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2004
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSLINK (NATIONAL LAND
TRANSPORT) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
AUSLINK (NATIONAL LAND TRANSPORT) BILL 2004
The purpose of the Bill is to assist national and regional economic and
social development by the provision of Commonwealth funding aimed at improving
the performance of land transport infrastructure.
The Bill gives effect
to the Australian Government’s national land transport policy set out in
the White Paper—AusLink: Building our National Transport Future.
The Bill establishes a new framework for Australian Government funding of land
transport infrastructure. The arrangements for which the Bill provides will
replace over time those contained in the Australian Land Transport
Development Act 1988 and the Roads to Recovery Act 2000.
The
Bill requires that a National Land Transport Network, consisting of nationally
significant road and rail links, be determined.
It provides for funding
of six categories of projects or activities:
− AusLink National
Projects (i.e. projects on the National Land Transport
Network);
− AusLink Transport Development and Innovation Projects
(related to the National Land Transport Network);
− Land Transport
Research Entities;
− AusLink Strategic Regional Projects;
− AusLink Black Spot Projects; and
− the AusLink Roads to
Recovery Program.
The Bill sets out eligibility criteria for the
different categories of assistance and matters which may be considered in
deciding whether projects or activities are to be approved or funding provided.
The Bill also provides for conditions to be applied to funding.
The
Roads to Recovery Program, providing funds for construction and maintenance of
local roads, is extended for a further four years until 30 June 2009.
This Bill does not contain appropriation provisions.
An
appropriation for the purposes covered by this Bill for the balance of 2004-05
is included in the AusLink (National Land Transport—Consequential and
Transitional Provisions) Bill 2004. From 2005–06, funding will be
provided through annual Budget appropriations.
AUSLINK (NATIONAL LAND
TRANSPORT) BILL 2004
Part 1—Preliminary
This clause is a formal provision specifying the short title of the
Bill.
The Bill provides for a staged commencement process. On Royal Assent,
the power to determine the National Land Transport Network (Part 2) takes
effect, as do the preliminary provisions (Part 1) and the miscellaneous
provisions (Part 9). The balance of the Bill comes into effect on a day fixed
by Proclamation which must be within six months of the date of Royal Assent.
The staged commencement allows time for detailed arrangements necessary for
implementation of the Bill to be put in place.
Clause 3 sets out the objective of improving the performance of land
transport infrastructure.
Clause 4: Definitions
Various
terms used in the Bill are defined in Clause 4. Of particular note
are:
− “appropriate auditor” is defined so that the
particular categories of bodies which can receive funds, including States, local
government authorities and other bodies and persons, are clear about who must
audit the expenditure of those funds;
− “authority of a
State” is defined so it is clear that it can include a company in which a
State has a majority shareholding;
− “construction” has
one meaning when applied to a road or railway, and a different meaning when
applied to an inter-modal transfer facility. This is because of the different
works and activities involved in each case. In both cases, construction does not
include maintenance which is separately defined;
− “Corridor
Strategy” is defined because the Australian Government intends to work
cooperatively with States and Territories and other infrastructure managers, for
example with rail track managers, to develop long-term plans for improvement of
land transport corridors which are part of the National Land Transport Network.
As a strategy for each corridor is developed, it will be a matter the Minister
may consider when deciding whether to approve AusLink national
projects;
− “eligible funding recipient” identifies
the range of bodies which can be funded to undertake land transport
infrastructure projects and related activities. The term is defined broadly to
enable the Australian Government to provide funding to States and Territories,
an authority of a State or Territory, a local government authority, and any body
corporate which can, for example, include the Australian Rail Track
Corporation;
− “local government authority” is defined
in such a way as to include the local shires in the Indian Ocean Territories
because projects in those Territories are eligible for funding under the AusLink
strategic regional funding stream and for funding under the AusLink Roads to
Recovery Program;
− “National Land Transport Plan” is
defined because the Plan as determined by the Minister is a matter to which the
Minister may have regard when considering which AusLink national projects to
approve for funding. The initial Plan, contained in the Government’s
AusLink White Paper, sets out the strategic directions for land transport
investment in the period 2004–05 to 2008–09;
and
− “project” is defined to include a program because
some activities likely to be funded will consist of a composite program of
works, for example a maintenance program, the individual parts of which will not
require approval.
Other definitions are
self-explanatory.
Part 2—The National Land
Transport Network
Clause 5: Determination of the National
Land Transport Network
This clause requires the Minister to determine
a National Land Transport Network. The Network can include road and/or rail
connections between two capital cities, between a capital city and a major
centre of commercial activity, between two major centres of commercial activity,
between a capital city or a major centre of commercial activity and an
inter-modal transfer facility, as well as connections within a capital city or
major centre, and connections from other links on the Network to inter-modal
transfer facilities.
Before including a road, rail or inter-modal
transfer facility on the National Network, the Minister must be satisfied it is,
or will be, important for either or both the:
− development of
international, inter-State or inter-regional trade and commerce;
or
− facilitation of international, inter-State or inter-regional
travel.
It is intended that the National Land Transport Network published
in the AusLink White Paper will make up the initial Network determined by the
Minister under Clause 6.
