High Speed Rail Authority Act 2022

The High Speed Rail Authority Act 2022 (Cth) establishes the High Speed Rail Authority (the Authority) as a corporate Commonwealth entity responsible for the policy development, planning, coordination, and potential construction of a high-speed rail network and supporting faster rail networks within Australia (s 7, s 8). Mechanically, the Act centralises what has historically been a fragmented, multi-jurisdictional policy area into a single statutory body corporate. The Authority possesses the legal capacities of a body corporate, including the power to acquire, hold, and dispose of real and personal property, and the capacity to sue and be sued (s 7(2)).

The primary functions of the Authority are divided into advisory and operational categories. Under section 8(1)(a), the Authority is mandated to lead and coordinate policy development, conduct planning (including transport and land-use planning), consult and negotiate with State and Territory governments, and provide advice and recommendations to the Minister. Under sections 8(1)(b) and 8(1)(c), the Authority is empowered to construct or extend railways to support the high-speed and faster rail networks. However, this construction power is strictly conditional on obtaining the consent of the relevant State or Territory in which the infrastructure is to be located.

To govern this entity, the Act establishes a dual-tier governance structure comprising a policy-setting Board and an executive Chief Executive Officer (CEO) who oversees day-to-day administration (s 13, s 33, s 34). While the Board is tasked with determining the internal strategies and policies of the Authority (s 14), its autonomy is subject to a significant executive control mechanism. Under section 11, the Minister retains the power to issue written, binding directions of a general nature regarding the performance of the Authority's functions. These directions are legislative instruments but are specifically exempt from parliamentary disallowance and sunsetting provisions, establishing a direct line of executive authority from the Cabinet to the agency's operations.

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Commonwealth Coat of Arms of Australia

High Speed Rail Authority Act 2022

No. 81, 2022

An Act to establish the High Speed Rail Authority, and for related purposes

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Simplified outline of this Act

4 Definitions

5 Act binds the Crown

Part 2—High Speed Rail Authority

Division 1—Introduction

6 Simplified outline of this Part

Division 2—Establishment and functions

7 Establishment

8 Functions

9 Powers

10 Authority does not have privileges and immunities of the Crown

Division 3—Minister may give directions to the Authority

11 General directions

Part 3—Board of the Authority

Division 1—Introduction

12 Simplified outline of this Part

Division 2—Establishment and functions of the Board

13 Establishment of the Board

14 Functions of the Board

Division 3—Board members

15 Membership

16 Appointment

17 Term of appointment

18 Acting appointments

19 Terms and conditions

20 Remuneration

21 Leave of absence

22 Other paid work

22A Disclosure of interests

23 Resignation

24 Termination of appointment

Division 4—Meetings of the Board

25 Convening meetings

26 Presiding at meetings

27 Quorum

28 Voting at meetings

29 Conduct of meetings

30 Minutes

31 Decisions without meetings

Part 4—Chief Executive Officer, staff and consultants

Division 1—Introduction

32 Simplified outline of this Part

Division 2—Chief Executive Officer

33 Chief Executive Officer

34 Functions of the CEO

35 CEO to act in accordance with directions of Board

36 Appointment

37 Acting appointment

38 Terms and conditions

39 Remuneration

40 Leave of absence

41 Other paid work

42 Disclosure of interests

43 Resignation

44 Termination of appointment

Division 3—Staff and consultants

45 Staff

46 Consultants

Part 5—Miscellaneous

47 Simplified outline of this Part

48 Corporate plan

49 Review of this Act

50 Rules

Commonwealth Coat of Arms of Australia

High Speed Rail Authority Act 2022

No. 81, 2022

An Act to establish the High Speed Rail Authority, and for related purposes

[Assented to 12 December 2022]

The Parliament of Australia enacts:

Part 1—Preliminary

1 Short title

This Act is the High Speed Rail Authority Act 2022.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act A single day to be fixed by Proclamation.However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 12 June 2023

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Simplified outline of this Act

There is to be a High Speed Rail Authority.

The Authority has functions in relation to the high speed rail network and the high speed rail corridor. The Authority also has functions in relation to a faster rail network and additional corridors for that network.

The Authority must perform its functions in accordance with directions given by the Minister.

There is to be a Board of the Authority and a Chief Executive Officer of the Authority.

The Authority can engage staff and consultants.

This Act also deals with miscellaneous matters, including reviewing the operation of the Act and the power to make rules.

4 Definitions

In this Act:

Authority means the High Speed Rail Authority.

Board means the Board of the Authority.

Board member means a member of the Board and includes the Chair.

CEO means the Chief Executive Officer of the Authority.

