NSW developments:

Judicial review of adjudicator's determination

The position that an adjudicator's determination under security for payment legislation is only reviewable for jurisdictional error was challenged in 2017.

The decisions of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 and Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2 concluded that an adjudicator's determination under security of payment legislation in NSW and South Australia respectively cannot be judicially reviewed on any basis other than for jurisdictional error of law. In other words, an adjudicator's decision cannot be challenged on the basis of an error of law on the face of the record. However, the High Court has granted special leave to hear appeals in both matters.

The High Court will now need to decide if an adjudicator's determination can be challenged on non-jurisdictional grounds. The High Court's decisions will be ones to watch in 2018, as any finding contrary to the existing line of authority will certainly have significant implications for the construction industry and security of payment legislative regimes across the country.

Commonwealth developments:

Statutory Interpretation

Recent case law has reaffirmed the importance the courts place on context in determining the meaning of statutory text.

In the Federal Court decision of Uber B.V. v Commissioner of Taxation [2017] FCA 110, Justice Griffiths found that UberX drivers were supplying "taxi travel" to passengers within the meaning of s 144-5(1) of the A New Tax System (Good and Services Tax) Act 1999 (Cth) and were thus required to register for GST purposes regardless of revenue generated. Justice Griffiths found that a broad approach to the interpretation of the word "taxi" was appropriate based on the policy and surrounding legislative context of the provision. As stated by Justice Griffiths at [122] "the consideration of text often requires consideration of context and questions of context should be addressed in the first instance and not merely at a subsequent stage..." In Oreb v ASIC (No 2) [2017] FCAFC 49, the Full Court of the Federal Court held that the word "and" in s 206F(1) of the Corporations Act 2001 (Cth) did not have a conjunctive effect by referring to its predecessor provision and the explanatory memorandum to reforms of the Corporations Act 2001 (Cth). In DFS Australia Pty Ltd v Comptroller-General of Customs [2017] FCA 547, the insertion of the word "legal" to the phrase "owner of the goods" in the Customs Regulations 1926 (Cth) was held by his Honour Justice Burley to have a substantive effect. This was based on reflecting on the explanatory statement of the Amending Regulations and contemporaneous amendments to the Customs Act 1901 (Cth). In Privacy Commissioner v Telstra Corp Ltd [2017] FCAFC 4, it was determined that, as a matter of statutory construction, the phrase "about an individual" in the National Privacy Principle 6.1 did have a substantive effect in which it limited the information that the original applicant was entitled to be provided with to personal information to which the applicant was the subject matter.

Judicial review of procurement decisions

Currently, there are limited options for tenderers who seek to challenge Commonwealth tender decisions. In some cases, this has involved an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which the tenderer must demonstrate that the procurement decision was an administrative decision made under an enactment. However, the introduction of the Government Procurement (Judicial Review) Bill 2017 (Cth) (Procurement Bill) to Parliament in mid-2017 may have significant implications for Commonwealth procurement if passed.

The Procurement Bill provides suppliers with new rights in relation to breaches of the Commonwealth Procurement Rules (CPRs) by Commonwealth entities. In particular, the Procurement Bill provides that:

  • Suppliers' complaints are to be investigated and reported on by the Commonwealth entity's accountable authority; and
  • the Federal Circuit Court and the Federal Court are to be vested with jurisdiction to grant an injunction or order compensation in relation to a contravention of the CPRs.

The Procurement Bill is currently being debated in the Senate as it progresses through Parliament, with a Report from the Finance and Public Administration Committee recommending the Senate pass the Procurement Bill as it is consistent with Australia's international obligations in relation to government procurement.

If passed, the implications of the Procurement Bill will be far-reaching, and will certainly see regional suppliers and small and medium enterprises receive a greater ability to raise complaints about the procurement process. The Procurement Bill should be monitored in 2018 and its proposed changes understood by Government agencies who run procurements subject to the CPRs.

Abolition of limited merits review of decisions made under National Energy Laws

On 30 October 2017, the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 (Cth) (Competition and Consumer Amendment Bill) was assented to. The effect of the Competition and Consumer Amendment Bill is that decisions of the Australian Energy Regulator (AER) under the National Electricity Law and National Gas Law (National Energy Laws) are no longer subject to limited merits review by the Australian Competition Tribunal (Tribunal).

However, the Tribunal can still review decisions relating to the disclosure of confidential or protected information under the National Energy Laws. Applicants will still be able to seek judicial review of the decisions of the AER in Federal Court.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.