The Minister’s determination of the
National Land Transport Network will be a legislative instrument for purposes of
the Legislative Instruments Act 2003 but the disallowance provisions and
the sunsetting provisions of that Act will not apply.
Ministerial
determination of the composition of the National Land Transport Network is an
essential prerequisite for the administration of the AusLink programme.
Projects to be funded under this Bill as AusLink National Projects must be on
the National Land Transport Network. The composition of the Network to be
covered by the initial determination has been the subject of inter-governmental
consultation, and subsequent policy consideration and wide dissemination by the
Government. For these reasons, and to provide certainty and continuity, the
Bill does not subject the determination of the Network to the disallowance
provisions of the Legislative Instruments Act 2003.
Application
of the sunsetting provisions of the Legislative Instruments Act 2003 to
the ministerial determination of the National Land Transport Network would run
counter to the need for certainty in the development of long-term planning and
investment strategies for the Network.
Clause 6: Variation of the
National Land Transport Network
This clause enables the Minister to
vary the Network providing the requirements of Clause 5 continue to be met. The
Government expects to review the Network periodically and to consult with States
and Territories and other key stakeholders before doing so, as was the case with
the Network published in the AusLink White Paper.
Variations to the
Network will also be legislative instruments but not subject to the disallowance
provisions and the sunsetting provisions of the Legislative Instruments Act
2003.
Clause 7: Publication
The National Land Transport
Network must be published, as must any variation of the Network. It is intended
that the Network will be published on the web site of the Department of
Transport and Regional Services.
Part
3—Auslink National Projects
Division 1—Approval
of projects as AusLink National Projects
Clause 8: What is an
AusLink National Project?
A project approved by the Minister under
this Part is an AusLink National Project.
Clause 9: Approval of
AusLink National Projects
An AusLink National Project may only be
approved by the Minister if the Minister is satisfied that the project is
eligible (clause 10) and appropriate (clause 11). The Minister’s approval
must be in writing. The approval instrument is not a legislative instrument for
purposes of the Legislative Instruments Act 2003.
Clause 10:
What projects are eligible for approval?
To be eligible for approval
as an AusLink National Project, the project may consist of construction or
maintenance of an existing or proposed road or railway, or construction of an
existing or proposed inter-modal transfer facility that is part of the National
Land Transport Network. It can also be an acquisition or application of
technology contributing to improved transport operations on the
Network.
Clause 11: Is it appropriate to approve a
project?
This clause lists matters to which the Minister may have
regard in deciding whether to approve an AusLink National Project. The
considerations include:
− the National Land Transport
Plan;
− any relevant Corridor Strategy;
− the extent to which
the project will improve transport operations on the Network;
− the
results of any assessment of the economic, environmental and social costs and
benefits of the project;
− other relevant transport or land use plans;
and
− the extent of funding contributions to the project other than
from the Commonwealth.
The Government intends that for some AusLink
National Projects responsibility for funding will be shared with States, as is
currently the case for certain roads of national importance. It is intended
that arrangements covering funding contributions by States and Territories, the
development of corridor strategies, future transport and land use planning, and
assessment of projects will be set out in bilateral agreements to be negotiated
between the Australian Government and each State and Territory.
Clause
12: Submission of particulars of projects
The Minister may invite
persons or bodies to submit projects and supporting particulars for
consideration as AusLink National Projects.
The Minister is not limited
to approving projects for which particulars have been submitted in response to
an invitation.
If project particulars required by the Minister are not
submitted, the Minister is not obliged to consider the project.
Clause
13: Matters specified in project approval instrument
Any project
approval instrument issued by the Minister must identify the project and
eligible funding recipient, set out the maximum Commonwealth funding
contribution and, if a funding agreement is to be required for the project,
specify that requirement.
A funding agreement must be specified as a
requirement when the funding recipient is not a State or local government
authority or a body in which the Commonwealth and/or one or more States has a
controlling interest.
The Minister may specify in the project approval
instrument particular purposes to which Commonwealth funding may not be
applied.
Clause 14: Requirements with which funding agreements must
comply
If a funding agreement is required, the total funding
provided under the agreement must not exceed the maximum amount specified in the
project approval instrument. In addition, the agreement must comply with any
other requirements, such as the inclusion of particular conditions, specified in
the project approval instrument.
Clause 15: Variation or revocation of
project approval instrument
The Minister may vary or revoke a project
approval instrument but, where there is a funding agreement in place, this power
must be exercised in accordance with the terms of that agreement. A variation
or revocation instrument is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Division 2—Provision of
Commonwealth funding
Clause 16: Commonwealth funding for AusLink
National Projects
This clause provides that Commonwealth funding for
AusLink National Projects may be in accordance with the next clause or, where a
funding agreement is required, in accordance with an agreement that satisfies
clause 14. Payments are to be from funds appropriated by the
Parliament.
Clause 17: Approval of provision of Commonwealth funding
if no funding agreement
The Minister is empowered to approve, vary or
revoke the provision of Commonwealth funding for an AusLink National Project.
The funding is to be to an eligible funding recipient and may be in one or more
instalments as determined by the Minister. The total funding must not exceed
the maximum specified in the project approval instrument.
