Procurement: Latest issues and developments

Procurement issues have been at the top of the agenda in NSW – and Australia-wide - in recent times with new legislation proposed, and then delayed, and much ongoing debate and discussion.

We take a look at two key recent developments in this area.

NSW modern slavery laws - delayed

It has been announced that the introduction of the Modern Slavery Act 2018 (NSW) is to be delayed - or the Act repealed - following a parliamentary debate held last month.

This is due to a number of fundamental issues with the Act including:

  • legislative defects (for example, the Act failing to contain the necessary provisions to capture Local Government despite the intention of the Act to apply to local government in the same way as state government)
  • State and Commonwealth inconsistencies potentially leading to constitutional issues and challenges under section 109.

The Act, expected to have commenced on 1 July, has now been referred to the Standing Committee on Social Issues.

Read more in our recent report here.

Changes to local government procurement

The Local Government Amendment Bill 2019 was introduced in the Legislative Assembly on 4 June 2019, passing with amendments on 19 June 2019. The Bill amends the Local Government Act 1993 (NSW) with respect to tendering requirements, rates, election planning, mutual recognition of approvals and other regulatory matters.

The key changes to local government procurement under the Bill are:

  • increasing the financial threshold of a contract that requires a council to undertake a tender process from $150,000 to $250,000 (the $150,000 threshold continues to apply to a contract for the provision of services where those services are being provided by employees of the council at the time the contract is entered into)
  • an additional exemption for the requirement to tender for a contract with a disability employment organisation approved for the particular goods and services concerned under the Public Works and Procurement Act 1912 (NSW).

In the media

Review of Supreme and District Courts to consider 'limiting jury use' A review aimed at reducing delays in criminal proceedings in the NSW Supreme and District Courts will consider "limiting jury use" in some cases (04 July 2019). More...

Chief Judge review to reduce court delays The Chief Judge of the District Court, the Honourable Justice Derek Price AM ,will carry out a review of case management and jury processes to reduce delays in criminal proceeding sin the District and Supreme Courts. The Department of Communities and Justice will assist the Chief Judge with his review of possible reforms in case management and jury processes (03 July 2019). More...

Evidence Law Reform Attorney General Mark Speakman today advocated for historic reforms nationally to enable greater admissibility of tendency and coincidence evidence in child sexual assault proceedings. Judges would be required to exclude tendency or coincidence evidence about a defendant if its probative value does not outweigh the danger of unfair prejudice to the defendant (28 June 2019). More...

In practice and courts

HCA Bulletins High Court of Australia Bulletin [2019] HCAB 5 (24 June 2019)

AHRC: Commission calls for public submissions The AHRC has released an issues paper for ‘Free and Equal’: An Australian conversation on human rights and has called for public submissions. Submissions are open until 12 July 2019. See the issues paper here. More...

JUDCOM: Criminal Trial Courts Bench Book — Preliminaries (Update 61) A new section on Sexual assault communications privilege has been added at [1-895]ff. The section considers which communications are protected; applications for leave; disclosing and allowing access to protected confidences and the power to make ancillary orders associated with disclosure (27 June 2019). More...

Update: Uniform Evidence Law Reform 2019 The proposed reforms to the Uniform Evidence Law would implement the Royal Commission’s objective of facilitating greater admissibility of tendency and coincidence evidence in child sexual assault proceedings. The Australasian Parliamentary Counsel’s Committee will now draft a model bill for CAG’s consideration later this year. More...

Costs Disputes - Amendment of the Legal Profession Uniform General Rules 2015 On 1 July 2019 the Legal Profession Uniform General Amendment (Indexation) Rule 2019 will commence. It adds rule 111A to the Legal Profession Uniform General Rules 2015. More...

Review of the Civil and Administrative Tribunal Act 2013 The Department of Justice is conducting a review of the Civil and Administrative Tribunal Act 2013 (NSW) to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. Submissions to the review close on 10 July 2019. More...

NSW LRC: Open Justice Review - Court and tribunal information: access, disclosure and publication The Attorney General has asked us to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals. More...

Cases

Masson v Parsons [2019] HCA 21Appeal allowed. Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction. Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures.

Ngo v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 103 ADMINISTRATIVE REVIEW – Home Building – Supervisor certificate – Where respondent refused to grant applicant supervisor certificate - Whether applicant had experience which would enable him to do, or to supervise, the work for which the certificate is required – Whether the Tribunal should depart from a policy known as the “Instrument” – Whether application of the policy would produce an unjust decision – Whether the Tribunal may take into account uncorroborated evidence given by the applicant about his construction experience

JE v Secretary, Department of Family and Community Services [2019] NSWCA 162 ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable

Gaynor v Local Court of NSW & Ors [2019] NSWSC 805ADMINISTRATIVE LAW – whether it would be possible for the Local Court to be satisfied of the matter in s 34B(2)(c) of the Civil and Administrative Tribunal Act – whether it would be possible for the Local Court to be satisfied of the matter in s 34B(2)(d) of the Civil and Administrative Tribunal Act – whether ss 49ZS and 49ZT of the Anti-Discrimination Act deprive the Local Court of jurisdiction

Misrachi v Public Guardian [2019] NSWSC 752 ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) - whether the Tribunal erred in failing to afford procedural fairness – whether the Tribunal failed to take into account the general principles in s 4 of the Guardianship Act 1987 (NSW) – whether the Tribunal made a manifestly unreasonable decision – whether the Tribunal placed excessive reliance on matters to the exclusion of all relevant factors – whether the Tribunal ought to have allowed the Daughter to adduce particular medical evidence.

Doyle v State Parole Authority of NSW and Anor [2019] NSWSC 774 ADMINISTRATIVE LAW – proper basis for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) – where satisfied that Community Corrections pre-release report contained misleading information – where satisfied that State Parole Authority’s decision to refuse parole based on misleading information gave rise to circumstance of “manifest injustice” – consent orders made

Legislation

NSW

Regulations and other miscellaneous instruments Births, Deaths and Marriages Registration Amendment (Fees) Regulation 2019 (2019-310) — published LW 1 July 2019 Relationships Register Amendment (Fees) Regulation 2019 (2019-311) — published LW 1 July 2019 Companion Animals Amendment Regulation 2019 (2019-279) — published LW 28 June 2019 Disability Inclusion Amendment (Supported Group Accommodation) Regulation 2019 (2019-280) — published LW 28 June 2019

Bills assented to Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Act 2019 No 5 — Assented to 25 June 2019.