Western Australian Future Health Research and Innovation Fund Act 2012

The Act organises the policy objective around a pair of legal entities and several governance mechanisms. Key concepts and statutory definitions determine how money moves, who decides, and what qualifies for support.

• Qualifying activities. The Act defines qualifying activities broadly to include any medical research or other research in human health, medical innovation or other innovation in human health, and the commercialisation or other utilisation or development of outcomes of such research or innovation (s 3, definition of “qualifying activities”). The object (s 4) ties these activities to four outcomes , fiscal sustainability of the health system, population health and wellbeing, economic prosperity, and Western Australia’s research/innovation leadership.
• Two-tier financial structure: Account and Fund. The FHRI Account is the operational spending vehicle administered by the Minister for Health for applying money to qualifying activities (s 4A(1)-(3), s 4C). The FHRI Fund is the capital vehicle administered by the Treasurer that holds capital in perpetuity; forecast investment returns from the Fund are the recurring revenue source for the Account (s 5(1A)-(5), s 9(1)-(2)). This separation preserves capital while enabling annual spending of forecast returns.
• Statutory revenue rules. The FHRI Fund is credited each year with an amount equal to 1% of the forecast royalty income (s 7). The Fund also receives investment income and other money lawfully provided (s 8). The Fund’s forecast investment income for the coming financial year, as published in the budget papers (or an alternative prescribed part), is charged to the Fund and credited to the Account each year (s 3 definition; s 9(1)). If the budget papers are not tabled before the start of a financial year, s 9B requires the Treasurer to lay an estimate of investment income before both Houses before the financial year begins.
• Governance framework and advisory group. The Minister for Health must establish and maintain an advisory group with specified composition categories (s 4G). The advisory group’s function is to make recommendations when directed by the Minister for a financial year (s 4G(2)(a)), and to provide other advice when directed. The Minister must prepare and maintain a governance framework and related strategic documents (s 10A). The advisory group must be directed to make a recommendation before the Minister may make arrangements or apply Account funds for a financial year (s 4D(1)).
• Decision and accountability mechanics. The Minister for Health may make or approve arrangements and apply Account funds for qualifying activities (s 4C(1)-(2)), but must follow the pre‑application advisory process (s 4D). The CEO can be delegated functions by the Minister and further delegate to public service officers (s 4F). The Treasurer and Minister may jointly direct transfer of Account money to the Fund (s 4E(1)). Financial management, audit and reporting rules under the Financial Management Act 2006 and Auditor General Act 2006 apply to the Account (s 4E(3)); additional reporting obligations are imposed on the accountable authorities of both the Account Department and the FHRI Fund Department (s 4E(5)-(6); s 9A).
• Protections and prohibitions. The Treasurer is specifically precluded from giving a direction under Financial Management Act s 20(1) in relation to the FHRI Account (s 4E(2)) and the FHRI Fund (s 9(3)). The Financial Management Act s 12 does not apply to money in the FHRI Fund (s 9(4)). During the establishment period (until 30 June 2032), Bills to amend key funding provisions require absolute majority concurrence in both Houses (s 10).

These statutory concepts set incentives and constraints. The Fund preserves capital, creating an intergenerational funding stream via forecast investment income. The Account is the operational vehicle through which policy priorities are implemented by the Minister for Health, but only after an advisory recommendation and with specified reporting obligations. The statutory credit of a fixed fraction of forecast royalty income (1%) establishes a recurring injection into the Fund from the Consolidated Account (s 7), linking the scheme to the state’s budgetary forecasts.

The Act creates legal and operational effects on a set of identifiable actors and resource flows. The principal affected parties are as follows, described in terms of who pays, who decides, who receives, and who oversees compliance.

