Part 1
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Commonwealth act
**What this law does (mechanics first)
Establishes a new statutory body called "Infrastructure Australia" (s4). It is a corporate Commonwealth entity with a seal, can hold property, enter contracts and sue or be sued. The entity is subject to the Commonwealth governance rules in the Public Governance, Performance and Accountability Act 2013 (note to s4).
Sets out Infrastructure Australia’s core functions (s5). Those functions include: conducting national infrastructure audits (s5A); developing a national planning and assessment framework and evaluating infrastructure proposals (s5B); producing Infrastructure Priority Lists and Infrastructure Plans for Commonwealth investment (s5C); providing advice on infrastructure matters (s5D); assessing and reporting on certain Commonwealth‑funded projects that proceeded without prior evaluation (s5DA); preparing annual budget and performance statements (s5DB); and doing research and other functions conferred by law (s5).
Requires regular publication and tabling. For example, audits, the national planning and assessment framework, summaries of proposals evaluated, assessments and annual statements must be published on Infrastructure Australia’s website and tabled in each House of Parliament within defined timeframes (see s5A(4), s5B(3),(9),(10), s5DA(3),(4), s5DB(2)).
Imposes evaluation duties with climate considerations. When evaluating proposals Infrastructure Australia must consider impacts on Australia’s net greenhouse gas emissions and the achievement of Australia’s greenhouse gas emissions reduction targets (s5B(8A)). The Act defines what "Australia’s greenhouse gas emissions reduction targets" means (s3).
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Direct links to the current provisions in Infrastructure Australia Act 2008.
This Act may be cited as the Infrastructure Australia Act 2008.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to establish Infrastructure Australia as the Commonwealth Government’s independent adviser on nationally significant infrastructure investment planning and project prioritisation.
In this Act:
Australia’s greenhouse gas emissions reduction targets means:
(a) if:
(i) Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b) in any other case—the greenhouse gas emissions reduction targets included in:
(i) Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
CEO means the Chief Executive Officer of Infrastructure Australia appointed under section 29.
Chief Commissioner means the Chief Commissioner appointed under section 8.
Commissioner means a Commissioner appointed under section 8 and includes the Chief Commissioner.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
full‑time Commissioner means a Commissioner appointed on a full‑time basis.
Infrastructure Australia means the body established by section 4.
nationally significant infrastructure includes:
(a) transport infrastructure; and
(b) energy infrastructure; and
(c) communications infrastructure; and
(d) water infrastructure; and
(e) social infrastructure;
in which investment or further investment will materially improve national productivity.
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
part‑time Commissioner means a Commissioner appointed on a part‑time basis.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of a year.
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(1) Infrastructure Australia is established by this section. (2) Infrastructure Australia: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to Infrastructure Australia. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) Infrastructure Australia’s seal is to be kept in such custody as the Commissioners direct and must not be used except as authorised by the Commissioners. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of Infrastructure Australia appearing on a document; and (b) presume that the document was duly sealed.
Infrastructure Australia has the following functions: (a) to conduct audits in accordance with section 5A; (aa) to conduct or endorse evaluations in accordance with section 5B; (b) to develop lists (to be known as Infrastructure Priority Lists) and plans (to be known as Infrastructure Plans) in accordance with section 5C; (c) the functions mentioned in section 5D (providing advice on infrastructure matters); (d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA; (h) to undertake or commission research relating to Infrastructure Australia’s other functions; (i) any other functions conferred on Infrastructure Australia by or under this Act or any other law.
(1) For the purposes of paragraph 5(a), Infrastructure Australia has the function of conducting audits to determine the adequacy, capacity and condition of nationally significant infrastructure, taking into account: (a) forecast economic and population growth; and (b) economic, social and environmental sustainability; and (c) Australia’s greenhouse gas emissions reduction targets. (2) An audit must be prepared under this section at such intervals as the Commissioners determine. (3) In performing this function, Infrastructure Australia may consider State, Territory or local government reports on the adequacy, capacity and condition of nationally significant infrastructure. (4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
National planning and assessment framework (1) Infrastructure Australia must develop a national planning and assessment framework to promote national consistency and coordination in infrastructure evaluations. (2) The framework is not a legislative instrument. (3) Infrastructure Australia must give the framework to the Minister and publish the framework on Infrastructure Australia’s website. (4) Infrastructure Australia must review the framework at least every 5 years. (5) In developing and reviewing the framework, Infrastructure Australia must consult with States and Territories. Evaluations (6) For the purposes of paragraph 5(aa), Infrastructure Australia has the function of evaluating, or endorsing evaluations conducted by or for States or Territories of, proposals covered by subsection (7) that are submitted by any of the following: (a) the Commonwealth; (b) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); (c) a Commonwealth company (within the meaning of that Act); (d) a State; (e) a Territory. (7) For the purposes of subsection (6), this subsection covers proposals for investment in, or enhancements to, the following infrastructure: (a) nationally significant infrastructure; (b) other infrastructure determined by the Minister. (8) A determination made by the Minister under paragraph (7)(b) is a legislative instrument. (8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on: (a) Australia’s net greenhouse gas emissions, as reported in national inventory reports in accordance with: (i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and (ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and (b) the achievement of Australia’s greenhouse gas emissions reduction targets; and (c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(9) As soon as practicable after the end of each quarter, Infrastructure Australia must make available on its website: (a) a summary of each proposal evaluated by Infrastructure Australia during the quarter; and (b) a summary of each proposal for which Infrastructure Australia endorsed an evaluation during the quarter. Tabling requirement (10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised: (a) the national planning and assessment framework mentioned in subsection (1); (b) the summaries mentioned in subsection (9).
Infrastructure Priority Lists (1) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing targeted Infrastructure Priority Lists that: (a) specify priorities for Commonwealth investment in nationally significant infrastructure across Australia; and (b) take into account: (i) audits mentioned in section 5A; and (ii) evaluations conducted or endorsed by Infrastructure Australia in accordance with section 5B; and (iii) consultations with Commonwealth, State and Territory governments; and (iv) any other matters Infrastructure Australia considers relevant. (2) Infrastructure Australia must develop Infrastructure Priority Lists at such intervals as the Commissioners determine. Infrastructure Australia must also develop an Infrastructure Priority List if the Minister requests. Infrastructure Plans (3) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing Infrastructure Plans specifying priorities for nationally significant infrastructure across Australia. (4) An Infrastructure Plan: (a) must be developed at the request of the Minister; and (b) may be developed on Infrastructure Australia’s own initiative after consultation with the Minister. (5) An Infrastructure Plan must cover the period determined by the Commissioners after consultation with the Minister. (6) Infrastructure Australia must make an Infrastructure Plan available on Infrastructure Australia’s website within 14 days after it is developed. Tabling requirement (7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(1) For the purposes of paragraph 5(c), Infrastructure Australia has the following functions: (a) to identify any impediments to investment in nationally significant infrastructure and identify strategies to remove any impediments identified; (b) to promote the timely and efficient delivery of nationally significant infrastructure projects, consistent with considerations of social and environmental sustainability; (c) to identify and promote best practice in the planning and procurement of nationally significant infrastructure projects; (d) to review and provide advice on proposals to facilitate the harmonisation of policies, and laws, relating to development of, and investment in, infrastructure; (e) to review Commonwealth infrastructure funding programs and their alignment with Infrastructure Plans: (i) at the request of the Minister; or (ii) after consultation with the Minister; (f) to inquire into and report on matters relating to nationally significant infrastructure: (i) at the request of the Minister; or (ii) after consultation with the Minister. (2) For the purposes of paragraph 5(c), Infrastructure Australia has the function of providing advice to the Minister and the Commonwealth on matters relating to infrastructure, including in relation to the following: (a) Australia’s current and future needs and priorities relating to nationally significant infrastructure; (b) policy, pricing and regulatory issues that may impact on the utilisation of infrastructure; (c) policy issues arising from climate change, including the achievement of Australia’s greenhouse gas emissions reduction targets; (d) impediments to the efficient utilisation of national infrastructure networks; (e) options and reforms, including regulatory reforms, to make the utilisation of national infrastructure networks more efficient; (f) the needs of users of infrastructure; (g) mechanisms for financing investment in infrastructure; (h) the delivery of infrastructure projects. (3) For the purposes of paragraph (2)(h), Infrastructure Australia may evaluate the delivery of an infrastructure project, including evaluating: (a) the delivery against any targets set before or during delivery; and (b) any relevant assumptions made before or during delivery. (4) Infrastructure Australia also has the function of promoting public awareness of the matters mentioned in subsections (2) and (3), including by publishing information on its website.
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2). (2) A project is covered by this subsection if: (a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and (b) the project involves expenditure by or on behalf of the Commonwealth; and (c) the Commonwealth Government’s total expenditure involved in the project is more than $250 million; and (d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia. (3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment. (4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Other assessments (5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative. (6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Conduct of assessments (7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following: (a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and (b) an annual performance statement on the performance outcomes being achieved by States, Territories and local government authorities in relation to the infrastructure investment program and existing project initiatives funded by the Commonwealth. (2) Infrastructure Australia must cause each annual statement to be: (a) tabled in both Houses of the Parliament no later than 14 days prior to the scheduled public release of the annual Commonwealth budget each year; and (b) published on Infrastructure Australia’s website as soon as practicable after the annual statement is tabled in the Parliament.
In performing its functions and exercising its powers, Infrastructure Australia must have regard to the policies of the Commonwealth Government in relation to infrastructure.
(1) The Minister may give written directions to Infrastructure Australia about the performance of its functions. (2) In giving directions under subsection (1), the Minister may have regard to any relevant decisions of a body (however described) that consists only of, or that includes, the following: (a) the Prime Minister; (b) the Premiers of each State; (c) the Chief Ministers of the Australian Capital Territory and Northern Territory. (3) Directions given by the Minister under subsection (1) must be of a general nature only. (4) However, the Minister must not give directions about the content of any audit, list, evaluation, plan or advice to be provided by Infrastructure Australia. (5) Infrastructure Australia must comply with any direction given by the Minister under subsection (1). (6) A direction given by the Minister under subsection (1) is not a legislative instrument.
(1) Infrastructure Australia has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Infrastructure Australia’s powers include, but are not limited to, the following powers: (a) the power to enter into contracts and agreements; (b) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of Infrastructure Australia; (c) the power to acquire, hold and dispose of real or personal property; (d) the power to negotiate and cooperate with other Commonwealth bodies and with State, Territory and local government bodies; (e) the power to do anything incidental to any of its powers.
Infrastructure Australia must, in performing its functions and exercising its powers, consult with such of the following as it considers appropriate: (a) government, commercial, industrial, consumer, academic, professional and other relevant bodies and organisations; (b) investors in infrastructure and owners of infrastructure.