Chair means the Chair of the Board.

faster rail network means a network of railways in Australia that are not capable of supporting high speed trains.

high speed rail corridor means the area through which the high speed rail network will run.

high speed rail network means a network of railways that:

(a) are capable, in whole or in part, of supporting high speed trains; and

(b) connect:

(i) Sydney, Melbourne, Brisbane and Canberra; and

(ii) some regional centres on the east coast of Australia or in New South Wales, Victoria or Queensland.

high speed train means a vehicle that:

(a) is designed to transport passengers or goods and operates on a railway (including a vehicle that does not have wheels); and

(b) is capable of travelling at speeds exceeding 250 km/hr.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

rules means rules made under section 50.

5 Act binds the Crown

This Act binds the Crown in each of its capacities.

Part 2—High Speed Rail Authority

Division 1—Introduction

6 Simplified outline of this Part

There is to be a High Speed Rail Authority.

The Authority’s main functions are the following:

(a) developing policy and planning, consulting relevant parties, giving advice and recommendations and undertaking evaluations and research in relation to the high speed rail network, the high speed rail corridor, a faster rail network and additional rail corridors for a faster rail network;

(b) constructing or extending a railway in a State for the high speed rail network or a faster rail network, with the State’s consent;

(c) constructing or extending a railway in a Territory for the high speed rail network or a faster rail network, with the Territory’s consent.

The Minister can give general directions to the Authority about the performance of the Authority’s functions.

Division 2—Establishment and functions

7 Establishment

(1) The High Speed Rail Authority is established by this section.

(2) The Authority:

(a) is a body corporate; and

(b) must have a seal; and

(d) may sue and be sued.

Note: The Public Governance, Performance and Accountability Act 2013 applies to the Authority. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.

(3) The Authority’s seal is to be kept in such custody as the Board directs and must not be used except as authorised by the Board.

8 Functions

(1) The Authority has the following functions:

(a) to:

(i) lead and coordinate policy development and planning; and

(ii) consult, liaise and negotiate with States and Territories and other relevant parties; and

(iii) provide advice and recommendations to the Minister and other relevant parties (including advice and recommendations on environmental matters and interconnectedness); and

(iv) undertake evaluations and research and gather information;

in relation to the high speed rail network, the high speed rail corridor, a faster rail network and additional rail corridors for a faster rail network;

(b) if the Commonwealth obtains a State’s consent, in accordance with paragraph 51(xxxiv) of the Constitution, to the construction or extension of a railway in the State for the high speed rail network or a faster rail network—to construct or extend the railway in the State for that network;

(c) if the Commonwealth obtains a Territory’s consent to the construction or extension of a railway in the Territory for the high speed rail network or a faster rail network—to construct or extend the railway in the Territory for that network;

(d) any other functions conferred on the Authority by this Act or any other Commonwealth law;

(e) any other functions that are prescribed by rules made for the purposes of this paragraph;

(f) to do anything incidental to, or conducive to, the performance of the above functions.

Note: Planning by the Authority may include transport and land use planning.

(2) Rules made for the purposes of paragraph (1)(e) must specify the legislative power or powers of the Parliament in respect of each function of the Authority that is prescribed.

9 Powers

(1) The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) The Authority’s powers include, but are not limited to, the power to enter into contracts and agreements.

10 Authority does not have privileges and immunities of the Crown

The Authority does not have the privileges and immunities of the Crown in right of the Commonwealth.

Division 3—Minister may give directions to the Authority

11 General directions

(1) The Minister may, by legislative instrument, give written directions to the Authority about the performance of its functions.

Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

(2) A direction under subsection (1) must be of a general nature only.

(3) The Authority must comply with a direction under subsection (1).

Part 3—Board of the Authority

Division 1—Introduction

12 Simplified outline of this Part

There is to be a Board of the Authority.

The Board’s main functions are:

(a) to decide, within the scope of any directions given to the Authority, the strategies and policies to be followed by the Authority; and

(b) to ensure the proper, efficient and effective performance of the Authority’s functions.

The Minister appoints Board members, including the Chair.

The Board is to hold meetings, as necessary, for the performance of its functions.

Division 2—Establishment and functions of the Board

13 Establishment of the Board

The Board of the High Speed Rail Authority is established by this section.

14 Functions of the Board

(1) The functions of the Board are:

(a) to decide, within the scope of any directions given to the Authority under section 11, the strategies and policies to be followed by the Authority; and

(b) to ensure the proper, efficient and effective performance of the Authority’s functions; and

(2) The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Division 3—Board members

15 Membership

The Board consists of the following members:

(a) a Chair;

(b) 4 other members.

16 Appointment

(1) Board members are to be appointed by the Minister by written instrument.

Note: Board members may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) The Chair may be appointed on a full‑time or part‑time basis.

(3) Other Board members are to be appointed on a part‑time basis.

