TASMANIA  
__________  
GOVERNMENT PROCUREME NT REVIEW 
(INTERNATIONAL FREE TRADE AGREEMENTS) 
ACT 2019  
No. 27  of 2019  
 
__________  
CONTENTS  
PART 1 – PRELIMINARY  
1. Short title  
2. Commencement  
3. Interpretation  
4. Orders may declare relevant government agencies and 
accountable authorities  
5. Enforceable procurement provisions  
6. Act binds Crown  
PART 2 – COMPLAINTS  
7. Supplier may make complaint  
 2  8. Investigation of complaint  
9. Suspension of procurement where complaint made  
PART 3 – DECLARATION S, INJUNCTIONS AND C OMPENSATION  
10. Declarations and injunctions  
11. Limitation on power to issue declaration  
12. Determination of application for declaration where alternative 
remedy of c ompensation applied for  
13. Certain limitations on issue or grant of declarations or 
injunctions not to apply  
14. Compensation for contravention  
PART 4 – MISCELLANEO US 
15. Public interest certificate  
16. Other powers of Supreme Court unaffected  
17. Contrav ention of enforceable procurement provision does not 
affect validity of contract  
18. Transitional  
19. Regulations  
20. Administration of Act   3   
GOVERNMENT PROCUREME NT REVIEW 
(INTERNATIONAL FREE TRADE AGREEMENTS) 
ACT 2019  
No. 27  of 2019  
 
An Act in relation to government procurement and for 
related purposes  
[Royal Assent 2  October  2019]  
 
Be it enacted by Her Excellency the Governor of Tasmania, by 
and with the advice and consent of the Legislative Council and 
House of Assembly, in Parliamen t assembled, as follows:  
 
PART 1 – PRELIMINARY  
 1. Short title  
This Act may be cited as the Government 
Procurement Review (International Free Trade 
Agreements) Act 2019 . 
 Government Procurement Review (International Free Trade 
Agreements)  Act 2019  
 Act No. 27 of 2019  
s. 2 Part 1 – Preliminary  
 
 4   2. Commencement  
This Act commences on a day to be proclaimed.  
 3. Interpretation  
 (1) In this Act, unless the contrary intention 
appears  – 
accountable authority  means  – 
 (a) in relation to an entity to which 
paragraph (a) of the definition of 
relevant government agency  
applies  – the accountable 
authority, under the Financial 
Management Act  2016 , in relation 
to that entity; and  
 (b) in relation to an entity to which 
paragraph (b) or (c) of the 
definition of relevant government 
agency  applies  –  
 (i) if the entity is specified in 
Part 2 of Schedule 1 to the 
Financial Management 
Act 2016  – the 
accountable authority, 
under the Financial 
Management Act 2016 , in 
relation to that entity; or  
 (ii) if subparagraph  (i) does 
not apply in relation to the Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 1 – Preliminary  s. 3 
 
 5  entity  – the person 
specified in an order 
under section  4 to be the 
accountable authority in 
relatio n to that entity;  
applicable international procurement 
agreement  means an international 
agreement that  – 
 (a) applies to procurements by 
Australian Governments; and  
 (b) the State has agreed with the 
Commonwealth to apply to 
Tasmania;  
covered procurement  means a procurement to 
which an enforceable procurement 
provision applies;  
enforceable procurement provision  – see 
section  5; 
excluded category  means  – 
 (a) health and welfare services; and  
 (b) education services; and  
 (c) advertising services; and  
 (d) plasma fractionation services; and  
 (e) any goods and services specified 
in an enforceable procurement 
provision to be an excluded  Government Procurement Review (International Free Trade 
Agreements)  Act 2019  
 Act No. 27 of 2019  
s. 3 Part 1 – Preliminary  
 
 6  category for the purposes of this 
paragraph;  
goods  includes a right, interest or thing that is 
legally capable of being owned ; 
procurement , in relation to goods and 
services, means the process of acquiring 
goods and services by  –  
 (a) identifying the need to purchase 
goods and services; and  
 (b) selecting suppliers for goods and 
services  – 
and includes the disposal of goods that 
are unserviceable or no longer required 
but does not include any process, or part 
of a process, in relation to goods and 
services within an excluded category;  
public interest certificate , in relation to a 
procurement , means a certificate issued 
under section  15 in relation to the 
procurement;  
relevant government agency  means  – 
 (a) an entity specified in Part 1 of 
Schedule 1 to the Financial 
Management Act 2016 ; and  
 (b) an entity, to which paragraph  (a) 
does not app ly, that is within a 
class of entities that is specified Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 1 – Preliminary  s. 4 
 
