Chapter 2
Provisions of the bill
2.1
As indicated above, the bill proposes a series of amendments to the Nation
Building Program (National Land Transport) Act 2009 – amendments which, it
is argued, are necessary to facilitate the Government's land transport
infrastructure agenda.[1]
2.2
The following is a summary of the major amendments proposed to the
current legislation, which are contained in Part 1 of Schedule 1 of the bill.[2]
2.3
Item 1 would change the name of the Act from Nation Building
Program (National Land Transport) Act 2009 to National Land Transport
Act 2014.
2.4
Item 2 would repeal the definition of approved funding
recipient in subsection 4(1). It is proposed that the definition of approved
funding recipient will now mean the eligible funding recipient identified
in the project approval instrument in relation to the following projects:
(a) a Black Spot Project;
(b) an Investment Project; or
(c) a Transport Development and Innovation Project.
2.5
Item 3 would repeal the definition of approved purposes in
subsection 4(1). It is proposed that approved purposes in relation to a
Black Spot Project, an Investment Project or a Transport Development an
Innovation Project will mean 'the purposes forming part of the project, other
than any purposes that are excluded by the project approval instrument from
being purposes on which funding may be expended'.
2.6
Item 4 would insert a definition of Black Spot Project
into subsection 4(1).
2.7
Item 5 would repeal the definition of Corridor Strategy from
subsection 4(1). This definition is being repealed because the term is no longer
being used in the Act.
2.8
Item 6 would repeal the definition of eligible funding
recipient in subsection 4(1) and replace it with a new definition. It is
proposed that eligible funding recipient will mean:
(a) a State; or
(b) an authority of a State; or
(c) a local government authority; or
(d) any other body corporate;
[and, when used in
Parts 4 and 5, include a partnership].
2.9
Item 7 would omit '6' from the definition of funding agreement
in subsection 4(1).
2.10
Item would insert a definition of Investment Project into
subsection 4(1).
2.11
Item 9 would repeal the following definitions:
(a)
National Land Transport Plan;
(b)
Nation Building Program Black Spot Project;
(c)
Nation Building Program National Project;
(d)
Nation Building Program Off-Network Project;
(e)
Nation Building Program Roads to Recovery funding period;
(f)
Nation Building Program Roads to Recovery List; and
(g)
Nation Building Program Transport Development and Innovation Project.
2.12
Item 10 would insert a new definition of non-corporate
Commonwealth entity into subsection 4(1). It is proposed that non-corporate
Commonwealth entity will mean:
(a)
a Department within the meaning of the Public Service Act 1999;
or
(b)
an Executive Agency within the meaning of the Public Service Act 1999;
or
(c)
any other Agency (except a body corporate) to which the Financial
Management and Accountability Act 1997 applies.
2.13
Item 11 would repeal the definition of project approval
instrument in subsection 4(1). It is proposed that project approval
instrument will mean:
(a)
in relation to a Black Spot Project – the instrument approving the
project under subsection 70(1); and
(b)
in relation to an Investment Project – the instrument approving the
project under subsection 9(1); and
(c)
in relation to a Transport Development and Innovation Project – the
instrument approving the project under subsection 29(1).
2.14
Item 12 would insert definitions for:
- Roads to Recovery funding period – proposed to mean the
period specified in the Roads to Recovery List under subsection 87(1); and
- Roads to Recovery List – proposed to mean the list in
force under subsection 87(1) of this Act.
2.15
Item 13 would insert a definition of Transport Development and
Innovation Project into subsection 4(1).
2.16
Item 14 would insert a new section 4A into the Act. Section 4A
details the constitutional bases upon which the Act relies.
2.17
Item 15 would repeal the heading 'Part 3-Nation Building Program
National Projects' and substitute it with 'Division 1-Approval of Investment
Projects'.
2.18
Item 16 would repeal the heading 'Division 1-Approval of projects
as Nation Building Program Nation Projects' and substitute it with 'Division
1-Approval of Investment Projects'.
