Division 6Channelling of State/Territory grants payments through the COAG Reform Fund

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An Act about the Education Investment Fund, and for other purposes Chapter 1—Preliminary #### 1 Short title This Act may be cited as the Nation‑building Funds Act 2008. #### 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. ```html <table cellspacing="0" cellpadding="0" style="width:355.55pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Commencement information</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 1</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 2</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 3</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Provision(s)</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Commencement</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Date/Details</td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table</td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">The day on which this Act receives the Royal Assent.</td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">18 December 2008</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">2. Sections 3 to 278</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">1 January 2009.However, if the Nation‑building Funds (Consequential Amendments) Act 2008 does not receive the Royal Assent before 1 January 2009, the provision(s) do not commence at all.</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">1 January 2009</td></tr></tbody></table> ``` > Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. #### 3 Simplified outline The following is a simplified outline of this Act: • Chapter 3 sets up the Education Investment Fund, which will enhance the Commonwealth’s ability: (a) to make payments in relation to the creation or development of higher education infrastructure; and (b) to make payments in relation to the creation or development of research infrastructure; and (c) to make payments in relation to the creation or development of vocational education and training infrastructure; and (d) to make payments in relation to the creation or development of eligible education infrastructure; and (e) to make transitional HEEF payments. #### 4 Definitions In this Act: > acquire includes acquire by way of issue. > Agency means the Future Fund Management Agency. > Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund. > asset means: (a) any kind of real or personal property; or (b) any legal or equitable estate or interest in real or personal property; or (c) any legal or equitable right. > balance of the Education Investment Fund means the sum of: (a) amounts standing to the credit of the Education Investment Fund Special Account; and (b) the value of investments of the Education Investment Fund. > bank has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > business entity means: (a) a company; or (b) a partnership; or (c) a trust; or (d) a body politic. > carriage service has the same meaning as in the Telecommunications Act 1997. > Chair means the Chair of the Future Fund Board. > COAG Reform Fund means the COAG Reform Fund established by section 5 of the COAG Reform Fund Act 2008. > debenture has the same meaning as in the Corporations Act 2001. > derivative means a derivative (within the meaning of Chapter 7 of the Corporations Act 2001) that is a financial asset. > designated education infrastructure‑related matter has the meaning given by section 143. > DisabilityCare Australia Fund Special Account means the DisabilityCare Australia Fund Special Account established by section 11 of the DisabilityCare Australia Fund Act 2013. > Education Department means the Department administered by the Education Minister. > Education Investment Fund means the Education Investment Fund established by section 131. > Education Investment Fund investment function of the Future Fund Board means: (a) a function or power conferred on the Future Fund Board by section 151, 153, 159, 161, 163 or 164; or (b) a right or power conferred on the Future Fund Board in its capacity as the holder of an investment of the Education Investment Fund. > Education Investment Fund Investment Mandate has the meaning given by subsection 154(4). > Education Investment Fund Special Account means the Education Investment Fund Special Account established by section 132. > Education Minister means the Minister who administers Part 2‑2 of the Higher Education Support Act 2003. > Note: Part 2‑2 of the Higher Education Support Act 2003 deals with the Commonwealth Grant Scheme. > EIF Advisory Board means the Education Investment Fund Advisory Board established under section 170. > EIF designated Ministers means: (a) the Education Minister; and (b) the Research Minister. > EIF Education Portfolio Special Account means the EIF Education Portfolio Special Account established by section 181. > EIF evaluation criteria means evaluation criteria under section 172. > EIF Research Portfolio Special Account means the EIF Research Portfolio Special Account established by section 188. > Finance Department means the Department administered by the Finance Minister. > Finance Minister has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > financial asset has the meaning given by section 5. > Future Fund Board means the Future Fund Board of Guardians. > Future Fund Board member means a member of the Future Fund Board, and includes the Chair. > Future Fund Special Account means the Future Fund Special Account established by section 12 of the Future Fund Act 2006. > GFS Australia means the publication of the Australian Bureau of Statistics known as Australian System of Government Finance Statistics: Concepts, Sources and Methods, as updated from time to time. This updating takes 2 forms, as follows: (a) from time to time, a new version of the publication is produced; (b) from time to time, material in the current version of the publication is updated by other publications of the Australian Bureau of Statistics. > GFS system has the same meaning as in GFS Australia. > higher education institution means an institution specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition. > investment means any mode of application of money or financial assets for the purpose of gaining a return (whether by way of income, capital gain or any other form of return). > investment manager means a person or body (other than the Agency) who undertakes to do any or all of the following: (a) invest amounts on behalf of the Future Fund Board; (b) manage the investment of funds on behalf of the Future Fund Board; (c) acquire derivatives on behalf of the Future Fund Board; (d) manage derivatives on behalf of the Future Fund Board; (e) enter into securities lending arrangements on behalf of the Future Fund Board; (f) realise financial assets on behalf of the Future Fund Board; (g) perform custodial functions in relation to the financial assets of the Future Fund Board. > investment of the Education Investment Fund means a financial asset that, under a provision of this Act, is taken to be an investment of the Education Investment Fund. > modifications includes additions, omissions and substitutions. > payment in relation to the creation or development of eligible education infrastructure has the meaning given by section 142. > payment in relation to the creation or development of higher education infrastructure has the meaning given by section 139. > payment in relation to the creation or development of research infrastructure has the meaning given by section 140. > payment in relation to the creation or development of vocational education and training infrastructure has the meaning given by section 141. > person (except in Division 2 of Part 3.4) includes a partnership. > Note: See also subsection 2C(1) of the Acts Interpretation Act 1901. > realise includes redeem or dispose of. > Research Department means the Department administered by the Research Minister. > research institution means an institution specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition. > Research Minister means the Minister who administers the Australian Research Council Act 2001. > responsible Ministers means: (a) the Treasurer; and (b) the Finance Minister. > securities lending arrangement means an agreement of the kind known as a securities lending arrangement. > transitional HEEF payment has the meaning given by section 144. > Treasury Department means the Department administered by the Treasurer. > value of an investment of the Education Investment Fund means the market value of the investment. For this purpose, disregard anything that would prevent or restrict conversion of a financial asset to money. > vocational education and training provider means a person or body specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition. #### 5 Financial assets A reference in this Act to a financial asset is a reference to: (a) an asset that, in accordance with GFS Australia, is treated as a financial asset for the purposes of the GFS system in Australia; or (b) an asset specified in regulations made for the purposes of this paragraph; but does not include a reference to an asset that, under the regulations, is taken to be a non‑financial asset for the purposes of this Act. > Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. #### 6 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. #### 7 Extension to external Territories This Act extends to every external Territory. #### 8 Extra‑territorial application This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears). Chapter 3—Education Investment Fund ## Part 3.1—Introduction #### 128 Object The object of this Chapter is to enhance the Commonwealth’s ability: (a) to make payments in relation to the creation or development of higher education infrastructure; and (b) to make payments in relation to the creation or development of research infrastructure; and (c) to make payments in relation to the creation or development of vocational education and training infrastructure; and (d) to make payments in relation to the creation or development of eligible education infrastructure; and (e) to make transitional HEEF payments. #### 129 Simplified outline The following is a simplified outline of this Chapter: • This Chapter sets up the Education Investment Fund, which consists of: (a) the Education Investment Fund Special Account; and (b) the investments of the Education Investment Fund. • The main purposes of the Education Investment Fund Special Account are: (a) to make payments in relation to the creation or development of higher education infrastructure; and (b) to make payments