Nation-building Funds Act 2008
No. 154, 2008
An Act about the Building Australia Fund, the Education
Investment Fund and the Health and Hospitals Fund, and for other purposes
[Assented to 18 December 2008]
The Parliament of Australia enacts:
Chapter 1—Preliminary
1
Short title
This Act may be cited as the Nation‑building
Funds Act 2008.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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18 December 2008
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2. Sections 3 to 278
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1 January 2009.
However, if the Nation‑building Funds
(Consequential Amendments) Act 2008 does not receive the Royal Assent
before 1 January 2009, the provision(s) do not commence at all.
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1 January 2009
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Simplified outline
The following is a simplified outline of
this Act:
• Chapter 2 sets up the
Building Australia Fund, which will enhance the Commonwealth’s ability:
(a) to make
payments in relation to the creation or development of transport
infrastructure; and
(b) to make
payments in relation to the creation or development of communications
infrastructure; and
(c) to make
payments in relation to eligible national broadband network matters; and
(d) to make
payments in relation to the creation or development of energy infrastructure;
and
(e) to make
payments in relation to the creation or development of water infrastructure.
• Chapter 3 sets up the
Education Investment Fund, which will enhance the Commonwealth’s ability:
(a) to make
payments in relation to the creation or development of higher education
infrastructure; and
(b) to make
payments in relation to the creation or development of research infrastructure;
and
(c) to make
payments in relation to the creation or development of vocational education and
training infrastructure; and
(d) to make
payments in relation to the creation or development of eligible education
infrastructure; and
(e) to make
transitional HEEF payments.
• Chapter 4 sets up the
Health and Hospitals Fund, which will enhance the Commonwealth’s ability to
make payments in relation to the creation or development of health
infrastructure.
4
Definitions
In this Act:
acquire includes acquire by way of issue.
Agency means the Future Fund Management
Agency.
Appropriation Act means an Act appropriating
money for expenditure out of the Consolidated Revenue Fund.
asset means:
(a) any kind of real or personal
property; or
(b) any legal or equitable estate or
interest in real or personal property; or
(c) any legal or equitable right.
BAF Communications Portfolio Special Account
means the BAF Communications Portfolio Special Account established by
section 68.
BAF Energy Portfolio Special Account means
the BAF Energy Portfolio Special Account established by section 75.
BAF evaluation criteria means evaluation
criteria under section 120.
BAF Infrastructure Portfolio Special Account
means the BAF Infrastructure Portfolio Special Account established by
section 61.
BAF Water Portfolio Special Account means the
BAF Water Portfolio Special Account established by section 82.
balance of the Building Australia Fund
means the sum of:
(a) amounts standing to the credit of
the Building Australia Fund Special Account; and
(b) the value of investments of the
Building Australia Fund.
balance of the Education Investment
Fund means the sum of:
(a) amounts standing to the credit of
the Education Investment Fund Special Account; and
(b) the value of investments of the
Education Investment Fund.
balance of the Health and Hospitals
Fund means the sum of:
(a) amounts standing to the credit of
the Health and Hospitals Fund Special Account; and
(b) the value of investments of the
Health and Hospitals Fund.
bank has the same meaning as in the Financial
Management and Accountability Act 1997.
Building Australia Fund means the Building
Australia Fund established by section 12.
Building Australia Fund investment function
of the Future Fund Board means:
(a) a function or power conferred on
the Future Fund Board by section 32, 34, 40, 42, 44 or 45; or
(b) a right or power conferred on the
Future Fund Board in its capacity as the holder of an investment of the
Building Australia Fund.
Building Australia Fund Investment Mandate
has the meaning given by subsection 35(4).
Building Australia Fund Special Account means
the Building Australia Fund Special Account established by section 13.
business entity means:
(a) a company; or
(b) a partnership; or
(c) a trust; or
(d) a body politic.
carriage service has the same meaning as in
the Telecommunications Act 1997.