2.19
Item 17 would repeal existing section 8 and substitute a new
section 8. The new section 8 provides that an Investment Project is a project
for which an approval by the Minister under subsection 9(1) is in force. This
amendment is a result of the change of heading of Part 3 in Item 15.
2.20
Item 18 would repeal the heading of section 9 'Approval of Nation
Building Program National Projects' and substitute a new heading 'Approval of
Investment Projects'. This amendment is a result of the change of heading of
Part 3 in Item 15.
2.21
Item 19 would omit 'Nation Building Program National' from
subsection 9(1) and substitute 'an Investment'. This amendment is a result of
the change of heading of Part 3 in Item 15.
2.22
Item 20 would repeal sections 10 and 11.
2.23
New section 10 would set out the types of projects that are eligible for
approval as an Investment Project. It is proposed that a project will be
eligible for approval as an Investment Project if the project is for one or
more of the following:
(a)
the construction of an existing or proposed road that is in a State or
Indian Ocean Territory;
(b)
the maintenance of an existing or proposed road that is included in the
National Land Transport Network;
(c)
the construction of an existing or proposed railway that is in a State
or Indian Ocean Territory;
(d)
the maintenance of an existing or proposed railway that is included in
the National Land Transport Network;
(e)
the construction of an inter-modal transfer facility in a State or
Indian Ocean Territory;
(f)
the acquisition or application of technology that will, or may,
contribute to the efficiency, security or safety of transport operations in a
State or Indian Ocean Territory.
2.24
New section 11 would provide for the matters which the Minister may have
regard to in deciding whether it is appropriate to approve a project as an
Investment Project. It is proposed that these matters may include, but not be
limited to:
(a)
the extent to which the project is likely to improve the ability of
industries and communities to compete in international, inter-State or
inter-regional trade and commerce;
(b)
the extent to which the project will improve the efficiency, security or
safety of transport operations;
(c)
the results of any assessment of the economic, environmental or social
costs or benefits of the project;
(d)
the extent to which the project is likely to improve access for
communities to services and employment;
(e)
any transport or land use plans that might be relevant to the project;
(f)
the extent to which persons other than the Commonwealth propose to
contribute funding to the project.
2.25
Items 21-25 relate to the omission of the term 'Nation Building
Program National'. It is proposed to substitute the term with the words 'an
Investment' in subsections 12(1), 12(3), 12(4), 13(1), 13(2), 13(3), section 14
and subsection 15(1).
2.26
Item 26 would repeal the heading of section 16 – 'Commonwealth
funding for Nation Building Program National Projects' – it is proposed to
substitute the new heading 'Commonwealth funding for Investment Projects'.
2.27
Item 27 would omit 'Nation Building Program National from
subsections 16(1), 17(1) and 18(1) and proposes the substitute 'an Investment'.
2.28
Item 28 would omit 'prescribed by the regulations' from subparagraph
24(1)(c)(vi) and proposes the substitute 'determined by the Minister by
legislative instrument under subsection (4)'. This amendment would remove the
requirement to prescribe an amount below which work can be exempt from the
public tender requirements in regulations and replaces it with a requirement
that the amount determined by the Minister by legislative instrument. It is
argued that this amendment will reduce regulation and time in delivering the
outcome.
2.29
Item 29 would insert new subsection 24(4) which provides that the
Minister may, by legislative instrument, determine an amount for the purposes
of subparagraph (1)(c)(vi).
2.30
Item 30 would insert new subsection 25(1A). Under new subsection
25(1A) it is proposed that a funding recipient must, as soon as practicable
after selling or disposing of an interest in land that was acquired using all
or part of a funding payment, notify the Minister of the sale or disposal.
2.31
Item 31 would omit 'Nation Building Program National' from
subsections 25(2) and (4) and proposes the substitute 'Investment'.
2.32
Item 32 would omit 'either or both' from section 30 and
proposes the substitute 'any'.
2.33
Item 33 would insert the following new paragraph (c) into section
30:
(c)
research, investigations, studies or analysis of:
(i)
projects for which Commonwealth funding has been provided under Part 3
or 7; or
(ii)
projects for which Commonwealth funding was provided under Part 6 as in
force immediately before its repeal; or
(iii)
projects for which particulars have been submitted for approval under
Part 3 or 7; or
(iv)
the construction or maintenance of roads that have been funded (in whole
or in part) under Part 8.