in relation to the creation or development of research infrastructure; and (c) to make payments in relation to the creation or development of vocational education and training infrastructure; and (d) to make payments in relation to the creation or development of eligible education infrastructure; and (e) to make transitional HEEF payments. • The Finance Minister is responsible for authorising payments on the recommendation of the Education Minister, the Research Minister or the EIF designated Ministers. • If a payment is made by way of a grant of financial assistance, the terms and conditions on which the financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient. • The Future Fund Board is responsible for deciding how to invest the Education Investment Fund. • Investments of the Education Investment Fund will consist of financial assets. • The Future Fund Board is bound by an Education Investment Fund Investment Mandate given to it by the responsible Ministers. > Note: The Future Fund Act 2006 provides that the Future Fund Management Agency is responsible for assisting and advising the Future Fund Board. ## Part 3.2—Education Investment Fund ### Division 1—Introduction #### 130 Simplified outline The following is a simplified outline of this Part: • This Part sets up the Education Investment Fund. • The Education Investment Fund consists of: (a) the Education Investment Fund Special Account; and (b) the investments of the Education Investment Fund. • The balance of the Higher Education Endowment Fund is to be transferred to the Education Investment Fund. • The responsible Ministers may determine that additional amounts are to be credited to the Education Investment Fund Special Account. • Amounts may be debited from the Education Investment Fund Special Account in accordance with the purposes of the Education Investment Fund Special Account. • The main purposes of the Education Investment Fund Special Account are: (a) to make payments in relation to the creation or development of higher education infrastructure; and (b) to make payments in relation to the creation or development of research infrastructure; and (c) to make payments in relation to the creation or development of vocational education and training infrastructure; and (d) to make payments in relation to the creation or development of eligible education infrastructure; and (e) to make transitional HEEF payments. > Note: The Higher Education Endowment Fund was established by section 11 of the repealed Higher Education Endowment Fund Act 2007. ### Division 2—Establishment of the Education Investment Fund etc. #### 131 Establishment of the Education Investment Fund (1) The Education Investment Fund is established by this section. (2) The Education Investment Fund consists of: (a) the Education Investment Fund Special Account; and (b) the investments of the Education Investment Fund. #### 132 Establishment of the Education Investment Fund Special Account (1) The Education Investment Fund Special Account is established by this section. (2) The Education Investment Fund Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013. > Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account. ### Division 3—Credits of amounts to the Education Investment Fund #### 134 Credits of amounts to the Education Investment Fund Special Account—determinations by the responsible Ministers (1) The responsible Ministers may, by writing, determine that: (a) a specified amount is to be credited to the Education Investment Fund Special Account on a specified day; or (b) a specified amount is to be credited to the Education Investment Fund Special Account in specified instalments on specified days. > Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) In making a determination under subsection (1), the responsible Ministers must have regard to the object of this Chapter. (3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. #### 135 Credit of amount to the Education Investment Fund Special Account—balance of the Higher Education Endowment Fund Special Account Immediately after the commencement of this section, there is to be credited to the Education Investment Fund Special Account an amount equal to the balance of the Higher Education Endowment Fund Special Account as at immediately before the commencement of this section. > Note: The Higher Education Endowment Fund Special Account was established by section 11 of the repealed Higher Education Endowment Fund Act 2007. ### Division 4—Debits of amounts from the Education Investment Fund #### 136 Purposes of the Education Investment Fund Special Account—payments purposes and purposes related exclusively to the Education Investment Fund (1) Each of the following is a purpose of the Education Investment Fund Special Account: (a) making payments in relation to the creation or development of higher education infrastructure, so long as the payments are authorised under subsection 176(1); (b) making payments in relation to the creation or development of research infrastructure, so long as the payments are authorised under subsection 176(2); (c) making payments in relation to the creation or development of vocational education and training infrastructure, so long as the payments are authorised under subsection 176(3); (d) making payments in relation to the creation or development of eligible education infrastructure, so long as the payments are authorised under subsection 176(4); (e) making transitional HEEF payments, so long as the payments are authorised under subsection 176(5); (f) paying the costs of, or incidental to, the acquisition of financial assets under section 151; (g) paying expenses of an investment of the Education Investment Fund; (h) paying the costs of, or incidental to, the acquisition of derivatives under section 161; (i) paying or discharging the costs, expenses and other obligations incurred by the Future Fund Board under a contract between the Future Fund Board and an investment manager engaged under subsection 164(1); (j) paying or discharging the costs, expenses and other obligations incurred in connection with the establishment, maintenance or operation of a bank account of the Future Fund Board, where the bank account relates exclusively to the Education Investment Fund; (k) paying a premium in respect of a contract of insurance entered into by the Future Fund Board exclusively in connection with the Education Investment Fund; (l) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Future Fund Board exclusively in connection with the Education Investment Fund. > Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts). (2) Paragraphs (1)(a), (b), (c), (d) and (e) do not limit each other. (3) A payment under paragraph (1)(a), (b), (c) or (d) may be made: (a) by way of a grant of financial assistance; or (b) otherwise than by way of a grant of financial assistance. > Note 1: Section 183 deals with the channelling of payments through the EIF Education Portfolio Special Account. > Note 2: Section 190 deals with the channelling of payments through the EIF Research Portfolio Special Account. > Note 3: Section 194 deals with the channelling of State/Territory grants payments through the COAG Reform Fund. #### 137 Purposes of the Education Investment Fund Special Account—transitional Each of the following is a purpose of the Education Investment Fund Special Account: (a) paying the costs of, or incidental to, the acquisition of financial assets under Part 3 of the repealed Higher Education Endowment Fund Act 2007, where the costs were incurred before the commencement of this section; (b) paying expenses of an investment of the Education Investment Fund, where: (i) immediately before the commencement of this section, the investment was an investment of the Higher Education Endowment Fund; and (ii) the expense was incurred before the commencement of this section; (c) paying the costs of, or incidental to, the acquisition of derivatives under section 31 of the repealed Higher Education Endowment Fund Act 2007, where the costs were incurred before the commencement of this section; (d) paying or discharging the costs, expenses and other obligations incurred by the Future Fund Board under a contract between the Future Fund Board and an investment manager engaged under subsection 34(1) of the repealed Higher Education Endowment Fund Act 2007, where the costs, expenses or obligations were incurred before the commencement of this section; (e) paying or discharging the costs, expenses and other obligations incurred in connection with the establishment, maintenance or operation of a bank account of the Future Fund Board, where: (i) the bank account relates exclusively to the Higher Education Endowment Fund; and (ii) the costs, expenses or obligations were incurred before the commencement of this section; (f) paying a premium in respect of a contract of insurance entered into by the Future Fund Board exclusively in connection with the Higher Education Endowment Fund, where the liability to pay the premium was incurred before the commencement of this section; (g) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Commonwealth exclusively in connection with the Higher Education Endowment Fund, where the costs, expenses, obligations or liabilities were incurred before the commencement of this section. > Note 1: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts). > Note 2: The Higher Education Endowment Fund was established by the repealed Higher Education Endowment Fund 2007. #### 138 Purposes of the Education Investment Fund Special Account—purposes not related exclusively to the Education Investment Fund Each of the following is a purpose of the Education Investment Fund Special Account: (a) paying or discharging the costs, expenses and other obligations incurred in connection with the establishment, maintenance or operation of a bank account of the Future Fund Board, where those costs, expenses or obligations are not covered by: (ii) paragraph 136(1)(j); or (iii) paragraph 137(e); or (v) paragraph 2(1)(g) of Schedule 2 to the Future Fund Act 2006; or (va) paragraph 16(e) of the Future Drought Fund Act 2019; or (vi) paragraph 15(e) of the DisabilityCare Australia Fund Act 2013; or (vii) paragraph 18(e) of the Medical Research Future Fund Act 2015; or (viii) paragraph 15(e) of the Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018; (b) paying a premium in respect of a contract of insurance entered into by the Future Fund Board, where the premium is not covered by: (ii) paragraph 136(1)(k); or (iii) paragraph 137(f); or (v) paragraph 2(1)(h) of Schedule 2 to the Future Fund Act 2006; or (va) paragraph 