Chair means the Chair of the Future Fund
Board.
COAG Reform Fund means the COAG Reform Fund
established by section 5 of the COAG Reform Fund Act 2008.
Communications Department means the
Department administered by the Communications Minister.
Communications Minister means the Minister
who administers the Telecommunications Act 1997.
debenture has the same meaning as in the Corporations
Act 2001.
derivative means a derivative (within the
meaning of Chapter 7 of the Corporations Act 2001) that is a
financial asset.
designated education infrastructure‑related
matter has the meaning given by section 143.
drawing right means a drawing right issued
under section 27 of the Financial Management and Accountability Act
1997.
Education Department means the Department
administered by the Education Minister.
Education Investment Fund means the Education
Investment Fund established by section 131.
Education Investment Fund investment function
of the Future Fund Board means:
(a) a function or power conferred on
the Future Fund Board by section 151, 153, 159, 161, 163 or 164; or
(b) a right or power conferred on the
Future Fund Board in its capacity as the holder of an investment of the
Education Investment Fund.
Education Investment Fund Investment Mandate
has the meaning given by subsection 154(4).
Education Investment Fund Special Account
means the Education Investment Fund Special Account established by
section 132.
Education Minister means the Minister who
administers Part 2‑2 of the Higher Education Support Act 2003.
Note: Part 2‑2 of the Higher Education
Support Act 2003 deals with the Commonwealth Grant Scheme.
EIF Advisory Board means the Education
Investment Fund Advisory Board established under section 170.
EIF designated Ministers means:
(a) the Education Minister; and
(b) the Research Minister.
EIF Education Portfolio Special Account means
the EIF Education Portfolio Special Account established by section 181.
EIF evaluation criteria means evaluation
criteria under section 172.
EIF Research Portfolio Special Account means
the EIF Research Portfolio Special Account established by section 188.
eligible national broadband network matter
has the meaning given by section 23.
Energy Department means the Department
administered by the Energy Minister.
Energy Minister means the Minister who
administers the Australian Energy Market Act 2004.
Finance Department means the Department
administered by the Finance Minister.
Finance Minister has the same meaning as in
the Financial Management and Accountability Act 1997.
financial asset has the meaning given by
section 5.
Future Fund Board means the Future Fund Board
of Guardians.
Future Fund Board member means a member of
the Future Fund Board, and includes the Chair.
Future Fund Special Account means the Future
Fund Special Account established by section 12 of the Future Fund Act
2006.
GFS Australia means the publication of the
Australian Bureau of Statistics known as Australian System of Government
Finance Statistics: Concepts, Sources and Methods, as updated from time to
time. This updating takes 2 forms, as follows:
(a) from time to time, a new version
of the publication is produced;
(b) from time to time, material in the
current version of the publication is updated by other publications of the
Australian Bureau of Statistics.
GFS system has the same meaning as in GFS
Australia.
Health and Hospitals Fund means the Health
and Hospitals Fund established by section 214.
Health and Hospitals Fund investment function
of the Future Fund Board means:
(a) a function or power conferred on
the Future Fund Board by section 227, 228, 234, 236, 238 or 239; or
(b) a right or power conferred on the
Future Fund Board in its capacity as the holder of an investment of the Health
and Hospitals Fund.
Health and Hospitals Fund Investment Mandate
has the meaning given by subsection 229(4).
Health and Hospitals Fund Special Account
means the Health and Hospitals Fund Special Account established by
section 215.
Health Department means the Department
administered by the Health Minister.
Health Minister means the Minister
responsible for administering the Health Insurance Act 1973.
HHF Advisory Board means the Health and
Hospitals Fund Advisory Board established under section 245.
HHF evaluation criteria means evaluation
criteria under section 247.
HHF Health Portfolio Special Account means
the HHF Health Portfolio Special Account established by section 255.
higher education institution means an
institution specified in a legislative instrument made by the EIF designated
Ministers for the purposes of this definition.
