Infrastructure SA Act 2018

Institutional creation and legal personality. Infrastructure SA is a statutory body corporate with perpetual succession, a common seal and capacity to sue and be sued (s4). That legal personality enables it to contract, hold assets and engage staff and consultants in its own name (s6; s16). The Act explicitly lists powers that are typical of corporate agencies, including establishment of ADI accounts and investment of money (s6(d)), signalling capacity to manage its own receipts and payments.

Objects and functional remit. Infrastructure SA has two stated objects: to promote efficient, effective and timely coordination, planning, prioritisation, delivery and operation of infrastructure for the State’s benefit, and to promote adoption of policies, practices, information and analysis to support sound decision‑making (s5(1)). To achieve those objects it is given a set of defined functions, including preparing strategies, reviewing proposals for major projects by public sector agencies, assessing risks, monitoring delivery and conducting post‑delivery reviews, and providing advice to the Minister on funding, financing, impediments and other matters (s5(2)(a)-(i)).

Scope of "major infrastructure project". The Act defines "major infrastructure project" by reference to capital investment value of $50 million or any other amount prescribed by regulation, and by Ministerial determination for a project or class of projects requiring oversight (s3(1)). Capital investment value expressly includes design, construction and land costs but excludes GST (s3(2)). This definition sets the threshold for review, monitoring and the Statement of Capital Intentions (s23(1), s24).

Governance. The board is the governing body (s10(1)). Composition is a mixture of appointed members (nominated by the Minister and appointed by the Governor) and three ex officio chief executives (s10(2)). Appointed members serve terms not exceeding three years and are eligible for reappointment (s11(1)). The Minister nominates appointees while removal rests with the Governor on the Minister’s recommendation for specified causes (s11(2)).

Independence, ministerial input and adoption mechanics. The Act includes a clause that Infrastructure SA is not subject to Ministerial direction "except as provided under this or any other Act" (s8). However, the Minister must prepare a statement of expectations after consultation (s7), can direct timing of strategy and statement preparation (ss20(3), 23(2), 26(1)(b)), and must formally consider and adopt or amend and adopt, or refer back, the 20‑year Strategy and Statement of Capital Intentions (ss22, 25). Infrastructure SA can publicly record disagreement with Ministerial amendments prior to adoption (ss22(3), 25(3), 27(3)). These provisions create an institutional relationship where procedural independence exists alongside specified ministerial controls.

Information powers, confidentiality and evidentiary requirements. Infrastructure SA can require information and material by written notice to assist its functions, and the person must provide the information within a reasonable time, in the form requested, with a maximum penalty for non‑compliance ($20,000) (s29). There is a limited privilege against self‑incrimination and legal professional privilege protection (s29(3)). Information that could affect a person’s competitive position or is commercially sensitive is defined as confidential for the purposes of the Act and is protected from unauthorised disclosure with criminal penalties and an exemption from the Freedom of Information Act 1991 where Infrastructure SA classifies it as confidential (s30(1), (4), (5)). Infrastructure SA may require statutory declarations verifying provided information (s31).

Procedural transparency, consultation and methodological standards. Infrastructure SA must publish notices about the 20‑year Strategy and invite submissions for at least 21 days, publish summaries of submissions, and must adopt and publish principles of consultation to be followed when preparing the Strategy (s20(2), (5)). The Act obliges Infrastructure SA to use a cost benefit analysis method that it has approved and published on its website when preparing any strategy, statement or plan (s32). Adopted strategies and statements must be made publicly available within 14 days (ss22(2)(b), 25(2)(b)). Financial accountability is required through accounting records, annual statements, Auditor‑General audit powers, and annual reporting to the Minister which the Minister must lay before Parliament within 12 sitting days (ss18, 19).

Regulatory reach and sanctions. The Act contains criminal and monetary penalties for: failing to comply with an information notice (s29(2)); unauthorised disclosure or misuse of confidential information (s30(1), (4)); and regulations may prescribe fees and penalties up to $5,000 (s34). The maximum penalties provided in the Act for breaches of confidentiality include $20,000 or imprisonment for 2 years (s30).