2.34
It is proposed that the amendment at Item 33 would allow the funding of
investigations and studies of projects currently, or previously, funded under
the Act to enhance the management of projects and/or the Programme. The
amendment would also allow the funding of analysis for projects seeking funding
under the Act. It is proposed that the analyses would inform advice to
Government.
2.35
Item 34 would omit 'on Nation Building Program National Projects'
from paragraph 31(c) and proposes the substitute 'under the Act.
2.36
Item 35 would repeal the heading 'Part5-Nation Building Program
funding for land transport research entities' and proposes the substitute 'Part
5-Funding for land transport research entities'.
2.37
Item 36 would insert 'or a non-corporate Commonwealth entity'
after 'eligible funding recipient' in the definition of land transport research
entity in section 45. It is proposed that this amendment will allow
non-corporate Commonwealth entities whose functions include carrying out,
arranging or assisting planning, research, investigations, studies or analysis
of matters related to land transport operations to receive funding under Part 5
of the Act.
2.38
Item 37 would insert new section 51A. Under Section 51A, the
Minister may enter into an arrangement with a non-corporate Commonwealth entity
in writing for the purposes of Part 5. It also provides that if the Minister
does enter into an arrangement, it would be treated as if it were a funding agreement
entered into under Part 5. It is argued that this amendment is required to
provide clarity in relation to the provision of funding to a non-corporate
Commonwealth entity.
2.39
Item 38 would repeal Part 6 of the Act. Part 6 is being repealed
as it is proposed that the approval and funding conditions for Off-Network
Projects and National Projects are being combined in Part 3 – with the new name
of Investment Projects.
2.40
Item 39 would omit 'The Nation Building Program Roads to Recovery
List must' from section 87 and substitute a new subsection 87(1). Subsection
87(1) provides that the Minister must, by legislative instrument, determine a
list (the Roads to Recovery List) that must contain the details specified in
paragraphs 87 (a) and (b) and new paragraph (aa) being inserted at Item 40.
2.41
Item 40 would insert new paragraph (aa) into section 87. The paragraph
provides that the Roads to Recovery List must specify a funding period in
relation to the Roads to Recovery Program. Under this amendment (together with
the new Roads to Recovery funding period definition in Item 12) it is proposed
to remove the specification of a funding period in the Act and place it in the
Roads to Recovery List. It is argued that this would remove the need to amend
the Act every time the funding period changes.
2.42
Item 41 would omit 'Nation Building Program Roads to Recovery
during the' from paragraph 87(a) and proposes the substitute 'Roads to Recovery
Program during the specified'.
2.43
Item 42 would insert new subsection 42(2). The new subsection
provides that section 42 (disallowance) of the Legislative Instruments Act
2003 does not apply to the Roads to Recovery List (the List).
2.44
Item 43 would omit '1' from subsection 92(1). The amendment is
necessary for drafting purposes because subsection 92(2) is being repealed at
Item 44.
2.45
Item 44 would repeal subsection 92(2) of the Act. The Australian
Land Transport Development Act 1988 and the Roads to Recovery Act 2000
are being repealed by Items 1 and 3 of Schedule 2 respectively because they are
spent legislation. Subsection 92(2) is therefore no longer required.
2.46
Item 45 would insert new section 92A. Section 92A provides
clarity in relation to how it is proposed the new legislation would treat
partnerships.
2.47
Item 46 would omit '6' from section 94. This amendment reflects
the repeal of Part 6 of the Act in Item 38.
2.48
Item 47 sets out proposed amendments to provisions to reflect the
change of title of the Act in Item 1.