Infrastructure Department means the
Department administered by the Infrastructure Minister.
Infrastructure Minister means the Minister
who administers the Infrastructure Australia Act 2008.
investment means any mode of application of
money or financial assets for the purpose of gaining a return (whether by way
of income, capital gain or any other form of return).
investment manager means a person or body
(other than the Agency) who undertakes to do any or all of the following:
(a) invest amounts on behalf of the
Future Fund Board;
(b) manage the investment of funds on
behalf of the Future Fund Board;
(c) acquire derivatives on behalf of
the Future Fund Board;
(d) manage derivatives on behalf of
the Future Fund Board;
(e) enter into securities lending
arrangements on behalf of the Future Fund Board;
(f) realise financial assets on
behalf of the Future Fund Board;
(g) perform custodial functions in
relation to the financial assets of the Future Fund Board.
investment of the Building Australia Fund
means a financial asset that, under a provision of this Act, is taken to be an
investment of the Building Australia Fund.
investment of the Education Investment Fund
means a financial asset that, under a provision of this Act, is taken to be an
investment of the Education Investment Fund.
investment of the Health and Hospitals Fund
means a financial asset that, under a provision of this Act, is taken to be an
investment of the Health and Hospitals Fund.
modifications includes additions, omissions
and substitutions.
national broadband network means a national
telecommunications network for the high‑speed carriage of communications.
For this purpose, carriage, communications and telecommunications
network have the same meanings as in the Telecommunications Act 1997.
Note: See also subsection 7(2).
payment in relation to the creation or development of
communications infrastructure has a meaning affected by
section 22.
payment in relation to the creation or development of
eligible education infrastructure has the meaning given by
section 142.
payment in relation to the creation or development of
energy infrastructure has a meaning affected by section 24.
payment in relation to the creation or development of
health infrastructure has a meaning affected by section 220.
payment in relation to the creation or development of
higher education infrastructure has the meaning given by
section 139.
payment in relation to the creation or development of
research infrastructure has the meaning given by section 140.
payment in relation to the creation or development of
transport infrastructure has a meaning affected by section 21.
payment in relation to the creation or development of
vocational education and training infrastructure has the meaning given
by section 141.
payment in relation to the creation or development of
water infrastructure has a meaning affected by section 25.
person (except in Division 2 of
Part 3.4 and Division 2 of Part 4.4) includes a partnership.
Note: See also paragraph 22(1)(a) of the Acts
Interpretation Act 1901.
realise includes redeem or dispose of.
Research Department means the Department
administered by the Research Minister.
research institution means an institution
specified in a legislative instrument made by the EIF designated Ministers for
the purposes of this definition.
Research Minister means the Minister who
administers the Australian Research Council Act 2001.
responsible Ministers means:
(a) the Treasurer; and
(b) the Finance Minister.
securities lending arrangement means an
agreement of the kind known as a securities lending arrangement.
transitional HEEF payment has the meaning
given by section 144.
Treasury Department means the Department
administered by the Treasurer.
value of an investment of:
(a) the Building Australia Fund; or
(b) the Education Investment Fund; or
(c) the Health and Hospitals Fund;
means the market value of the investment. For this
purpose, disregard anything that would prevent or restrict conversion of a
financial asset to money.
vocational education and training provider
means a person or body specified in a legislative instrument made by the EIF
designated Ministers for the purposes of this definition.
Water Department means the Department
administered by the Water Minister.
Water Minister means the Minister who
administers the Water Act 2007.
5
Financial assets
A reference in this Act to a financial
asset is a reference to:
(a) an asset that, in accordance with
GFS Australia, is treated as a financial asset for the purposes of the GFS
system in Australia; or
(b) an asset specified in regulations
made for the purposes of this paragraph;
but does not include a reference to an asset that, under
the regulations, is taken to be a non‑financial asset for the purposes of
this Act.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
6
Crown to be bound
(1) This Act binds the Crown in each of its
capacities.