An instrument
made under this clause is not a legislative instrument for purposes of the
Legislative Instruments Act 2003
Division 3—Conditions
that apply to Commonwealth funding
Subdivision A—Sources of
conditions
Clause 18: Sources of conditions
Conditions
applying to funding for an AusLink National Project are:
− the
mandatory conditions set out in clauses 20 to 26; and
− either any
conditions specified in a funding agreement,
− or, if there is no
funding agreement, any conditions determined by the Minister as provided by
clause 27.
Subdivision B—The mandatory
conditions
Clause 19: This subdivision sets out the mandatory
conditions
This clause provides that the mandatory conditions are as
set out in this subdivision.
Clause 20: Funding payment must be
expended on the funded project
This clause requires that the
Commonwealth funding provided for an approved project must only be spent on
approved purposes in relation to the project.
Clause 21:
Funding recipient must give the Minister audited financial
statements
For each financial year in which a funding recipient has
received, or remains in receipt of, Commonwealth funding, the funding recipient
must provide the Minister with a written statement as to the amounts of
Commonwealth funding spent and retained, and a written report signed by an
appropriate auditor.
Clause 22: Funding recipient must allow
inspections by authorised persons
Persons authorised by the Minister
are entitled to inspect work and documents relating to a funded project. An
authorised person may be a public servant or a consultant engaged by the
Commonwealth to investigate, for example, the financial, construction or
environmental aspects of a project.
Clause 23: Funding recipient must
provide information on request
This clause provides that, when
requested, a funding recipient must provide the Minister with information about
the operation and condition of the National Land Transport Network or the
progress of the funded project.
The intention is that information about
the condition of the National Land Transport Network would be sought only from
States and Territories and rail track managers. This information will be
particularly relevant in assessing the effectiveness of expenditure on the
Network.
Clause 24: State or State authority must call for public
tenders for certain work
This clause requires a State which is a
funding recipient to use a public tender process for AusLink National Projects
and makes provision for certain exceptions. Road and rail maintenance and work
carried out by a public utility (such as relocating a sewer or cables) are
automatically exempted. Other work may be exempted by the Minister if one or
more of the specified grounds, such as an emergency or the minor nature of the
work, can be demonstrated. An exemption may be varied or revoked.
An
instrument approving, varying or revoking an exemption is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Clause 25: State or State authority using funding payment to
acquire interest in land - obligation if the interest is sold or disposed
of
This clause deals with the situation where a State uses
Commonwealth funds to acquire land associated with an AusLink National Project
and then disposes of some or all of the land. It enables proceeds of the sale
to be returned to the Commonwealth according to a formula.
Alternatively, the amount repayable to the Commonwealth may, with the
written approval of the Minister, be re-allocated to another AusLink National
Project in which case the funds will constitute a Commonwealth contribution to
that project. Such an approval can be varied or revoked. An instrument
granting, varying or revoking an approval is not a legislative instrument for
purposes of the Legislative Instruments Act 2003.
This clause also
applies to circumstances where a State has used Commonwealth funds to pay
compensation for land which has been compulsorily acquired.
The clause
repeats similar provisions in previous Commonwealth road funding
legislation.
Clause 26: Amount repayable on breach of
condition
If the Minister considers that a funding recipient has
breached a condition applying to a funding payment, the Minister may notify the
funding recipient of the breach and specify the amount of funds to be repaid.
The Minister may vary or revoke a notice. If a funding agreement is in place,
the power to require repayment of funds must be exercised in accordance with any
relevant terms of the agreement.
A notice given by the Minister under
this clause, or an instrument varying or revoking a notice, is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Subdivision C—Determination of other conditions if no
funding agreement
Clause 27: Determination of other conditions if
no funding agreement
This clause enables the Minister to determine
other conditions applying to funding for a project and to vary or revoke such
conditions. Conditions determined by the Minister can differ between classes of
situations. This clause cannot be used to vary a funding agreement.
The
Minister’s determination, and any subsequent variation or revocation, of
conditions will be a legislative instrument for purposes of the Legislative
Instruments Act 2003 but the disallowance provisions and the sunsetting
provisions of that Act will not apply.
Conditions specified in
ministerial determinations would be in the nature of contractual conditions
between contracting parties. Accordingly, exemption from the disallowance
provisions and sunsetting provisions of the Legislative Instruments Act
2003 is considered appropriate.
Part
4—AusLink Transport Development and Innovation
Projects
Division 1−Approval of projects as AusLink
Transport Development and Innovation Projects
Clause 28: What is
an AusLink Transport Development and Innovation Project?
An AusLink
Transport Development and Innovation Project is one approved under clause
29.
Clause 29: Approval of AusLink Transport and Innovation
Projects
An AusLink Transport Development and Innovation Project may
only be approved by the Minister if the Minister is satisfied that the project
is eligible (clause 30) and appropriate (clause 31). The Minister’s
approval must be in writing. The approval instrument is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Clause 30: What projects are eligible for
approval?
Eligible projects are those which are:
− planning,
research, investigations, studies or analysis related to the development or use
of the National Land Transport Network, and/or
− research or
development related to technology or practices in connection with transport
operations on the Network.