 7  in an applicable international 
procurement agreement as a class 
of entities to which that 
agreement is to relate; and  
 (c) an entity declared in an order 
under section  4 to be a relevant 
government a gency for the 
purposes of this Act  – 
and includes a person acting on behalf of 
such an entity;  
supplier  means a person who supplies, or 
could supply, goods and services.  
 (2) A reference in this Act to goods and services 
includes a reference to  – 
 (a) good s or services; and  
 (b) physical objects and intangibles such as 
intellectual property, contract options or 
goodwill; and  
 (c) construction and works  – 
but does not include real property.  
 4. Orders may declare relevant government agencies 
and accountable authorities  
 (1) The Governor, by order, may declare a person, 
statutory authority or entity to be a relevant 
government agency for the purposes of this Act.   Government Procurement Review (International Free Trade 
Agreements)  Act 2019  
 Act No. 27 of 2019  
s. 5 Part 1 – Preliminary  
 
 8   (2) The Governor, by order, may declare a person to 
be, for the purposes of this Act, the account able 
authority of a relevant government agency 
specified in the order, if there is not an 
accountable authority in relation to the entity by 
virtue of paragraph  (a) of the 
definition  of accountable authority  in 
section  3(1) or paragraph  (b)(i)  of that defi nition.  
 5. Enforceable procurement provisions  
 (1) Treasurer’s Instructions made under the 
Financial Management Act 2016  for the purpose 
of giving effect to applicable international 
procurement agreements may include or refer to 
guidelines, made by the Se cretary of the 
Department of Treasury and Finance, that are 
specified in those Treasurer’s Instructions to be 
enforceable procurement provisions for the 
purposes of this Act.  
 (2) Guidelines referred to in subsection  (1) may 
specify that they apply to a re levant government 
agency even though the agency is not otherwise 
required under the Financial Management Act 
2016  to comply with the Treasurer’s Instructions 
that include or refer to the guidelines.  
 6. Act binds Crown  
This Act binds the Crown in right of Tasmania 
and, so far as the legislative power of Parliament 
permits, in all its other capacities.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 2 – Complaints  s. 7 
 
 9  PART 2 – COMPLAINTS  
 7. Supplier may make complaint  
 (1) A supplier who has reason to believe that a 
relevant government agency has engaged, is 
engaging, or is proposing to engage, in relation 
to a covered procurement, in conduct in 
contravention of an enforceable procurement 
provision may, if the interests of t he supplier are 
affected by the conduct or proposed conduct, 
make to the accountable authority of the relevant 
government agency a written complaint about 
the conduct.  
 (2) A supplier may withdraw a complaint made by 
the supplier under subsection  (1). 
 8. Investigation of complaint  
 (1) If a supplier makes a complaint under section  7 
to the accountable authority of a relevant 
government agency, the accountable authority 
must  – 
 (a) investigate the conduct that is the subject 
of the complaint; and  
 (b) prepa re a report in relation to the 
investigation.  
 (2) The accountable authority of the relevant 
government agency to which a complaint is  Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 8 Part 2 – Complaints  
 
 10  made may discontinue the investigation in 
relation to the complaint if  – 
 (a) the supplier withdraws the complaint; or  
 (b) the supplier informs the accountable 
authority that the supplier considers the 
complaint to be resolved; or  
 (c) in proceedings instituted under this Act 
in the Supreme Court in relation to the 
conduct that is the subject of the 
complaint, the Supreme Court makes 
either of the following findings:  
 (i) that the conduct was in 
contravention, in relation to a 
covered procurement, of an 
enforceable procurement 
provision;  
 (ii) that the conduct was not in 
contravention, in relation to a 
covered procurement, of an 
enforceable procurement 
provision.  
 (3) If – 
 (a) proceedings are instituted under this Act 
in the Supreme Court in relation to 
conduct that is the subject of the 
complaint; and  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 2 – Complaints  s. 9 
 