16(f) of the Future Drought Fund Act 2019; or (vi) paragraph 15(f) of the DisabilityCare Australia Fund Act 2013; or (vii) paragraph 18(f) of the Medical Research Future Fund Act 2015; or (viii) paragraph 15(f) of the Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018; (c) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Future Fund Board, where the costs, expenses, obligations or liabilities are not covered by: (ii) a paragraph of subsection 136(1); or (iii) a paragraph of section 137; or (v) a paragraph of subclause 2(1) of Schedule 2 to the Future Fund Act 2006; or (va) a paragraph of section 16 of the Future Drought Fund Act 2019; or (vi) a paragraph of section 15 of the DisabilityCare Australia Fund Act 2013; or (vii) a paragraph of section 18 of the Medical Research Future Fund Act 2015; or (viii) a paragraph of section 15 of the Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018; (d) paying remuneration and allowances of Future Fund Board members; (e) paying remuneration, and other employment‑related costs and expenses, in respect of members of the staff of the Agency; (f) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth under a contract entered into under section 78 or 82 of the Future Fund Act 2006; (g) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in connection with the operation of the Agency. > Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts). #### 139 Payments in relation to the creation or development of higher education infrastructure For the purposes of this Act, a payment in relation to the creation or development of higher education infrastructure is: (a) a payment to a higher education institution in relation to the creation or development of education infrastructure; or (b) any of the following payments: (i) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of education infrastructure; (ii) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of education infrastructure; (iii) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of education infrastructure; (iv) a payment in relation to the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of education infrastructure; (v) a payment in relation to a matter incidental or ancillary to a matter set out in subparagraph (i), (ii), (iii) or (iv); where the education infrastructure relates to the higher education sector. > Note: See section 206. #### 140 Payments in relation to the creation or development of research infrastructure For the purposes of this Act, a payment in relation to the creation or development of research infrastructure is: (a) a payment to a research institution in relation to the creation or development of research infrastructure; or (b) any of the following payments: (i) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of research infrastructure; (ii) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of research infrastructure; (iii) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of research infrastructure; (iv) a payment in relation to the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of research infrastructure; (v) a payment in relation to a matter incidental or ancillary to a matter set out in subparagraph (i), (ii), (iii) or (iv). > Note: See section 206. #### 141 Payments in relation to the creation or development of vocational education and training infrastructure For the purposes of this Act, a payment in relation to the creation or development of vocational education and training infrastructure is: (a) a payment to a vocational education and training provider in relation to the creation or development of education infrastructure; or (b) any of the following payments: (i) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of education infrastructure; (ii) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of education infrastructure; (iii) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of education infrastructure; (iv) a payment in relation to the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of education infrastructure; (v) a payment in relation to a matter incidental or ancillary to a matter set out in subparagraph (i), (ii), (iii) or (iv); where the education infrastructure relates to the vocational education and training sector. > Note: See section 206. #### 142 Payments in relation to the creation or development of eligible education infrastructure For the purposes of this Act, a payment in relation to the creation or development of eligible education infrastructure is: (a) a payment in relation to one or more designated education infrastructure‑related matters; or (b) any of the following payments: (i) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of education infrastructure; (ii) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of education infrastructure; (iii) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of education infrastructure; (iv) a payment in relation to the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of education infrastructure; (v) a payment in relation to a matter incidental or ancillary to a matter set out in subparagraph (i), (ii), (iii) or (iv); where the education infrastructure relates to education specified in a legislative instrument made by the EIF designated Ministers for the purposes of this paragraph. > Note: See section 206. #### 143 Designated education infrastructure‑related matters (1) The EIF designated Ministers may, by legislative instrument, determine that, for the purposes of this Act, a specified matter is a designated education infrastructure‑related matter. > Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) The EIF designated Ministers must not specify a matter under subsection (1) unless the matter relates to the creation or development of education infrastructure. #### 144 Transitional HEEF payments (1) For the purposes of this Act, a transitional HEEF payment is: (a) a grant of financial assistance to an eligible higher education institution in relation to capital expenditure; or (b) a grant of financial assistance to an eligible higher education institution in relation to research facilities. > Note: A transitional HEEF payment requires a pre‑1 July 2009 recommendation of the EIF designated Ministers—see subsections 177(7), 184(4) and 191(4). (2) An expression used in paragraph (1)(a) or (b) has the same meaning as it had in the Higher Education Endowment Fund Act 2007 as in force immediately before the commencement of this section. #### 145 Future Fund Board must ensure that there is sufficient money in the Education Investment Fund Special Account to cover authorised payments etc. The Future Fund Board must take all reasonable steps to ensure that the amount of money standing to the credit of the Education Investment Fund Special Account is sufficient to cover: (a) the debit of amounts for payments authorised, or proposed to be authorised, under subsection 176(1), (2), (3), (4) or (5); and (b) amounts debited, or proposed to be debited, under subsection 183(1); and (c) amounts debited, or proposed to be debited, under subsection 190(1); and (d) amounts debited, or proposed to be debited, under subsection 194(1). > Note: This may require the Future Fund Board to realise an investment of the Education Investment Fund in accordance with section 153. ### Division 5—Inter‑fund transfers #### 146 Transfers from the Education Investment Fund to the Future Fund (1) If an amount is debited from the Future Fund Special Account for a purpose mentioned in subclause 2(2) of Schedule 2 to the Future Fund Act 2006, the Finance Minister may, by writing, direct that a specified amount is to be: (a) debited from the Education Investment Fund Special Account; and (b) credited to the Future Fund Special Account; on a specified day. (2) The specified amount must not exceed the amount debited from the Future Fund Special Account as mentioned in subsection (1). (3) A direction under subsection (1) is not a legislative instrument. #### 148A Transfers from the Education Investment Fund to the DisabilityCare Australia Fund (1) If an amount is debited from the DisabilityCare Australia Fund Special Account for a purpose mentioned in section 16 of the DisabilityCare Australia Fund Act 2013, the Finance Minister may, by writing, direct that a specified amount is to be: (a) debited from the Education Investment Fund Special Account; and (b) credited to the DisabilityCare Australia Fund Special Account; on a specified day. (2) The specified amount must not exceed the amount debited from the DisabilityCare Australia Fund Special Account as mentioned in subsection (1). (3) A direction under subsection (1) is not a legislative instrument. ## Part 3.3—Investment of the Education Investment Fund #### 149 Simplified outline The following is a simplified outline of this Part: • The Future Fund Board is responsible for deciding how to invest the Education Investment Fund. • Investments of the Education Investment Fund will consist of financial assets. • Investments of the Education Investment Fund will be held in the name of the Future Fund Board. • The Future Fund Board is bound by an Education Investment Fund Investment Mandate given to it by the responsible Ministers. #### 150 Objects of investment of the Education Investment Fund (1) The main object of the acquisition by the Future Fund Board of a financial asset as an investment of the Education Investment Fund is to enhance the Commonwealth’s ability: (a) to make payments in relation to the creation or development of higher education infrastructure; and (b) to make payments in relation to the creation or development of research infrastructure; and (c) to make payments in relation to the creation or development of vocational education and training infrastructure; and (d) to make payments in relation to the creation or development of eligible education infrastructure; and (e) to make transitional HEEF payments. (2) The ancillary objects of the acquisition by the Future Fund Board of a financial asset as an investment of the Education Investment Fund are to enhance the ability of the Commonwealth and the Future Fund Board to: (a) discharge costs, expenses, obligations and liabilities; and (b) make payments; as mentioned in paragraphs 136(1)(f) to (l), 137(a) to (g) and 138(a) to (g). #### 151 Investment of the Education Investment Fund (1) The Future Fund Board may invest amounts standing to the credit of the Education Investment Fund Special Account in any financial assets. (2) Investments under subsection (1) are to be made in the name of the Future Fund Board. (3) Investments under subsection (1) are taken to be investments of the Education Investment Fund. (4) This