Clause 31: Is it appropriate to approve a
project?
This clause lists matters the Minister may consider in
deciding whether to approve a project. They include the extent to which the
project is likely to:
− improve the efficiency, safety or security of
transport operations on the Network;
− improve the economic,
environmental or social impact or performance of the Network, or of transport
operations on the Network;
− assist better-informed decision-making in
relation to future AusLink projects.
Clause 32: Submission of
particulars of projects
The Minister may invite persons or bodies to
submit projects and supporting particulars for consideration as AusLink
Transport Development and Innovation Projects.
The Minister is not
limited to approving projects for which particulars have been submitted in
response to an invitation.
If project particulars required by the
Minister are not submitted, the Minister is not obliged to consider the
project.
Clause 33: Matters specified in project approval
instrument
Any project approval instrument issued by the Minister
must identify the project and eligible funding recipient, set out the maximum
Commonwealth funding contribution and, if a funding agreement is to be required
for the project, specify that requirement.
A funding agreement must be
specified as a requirement when the funding recipient is not a State or local
government authority or a body in which the Commonwealth and/or one or more
States has a controlling interest.
The Minister may specify in the
project approval instrument particular purposes to which Commonwealth funding
may not be applied.
Clause 34: Requirements with which funding
agreements must comply
If a funding agreement is required, the total
funding provided under the agreement must not exceed the maximum amount
specified in the project approval instrument. In addition, the agreement must
comply with any other requirements, such as the inclusion of particular
conditions, specified in the project approval instrument.
Clause 35:
Variation or revocation of project approval instrument
The Minister
may vary or revoke a project approval instrument but, where there is a funding
agreement in place, this power must be exercised in accordance with the terms of
that agreement. A variation or revocation instrument is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Division 2—Provision of Commonwealth
funding
Clause 36: Commonwealth funding for AusLink Transport
Development and Innovation Projects
This clause provides that
Commonwealth funding for AusLink Transport Development and Innovation Projects
may be provided to an approved funding recipient in accordance with the next
clause, or where a funding agreement is required, in accordance with an
agreement that complies with clause 34. Payments are to be from funds
appropriated by the Parliament.
Clause 37: Approval of provision of
Commonwealth funding if no funding agreement
The Minister is
empowered to approve, vary or revoke the provision of Commonwealth funding for
an AusLink Transport Development and Innovation Project. The funding is to be
to an eligible funding recipient and may be in one or more instalments as
determined by the Minister. The total funding must not exceed the maximum
specified in the project approval instrument.
An instrument made under
this clause is not a legislative instrument for purposes of the Legislative
Instruments Act 2003.
Division 3—Conditions that apply to
Commonwealth funding
Subdivision A—Sources of
conditions
Clause 38: Sources of conditions
Conditions
applying to an AusLink Transport Development and Innovation Project
are:
− the mandatory conditions set out in clauses 40 to 43; and
− either any conditions specified in a funding agreement;
− or, if there is no funding agreement, any conditions applying to a
project or class of situations determined by the Minister under clause
44.
Subdivision B—The mandatory conditions
Clause
39: This Subdivision sets out the mandatory conditions
This provides
that the mandatory conditions are as set out in this subdivision. The mandatory
conditions applying to AusLink Transport Development and Innovation projects are
along similar lines to those in Part 3 applying to AusLink National Projects.
However, the mandatory conditions in Part 3 relating to the calling of tenders,
provision of information, and the proceeds of the sale of land are not relevant
to AusLink Transport Development and Innovation projects. Therefore, there are
fewer mandatory conditions in this Part.
Clause 40: Funding payment
must be expended on the funded project
This clause requires that the
Commonwealth funding provided for an approved project must only be spent on
approved purposes in relation to the project.
Clause 41:
Funding recipient must give Minister audited financial statements
For
each financial year in which a funding recipient has received, or remains in
receipt of, Commonwealth funding, the funding recipient must provide the
Minister with a written statement as to the amounts of Commonwealth funding
spent and retained, and a written report signed by an appropriate
auditor.
Clause 42: Funding recipient must allow inspections by
authorised persons
Persons authorised by the Minister are entitled to
inspect work and documents relating to a funded project.
Clause 43:
Amount payable on breach of condition
If the Minister considers that
a funding recipient has breached a condition applying to a funding payment, the
Minister may notify the funding recipient of the breach and specify the amount
of funds to be repaid. The Minister may vary or revoke a notice. If a funding
agreement is in place, the power to require repayment of funds must be exercised
in accordance with any relevant terms of the agreement.
A notice given by
the Minister under this clause, or an instrument varying or revoking a notice,
is not a legislative instrument for purposes of the Legislative Instruments
Act 2003.
Subdivision C—Determination of other conditions if
no funding agreement
Clause 44: Determination of other conditions
if no funding agreement
This clause enables the Minister to determine
other conditions applying to funding for a project and to vary or revoke such
conditions. Conditions determined by the Minister can differ between classes of
situations. This clause cannot be used to vary a funding agreement.