(4) A person must not be appointed as a Board Member unless the Minister is satisfied that:

(a) the person has appropriate qualifications, knowledge, skills or experience; and

(b) the selection of the person for the appointment is the result of a process that:

(i) was merit-based; and

(ii) included public advertising of the position.

(5) Paragraph (4)(b) does not prevent the Minister:

(a) taking affirmative action in relation to the appointment of women to positions; or

(b) taking into consideration appropriate representation among the States, Territories and local government areas in relation to appointments to positions.

(6) Paragraph (4)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as a Board Member under a previous appointment under subsection (1).

17 Term of appointment

A Board member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

18 Acting appointments

(1) The Minister may, by written instrument, appoint a Board member to act as the Chair:

(a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Chair:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

(2) The Minister may, by written instrument, appoint a person to act as a Board member (other than the Chair):

(a) during a vacancy in the office of a Board member (other than the Chair), whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when a Board member (other than the Chair):

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

19 Terms and conditions

A Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

20 Remuneration

(1) A Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Board member is to be paid the remuneration that is prescribed by the rules.

(2) A Board member is to be paid the allowances that are prescribed by the rules.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

21 Leave of absence

Chair

(1) If the Chair is appointed on a full‑time basis:

(a) the Chair has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

(b) the Minister may grant the Chair leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

(2) If the Chair is appointed on a part‑time basis, the Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.

Other Board members

(3) The Chair may grant leave of absence to any other Board member on the terms and conditions that the Chair determines.

(4) The Chair must notify the Minister if the Chair grants another Board member leave of absence for a period that exceeds 6 months.

22 Other paid work

(1) If the Chair is appointed on a full‑time basis, the Chair must not engage in paid work outside the duties of the Chair’s office without the Minister’s approval.

(2) A Board member who is appointed on a part‑time basis must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties.

22A Disclosure of interests

(1) A disclosure by a Board Member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.

(2) Subsection (1) applies in addition to any rules made for the purposes of that section.

(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the Board member is taken not to have complied with section 29 of that Act if the Board member does not comply with subsection (1) of this section.

23 Resignation

(1) A Board member may resign the Board member’s appointment by giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

24 Termination of appointment

The Minister may terminate the appointment of a Board member:

(a) for misbehaviour; or

(b) if the Board member is unable to perform the duties of the member’s office because of physical or mental incapacity; or

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the Board member’s creditors; or

(iv) makes an assignment of the Board member’s remuneration for the benefit of the Board member’s creditors; or

(d) for a Chair appointed on a full‑time basis—if:

(i) the Chair is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(ii) the Chair engages, except with the Minister’s approval, in paid work outside the duties of the Chair’s office (see subsection 22(1)); or

(e) for a Board member appointed on a part‑time basis—if:

(i) the Board member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or

(ii) the Board member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the Board member’s duties (see subsection 22(2)).

Note: The appointment of a Board member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).

Division 4—Meetings of the Board

25 Convening meetings

(1) The Board must hold such meetings as are necessary for the efficient performance of its functions.

(2) The Chair:

(a) may convene a meeting at any time; and

(b) must convene at least 4 meetings each calendar year; and

(i) 3 or more other members; or

(ii) the Minister.

(3) Paragraph (2)(b) does not apply in relation to the calendar year in which this Act commences.

26 Presiding at meetings

(1) The Chair must preside at all meetings at which the Chair is present.

(2) If the Chair is not present at a meeting, the other Board members present must appoint one of themselves to preside.

27 Quorum

(1) At a meeting of the Board, a quorum is constituted by a majority of Board members.

(2) However, if:

(a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and

(b) when the Board member leaves the meeting concerned there is no longer a quorum present;

the remaining Board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

28 Voting at meetings

(1) A question arising at a meeting of the Board is to be determined by a majority of the votes of the Board members present and voting.

(2) The person presiding at a meeting of the Board has a deliberative vote and, if the votes are equal, a casting vote.

29 Conduct of meetings

The Board may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings.

30 Minutes

The Board must keep minutes of its meetings.

31 Decisions without meetings

(1) The Board is taken to have made a decision at a meeting if:

(a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and

(b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and

(c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the Board members of the proposed decision.

(2) Subsection (1) applies only if the Board:

(a) has determined that it may make decisions of that kind without meeting; and

(b) has determined the method by which Board members are to indicate agreement with proposed decisions.

(3) For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the Board member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board.

(4) The Board must keep a record of decisions made in accordance with this section.

Part 4—Chief Executive Officer, staff and consultants

Division 1—Introduction

32 Simplified outline of this Part

There is to be a Chief Executive Officer of the Authority.

The CEO is responsible for the day‑to‑day administration of the Authority.

The staff of the Authority are employed under the Public Service Act 1999 and the Authority can also engage consultants.

Division 2—Chief Executive Officer

33 Chief Executive Officer

There is to be a Chief Executive Officer of the High Speed Rail Authority.