These concepts combine an evaluative and advisory institution with investigatory and publication powers, bounded by statutory confidentiality protections and Ministerial oversight over timing and formal adoption. The Act creates routine obligations for public sector agencies, for persons providing information, and for Infrastructure SA itself in method, consultation and publication.

The Act allocates roles and obligations across several groups: Infrastructure SA (the statutory body); the Board and its appointed and ex officio members; the Minister; public sector agencies; private sector entities including not‑for‑profit organisations (the Act defines private sector to include the not‑for‑profit sector, s3(1)); proposers and deliverers of major infrastructure projects; and third parties who provide information or seek access to documents.

Infrastructure SA: the body established by the Act is the primary actor, responsible for preparing the State’s 20‑year Strategy, an annual or periodic Statement of Capital Intentions, monitoring and review activities, and providing advice to the Minister (ss4, 20, 23, 5(2)). It is obliged to keep proper accounts and be audited (s18), to publish statements, reports and guidelines (s9), and to adopt a published CBA methodology (s32). Infrastructure SA also exercises statutory powers to require information (s29) and to classify information as confidential (s30).

Board members and staff: four appointed board members are selected by the Governor on the Minister’s nomination (s10(2)(a)), serve up to three year terms with reappointment eligibility (s11(1)), and are removable by the Governor on the Minister’s recommendation for specific reasons (s11(2)). Three ex officio chief executives automatically sit on the board (s10(2)(b)). Appointed members are senior officials for the purpose of the Public Sector (Honesty and Accountability) Act 1995, which brings them within existing public sector integrity and accountability regimes (s17). Infrastructure SA may use public service staff assigned to assist, and may appoint staff on terms it determines (s16).

Minister and Governor: the Minister has several levers. The Minister prepares a statement of expectations (s7) following consultation, nominates persons for appointment to the board (s10(2)(a), s10(3) obligations to seek certain expertise), may direct timing of submissions (ss20(3), 23(2), 26(1)(b)), and must formally consider and adopt, amend and adopt, or refer back strategies and statements submitted by Infrastructure SA (ss22(1), 25(1), 27(1)). The Governor appoints and remunerates appointed board members, including power to remove on Ministerial recommendation and to set conditions of appointment (ss11, 12). These arrangements place formal appointment and removal powers with the Governor/convention but exercised through Ministerial nomination/recommendation channels.

Public sector agencies: the Act gives Infrastructure SA a statutory role to review and evaluate proposals for major infrastructure projects made by public sector agencies (s5(2)(b)), and it requires Infrastructure SA to have regard to proposals provided by public sector agencies when preparing its Statement of Capital Intentions (s24(2)(b)). Public sector agencies will therefore face new internal processes to prepare proposals, respond to information notices (s29), and may be subject to monitoring and review by Infrastructure SA (s5(2)(d)-(e)).

Private sector and not‑for‑profit entities: the Act contemplates that Infrastructure SA will consider information from private sector and not‑for‑profit sectors in preparing the Strategy (s21(1)(d)), and the power to require information (s29) extends to "a person" without limiting to public sector agencies. This creates duties for private actors who hold information relevant to infrastructure planning to respond to notices and to manage confidentiality expectations and statutory protections (ss29-31). Persons providing information can claim confidentiality and must be given notice if Infrastructure SA proposes disclosure (s30(3)). The Act’s definition of private sector to include not‑for‑profit bodies (s3(1)) brings charities and NGOs into scope where they hold relevant information.

Project proponents and contractors: major infrastructure projects, defined primarily by a capital investment threshold (s3(1)), are a focus of Infrastructure SA’s monitoring and review functions (s5(2)(d)-(e)) and of the Statement of Capital Intentions process (s23). Proponents, including private contractors and potential financiers, will be affected by the requirement to supply business cases or other material in forms specified by Infrastructure SA under an information notice (s29(2)(b)), and by the potential of confidential classification and associated limits on disclosure (s30).

Parliament and the public: the Act sets out requirements for publication of adopted instruments and a duty on the Minister to lay Infrastructure SA’s annual report before both Houses of Parliament within 12 sitting days (s19(3)), and it requires public consultation and publication of submission summaries for the 20‑year Strategy (s20(2)). However, Infrastructure SA has discretion to classify commercial information as confidential and exclude it from FOI (s30(5)), which affects public access to certain information.