(2) This Act does not make the Crown liable
to be prosecuted for an offence.
7
Extension to external Territories
(1) This Act extends to every external
Territory.
(2) However, for the purposes of this Act, it
is immaterial whether a national broadband network extends to an external
Territory.
8
Extra‑territorial application
This Act extends to acts, omissions,
matters and things outside Australia (unless the contrary intention appears).
Chapter 2—Building Australia Fund
Part 2.1—Introduction
9
Object
The object of this Chapter is to enhance
the Commonwealth’s ability:
(a) to make payments in relation to
the creation or development of transport infrastructure; and
(b) to make payments in relation to
the creation or development of communications infrastructure; and
(c) to make payments in relation to
eligible national broadband network matters; and
(d) to make payments in relation to
the creation or development of energy infrastructure; and
(e) to make payments in relation to
the creation or development of water infrastructure.
10
Simplified outline
The following is a simplified outline of
this Chapter:
• This Chapter sets up the
Building Australia Fund, which consists of:
(a) the Building
Australia Fund Special Account; and
(b) the
investments of the Building Australia Fund.
• The main purposes of the
Building Australia Fund Special Account are:
(a) to make payments
in relation to the creation or development of transport infrastructure; and
(b) to make
payments in relation to the creation or development of communications
infrastructure; and
(c) to make
payments in relation to eligible national broadband network matters; and
(d) to make
payments in relation to the creation or development of energy infrastructure;
and
(e) to make
payments in relation to the creation or development of water infrastructure.
• The Finance Minister is
responsible for authorising payments on the recommendation of the
Infrastructure Minister, the Communications Minister, the Energy Minister or
the Water Minister.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• The Future Fund Board is
responsible for deciding how to invest the Building Australia Fund.
• Investments of the Building
Australia Fund will consist of financial assets.
• The Future Fund Board is
bound by a Building Australia Fund Investment Mandate given to it by the
responsible Ministers.
Note: The Future Fund Act 2006 provides that
the Future Fund Management Agency is responsible for assisting and advising the
Future Fund Board.
Part 2.2—Building Australia Fund
Division 1—Introduction
11
Simplified outline
The following is a simplified outline of
this Part:
• This Part sets up the
Building Australia Fund.
• The Building Australia Fund
consists of:
(a) the Building
Australia Fund Special Account; and
(b) the
investments of the Building Australia Fund.
• The balance of the
Communications Fund is to be transferred to the Building Australia Fund.
• The balance of the Telstra
Sale Special Account is to be transferred to the Building Australia Fund.
• One or more initial amounts
are to be credited to the Building Australia Fund Special Account by
30 June 2009. The total of the initial amounts must equal $7.5 billion.
• The responsible Ministers
may determine that additional amounts are to be credited to the Building
Australia Fund Special Account.
• Amounts may be debited from
the Building Australia Fund Special Account in accordance with the purposes of
the Building Australia Fund Special Account.
• The main purposes of the
Building Australia Fund Special Account are:
(a) to make
payments in relation to the creation or development of transport
infrastructure; and
(b) to make
payments in relation to the creation or development of communications infrastructure;
and
(c) to make
payments in relation to eligible national broadband network matters; and
(d) to make
payments in relation to the creation or development of energy infrastructure;
and
(e) to make
payments in relation to the creation or development of water infrastructure.
Note 1: The Communications Fund was established by
repealed section 158ZG of the Telecommunications (Consumer Protection
and Service Standards) Act 1999.
Note 2: The Telstra Sale Special Account was
established under subsection 20(1) of the Financial Management and
Accountability Act 1997.
Division 2—Establishment of the Building Australia Fund etc.
12
Establishment of the Building Australia Fund
(1) The Building Australia Fund is
established by this section.