• The Treasurer. The Treasurer administers the FHRI Fund (s 5(2)-(3)). The FHRI Fund receives 1% of forecast royalty income each financial year, charged to the Consolidated Account (s 7). The Treasurer is required to cause a statement of estimated investment income to be laid before Parliament if budget papers are not tabled before the financial year (s 9B(1)). The Treasurer shares joint direction power with the Minister for Health to transfer money from the FHRI Account to the FHRI Fund (s 4E(1)), but cannot give directions under Financial Management Act s 20(1) with respect to the Fund or the Account (s 4E(2); s 9(3)). The Treasurer is therefore both a source and custodian of capital.
• The Minister for Health. The Minister administers the FHRI Account and has the central discretionary role for making or approving arrangements and applying Account money to qualifying activities, subject to the advisory group process (s 4A(3); s 4C(1)-(2); s 4D). The Minister must prepare and maintain the governance framework, strategy and priorities and lay them before Parliament (s 10A). The Minister appoints advisory group members (s 4G(3)) and must, as appropriate, give priority to activities related to human coronaviruses with pandemic potential for the 2020-21 financial year (s 4C(10)).
• The advisory group and CEO. The advisory group is established by the Minister (s 4G(1)) and must produce recommendations when directed; its members include the CEO (or nominee), the chief executive of the department most closely involved with qualifying activities (or nominee), a community representative, and experts in research and innovation plus other appointed members (s 4G(3)). The CEO is a member but non‑voting (s 4H(4)), can be delegated the Minister’s functions and may delegate to public service officers (s 4F). The CEO is also required to keep records of conflicts of interest disclosures and make summaries available on request (s 4I(4)-(5)).
• Departments and accountable authorities. The FHRI Account Department and FHRI Fund Department, as defined in s 3 and identified in ss 4E(4) and 9A, must include operation details in their annual reports and are subject to Financial Management Act and Auditor General Act requirements (s 4E(3)-(6); s 9A). The Account’s administration is regarded as a service of the FHRI Account Department for FMA s 52 purposes (s 4E(4)).
• The State and Consolidated Account. The Consolidated Account funds the 1% of forecast royalty income credited annually to the FHRI Fund (s 7). The FHRI Fund is charged with the forecast investment income credited to the FHRI Account (s 9(1)), thereby creating a fiscal implication for budgetary forecasting and appropriation processes.
• Potential recipients of grants, contracts or commercialisation support. The Minister may make arrangements with or provide payments to persons who carry out, support, facilitate, commercialise or administer qualifying activities (s 4C(5)-(6)). These recipients may include public entities, private entities, universities, research institutes, and service providers, but those identities are not specified in the Act; the Minister’s discretion governs selection subject to the advisory recommendation and any governance framework.
• Parliament and clerks. The Act imposes parliamentary laying requirements (s 4D(3)-(5); s 10A(4); s 9B). Documents such as the advisory group direction and recommendation, governance framework, strategy, priorities, strategic documents and strategic arrangement details must be laid before each House; if a House is not sitting, the Minister/Treasurer may send the documents to the Clerk who is taken to have had them laid (s 4D(3)-(5); s 9B(2)-(4); s 10A(4)).
• The public. The CEO must ensure the current versions of the governance framework, strategy, priorities, strategic documents and details of strategic arrangements are publicly available on a website (s 10A(5)). The advisory group’s conflict records must be summarised and made available on request (s 4I(4)-(5)).

Who pays: the Consolidated Account provides the 1% annual royalty credit to the FHRI Fund (s 7), and the Fund’s investment income provides the recurring credit to the Account (s 9(1)). Who decides: the Minister for Health (for Account applications) and the Treasurer (for Fund administration and required statements) are the decision-makers, subject to the advisory group’s recommendations and statutory reporting requirements (ss 4C, 4D, 5, 9B, 10A). Who receives: recipients of funding are persons or entities chosen through arrangements that the Minister considers will further qualifying activities (s 4C(5)-(6)). Who oversees: Parliamentary scrutiny through laying requirements, Financial Management Act and Auditor General Act financial controls, and departmental annual reporting (s 4E(3)-(6); s 9A; s 10A(4)).

The Act allocates specific administrative duties and confers certain rights, both procedural and financial. The duties are primarily on the Minister for Health, the Treasurer, the advisory group and the CEO. Rights are mostly administrative (e.g. to make arrangements) and protective (e.g. immunity for advisory group members acting in good faith).

Minister for Health , duties and powers

• Administer the FHRI Account (s 4A(3)).
• Make or approve arrangements to further the Account’s purpose and apply Account money to those arrangements (s 4C(1)-(2)). Arrangements may be with persons who conduct, support or facilitate qualifying activities, or who provide services (s 4C(5)-(6)).
• Direct the advisory group to make a recommendation for how Account money should be applied during a financial year and consider that recommendation before making arrangements or applying Account money in that financial year (s 4D(1)-(2)).
• Lay before each House copies of the advisory group direction and recommendation within 14 days of receiving the recommendation (s 4D(3)-(5)).
• Prepare and maintain a governance framework, strategy and priorities, and lay these and strategic documents/arrangements before Parliament; ensure these documents are published on a website (s 10A(2)-(5)).
• Appoint advisory group members and determine relevant appointment conditions under s 4G and s 4H, including remunerating non-public service members on the Public Sector Commissioner’s recommendation (s 4H(1)(c)).

Treasurer , duties and powers

• Administer the FHRI Fund (s 5(2)-(3)).
• Ensure the FHRI Fund is credited each year with 1% of forecast royalty income, charged to the Consolidated Account (s 7).
• Charge to the FHRI Fund and credit to the FHRI Account the amount equal to the forecast investment income each financial year (s 9(1)).
• Lay a statement of the estimated FHRI Fund investment income before both Houses if the budget papers are not tabled in time (s 9B).
• Jointly with the Minister for Health direct transfers from the FHRI Account to the FHRI Fund (s 4E(1)).