34 Functions of the CEO

(1) The CEO is responsible for the day‑to‑day administration of the Authority.

(2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of the CEO’s duties.

(3) The CEO is to act in accordance with policies and strategies determined by the Board.

35 CEO to act in accordance with directions of Board

(1) The Board may give written directions to the CEO, not inconsistent with any direction given to the Authority under section 11, about the performance of the CEO’s duties.

(2) The CEO must comply with a direction under subsection (1).

(3) Subsection (2) does not apply to the extent that the direction relates to the CEO’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the Authority.

(4) A direction under subsection (1) is not a legislative instrument.

36 Appointment

(1) The CEO is to be appointed by the Board by written instrument after consultation with the Minister.

Note: The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

(2) The CEO is to be appointed on a full‑time basis.

(3) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(4) The CEO must not be a Board member.

(5) A person must not be appointed as the CEO unless the Board is satisfied that:

(a) the person has appropriate qualifications, knowledge, skills or experience; and

(b) the selection of the person for the appointment is the result of a process that:

(i) was merit-based; and

(ii) included public advertising of the position.

(6) Paragraph (5)(b) does not prevent the Board:

(a) taking affirmative action in relation to the appointment of women to the position; or

(b) taking into consideration appropriate representation among the States, Territories and local government areas in relation to an appointment to the position.

(7) Paragraph (5)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the CEO under a previous appointment under subsection (1).

37 Acting appointment

The Board may, by written instrument and after consultation with the Minister, appoint a person (other than a Board member) to act as the CEO:

(a) during a vacancy in the office of CEO (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the CEO:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

38 Terms and conditions

The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Board.

39 Remuneration

(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the rules.

(2) The CEO is to be paid the allowances that are prescribed by the rules.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

40 Leave of absence

(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Chair may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chair determines.

(3) The Chair must notify the Minister if the Chair grants to the CEO leave for a period that exceeds one month.

41 Other paid work

The CEO must not engage in paid work outside the duties of the CEO’s office without the Chair’s approval.

42 Disclosure of interests

(1) A disclosure by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Board.

(2) Subsection (1) applies in addition to any rules made for the purposes of that section.

(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.

43 Resignation

(1) The CEO may resign the CEO’s appointment by giving the Board a written resignation.

(2) The resignation takes effect on the day it is received by the Board or, if a later day is specified in the resignation, on that later day.

(3) If the CEO resigns under this section, the Chair must notify the Minister of the resignation.

44 Termination of appointment

(1) The Board may terminate the appointment of the CEO:

(a) for misbehaviour; or

(b) if the CEO is unable to perform the duties of the CEO’s office because of physical or mental incapacity; or

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the CEO’s creditors; or

(iv) makes an assignment of the CEO’s remuneration for the benefit of the CEO’s creditors; or

(d) if the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(e) if the CEO engages, except with the Chair’s approval, in paid work outside the duties of the CEO’s office (see section 41); or

(f) if the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.

(2) If the Board terminates the appointment of the CEO, the Board must notify the Minister of the termination.

Division 3—Staff and consultants

45 Staff

(1) The staff of the Authority must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and

(b) the CEO is the Head of that Statutory Agency.

46 Consultants

The Authority may engage consultants to assist in the performance of its functions.

Part 5—Miscellaneous

47 Simplified outline of this Part

This Part deals with miscellaneous matters, including additional requirements for the Authority’s corporate plan, reviewing the operation of the Act and the power to make rules.

48 Corporate plan

In preparing or varying a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Board must consult with:

(a) the Minister; and

(b) such of the following as it considers appropriate:

(i) government, commercial, industrial, consumer and other relevant bodies and organisations;

(ii) investors in infrastructure and owners of infrastructure.

49 Review of this Act

(1) At least once every 10 years, the Minister must cause a review of the operation of this Act and the rules to be undertaken.

(2) The persons undertaking the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

50 Rules

(1) The Minister may, by legislative instrument, make rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the rules; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

[Minister’s second reading speech made in—

House of Representatives on 8 September 2022

Senate on 21 November 2022]

(80/22)

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High Speed Rail Authority Act 2022

No. 81, 2022

An Act to establish the High Speed Rail Authority, and for related purposes

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Simplified outline of this Act

4 Definitions

5 Act binds the Crown

Part 2—High Speed Rail Authority

Division 1—Introduction

6 Simplified outline of this Part

Division 2—Establishment and functions

7 Establishment

8 Functions

9 Powers

10 Authority does not have privileges and immunities of the Crown

Division 3—Minister may give directions to the Authority

11 General directions

Part 3—Board of the Authority

Division 1—Introduction

12 Simplified outline of this Part

Division 2—Establishment and functions of the Board

13 Establishment of the Board

14 Functions of the Board

Division 3—Board members

15 Membership

16 Appointment

17 Term of appointment

18 Acting appointments

19 Terms and conditions

20 Remuneration

21 Leave of absence

22 Other paid work

22A Disclosure of interests

23 Resignation

24 Termination of appointment

Division 4—Meetings of the Board

25 Convening meetings

26 Presiding at meetings

27 Quorum

28 Voting at meetings

29 Conduct of meetings

30 Minutes

31 Decisions without meetings

Part 4—Chief Executive Officer, staff and consultants

Division 1—Introduction

To understand the scope of the Act, several key statutory definitions established under section 4 must be analysed.