 11   (b) the continuation of the investigation 
would be likely to result in prejudice to 
the proper administration of justice  – 
the accountable authority must discontinue the 
investigation.  
 9. Suspension of procurement where complaint made  
 (1) If – 
 (a) a supplier makes under section  7 a 
complaint to the accountable authority of 
a relevant government agency about 
conduct in relation to a procurement; and  
 (b) when the complaint is made, there is no 
public interest certificate in relation to 
the procurement  – 
the accountable authority mu st suspend the 
procurement until the relevant time.  
 (2) For the purposes of subsection  (1), the relevant 
time is the earliest of the following times:  
 (a) the time, if any, when the supplier 
informs the accountable authority that the 
supplier considers th e complaint in 
relation to the conduct to be resolved;  
 (b) the time when the supplier withdraws the 
complaint, if at all;   Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 9 Part 2 – Complaints  
 
 12   (c) the time, if any, when the accountable 
authority issues a public interest 
certificate in relation to the procurement;  
 (d) the t ime, if any, when the Supreme 
Court, in proceedings under this Act in 
relation to the conduct, makes either of 
the following findings:  
 (i) that the conduct was in 
contravention of an enforceable 
procurement provision;  
 (ii) that the conduct was not in 
contravention of an enforceable 
procurement provision.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 3 – Declarations, Injunctions and Compensation  s. 10 
 
 13  PART 3 – DECLARATIONS, INJUNC TIONS AND 
COMPENSATION  
 10. Declarations and injunctions  
 (1) If a relevant government agency has engaged, is 
engaging, or is proposing to engage, in conduct 
in contravention,  in relation to a covered 
procurement, of an enforceable procurement 
provision, the Supreme Court may, on the 
application of a supplier whose interests are 
affected by the conduct or proposed conduct, 
declare that the conduct is or would be in 
contraventio n of the enforceable procurement 
provision.  
 (2) If –  
 (a) a relevant government agency has 
refused or failed, is refusing or failing, or 
is proposing to refuse or fail, to do an act 
or thing; and  
 (b) the refusal or failure is or would be 
conduct in cont ravention, in relation to a 
covered procurement, of an enforceable 
procurement provision  – 
the Supreme Court may, on the application of a 
supplier whose interests are affected by the 
refusal or failure, declare that the conduct is or 
would be in contravent ion of the enforceable 
procurement provision.   Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 11 Part 3 – Declarations, Injunctions and Compensation  
 
 14   (3) Pending determination of an application under 
subsection  (1) or (2) in relation to a relevant 
government agency, the Supreme Court may 
grant an interlocutory or interim injunction 
restraining the agency fr om engaging or 
proposing to engage in conduct that is or would 
be in contravention of an enforceable 
procurement provision.  
 (4) If the relevant government agency is not a 
corporation sole or body corporate, the 
interlocutory or interim injunction may be 
addressed to the accountable authority in relation 
to the agency.  
 (5) The Supreme Court may discharge or vary an 
interlocutory or interim injunction granted by it 
under this section.  
 11. Limitation on power to issue declaration  
 (1) The Supreme Court mus t not issue a declaration 
under section  10 in relation to a contravention, 
or a proposed contravention, in relation to a 
covered procurement, by a relevant government 
agency unless  – 
 (a) the Court is satisfied that the applicant 
for the declaration has made a complaint 
under section  7 in relation to the 
contravention or proposed contravention; 
and 
 (b) if the Court considers that it would have 
been reasonable for the applicant to have Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 3 – Declarations, Injunctions and Compensation  s. 11 
 
 15  attempted to resolve the complaint  – the 
Court is satisfied that the applicant has 
made a reasonable attempt to resolve the 
complaint.  
 (2) The Supreme Court must not issue a declaration 
under section  10 in relation to a contravention 
that has occurred unless the Court is satisfied 
that the application for the declaration was 
made  – 
 (a) within 10 days after the later of  – 
 (i) the day on which the 
contravention occurred; or  
 (ii) the day on which the applicant 
became aware, o r ought 
reasonably to have become 
aware, of the contravention; or  
 (b) within a longer period that the Court 
allows.  
 (3) The Supreme Court must not issue a declaration 
under section  10 in relation to a contravention 
that is occurring unless the Court is s atisfied that 
the application for the declaration was made  – 
 (a) within 10 days after the day on which the 
applicant became aware, or ought 
reasonably to have become aware, of the 
contravention; or  
 (b) within a longer period that the Court 
allows.   Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 12 Part 3 – Declarat ions, Injunctions and Compensation  
 