In summary, the Act creates legal obligations for public sector entities to interact with Infrastructure SA, gives Infrastructure SA information powers over private and public actors, and creates procedural duties on Infrastructure SA in consultation, methodology and publication that affect the transparency and timing of infrastructure planning.

Duties placed on Infrastructure SA

• Prepare and submit a 20‑year State Infrastructure Strategy and review it at least every five years, following published principles of consultation and at the time directed by the Minister (s20(1), (4), (5)). In doing so, consult the public by posting notice, inviting submissions for at least 21 days and publishing a summary of submissions received (s20(2)(a)-(b)). The Strategy must assess existing infrastructure, consider current State Government strategies and information from public, private and not‑for‑profit sectors, and assess needs and priorities for the next 20 years (s21).
• Prepare and submit a Statement of Capital Intentions identifying priority major infrastructure projects for the next five years and review it at least once every year (s23). When preparing the Statement, Infrastructure SA must have regard to the adopted 20‑year Strategy and any public sector agency proposals (s24(2)).
• Prepare additional strategies, statements or plans at the Minister’s request or on its own initiative (s26(1)). A Minister‑requested instrument must be completed within the time directed by the Minister (s26(1)(b)).
• Monitor the delivery of major infrastructure projects and other projects identified in adopted strategies, and perform reviews of completed major infrastructure projects or other projects at the Minister’s request (s5(2)(d)-(e)).
• Provide advice to the Minister on submissions to the Commonwealth and other bodies, funding and financing models, and economic or regulatory impediments to efficient delivery or use of infrastructure (s5(2)(f)).
• Use an approved and published method of cost benefit analysis in preparing any strategy, statement or plan (s32).
• Keep proper accounting records, prepare annual statements, be audited by the Auditor‑General at least annually, and deliver an annual report to the Minister by 30 September each year (ss18, 19).

Duties on other persons and agencies

• Provide information and material reasonably required by Infrastructure SA when served with a written notice, within a reasonable time and in the form specified; failure to comply attracts a maximum penalty of $20,000 (s29(1)-(2)). The person cannot be compelled to provide information that might tend to incriminate them or is subject to legal professional privilege (s29(3)).
• If required by Infrastructure SA, verify information by statutory declaration (s31). A person who does not verify, where required, will not be taken to have complied.
• Manage confidential information: persons performing functions under the Act must not disclose confidential information other than as authorised, nor use confidential information to secure private benefit; both offences attract penalties of $20,000 or imprisonment for 2 years (s30(1), (4)). Infrastructure SA must give written notice to the person who provided information if it proposes disclosure other than under authorised exceptions (s30(3)).

Rights and procedural protections

• Infrastructure SA may publish strategies, reports and guidelines (s9), but persons who provide information can claim confidentiality; Infrastructure SA must notify them before disclosing such information (s30(3)).
• Persons are protected from compulsion to self‑incriminate or to waive legal professional privilege when responding to information notices (s29(3)).
• Infrastructure SA may publish adopted strategies and the Minister is required to make adopted instruments publicly available within 14 days (ss22(2)(b), 25(2)(b)). If the Minister amends a strategy or statement before adoption, Infrastructure SA may advise publicly that it does not agree with the amendment (ss22(3), 25(3), 27(3)). This gives Infrastructure SA a procedural right to register disagreement publicly.
• The board must keep accurate minutes of its proceedings (s13(8)), and appointed members are senior officials under the Public Sector (Honesty and Accountability) Act 1995, which attaches integrity obligations (s17).

Ministerial roles and constraints

• The Minister must prepare a statement of expectations for Infrastructure SA after consultation, and may review or amend that statement (s7). The Minister also directs timing for preparation of instruments (ss20(3), 23(2), 26(1)(b)), and must consider and adopt, amend and adopt, or refer back strategies and statements submitted by Infrastructure SA (ss22(1), 25(1), 27(1)). These powers shape the formal approval pathway for Infrastructure SA outputs while the Act also preserves Infrastructure SA’s non‑subjection to Ministerial direction except as provided (s8).