Infrastructure Australia does not have the privileges and immunities of the Crown in right of the Commonwealth.
An Act to establish Infrastructure Australia, and for related purposes
This Act may be cited as the Infrastructure Australia Act 2008.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to establish Infrastructure Australia as the Commonwealth Government’s independent adviser on nationally significant infrastructure investment planning and project prioritisation.
In this Act:
Australia’s greenhouse gas emissions reduction targets means:
(a) if:
(i) Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b) in any other case—the greenhouse gas emissions reduction targets included in:
(i) Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
CEO means the Chief Executive Officer of Infrastructure Australia appointed under section 29.
Chief Commissioner means the Chief Commissioner appointed under section 8.
Commissioner means a Commissioner appointed under section 8 and includes the Chief Commissioner.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
full‑time Commissioner means a Commissioner appointed on a full‑time basis.
Infrastructure Australia means the body established by section 4.
nationally significant infrastructure includes:
(a) transport infrastructure; and
(b) energy infrastructure; and
(c) communications infrastructure; and
(d) water infrastructure; and
(e) social infrastructure;
in which investment or further investment will materially improve national productivity.
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
part‑time Commissioner means a Commissioner appointed on a part‑time basis.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of a year.
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(1) Infrastructure Australia is established by this section. (2) Infrastructure Australia: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to Infrastructure Australia. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) Infrastructure Australia’s seal is to be kept in such custody as the Commissioners direct and must not be used except as authorised by the Commissioners. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of Infrastructure Australia appearing on a document; and (b) presume that the document was duly sealed.
Infrastructure Australia has the following functions: (a) to conduct audits in accordance with section 5A; (aa) to conduct or endorse evaluations in accordance with section 5B; (b) to develop lists (to be known as Infrastructure Priority Lists) and plans (to be known as Infrastructure Plans) in accordance with section 5C; (c) the functions mentioned in section 5D (providing advice on infrastructure matters); (d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA; (h) to undertake or commission research relating to Infrastructure Australia’s other functions; (i) any other functions conferred on Infrastructure Australia by or under this Act or any other law.
(1) For the purposes of paragraph 5(a), Infrastructure Australia has the function of conducting audits to determine the adequacy, capacity and condition of nationally significant infrastructure, taking into account: (a) forecast economic and population growth; and (b) economic, social and environmental sustainability; and (c) Australia’s greenhouse gas emissions reduction targets. (2) An audit must be prepared under this section at such intervals as the Commissioners determine. (3) In performing this function, Infrastructure Australia may consider State, Territory or local government reports on the adequacy, capacity and condition of nationally significant infrastructure. (4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
National planning and assessment framework (1) Infrastructure Australia must develop a national planning and assessment framework to promote national consistency and coordination in infrastructure evaluations. (2) The framework is not a legislative instrument. (3) Infrastructure Australia must give the framework to the Minister and publish the framework on Infrastructure Australia’s website. (4) Infrastructure Australia must review the framework at least every 5 years. (5) In developing and reviewing the framework, Infrastructure Australia must consult with States and Territories. Evaluations (6) For the purposes of paragraph 5(aa), Infrastructure Australia has the function of evaluating, or endorsing evaluations conducted by or for States or Territories of, proposals covered by subsection (7) that are submitted by any of the following: (a) the Commonwealth; (b) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); (c) a Commonwealth company (within the meaning of that Act); (d) a State; (e) a Territory. (7) For the purposes of subsection (6), this subsection covers proposals for investment in, or enhancements to, the following infrastructure: (a) nationally significant infrastructure; (b) other infrastructure determined by the Minister. (8) A determination made by the Minister under paragraph (7)(b) is a legislative instrument. (8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on: (a) Australia’s net greenhouse gas emissions, as reported in national inventory reports in accordance with: (i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and (ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and (b) the achievement of Australia’s greenhouse gas emissions reduction targets; and (c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(9) As soon as practicable after the end of each quarter, Infrastructure Australia must make available on its website: (a) a summary of each proposal evaluated by Infrastructure Australia during the quarter; and (b) a summary of each proposal for which Infrastructure Australia endorsed an evaluation during the quarter. Tabling requirement (10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised: (a) the national planning and assessment framework mentioned in subsection (1); (b) the summaries mentioned in subsection (9).
Infrastructure Priority Lists (1) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing targeted Infrastructure Priority Lists that: (a) specify priorities for Commonwealth investment in nationally significant infrastructure across Australia; and (b) take into account: (i) audits mentioned in section 5A; and (ii) evaluations conducted or endorsed by Infrastructure Australia in accordance with section 5B; and (iii) consultations with Commonwealth, State and Territory governments; and (iv) any other matters Infrastructure Australia considers relevant. (2) Infrastructure Australia must develop Infrastructure Priority Lists at such intervals as the Commissioners determine. Infrastructure Australia must also develop an Infrastructure Priority List if the Minister requests. Infrastructure Plans (3) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing Infrastructure Plans specifying priorities for nationally significant infrastructure across Australia. (4) An Infrastructure Plan: (a) must be developed at the request of the Minister; and (b) may be developed on Infrastructure Australia’s own initiative after consultation with the Minister. (5) An Infrastructure Plan must cover the period determined by the Commissioners after consultation with the Minister. (6) Infrastructure Australia must make an Infrastructure Plan available on Infrastructure Australia’s website within 14 days after it is developed. Tabling requirement (7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(1) For the purposes of paragraph 5(c), Infrastructure Australia has the following functions: (a) to identify any impediments to investment in nationally significant infrastructure and identify strategies to remove any impediments identified; (b) to promote the timely and efficient delivery of nationally significant infrastructure projects, consistent with considerations of social and environmental sustainability; (c) to identify and promote best practice in the planning and procurement of nationally significant infrastructure projects; (d) to review and provide advice on proposals to facilitate the harmonisation of policies, and laws, relating to development of, and investment in, infrastructure; (e) to review Commonwealth infrastructure funding programs and their alignment with Infrastructure Plans: (i) at the request of the Minister; or (ii) after consultation with the Minister; (f) to inquire into and report on matters relating to nationally significant infrastructure: (i) at the request of the Minister; or (ii) after consultation with the Minister. (2) For the purposes of paragraph 5(c), Infrastructure Australia has the function of providing advice to the Minister and the Commonwealth on matters relating to infrastructure, including in relation to the following: (a) Australia’s current and future needs and priorities relating to nationally significant infrastructure; (b) policy, pricing and regulatory issues that may impact on the utilisation of infrastructure; (c) policy issues arising from climate change, including the achievement of Australia’s greenhouse gas emissions reduction targets; (d) impediments to the efficient utilisation of national infrastructure networks; (e) options and reforms, including regulatory reforms, to make the utilisation of national infrastructure networks more efficient; (f) the needs of users of infrastructure; (g) mechanisms for financing investment in infrastructure; (h) the delivery of infrastructure projects. (3) For the purposes of paragraph (2)(h), Infrastructure Australia may evaluate the delivery of an infrastructure project, including evaluating: (a) the delivery against any targets set before or during delivery; and (b) any relevant assumptions made before or during delivery. (4) Infrastructure Australia also has the function of promoting public awareness of the matters mentioned in subsections (2) and (3), including by publishing information on its website.
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2). (2) A project is covered by this subsection if: (a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and (b) the project involves expenditure by or on behalf of the Commonwealth; and (c) the Commonwealth Government’s total expenditure involved in the project is more than $250 million; and (d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia. (3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment. (4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Other assessments (5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative. (6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Conduct of assessments (7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following: (a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and (b) an annual performance statement on the performance outcomes being achieved by States, Territories and local government authorities in relation to the infrastructure investment program and existing project initiatives funded by the Commonwealth. (2) Infrastructure Australia must cause each annual statement to be: (a) tabled in both Houses of the Parliament no later than 14 days prior to the scheduled public release of the annual Commonwealth budget each year; and (b) published on Infrastructure Australia’s website as soon as practicable after the annual statement is tabled in the Parliament.
In performing its functions and exercising its powers, Infrastructure Australia must have regard to the policies of the Commonwealth Government in relation to infrastructure.
(1) The Minister may give written directions to Infrastructure Australia about the performance of its functions. (2) In giving directions under subsection (1), the Minister may have regard to any relevant decisions of a body (however described) that consists only of, or that includes, the following: (a) the Prime Minister; (b) the Premiers of each State; (c) the Chief Ministers of the Australian Capital Territory and Northern Territory. (3) Directions given by the Minister under subsection (1) must be of a general nature only. (4) However, the Minister must not give directions about the content of any audit, list, evaluation, plan or advice to be provided by Infrastructure Australia. (5) Infrastructure Australia must comply with any direction given by the Minister under subsection (1). (6) A direction given by the Minister under subsection (1) is not a legislative instrument.
(1) Infrastructure Australia has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Infrastructure Australia’s powers include, but are not limited to, the following powers: (a) the power to enter into contracts and agreements; (b) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of Infrastructure Australia; (c) the power to acquire, hold and dispose of real or personal property; (d) the power to negotiate and cooperate with other Commonwealth bodies and with State, Territory and local government bodies; (e) the power to do anything incidental to any of its powers.
Infrastructure Australia must, in performing its functions and exercising its powers, consult with such of the following as it considers appropriate: (a) government, commercial, industrial, consumer, academic, professional and other relevant bodies and organisations; (b) investors in infrastructure and owners of infrastructure.
Infrastructure Australia does not have the privileges and immunities of the Crown in right of the Commonwealth.
(1) The functions of the Commissioners are: (a) to decide the objectives, strategies and policies to be followed by Infrastructure Australia; and (b) to ensure the proper, efficient and effective performance of Infrastructure Australia’s functions; and (c) any other functions conferred on the Commissioners by this Act. (2) The Commissioners have the power to do all things necessary or convenient to be done for or in connection with the performance of their functions. (3) In performing their functions and exercising their powers, the Commissioners must have regard to the policies of the Commonwealth Government in relation to infrastructure. (4) Anything done in the name of, or on behalf of, Infrastructure Australia by the Commissioners, or with the authority of the Commissioners, is taken to have been done by Infrastructure Australia. (5) If a function or power of Infrastructure Australia is dependent on the opinion, belief or state of mind of Infrastructure Australia in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (4) in relation to that matter.
Infrastructure Australia consists of: (a) the Chief Commissioner; and (b) 2 other Commissioners.
Note: The Commissioners are the accountable authority of Infrastructure Australia: see section 12 of the Public Governance, Performance and Accountability Act 2013.