Advisory group , duties and position

• The advisory group must be established and maintained by the Minister (s 4G(1)).
• Its function is to make recommendations for a financial year when directed by the Minister and to provide other advice or assistance when directed (s 4G(2)).
• Membership categories are prescribed (CEO or nominee; departmental chief executive or nominee; community representative; research/innovation experts; at least three others) (s 4G(3)). At least one member must have experience with Aboriginal health issues and at least one with regional health (s 4G(4)-(5)).
• Non‑public servant members have terms up to 5 years, may be reappointed, and are eligible for remuneration and allowances as specified by the Minister on the Public Sector Commissioner’s recommendation, subject to instrument terms (s 4H(1)).

CEO , duties and discretions

• May act under a written delegation from the Minister for functions under s 4A and s 4C, and may delegate further to public service officers in the FHRI Account Department (s 4F(1)-(3)).
• Must keep records of disclosures of material conflicts of interest by advisory group members and other persons, and make a summary of those records available on request (s 4I(4)-(5)).

Reporting and audit duties

• The Financial Management Act and Auditor General Act apply to the FHRI Account (s 4E(3)); the FHRI Account Department’s annual report must include information about the Account and details of how money was applied (s 4E(5)-(6)). The FHRI Fund Department’s annual report must include information about the Fund and the amount charged to the Fund under s 9(1) (s 9A).

Rights and protections

• Advisory group members (and alternates) enjoy immunity from civil liability for acts or omissions done in good faith in the performance or purported performance of the advisory group’s function (s 4H(8)-(9)).
• The Minister has broad discretion to make or approve arrangements that further the object of the Act, subject to the requirement to seek and consider the advisory group recommendation before spending Account funds during a financial year (s 4C(1); s 4D(1)-(3)).
• The FHRI Fund’s capital is to be held in perpetuity and cannot be applied other than as prescribed, which protects the Fund’s corpus (s 9(2)).

Constraints and prohibitions

• The Treasurer is expressly prevented from issuing Financial Management Act s 20(1) directions in relation to the FHRI Account and Fund (s 4E(2); s 9(3)). The Financial Management Act s 12 does not apply to FHRI Fund money (s 9(4)). The establishment period places a supermajority constraint on amending certain funding provisions (s 10).

Procedural safeguards

• The Minister must, within 14 days of receiving an advisory group recommendation, cause copies of the Minister’s direction and the recommendation to be laid before each House of Parliament; if a House is not sitting, there are procedures for lodgement with the Clerk (s 4D(3)-(5)). The governance framework and strategic materials are also subject to parliamentary laying and public posting (s 10A(4)-(5)).

These duties and rights create a structured but discretionary funding mechanism: the Minister can decide recipients and structure arrangements, but statutory procedural steps (advisory group recommendation, parliamentary laying, reporting, public publication) must be followed before Account funds are applied.

The Act does not create criminal offences or express pecuniary penalties for non‑compliance within its own text. Enforcement and accountability are implemented through administrative, reporting and parliamentary controls, and through application of existing financial management and audit statutes. The principal enforcement and oversight mechanisms in the Act are as follows.

• Financial Management Act and Auditor General Act application to the FHRI Account. Section 4E(3) stipulates that the provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating financial administration, audit and reporting requirements of departments apply to, and in relation to, the FHRI Account. This subjects the Account’s administration to standard public sector financial controls and audit oversight under those Acts. The FHRI Account’s administration is regarded as a service of the FHRI Account Department for the purposes of Financial Management Act s 52 (s 4E(4)). The accountable authority must include operation details of the Account in its annual report (s 4E(5)-(6)).
• Annual reporting for the FHRI Fund. Section 9A requires the FHRI Fund Department’s annual report to contain information about the Fund’s operation and to include details of the amount charged to the FHRI Fund during the financial year under s 9(1). This creates a reporting duty subject to public and parliamentary scrutiny.
• Parliamentary laying and publication obligations. The Minister for Health must cause to be laid before each House a copy of the direction to the advisory group and the group’s recommendation within 14 days of receipt (s 4D(3)-(5)). If Houses are not sitting, procedural steps with Clerks are provided (s 4D(4)-(5)). Section 10A requires the governance framework, strategy, priorities, strategic documents and strategic arrangement details to be laid before Parliament and the CEO to ensure those materials are publicly available on a departmental website (s 10A(4)-(5)). Failure to comply with laying or publication requirements would be subject to parliamentary processes and public accountability rather than statutory fines under this Act.
• Delegation and recordkeeping obligations. The CEO must keep a record of disclosures of material conflicts of interest by advisory group members and any actions taken in response, and make a summary of that record available on request (s 4I(4)-(5)). Regulations may prescribe how the summary is to be made available (s 4I(5)). These are administrative requirements enabling oversight.
• Restrictions on Treasurer powers and statutory protections. Sections 4E(2) and 9(3) explicitly prevent the Treasurer from issuing directions under Financial Management Act s 20(1) concerning the FHRI Account and FHRI Fund. Section 9(4) exempts FHRI Fund money from Financial Management Act s 12. These statutory protections change the usual financial direction powers and appropriation rules; enforcement of those restrictions would be through constitutional and statutory checks, parliamentary oversight and the Auditor General’s functions. The Act also creates a supermajority requirement for Bills that would repeal or amend s 7, 8, 9 or s 10 during the establishment period (s 10(2)-(3)), which enforces a legislative lock through parliamentary procedure.
• Civil immunity for advisory group members. Section 4H(9) provides that no civil liability attaches to individuals who have acted in good faith in performing the advisory group’s functions or otherwise as members. This is a protective legal rule rather than an enforcement mechanism.