(2) The Building Australia Fund consists of:
(a) the Building Australia Fund
Special Account; and
(b) the investments of the Building
Australia Fund.
13
Establishment of the Building Australia Fund Special Account
(1) The Building Australia Fund Special
Account is established by this section.
(2) The Building Australia Fund Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
Note: An Appropriation Act may contain a provision
to the effect that, if any of the purposes of a Special Account is a purpose
that is covered by an item in the Appropriation Act (whether or not the item
expressly refers to the Special Account), then amounts may be debited against
the appropriation for that item and credited to that Special Account.
Division 3—Credits of amounts to the Building Australia Fund
14
Initial credits of amounts to the Building Australia Fund Special Account
(1) The responsible Ministers may, by
writing, determine that:
(a) a specified amount is to be credited
to the Building Australia Fund Special Account on a specified day; or
(b) a specified amount is to be
credited to the Building Australia Fund Special Account in specified
instalments on specified days.
(2) The responsible Ministers must ensure
that, by the end of 30 June 2009, the total of the amounts credited to the
Building Australia Fund Special Account under subsection (1) equals $7.5
billion.
Note 1: See also section 16 (balance of the
Communications Fund to be credited to the Building Australia Fund Special
Account).
Note 2: See also section 33 (Building Australia
Fund to inherit investments of the Communications Fund).
Note 3: See also section 17 (balance of the
Telstra Sale Special Account to be credited to the Building Australia Fund
Special Account).
(3) The responsible Ministers must not make a
determination under subsection (1) after 30 June 2009.
(4) A determination under subsection (1)
is irrevocable.
(5) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
15
Subsequent credits of amounts to the Building Australia Fund Special
Account—determinations by the responsible Ministers
(1) The responsible Ministers may, by writing,
determine that:
(a) a specified amount is to be
credited to the Building Australia Fund Special Account on a specified day; or
(b) a specified amount is to be
credited to the Building Australia Fund Special Account in specified
instalments on specified days.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) In making a determination under
subsection (1), the responsible Ministers must have regard to the object
of this Chapter.
(3) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
16
Credit of amount to the Building Australia Fund Special Account—balance of the
Communications Fund Special Account
As soon as practicable after the
commencement of this section, there is to be credited to the Building Australia
Fund Special Account an amount equal to the balance of the Communications Fund
Special Account as at immediately before the commencement of this section.
Note: The Communications Fund Special Account was
established by repealed section 158ZH of the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
17
Credit of amount to the Building Australia Fund Special Account—balance of the
Telstra Sale Special Account
(1) The responsible Ministers may, by
writing, determine that an amount equal to the balance of the Telstra Sale
Special Account as at a specified time is to be:
(a) debited from the Telstra Sale Special
Account; and
(b) credited to the Building Australia
Fund Special Account.
Note: The Telstra Sale Special Account was
established under subsection 20(1) of the Financial Management and
Accountability Act 1997.
(2) The responsible Ministers must make a
determination under subsection (1) before the end of 30 June 2009.
(3) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
Division 4—Debits of amounts from the Building Australia Fund
18
Purposes of the Building Australia Fund Special Account—payments purposes and
purposes related exclusively to the Building Australia Fund
(1) Each of the following is a purpose of the
Building Australia Fund Special Account:
(a) making payments in relation to the
creation or development of transport infrastructure, so long as the payments
are authorised under subsection 51(1);
(b) making payments in relation to the
creation or development of communications infrastructure, so long as the
payments are authorised under subsection 51(2);
(c) making payments in relation to
eligible national broadband network matters, so long as the payments are
authorised under subsection 51(3);
(d) making payments in relation to the
creation or development of energy infrastructure, so long as the payments are
authorised under subsection 51(4);
(e) making payments in relation to the
creation or development of water infrastructure, so long as the payments are
authorised under subsection 51(5);
(f) paying the costs of, or
incidental to, the acquisition of financial assets under section 32;
(g) paying expenses of an investment
of the Building Australia Fund;
(h) paying the costs of, or incidental
to, the acquisition of derivatives under section 42;
(i) paying or discharging the costs,
expenses and other obligations incurred by the Future Fund Board under a
contract between the Future Fund Board and an investment manager engaged under
subsection 45(1);
(j) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where the
bank account relates exclusively to the Building Australia Fund;
(k) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board exclusively in
connection with the Building Australia Fund;
(l) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board
exclusively in connection with the Building Australia Fund.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) Paragraphs (1)(b) and (c) do not
limit each other.