(1) Commissioners (including the Chief Commissioner) are to be appointed by the Minister by written instrument. (2) A Commissioner may be appointed on a full‑time or part‑time basis. (2A) In appointing the Commissioners, the Minister must ensure that at least one of the Commissioners has a substantial connection to, or substantial experience in, a regional area through business, industry or community involvement. (3) A person must not be appointed as a Commissioner 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. (4) Paragraph (3)(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 States, Territories and local government areas in relation to appointments to positions. (5) Paragraph (3)(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 Commissioner under a previous appointment under subsection (1).
A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: A Commissioner is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
(1) The Minister may appoint a Commissioner to act as the Chief Commissioner: (a) during a vacancy in the office of Chief Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chief Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint a person to act as a Commissioner: (a) during a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(1) A Commissioner 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 Commissioner is to be paid the remuneration that is prescribed. (2) A Commissioner is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
Full‑time Commissioner (1) A full‑time Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) If the Chief Commissioner is a full‑time Commissioner, the Minister may grant the Chief Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. (3) The Chief Commissioner may grant a full‑time Commissioner (other than the Chief Commissioner) leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines. Part‑time Commissioner (4) If the Chief Commissioner is a part‑time Commissioner, the Minister may grant leave of absence to the Chief Commissioner on the terms and conditions that the Minister determines. (5) The Chief Commissioner may grant leave of absence to a part‑time Commissioner (other than the Chief Commissioner) on the terms and conditions that the Chief Commissioner determines.
A full‑time Commissioner must not engage in paid employment outside the duties of the Commissioner’s office without the Minister’s approval.
A Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) A Commissioner may resign the Commissioner’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.
All Commissioners (1) The Minister may terminate the appointment of a Commissioner: (a) for misbehaviour; or (b) if the Commissioner is unable to perform the duties of the Commissioner’s office because of physical or mental incapacity. (2) The Minister may terminate the appointment of a Commissioner if the Commissioner: (a) becomes bankrupt; or (b) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (c) compounds with one or more of the Commissioner’s creditors; or (d) makes an assignment of the Commissioner’s remuneration for the benefit of one or more of the Commissioner’s creditors.
Note: The appointment of a Commissioner 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).
Additional grounds for full‑time Commissioner (3) The Minister may terminate the appointment of a full‑time Commissioner if: (a) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (b) the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of the Commissioner’s office (see section 15). Additional ground for part‑time Commissioner (4) The Minister may terminate the appointment of a part‑time Commissioner if the Commissioner is absent, except on leave of absence, from 3 consecutive meetings of Infrastructure Australia.
(1) The Commissioners must hold the meetings that are necessary for the efficient performance of their functions. (2) Meetings are to be held at the times and places that the Commissioners determine. (3) The Chief Commissioner: (a) may convene a meeting; and (b) must convene at least 4 meetings each calendar year; and (c) must convene a meeting if requested in writing by: (i) another Commissioner; or (ii) the Minister.
(1) The Chief Commissioner must preside at all meetings at which the Chief Commissioner is present. (2) If the Chief Commissioner is not present at a meeting, the other Commissioners present must appoint one of themselves to preside.
(1) At a meeting of the Commissioners, 2 Commissioners constitute a quorum. (2) However, if: (a) a Commissioner 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 Commissioners with respect to a particular matter; and (b) when the Commissioner leaves the meeting concerned there is no longer a quorum present; the remaining Commissioners at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
(1) A question arising at a meeting is to be determined by a majority of the votes of the Commissioners present and voting. (2) The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, a casting vote.
The Commissioners may regulate proceedings at their meetings as they consider appropriate.
Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Commissioners may participate in meetings.
The Commissioners must keep minutes of their meetings.
(1) The Commissioners are taken to have made a decision at a meeting if: (a) without meeting, a majority of the Commissioners 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 Commissioners under subsection (2); and (c) all the Commissioners were informed of the proposed decision, or reasonable efforts were made to inform all the Commissioners of the proposed decision. (2) Subsection (1) applies only if the Commissioners: (a) have determined that they may make decisions of that kind without meeting; and (b) have determined the method by which Commissioners are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a Commissioner is not entitled to vote on a proposed decision if the Commissioner would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Commissioners. (4) The Commissioners must keep a record of decisions made in accordance with this section.
There is to be a Chief Executive Officer of Infrastructure Australia.
(1) The CEO is responsible for the day‑to‑day administration of Infrastructure Australia. (2) The CEO has any functions conferred on the CEO by or under this Act or any other law. (3) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.
(1) The CEO is to act in accordance with policies determined by the Commissioners. (2) The Commissioners may give written directions to the CEO about the performance of the CEO’s responsibilities. (3) The CEO must comply with a direction under subsection (2). (4) Subsection (3) 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. (5) A direction under subsection (2) is not a legislative instrument.
(1) The CEO is to be appointed by the Commissioners by written instrument. (2) The CEO is to be appointed on a full‑time basis.
The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The CEO is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
The Commissioners may appoint a person to act as the CEO: (a) during a vacancy in the office of the 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 is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(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. (2) The CEO is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Chief Commissioner may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines.
(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 Commissioners. (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.
The CEO must not engage in paid employment outside the duties of his or her office without the Chief Commissioner’s approval.
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 Commissioners.
(1) The CEO may resign his or her appointment by giving the Chief Commissioner a written resignation. (2) The resignation takes effect on the day it is received by the Chief Commissioner or, if a later day is specified in the resignation, on that later day.
The Commissioners may terminate the appointment of the CEO at any time, by instrument in writing.
(1) Infrastructure Australia may do either or both of the following: (a) engage persons under the Public Service Act 1999; (b) employ under written agreements such persons as Infrastructure Australia thinks necessary for the performance or exercise of any of its functions or powers. (2) For the purposes of the Public Service Act 1999: (a) the CEO and the APS employees referred to in paragraph (1)(a) together constitute a Statutory Agency; and (b) the CEO is the Head of that Statutory Agency. (3) The terms and conditions of employment of persons employed under paragraph (1)(b) are such as the CEO determines from time to time.
(1) Infrastructure Australia may be assisted by: (a) persons engaged under the Public Service Act 1999, and officers and employees of authorities of the Commonwealth, whose services are made available to Infrastructure Australia in connection with the performance of its functions or the exercise of its powers; and (b) persons whose services are so made available under arrangements made under subsection (2). (2) Infrastructure Australia may make with the appropriate authority or officer of a State or Territory an arrangement under which the State or Territory may make officers or employees available to Infrastructure Australia to perform services in connection with the performance of its functions or the exercise of its powers.
Infrastructure Australia may engage consultants to assist in the performance of its functions.
In preparing or varying a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Commissioners must consult with: (a) the Minister; and (b) such of the following as the Commissioners consider appropriate: (i) government, commercial, industrial, consumer and other relevant bodies and organisations; (ii) investors in infrastructure and owners of infrastructure.
The annual report prepared by the Commissioners and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include details of any directions given to Infrastructure Australia by the Minister under subsection 6(1) of this Act during the period.
(1) There is payable to Infrastructure Australia such money as is appropriated by the Parliament for the purposes of Infrastructure Australia. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to Infrastructure Australia. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
(1) The money of Infrastructure Australia is to be applied only: (a) in payment or discharge of the costs, expenses and other obligations incurred or undertaken by Infrastructure Australia in the performance of its functions and the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act. (2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of Infrastructure Australia.
(1) Infrastructure Australia must not, without the written approval of the Minister: (a) acquire any property, right or privilege for a consideration exceeding in amount or value the amount prescribed by the regulations for the purposes of this paragraph; or (b) dispose of any property, right or privilege if the amount or value of the consideration for the disposal, or the value of the property, right or privilege, exceeds the amount prescribed by the regulations for the purposes of this paragraph; or (c) enter into a lease of land for a period exceeding 10 years. (5) An approval under subsection (1) is not a legislative instrument.
Infrastructure Australia is not subject to taxation under any law of the Commonwealth or of a State or Territory.
Note: Despite this section, Infrastructure Australia may be subject to taxation under certain laws (see, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).
(1) The Minister may, by writing, delegate any or all of his or her functions and powers under this Act (other than a function or power under section 6, 8 or 18) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department. (2) In exercising functions or powers delegated under subsection (1), the delegate must comply with any directions of the Minister.
(1) Infrastructure Australia may, in writing under its seal, delegate any or all of its powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of Infrastructure Australia.
(1) The Commissioners may, in writing, delegate any or all of the Commissioners’ powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of the Commissioners.
(1) The CEO may, in writing, delegate any of the CEO’s powers or functions under this Act to a person mentioned in section 39 or 39A who: (a) is an SES employee, or acting SES employee; or (b) holds, or is acting in, an Executive Level 2 position; or (c) occupies an office or holds a position equivalent to that of an SES employee or an Executive Level 2 position. (2) If Infrastructure Australia or the Commissioners delegate a power or function under subsection 40A(1) or 40B(1) to the CEO, the CEO may, in writing, subdelegate the power or function to a person mentioned in paragraph (1)(a), (b) or (c) of this section. (3) In exercising any powers or performing any functions under the delegation or subdelegation, the delegate or subdelegate must comply with any directions of the CEO. (4) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a subdelegation in a corresponding way to the way in which they apply in relation to a delegation.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
An Act to establish Infrastructure Australia, and for related purposes
This Act may be cited as the Infrastructure Australia Act 2008.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to establish Infrastructure Australia as the Commonwealth Government’s independent adviser on nationally significant infrastructure investment planning and project prioritisation.
In this Act:
Australia’s greenhouse gas emissions reduction targets means:
(a) if:
(i) Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b) in any other case—the greenhouse gas emissions reduction targets included in:
(i) Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
CEO means the Chief Executive Officer of Infrastructure Australia appointed under section 29.
Chief Commissioner means the Chief Commissioner appointed under section 8.
Commissioner means a Commissioner appointed under section 8 and includes the Chief Commissioner.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
full‑time Commissioner means a Commissioner appointed on a full‑time basis.
Infrastructure Australia means the body established by section 4.
nationally significant infrastructure includes:
(a) transport infrastructure; and
(b) energy infrastructure; and
(c) communications infrastructure; and
(d) water infrastructure; and
(e) social infrastructure;
in which investment or further investment will materially improve national productivity.
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
part‑time Commissioner means a Commissioner appointed on a part‑time basis.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of a year.
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(1) Infrastructure Australia is established by this section. (2) Infrastructure Australia: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to Infrastructure Australia. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) Infrastructure Australia’s seal is to be kept in such custody as the Commissioners direct and must not be used except as authorised by the Commissioners. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of Infrastructure Australia appearing on a document; and (b) presume that the document was duly sealed.
Infrastructure Australia has the following functions: (a) to conduct audits in accordance with section 5A; (aa) to conduct or endorse evaluations in accordance with section 5B; (b) to develop lists (to be known as Infrastructure Priority Lists) and plans (to be known as Infrastructure Plans) in accordance with section 5C; (c) the functions mentioned in section 5D (providing advice on infrastructure matters); (d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA; (h) to undertake or commission research relating to Infrastructure Australia’s other functions; (i) any other functions conferred on Infrastructure Australia by or under this Act or any other law.
