs bills that have just passed the Senate, Centre Alliance opposes this bill primarily on the basis that it needs to be passed in order for the TPP to come into force. This is because the appeal mechanisms for procurement processes currently in place are insufficient to meet the requirements of the TPP. I have circulated amendments that delay the commencement of this bill, as well as an alternative amendment to sunset the bill, because Centre Alliance believes that the issues relating to ISDS clauses and labour market testing should be fixed before, not after. It is unlikely the Labor Party has had a change of heart overnight, but I look forward to moving these amendments during the committee stage.</p> ~~<p class="speaker">Anne Ruston</p>~~ <p>I would like to thank those senators who have contributed to this debate on the Government Procurement (Judicial Review) Bill 2017. The bill implements recommendation 11 of the July 2014 Senate Finance and Public Administration References Committee report into the Commonwealth procurement procedures for the Department of Finance to establish an independent and effective complaints mechanism for procurement processes.</p> <p>The government does not support the amendments moved by Senator Patrick and the Greens. The proposed amendments are effectively an attempt to have Australia renegotiate its TPP-11 obligations to remove the investor-state dispute settlement and labour market testing commitments, using legislation associated with ratifying the TPP-11 as leverage to achieve this. The proposed amendments would risk the clear benefits that the proposed complaints mechanism is aiming to achieve for suppliers to the Australian government. The amendments would also potentially impact on a range of other international agreements, including by undermining Australia's bid to accede to the World Trade Organization government procurement agreement, which will provide Australian businesses with reciprocal access to overseas government procurement markets worth US$1.7 trillion. I thank all senators for their contributions and commend the bill to the Senate.</p> ~~<p class="speaker">Malarndirri McCarthy</p>~~ ~~<p>The question is that the bill be read a second time.</p>~~

~~Glenn Sterle~~
Labor will support this bill. On its own, this bill would be relatively non-controversial. It implements a more accessible judicial review process to allow suppliers to challenge procurement decisions. This bill will provide suppliers with a more timely, effective, transparent and non-discriminatory review process when it comes to breaches of the Commonwealth Procurement Rules, also known as CPRs. The bill allows suppliers to ask the Federal Circuit Court to review their case instead of the Federal Court. This is likely to be cheaper, faster and more readily available in regional areas. This bill is expected to benefit Australian businesses, but the government is failing to maximise the opportunities of our $50 billion a year procurement program.
The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2018-10-17.279.1) to agree with the main idea of the bill. In parliamentary jargon, they voted to read the bill for a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/).
### Bill's main idea
According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1819a/19bd026):
> *The Government Procurement (Judicial Review) Bill 2017 (the Bill) proposes to fill a gap in the current arrangements in administrative law relating to Commonwealth procurement, and to address obligations under relevant free trade agreements, by creating new rules for making and investigating complaints in relation to the contravention of relevant Commonwealth Procurement Rules (CPRs).*
>
> *Specifically, the Bill:*
>
> * *provides domestic and foreign tenders/suppliers with a statutory basis to challenge an actual or apprehended Commonwealth procurement decision for a contravention of relevant parts of the CPRs by providing the Federal Court, and the Federal Circuit Court (the Courts) the power to deal with particular procurement disputes (relating to ‘covered procurements’), and grant injunctions or order compensation to aggrieved suppliers for a breach of the relevant CPRs*
>
> * *makes it mandatory for the aggrieved supplier at first instance, to refer the complaint for investigation by the accountable authority for the relevant Commonwealth entity, before the supplier can bring a complaint before the Courts and*
>
> * *requires the accountable authority to suspend the procurement while the complaint is being investigated, unless the secretary of that authority has issued a ‘public interest certificate’ for that procurement.*
We do, however, believe that more can be done to ensure that the test is maximised and that we are supporting, most importantly, Australian jobs. We also need to fix transparency around procurement decisions and processes. We need to make sure that Australians know exactly how much money is being spent on external contractors and consultants. Labor will ensure that government spending and procurement data is collected on a central database, including contract reporting and consultancy spending, and will require agencies to keep records of subcontractors used. Future governments won't be able to hide what this government has hidden. The government should ensure that the WTO's agreement on government procurement does not further constrain the Commonwealth's ability to support Australian businesses, and that is why we will support this bill.
~~ (Quorum formed)~~
~~Rex Patrick~~
I rise to make a brief contribution to the Government Procurement (Judicial Review) Bill 2017. I note that in the Senate Finance and Public Administration Legislation Committee's report on this bill Labor made some additional comments outlining come concerns. The additional comments included:
Labor Senators are concerned that it is premature to legislate a dispute resolution arrangement to meet international obligations in the GPA prior to negotiations on the agreement being finalised. Delaying consideration of this bill would ensure Parliament has the opportunity to consider the agreement in full.
~~They went on to say:~~
The Joint Standing Committee on Government Procurement report Buying into our Future also expressed concerns that this bill should not be progressed until the GPA negotiations are finalised.
I note that Australia's accession agreement to the World Trade Organization government procurement agreement has recently been finalised but not formally accepted by WTO members. This bill is being debated and will likely pass today because of the related TPP legislation, but the provisions of this bill will also apply to the WTO accession. This means that the bill will have passed before anyone from parliament has seen Australia's commitment in the WTO procurement agreement. It is critical that the parliament be able to scrutinise Australia's accession agreement before voting on this bill, but yet again we are being let down by the Labor Party on an important issue of transparency.
In line with my comments on the two customs bills that have just passed the Senate, Centre Alliance opposes this bill primarily on the basis that it needs to be passed in order for the TPP to come into force. This is because the appeal mechanisms for procurement processes currently in place are insufficient to meet the requirements of the TPP. I have circulated amendments that delay the commencement of this bill, as well as an alternative amendment to sunset the bill, because Centre Alliance believes that the issues relating to ISDS clauses and labour market testing should be fixed before, not after. It is unlikely the Labor Party has had a change of heart overnight, but I look forward to moving these amendments during the committee stage.
~~Anne Ruston~~
I would like to thank those senators who have contributed to this debate on the Government Procurement (Judicial Review) Bill 2017. The bill implements recommendation 11 of the July 2014 Senate Finance and Public Administration References Committee report into the Commonwealth procurement procedures for the Department of Finance to establish an independent and effective complaints mechanism for procurement processes.
The government does not support the amendments moved by Senator Patrick and the Greens. The proposed amendments are effectively an attempt to have Australia renegotiate its TPP-11 obligations to remove the investor-state dispute settlement and labour market testing commitments, using legislation associated with ratifying the TPP-11 as leverage to achieve this. The proposed amendments would risk the clear benefits that the proposed complaints mechanism is aiming to achieve for suppliers to the Australian government. The amendments would also potentially impact on a range of other international agreements, including by undermining Australia's bid to accede to the World Trade Organization government procurement agreement, which will provide Australian businesses with reciprocal access to overseas government procurement markets worth US$1.7 trillion. I thank all senators for their contributions and commend the bill to the Senate.
~~Malarndirri McCarthy~~
~~The question is that the bill be read a second time.~~