Practical enforcement path. Non‑compliance with statutory administrative requirements is likely to be tested and remedied through:

• Auditor General inquiries and reports under the Auditor General Act, given the financial reporting and audit regime applies (s 4E(3));
• Parliamentary scrutiny, questions, and committee oversight triggered by laying obligations and the public reporting requirements (s 4D(3); s 10A(4); s 9A);
• internal departmental and public service accountability mechanisms for delegation and recordkeeping (s 4F; s 4I).

The Act therefore relies on administrative controls, financial management and parliamentary accountability rather than criminal sanctions to ensure adherence. Users seeking to enforce a particular duty under the Act should look to the Financial Management Act and Auditor General Act remedies and parliamentary procedures as the routes for oversight, remediation and public exposure.

The Act explicitly references and modifies the operation of other statutes, and it inserts obligations into existing public finance and administrative frameworks. The principal statutory interactions in the text are with the Financial Management Act 2006, the Auditor General Act 2006, and general parliamentary procedures for laying documents and Bills.

Financial Management Act 2006 (FMA) interactions

• Account and Fund typology. The FHRI Account is an agency special purpose account under FMA s 16 (s 4A(2)). The FHRI Fund is treated as a Treasurer’s special purpose account under FMA s 10(e) (s 5(2)). These designations bring the relevant FMA provisions for special purpose and Treasurer’s accounts into play for administrative and accounting treatment.
• Investment powers and deposit. Money standing to the credit of both the FHRI Account and FHRI Fund is to be held in the Public Bank Account, subject to investment under FMA s 37(1) (s 4A(4); s 5(4)). This integrates the accounts with the FMA’s investment and banking regime; investments must therefore comply with the FMA’s rules.
• Exemptions and prohibitions. The Act carves‑out certain FMA powers: the Treasurer cannot give a direction under FMA s 20(1) in relation to the FHRI Account (s 4E(2)) and the FHRI Fund (s 9(3)). Section 9(4) expressly states that FMA s 12 does not apply to money standing to the credit of the FHRI Fund. These are specific statutory adjustments to general FMA powers and processes and limit the Governor-in-Council/Treasurer’s usual direction powers over those particular accounts.
• Service of department. The administration of the FHRI Account is for FMA s 52 to be regarded as a service of the FHRI Account Department (s 4E(4)), aligning the Account with departmental budgeting and service delivery frameworks under the FMA.

Auditor General Act 2006

• Audit and reporting. Section 4E(3) brings the FHRI Account under the audit and reporting provisions of the Auditor General Act 2006. This subjects the Account to the Auditor General’s examination powers, reporting duties, and audit standards applicable to departments and public accounts.

Budget papers and parliamentary procedure

• Definitions of forecast figures. The Act defines “forecast investment income” and “forecast royalty income” by reference to specific parts of the budget papers (s 3). That links the operation of crediting mechanisms (s 7, s 9(1)) to budget forecasting practices and the timing of tabling the budget.
• Laying obligations. The Treasurer must lay a statement of the estimated FHRI Fund investment income before each House if the budget papers are not tabled in time (s 9B). The Minister must lay the advisory group direction and recommendation within 14 days (s 4D(3)). The governance framework, strategy, priorities, strategic documents, and strategic arrangement details must be laid before each House (s 10A(4)). These cross‑references mean that parliamentary standing orders, Clerk procedures and the constitutional timing of sittings affect statutory compliance and publication obligations.