(1) For the purposes of paragraph 5(a), Infrastructure Australia has the function of conducting audits to determine the adequacy, capacity and condition of nationally significant infrastructure, taking into account: (a) forecast economic and population growth; and (b) economic, social and environmental sustainability; and (c) Australia’s greenhouse gas emissions reduction targets. (2) An audit must be prepared under this section at such intervals as the Commissioners determine. (3) In performing this function, Infrastructure Australia may consider State, Territory or local government reports on the adequacy, capacity and condition of nationally significant infrastructure. (4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
National planning and assessment framework (1) Infrastructure Australia must develop a national planning and assessment framework to promote national consistency and coordination in infrastructure evaluations. (2) The framework is not a legislative instrument. (3) Infrastructure Australia must give the framework to the Minister and publish the framework on Infrastructure Australia’s website. (4) Infrastructure Australia must review the framework at least every 5 years. (5) In developing and reviewing the framework, Infrastructure Australia must consult with States and Territories. Evaluations (6) For the purposes of paragraph 5(aa), Infrastructure Australia has the function of evaluating, or endorsing evaluations conducted by or for States or Territories of, proposals covered by subsection (7) that are submitted by any of the following: (a) the Commonwealth; (b) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); (c) a Commonwealth company (within the meaning of that Act); (d) a State; (e) a Territory. (7) For the purposes of subsection (6), this subsection covers proposals for investment in, or enhancements to, the following infrastructure: (a) nationally significant infrastructure; (b) other infrastructure determined by the Minister. (8) A determination made by the Minister under paragraph (7)(b) is a legislative instrument. (8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on: (a) Australia’s net greenhouse gas emissions, as reported in national inventory reports in accordance with: (i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and (ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and (b) the achievement of Australia’s greenhouse gas emissions reduction targets; and (c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(9) As soon as practicable after the end of each quarter, Infrastructure Australia must make available on its website: (a) a summary of each proposal evaluated by Infrastructure Australia during the quarter; and (b) a summary of each proposal for which Infrastructure Australia endorsed an evaluation during the quarter. Tabling requirement (10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised: (a) the national planning and assessment framework mentioned in subsection (1); (b) the summaries mentioned in subsection (9).
Infrastructure Priority Lists (1) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing targeted Infrastructure Priority Lists that: (a) specify priorities for Commonwealth investment in nationally significant infrastructure across Australia; and (b) take into account: (i) audits mentioned in section 5A; and (ii) evaluations conducted or endorsed by Infrastructure Australia in accordance with section 5B; and (iii) consultations with Commonwealth, State and Territory governments; and (iv) any other matters Infrastructure Australia considers relevant. (2) Infrastructure Australia must develop Infrastructure Priority Lists at such intervals as the Commissioners determine. Infrastructure Australia must also develop an Infrastructure Priority List if the Minister requests. Infrastructure Plans (3) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing Infrastructure Plans specifying priorities for nationally significant infrastructure across Australia. (4) An Infrastructure Plan: (a) must be developed at the request of the Minister; and (b) may be developed on Infrastructure Australia’s own initiative after consultation with the Minister. (5) An Infrastructure Plan must cover the period determined by the Commissioners after consultation with the Minister. (6) Infrastructure Australia must make an Infrastructure Plan available on Infrastructure Australia’s website within 14 days after it is developed. Tabling requirement (7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(1) For the purposes of paragraph 5(c), Infrastructure Australia has the following functions: (a) to identify any impediments to investment in nationally significant infrastructure and identify strategies to remove any impediments identified; (b) to promote the timely and efficient delivery of nationally significant infrastructure projects, consistent with considerations of social and environmental sustainability; (c) to identify and promote best practice in the planning and procurement of nationally significant infrastructure projects; (d) to review and provide advice on proposals to facilitate the harmonisation of policies, and laws, relating to development of, and investment in, infrastructure; (e) to review Commonwealth infrastructure funding programs and their alignment with Infrastructure Plans: (i) at the request of the Minister; or (ii) after consultation with the Minister; (f) to inquire into and report on matters relating to nationally significant infrastructure: (i) at the request of the Minister; or (ii) after consultation with the Minister. (2) For the purposes of paragraph 5(c), Infrastructure Australia has the function of providing advice to the Minister and the Commonwealth on matters relating to infrastructure, including in relation to the following: (a) Australia’s current and future needs and priorities relating to nationally significant infrastructure; (b) policy, pricing and regulatory issues that may impact on the utilisation of infrastructure; (c) policy issues arising from climate change, including the achievement of Australia’s greenhouse gas emissions reduction targets; (d) impediments to the efficient utilisation of national infrastructure networks; (e) options and reforms, including regulatory reforms, to make the utilisation of national infrastructure networks more efficient; (f) the needs of users of infrastructure; (g) mechanisms for financing investment in infrastructure; (h) the delivery of infrastructure projects. (3) For the purposes of paragraph (2)(h), Infrastructure Australia may evaluate the delivery of an infrastructure project, including evaluating: (a) the delivery against any targets set before or during delivery; and (b) any relevant assumptions made before or during delivery. (4) Infrastructure Australia also has the function of promoting public awareness of the matters mentioned in subsections (2) and (3), including by publishing information on its website.
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2). (2) A project is covered by this subsection if: (a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and (b) the project involves expenditure by or on behalf of the Commonwealth; and (c) the Commonwealth Government’s total expenditure involved in the project is more than $250 million; and (d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia. (3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment. (4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Other assessments (5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative. (6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Conduct of assessments (7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following: (a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and (b) an annual performance statement on the performance outcomes being achieved by States, Territories and local government authorities in relation to the infrastructure investment program and existing project initiatives funded by the Commonwealth. (2) Infrastructure Australia must cause each annual statement to be: (a) tabled in both Houses of the Parliament no later than 14 days prior to the scheduled public release of the annual Commonwealth budget each year; and (b) published on Infrastructure Australia’s website as soon as practicable after the annual statement is tabled in the Parliament.
In performing its functions and exercising its powers, Infrastructure Australia must have regard to the policies of the Commonwealth Government in relation to infrastructure.
(1) The Minister may give written directions to Infrastructure Australia about the performance of its functions. (2) In giving directions under subsection (1), the Minister may have regard to any relevant decisions of a body (however described) that consists only of, or that includes, the following: (a) the Prime Minister; (b) the Premiers of each State; (c) the Chief Ministers of the Australian Capital Territory and Northern Territory. (3) Directions given by the Minister under subsection (1) must be of a general nature only. (4) However, the Minister must not give directions about the content of any audit, list, evaluation, plan or advice to be provided by Infrastructure Australia. (5) Infrastructure Australia must comply with any direction given by the Minister under subsection (1). (6) A direction given by the Minister under subsection (1) is not a legislative instrument.
(1) Infrastructure Australia has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Infrastructure Australia’s powers include, but are not limited to, the following powers: (a) the power to enter into contracts and agreements; (b) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of Infrastructure Australia; (c) the power to acquire, hold and dispose of real or personal property; (d) the power to negotiate and cooperate with other Commonwealth bodies and with State, Territory and local government bodies; (e) the power to do anything incidental to any of its powers.
Infrastructure Australia must, in performing its functions and exercising its powers, consult with such of the following as it considers appropriate: (a) government, commercial, industrial, consumer, academic, professional and other relevant bodies and organisations; (b) investors in infrastructure and owners of infrastructure.
Infrastructure Australia does not have the privileges and immunities of the Crown in right of the Commonwealth.
(1) The functions of the Commissioners are: (a) to decide the objectives, strategies and policies to be followed by Infrastructure Australia; and (b) to ensure the proper, efficient and effective performance of Infrastructure Australia’s functions; and (c) any other functions conferred on the Commissioners by this Act. (2) The Commissioners have the power to do all things necessary or convenient to be done for or in connection with the performance of their functions. (3) In performing their functions and exercising their powers, the Commissioners must have regard to the policies of the Commonwealth Government in relation to infrastructure. (4) Anything done in the name of, or on behalf of, Infrastructure Australia by the Commissioners, or with the authority of the Commissioners, is taken to have been done by Infrastructure Australia. (5) If a function or power of Infrastructure Australia is dependent on the opinion, belief or state of mind of Infrastructure Australia in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (4) in relation to that matter.
Infrastructure Australia consists of: (a) the Chief Commissioner; and (b) 2 other Commissioners.
Note: The Commissioners are the accountable authority of Infrastructure Australia: see section 12 of the Public Governance, Performance and Accountability Act 2013.
(1) Commissioners (including the Chief Commissioner) are to be appointed by the Minister by written instrument. (2) A Commissioner may be appointed on a full‑time or part‑time basis. (2A) In appointing the Commissioners, the Minister must ensure that at least one of the Commissioners has a substantial connection to, or substantial experience in, a regional area through business, industry or community involvement. (3) A person must not be appointed as a Commissioner 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. (4) Paragraph (3)(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 States, Territories and local government areas in relation to appointments to positions. (5) Paragraph (3)(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 Commissioner under a previous appointment under subsection (1).
A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: A Commissioner is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
(1) The Minister may appoint a Commissioner to act as the Chief Commissioner: (a) during a vacancy in the office of Chief Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chief Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint a person to act as a Commissioner: (a) during a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(1) A Commissioner 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 Commissioner is to be paid the remuneration that is prescribed. (2) A Commissioner is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
Full‑time Commissioner (1) A full‑time Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) If the Chief Commissioner is a full‑time Commissioner, the Minister may grant the Chief Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. (3) The Chief Commissioner may grant a full‑time Commissioner (other than the Chief Commissioner) leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines. Part‑time Commissioner (4) If the Chief Commissioner is a part‑time Commissioner, the Minister may grant leave of absence to the Chief Commissioner on the terms and conditions that the Minister determines. (5) The Chief Commissioner may grant leave of absence to a part‑time Commissioner (other than the Chief Commissioner) on the terms and conditions that the Chief Commissioner determines.
A full‑time Commissioner must not engage in paid employment outside the duties of the Commissioner’s office without the Minister’s approval.
A Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) A Commissioner may resign the Commissioner’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.
All Commissioners (1) The Minister may terminate the appointment of a Commissioner: (a) for misbehaviour; or (b) if the Commissioner is unable to perform the duties of the Commissioner’s office because of physical or mental incapacity. (2) The Minister may terminate the appointment of a Commissioner if the Commissioner: (a) becomes bankrupt; or (b) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (c) compounds with one or more of the Commissioner’s creditors; or (d) makes an assignment of the Commissioner’s remuneration for the benefit of one or more of the Commissioner’s creditors.