Issues
2.49
The bill's Second Reading Speech indicated that the proposed amendments
would enable the continuation of the Roads to Recovery Programme (which
provides funding to local governments for the maintenance of Australia's local
road infrastructure) beyond 30 June 2014. It was argued that this change is necessary
because the Act currently specifies the Roads to Recovery funding period as
ending on 30 June 2014.[3]
2.50
The bill proposes to remove the specification of the funding period from
the Act and place it in the Roads to Recovery List. It is argued that this is
designed to remove the need to amend the Act every time the Roads to Recovery
funding period changes and ensure the continuation of the programme.[4]
2.51
The new legislation includes a power for the Minister to determine a
Roads to Recovery List. It was argued that this amendment is necessary for the
Programme to be able to function effectively. It is proposed that the Roads to
Recovery List (the List) be exempt from disallowance under the Legislative
Instruments Act 2003. It was argued that exemption from disallowance for
the list is appropriate given the administrative nature of the List and that
'certainty for funding recipients would be undermined if the List were subject
to disallowance'. It was also noted that in previous versions of the Act, the
List has been exempt from disallowance and variations to the List are also
exempt from disallowance.[5]
2.52
Under the bill, the new Part 3 for Investment Projects would also
include a new requirement for states and territories to notify the Minister as
soon as possible after the sale or disposal of land acquired using Australian
Government funding. It was argued that this amendment would ensure a timely
response from both the states and the Commonwealth to the sale or disposal of
land acquired using Commonwealth funding. It was also argued that the proceeds
of land sales or disposal could then be allocated to new infrastructure
projects.[6]
2.53
In its submission to the inquiry, the Australasian Railway Association
(ARA) indicated that, in the main, it had 'no significant issues with the
proposed changes' contained in the bill. However, the ARA did note that
comments made (in the Second Reading Speech) regarding the re-allocation of
funding require clarification:
It is unclear as to how the proceeds will be spent i.e.
whether the proceeds will be allocated to projects that that have been
identified as 'nationally significant projects' by IA [Infrastructure
Australia] or only to projects that the Minister deems appropriate (outside of
IA's consideration). It is also unclear whether the proceeds will be allocated
to road project only and not to public transport or rail projects.
Clarifications on how the proceeds will be used are required.[7]
2.54
The bill also proposes the introduction of a new type of project,
Transport Development and Innovation Projects. It is noted that projects which
involve research, investigations, studies or analysis of Investment or Black
Spot projects, previously funded Off-Network projects, and works funded under
the Roads to Recovery Programme, would be eligible for Part 4 funding. Part 4 funding could also be used for analysis of projects
submitted for funding consideration as Investment or Black Spot projects, to
help inform advice to Government. It is argued that these amendments would
enhance the management of projects and the Infrastructure Investment Programme.[8]
2.55
The ARA acknowledged the bill's intention to introduce an additional
category of project that is eligible for funding. The ARA offered no objection
to this proposal, but indicated that there was a need for clarity about whether
'the funding will be limited to only road-related research and investigations
or whether it will expand to other modes of transport'.[9]
2.56
In addition, the ARA also suggested that, with regard to the proposed
continuation of the Government's Black Spot Program:
...funding for the current program could be extended to include
road-rail crossings upgrades and maintenance. Given it is the ARA's
understanding of State's black spots programs are only used to fund road
black-spots so there is a significant opportunity for the Commonwealth to step
in and address the national issue of level crossing safety.[10]
2.57
The bill would also add two new types of eligible funding recipient into
the Act. Partnerships have been added as an eligible funding recipient for
Parts 4 and 5 of the Act. It is argued that this will simplify funding
arrangements for firms without a body corporate structure.
2.58
Non-corporate Commonwealth entities whose functions include research
related to land transport research operations would also be able to receive
funding under Part 5.
2.59
The ARA indicated that it was supportive of this change as:
...this amendment is expected to allow for different types of
funding mechanisms and an increase in private capital investment. It also
allows the line Department or other Executive Agencies to receive further
funding through this mechanism.[11]
Committee comment
2.60
The committee notes the non-controversial nature of the bill. It also
notes that it has received no evidence raising significant objections to the
changes proposed by the bill.
Recommendation 1
2.61
The committee recommends that the Senate pass the bill.
Senator the
Hon. Bill Heffernan
Chair
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