 16   (4) The Supreme Court must not issue a declaration 
under section  10 in relation to a proposed 
contravention unless the Court is satisfied that 
the application for the declaration was made  – 
 (a) within 10 days after the day on which the 
applicant became aware, or ought 
reasonably to have become aware, of the 
proposed contravention; or  
 (b) within a longer period that the Court 
allows.  
 (5) The Supreme Court must not allow a longer 
period under subsection  (2)(b) , subsection  (3)(b)  
or subsection  (4)(b) , unless the  Court is satisfied 
that – 
 (a) the applicant’s failure to make the 
application within the 10 -day period 
referred to in subsection  (2)(a) , 
subsection  (3)(a) , or subsection  (4)(a) , 
respectively, is attributable to the 
applicant’s reasonable attempt to resol ve 
the complaint referred to in 
subsection  (1)(a) ; or 
 (b) there are special circumstances that 
warrant allowing a longer period.  
 12. Determination of application for declaration where 
alternative remedy of compensation applied for  
 (1) Subsection  (2) applies to an application under 
section  10 to the Supreme Court for a declaration Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 3 – Declarations, Injunctions and Compensation  s. 12 
 
 17  made by a supplier in respect of a contravention, 
or a proposed contravention, in relation to a 
covered procurement, if  – 
 (a) the supplier has made an application for 
an order under section  14 in relation to 
the contravention or proposed 
contravention; and  
 (b) there is a public interest certificate in 
relation to the procurement; and  
 (c) the procurement has not reached the 
stage where a contract, or other 
arrangement, in relat ion to the covered 
procurement has been entered into with a 
supplier.  
 (2) If this subsection applies to an application in 
respect of a contravention, or a proposed 
contravention, in relation to a covered 
procurement, the Supreme Court must consider  –  
 (a) whether the issue of the declaration, or 
the grant of an interlocutory or interim 
injunction, would result in a significant 
delay to the covered procurement; and  
 (b) if so, whether the making of an order 
under section  14(1)  in relation to the 
contravention would be a more 
appropriate remedy for the contravention, 
or proposed contravention, than the issue 
of the declaration.   Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 12 Part 3 – Declarations, Injunctions and Compen sation  
 
 18   (3) If the Supreme Court, after considering under 
subsection  (2) whether the making of an order 
under  section  14(1)  in relation to the 
contravention, or proposed contravention, in 
respect of which an application under that 
section is made would be a more appropriate 
remedy for the contravention or proposed 
contravention than the issue of the declaration t o 
which the application relates, is satisfied that  –  
 (a) the issue of the declaration, or the grant 
of an interlocutory or interim injunction, 
would result in a significant delay to the 
procurement to which the contravention, 
or proposed contravention, r elates; and  
 (b) the making of an order under 
section  14(1)  in relation to the 
contravention would be a more 
appropriate remedy for the contravention, 
or proposed contravention, than the issue 
of the declaration  – 
the Supreme Court may refuse to issue the 
declaration or to grant an interlocutory or interim 
injunction.  
 (4) Nothing in this section is to be taken to limit the 
power of the Supreme Court to issue a 
declaration or the grant of an interlocutory or 
interim injunction.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 3 – Declarations, Injunctions and Compensation  s. 13 
 
 19   13. Certain limitations on i ssue or grant of declarations 
or injunctions not to apply  
 (1) The power of the Supreme Court to issue a 
declaration  or to grant an interlocutory or interim 
injunction  under section  10 in relation to a 
contravention, or a proposed contravention, of an 
enforceable procurement provision may be 
exercised  – 
 (a) if the Court is satisfied, to the degree that 
is applicable to the making of a 
declaration or an interlocutory or interim 
injunction, as the case may be, that the 
agency has engaged in conduct of a kind  
that constitutes, or may constitute, the 
contravention or proposed 
contravention  – whether or not it appears 
to the Court that the agency intends to 
engage again, or to continue to engage, in 
conduct of that kind; or  
 (b) if it appears to the Court that, if a 
declaration is not issued or an 
interlocutory or interim injunction is not 
granted, it is likely that the agency will 
engage in conduct of that kind  – 
 (i) whether or not the agency has 
previously engaged in conduct of 
that kind; and  
 (ii) whether or  not there is an 
imminent danger of substantial 
damage to any person if the  Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 13 Part 3 – Declarations, Injunctions and Compensation  
 