Other statutes and administrative law

• Health Legislation Administration Act 1984. Section 4F(6) expressly states that s 9 of the Health Legislation Administration Act 1984 does not apply to functions under Part 2 (if it would otherwise do so). This limits the application of that Act’s administrative rules to delegation or similar procedures for FHRI functions.
• Public sector employment and remuneration rules. Section 4H(1)(c) provides for remuneration and allowances for advisory group members “as determined by the Minister for Health on the recommendation of the Public Sector Commissioner,” which embeds Public Sector Commissioner processes into appointment conditions for those members.
• Potential interplay with procurement, grants and contract law. While the Act does not itself set detailed procurement or grants rules, arrangements made under s 4C(1) will likely need to comply with applicable procurement, contract and grants frameworks in other statutes or agency policies. The Act permits a wide range of arrangements (contracts, programmes, schemes, other arrangements) and payments to persons; the practical operation will intersect with existing procurement law, departmental policies and Commonwealth or State grant guidelines, though the Act does not specify those rules.

Legislative stability and amendment constraints

• Section 10 establishes a supermajority requirement for Bills seeking to amend or repeal sections 7, 8, 9 or s 10 during the establishment period to 30 June 2032. This modifies the ordinary legislative process by imposing extra parliamentary constraints on changes to the Fund’s revenue/ application rules, thereby interacting with constitutional parliamentary procedures.

In short, the Act integrates into the State’s public finance, budgetary, audit and parliamentary frameworks by design. It modifies the application of some FMA provisions to protect the Fund and Account, imposes reporting and laying obligations tied to budgetary documents, and creates operational intersections with public sector appointment and remuneration processes. Implementers must therefore manage compliance both with this Act and with the broader FMA, Auditor General Act, departmental policies and parliamentary standing orders.

The compilation table and the Act’s own text record a significant amendment in 2020 that converted the preceding Western Australian Future Fund into the Future Health Research and Innovation Fund and introduced the FHRI Account. Relevant chronological and textual changes are as follows.

• Original Act and title. The Act began life as the Western Australian Future Fund Act 2012 (No. 50 of 2012), assented on 29 November 2012 and largely commenced on 30 November 2012 (compilation table).
• Western Australian Future Fund Amendment (Future Health Research and Innovation Fund) Act 2020 (No. 22 of 2020). This amending Act, assented on 27 May 2020, made the major structural changes that are reflected throughout the current text. Commencement dates in the compilation table indicate that ss 1 and 2 of the amending Act commenced 27 May 2020, and the remaining provisions commenced 24 June 2020.
  • Renaming and reorientation. The long title and objects were altered to create and focus on the Future Health Research and Innovation Fund and Account (long title inserted; s 4 inserted clarifying the object) (see overall header and s 4).
  • Account establishment. Section 4A (FHRI Account) and ss 4B-4I were inserted to create the Account, define how it is credited and applied, establish the advisory group, set out delegation and conflict provisions, and apply FMA/Auditor General auditing and reporting requirements (s 4A inserted: No. 22 of 2020 s 9; ss 4B-4I likewise inserted).
  • Fund reconstitution. Section 5 was amended so that the Western Australian Future Fund was discontinued and the FHRI Fund established; money standing to the credit of the pre‑existing Future Fund immediately before amendment day stands to the credit of the FHRI Fund (s 5(1)-(4); s 5(3A) inserted: No. 22 of 2020 s 11).
  • Revenue stream. Section 7 was introduced to require the FHRI Fund to be credited with an amount equal to 1% of forecast royalty income each financial year from amendment day, charged to the Consolidated Account (s 7 amended: No. 22 of 2020 s 13).
  • Annual transfer rule. Section 9 was inserted in its present form to require each financial year that an amount equal to forecast investment income be charged to the FHRI Fund and credited to the FHRI Account; otherwise the FHRI Fund must be held in perpetuity and cannot be applied (s 9 inserted: No. 22 of 2020 s 14).
  • Transparency and governance. Section 10A (governance framework) was inserted to require a governance framework, strategy, priorities, strategic documents and strategic arrangements to be prepared, laid before Parliament and published (s 10A inserted: No. 22 of 2020 s 17).
  • Establishment period protection. Section 10 established an “establishment period” starting on amendment day and ending 30 June 2032 during which Bills to amend or repeal key funding provisions (ss 7, 8, 9, or s 10) must be passed with the concurrence of an absolute majority of the whole number of members of both Houses (s 10 amended: No. 22 of 2020 s 16).

Textual edits and deletions

• The compilation indicates that section 6 and section 11 from prior iterations were deleted by the 2020 amendment (noted as deleted in the current compilation).
• Defined terms were updated to include FHRI‑specific terms such as FHRI Account, FHRI Fund, governance framework, forecast investment/royalty income, and amendment day (s 3 as amended).

Practical consequences of amendments

• Capital reallocation. Money standing to the credit of the former Western Australian Future Fund immediately before amendment day became FHRI Fund capital (s 5(3A)). This effectively refocused an existing capital pool towards the health research and innovation objective.
• New recurring credit and spending rules. The 1% of forecast royalty income credit (s 7) and the annual transfer of forecast investment income from Fund to Account (s 9(1)) created a new, predictable flow of funds into health R&I.
• Governance and parliamentary transparency. The insertion of governance framework, advisory group obligations, conflict of interest recording, and requirements to lay and publish documents materially increased statutory transparency and procedural constraints on disbursements (ss 4D, 4G-4I, 10A).