The first core concept is the "high speed rail network." This is defined as a network of railways capable, in whole or in part, of supporting "high speed trains," and which connects Sydney, Melbourne, Brisbane, and Canberra, alongside designated regional centres on the east coast of Australia or within New South Wales, Victoria, or Queensland. The geographical scope is explicitly restricted by the statute to the eastern seaboard and the Australian Capital Territory, reflecting a legislative decision to concentrate statutory resources on this specific transport corridor.

The second concept is the "high speed train" itself. The statute defines this as a vehicle designed to transport passengers or goods operating on a railway (including wheel-less vehicles, which encompasses magnetic levitation systems) that is capable of travelling at speeds exceeding 250 kilometres per hour. This speed threshold serves as the bright-line jurisdictional boundary.

The third concept is the "faster rail network," defined as a network of railways in Australia that are not capable of supporting high-speed trains. By including this concept, the Act expands the Authority's mandate beyond true high-speed rail to encompass upgrades and planning for existing, slower regional and metropolitan rail networks.

The fourth concept is the "high speed rail corridor," which refers to the physical area through which the high-speed rail network will run. This definition underpins the planning and land-use functions of the Authority, indicating a statutory focus on corridor preservation and acquisition strategy.

Finally, the Act utilises the concept of "paid work," defined broadly as work for financial gain or reward, whether as an employee, a self-employed person, or otherwise. This definition is critical for the conflict-of-interest and governance provisions that restrict the outside commercial activities of the Board members and the CEO (s 22, s 41).

The Act directly impacts several distinct classes of public and private actors, altering their incentives, compliance obligations, and operational environments.

At the federal level, the Act affects the Minister administering the portfolio by granting them extensive powers of appointment, direction, and regulation. The Minister is responsible for appointing the five-member Board (s 15, s 16) and must be consulted by the Board prior to the appointment of the CEO (s 36(1)). Additionally, the Minister is the sole recipient of Board member interest disclosures (s 22A) and holds the power to issue binding general directions (s 11) and make legislative rules under section 50.

For professional board directors and executive officers, the Act establishes a highly structured compliance environment. Board members and the CEO are subject to strict merit-based selection processes (s 16(4), s 36(5)), limitation of outside employment (s 22, s 41), and rigorous disclosure requirements regarding conflicts of interest (s 22A, s 42). A failure to manage these obligations leads directly to administrative termination (s 24, s 44).

State and Territory governments are highly affected parties. Because the Commonwealth lacks unilateral constitutional power to construct railways within States without consent, the Act explicitly structures the Authority's operational capacity around intergovernmental negotiation. Under sections 8(1)(b) and 8(1)(c), the Authority cannot execute physical construction projects unless the relevant State or Territory consents. Consequently, sub-national governments hold significant leverage over the deployment of physical infrastructure.

Within the private sector, the Act affects infrastructure investors, construction contractors, transport operators, and landholders. Under section 48, the Board is required to consult with infrastructure investors, infrastructure owners, and commercial, industrial, or consumer bodies when preparing or varying its corporate plan. This statutory consultation requirement integrates private sector market perspectives directly into the high-level strategic planning of the network.

The Act balances corporate rights with administrative and governance duties, distributing them among the Authority, the Board, the CEO, and individual officers.

Rights and Powers of the Authority

The Authority has the statutory right to operate as an independent legal person. It holds the power to do all things necessary or convenient in connection with its functions, including the explicit power to enter into contracts and agreements (s 9). Crucially, section 10 declares that the Authority does not have the privileges and immunities of the Crown in right of the Commonwealth. This means the Authority operates without the typical immunities from state laws, local planning schemes, or civil liabilities that the Crown might otherwise enjoy, forcing it to interact with state regulatory regimes as an ordinary corporate entity unless specifically exempted by other legislation.

Duties of the Board

The Board holds the primary duty to ensure the proper, efficient, and effective performance of the Authority's functions (s 14(1)(b)). It must determine the strategies and policies of the organisation (s 14(1)(a)) and ensure the CEO acts in accordance with these parameters (s 34(3)). The Board also has a duty of transparent governance, which includes keeping formal minutes of all meetings (s 30) and maintaining a written record of all decisions made outside of formal meetings (s 31(4)).