Note: The appointment of a Commissioner 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).
Additional grounds for full‑time Commissioner (3) The Minister may terminate the appointment of a full‑time Commissioner if: (a) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (b) the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of the Commissioner’s office (see section 15). Additional ground for part‑time Commissioner (4) The Minister may terminate the appointment of a part‑time Commissioner if the Commissioner is absent, except on leave of absence, from 3 consecutive meetings of Infrastructure Australia.
(1) The Commissioners must hold the meetings that are necessary for the efficient performance of their functions. (2) Meetings are to be held at the times and places that the Commissioners determine. (3) The Chief Commissioner: (a) may convene a meeting; and (b) must convene at least 4 meetings each calendar year; and (c) must convene a meeting if requested in writing by: (i) another Commissioner; or (ii) the Minister.
(1) The Chief Commissioner must preside at all meetings at which the Chief Commissioner is present. (2) If the Chief Commissioner is not present at a meeting, the other Commissioners present must appoint one of themselves to preside.
(1) At a meeting of the Commissioners, 2 Commissioners constitute a quorum. (2) However, if: (a) a Commissioner 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 Commissioners with respect to a particular matter; and (b) when the Commissioner leaves the meeting concerned there is no longer a quorum present; the remaining Commissioners at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
(1) A question arising at a meeting is to be determined by a majority of the votes of the Commissioners present and voting. (2) The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, a casting vote.
The Commissioners may regulate proceedings at their meetings as they consider appropriate.
Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Commissioners may participate in meetings.
The Commissioners must keep minutes of their meetings.
(1) The Commissioners are taken to have made a decision at a meeting if: (a) without meeting, a majority of the Commissioners 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 Commissioners under subsection (2); and (c) all the Commissioners were informed of the proposed decision, or reasonable efforts were made to inform all the Commissioners of the proposed decision. (2) Subsection (1) applies only if the Commissioners: (a) have determined that they may make decisions of that kind without meeting; and (b) have determined the method by which Commissioners are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a Commissioner is not entitled to vote on a proposed decision if the Commissioner would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Commissioners. (4) The Commissioners must keep a record of decisions made in accordance with this section.
There is to be a Chief Executive Officer of Infrastructure Australia.
(1) The CEO is responsible for the day‑to‑day administration of Infrastructure Australia. (2) The CEO has any functions conferred on the CEO by or under this Act or any other law. (3) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.
(1) The CEO is to act in accordance with policies determined by the Commissioners. (2) The Commissioners may give written directions to the CEO about the performance of the CEO’s responsibilities. (3) The CEO must comply with a direction under subsection (2). (4) Subsection (3) 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. (5) A direction under subsection (2) is not a legislative instrument.
(1) The CEO is to be appointed by the Commissioners by written instrument. (2) The CEO is to be appointed on a full‑time basis.
The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The CEO is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
The Commissioners may appoint a person to act as the CEO: (a) during a vacancy in the office of the 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 is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(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. (2) The CEO is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Chief Commissioner may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines.
(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 Commissioners. (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.
The CEO must not engage in paid employment outside the duties of his or her office without the Chief Commissioner’s approval.
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 Commissioners.
(1) The CEO may resign his or her appointment by giving the Chief Commissioner a written resignation. (2) The resignation takes effect on the day it is received by the Chief Commissioner or, if a later day is specified in the resignation, on that later day.
The Commissioners may terminate the appointment of the CEO at any time, by instrument in writing.
(1) Infrastructure Australia may do either or both of the following: (a) engage persons under the Public Service Act 1999; (b) employ under written agreements such persons as Infrastructure Australia thinks necessary for the performance or exercise of any of its functions or powers. (2) For the purposes of the Public Service Act 1999: (a) the CEO and the APS employees referred to in paragraph (1)(a) together constitute a Statutory Agency; and (b) the CEO is the Head of that Statutory Agency. (3) The terms and conditions of employment of persons employed under paragraph (1)(b) are such as the CEO determines from time to time.
(1) Infrastructure Australia may be assisted by: (a) persons engaged under the Public Service Act 1999, and officers and employees of authorities of the Commonwealth, whose services are made available to Infrastructure Australia in connection with the performance of its functions or the exercise of its powers; and (b) persons whose services are so made available under arrangements made under subsection (2). (2) Infrastructure Australia may make with the appropriate authority or officer of a State or Territory an arrangement under which the State or Territory may make officers or employees available to Infrastructure Australia to perform services in connection with the performance of its functions or the exercise of its powers.
Infrastructure Australia may engage consultants to assist in the performance of its functions.
In preparing or varying a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Commissioners must consult with: (a) the Minister; and (b) such of the following as the Commissioners consider appropriate: (i) government, commercial, industrial, consumer and other relevant bodies and organisations; (ii) investors in infrastructure and owners of infrastructure.
The annual report prepared by the Commissioners and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include details of any directions given to Infrastructure Australia by the Minister under subsection 6(1) of this Act during the period.
(1) There is payable to Infrastructure Australia such money as is appropriated by the Parliament for the purposes of Infrastructure Australia. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to Infrastructure Australia. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
(1) The money of Infrastructure Australia is to be applied only: (a) in payment or discharge of the costs, expenses and other obligations incurred or undertaken by Infrastructure Australia in the performance of its functions and the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act. (2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of Infrastructure Australia.
(1) Infrastructure Australia must not, without the written approval of the Minister: (a) acquire any property, right or privilege for a consideration exceeding in amount or value the amount prescribed by the regulations for the purposes of this paragraph; or (b) dispose of any property, right or privilege if the amount or value of the consideration for the disposal, or the value of the property, right or privilege, exceeds the amount prescribed by the regulations for the purposes of this paragraph; or (c) enter into a lease of land for a period exceeding 10 years. (5) An approval under subsection (1) is not a legislative instrument.
Infrastructure Australia is not subject to taxation under any law of the Commonwealth or of a State or Territory.
Note: Despite this section, Infrastructure Australia may be subject to taxation under certain laws (see, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).
(1) The Minister may, by writing, delegate any or all of his or her functions and powers under this Act (other than a function or power under section 6, 8 or 18) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department. (2) In exercising functions or powers delegated under subsection (1), the delegate must comply with any directions of the Minister.
(1) Infrastructure Australia may, in writing under its seal, delegate any or all of its powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of Infrastructure Australia.
(1) The Commissioners may, in writing, delegate any or all of the Commissioners’ powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of the Commissioners.
(1) The CEO may, in writing, delegate any of the CEO’s powers or functions under this Act to a person mentioned in section 39 or 39A who: (a) is an SES employee, or acting SES employee; or (b) holds, or is acting in, an Executive Level 2 position; or (c) occupies an office or holds a position equivalent to that of an SES employee or an Executive Level 2 position. (2) If Infrastructure Australia or the Commissioners delegate a power or function under subsection 40A(1) or 40B(1) to the CEO, the CEO may, in writing, subdelegate the power or function to a person mentioned in paragraph (1)(a), (b) or (c) of this section. (3) In exercising any powers or performing any functions under the delegation or subdelegation, the delegate or subdelegate must comply with any directions of the CEO. (4) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a subdelegation in a corresponding way to the way in which they apply in relation to a delegation.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(1) The functions of the Commissioners are: (a) to decide the objectives, strategies and policies to be followed by Infrastructure Australia; and (b) to ensure the proper, efficient and effective performance of Infrastructure Australia’s functions; and (c) any other functions conferred on the Commissioners by this Act. (2) The Commissioners have the power to do all things necessary or convenient to be done for or in connection with the performance of their functions. (3) In performing their functions and exercising their powers, the Commissioners must have regard to the policies of the Commonwealth Government in relation to infrastructure. (4) Anything done in the name of, or on behalf of, Infrastructure Australia by the Commissioners, or with the authority of the Commissioners, is taken to have been done by Infrastructure Australia. (5) If a function or power of Infrastructure Australia is dependent on the opinion, belief or state of mind of Infrastructure Australia in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (4) in relation to that matter.
An Act to establish Infrastructure Australia, and for related purposes
This Act may be cited as the Infrastructure Australia Act 2008.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to establish Infrastructure Australia as the Commonwealth Government’s independent adviser on nationally significant infrastructure investment planning and project prioritisation.
In this Act:
Australia’s greenhouse gas emissions reduction targets means:
(a) if:
(i) Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b) in any other case—the greenhouse gas emissions reduction targets included in:
(i) Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
CEO means the Chief Executive Officer of Infrastructure Australia appointed under section 29.
Chief Commissioner means the Chief Commissioner appointed under section 8.
Commissioner means a Commissioner appointed under section 8 and includes the Chief Commissioner.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
full‑time Commissioner means a Commissioner appointed on a full‑time basis.
Infrastructure Australia means the body established by section 4.
nationally significant infrastructure includes:
(a) transport infrastructure; and
(b) energy infrastructure; and
(c) communications infrastructure; and
(d) water infrastructure; and
(e) social infrastructure;
in which investment or further investment will materially improve national productivity.
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
part‑time Commissioner means a Commissioner appointed on a part‑time basis.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of a year.
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(1) Infrastructure Australia is established by this section. (2) Infrastructure Australia: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to Infrastructure Australia. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) Infrastructure Australia’s seal is to be kept in such custody as the Commissioners direct and must not be used except as authorised by the Commissioners. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of Infrastructure Australia appearing on a document; and (b) presume that the document was duly sealed.
Infrastructure Australia has the following functions: (a) to conduct audits in accordance with section 5A; (aa) to conduct or endorse evaluations in accordance with section 5B; (b) to develop lists (to be known as Infrastructure Priority Lists) and plans (to be known as Infrastructure Plans) in accordance with section 5C; (c) the functions mentioned in section 5D (providing advice on infrastructure matters); (d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA; (h) to undertake or commission research relating to Infrastructure Australia’s other functions; (i) any other functions conferred on Infrastructure Australia by or under this Act or any other law.