The
Minister’s determination, and any subsequent variation or revocation, of
conditions will be a legislative instrument for purposes of the Legislative
Instruments Act 2003 but the disallowance provisions and the sunsetting
provisions of that Act will not apply.
Conditions specified in
ministerial determinations would be in the nature of contractual conditions
between contracting parties. Accordingly, exemption from the disallowance
provisions and sunsetting provisions of the Legislative Instruments Act
2003 is considered appropriate.
Part
5—AusLink funding for land transport research
entities
Clause 45: Definitions
A number of
terms are defined expressly for this Part dealing with AusLink funding for land
transport research entities. The definitions are
self-explanatory.
Clause 46: Approval of funding for land transport
research entities
This clause enables the Minister to approve funding
for a research entity for a particular period. In doing so, the Minister may
consider the extent to which the body’s activities are likely to improve
land transport operations in Australia.
The clause is designed to
enable the Commonwealth to contribute funds to the important land transport
research work of bodies such as ARRB TR Ltd (formerly the Australian Road
Research Board) and Austroads. These are bodies which are currently jointly
funded by the Commonwealth, States and Territories.
The Minister’s
funding approval instrument must specify the entity, the period, and the maximum
amount to be provided, and require that a funding agreement be entered into with
the entity.
The Minister may vary or revoke the funding approval
instrument consistent with any relevant terms in a funding agreement.
An instrument made under this clause is not a legislative instrument
for purposes of the Legislative Instruments Act 2003
Clause
47: Submission of particulars to get funding
The Minister may invite
submissions from research entities seeking funding and may require supporting
particulars, including the entity’s proposed activities, to assist in
assessment of the submission.
Clause 48: Commonwealth funding for land
transport research entities
This clause allows funding to be provided
according to the terms of the funding agreement.
Clause 49:
Requirements with which funding agreement must comply
Total funding
provided under a funding agreement must not exceed the maximum amount specified
in the funding approval instrument. In addition, the agreement must comply with
any other requirements, such as the inclusion of particular conditions,
specified in the funding approval instrument.
Clause 50: Conditions of
funding
The conditions applying to the provision of funding to a land
transport research entity are those set out in the funding
agreement.
Clause 51: Relationship with Part 4
This clause
makes it clear that this Part does not limit, and is not limited by, Part 4 of
the Bill which enables funding to be provided for research and analysis projects
in relation to the National Land Transport Network.
Part 6—AusLink Strategic Regional
Projects
Division 1—Approval of projects as AusLink
Strategic Regional Projects
Clause 52: What is an AusLink
Strategic Regional Project?
AusLink Strategic Regional Projects are
projects approved under the next clause.
Clause 53: Approval of
AusLink Strategic Regional Projects
An AusLink Strategic Regional
Project may only be approved by the Minister if the Minister is satisfied that
the project is eligible (clause 54) and appropriate (clause 55). The
Minister’s approval must be in writing. The approval instrument is not a
legislative instrument for purposes of the Legislative Instruments Act
2003.
Clause 54: What projects are eligible for
approval?
A project is eligible if it consists
of:
− construction of an existing or proposed road or railway that is
not on the National Land Transport Network;
− maintenance of an
existing or proposed road that is not on the National Land Transport Network and
is in an area for which no local government authority has
responsibility;
− construction of an existing or proposed inter-modal
transfer facility that is not included in the National Land Transport Network;
or
− the acquisition or application of technology contributing to
efficient, secure or safe transport operations.
Projects relating to an
existing road, railway or inter-modal transfer facility are included because the
definition of construction allows for matters such as reconstruction or
enhancing the standard of an existing route or facility.
It is intended
that funding for projects involving construction and maintenance of roads in
unincorporated areas will be provided under this part of the Bill.
Projects in the Indian Ocean Territories, which have two local
government authorities, are eligible for AusLink Strategic Regional Project
funding.
Clause 55: Is it appropriate to approve a
project?
This clause lists matters the Minister may consider in
deciding whether to approve a project. They include:
− the extent to
which a project might improve the trade and commercial competitiveness of
regional industries and communities;
− the extent to which a project
might improve a regionally significant road, railway or inter-modal
facility;
− the results of any cost-benefit assessment;
− the
extent to which the project will enhance safety of transport
operations;
− the extent to which the project will improve access to
services and employment;
− the extent to which the project will improve
or maintain the serviceability of roads in unincorporated areas (i.e. areas for
which there is no responsible local government authority);
− the extent
of other funding contributions for the project.
AusLink Strategic
Regional Projects are likely to involve regional roads, railways or inter-modal
facilities that are usually the responsibility of the owner to develop, upgrade
or construct. As a result, the Government expects that the relevant local
government authority, or group of local government authorities, and other
interested parties which might benefit from investment in the project will often
contribute to the project.
Clause 56: Submission of particulars of
projects
The Minister may invite persons or bodies to submit projects
and supporting particulars for consideration as AusLink Strategic Regional
Projects.
The Minister is not limited to approving projects for which
particulars have been submitted in response to an invitation.
If project
particulars required by the Minister are not submitted, the Minister is not
obliged to consider the project.