Duties of Individual Board Members and the CEO

Individual Board members have a strict statutory duty to disclose any material personal interests directly to the Minister (s 22A). This duty is cumulative with the requirements under section 29 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Under section 22A(3), a failure to disclose interests to the Minister constitutes a statutory failure to comply with the PGPA Act, which is a ground for immediate termination.

The CEO is subject to a parallel duty to disclose interests directly to the Board (s 42). Furthermore, the CEO is under a statutory duty to manage the day-to-day administration of the Authority in strict compliance with the written directions of the Board (s 35) and to refrain from engaging in any outside paid work without the express approval of the Chair (s 41).

Unlike regulatory acts that impose direct civil or criminal penalties on the public, the High Speed Rail Authority Act 2022 relies entirely on administrative, corporate, and employment-based enforcement mechanisms to ensure compliance.

Under section 50(2)(a), the Minister's power to make rules is strictly limited: the rules may not create offences or civil penalties, nor can they provide powers of arrest, detention, entry, search, or seizure (s 50(2)(b)). This means the Authority cannot independently penalise private individuals or landholders under this Act; any such regulatory enforcement must rely on other existing Commonwealth, State, or Territory statutory frameworks.

Instead, the enforcement regime is internal and governed by termination provisions. For Board members, the Minister holds the power of administrative termination under section 24. The grounds for termination are broad, encompassing:

Misbehaviour (s 24(a));
Physical or mental incapacity (s 24(b));
Bankruptcy, insolvency, or making an assignment of remuneration for the benefit of creditors (s 24(c));
For a full-time Chair, unapproved absences of 14 consecutive days or 28 days in a 12-month period, or engaging in unauthorized outside paid work (s 24(d));
For part-time members, missing three consecutive Board meetings without leave, or engaging in paid work that, in the Minister's opinion, conflicts or could conflict with their official duties (s 24(e)).

Similar enforcement levers apply to the CEO under section 44. The Board may terminate the CEO's appointment for misbehaviour, incapacity, bankruptcy, unapproved absence of 14 consecutive days (or 28 days in a year), or unauthorized outside paid work. Critically, under section 44(1)(f), the Board may terminate the CEO for failing, without reasonable excuse, to comply with the interest disclosure requirements under section 29 of the PGPA Act. This direct link to the PGPA Act elevates disclosure from a standard employment issue to a statutory compliance trigger.

The Act does not operate in isolation; it is designed to plug directly into the broader Commonwealth administrative law and financial accountability frameworks, while navigating the constitutional limits of the Australian federation.

┌────────────────────────────────────────────────────────────────────────┐
│                        AUSTRALIAN CONSTITUTION                         │
│  - Section 51(xxxiv): State Consent required for railway construction  │
└───────────────────────────────────┬────────────────────────────────────┘
                                    │
                                    ▼
┌────────────────────────────────────────────────────────────────────────┐
│                 HIGH SPEED RAIL AUTHORITY ACT 2022                     │
│  - Establishes Authority (s 7) & Board (s 13)                          │
│  - Limits Rules: No taxes, offences, or search powers (s 50)           │
└───────────┬───────────────────────┬────────────────────────┬───────────┘
            │                       │                        │
            ▼                       ▼                        ▼
┌───────────────────────┐ ┌───────────────────┐    ┌────────────────────┐
│       PGPA ACT        │ │PUBLIC SERVICE ACT │    │    LEGISLATION     │
│         2013          │ │       1999        │    │      ACT 2003      │
│ - Governs financial   │ │ - Staff must be   │    │ - s 11 Ministerial │
│   accountability      │ │   APS employees   │    │   directions are   │
│ - Modified interest   │ │   (s 45(1))       │    │   exempt from      │
│   disclosure rules    │ │ - CEO is Agency   │    │   disallowance &   │
│   (s 22A, s 42)       │ │   Head (s 45(2))  │    │   sunsetting       │
└───────────────────────┘ └───────────────────┘    └────────────────────┘

The Constitution

The physical operations of the Authority are governed by section 51(xxxiv) of the Constitution. This constitutional provision gives the Commonwealth Parliament power to make laws with respect to railway construction and extension in any State, but only with the consent of that State. The Act mirrors this restriction precisely in section 8(1)(b), ensuring that the Authority's construction power cannot be exercised unilaterally, thereby avoiding a constitutional challenge.