Statutory lock. The establishment‑period requirement for absolute majorities to amend certain provisions (s 10) imposes a higher legislative hurdle for changes to the Fund’s revenue and application architecture until 30 June 2032.

For practitioners, the relevant amendment history to track operationally is the 2020 reorientation and the insertion of the Account/Fund split and governance architecture. There are no other amendments recorded in the current compilation beyond the 2012 origin and the 2020 conversion; any future legislative changes will be subject to the establishment period constraint for the enumerated sections.

The Act and the provided compilation include no judicial decisions, litigated points, or references to case law. The statutory text and accompanying compilation do not record any litigation concerning the interpretation, application or validity of the Act or its provisions.

Implications for practitioners

• Absence of reported cases. Because the compilation does not cite decisions, there is no appellate or trial court guidance in the source material on issues such as: the scope of the Minister’s discretion under s 4C; the interplay between FMA powers and the statutory prohibitions in ss 4E(2) and 9(3); the legal status and enforceability of advisory group recommendations; or the validity of transfers between Account and Fund.
• Reliance on statutory construction and administrative law principles. In the absence of binding case authority in the provided text, practitioners must infer legal arguments and compliance requirements from the statutory language itself, FMA and Auditor General Act provisions, and general administrative law doctrine outside the Act. Any dispute about compliance or obligations under this Act would therefore be litigated against the background of administrative law, statutory interpretation, and financial management law, but specific precedents are not cited in the Act.
• Monitor for emerging jurisprudence. Given the scope and budgetary importance of the Fund and Account, litigation could arise in areas such as procurement, grants, ministerial discretion, or parliamentary laying obligations. Practitioners advising clients or government bodies should monitor court reports and tribunal decisions for future rulings that interpret the Act.

If you require a search for case law since the compilation date, that would require legal research outside the text supplied here. The current compilation contains no litigation history to summarise or cite.

The Act contains several operational, timing and governance features that can produce unexpected compliance or policy outcomes if overlooked. Below are concrete, source‑grounded points to watch for when advising clients or implementing the scheme.

1. Two separate legal vehicles with different administrators and different powers

• The FHRI Account is administered by the Minister for Health and is the spending vehicle (s 4A(3); s 4C). The FHRI Fund is administered by the Treasurer and holds capital in perpetuity (s 5(2)-(4); s 9(2)). Confusing the two can breach statutory constraints: the Fund’s capital generally cannot be applied except as the forecast investment income credited annually to the Account (s 9(2)(a)-(b); s 9(1)). Administrative planning must respect the institutional split.

2. The Fund’s corpus cannot be applied, except as prescribed

• Section 9(2) explicitly requires money in the FHRI Fund to be held in perpetuity and not to be applied for any purpose except the annual charge under s 9(1). An attempt to use Fund capital beyond this statutory path would be inconsistent with s 9(2) and the express bar on Treasurer directions under FMA s 20 in relation to the Fund (s 9(3)). Ensure legal advice before any proposal that contemplates drawing on Fund principal.

3. The statutory annual flows rely on budget paper definitions and timing

• Forecast investment income and forecast royalty income are defined by reference to parts of the budget papers (s 3). If the budget papers are not tabled before the financial year, s 9B requires a separate statement to be laid. Clients should be aware that budget timing affects the amount credited and transferred. The reliance on forecast figures introduces forecasting risk: the statutory flow is based on forecast, not actual, investment income (s 9(1); s 3 definition).

4. Ministerial discretion is broad but constrained procedurally

• The Minister may make or approve any arrangements that the Minister considers will further the purpose (s 4C(1)), including payments to persons and commercialisation arrangements (s 4C(5)-(7)). However, before applying Account funds during a financial year, the Minister must direct the advisory group to make a recommendation and must consider that recommendation (s 4D(1)). Failing to follow the s 4D pre‑application process could expose the Minister’s action to political and audit scrutiny.

5. Advisory group appointments and voting structure

• The Minister appoints most advisory group members, including at least three additional members to provide a “suitable variety and level of relevant expertise and experience” (s 4G(3)(f)). Two public servant members (CEO nominee and another departmental CEO nominee) are non‑voting (s 4H(4)). This composition means that the Minister controls appointments and the advisory group’s expertise mix. The advisory group’s recommendations can be shaped by appointment choices. Also, remuneration and terms for non‑public service members are set via the Minister with Public Sector Commissioner recommendation (s 4H(1)(c)).

