Sussan Ley (Farrer, Liberal Party, Assistant Minister for Regional Development and Territories) Share this | Hansard source

Firstly, I'd like to thank those members who have contributed to this debate on the Government Procurement (Judicial Review) Bill 2017. The bill implements recommendation 11 of the July 2014 report of the Senate Finance and Public Administration References Committee into Commonwealth procurement procedures that the Department of Finance establish an independent and effective complaints mechanism for procurement processes.

The bill ensures that regional suppliers and small and medium enterprises have timely access to justice to raise complaints about procurement processes. The bill also complies with international trade obligations to maintain an impartial and independent body where suppliers can raise complaints about government procurement processes and be awarded remedies and compensations. It will give Australia the opportunity to access the government procurement benefits of the World Trade Organization Agreement on Government Procurement and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, TPP-11.

By designating the Federal Circuit Court with concurrent jurisdiction with the Federal Court, the courts can decide which is the most appropriate court to deal with the matter. This will allow complaints to be heard in a timely manner. The bill specifies a 10-day time frame for suppliers to make an application to the courts to encourage timely efforts to resolve any concerns about a procurement process. However, the bill also provides a flexibility for the courts to allow a longer period for applications if there are genuine reasons for the delay. The courts may order remedies to preserve a supplier's opportunity to participate in the procurement, but will not be able to overturn awarded contracts. Where a procurement cannot be delayed, the courts will be able to order compensation limited to the costs or damages which occurred in the preparation of the tender or in bringing the complaint or both.

Before a complaint reaches the court, the supplier must first complain to the Commonwealth entity responsible for conducting the procurement. The entity will investigate and attempt to resolve the complaint with the supplier. Suppliers must provide evidence of their complaint, including attempting to resolve the complaint with the procuring entity in the first instance. Regional suppliers and small and medium enterprises will now have timely access to justice to raise complaints about procurement processes and seek remedies. The Federal Circuit Court is the only court at the federal level with a continuous presence outside major capital cities. Suppliers in rural and regional Australia will have easier access to have their complaints heard without the need to attend major cities.

I will briefly correct some errors made by speakers during the second reading debate. First, I note that the WTO Agreement on Government Procurement is already publicly available. It has, in fact, been in the public domain since 2014 on the WTO website. We're not negotiating a new text. Indeed, 47 countries are already members. If some members have not seen the agreement, it is because they haven't looked. Second, in relation to value-for-money assessments under the Commonwealth Procurement Rules, the procuring official must consider relevant financial and non-financial costs, which include whole-of-life costs. I also note that, in 2017, the Procurement Rules were changed to take into account economic benefit of a tender to the Australian economy.

The government does not support the second reading amendment proposed by the opposition criticising the level of opportunity for participation by Australian business in the Commonwealth procurement. I inform the House that Australian suppliers are already well represented in government procurement, with over 95 per cent, by number, of contracts being awarded to suppliers in Australia in 2016-17. As much as $40.8 billion of the $47.3 billion contracts were with suppliers operating from an Australian address. The government also does not support the amendment proposed by Mr Bandt, the member for Melbourne. There is an important advantage to Australia being an early entrant to the TPP.

Once again, I thank all members for their contributions. I commend the bill to the House, and I table an addendum to the explanatory memorandum.

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