(3) A payment under paragraph (1)(a),
(b), (c), (d) or (e) may be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
Note 1: Section 63 deals with the channelling of
payments through the BAF Infrastructure Portfolio Special Account.
Note 2: Section 70 deals with the channelling of
payments through the BAF Communications Portfolio Special Account.
Note 3: Section 77 deals with the channelling of
payments through the BAF Energy Portfolio Special Account.
Note 4: Section 84 deals with the channelling of
payments through the BAF Water Portfolio Special Account.
Note 5: Sections 89, 94, 99 and 104 deal with the
channelling of State/Territory grants payments through the COAG Reform Fund.
19
Purposes of the Building Australia Fund Special Account—transitional
Each of the following is a purpose of
the Building Australia Fund Special Account:
(a) paying the costs of, or incidental
to, the acquisition of financial assets under repealed Division 3 of
Part 9C of the Telecommunications (Consumer Protection and Service
Standards) Act 1999, where the costs were incurred before the commencement
of this section;
(b) paying expenses of an investment
of the Building Australia Fund, where:
(i) immediately before the
commencement of this section, the investment was an investment of the
Communications Fund; and
(ii) the expense was
incurred before the commencement of this section;
(c) paying the costs of, or incidental
to, the acquisition of derivatives under repealed section 158ZQ of the Telecommunications
(Consumer Protection and Service Standards) Act 1999, where the costs were
incurred before the commencement of this section;
(d) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Commonwealth in
connection with the Communications Fund, where the costs, expenses, obligations
or liabilities were incurred before the commencement of this section.
Note 1: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
Note 2: The Communications Fund was established by
repealed section 158ZG of the Telecommunications (Consumer Protection
and Service Standards) Act 1999.
20
Purposes of the Building Australia Fund Special Account—purposes not related
exclusively to the Building Australia Fund
Each of the following is a purpose of
the Building Australia Fund Special Account:
(a) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where
those costs, expenses or obligations are not covered by:
(i) paragraph 18(1)(j); or
(ii) paragraph 136(1)(j);
or
(iii) paragraph 137(e); or
(iv) paragraph 218(1)(f); or
(v) paragraph 2(1)(g) of Schedule 2
to the Future Fund Act 2006;
(b) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board, where the premium
is not covered by:
(i) paragraph 18(1)(k); or
(ii) paragraph 136(1)(k);
or
(iii) paragraph 137(f); or
(iv) paragraph 218(1)(g); or
(v) paragraph 2(1)(h) of
Schedule 2 to the Future Fund Act 2006;
(c) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board,
where the costs, expenses, obligations or liabilities are not covered by:
(i) a paragraph of
subsection 18(1); or
(ii) a paragraph of
subsection 136(1); or
(iii) a paragraph of
section 137; or
(iv) a paragraph of
subsection 218(1); or
(v) a paragraph of
subclause 2(1) of Schedule 2 to the Future Fund Act 2006;
(d) paying remuneration and allowances
of Future Fund Board members;
(e) paying remuneration, and other
employment‑related costs and expenses, in respect of members of the staff
of the Agency;
(f) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth under a contract
entered into under section 78 or 82 of the Future Fund Act 2006;
(g) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth in connection with
the operation of the Agency.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
21
Extended meaning of payment in relation to the creation or development of
transport infrastructure
For the purposes of this Act, each of
the following payments is taken to be a payment in relation to the
creation or development of transport infrastructure:
(a) a payment in relation to the
acquisition of shares in a company that is, or will be, involved in the creation
or development of transport infrastructure;
(b) a payment in relation to the
acquisition of debentures of a company that is, or will be, involved in the
creation or development of transport infrastructure;
(c) a payment in relation to the
acquisition of units in a unit trust that is, or will be, involved in the
creation or development of transport infrastructure;
(d) a payment in relation to the
acquisition of a financial asset in a business entity that is, or will be,
involved in the creation or development of transport infrastructure;
(e) a payment in relation to a matter
incidental or ancillary to a matter set out in paragraph (a), (b), (c) or
(d).