Regulatory delegation and staffing duties

• Infrastructure SA may delegate any of its functions or powers, subject to conditions, revocability and provision for further delegation where the instrument permits (s15). It may use public sector staff assigned to assist, and appoint staff on its own terms (s16), creating operational obligations in workforce management and interactions with public sector units.

In short, the Act imposes duties of preparation, consultation, methodical assessment, monitoring, public reporting and financial accountability on Infrastructure SA; duties to supply information and respect confidentiality on those who are asked to provide material; and procedural rights for Infrastructure SA to be heard and to make methods and consultation principles public. The Minister retains adoption and timing rights, with Infrastructure SA able to publicly record disagreement with Ministerial modifications before adoption.

The Act sets out monetary and custodial penalties for a limited set of contraventions, uses institutional accountability mechanisms such as audit and parliamentary reporting, and provides enforcement via statutory information notices and governance controls.

Penalties under the Act

• Failure to comply with a written notice to provide information and material under s29 attracts a maximum penalty of $20,000 (s29(2)). The person served must provide information within the time specified in the notice and in the manner and form specified; for example, Infrastructure SA may require submission of a business case (s29(2)(b)).
• Unauthorised disclosure of confidential information is an offence, liable on conviction to a maximum penalty of $20,000 or imprisonment for 2 years (s30(1)). The same maximum penalty applies to using confidential information for the purpose of securing a private benefit (s30(4)). These are criminal sanctions targeted at misuse of commercially sensitive material that Infrastructure SA classifies as confidential.
• Regulations may prescribe penalties not exceeding $5,000 for contravention of a regulation (s34(2)(b)). The regulations may also prescribe or provide for fees and matters necessary under the Act (s34(2)(a)).

Restrictions on compulsion

• Notwithstanding the power to require information, s29(3) expressly prevents compulsion where the information might tend to incriminate the person of an offence, or is privileged on the ground of legal professional privilege. This limits the enforceable scope of information demands in line with common legal protections.

Administrative and institutional enforcement

• Audit: Infrastructure SA must keep proper accounting records and prepare annual statements, and the Auditor‑General may audit Infrastructure SA at any time and must audit at least once each year (s18). Audit powers provide public sector financial oversight and a pathway for detecting misuse of public funds or non‑compliance with accounting obligations.
• Annual reporting and parliamentary scrutiny: Infrastructure SA must deliver an annual report to the Minister by 30 September each year, including audited statements, and the Minister must lay copies of the report before both Houses of Parliament within 12 sitting days (s19). This mechanism subjects Infrastructure SA to parliamentary oversight and public accountability.
• Appointment and removal of appointed board members: The Governor determines conditions of appointment and remuneration for appointed members (ss11(1), 12). The Governor may remove an appointed member on the Minister’s recommendation for breach of conditions, misconduct or failure to carry out duties satisfactorily (s11(2)). This creates an administrative control over board composition and individual behaviour.
• Senior official status: Appointed board members are senior officials for the purposes of the Public Sector (Honesty and Accountability) Act 1995 (s17). That status imports existing integrity obligations, disciplinary pathways and investigative arrangements applicable under that Act.

Confidentiality and FOI exclusion

• Infrastructure SA may classify information as confidential if it could affect the competitive position of a person or is commercially sensitive (s30(1)). Once so classified, the information is not liable to disclosure under the Freedom of Information Act 1991 (s30(5)). This limits the FOI‑based enforcement pathway by third parties seeking disclosure of certain materials. Infrastructure SA must give written notice and reasons before disclosing claimed confidential information otherwise than under authorised exceptions (s30(3)).

Practical enforcement implications

• The $20,000 maximum fine for failing to provide information is a material but not extreme sanction for businesses or agencies; however, the potential of criminal penalties including imprisonment for unauthorised disclosure or misuse of confidential information raises the stakes for individuals who handle classified material (s30). The Auditor‑General’s audit power and the requirement for the Minister to table the annual report place Infrastructure SA within routine public sector accountability systems, increasing the likelihood that breaches of financial or procedural duties will be exposed to parliamentary and public scrutiny (s18, s19).

In essence, enforcement under the Act blends statutory criminal penalties for misuse or disclosure of confidential information, monetary penalties for non‑compliance with information notices, administrative oversight via appointments and audit, and parliamentary visibility via annual reporting. The Act balances investigatory power with specific legal protections for privileged or self‑incriminating information (s29(3)).