section does not authorise the acquisition of a derivative. > Note: For acquisition of derivatives, see section 161. #### 152 Education Investment Fund to inherit investments of the Higher Education Endowment Fund Scope (1) This section applies to a financial asset if: (a) immediately before the commencement of this section, the financial asset was an investment of the Higher Education Endowment Fund; and (b) the financial asset is held by the Future Fund Board; and (c) the financial asset has been continuously held by the Future Fund Board since the commencement of this section. > Note: The Higher Education Endowment Fund was established by section 11 of the repealed Higher Education Endowment Fund Act 2007. Investment of the Education Investment Fund (2) The financial asset is taken to be an investment of the Education Investment Fund. #### 153 Management of investments of the Education Investment Fund (1) Income derived from an investment of the Education Investment Fund is to be credited to the Education Investment Fund Special Account. (2) A return of capital, or any other financial distribution, relating to an investment of the Education Investment Fund is to be credited to the Education Investment Fund Special Account. (3) The Future Fund Board may realise an investment of the Education Investment Fund. (4) Upon realisation of an investment of the Education Investment Fund, the proceeds of the investment are to be credited to the Education Investment Fund Special Account. (5) At any time before an investment of the Education Investment Fund matures, the Future Fund Board may authorise the re‑investment of the proceeds upon maturity in a financial asset investment with the same entity. The new investment is taken to be an investment of the Education Investment Fund. (6) Section 58 of the Public Governance, Performance and Accountability Act 2013 (which deals with investment by the Commonwealth) does not apply to an investment of the Education Investment Fund. #### 154 Education Investment Fund Investment Mandate (1) The responsible Ministers may give the Future Fund Board written directions about the performance of its Education Investment Fund investment functions, and must give at least one such direction. > Note 1: Education Investment Fund investment function is defined in section 4. > Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) Subsection (1) has effect subject to section 155. (3) In giving a direction under subsection (1), the responsible Ministers must have regard to: (a) maximising the return earned on the Education Investment Fund, consistent with international best practice for institutional investment; and (b) enhancing the Commonwealth’s ability: (i) to make payments in relation to the creation or development of higher education infrastructure; and (ii) to make payments in relation to the creation or development of research infrastructure; and (iii) to make payments in relation to the creation or development of vocational education and training infrastructure; and (iv) to make payments in relation to the creation or development of eligible education infrastructure; and (v) to make transitional HEEF payments; and (c) such other matters as the responsible Ministers consider relevant. (4) Directions under subsection (1) are to be known collectively as the Education Investment Fund Investment Mandate. (5) A direction under subsection (1) may set out the policies to be pursued by the Future Fund Board in relation to: (a) matters of risk and return; and (b) the allocation of financial assets. A policy relating to the allocation of financial assets must not be inconsistent with a policy relating to matters of risk and return. (6) Subsection (5) does not limit subsection (1). (7) Subsection (5) has effect subject to section 155. (8) The Education Investment Fund Investment Mandate prevails over subsection (12) to the extent of any inconsistency. (9) The responsible Ministers must not give a direction under subsection (1) that is inconsistent with this Act (other than subsection (12)). (10) A direction under subsection (1) must not take effect before the 15th day after the day on which it is given. (11) A direction under subsection (1) is a legislative instrument. > Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the direction—see regulations made for the purposes of paragraph 44(2)(b) of that Act. > Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the direction—see regulations made for the purposes of paragraph 54(2)(b) of that Act. (12) In the performance of its Education Investment Fund investment functions, the Future Fund Board must seek to: (a) maximise the return earned on the Education Investment Fund, consistent with international best practice for institutional investment; and (b) enhance the Commonwealth’s ability: (i) to make payments in relation to the creation or development of higher education infrastructure; and (ii) to make payments in relation to the creation or development of research infrastructure; and (iii) to make payments in relation to the creation or development of vocational education and training infrastructure; and (iv) to make payments in relation to the creation or development of eligible education infrastructure; and (v) to make transitional HEEF payments. > Note: Education Investment Fund investment function is defined in section 4. (13) Subsection (12) has effect subject to: (a) this Act; and (b) a direction under subsection (1). #### 155 Limitation on Education Investment Fund Investment Mandate (1) The responsible Ministers must not give a direction under subsection 154(1) that has the purpose, or has or is likely to have the effect, of directly or indirectly requiring the Future Fund Board to: (a) invest an amount standing to the credit of the Education Investment Fund Special Account in a particular financial asset; or (b) acquire a particular derivative; or (c) allocate financial assets to: (i) a particular business entity; or (ii) a particular activity; or (iii) a particular business. (2) Paragraphs (1)(a) and (b) do not limit paragraph (1)(c). #### 156 Future Fund Board to be consulted on Education Investment Fund Investment Mandate (1) Before giving the Future Fund Board a direction under subsection 154(1), the responsible Ministers must: (a) send a draft of the direction to the Future Fund Board; and (b) invite the Future Fund Board to make a submission to the responsible Ministers on the draft direction within a time limit specified by the responsible Ministers; and (c) consider any submission that is received from the Future Fund Board within that time limit. (2) If: (a) the responsible Ministers give the Future Fund Board a direction under subsection 154(1); and (b) the Future Fund Board made a submission to the responsible Ministers on a draft of the direction within the time limit specified by the responsible Ministers; the submission is to be tabled in each House of the Parliament with the direction. > Note: For tabling of the direction, see section 38 of the Legislation Act 2003. (3) A time limit specified under this section must be reasonable. #### 157 Compliance with Education Investment Fund Investment Mandate (1) The Future Fund Board must take all reasonable steps to comply with the Education Investment Fund Investment Mandate. (2) As soon as practicable after the Future Fund Board becomes aware that it has failed to comply with the Education Investment Fund Investment Mandate, the Future Fund Board must give the responsible Ministers a written statement: (a) informing the responsible Ministers of the failure to comply with the Education Investment Fund Investment Mandate; and (b) setting out the action that the Future Fund Board proposes to take in order to comply with the Education Investment Fund Investment Mandate. (3) If the responsible Ministers are satisfied that the Future Fund Board has failed to comply with the Education Investment Fund Investment Mandate, the responsible Ministers may, by written notice given to the Future Fund Board, direct the Future Fund Board: (a) to give the responsible Ministers, within a period specified in the notice, a written explanation for the failure to comply with the Education Investment Fund Investment Mandate; and (b) to take action specified in the notice, within a period specified in the notice, in order to comply with the Education Investment Fund Investment Mandate. (4) The Future Fund Board must comply with a direction under subsection (3). (5) A failure to comply with: (a) the Education Investment Fund Investment Mandate; or (b) a direction under subsection (3); does not affect the validity of any transaction. (6) A direction under subsection (3) is not a legislative instrument. #### 158 Future Fund Board must not trigger the takeover provisions of the Corporations Act 2001 (1) Subsections 606(1A) and (2A) and section 611 of the Corporations Act 2001 do not apply to an acquisition by the Future Fund Board if the acquisition is the result of the performance by the Future Fund Board of its Education Investment Fund investment functions. (2) A failure by the Future Fund Board to comply with section 606 of the Corporations Act 2001 (as modified by this section) does not affect the validity of any transaction. > Note: See also section 39 of the Future Fund Act 2006 (application of the Corporations Act 2001). #### 159 Borrowing (1) The Future Fund Board must not borrow money for a purpose in connection with the Education Investment Fund unless the borrowing is authorised by subsection (2) or (3). (2) The Future Fund Board is authorised to borrow money for a purpose in connection with the Education Investment Fund if: (a) the purpose of the borrowing is to enable the Future Fund Board to cover settlement of a transaction for the acquisition of one or more financial assets; and (b) at the time the relevant acquisition decision was made, it was likely that the borrowing would not be needed; and (c) the period of the borrowing does not exceed 7 days; and (d) if the borrowing were to take place, the total amount borrowed by the Future Fund Board would not exceed 10% of the balance of the Education Investment Fund. (3) The Future Fund Board is authorised to borrow money for a purpose in connection with the Education Investment Fund if the borrowing takes place in such circumstances (if any) as are specified in the regulations. #### 160 Education Investment Fund investment policies (1) The Future Fund Board must formulate written policies to be complied with by it in relation to the following matters in connection with the Education Investment Fund: (a) the investment strategy for