(1) For the purposes of paragraph 5(a), Infrastructure Australia has the function of conducting audits to determine the adequacy, capacity and condition of nationally significant infrastructure, taking into account: (a) forecast economic and population growth; and (b) economic, social and environmental sustainability; and (c) Australia’s greenhouse gas emissions reduction targets. (2) An audit must be prepared under this section at such intervals as the Commissioners determine. (3) In performing this function, Infrastructure Australia may consider State, Territory or local government reports on the adequacy, capacity and condition of nationally significant infrastructure. (4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
National planning and assessment framework (1) Infrastructure Australia must develop a national planning and assessment framework to promote national consistency and coordination in infrastructure evaluations. (2) The framework is not a legislative instrument. (3) Infrastructure Australia must give the framework to the Minister and publish the framework on Infrastructure Australia’s website. (4) Infrastructure Australia must review the framework at least every 5 years. (5) In developing and reviewing the framework, Infrastructure Australia must consult with States and Territories. Evaluations (6) For the purposes of paragraph 5(aa), Infrastructure Australia has the function of evaluating, or endorsing evaluations conducted by or for States or Territories of, proposals covered by subsection (7) that are submitted by any of the following: (a) the Commonwealth; (b) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); (c) a Commonwealth company (within the meaning of that Act); (d) a State; (e) a Territory. (7) For the purposes of subsection (6), this subsection covers proposals for investment in, or enhancements to, the following infrastructure: (a) nationally significant infrastructure; (b) other infrastructure determined by the Minister. (8) A determination made by the Minister under paragraph (7)(b) is a legislative instrument. (8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on: (a) Australia’s net greenhouse gas emissions, as reported in national inventory reports in accordance with: (i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and (ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and (b) the achievement of Australia’s greenhouse gas emissions reduction targets; and (c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(9) As soon as practicable after the end of each quarter, Infrastructure Australia must make available on its website: (a) a summary of each proposal evaluated by Infrastructure Australia during the quarter; and (b) a summary of each proposal for which Infrastructure Australia endorsed an evaluation during the quarter. Tabling requirement (10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised: (a) the national planning and assessment framework mentioned in subsection (1); (b) the summaries mentioned in subsection (9).
Infrastructure Priority Lists (1) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing targeted Infrastructure Priority Lists that: (a) specify priorities for Commonwealth investment in nationally significant infrastructure across Australia; and (b) take into account: (i) audits mentioned in section 5A; and (ii) evaluations conducted or endorsed by Infrastructure Australia in accordance with section 5B; and (iii) consultations with Commonwealth, State and Territory governments; and (iv) any other matters Infrastructure Australia considers relevant. (2) Infrastructure Australia must develop Infrastructure Priority Lists at such intervals as the Commissioners determine. Infrastructure Australia must also develop an Infrastructure Priority List if the Minister requests. Infrastructure Plans (3) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing Infrastructure Plans specifying priorities for nationally significant infrastructure across Australia. (4) An Infrastructure Plan: (a) must be developed at the request of the Minister; and (b) may be developed on Infrastructure Australia’s own initiative after consultation with the Minister. (5) An Infrastructure Plan must cover the period determined by the Commissioners after consultation with the Minister. (6) Infrastructure Australia must make an Infrastructure Plan available on Infrastructure Australia’s website within 14 days after it is developed. Tabling requirement (7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(1) For the purposes of paragraph 5(c), Infrastructure Australia has the following functions: (a) to identify any impediments to investment in nationally significant infrastructure and identify strategies to remove any impediments identified; (b) to promote the timely and efficient delivery of nationally significant infrastructure projects, consistent with considerations of social and environmental sustainability; (c) to identify and promote best practice in the planning and procurement of nationally significant infrastructure projects; (d) to review and provide advice on proposals to facilitate the harmonisation of policies, and laws, relating to development of, and investment in, infrastructure; (e) to review Commonwealth infrastructure funding programs and their alignment with Infrastructure Plans: (i) at the request of the Minister; or (ii) after consultation with the Minister; (f) to inquire into and report on matters relating to nationally significant infrastructure: (i) at the request of the Minister; or (ii) after consultation with the Minister. (2) For the purposes of paragraph 5(c), Infrastructure Australia has the function of providing advice to the Minister and the Commonwealth on matters relating to infrastructure, including in relation to the following: (a) Australia’s current and future needs and priorities relating to nationally significant infrastructure; (b) policy, pricing and regulatory issues that may impact on the utilisation of infrastructure; (c) policy issues arising from climate change, including the achievement of Australia’s greenhouse gas emissions reduction targets; (d) impediments to the efficient utilisation of national infrastructure networks; (e) options and reforms, including regulatory reforms, to make the utilisation of national infrastructure networks more efficient; (f) the needs of users of infrastructure; (g) mechanisms for financing investment in infrastructure; (h) the delivery of infrastructure projects. (3) For the purposes of paragraph (2)(h), Infrastructure Australia may evaluate the delivery of an infrastructure project, including evaluating: (a) the delivery against any targets set before or during delivery; and (b) any relevant assumptions made before or during delivery. (4) Infrastructure Australia also has the function of promoting public awareness of the matters mentioned in subsections (2) and (3), including by publishing information on its website.
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2). (2) A project is covered by this subsection if: (a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and (b) the project involves expenditure by or on behalf of the Commonwealth; and (c) the Commonwealth Government’s total expenditure involved in the project is more than $250 million; and (d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia. (3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment. (4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Other assessments (5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative. (6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Conduct of assessments (7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following: (a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and (b) an annual performance statement on the performance outcomes being achieved by States, Territories and local government authorities in relation to the infrastructure investment program and existing project initiatives funded by the Commonwealth. (2) Infrastructure Australia must cause each annual statement to be: (a) tabled in both Houses of the Parliament no later than 14 days prior to the scheduled public release of the annual Commonwealth budget each year; and (b) published on Infrastructure Australia’s website as soon as practicable after the annual statement is tabled in the Parliament.
In performing its functions and exercising its powers, Infrastructure Australia must have regard to the policies of the Commonwealth Government in relation to infrastructure.
(1) The Minister may give written directions to Infrastructure Australia about the performance of its functions. (2) In giving directions under subsection (1), the Minister may have regard to any relevant decisions of a body (however described) that consists only of, or that includes, the following: (a) the Prime Minister; (b) the Premiers of each State; (c) the Chief Ministers of the Australian Capital Territory and Northern Territory. (3) Directions given by the Minister under subsection (1) must be of a general nature only. (4) However, the Minister must not give directions about the content of any audit, list, evaluation, plan or advice to be provided by Infrastructure Australia. (5) Infrastructure Australia must comply with any direction given by the Minister under subsection (1). (6) A direction given by the Minister under subsection (1) is not a legislative instrument.
(1) Infrastructure Australia has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Infrastructure Australia’s powers include, but are not limited to, the following powers: (a) the power to enter into contracts and agreements; (b) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of Infrastructure Australia; (c) the power to acquire, hold and dispose of real or personal property; (d) the power to negotiate and cooperate with other Commonwealth bodies and with State, Territory and local government bodies; (e) the power to do anything incidental to any of its powers.
Infrastructure Australia must, in performing its functions and exercising its powers, consult with such of the following as it considers appropriate: (a) government, commercial, industrial, consumer, academic, professional and other relevant bodies and organisations; (b) investors in infrastructure and owners of infrastructure.
Infrastructure Australia does not have the privileges and immunities of the Crown in right of the Commonwealth.
(1) The functions of the Commissioners are: (a) to decide the objectives, strategies and policies to be followed by Infrastructure Australia; and (b) to ensure the proper, efficient and effective performance of Infrastructure Australia’s functions; and (c) any other functions conferred on the Commissioners by this Act. (2) The Commissioners have the power to do all things necessary or convenient to be done for or in connection with the performance of their functions. (3) In performing their functions and exercising their powers, the Commissioners must have regard to the policies of the Commonwealth Government in relation to infrastructure. (4) Anything done in the name of, or on behalf of, Infrastructure Australia by the Commissioners, or with the authority of the Commissioners, is taken to have been done by Infrastructure Australia. (5) If a function or power of Infrastructure Australia is dependent on the opinion, belief or state of mind of Infrastructure Australia in relation to a matter, the function or power may be exercised upon the opinion, belief or state of mind of a person or body acting as mentioned in subsection (4) in relation to that matter.
Infrastructure Australia consists of: (a) the Chief Commissioner; and (b) 2 other Commissioners.
Note: The Commissioners are the accountable authority of Infrastructure Australia: see section 12 of the Public Governance, Performance and Accountability Act 2013.
(1) Commissioners (including the Chief Commissioner) are to be appointed by the Minister by written instrument. (2) A Commissioner may be appointed on a full‑time or part‑time basis. (2A) In appointing the Commissioners, the Minister must ensure that at least one of the Commissioners has a substantial connection to, or substantial experience in, a regional area through business, industry or community involvement. (3) A person must not be appointed as a Commissioner 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. (4) Paragraph (3)(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 States, Territories and local government areas in relation to appointments to positions. (5) Paragraph (3)(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 Commissioner under a previous appointment under subsection (1).
A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: A Commissioner is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
(1) The Minister may appoint a Commissioner to act as the Chief Commissioner: (a) during a vacancy in the office of Chief Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chief Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint a person to act as a Commissioner: (a) during a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(1) A Commissioner 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 Commissioner is to be paid the remuneration that is prescribed. (2) A Commissioner is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
Full‑time Commissioner (1) A full‑time Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) If the Chief Commissioner is a full‑time Commissioner, the Minister may grant the Chief Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. (3) The Chief Commissioner may grant a full‑time Commissioner (other than the Chief Commissioner) leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines. Part‑time Commissioner (4) If the Chief Commissioner is a part‑time Commissioner, the Minister may grant leave of absence to the Chief Commissioner on the terms and conditions that the Minister determines. (5) The Chief Commissioner may grant leave of absence to a part‑time Commissioner (other than the Chief Commissioner) on the terms and conditions that the Chief Commissioner determines.
A full‑time Commissioner must not engage in paid employment outside the duties of the Commissioner’s office without the Minister’s approval.
A Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) A Commissioner may resign the Commissioner’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.
All Commissioners (1) The Minister may terminate the appointment of a Commissioner: (a) for misbehaviour; or (b) if the Commissioner is unable to perform the duties of the Commissioner’s office because of physical or mental incapacity. (2) The Minister may terminate the appointment of a Commissioner if the Commissioner: (a) becomes bankrupt; or (b) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (c) compounds with one or more of the Commissioner’s creditors; or (d) makes an assignment of the Commissioner’s remuneration for the benefit of one or more of the Commissioner’s creditors.
Note: The appointment of a Commissioner 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).
Additional grounds for full‑time Commissioner (3) The Minister may terminate the appointment of a full‑time Commissioner if: (a) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (b) the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of the Commissioner’s office (see section 15). Additional ground for part‑time Commissioner (4) The Minister may terminate the appointment of a part‑time Commissioner if the Commissioner is absent, except on leave of absence, from 3 consecutive meetings of Infrastructure Australia.
(1) The Commissioners must hold the meetings that are necessary for the efficient performance of their functions. (2) Meetings are to be held at the times and places that the Commissioners determine. (3) The Chief Commissioner: (a) may convene a meeting; and (b) must convene at least 4 meetings each calendar year; and (c) must convene a meeting if requested in writing by: (i) another Commissioner; or (ii) the Minister.