 20  agency engages in conduct of that 
kind.  
 (2) The power of the Supreme Court to issue a 
declaration under section  10 in relation to 
conduct that constitutes, or may constitute, a 
contravention or proposed contravention of an 
enforceable procurement provision may be 
exercised  – 
 (a) if the Court is satisfied that the agency 
has refused or failed to do an act or 
thing  – whether or not it appears to the 
Court that the agency intends to refuse or 
fail again, or to continue to refuse or fail, 
to do that act or thing; or  
 (b) if it appears to the Court that, if a 
declaration is not issued, it is likely that 
the agency will refuse or fail to do that 
act or thing  – 
 (i) whether or not the age ncy has 
previously refused or failed to do 
that act or thing; and  
 (ii) whether or not there is an 
imminent danger of substantial 
damage to any person if the 
agency refuses or fails to do that 
act or thing.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 3 – Declarations, Injunctions and Compensation  s. 14 
 
 21   14. Compensation for contravention  
 (1) If a rel evant government agency has 
contravened, is contravening, or is proposing to 
contravene, in relation to a covered procurement, 
an enforceable procurement provision, the 
Supreme Court may, on the application of a 
supplier whose interests are affected by the  
contravention or proposed contravention, make 
an order  –  
 (a) if the relevant government agency is not 
a corporation sole or a body corporate  – 
against the State; or  
 (b) if the relevant government agency is a 
corporation sole or body corporate  –
against the relevant government agency  –  
to pay to the supplier, by way of compensation, 
the relevant amount in respect of the 
contravention, or proposed contravention, in 
relation to a covered procurement.  
 (2) For the purposes of subsection  (1), the relevant 
amount in respect of a contravention or proposed 
contravention, in relation to a covered 
procurement, is an amount that is not more than 
the sum of  – 
 (a) reasonable expenditure incurred by the 
supplier in preparing a tender for the 
procurement; and  
 (b) reasonable expenditure incurred by the 
supplier in connection with making a  Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 14 Part 3 – Declarations, Injunctions and Compensation  
 
 22  complaint under section  7 about the 
contravention or proposed contravention; 
and 
 (c) reasonable expenditure incurred by the 
supplier in connection with making a 
reasonable attempt to  resolve the 
complaint.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 4 – Miscellaneous  s. 15 
 
 23  PART 4 – MISCELLANEOUS  
 15. Public interest certificate  
A relevant government agency may issue a 
written certificate stating that it is not in the 
public interest for a procurement specified in the 
certificate to be suspended while  – 
 (a) an application for a declaration under 
section  10 is being considered; or  
 (b) a complaint under section  7 is being 
investigated.  
 16. Other powers of Supreme Court unaffected  
The powers conferred on the Supreme Court 
under this Act are in addition to, and not in 
derogation of, any other powers of the Court to 
grant relief to a party in proceeding before it 
otherwise than under this Act.  
 17. Contravention of enforceable procurement 
provision does not affect validity of contract  
 (1) A contravention of an enforceable procurement 
provision does not affect the validity of a 
contract.  
 (2) For the purposes of subsection  (1), it is 
immaterial whether the contravention occurred 
before, at or after the commencement of this Act.   Government Procurement Review (International Free Trade 
Agreements) Act 2019  
 Act No. 27 of 2019  
s. 18 Part 4 – Miscellaneous  
 
 24   18. Transitional  
This Act, a part from section  17, does not apply 
to a contravention of an enforceable procurement 
provision that occurred before the 
commencement of this Act.  
 19. Regulations  
 (1) The Governor may make regulations for the 
purposes of this Act.  
 (2) The regulations may be made so as to apply 
differently according to matters, limitations or 
restrictions, whether as to time, circumstance or 
otherwise, specified in the regulations.  
 (3) The regulations may authorise any matter to be 
from time to time det ermined, applied or 
regulated by any person or body specified in the 
regulations.  
 20. Administration of Act  
Until provision is made in relation to this Act by 
order under section 4 of the Administrative 
Arrangements Act 1990  – 
 (a) the administration of t his Act is assigned 
to the Treasurer; and  
 (b) the department responsible to the 
Treasurer in relation to the administration 
of this Act is the Department of Treasury 
and Finance.  Government Procurement Review (International Free Trade 
Agreements) Act 2019   
Act No. 27 of 2019   
Part 4 – Miscellaneous   
 
 25   
 
 
 
[Second  reading presentation speech made in: – 
House of Assembly on 1  August  2019  
Legislative Council on 15  August  2019]  
Government Printer, Tasmania