Constitutional and administrative interface

• The Act operates within the State public sector framework. Appointed board members are designated as senior officials for the purposes of the Public Sector (Honesty and Accountability) Act 1995 (s17). That cross‑reference imports integrity, misconduct and related administrative disciplinary frameworks from that Act, aligning Infrastructure SA governance with broader public sector standards.

Freedom of Information and confidentiality

• s30(5) expressly states that information classified by Infrastructure SA as confidential under s30(1) is not liable to disclosure under the Freedom of Information Act 1991. That creates a statutory carve‑out from FOI for information that could affect a person’s competitive position or is commercially sensitive. The Act therefore directly limits FOI access where Infrastructure SA has classified material as confidential.

Privilege and compulsion exceptions

• s29(3) prevents compulsion of information that might tend to incriminate the person, or that is privileged on the ground of legal professional privilege. This aligns the Act with evidentiary and privilege protections found elsewhere in law, preserving a shield against forced waiver of privilege or self‑incrimination when responding to Infrastructure SA’s notices.

Corporations Act service rules

• The service provisions in s33(2) allow notices or documents under this Act to be served in accordance with the Corporations Act 2001 of the Commonwealth, where applicable to the person. This provides compatibility with federal service rules for corporate entities, ensuring effective cross‑instrument service of notices where corporations are involved.

Audit and parliamentary oversight

• s18 gives the Auditor‑General authority to audit Infrastructure SA, which is the standard mechanism for financial oversight of state instrumentalities. The annual report must be delivered to the Minister and laid before both Houses of Parliament (s19). These provisions link Infrastructure SA into the conventional audit and parliamentary reporting architecture of South Australia.

Interplay with Planning, Development and Infrastructure Act 2016

• The board includes, ex officio, the chief executive of the administrative unit of the Public Service responsible for assisting a Minister in the administration of the Planning, Development and Infrastructure Act 2016 (s10(2)(b)(iii)). This creates an explicit structural linkage between Infrastructure SA and the state planning framework, enabling direct operational coordination and information flow between the two regimes.

Regulation‑making powers and delegation of discretion

• s34(3)(b) permits regulations to provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or Infrastructure SA. That cross‑reference means that future regulations could delegate substantive administrative discretion to the Minister or Infrastructure SA, subject to standard statutory limits. The Act also permits the Governor to make regulations that prescribe fees and penalties (s34(2)), potentially interacting with other financial and regulatory instruments.

Other Acts and authorising disclosures

• s30(2)(c)-(d) permits disclosure of confidential information where authorised or required under any other Act or by a court or tribunal constituted by law. This acknowledges that other statutory obligations or judicial processes may override confidentiality, creating an intersection where competing statutory duties must be reconciled.

Limits on information production and legal process

• The Act’s provisions on statutory declarations (s31) and the requirement to use a published CBA method (s32) interact with existing administrative law standards for evidence and decision‑making. Use of statutory declarations imposes formal evidence requirements that may be relevant if Infrastructure SA’s work is subject to review or if material submitted becomes subject to legal proceedings.

In summary, the Act is designed to sit within the existing South Australian public sector, planning and transparency frameworks, while carving out specific confidentiality protections and preserving privilege and self‑incrimination exceptions. It creates formal links to the Planning, Development and Infrastructure Act 2016 through board composition, and allows for future regulatory detail that could further define the Act’s interaction with other statutes. Practically, public sector agencies, corporations and legal practitioners must manage the interplay between information notices, statutory confidentiality, FOI exclusions, privilege protections and court orders.

The Act as presented contains the principal Act information and a single enactment entry. The Infrastructure SA Act 2018 is the principal Act, assented to on 27 September 2018 and commenced by proclamation on 26 November 2018 (Gazette 18.10.2018 p3821) (Notes, Principal Act). The text of the Act includes a provision that regulations may be made by the Governor for matters contemplated by the Act and for matters necessary or expedient to give effect to the Act (s34(1)), including prescribing fees, recovery, refund, waiver or reduction of fees and penalties not exceeding $5,000 for contravention of a regulation (s34(2)). The Act also explicitly contemplates that the capital investment threshold defining a major infrastructure project ($50 million) may be adjusted by regulation (s3(1)(a)).