Clause 57: Matters specified in
project approval instrument
Any project approval instrument must
identify the project and eligible funding recipient, set out the maximum
Commonwealth funding contribution and, if a funding agreement is to be required
for the project, specify that requirement.
A funding agreement must be
specified as a requirement when the funding recipient is not a State or local
government authority or a body in which the Commonwealth and/or one or more
States has a controlling interest.
The Minister may specify in the
project approval instrument particular purposes to which Commonwealth funding
may not be applied.
Clause 58: Requirements with which funding
agreements must comply
If a funding agreement is required, the total
funding provided under the agreement must not exceed the maximum amount
specified in the project approval instrument. In addition, the agreement must
comply with any other requirements, such as the inclusion of particular
conditions, specified in the project approval instrument.
Clause 59:
Variation or revocation of project approval instrument
The Minister
may vary or revoke a project approval instrument but, where there is a funding
agreement in place, this power must be exercised in accordance with the terms of
that agreement. A variation or revocation instrument is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Division 2—Provision of Commonwealth
funding
Clause 60: Commonwealth funding for AusLink Strategic
Regional Projects
This clause provides that Commonwealth funding for
AusLink Strategic Regional Projects may be in accordance with the next clause,
or where a funding agreement is required, in accordance with an agreement
satisfying clause 58. Payments are to be from funds appropriated by the
Parliament.
Clause 61: Approval of provision of Commonwealth funding
if no funding agreement
The Minister is empowered to approve, vary or
revoke the provision of Commonwealth funding for an AusLink Strategic Regional
Project. The funding is to be to an eligible funding recipient and may be in
one or more instalments as determined by the Minister. The total funding must
not exceed the maximum specified in the project approval instrument.
An
instrument made under this clause is not a legislative instrument for purposes
of the Legislative Instruments Act 2003
Division
3—Conditions that apply to Commonwealth funding
Subdivision
A—Sources of conditions
Clause 62: Sources of
conditions
The clause sets out the sources of conditions which apply
to funding for an AusLink Strategic Regional Project. They are:
− the
mandatory conditions set out in clauses 64 to 67; and
− any conditions
specified in a funding agreement; or
− if there is no funding
agreement, any conditions applying to a project or class of situations
determined by the Minister as provided by clause 68.
In addition, the
clause requires a funding agreement with a local government authority to include
a condition to the effect that the local government authority must maintain the
level of its own expenditure on roads. This is directed at ensuring that local
government bodies do not substitute Commonwealth AusLink funding for their
own-source funding and, in effect, engage in cost-shifting to the
Commonwealth.
Subdivision B—The mandatory
conditions
Clause 63: This subdivision sets out the mandatory
conditions
This provides that the mandatory conditions are set out in
this subdivision. The mandatory conditions applying to AusLink Strategic
Regional Projects are similar to those in Part 4 applying to AusLink Transport
Development and Innovation Projects.
Clause 64: Funding payment must
be expended on the funded project
This clause requires that the
Commonwealth funding provided for an approved project must only be spent on
approved purposes in relation to the project.
Clause 65:
Funding recipient must give Minister audited financial statements
For
each financial year in which a funding recipient has received, or remains in
receipt of, Commonwealth funding, the funding recipient must provide the
Minister with a written statement as to the amounts of Commonwealth funding
spent and retained, and a written report signed by an appropriate
auditor.
Clause 66: Funding recipient must allow inspections by
authorised persons
Persons authorised by the Minister are entitled to
inspect work and documents relating to a funded project.
Clause 67:
Amount repayable on breach of condition
If the Minister considers
that a funding recipient has breached a condition applying to a funding payment,
the Minister may notify the funding recipient of the breach and specify the
amount of funds to be repaid. The Minister may vary or revoke a notice. If a
funding agreement is in place, the power to require repayment of funds must be
exercised in accordance with any relevant terms of the agreement.
A
notice given by the Minister under this clause, or an instrument varying or
revoking a notice, is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Subdivision
C—Determination of other conditions if no funding
agreement
Clause 68: Determination of other conditions if no
funding agreement
This clause enables the Minister to determine other
conditions applying to funding for a project and to vary or revoke such
conditions. Conditions determined by the Minister can differ between classes of
situations. This clause cannot be used to vary a funding agreement.
The
Minister’s determination, and any subsequent variation or revocation, of
conditions will be a legislative instrument for purposes of the Legislative
Instruments Act 2003 but the disallowance provisions and the sunsetting
provisions of that Act will not apply.
Conditions specified in
ministerial determinations would be in the nature of contractual conditions
between contracting parties. Accordingly, exemption from the disallowance
provisions and sunsetting provisions of the Legislative Instruments Act
2003 is considered appropriate.
Part
7—AusLink Black Spot Projects
Division
1—Approval of projects as AusLink Black Spot Projects
Clause
69: What is an AusLink Black Spot Project?
A project approved by the
Minister under the next clause is an AusLink Black Spot
Project.
Clause 70: Approval of AusLink Black Spot
Projects
An AusLink Black Spot Project may only be approved by the
Minister if the Minister is satisfied that the project is eligible (clause 71)
and appropriate (clause 72). The Minister’s approval must be in writing.
The approval instrument is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Clause 71: What projects
are eligible for approval?