(1) The Chief Commissioner must preside at all meetings at which the Chief Commissioner is present. (2) If the Chief Commissioner is not present at a meeting, the other Commissioners present must appoint one of themselves to preside.
(1) At a meeting of the Commissioners, 2 Commissioners constitute a quorum. (2) However, if: (a) a Commissioner 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 Commissioners with respect to a particular matter; and (b) when the Commissioner leaves the meeting concerned there is no longer a quorum present; the remaining Commissioners at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
(1) A question arising at a meeting is to be determined by a majority of the votes of the Commissioners present and voting. (2) The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, a casting vote.
The Commissioners may regulate proceedings at their meetings as they consider appropriate.
Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Commissioners may participate in meetings.
The Commissioners must keep minutes of their meetings.
(1) The Commissioners are taken to have made a decision at a meeting if: (a) without meeting, a majority of the Commissioners 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 Commissioners under subsection (2); and (c) all the Commissioners were informed of the proposed decision, or reasonable efforts were made to inform all the Commissioners of the proposed decision. (2) Subsection (1) applies only if the Commissioners: (a) have determined that they may make decisions of that kind without meeting; and (b) have determined the method by which Commissioners are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a Commissioner is not entitled to vote on a proposed decision if the Commissioner would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Commissioners. (4) The Commissioners must keep a record of decisions made in accordance with this section.
There is to be a Chief Executive Officer of Infrastructure Australia.
(1) The CEO is responsible for the day‑to‑day administration of Infrastructure Australia. (2) The CEO has any functions conferred on the CEO by or under this Act or any other law. (3) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.
(1) The CEO is to act in accordance with policies determined by the Commissioners. (2) The Commissioners may give written directions to the CEO about the performance of the CEO’s responsibilities. (3) The CEO must comply with a direction under subsection (2). (4) Subsection (3) 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. (5) A direction under subsection (2) is not a legislative instrument.
(1) The CEO is to be appointed by the Commissioners by written instrument. (2) The CEO is to be appointed on a full‑time basis.
The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The CEO is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
The Commissioners may appoint a person to act as the CEO: (a) during a vacancy in the office of the 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 is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(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. (2) The CEO is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Chief Commissioner may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines.
(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 Commissioners. (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.
The CEO must not engage in paid employment outside the duties of his or her office without the Chief Commissioner’s approval.
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 Commissioners.
(1) The CEO may resign his or her appointment by giving the Chief Commissioner a written resignation. (2) The resignation takes effect on the day it is received by the Chief Commissioner or, if a later day is specified in the resignation, on that later day.
The Commissioners may terminate the appointment of the CEO at any time, by instrument in writing.
(1) Infrastructure Australia may do either or both of the following: (a) engage persons under the Public Service Act 1999; (b) employ under written agreements such persons as Infrastructure Australia thinks necessary for the performance or exercise of any of its functions or powers. (2) For the purposes of the Public Service Act 1999: (a) the CEO and the APS employees referred to in paragraph (1)(a) together constitute a Statutory Agency; and (b) the CEO is the Head of that Statutory Agency. (3) The terms and conditions of employment of persons employed under paragraph (1)(b) are such as the CEO determines from time to time.
(1) Infrastructure Australia may be assisted by: (a) persons engaged under the Public Service Act 1999, and officers and employees of authorities of the Commonwealth, whose services are made available to Infrastructure Australia in connection with the performance of its functions or the exercise of its powers; and (b) persons whose services are so made available under arrangements made under subsection (2). (2) Infrastructure Australia may make with the appropriate authority or officer of a State or Territory an arrangement under which the State or Territory may make officers or employees available to Infrastructure Australia to perform services in connection with the performance of its functions or the exercise of its powers.
Infrastructure Australia may engage consultants to assist in the performance of its functions.
In preparing or varying a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Commissioners must consult with: (a) the Minister; and (b) such of the following as the Commissioners consider appropriate: (i) government, commercial, industrial, consumer and other relevant bodies and organisations; (ii) investors in infrastructure and owners of infrastructure.
The annual report prepared by the Commissioners and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include details of any directions given to Infrastructure Australia by the Minister under subsection 6(1) of this Act during the period.
(1) There is payable to Infrastructure Australia such money as is appropriated by the Parliament for the purposes of Infrastructure Australia. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to Infrastructure Australia. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
(1) The money of Infrastructure Australia is to be applied only: (a) in payment or discharge of the costs, expenses and other obligations incurred or undertaken by Infrastructure Australia in the performance of its functions and the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act. (2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of Infrastructure Australia.
(1) Infrastructure Australia must not, without the written approval of the Minister: (a) acquire any property, right or privilege for a consideration exceeding in amount or value the amount prescribed by the regulations for the purposes of this paragraph; or (b) dispose of any property, right or privilege if the amount or value of the consideration for the disposal, or the value of the property, right or privilege, exceeds the amount prescribed by the regulations for the purposes of this paragraph; or (c) enter into a lease of land for a period exceeding 10 years. (5) An approval under subsection (1) is not a legislative instrument.
Infrastructure Australia is not subject to taxation under any law of the Commonwealth or of a State or Territory.
Note: Despite this section, Infrastructure Australia may be subject to taxation under certain laws (see, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).
(1) The Minister may, by writing, delegate any or all of his or her functions and powers under this Act (other than a function or power under section 6, 8 or 18) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department. (2) In exercising functions or powers delegated under subsection (1), the delegate must comply with any directions of the Minister.
(1) Infrastructure Australia may, in writing under its seal, delegate any or all of its powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of Infrastructure Australia.
(1) The Commissioners may, in writing, delegate any or all of the Commissioners’ powers or functions under this Act to: (a) a Commissioner; or (b) the CEO. (2) In exercising any powers or performing any functions under the delegation, the delegate must comply with any directions of the Commissioners.
(1) The CEO may, in writing, delegate any of the CEO’s powers or functions under this Act to a person mentioned in section 39 or 39A who: (a) is an SES employee, or acting SES employee; or (b) holds, or is acting in, an Executive Level 2 position; or (c) occupies an office or holds a position equivalent to that of an SES employee or an Executive Level 2 position. (2) If Infrastructure Australia or the Commissioners delegate a power or function under subsection 40A(1) or 40B(1) to the CEO, the CEO may, in writing, subdelegate the power or function to a person mentioned in paragraph (1)(a), (b) or (c) of this section. (3) In exercising any powers or performing any functions under the delegation or subdelegation, the delegate or subdelegate must comply with any directions of the CEO. (4) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a subdelegation in a corresponding way to the way in which they apply in relation to a delegation.
The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Infrastructure Australia consists of: (a) the Chief Commissioner; and (b) 2 other Commissioners.
Note: The Commissioners are the accountable authority of Infrastructure Australia: see section 12 of the Public Governance, Performance and Accountability Act 2013.
(1) Commissioners (including the Chief Commissioner) are to be appointed by the Minister by written instrument. (2) A Commissioner may be appointed on a full‑time or part‑time basis. (2A) In appointing the Commissioners, the Minister must ensure that at least one of the Commissioners has a substantial connection to, or substantial experience in, a regional area through business, industry or community involvement. (3) A person must not be appointed as a Commissioner 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. (4) Paragraph (3)(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 States, Territories and local government areas in relation to appointments to positions. (5) Paragraph (3)(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 Commissioner under a previous appointment under subsection (1).
A Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: A Commissioner is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.
(1) The Minister may appoint a Commissioner to act as the Chief Commissioner: (a) during a vacancy in the office of Chief Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chief Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) The Minister may appoint a person to act as a Commissioner: (a) during a vacancy in the office of a Commissioner (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(1) A Commissioner 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 Commissioner is to be paid the remuneration that is prescribed. (2) A Commissioner is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973.
Full‑time Commissioner (1) A full‑time Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) If the Chief Commissioner is a full‑time Commissioner, the Minister may grant the Chief Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. (3) The Chief Commissioner may grant a full‑time Commissioner (other than the Chief Commissioner) leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Chief Commissioner determines. Part‑time Commissioner (4) If the Chief Commissioner is a part‑time Commissioner, the Minister may grant leave of absence to the Chief Commissioner on the terms and conditions that the Minister determines. (5) The Chief Commissioner may grant leave of absence to a part‑time Commissioner (other than the Chief Commissioner) on the terms and conditions that the Chief Commissioner determines.
A full‑time Commissioner must not engage in paid employment outside the duties of the Commissioner’s office without the Minister’s approval.
A Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(1) A Commissioner may resign the Commissioner’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.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Infrastructure Australia Act 2008.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to establish Infrastructure Australia as the Commonwealth Government’s independent adviser on nationally significant infrastructure investment planning and project prioritisation.
In this Act:
Australia’s greenhouse gas emissions reduction targets means:
(a) if:
(i) Australia’s current nationally determined contribution was communicated in accordance with Article 4 of the Paris Agreement in June 2022; and
(ii) that nationally determined contribution has not been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement;
the greenhouse gas emissions reduction targets set out in paragraphs 10(1)(a) and (b) of the Climate Change Act 2022; or
(b) in any other case—the greenhouse gas emissions reduction targets included in:
(i) Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or
(ii) if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.
CEO means the Chief Executive Officer of Infrastructure Australia appointed under section 29.
Chief Commissioner means the Chief Commissioner appointed under section 8.
Commissioner means a Commissioner appointed under section 8 and includes the Chief Commissioner.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
full‑time Commissioner means a Commissioner appointed on a full‑time basis.
Infrastructure Australia means the body established by section 4.
nationally significant infrastructure includes:
Creates the corporate governance architecture: a small board of Commissioners (a Chief Commissioner plus two other Commissioners) who set objectives, strategies and policies and are the accountable authority (Part 2A; see especially ss6E, 7, 8). The Minister appoints Commissioners (s8) subject to merit‑based selection and minimum transparency steps; at least one Commissioner must have a substantial regional connection (s8(2A)).
Provides for a Chief Executive Officer responsible for day‑to‑day administration (Part 3; ss27–38). The CEO is appointed by the Commissioners, acts under their policy direction and is an accountable officer for the statutory agency created under the Public Service Act arrangements (s28, s28A, s39(2)).
Sets out financial and operational limits and delegation chains. Funding comes from parliamentary appropriations (s39D). Infrastructure Australia must apply funds to its functions (s39DA). Significant asset acquisitions, disposals or long leases require Ministerial approval (s39DB). The Act includes multiple delegation provisions (ss40–40C).
Limits and directions from the Minister. The Minister may give written directions of a general nature about performance (s6), and Infrastructure Australia must have regard to Commonwealth infrastructure policies (s5E). However the Minister cannot direct the content of audits, lists, evaluations, plans or advice (s6(4)).