Within the Act text there are no schedules listing subsequent amending Acts, and the legislative history entry in the provided text only records the original enactment details for 2018 No 16. The Act therefore appears, in the provided source, to be the principal enactment without recorded in‑text amendments noted. The formal capacity for change within the statute is provided by the regulation‑making power (s34), and the ability of the Minister to make and amend a statement of expectations after consultation with Infrastructure SA (s7(1)-(2)), and to direct timing of instruments (ss20(3), 23(2), 26(1)(b)). Those are operational amending levers rather than statutory amendment mechanisms.

Because the supplied text does not include later amendment Acts or consolidated amendment notes, one must treat the version provided as the enacted 2018 text. Any further statutory amendments would be recorded separately in amendment Acts, Government Gazettes or consolidated databases. The Act’s structure anticipates that subordinate legislation may alter operation on aspects such as the monetary threshold for major infrastructure projects, fees and regulatory penalties, and other matters of practical effect. The power for regulation to permit ministerial or Infrastructure SA discretion over matters is expressly retained (s34(3)(b)).

For practitioners advising clients, the immediate lesson from the Act’s amendment architecture is that while changes to core statutory roles require primary legislation, operational and threshold settings (such as the $50 million capital value) can be altered by regulation, which carries lower parliamentary scrutiny. The Act therefore establishes both a durable statutory framework and a set of adjustable parameters through delegated legislation.

The supplied legislation text does not include reported litigation or judicial interpretations of the Infrastructure SA Act 2018. There are no cases cited within the Act text, and the legislative history section supplied only contains the principal Act’s assent and commencement dates (Notes, Principal Act). The Act itself makes procedural provision for disclosure to courts and tribunals as an authorised exception to confidentiality (s30(2)(d)), and preserves privilege and immunity from compulsion where information would tend to incriminate the person (s29(3)), but it does not refer to any judicial decisions.

Accordingly, within the material provided, there is no litigation history to summarise. Practitioners seeking case law on the operation of the Act would need to consult court databases, law reports, and consolidated legislation services for post‑2018 judicial decisions that interpret the Act’s provisions. Key potential questions that could give rise to litigation, based on the text, include challenges concerning:

• the scope of Infrastructure SA’s power to require information and whether a notice is reasonable in time and form (s29);
• the correctness of Infrastructure SA’s classification of information as confidential and the resulting FOI exclusion (s30(1), s30(5));
• whether the Minister’s amendments to a Strategy or Statement fall within lawful exercise of the Minister’s functions and whether referral back was appropriately used (ss22, 25, 27);
• statutory interpretation of the limitation on Ministerial direction in s8 in relation to other express ministerial powers across Part 3; and
• procedural fairness in Infrastructure SA’s reviews and monitoring or in reliance on statutory declarations required under s31.

Absent specific cases in the Act text, these are speculative categories of dispute derived from potential operational conflicts between statutory duties, confidentiality protections, and administrative decision making. Any authoritative litigation history must be derived from external judicial records which are not included in the supplied source.

1. Independence language but significant Ministerial levers. The Act states that Infrastructure SA is not subject to Ministerial direction "except as provided under this or any other Act" (s8). That is followed by multiple provisions where the Minister directs timing for preparation of instruments (s20(3), s23(2), s26(1)(b)), nominates appointees (s10(2)(a)), prepares a statement of expectations (s7), and must consider and adopt or amend and adopt or refer back strategies and statements (ss22, 25, 27). Mechanically, Infrastructure SA has operational discretion in many areas, but crucial timing and formal adoption rights remain Ministerial. Practitioners should not equate s8 with absolute operational autonomy.

2. Confidentiality and FOI exclusion. Infrastructure SA may classify information as confidential where it could affect competitive position or is commercially sensitive, and such classified information "is not liable to disclosure under the Freedom of Information Act 1991" (s30(1), (5)). The practical effect is that commercial material provided to Infrastructure SA can be insulated from FOI requests if Infrastructure SA classifies it as confidential. Providers should be aware that confidentiality hinges on Infrastructure SA’s classification and that Infrastructure SA must give notice before disclosing claimed confidential information except in authorised circumstances (s30(3)). The criminal penalties for unauthorised disclosure or use of confidential information (up to $20,000 or 2 years imprisonment) apply to persons performing functions under the Act (s30(1), (4)).