6. Conflicts of interest and record access are limited‑by‑design

• The Act requires disclosure and recordkeeping for material conflicts of interest and mandates that the CEO keep records and make a summary available on request (s 4I(1)-(4)). However, the Act leaves open the form and timing of disclosure, and specifies that the summary is available on request and may be prescribed by regulation (s 4I(5)). Practically, this means conflict records are not proactively published unless regulations or departmental practice do so; access may be reactive and governed by internal processes.

7. Supermajority lock during the establishment period

• Between amendment day and 30 June 2032, any Bill to repeal or amend sections 7, 8, 9 or s 10 must have passed with concurrence of an absolute majority of the whole number of members of both Houses (s 10(2)). A Bill assented to without satisfying that requirement is of no effect (s 10(3)). This imposes a political constraint that may complicate attempts to alter the Fund’s revenue or application mechanics in that period.

8. Treasurer direction limitations and FMA carve‑outs

• The Act explicitly bars the Treasurer from issuing direction under FMA s 20(1) in respect of the FHRI Account (s 4E(2)) and the FHRI Fund (s 9(3)). Additionally FMA s 12 does not apply to money in the FHRI Fund (s 9(4)). Practitioners should account for these carve‑outs when advising on cross‑agency budget transfers or when seeking a Treasurer’s direction for reallocation.

9. Joint transfer power from Account to Fund

• Section 4E(1) allows a joint written direction by the Treasurer and Minister for Health to transfer money from the FHRI Account to the FHRI Fund. This is an unusual mechanism because the normal flow is Fund to Account; the Act permits the reverse only by joint direction. Practically, this requires negotiation and agreement between Treasurer and Minister and must be in writing.

10. Non‑creation of criminal penalties within the Act

• The Act does not contain offences or pecuniary penalties for breach of its procedural obligations. Enforcement is administrative, through audit, reporting and parliamentary scrutiny (s 4E(3)-(6); s 9A). Remedies for failure to comply will therefore be political, auditor‑based or via judicial review of administrative decisions, rather than statutory fines.

11. Priority for coronavirus‑related activities (time‑limited)

• Section 4C(10) requires the Minister to give priority, as the Minister considers appropriate, to qualifying activities relating to human coronaviruses with pandemic potential when deciding arrangements and applications for the financial year beginning 1 July 2020. This is a specific temporal priority and is not framed as a permanent mandate; practitioners should check whether it remains relevant to current planning.

12. Publication obligations must be implemented by the CEO and Minister

• The governance framework and strategic documents must be publicly available on a website maintained by or on behalf of the FHRI Account Department (s 10A(5)). Failure to publish could be criticised in audit reports or parliamentary questions.

These “gotchas” are derived from the statute’s text. Advisers should ensure administrative procedures, procurement, delegation instruments, conflict registers, publication and parliamentary laying processes are designed to comply with these express statutory requirements.

This section sets out concrete steps for departments, advisers and potential recipients to comply with the Act’s requirements and to operationalise the fund/account architecture. Each recommendation traces to the statutory provision that creates the obligation.

1. Institutional setup and roles

• Confirm departmental responsibilities. The FHRI Account Department should be designated as the department principally assisting the Minister for Health in administering the FHRI Account (s 3, definition; s 4A(2)-(3)). The FHRI Fund Department should be identified as the department principally assisting the Treasurer (s 3, definition; s 5(2)-(3)). Ensure accountability lines and financial services are assigned within those departments to manage the accounts under FMA and Auditor General Act processes (s 4E(3)-(6); s 9A).
• Establish the Account and Fund bank and investment arrangements in line with FMA s 37(1) and the Act’s rules: monies are to be held in the Public Bank Account, subject to permitted investments (s 4A(4); s 5(4)).

2. Budget and forecasting compliance

• Integrate forecast definitions into budgeting workflows. The definitions of forecast investment income and forecast royalty income reference specific budget paper parts (s 3). Ensure budget teams produce the figures in the prescribed format and in time for tabling, or prepare the s 9B statement if budget papers will not be tabled before the start of the financial year (s 9B(1)-(4)). The Treasurer must lay that statement; provide supporting materials to the Treasurer’s office in advance.
• Track the statutory flow: ensure that the FHRI Fund is credited with 1% of forecast royalty income each financial year (s 7), and that the amount equal to forecast investment income is charged to the FHRI Fund and credited to the FHRI Account each year (s 9(1)). Build these entries into appropriation and consolidation schedules.