To be eligible for approval as an AusLink
Black Spot Project the project must improve the road safety characteristics of a
site where serious motor vehicle crashes, involving death or personal injury,
have occurred, or are likely to occur.
The site can be a particular
location or a considerable length of road.
Projects on the National Land
Transport Network will not be eligible for funding as AusLink Black Spot
projects. Instead, equivalent projects on the Network will be eligible for
funding as AusLink National Projects. This is consistent with the situation
which applied to projects on the former National Highway which were not eligible
for Black Spot funding under the Australian Land Transport Development Act
1988.
Clause 72: Is it appropriate to approve a
project?
This clause lists matters to which the Minister may have
regard in deciding whether to approve an AusLink Black Spot Project. The
considerations include:
− the accident history of the
site;
− any assessment of the safety benefits and the costs of the
project;
− the results of any safety audit of the site;
and
− the extent of funding contributions to the project other than
from the Commonwealth.
In many cases States and Territories, local
governments, and local businesses and organisations contribute to Black Spot
projects.
Clause 73: Submission of particulars of
projects
The Minister may invite States or State authorities to
submit projects and supporting particulars for consideration as AusLink Black
Spot Projects.
The Minister is not limited to approving projects for
which particulars have been submitted in response to an invitation.
If
project particulars required by the Minister are not submitted, the Minister is
not obliged to consider the project.
Clause 74: Matters specified in
project approval instrument
Any project approval instrument issued by
the Minister must identify the project and the funding recipient, which must be
a State or State authority, set out the maximum Commonwealth funding
contribution, and specify whether a funding agreement is required for the
project.
The Minister may specify in the project approval instrument
particular purposes to which Commonwealth funding may not be
applied.
Clause 75: Requirements with which funding agreements must
comply
If a funding agreement is required, the total funding provided
under the agreement must not exceed the amount specified in the project approval
instrument. In addition, the agreement must comply with any other requirements,
such as the inclusion of particular conditions, specified in the project
approval instrument.
Clause 76: Variation or revocation of project
approval instrument
The Minister may vary or revoke a project
approval instrument but, where there is a funding agreement in place, this power
must be exercised in accordance with the terms of that agreement. A variation
or revocation instrument is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Division 2—Provision of
Commonwealth funding
Clause 77: Commonwealth funding for AusLink
Black Spot Projects
This clause provides that Commonwealth funding
for AusLink Black Spot Projects may be in accordance with the next clause or,
where a funding agreement is required, in accordance with an agreement that
satisfies clause 75. Payments are to be from funds appropriated by the
Parliament.
Clause 78: Approval of provision of Commonwealth funding
if no funding agreement
The Minister is empowered to approve, vary or
revoke the provision of Commonwealth funding for an AusLink Black Spot Project.
The funding is to be to an eligible funding recipient and may be in one or more
instalments as determined by the Minister. The total funding must not exceed
the maximum specified in the project approval instrument.
An instrument
made under this clause is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Division 3—Conditions
that apply to Commonwealth funding
Subdivision A—Sources of
conditions
Clause 79: Sources of conditions
Conditions
applying to an AusLink Black Spot Project are:
− the mandatory
conditions set out in clauses 81 to 85; and
− any conditions specified
in a funding agreement, or
− if there is no funding agreement, any
conditions determined by the Minister as provided by clause
86.
Subdivision B—The mandatory
conditions
Clause 80: This subdivision sets out the mandatory
conditions
This clause provides that the mandatory conditions are as
set out in this subdivision.
Clause 81: Funding payment must be
expended on the funded project
This clause requires that the
Commonwealth funding provided for an approved project must only be spent on
approved purposes in relation to the project.
Clause 82:
Funding recipient must give the Minister audited financial
statements
For each financial year in which a funding recipient has
received, or remains in receipt of, Commonwealth funding, the funding recipient
must provide the Minister with a written statement as to the amounts of
Commonwealth funding spent and retained, and a written report signed by an
appropriate auditor.
Clause 83: Funding recipient must allow
inspections by authorised persons
Authorised persons are entitled to
inspect work and documents relating to the funded project.
Clause 84:
Funding recipient must maintain records relating to motor vehicle
crashes
This clause requires the funding recipient to maintain
records relating to crashes involving death or personal injury at the site of
the funded project for a period of five years. A person authorised by the
Minister may inspect such records.
These provisions enable the
effectiveness of measures taken at Black Spots to be assessed, and various types
of measures compared.
Clause 85: Amount repayable on breach of
condition
If the Minister considers that a funding recipient has
breached a condition applying to a funding payment, the Minister may notify the
funding recipient of the breach and specify the amount of funds to be repaid.
The Minister may vary or revoke a notice. If a funding agreement is in place,
the power to require repayment of funds must be exercised in accordance with any
relevant terms of the agreement.
A notice given by the Minister under
this clause, or an instrument varying or revoking a notice, is not a legislative
instrument for purposes of the Legislative Instruments Act
2003.
Subdivision C—Determination of other conditions if
no funding agreement
Clause 86: Determination of other conditions
if no funding agreement
This clause enables the Minister to determine
other conditions applying to funding for a project and to vary or revoke such
conditions. Conditions determined by the Minister can differ between classes of
situations. This clause cannot be used to vary a funding agreement.