the Education Investment Fund; (b) benchmarks and standards for assessing the performance of the Education Investment Fund; (c) risk management for the Education Investment Fund; (d) a matter relating to international best practice for institutional investment; (e) a matter specified in the regulations. > Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) The Future Fund Board must ensure that policies formulated under subsection (1) are consistent with the Education Investment Fund Investment Mandate. Publication of policies (3) The Future Fund Board must cause copies of policies formulated under subsection (1) to be published on the internet. (4) The Future Fund Board must ensure that the first set of policies formulated under subsection (1) is published on the internet as soon as practicable after the commencement of this section. Review of policies (5) The Future Fund Board must conduct periodic reviews of policies formulated under subsection (1). (6) If there is a change in the Education Investment Fund Investment Mandate, the Future Fund Board must review any relevant policies formulated under subsection (1). Compliance with policies (7) The Future Fund Board must take all reasonable steps to comply with policies formulated under subsection (1). (8) A failure to comply with a policy formulated under subsection (1) does not affect the validity of any transaction. Policies (9) A policy formulated under subsection (1) is not a legislative instrument. #### 161 Derivatives (1) The Future Fund Board may acquire a derivative for the purpose of: (a) protecting the value of an investment of the Education Investment Fund (other than a derivative); or (b) protecting the return on an investment of the Education Investment Fund (other than a derivative); or (c) achieving indirect exposure to financial assets (other than derivatives) for a purpose in connection with the Education Investment Fund; or (d) achieving transactional efficiency for a purpose in connection with the Education Investment Fund; but must not acquire a derivative for the purpose of: (e) speculation; or (f) leverage. (2) The acquisition of a derivative under subsection (1) must be consistent with the investment strategy embodied in a policy formulated by the Future Fund Board under subsection 160(1). (3) A derivative acquired under subsection (1) is to be held in the name of the Future Fund Board. (4) A derivative acquired under subsection (1) is taken to be an investment of the Education Investment Fund. #### 162 Additional financial assets (1) If, as a result of: (a) the Future Fund Board’s holding of an investment of the Education Investment Fund; or (b) the exercise of any rights or powers conferred on the Future Fund Board in its capacity as the holder of an investment of the Education Investment Fund; the Future Fund Board becomes the holder of a financial asset, that financial asset is taken to be an investment of the Education Investment Fund. Transitional—Higher Education Endowment Fund (2) If, as a result of: (a) the Future Fund Board’s holding of an investment of the Higher Education Endowment Fund at a time before the commencement of this section; or (b) the exercise of any rights or powers conferred on the Future Fund Board in its capacity as the holder of an investment of the Higher Education Endowment Fund at a time before the commencement of this section; the Future Fund Board becomes the holder of a financial asset at a time after the commencement of this section, that financial asset is taken to be an investment of the Education Investment Fund. #### 163 Securities lending arrangements (1) The Future Fund Board may enter into securities lending arrangements for a purpose in connection with the Education Investment Fund. (2) Any money received by the Future Fund Board under a securities lending arrangement entered into under subsection (1) is to be credited to the Education Investment Fund Special Account. (3) To avoid doubt, a securities lending arrangement entered into under subsection (1) may provide for the Future Fund Board to realise an investment of the Education Investment Fund. (4) If, as the result of the operation of a securities lending arrangement entered into under subsection (1), the Future Fund Board becomes the holder of a financial asset, that financial asset is taken to be an investment of the Education Investment Fund. #### 164 Investment managers (1) The Future Fund Board may engage one or more investment managers for purposes in connection with the Education Investment Fund. (2) The Future Fund Board must not: (a) invest amounts under subsection 151(1); or (b) acquire derivatives under subsection 161(1); or (c) enter into a securities lending arrangement under subsection 163(1); or (d) realise financial assets that are investments of the Education Investment Fund; unless the Future Fund Board does so: (e) through an investment manager engaged by the Future Fund Board under subsection (1) of this section; or (f) in a manner approved, in writing, by the responsible Ministers. (3) The Future Fund Board must ensure that any investment manager engaged by the Future Fund Board under subsection (1) operates within this Act. (4) The Future Fund Board must ensure that any investment manager engaged by the Future Fund Board under subsection (1) reports to: (a) the Future Fund Board; and (b) the Agency; on the state of the investments of the Education Investment Fund at such times and in such manner as the Future Fund Board determines. #### 166 Refund of franking credits If: (a) the Future Fund Board receives a refund of a tax offset under the Income Tax Assessment Act 1997; and (b) the tax offset is attributable to an investment of the Education Investment Fund; the refund is to be credited to the Education Investment Fund Special Account. > Note 1: See also section 84B of the Future Fund Act 2006. > Note 2: For refunds of tax offsets, see Division 63 of the Income Tax Assessment Act 1997. #### 167 Realisation of non‑financial assets (1) If an asset held by the Future Fund Board as an investment of the Education Investment Fund ceases to be a financial asset: (a) the Future Fund Board must realise the asset as soon as practicable after the Future Fund Board becomes aware of the cessation; and (b) this Act (other than this section) applies in relation to the asset (including in relation to the realisation of the asset) as if the asset had remained a financial asset, and an investment of the Education Investment Fund, until the realisation. (2) If an asset acquired by the Future Fund Board, purportedly as an investment of the Education Investment Fund, is not a financial asset: (a) the Future Fund Board must realise the asset as soon as practicable after the Future Fund Board becomes aware that the asset is not a financial asset; and (b) this Act (other than this section) applies in relation to the asset (including in relation to the realisation of the asset) as if the asset had been a financial asset, and an investment of the Education Investment Fund, from the time of its acquisition by the Future Fund Board until the realisation. #### 168 Additional function of the Future Fund Board The functions of the Future Fund Board include the function of investing amounts in accordance with this Chapter. ## Part 3.4—Payments ### Division 1—Introduction #### 169 Simplified outline The following is a simplified outline of this Part: • The Education Investment Fund Advisory Board is established. • The Education Investment Fund Advisory Board is to advise the Education Minister about the following matters: (a) the making of payments in relation to the creation or development of higher education infrastructure; (b) the making of payments in relation to the creation or development of vocational education and training infrastructure; (c) the making of payments in relation to the creation or development of eligible education infrastructure. • The Education Investment Fund Advisory Board is to advise the Research Minister about the making of payments in relation to the creation or development of research infrastructure. • The Education Investment Fund Advisory Board is to advise the EIF designated Ministers about the making of transitional HEEF payments. • The Finance Minister may authorise: (a) payments in relation to the creation or development of higher education infrastructure; and (b) payments in relation to the creation or development of vocational education and training infrastructure; and (c) payments in relation to the creation or development of eligible education infrastructure; on the recommendation of the Education Minister. • The Finance Minister may authorise payments in relation to the creation or development of research infrastructure on the recommendation of the Research Minister. • The Finance Minister may authorise transitional HEEF payments on the recommendation of the EIF designated Ministers. • If a payment is made by way of a grant of financial assistance, the terms and conditions on which the financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient. • Payments may be channelled through the EIF Education Portfolio Special Account or the EIF Research Portfolio Special Account. • Grants of financial assistance to the States and Territories may be channelled through the COAG Reform Fund. • The Finance Minister must comply with any debit limits that may be imposed by an Appropriation Act. • The total amount of payments made in each financial year will depend on the macroeconomic circumstances. ### Division 2—Education Investment Fund Advisory Board #### 170 Education Investment Fund Advisory Board (1) The Education Investment Fund Advisory Board is established. (2) The EIF Advisory Board consists of such persons as the EIF designated Ministers from time to time appoint, by writing, to the EIF Advisory Board. > Note: EIF Advisory Board means the Education Investment Fund Advisory Board—see section 4. (3) A member of the EIF Advisory Board holds office for the period specified in the instrument of appointment. The period must not exceed 3 years. > Note: A member of the EIF Advisory Board may be reappointed: see section 33AA of the Acts Interpretation Act 1901. (4) A person is not eligible for appointment to the EIF Advisory Board unless the EIF designated Ministers are satisfied that the person has substantial experience or knowledge in a field relevant to one or more of the EIF Advisory Board’s functions. (5) The EIF designated Ministers may terminate a person’s appointment to the EIF Advisory Board. (6) The EIF designated Ministers may give the EIF Advisory Board written directions as to: (a) the way in