Who this affects
Why it matters (institutional effects, trade‑offs and incentives)
Centralises independent technical advice on nationally significant infrastructure. By creating a statutory adviser with duties to audit, evaluate, rank and plan, the Commonwealth gains a single, recurring input to budget decisions (s5, s5DB). That concentrates influence: projects that appear on Infrastructure Priority Lists or are positively evaluated are more likely to attract Commonwealth attention or funding (s5C).
Adds explicit climate‑policy constraints into infrastructure evaluation. The Act requires Infrastructure Australia to assess impacts on net greenhouse gas emissions and on Australia’s emissions reduction targets when evaluating proposals (s5B(8A)). Mechanically, this means project design, timing and funding priorities will be assessed against those metrics and other climate policy issues Infrastructure Australia deems relevant.
Balances independence and ministerial control. Commissioners and the CEO exercise the core functions (Part 2A, Part 3). The Minister can issue general directions and appoint/terminate Commissioners (s6, s8, s18), and Infrastructure Australia must "have regard to" government policy (s5E). However, the Act expressly bars Ministerial directions about the content of audits, lists, evaluations, plans or advice (s6(4)). That structure gives the Minister appointment and high‑level steering power while preserving operational independence over substantive outputs.
Creates predictable transparency and reporting costs. The Act mandates audits, quarterly summaries of evaluations, annual budget and performance statements timed to the Commonwealth budget process, and tabling deadlines (ss5A(4), 5B(9),(10), 5DB). These requirements increase transparency but impose recurring compliance and administrative costs on Infrastructure Australia and on entities that provide material for evaluations.
Concentrates potential, targeted benefit. The primary beneficiaries of positive evaluations and placement on Priority Lists are particular projects, regions or sectors (transport, energy, communications, water, social infrastructure — s3). The costs (preparing evaluations, compliance, and public expenditure) are spread across budget processes and ultimately taxpayers.
Implementation and risk factors to note
Key sections to glance at
(End of summary.)
(a) transport infrastructure; and
(b) energy infrastructure; and
(c) communications infrastructure; and
(d) water infrastructure; and
(e) social infrastructure;
in which investment or further investment will materially improve national productivity.
Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.
Note: The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
part‑time Commissioner means a Commissioner appointed on a part‑time basis.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of a year.
social infrastructure means facilities, spaces, services or networks that support quality of life and wellbeing of communities.
(1) Infrastructure Australia is established by this section. (2) Infrastructure Australia: (a) is a body corporate; and (b) must have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to Infrastructure Australia. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) Infrastructure Australia’s seal is to be kept in such custody as the Commissioners direct and must not be used except as authorised by the Commissioners. (4) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of Infrastructure Australia appearing on a document; and (b) presume that the document was duly sealed.
Infrastructure Australia has the following functions: (a) to conduct audits in accordance with section 5A; (aa) to conduct or endorse evaluations in accordance with section 5B; (b) to develop lists (to be known as Infrastructure Priority Lists) and plans (to be known as Infrastructure Plans) in accordance with section 5C; (c) the functions mentioned in section 5D (providing advice on infrastructure matters); (d) to assess, and report on, projects relating to nationally significant infrastructure in accordance with section 5DA; (h) to undertake or commission research relating to Infrastructure Australia’s other functions; (i) any other functions conferred on Infrastructure Australia by or under this Act or any other law.
(1) For the purposes of paragraph 5(a), Infrastructure Australia has the function of conducting audits to determine the adequacy, capacity and condition of nationally significant infrastructure, taking into account: (a) forecast economic and population growth; and (b) economic, social and environmental sustainability; and (c) Australia’s greenhouse gas emissions reduction targets. (2) An audit must be prepared under this section at such intervals as the Commissioners determine. (3) In performing this function, Infrastructure Australia may consider State, Territory or local government reports on the adequacy, capacity and condition of nationally significant infrastructure. (4) Infrastructure Australia must cause a copy of an audit prepared under this section to be tabled in each House of the Parliament within 10 sitting days of that House after the audit is finalised.
National planning and assessment framework (1) Infrastructure Australia must develop a national planning and assessment framework to promote national consistency and coordination in infrastructure evaluations. (2) The framework is not a legislative instrument. (3) Infrastructure Australia must give the framework to the Minister and publish the framework on Infrastructure Australia’s website. (4) Infrastructure Australia must review the framework at least every 5 years. (5) In developing and reviewing the framework, Infrastructure Australia must consult with States and Territories. Evaluations (6) For the purposes of paragraph 5(aa), Infrastructure Australia has the function of evaluating, or endorsing evaluations conducted by or for States or Territories of, proposals covered by subsection (7) that are submitted by any of the following: (a) the Commonwealth; (b) a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); (c) a Commonwealth company (within the meaning of that Act); (d) a State; (e) a Territory. (7) For the purposes of subsection (6), this subsection covers proposals for investment in, or enhancements to, the following infrastructure: (a) nationally significant infrastructure; (b) other infrastructure determined by the Minister. (8) A determination made by the Minister under paragraph (7)(b) is a legislative instrument. (8A) In performing the function mentioned in subsection (6) in relation to a proposal, Infrastructure Australia must consider what impacts the proposal, if carried out, would have on: (a) Australia’s net greenhouse gas emissions, as reported in national inventory reports in accordance with: (i) the United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, as amended and in force for Australia from time to time; and (ii) the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time; and (b) the achievement of Australia’s greenhouse gas emissions reduction targets; and (c) any policy issues arising from climate change that Infrastructure Australia considers relevant to the proposal.
Note: The United Nations Framework Convention on Climate Change is in Australian Treaty Series 1994 No. 2 ([1994] ATS 2) and the Paris Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24). They could in 2023 be viewed in the Australian Treaty Series Library on the AustLII website (www.austlii.edu.au).
(9) As soon as practicable after the end of each quarter, Infrastructure Australia must make available on its website: (a) a summary of each proposal evaluated by Infrastructure Australia during the quarter; and (b) a summary of each proposal for which Infrastructure Australia endorsed an evaluation during the quarter. Tabling requirement (10) Infrastructure Australia must cause a copy of the following documents to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised: (a) the national planning and assessment framework mentioned in subsection (1); (b) the summaries mentioned in subsection (9).
Infrastructure Priority Lists (1) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing targeted Infrastructure Priority Lists that: (a) specify priorities for Commonwealth investment in nationally significant infrastructure across Australia; and (b) take into account: (i) audits mentioned in section 5A; and (ii) evaluations conducted or endorsed by Infrastructure Australia in accordance with section 5B; and (iii) consultations with Commonwealth, State and Territory governments; and (iv) any other matters Infrastructure Australia considers relevant. (2) Infrastructure Australia must develop Infrastructure Priority Lists at such intervals as the Commissioners determine. Infrastructure Australia must also develop an Infrastructure Priority List if the Minister requests. Infrastructure Plans (3) For the purposes of paragraph 5(b), Infrastructure Australia has the function of developing Infrastructure Plans specifying priorities for nationally significant infrastructure across Australia. (4) An Infrastructure Plan: (a) must be developed at the request of the Minister; and (b) may be developed on Infrastructure Australia’s own initiative after consultation with the Minister. (5) An Infrastructure Plan must cover the period determined by the Commissioners after consultation with the Minister. (6) Infrastructure Australia must make an Infrastructure Plan available on Infrastructure Australia’s website within 14 days after it is developed. Tabling requirement (7) Infrastructure Australia must cause a copy of an Infrastructure Priority List and an Infrastructure Plan to be tabled in each House of the Parliament within 10 sitting days of that House after the document is finalised.
(1) For the purposes of paragraph 5(c), Infrastructure Australia has the following functions: (a) to identify any impediments to investment in nationally significant infrastructure and identify strategies to remove any impediments identified; (b) to promote the timely and efficient delivery of nationally significant infrastructure projects, consistent with considerations of social and environmental sustainability; (c) to identify and promote best practice in the planning and procurement of nationally significant infrastructure projects; (d) to review and provide advice on proposals to facilitate the harmonisation of policies, and laws, relating to development of, and investment in, infrastructure; (e) to review Commonwealth infrastructure funding programs and their alignment with Infrastructure Plans: (i) at the request of the Minister; or (ii) after consultation with the Minister; (f) to inquire into and report on matters relating to nationally significant infrastructure: (i) at the request of the Minister; or (ii) after consultation with the Minister. (2) For the purposes of paragraph 5(c), Infrastructure Australia has the function of providing advice to the Minister and the Commonwealth on matters relating to infrastructure, including in relation to the following: (a) Australia’s current and future needs and priorities relating to nationally significant infrastructure; (b) policy, pricing and regulatory issues that may impact on the utilisation of infrastructure; (c) policy issues arising from climate change, including the achievement of Australia’s greenhouse gas emissions reduction targets; (d) impediments to the efficient utilisation of national infrastructure networks; (e) options and reforms, including regulatory reforms, to make the utilisation of national infrastructure networks more efficient; (f) the needs of users of infrastructure; (g) mechanisms for financing investment in infrastructure; (h) the delivery of infrastructure projects. (3) For the purposes of paragraph (2)(h), Infrastructure Australia may evaluate the delivery of an infrastructure project, including evaluating: (a) the delivery against any targets set before or during delivery; and (b) any relevant assumptions made before or during delivery. (4) Infrastructure Australia also has the function of promoting public awareness of the matters mentioned in subsections (2) and (3), including by publishing information on its website.
(1) For the purposes of paragraph 5(d), Infrastructure Australia has the function of assessing, and reporting on, projects covered by subsection (2). (2) A project is covered by this subsection if: (a) it is a project for investment in, or enhancements to, nationally significant infrastructure; and (b) the project involves expenditure by or on behalf of the Commonwealth; and (c) the Commonwealth Government’s total expenditure involved in the project is more than $250 million; and (d) the Commonwealth Government has committed to the project without prior evaluation (or endorsement of evaluation) of a proposal for the project by Infrastructure Australia. (3) Infrastructure Australia must ensure that assessments under this section are conducted at least once in each financial year beginning on or after the commencement of this section and prepare a report on the assessment. (4) Infrastructure Australia must cause a copy of the report on the assessment under subsection (3) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Other assessments (5) Infrastructure Australia may conduct other assessments under this section, and prepare reports on those assessments, on its own initiative. (6) Infrastructure Australia must cause a copy of the report on the assessment mentioned in subsection (5) to be tabled in each House of the Parliament within 10 sitting days after it has been finalised. Conduct of assessments (7) The regulations may prescribe matters relating to the conduct of assessments under this section.
(1) Infrastructure Australia must, during each financial year, prepare and give to the Minister the following: (a) an annual budget statement to inform the annual Commonwealth budget process on infrastructure investment; and (b) an annual performance statement on the performance outcomes being achieved by
This is an opening excerpt, not the complete document.