The
Minister’s determination, and any subsequent variation or revocation, of
conditions will be a legislative instrument for purposes of the Legislative
Instruments Act 2003 but the disallowance provisions and the sunsetting
provisions of that Act will not apply.
Conditions specified in
ministerial determinations would be in the nature of contractual conditions
between contracting parties. Accordingly, exemption from the disallowance
provisions and sunsetting provisions of the Legislative Instruments Act
2003 is considered appropriate.
Part 8—AusLink
Roads to Recovery Program
The current Roads to Recovery
Program under the Roads to Recovery Act 2000 ends on
30 June 2005.
After that date, an extended AusLink Roads to Recovery Program will operate
under this Act until 30 June 2009. The provisions in this Part closely mirror
provisions of the Roads to Recovery Act 2000.
Clause 87:
Minister to publish AusLink Roads to Recovery List
This clause
requires the Minister to publish, by 1 July 2005 or as soon as practicable
thereafter, a list of funding recipients under the new Program and the amount
each will receive. The list provides a high degree of certainty for local
government authorities as to the total funds they can expect under the Program
thereby enabling them to plan and schedule works to best effect.
The
Minister’s determination of the AusLink Roads to Recovery List will be a
legislative instrument for purposes of the Legislative Instruments Act 2003
but the disallowance provisions and the sunsetting provisions of that Act
will not apply.
The list of funding recipients and their funding
allocations is central to the administration of the Roads to Recovery Program.
Local government authorities will be expecting to continue to receive funding
under a relatively seamless transition from the current programme which expires
on 30 June 2005. The listing of funding recipients follows existing practice,
is well known to local government, and is not subject to disallowance.
The sunsetting provisions of the Legislative Instruments Act 2003
would have no practical consequences for the Roads to Recovery provisions of the
Bill which will cease to have effect after 1 July 2009.
Clause 88:
Variation of AusLink Roads to Recovery List
This clause enables the
AusLink Roads to Recovery List to be varied by the Minister to take account of
structural changes in local government, such as boundary changes or
amalgamations, or to correct an administrative error. The Minister may not
revoke, or otherwise vary, the list.
An instrument varying the list will
be a legislative instrument for purposes of the Legislative Instruments Act
2003 but the disallowance provisions and the sunsetting provisions of that
Act will not apply.
Variations to the List are limited to those
necessitated by administrative circumstances. As such they are not considered
appropriate for disallowance. The sunsetting provisions of the Legislative
Instruments Act 2003 would have no practical effect.
Clause 89:
Payments to persons and bodies specified in AusLink Roads to Recovery
List
This clause enables payments by instalments, with the amounts
and timing of payments determined by the Minister. The provisions apply between
1 July 2005 and 30 June 2009 which is the period of the extended Program.
Payments are to be from money appropriated by Parliament.
An instrument
made under this clause is not a legislative instrument for purposes of the
Legislative Instruments Act 2003.
Clause 90: Conditions that
apply to payments
This clause requires the Minister to determine
conditions applying to Roads to Recovery Program funds. A number of types of
conditions which must be included are specified, including that the local
government authority maintains its own spending on roads and not engage in
cost-shifting to the Commonwealth. Appropriate signage recognising any
Commonwealth contribution to Roads to Recovery projects is also a condition to
be included.
The Minister may vary or revoke conditions which have been
determined.
The Minister’s determination, and any subsequent
variation or revocation, of conditions will be a legislative instrument for
purposes of the Legislative Instruments Act 2003 but the disallowance
provisions and the sunsetting provisions of that Act will not
apply.
Conditions specified in ministerial determinations would be in the
nature of contractual conditions between contracting parties. Accordingly,
exemption from the disallowance provisions and sunsetting provisions of the
Legislative Instruments Act 2003 is considered
appropriate.
Clause 91: Minister’s power to waive conditions
etc
This clause enables conditions determined under clause 90 to be
waived or varied for a particular recipient. This provision would enable the
Minister to, for example, waive or relax a condition which was judged to be too
onerous in particular circumstances. An instrument made under this clause is
not a legislative instrument for purposes of the Legislative Instruments Act
2003.
Part
9—Miscellaneous
Clause 92: Recovery of amounts as
debt due to Commonwealth
This clause enables the Commonwealth to
recover repayable amounts as debts or to deduct such amounts from any future
payment that might be made under this Act. The clause extends to allowing any
amount that may be repayable under either the Australian Land Transport
Development Act 1988 or the Roads to Recovery Act 2000 to be deducted
from a future payment under this Act.
Clause 93:
Delegation
This clause enables the Minister to delegate to an SES
employee his powers under this Act, other than the powers relating to the
determination or variation of the National Land Transport
Network.
Clause 94: Annual report on operation of Act
This
clause requires an annual report to Parliament.
Clause 95: Provision
of funding otherwise than under this Act
This clause makes it clear
that the Commonwealth may provide funding for land transport purposes outside
the terms of this Act.
Clause 96: Regulations
This clause
enables regulations to be made for the purposes of this Act.