Public Governance, Performance and Accountability Act 2013 (PGPA Act)

As a corporate Commonwealth entity, the Authority is bound by the PGPA Act (s 7(2) note). However, the Act modifies the operation of the PGPA Act regarding conflict-of-interest disclosures. Under section 29 of the PGPA Act, officials must disclose material personal interests. The High Speed Rail Authority Act 2022 adds specific pathways for these disclosures: Board members must disclose to the Minister (s 22A(1)), and the CEO must disclose to the Board (s 42(1)). Failure to follow these precise pathways constitutes a statutory failure to comply with the PGPA Act itself, which triggers termination rights (s 24, s 44(1)(f)). Furthermore, the preparation of the Authority's corporate plan under section 35 of the PGPA Act is subject to the additional consultation duties set out in section 48 of this Act.

Public Service Act 1999

The human resources of the Authority are integrated directly into the Australian Public Service. Under section 45, all staff of the Authority must be engaged under the Public Service Act 1999. The CEO and the assisting APS staff together constitute a "Statutory Agency", and the CEO is designated as the Head of that Statutory Agency (s 45(2)). However, to protect the CEO's independent statutory role as agency head, section 35(3) states that any written directions given by the Board to the CEO do not apply to the extent that they interfere with the CEO's independent performance of functions or exercise of powers under the Public Service Act 1999.

Legislation Act 2003 and Remuneration Tribunal Act 1973

The ministerial directions issued under section 11 are legislative instruments, but regulations made under the Legislation Act 2003 exempt these directions from disallowance and sunsetting, keeping policy control concentrated in the executive. Additionally, the remuneration of Board members and the CEO is governed by the Remuneration Tribunal under the Remuneration Tribunal Act 1973, with fallback rates prescribed by the rules if no determination is in place (s 20, s 39).

The High Speed Rail Authority Act 2022 was introduced into the Commonwealth Parliament in late 2022. The Minister's second reading speech was delivered in the House of Representatives on 8 September 2022, and subsequently in the Senate on 21 November 2022. The bill received Royal Assent on 12 December 2022, becoming Act No. 81 of 2022.

The commencement of the Act was structured under a standard proclamation window. Section 2(1) stipulated that the entire Act would commence on a single day to be fixed by Proclamation, with a default mechanism stating that if no proclamation was made within six months of Royal Assent, the Act would commence on the day after the end of that period. No early proclamation occurred, resulting in the automatic commencement of the entire Act on 12 June 2023.

As of the current statutory text, there are no subsequent legislative amendments recorded in the text. The Act remains in its original, enacted form. This lack of amendment history is characteristic of the Act's status as a foundational, structural statute designed to establish a new statutory body corporate from the ground up, rather than an operational regulatory act that requires frequent adjustment to market conditions.

Its introduction represents a significant legislative pivot from previous administrative arrangements, replacing the former non-statutory advisory bodies with a formal, independent corporate entity. Under section 49, the Act contains a built-in statutory review mechanism. The Minister must cause a formal review of the operation of the Act and its rules to be undertaken at least once every ten years, with the resulting written report tabled in each House of Parliament within 15 sitting days of its receipt. This ensures that any necessary structural or operational amendments will be systematically evaluated by 2033.

Because the High Speed Rail Authority Act 2022 is a relatively recent piece of legislation, focused primarily on establishing the internal governance architecture of a corporate Commonwealth entity, it has not yet generated a body of reported litigation. This absence of litigation is a direct consequence of the Act's structural design.

First, the Act does not create private rights of action. Members of the public, landowners along potential rail corridors, or commercial competitors cannot bring civil suits under this Act to compel or prevent the Authority from taking planning actions. The advisory and policy-coordination functions under section 8 are non-justiciable in nature; they represent high-level policy formulation and intergovernmental negotiations that do not directly affect the vested legal rights of private citizens in a manner that would invite judicial review.

Second, because the Authority's power to construct or extend railways is strictly subject to State or Territory consent (s 8(1)(b)-(c)), any legal disputes regarding land acquisition, environmental approvals, or construction contracts are highly unlikely to arise under this Commonwealth Act. Instead, such disputes will be litigated under the state-level planning, land acquisition, and environmental protection statutes of the jurisdiction where the construction is taking place.

Any future litigation directly under this Act is likely to be confined to administrative law challenges regarding:

Decisions of the Board to terminate a CEO (s 44) or of the Minister to terminate a Board member (s 24) on grounds of procedurally flawed administrative action;
Constitutional challenges brought by a State if the Authority attempts to exercise planning or preparatory powers that a State argues amount to unilateral construction without consent under section 51(xxxiv);
Procurement disputes arising from the Authority's exercise of its general contracting powers under section 9.

For legal practitioners, corporate advisors, and compliance professionals, several subtle statutory provisions and structural limitations (or "gotchas") require close attention.

The State Consent Veto

The most significant operational limitation is the absolute veto power held by State and Territory governments. Although the Commonwealth has established the Authority with the explicit function to "construct or extend" railways (s 8(1)(b)-(c)), this power is entirely dormant until the relevant State or Territory formally consents. If a state government refuses to cooperate, the Authority's role is legally reduced to policy research and planning. Commercial entities entering into early-stage agreements with the Authority must factor this constitutional dependency into their risk-allocation models.