3. Information notices and evidence form. Infrastructure SA can require information "in the manner and form specified" and may request statutory declarations to verify information (s29(2)(b), s31). This permits Infrastructure SA to require formal verification of business cases and other documents which may be used in decision making. Agencies and businesses must plan to produce information in specified formats and to have senior officers capable of making statutory declarations.

4. Threshold for "major infrastructure project" can be changed by regulation. The Act sets $50 million as the threshold by statute but allows regulation to prescribe a different amount (s3(1)(a)). Practitioners should monitor subordinate legislation that could lower or raise the threshold and thus change which projects attract Infrastructure SA oversight.

5. Board composition and control dynamics. The board has four appointed members and three ex officio chief executives (s10(2)). Appointed members are nominated by the Minister and removed by the Governor on the Minister’s recommendation (s11). The Minister may appoint one of the appointed members to chair meetings (s10(4)). The combined effect is that while the ex officio members embed central agency perspectives, the Ministerial nomination and removal path for appointed members concentrates political control over who sits among the appointed group. That matters for governance culture and priorities.

6. Public consultation minimums are limited. For the 20‑year Strategy Infrastructure SA must invite submissions for at least 21 days and publish a summary of submissions (s20(2)). A 21‑day minimum is a relatively short public consultation window for an instrument with 20‑year horizons. The Act also allows Infrastructure SA to adopt consultation principles (s20(5)) which may shape the depth and nature of engagement. Stakeholders should not presume prolonged consultation absent specified policies.

7. Cost benefit analysis method is a binding procedural rule. Infrastructure SA must use a CBA method that it has approved and published on its website when preparing strategies, statements or plans (s32). The methodological choice will materially affect project appraisal, ranking and inclusion, so parties should scrutinise the published CBA method for assumptions, discount rates, treatment of distributional effects, and treatment of non‑market impacts.

8. FOI exclusion is contingent on Infrastructure SA’s classification. While s30(5) excludes classified information from FOI, classification is a unilateral act by Infrastructure SA. That creates a potential for contested decisions about whether information genuinely meets the statutory test of affecting competitive position or being commercially sensitive. The Act does not set out a detailed test or appeal mechanism for classification decisions beyond the general civil and criminal safeguards.

9. Penalties for non‑compliance are not insubstantial. Failure to respond to information notices exposes a person to a maximum $20,000 penalty (s29(2)). Criminal penalties for unauthorised disclosure or misuse of confidential information include imprisonment for up to two years (s30(1), (4)). Individuals and entities must therefore put in place compliance processes to manage requests and authorised disclosure, and to train staff handling confidential material.

10. Interaction with other Acts may compel disclosure notwithstanding confidentiality. s30(2)(c)-(d) allows disclosure if authorised or required under any other Act or by a court. This means that legislative or judicial processes may override Infrastructure SA confidentiality in particular circumstances. Providers should carefully consider how statutory confidentiality will interact with other regulatory reporting obligations or court orders.

These "gotchas" are concrete operational points derived from the Act’s text. Each one identifies where a particular provision produces incentives, compliance burdens or legal friction that agencies, private sector proponents and legal advisers should address in project planning, disclosure decisions and governance arrangements.

For public sector agencies, private proponents and advisers, compliance requires attention to process, document management, consultation and governance. The key compliance tasks below are grounded in the Act’s provisions.

1. Prepare for information notices (s29)

• Maintain organised, auditable records and templates for business cases, costings, procurement documents and other material that Infrastructure SA might reasonably request. Infrastructure SA may specify the form and manner of production; ensure documents can be produced within reasonable times.
• Implement a legal check on documents where privilege or self‑incrimination may arise. The Act prevents compulsion of information that might tend to incriminate an individual or is subject to legal professional privilege (s29(3)). If material is sensitive, advise counsel before producing it and consider claiming privilege where appropriate.
• Put in place a data room or secure transmission protocols to meet Infrastructure SA’s specified form and to ensure encrypted delivery if required.