3. Advisory group establishment and management

• Appointments. The Minister for Health must establish and maintain an advisory group (s 4G(1)). Appointments should follow the categories in s 4G(3) and satisfy the Aboriginal health and regional health experience minima in s 4G(4)-(5). Draft instruments of appointment for members under s 4H, specifying term lengths (<= 5 years), conditions for suspension or termination, and remuneration on the Public Sector Commissioner’s recommendation (s 4H(1)).
• Conflict of interest rules. Include express conflict‑of‑interest disclosure, timing, form and consequences in the instrument of appointment for non‑public service members as required by s 4I(1)-(3). Put in place a process for recording disclosures and storing records as the CEO must keep a record and make a summary available on request (s 4I(4)-(5)).
• Procedural rules. Adopt procedures for meeting quorums, voting and chairing consistent with s 4H(2)-(3) and note that public service nominees under s 4G(3)(a) and (b) are non‑voting and cannot be chair (s 4H(4)). Ensure the advisory group can function through sub‑groups and despite vacancies (s 4H(3)).

4. Pre‑application process and document laying

• Before applying FHRI Account funds for a financial year, the Minister must direct the advisory group to make a recommendation and must consider that recommendation (s 4D(1)). The direction may include proposals and require the advisory group to indicate whether to adopt, reject, or modify the proposals (s 4D(2)). Build a timetable for issuing the direction early in the budget cycle to allow the advisory group to prepare a recommendation.
• Parliamentary laying. Upon receipt of the advisory group’s recommendation, cause the Minister’s direction and the recommendation to be laid before each House within 14 days (s 4D(3)). If a House is not sitting, send the documents to the Clerk; ensure the departmental records document the lodgement and date for parliamentary minutes (s 4D(4)-(5)).

5. Governance framework, strategy and publication

• Prepare and maintain the governance framework, strategy and priorities required under s 10A(2)-(3). Ensure these documents set out the criteria for selecting qualifying activities and strategic arrangements, the decision‑making processes for making/approving arrangements under s 4C(1), and administration procedures for arrangements (s 10A(3)(a)-(c)).
• Lay these documents before each House and publish current versions on the FHRI Account Department website, as required by s 10A(4)-(5). Maintain version control and logs of modifications to comply with s 10A(4)(a)(iv)-(b) and s 10A(5).

6. Financial and audit compliance

• Apply the Financial Management Act and Auditor General Act processes to the Account (s 4E(3)). Implement internal controls consistent with departmental obligations under FMA, including proper segregation of duties, delegation instruments in writing (s 4F(4)), annual audit schedules, and submission of the required information in departmental annual reports (s 4E(5)-(6); s 9A).
• Ensure any investments of FHRI Fund or Account money comply with FMA s 37(1) and internal investment policies (s 4A(4); s 5(4)). If investments include gold (permitted under s 5(5)), document investment strategy, custody and valuation procedures.

7. Delegation instruments and operational authorities

• Use written delegations for the CEO to exercise Ministerial functions under s 4A and s 4C; the CEO may delegate these functions to public service officers (s 4F(1)-(3)). Ensure delegations are exercised within their terms and retain delegations in writing with signatures as required by s 4F(4)-(5).
• Note that Health Legislation Administration Act s 9 does not apply to functions under Part 2 if it otherwise would (s 4F(6)); confirm operational procedures accordingly.

8. Recordkeeping and conflicts of interest

• Implement a register of advisory group member disclosures and steps taken in relation to disclosed conflicts, maintained by the CEO as required by s 4I(4). Prepare a readily accessible summary of that register and a process to make it available on request and in the form prescribed by regulation if relevant (s 4I(5)).

9. Joint directions and transfers

• If a transfer from the FHRI Account to the FHRI Fund is contemplated, secure a written joint direction from the Treasurer and the Minister for Health as required by s 4E(1). Keep the joint direction on file and reflect the transfer in departmental accounts.

10. Supermajority constraint and legislative change planning

• Recognise that until 30 June 2032, Bills to amend ss 7, 8, 9 or s 10 require absolute majority concurrence in both Houses (s 10(2)). If policy changes require amendment to those sections, plan for the longer legislative path and engage with parliamentary leadership early.

11. Procurement, grant and contract compliance

• Design arrangements under s 4C(1) to conform with applicable procurement, grant, and contract rules and policies. Although the Act allows a wide set of arrangement types (contracts, programmes, schemes, other arrangements) and payments including advance funding (s 4C(5)-(6)), ensure procurement law and departmental grants policies are observed to mitigate legal and audit risks.

12. Reporting and transparency

• Ensure the Account Department and Fund Department annual reports include the prescribed details: operation of the Account and Fund and how Account monies were applied, and the amount charged to the FHRI Fund under s 9(1) respectively (s 4E(5)-(6); s 9A). Prepare material for the Treasurer’s statement under s 9B where timing requires.

Following these practical steps, tied to the statutory citations, will position departments and officials to comply with the Act’s substantive and procedural obligations. Where discretionary choices are made (for example, appointment of advisory group members, prioritisation under the governance framework, or investment strategy), document the decision rationale to support auditability and to satisfy the public reporting and parliamentary disclosure obligations the Act prescribes.