Overview

The Productivity Commission Regulations 2018 were enacted to ensure the continued effectiveness of the regulatory framework governing the Productivity Commission, as established under the Productivity Commission Act 1998. This legislative instrument was developed in response to the impending automatic repeal of the Productivity Commission Regulations 1998 on 1 April 2019, as mandated by the Legislation Act 2003. The primary objective of the 2018 Regulations is to update and refine the existing regulations by adopting contemporary drafting practices while maintaining the original purpose and functionality of the regulations, particularly in setting the open tender threshold for consultancy services at $80,000. The remaking of these regulations was carried out in consultation with the Productivity Commission, with no issues raised, ensuring a seamless transition and continued operational efficiency. The Regulations are compatible with human rights as they do not engage any applicable rights or freedoms under the international instruments recognised by the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Productivity Commission Regulations 2018, made under section 60 of the Productivity Commission Act 1998, aim to remake and enhance the Productivity Commission Regulations 1998, ensuring they remain effective and aligned with current legislative practices. These Regulations apply to tender processes that take place after their registration on the Federal Register of Legislation, particularly concerning the threshold for engaging consultants, expertise, or independent advice, which is set at $80,000. This threshold aligns with the mandatory open tender threshold outlined in the Commonwealth Procurement Guidelines – January 2005. The Regulations replace the 1998 Regulations to prevent their automatic repeal on 1 April 2019, as mandated by the Legislation Act 2003. The changes made in these Regulations are purely stylistic and do not alter the substantive meaning or operation of the provisions. The Office of Best Practice Regulation has assessed that these Regulations have a minor impact on businesses, community organisations, or individuals and do not require a Regulatory Impact Statement. Furthermore, the Regulations are compatible with human rights, as they do not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The main operative sections of the Productivity Commission Regulations 2018 (the Regulations) include the name of the regulation (section 1), the commencement date (section 2), the authority under which the Regulations are made (section 3), and the definition of key terms such as 'Act' (section 5). The Regulations also contain a schedule that repeals the previous Productivity Commission Regulations 1998 (Schedule 1). The Regulations set the open tender threshold at $80,000 (section 6). These provisions are intended to ensure that the Regulations continue to operate effectively and are consistent with current drafting practices. The Regulations impose obligations on parties or entities involved in tender processes, particularly those engaging consultants, expertise, or independent advice. The key obligation is that any tender process involving a value of $80,000 or more must be conducted through an open tender process. This requirement aligns with the mandatory open tender threshold set out in the Commonwealth Procurement Guidelines – January 2005. The Regulations are designed to ensure transparency and fairness in the procurement process for the services of consultants, experts, or independent advisors. Failure to comply with the open tender threshold requirement may lead to civil or administrative consequences. However, the specific penalties or consequences are not detailed in the provided text. The Productivity Commission Act 1998 (the Act) may include provisions regarding penalties or enforcement mechanisms, but these are not outlined in the explanatory statement. In general, breaches of procurement regulations can lead to financial penalties, contract termination, or reputational damage for the non-compliant party. The explanatory statement notes that the Office of Best Practice Regulation (OBPR) has considered the Regulations to have a minor impact on businesses, community organisations, or individuals. Consequently, the OBPR has certified that a Regulatory Impact Statement is not required for the remaking of the Regulations (OBPR ID 23546). This indicates that the Regulations are expected to have a limited effect on those they govern, focusing primarily on maintaining consistency and clarity in the tender process requirements. The Statement of Compatibility with Human Rights indicates that the Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The explanatory statement clarifies that the Regulations do not engage any of the applicable rights or freedoms, and thus, it is concluded that the Regulations do not raise any human rights issues. This compatibility statement ensures that the Regulations align with Australia's human rights obligations under international law.