2. Manage confidential information and classified materials (s30)

• Where providing commercially sensitive information, make an express assertion of confidentiality at the time of disclosure and document the reasons why the material fits the statutory confidentiality criteria (could affect competitive position or is commercially sensitive) (s30(1)).
• Understand the consequences of Infrastructure SA’s classification: once classified, material is not liable to FOI disclosure (s30(5)). Consider whether the information should be re‑presented in a redacted public form for transparency.
• Train staff and contractors on the criminal penalties for unauthorised disclosure or misuse of confidential information (penalty up to $20,000 or 2 years imprisonment) (s30(1), (4)). Maintain access controls and logs.

3. Prepare to verify information by statutory declaration if required (s31)

• Identify senior officers authorised to make statutory declarations and ensure they are briefed on factual accuracy and exposure to perjury sanctions.
• Keep contemporaneous records to support any statutory declaration required by Infrastructure SA.

4. Engage with consultation and submission processes (s20)

• For the 20‑year Strategy, Infrastructure SA’s public consultation period is at least 21 days and it publishes a summary of submissions (s20(2)). Stakeholders should monitor Infrastructure SA’s website and submissions portal and prepare concise submissions that reference the CBA method where possible.
• Ensure submissions are evidence‑based and, when making claims of commercial sensitivity, explain why the claim is made and what redacted public version would be acceptable.

5. Understand and respond to CBA requirements (s32)

• Review Infrastructure SA’s published cost benefit analysis methodology before submitting proposals. Where possible, structure project appraisals to align with that method, including assumptions on discount rates, time horizons, sensitivity analysis and treatment of negative externalities.
• If the CBA method materially affects project ranking, provide sensitivity analyses that show robustness across a range of plausible parameter values.

6. Board and governance interactions (ss10-13)

• For public sector bodies interacting with Infrastructure SA, ensure clear lines of responsibility for providing material and for executing officers who can respond to statutory notices or provide statutory declarations.
• If nominated for board appointment, appointed members should be briefed on term lengths, removal grounds and their status as senior officials under the Public Sector (Honesty and Accountability) Act 1995 (ss11, 17).

7. Financial and audit readiness (ss18-19)

• Infrastructure SA must prepare audited statements and be audited annually by the Auditor‑General (s18). If you are an external contractor or supplier, ensure invoices and records are robust and auditable.
• Infrastructure SA’s annual report will be tabled in Parliament; expect public scrutiny and plan for potential information requests consistent with confidentiality arrangements.

8. Regulatory monitoring (s34)

• Monitor subordinate legislation for changes to the major project monetary threshold, prescribed fees and regulatory penalties. A change in the regulation could bring new projects within Infrastructure SA’s remit or introduce new compliance costs.

9. Dispute and public disagreement procedures (ss22(3), 25(3), 27(3))

• If Infrastructure SA or the Minister makes amendments to strategies or statements that parties regard as significant, use the available procedural pathways to register formal submissions and prepare for public communication. Infrastructure SA may publicly state disagreement with Ministerial amendments prior to adoption (ss22(3), 25(3), 27(3)), which could become material in reputational management.

10. Legal and procurement review

• Involve legal counsel early when dealing with Infrastructure SA notices, confidentiality claims, statutory declarations, or any situation where information could be used in procurement or financing decisions. Ensure procurement documents and commercial terms are aligned with the possibility of scrutiny under Infrastructure SA’s monitoring and review functions (s5(2)(d)-(e)).

Concrete checklist for a project proponent anticipating Infrastructure SA interaction

• Identify whether the project meets the major project threshold or could be classified as a project requiring ministerial oversight (s3).
• Compile a complete business case aligned with Infrastructure SA’s published CBA methodology (s32), including sensitivity analyses.
• Prepare redacted public versions and full confidential versions of documents, with clear markings and reasons for confidentiality claims (s30).
• Designate authorised signatories for statutory declarations and internal reviewers for privilege assertions (s29(3), s31).
• Maintain an audit trail for all submissions and interactions to support potential Auditor‑General review or parliamentary scrutiny (ss18-19).

Following these steps will reduce the risk of contraventions attracting the Act’s penalties, reduce delays from information notices, and improve the quality of submissions during the statutory consultation and adoption processes.