which the EIF Advisory Board is to carry out its functions; and (b) procedures to be followed in relation to meetings. (7) A direction under subsection (6) is not a legislative instrument. #### 171 Functions of the EIF Advisory Board General functions (1) The EIF Advisory Board has the following functions: (a) to advise the Education Minister about matters referred to it by the Education Minister; and (b) to advise the Research Minister about matters referred to it by the Research Minister; and (c) to advise the EIF designated Ministers about matters referred to it by the EIF designated Ministers. (2) Each matter referred to the EIF Advisory Board under paragraph (1)(a) must be a matter that relates to: (a) the making of payments in relation to the creation or development of higher education infrastructure; or (b) the making of payments in relation to the creation or development of vocational education and training infrastructure; or (c) the making of payments in relation to the creation or development of eligible education infrastructure. (3) Each matter referred to the EIF Advisory Board under paragraph (1)(b) must be a matter that relates to the making of payments in relation to the creation or development of research infrastructure. (4) In giving advice under paragraph (1)(a) or (b), the EIF Advisory Board must apply the EIF evaluation criteria. (5) Each matter referred to the EIF Advisory Board under paragraph (1)(c) must be a matter that: (a) relates to the object or operation of this Chapter; and (b) does not relate to the making of a particular payment. Functions relating to transitional HEEF payments (6) The EIF Advisory Board also has the function of advising the EIF designated Ministers about matters that: (a) are referred to it by the EIF designated Ministers before 1 July 2009; and (b) relate to the making of transitional HEEF payments. (7) In giving advice under subsection (6), the EIF Advisory Board must apply the provisions of the document that: (a) is entitled “Higher Education Endowment Fund (HEEF) Application and Assessment Procedures for the 2009 Funding Round”; and (b) was attached to the Higher Education Endowment Fund Advisory Board Directions No. 1 of 2008 as in force immediately before the commencement of this section; subject to such modifications as are specified in the regulations. #### 172 EIF evaluation criteria (1) The EIF designated Ministers may, by legislative instrument, formulate criteria (EIF evaluation criteria) to be applied by the EIF Advisory Board in giving advice under paragraph 171(1)(a) or (b). (2) The EIF evaluation criteria may provide that the criteria to be applied by the EIF Advisory Board in giving advice under paragraph 171(1)(a) may be different to the criteria to be applied by the EIF Advisory Board in giving advice under paragraph 171(1)(b). (3) Before formulating EIF evaluation criteria, the EIF designated Ministers must consult the responsible Ministers. (4) The EIF designated Ministers must ensure that EIF evaluation criteria are in force at all times after the commencement of this section. #### 173 Remuneration and allowances (1) A member of the EIF Advisory Board 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 member is to be paid the remuneration that is determined by the EIF designated Ministers. (2) A member of the EIF Advisory Board is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 174 Disclosure of interests (1) This section applies to a member of the EIF Advisory Board who has a material personal interest in a matter being considered, or about to be considered, by the EIF Advisory Board. (2) The member must, as soon possible after the relevant facts have come to the member’s knowledge: (a) disclose the nature of the interest at a meeting of the EIF Advisory Board; and (b) disclose the nature of the interest to the EIF designated Ministers. (3) A disclosure under paragraph (2)(a) must be recorded in the minutes of the meeting. (4) The EIF designated Ministers must terminate the appointment of a member of the EIF Advisory Board if the member fails, without reasonable excuse, to comply with subsection (2). (5) Subsection (4) does not limit subsection 170(5). #### 175 Resignation (1) A member of the EIF Advisory Board may resign his or her appointment by giving a written resignation to: (a) the Education Minister; or (b) the Research Minister. (2) The resignation takes effect on the day it is received by the Minister concerned or, if a later day is specified in the resignation, on that later day. ### Division 3—Direct payments #### 176 Authorisation of payments (1) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of higher education infrastructure. (2) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of research infrastructure. (3) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of vocational education and training infrastructure. (4) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of eligible education infrastructure. (5) The Finance Minister may, by writing, authorise a transitional HEEF payment. (6) Subsections (1), (2), (3), (4) and (5) do not limit each other. (7) 2 or more authorisations under this section may be set out in the same document. (8) An instrument under subsection (1), (2), (3), (4) or (5) is not a legislative instrument. #### 177 Recommendations about payments Education infrastructure (1) The Finance Minister must not authorise a payment under subsection 176(1), (3) or (4) unless the Education Minister has recommended the authorisation of the payment. (2) The Education Minister must not make a recommendation under subsection (1) in relation to a payment unless the EIF Advisory Board has advised under paragraph 171(1)(a) that the payment satisfies the relevant EIF evaluation criteria. (3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Education Minister must have regard to: (a) advice about the payment that was given to the Education Minister by the EIF Advisory Board under paragraph 171(1)(a); and (b) such other matters (if any) as the Education Minister considers relevant. Research infrastructure (4) The Finance Minister must not authorise a payment under subsection 176(2) unless the Research Minister has recommended the authorisation of the payment. (5) The Research Minister must not make a recommendation under subsection (4) in relation to a payment unless the EIF Advisory Board has advised under paragraph 171(1)(b) that the payment satisfies the relevant EIF evaluation criteria. (6) In deciding whether to make a recommendation under subsection (4) in relation to a payment, the Research Minister must have regard to: (a) advice about the payment that was given to the Research Minister by the EIF Advisory Board under paragraph 171(1)(b); and (b) such other matters (if any) as the Research Minister considers relevant. Transitional HEEF payments (7) The Finance Minister must not authorise a payment under subsection 176(5) unless the EIF designated Ministers have, before 1 July 2009, recommended the authorisation of the payment. (8) The EIF designated Ministers must not make a recommendation under subsection (7) in relation to a payment unless the EIF Advisory Board has given advice under subsection 171(6) about the payment. (9) In deciding whether to make a recommendation under subsection (7) in relation to a payment, the EIF designated Ministers must have regard to: (a) advice about the payment that was given to the EIF designated Ministers by the EIF Advisory Board under subsection 171(6); and (b) such other matters (if any) as the EIF designated Ministers consider relevant. #### 178 Grant to a State or Territory—education infrastructure etc. Scope (1) This section applies if: (a) an amount is to be debited from the Education Investment Fund Special Account for the purpose of making a payment to a State or Territory; and (b) the payment is by way of a grant of financial assistance; and (c) the payment is for a purpose mentioned in paragraph 136(1)(c) or (d). Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory. (3) An agreement under subsection (2) may be entered into by the Education Minister on behalf of the Commonwealth. #### 179 Grant to a person other than a State or Territory—education infrastructure etc. Scope (1) This section applies if: (a) an amount is to be debited from the Education Investment Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and (b) the payment is by way of a grant of financial assistance; and (c) the payment is for a purpose mentioned in paragraph 136(1)(a), (c), (d) or (e). Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person. (3) An agreement under subsection (2) may be entered into by the Education Minister on behalf of the Commonwealth. #### 180 Grant to a person other than a State or Territory—research infrastructure Scope (1) This section applies if: (a) an amount is to be debited from the Education Investment Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and (b) the payment is by way of a grant of financial assistance; and (c) the payment is for the purpose mentioned in paragraph 136(1)(b). Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person. (3) An agreement under subsection (2) may be entered into by the Research Minister on behalf of the Commonwealth. ### Division 4—Channelling of payments through the EIF Education Portfolio Special Account #### 181 Establishment of the EIF Education Portfolio Special Account (1) The EIF Education Portfolio Special Account is established by this section. (2) The EIF Education Portfolio Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013. #### 182 Purposes of the EIF Education Portfolio Special Account (1) Each of the following is a purpose of the EIF Education Portfolio Special Account: (a) making payments in relation to the creation or development of higher education infrastructure, so long as the payments are specified under subsection 183(2); (b) making payments in relation to the creation or development of vocational education and training infrastructure, so long as the payments are specified under subsection 183(2); (c) making payments in relation to the creation or development of eligible education infrastructure, so long as the payments are specified under subsection 183(2); (d) making transitional HEEF payments, so long as the payments are specified under subsection 183(2). > Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts). (2) Paragraphs (1)(a), (b), (c) and (d) do not limit each other. (3) A payment under paragraph (1)(a), (b), (c) or (d) may be made: (a) by way of a grant of financial assistance; or (b) otherwise than by way of a grant of financial assistance. #### 183 Channelling of payments through the EIF Education Portfolio Special Account (1) The Finance Minister may, by writing, direct that a specified amount is to be: (a) debited from the Education Investment Fund Special Account; and (b) credited to the EIF Education Portfolio Special Account; on a specified day. (2) The direction must be expressed to be given in order to enable the specified amount to be debited from the EIF Education Portfolio Special Account: (a) for the purpose of making a specified payment in relation to the creation or development of higher education infrastructure; or (b) for the purpose of making a specified payment in relation to the creation or development of vocational education and training infrastructure; or (c) for the purpose of making a specified payment in relation to the creation or development of eligible education infrastructure; or (d) for the purpose of making a specified transitional HEEF payment. (3) Paragraphs (2)(a), (b), (c) and (d) do not limit each other. (4) 2 or more directions under subsection (1) may be set out in the same document. (5) A direction under subsection (1) is not a legislative instrument. (6) The Finance Minister must give a copy of a direction under subsection (1) to the Education Minister. #### 184 Recommendations about payments—education infrastructure Education infrastructure (1) The following payments: (a) a payment in relation to the creation or development of higher education infrastructure; (b) a payment in relation to the creation or development of vocational education and training infrastructure; (c) a payment in relation to the creation or development of eligible education infrastructure; must not be specified under subsection 183(2) unless the Education Minister has recommended the specification of the payment. (2) The Education Minister must not make a recommendation under subsection (1) in relation to a payment unless the EIF Advisory Board has advised under paragraph 171(1)(a) that the payment satisfies the relevant EIF evaluation criteria. (3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Education Minister must have regard to: (a) advice about the payment that was given to the Education Minister by the EIF Advisory Board under paragraph 171(1)(a); and (b) such other matters (if any) as the Education Minister considers relevant. Transitional HEEF payments (4) A transitional HEEF payment must not be specified under subsection 183(2) unless the EIF designated Ministers have, before 1 July 2009, recommended the specification of the payment. (5) The EIF designated Ministers must not make a recommendation under subsection (4) in relation to a payment unless the EIF Advisory Board has given advice under subsection 171(6) about the payment. (6) In deciding whether to make a recommendation under subsection (4) in relation to a payment, the EIF designated Ministers must have regard to: (a) advice about the payment that was given to the EIF designated Ministers by the EIF Advisory Board under subsection 171(6); and (b) such other matters (if any) as the EIF designated Ministers consider relevant. #### 185 Payments—debit from the EIF Education Portfolio Special Account Scope (1) This section applies if: (a) the Finance Minister gives a direction under subsection 183(1) for a purpose in relation to a payment; and (b) the amount specified in the direction is credited to the EIF Education Portfolio Special Account. Debit from the EIF Education Portfolio Special Account (2) The Education Minister must ensure that, as soon as practicable after the amount is credited, the EIF Education Portfolio Special Account is debited for the purposes of making the payment. (3) However, if the payment cannot be made, an amount equal to the credited amount is to be: (a) debited from the EIF Education Portfolio Special Account; and (b) credited to the Education Investment Fund Special Account. #### 186 Grant to a State or Territory—education infrastructure etc. Scope (1) This section applies if an amount is to be debited from the EIF Education Portfolio Special Account for the purpose of making a grant of financial assistance to a State or Territory. Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory. (3) An agreement under subsection (2) may be entered into by the Education Minister on behalf of the Commonwealth. #### 187 Grant to a person other than a State or Territory—education infrastructure etc. Scope (1) This section applies if: (a) an amount is to be debited from the EIF Education Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and (b) the payment is by way of a grant of financial assistance. Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person. (3) An agreement under subsection (2) may be entered into by the Education Minister on behalf of the Commonwealth. ### Division 5—Channelling of payments through the EIF Research Portfolio Special Account #### 188 Establishment of the EIF Research Portfolio Special Account (1) The EIF Research Portfolio Special Account is established by this section. (2) The EIF Research Portfolio Special Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013. #### 189 Purposes of the EIF Research Portfolio Special Account (1) Each of the following is a purpose of the EIF Research Portfolio Special Account: (a) making payments in relation to the creation or development of research infrastructure, so long as the payments are specified under subsection 190(2); (b) making transitional HEEF payments, so long as the payments are specified under subsection 190(2). > Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts). (2) Paragraphs (1)(a) and (b) do not limit each other. (3) A payment under paragraph (1)(a) or (b) may be made: (a) by way of a grant of financial assistance; or (b) otherwise than by way of a grant of financial assistance. #### 190 Channelling of payments through the EIF Research Portfolio Special Account (1) The Finance Minister may, by writing, direct that a specified amount is to be: (a) debited from the Education Investment Fund Special Account; and (b) credited to the EIF Research Portfolio Special Account; on a specified day. (2) The direction must be expressed to be given in order to enable the specified amount to be debited from the EIF Research Portfolio Special Account: (a) for the purpose of making a specified payment in relation to the creation or development of research infrastructure; or (b) for the purpose of making a specified transitional HEEF payment. (3) Paragraphs (2)(a) and (b) do not limit each other. (4) 2 or more directions under subsection (1) may be set out in the same document. (5) A direction under subsection (1) is not a legislative instrument. (6) The Finance Minister must give a copy of a direction under subsection (1) to the Research Minister. #### 191 Recommendations about payments—research infrastructure and transitional HEEF payments Research infrastructure (1) A payment in relation to the creation or development of research infrastructure must not be specified under subsection 190(2) unless the Research Minister has recommended the specification of the payment. (2) The Research Minister must not make a recommendation under subsection (1) in relation to a payment unless the EIF Advisory Board has advised under paragraph 171(1)(b) that the payment satisfies the relevant EIF evaluation criteria. (3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Research Minister must have regard to: (a) advice about the payment that was given to the Research Minister by the EIF Advisory Board under paragraph 171(1)(b); and (b) such other matters (if any) as the Research Minister considers relevant. Transitional HEEF payments (4) A transitional HEEF payment must not be specified under subsection 190(2) unless the EIF designated Ministers have, before 1 July 2009, recommended the specification of the payment. (5) The EIF designated Ministers must not make a recommendation under subsection (4) in relation to a payment unless the EIF Advisory Board has given advice under subsection 171(6) about the payment. (6) In deciding whether to make a recommendation under subsection (4) in relation to a payment, the EIF designated Ministers must have regard to: (a) advice about the payment that was given to the EIF designated Ministers by the EIF Advisory Board under subsection 171(6); and (b) such other matters (if any) as the EIF designated Ministers consider relevant. #### 192 Payments—debit from the EIF Research Portfolio Special Account Scope (1) This section applies if: (a) the Finance Minister gives a direction under subsection 190(1) for a purpose in relation to a payment; and (b) the amount specified in the direction is credited to the EIF Research Portfolio Special Account. Debit from the EIF Research Portfolio Special Account (2) The Research Minister must ensure that, as soon as practicable after the amount is credited, the EIF Research Portfolio Special Account is debited for the purposes of making the payment. (3) However, if the payment cannot be made, an amount equal to the credited amount is to be: (a) debited from the EIF Research Portfolio Special Account; and (b) credited to the Education Investment Fund Special Account. #### 193 Grant to a person other than a State or Territory—research infrastructure Scope (1) This section applies if: (a) an amount is to be debited from the EIF Research Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and (b) the payment is by way of a grant of financial assistance. Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person. (3) An agreement under subsection (2) may be entered into by the Research Minister on behalf of the Commonwealth. ### Division 6—Channelling of State/Territory grants payments through the COAG Reform Fund #### 194 Channelling of State/Territory grants payments through the COAG Reform Fund (1) The Finance Minister may, by writing, direct that a specified amount is to be: (a) debited from the Education Investment Fund Special Account; and (b) credited to the EIF Education Portfolio Special Account; on a specified day. (2) The direction must be expressed to be given in order to enable the specified amount to be: (a) transferred from the EIF Education Portfolio Special Account to the COAG Reform Fund; and (b) debited from the COAG Reform Fund for the purpose of making a specified grant of financial assistance to a State or Territory. (3) A grant specified under subsection (2) must be: (a) a grant of financial assistance to a vocational education and training provider in relation to education infrastructure; or (b) a grant of financial assistance in relation to a designated education infrastructure‑related matter. (4) 2 or more directions under subsection (1) may be set out in the same document. (5) A direction under subsection (1) is not a legislative instrument. (6) The Finance Minister must give a copy of a direction under subsection (1) to the Treasurer and the Education Minister. #### 195 Recommendations about grants payments (1) A grant must not be specified under subsection 194(2) unless the Education Minister has recommended the specification of the grant. (2) The Education Minister must not make a recommendation under subsection (1) in relation to a grant unless the EIF Advisory Board has advised under paragraph 171(1)(a) that the grant satisfies the relevant EIF evaluation criteria. (3) In deciding whether to make a recommendation under subsection (1) in relation to a grant, the Education Minister must have regard to: (a) advice about the grant that was given to the Education Minister by the EIF Advisory Board Australia under paragraph 171(1)(a); and (b) such other matters (if any) as the Education Minister considers relevant. #### 196 Transfers from the EIF Education Portfolio Special Account to the COAG Reform Fund Scope (1) This section applies if: (a) the Finance Minister gives a direction under subsection 194(1) for a purpose in relation to a grant of financial assistance to a State or Territory; and (b) the amount specified in the direction is credited to the EIF Education Portfolio Special Account. Transfer direction (2) As soon as practicable after the amount is credited, the Education Minister must, by writing, direct that the amount is to be: (a) debited from the EIF Education Portfolio Special Account; and (b) credited to the COAG Reform Fund; on a specified day. (3) The direction must be expressed to be given in order to enable the amount to be debited from the COAG Reform Fund for the purpose of making the grant. (4) 2 or more directions under subsection (2) may be set out in the same document. (5) A direction under subsection (2) is not a legislative instrument. (6) The Education Minister must give a copy of a direction under subsection (2) to the Treasurer. #### 197 Grants payments—debit from the COAG Reform Fund Scope (1) This section applies if: (a) the Education Minister gives a direction under subsection 196(2) for a purpose in relation to a grant of financial assistance to a State or Territory; and (b) the amount specified in the direction is credited to the COAG Reform Fund. Debit from the COAG Reform Fund (2) The Treasurer must ensure that, as soon as practicable after the amount is credited, the COAG Reform Fund is debited for the purposes of making the grant. #### 198 Grant to a State or Territory—education infrastructure Scope (1) This section applies if: (a) an amount is to be debited from the COAG Reform Fund for the purpose of making a grant of financial assistance to a State or Territory; and (b) the grant is covered by subsection 197(2). > Note: Subsection 197(2) deals with grants channelled through the COAG Reform Fund. Terms and conditions (2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory. (3) An agreement under subsection (2) may be entered into by the Education Minister on behalf of the Commonwealth. ### Division 7—Total payments for a financial year #### 199 Appropriation Acts may specify debit limits (1) If an Appropriation Act relating to a financial year declares that a specified amount is the debit limit for the financial year for the purposes of this section, the total of the following amounts debited during the financial year must not exceed that limit: (a) an amount debited from the Education Investment Fund Special Account for a purpose mentioned in paragraph 136(1)(a), (b), (c), (d) or (e); (b) an amount debited from the EIF Education Portfolio Special Account (other than a debit under section 196); (c) an amount debited from the EIF Research Portfolio Special Account; (d) an amount debited from the COAG Reform Fund in accordance with subsection 197(2). (2) If, for a financial year, there is no Appropriation Act relating to the financial year that specifies a debit limit for the financial year for the purposes of this section, an amount referred to in subsection (1) must not be debited from a Special Account or Fund. (3) This section applies despite any provision of this Act or the Public Governance, Performance and Accountability Act 2013. #### 202 Total payments to depend primarily on the macroeconomic circumstances Scope (1) This section applies to the following decisions: (a) a decision to authorise a payment under section 176, where the authorisation will result in a debit from the Education Investment Fund Special Account in a financial year; (b) a decision to give a direction under subsection 183(1), where the direction will result in a debit from the EIF Education Portfolio Fund in a financial year in accordance with subsection 185(2); (c) a decision to give a direction under subsection 190(1), where the direction will result in a debit from the EIF Research Portfolio Fund in a financial year in accordance with subsection 192(2); (d) a decision to give a direction under subsection 194(1), where the direction will result in a debit from the COAG Reform Fund in a financial year in accordance with subsection 197(2). Macroeconomic circumstances (2) In making the decision, the Finance Minister must have regard to the principle that the total of the amounts referred to in subsection 199(1) debited during the financial year should depend primarily on the macroeconomic circumstances. ## Part 3.5—Reporting obligations etc. #### 203 Finance Minister may require Future Fund Board to prepare reports or give information Reports (1) The Finance Minister may, by written notice given to the Future Fund Board, require the Future Fund Board to: (a) prepare a report about one or more specified matters relating to the performance of the Future Fund Board’s functions under this Chapter; and (b) give copies of the report to the Finance Minister within the period specified in the notice. Information (2) The Finance Minister may, by written notice given to the Future Fund Board, require the Future Fund Board to: (a) prepare a document setting out specified information relating to the performance of the Future Fund Board’s functions under this Chapter; and (b) give copies of the document to the Finance Minister within the period specified in the notice. Compliance (3) The Future Fund Board must comply with a requirement under subsection (1) or (2). Publication of reports and documents (4) The Finance Minister may cause to be published (whether on the internet or otherwise): (a) a report under subsection (1); or (b) a document under subsection (2). Reports and documents (5) A report under subsection (1) is not a legislative instrument. (6) A document under subsection (2) is not a legislative instrument. #### 204 Keeping the responsible Ministers informed etc. (1) The Future Fund Board must keep the responsible Ministers informed of the operations of the Future Fund Board under this Chapter. (2) The Future Fund Board must give the Finance Minister such reports, documents and information in relation to those operations as are appropriate. #### 205 Finance Minister may give reports to other Ministers etc. The Finance Minister may give: (a) the Treasurer; or (b) the Education Minister; or (c) the Research Minister; any of the following: (d) a report under subsection 203(1) or 204(2); (e) a document under subsection 203(2) or 204(2); (f) any other information or document obtained by the Finance Minister under this Chapter. ## Part 3.6—Miscellaneous #### 206 Investment provisions do not apply to certain assets Scope (1) This section applies to an asset if: (a) the asset is: (i) a share; or (ii) a debenture; or (iii) a unit in a unit trust; or (iv) any other financial asset; and (b) the asset is held by the Commonwealth; and (c) the asset was acquired: (i) using money debited from the Education Investment Fund Special Account for the purpose mentioned in paragraph 136(1)(a), (b), (c) or (d); or (ii) using money debited from the EIF Education Portfolio Special Account; or (iii) using money debited from the EIF Research Portfolio Special Account. Investment provisions do not apply (2) Part 3.3 does not apply in relation to the asset. (3) Section 58 of the Public Governance, Performance and Accountability Act 2013 (which deals with investment by the Commonwealth) does not apply in relation to the asset. #### 207 Delegation by the Finance Minister Department (1) The Finance Minister may, by writing, delegate any or all of his or her functions or powers under section 146, 148A, 176, 183, 190 or 194 to: (a) the Secretary of the Finance Department; or (b) an SES employee, or acting SES employee, in the Finance Department. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. (2) In exercising powers under a delegation, the delegate must comply with any directions of the Finance Minister. Agency (3) The Finance Minister may, by writing, delegate any or all of his or her powers under section 146 or 148A to: (a) the Chair; or (b) an SES employee, or acting SES employee, in the Agency. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. (4) In exercising powers under a delegation, the delegate must comply with any directions of the Finance Minister. #### 208 Delegation by the Treasurer The Treasurer may, by writing, delegate any or all of his or her functions under subsection 197(2) to: (a) the Secretary of the Treasury Department; or (b) an SES employee, or acting SES employee, in the Treasury Department. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. #### 209 Delegation by the Education Minister (1) The Education Minister may, by writing, delegate any or all of his or her functions or powers under section 178, 179, 185, 186, 187, 196 or 198 to: (a) the Secretary of the Education Department; or (b) an SES employee, or acting SES employee, in the Education Department. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. (2) In exercising powers under a delegation, the delegate must comply with any directions of the Education Minister. #### 210 Delegation by the Research Minister (1) The Research Minister may, by writing, delegate any or all of his or her functions or powers under section 180, 192 or 193 to: (a) the Secretary of the Research Department; or (b) an SES employee, or acting SES employee, in the Research Department. > Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. (2) In exercising powers under a delegation, the delegate must comply with any directions of the Research Minister. Chapter 5—Regulations #### 278 Regulations 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.