Modern Slavery Act 2018 (NSW)
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 has now been referred to the Standing Committee on Social Issues and we will continue to provide updates on the Act as it develops.
Government Procurement Agreement
On 5 April 2019, the World Trade Organization (WTO) announced that Australia has ratified the WTO's Agreement on Government Procurement (GPA), becoming the 48th member to join the GPA which became effective on 5 May 2019
By ratifying the GPA, Australia will be provided with numerous opportunities such as access to new government procurement markets. Notably, all Australian businesses, no matter their size will have access to the nation state members which currently sits at 47 members.
The Agreement aims to recognise "the need for an effective multilateral framework for government procurement, with a view to achieving greater liberalization and expansion of, and improving the framework for, the conduct of international trade".
Some of the key features of the GPA include recognising:
- measures should not be in place so as to afford protections for domestic suppliers, goods and services, or discriminate among foreign suppliers, goods or services
- the integrity and predictability of government procurement systems are integral to the efficient and effective management of public resources and economies
- that the procedural commitments under the GPA should provide flexibility to accommodate the specific circumstances of each party
- the need to take into account the development, financial and trade needs of developing countries
- the importance of transparency in procurement and carrying out procurements that are impartial, avoid conflict of interest and corrupt practices.
Changes to local government procurement
The Local Government Amendment Bill 2019 (the Bill) 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); and
- 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).
Small Medium Enterprise procurement framework
On 1 February 2019, the NSW Government Small Medium Enterprise (SME) procurement framework became effective.
The framework applies to NSW government agencies procuring goods and services (excluding construction) in regional NSW.
Regional NSW includes all areas within NSW outside the Newcastle, Sydney and Wollongong metropolitan area.
It is designed to increase participation of SMEs and regional businesses in government procurement of goods and services through a range of policy objectives, including:
- supporting SMEs and local businesses
- building capability for suppliers and buyers
- making procurement easy for SMEs
- listening to local businesses and measuring participation.
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.