Two significant developments in procurement in 2018 will have huge impacts for the procurement space this year.
Last year, we saw the enactment of both Commonwealth and NSW state modern slavery legislation in Australia, reflecting a growing awareness for the need to address modern slavery both domestically and internationally.
The Modern Slavery Act 2018 (Cth) (the Modern Slavery Act) passed both houses of parliament late last year and was assented to on 10 December 2018. The key operative provisions of the Modern Slavery Act will commence on a date to be fixed by proclamation (yet to be stated) or six months from the assent date if no proclamation date is fixed earlier.
The Modern Slavery Act will require entities in Australia that have an annual consolidated revenue of more than $100 million to report annually on the risks of modern slavery in their operations and supply chains, and describe their actions to address those risks.
NSW also introduced similar legislation in June 2018 to combat this issue, although there are some interesting differences between the two regimes which we expect to see further fleshed out this year.
The other significant change in procurement in 2018 which will have significant impacts this year is the passing of the Government Procurement (Judicial Review) Act 2018 (Cth) (Government Procurement Act) which will provide suppliers with a statutory platform to challenge a government procurement process in the Federal Court of Australia or Federal Circuit Court of Australia for a breach of the Commonwealth Procurement Rules. Similar to the Modern Slavery Act, the Government Procurement Act will commence on a date to be fixed by proclamation (yet to be stated) or six months from the assent date (19 October 2018) if no proclamation date is fixed earlier.
This is the first time in Australia that tenderers will have a statutory avenue to challenge government procurement; no longer having to rely on existing remedies for breach of process contract, misleading and deceptive conduct or judicial review under administrative law.
As well as these significant legislative changes there is also increased pressure on business and government to conduct procurement using sustainable processes, especially since the world’s first International Standard for sustainable procurement - ISO 20400 - was published in late 2017.
Looking forward in 2019, both public and private organisations must now be more acutely aware of the consequences of choices they make regarding what to buy, how to buy it and who to buy it from.