The No-Crown-Immunity Trap

Under section 10, the Authority is explicitly stripped of the privileges and immunities of the Crown. This has immediate commercial and regulatory consequences:

The Authority is subject to state-level taxes, levies, and environmental regulations unless specific federal exemptions apply;
It can be sued in tort or contract in state courts like any private corporation;
Contractors dealing with the Authority cannot rely on Crown immunity to shield their operations from local government planning and zoning restrictions.

The Dual-Disclosure Mismatch

The Act sets up a dual-pathway disclosure system for material personal interests that can easily catch out unwary officers:

Board Members must disclose interests to the Minister (s 22A(1));
The CEO must disclose interests to the Board (s 42(1)).

A Board member who mistakenly discloses an interest to the Board instead of the Minister, or a CEO who discloses directly to the Minister instead of the Board, fails to comply with the statutory requirement. Under sections 22A(3) and 42(3), a failure to disclose to the correct entity is deemed a direct breach of section 29 of the PGPA Act, establishing a statutory basis for immediate termination of office.

┌────────────────────────────────────────────────────────┐
│                   DISCLOSURE PATHWAYS                  │
├───────────────────────────┬────────────────────────────┤
│       BOARD MEMBER        │            CEO             │
├───────────────────────────┼────────────────────────────┤
│ Must disclose directly to │ Must disclose directly to  │
│       the Minister        │         the Board          │
│        (s 22A(1))         │          (s 42(1))         │
└───────────────────────────┴────────────────────────────┘

Un-disallowable Ministerial Directions

While the Board is responsible for the strategies and policies of the Authority, the Minister can override these via section 11 directions. Because these directions are exempt from parliamentary disallowance and sunsetting, they can radically shift the strategic direction of the Authority overnight without warning or parliamentary debate. Private partners must structure their agreements to account for sudden changes in federal policy direction.

The Speed Threshold Borderline

The arbitrary statutory definition of a "high speed train" as operating at speeds "exceeding 250 km/hr" (s 4) creates a technical jurisdictional boundary. If the Authority designs or funds a project where trains operate at exactly 250 km/hr or less, the project falls legally under the "faster rail network" rather than the "high speed rail network." This distinction impacts the geographical limits of the corridor planning, as the "high speed rail network" is statutorily restricted to the east coast (s 4), while the "faster rail network" is not.

Compliance under the Act is primarily an internal governance obligation for the officers of the Authority and the Minister, rather than an external regulatory hurdle for the general public.

For the Board and Individual Members

Corporate Plan Consultations: When preparing or varying the corporate plan under section 35 of the PGPA Act, the Board must ensure it executes a formal consultation process. It is a statutory requirement to consult the Minister, and the Board must identify and consult with relevant infrastructure investors, infrastructure owners, and commercial, industrial, or consumer bodies (s 48). Compliance requires maintaining a rigorous administrative record of who was consulted and how their feedback was addressed.
Conflict of Interest Protocols: Board members must implement a compliance calendar ensuring that any change in personal, commercial, or professional interests is immediately drafted into a formal disclosure notice and sent directly to the Minister's office (s 22A). Relying on the Board's internal register is insufficient.
Meeting Administration: The Board must meet at least four times per calendar year (s 25(2)(b)). It must keep formal minutes of all meetings (s 30). For decisions made without meetings under section 31, the Board must first pass a formal determination establishing how such decisions are to be agreed upon (s 31(2)) and maintain a separate, permanent record of all decisions made under this method (s 31(4)).

For the Chief Executive Officer

Administrative Alignment: The CEO must ensure that all day-to-day operations are strictly aligned with the strategies and policies determined by the Board (s 34(3)) and any written directions issued by the Board under section 35(1).
Outside Work Approvals: The CEO must obtain express written approval from the Board Chair prior to engaging in any paid work outside of their official duties (s 41).
Disclosure Compliance: The CEO must disclose all material personal interests directly to the Board in accordance with section 42, ensuring these disclosures are formally minuted.

For the Minister and Executive Staff

Merit-Based Appointments: When appointing Board members or the CEO, the Minister and Board must ensure the selection process is strictly merit-based and has included public advertising of the position (s 16(4), s 36(5)). If the Minister utilises the exemptions under section 16(5) (such as taking affirmative action or ensuring regional representation), the administrative files must explicitly document these grounds to defend against any future judicial review of the appointment.
Rule-Making Boundaries: Any rules drafted by the Minister under section 50 must be carefully vetted to ensure they do not trespass into the prohibited areas set out in section 50(2), such as attempting to impose taxes, creating civil penalties, or granting powers of entry or search.

High Speed Rail Authority Act 2022

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