Note: See section 121.
22
Extended meaning of payment in relation to the creation or development of
communications infrastructure
For the purposes of this Act, each of
the following payments is taken to be a payment in relation to the
creation or development of communications infrastructure:
(a) a payment in relation to the
acquisition of shares in a company that is, or will be, involved in the
creation or development of communications infrastructure;
(b) a payment in relation to the
acquisition of debentures of a company that is, or will be, involved in the
creation or development of communications infrastructure;
(c) a payment in relation to the
acquisition of units in a unit trust that is, or will be, involved in the
creation or development of communications infrastructure;
(d) a payment in relation to the
acquisition of any other financial asset in a business entity that is, or will
be, involved in the creation or development of communications infrastructure;
(e) a payment in relation to a matter
incidental or ancillary to a matter set out in paragraph (a), (b), (c) or
(d).
Note: See section 121.
23
Eligible national broadband network matter
For the purposes of this Act, an eligible
national broadband network matter is any of the following matters:
(a) the acquisition of shares in a
company that is, or will be, involved in the creation or development of a
national broadband network;
(b) the acquisition of debentures of a
company that is, or will be, involved in the creation or development of a
national broadband network;
(c) the acquisition of units in a unit
trust that is, or will be, involved in the creation or development of a
national broadband network;
(d) the acquisition of any other
financial asset in a business entity that is, or will be, involved in the
creation or development of a national broadband network;
(e) the creation or development of a
national broadband network;
(f) the supply of a broadband
carriage service over a national broadband network;
(g) the acquisition of assets for use
in connection with the creation or development of a national broadband network;
(h) a matter incidental or ancillary
to a matter set out in paragraph (a), (b), (c), (d), (e), (f) or (g).
Note: See section 121.
24
Extended meaning of payment in relation to the creation or development of
energy infrastructure
For the purposes of this Act, each of
the following payments is taken to be a payment in relation to the
creation or development of energy infrastructure:
(a) a payment in relation to the
acquisition of shares in a company that is, or will be, involved in the
creation or development of energy infrastructure;
(b) a payment in relation to the
acquisition of debentures of a company that is, or will be, involved in the
creation or development of energy infrastructure;
(c) a payment in relation to the
acquisition of units in a unit trust that is, or will be, involved in the
creation or development of energy infrastructure;
(d) a payment in relation to the
acquisition of a financial asset in a business entity that is, or will be,
involved in the creation or development of energy infrastructure;
(e) a payment in relation to a matter
incidental or ancillary to a matter set out in paragraph (a), (b), (c) or
(d).
Note: See section 121.
25
Extended meaning of payment in relation to the creation or development of
water infrastructure
For the purposes of this Act, each of
the following payments is taken to be a payment in relation to the
creation or development of water infrastructure:
(a) a payment in relation to the
acquisition of shares in a company that is, or will be, involved in the creation
or development of water infrastructure;
(b) a payment in relation to the
acquisition of debentures of a company that is, or will be, involved in the
creation or development of water infrastructure;
(c) a payment in relation to the
acquisition of units in a unit trust that is, or will be, involved in the
creation or development of water infrastructure;
(d) a payment in relation to the
acquisition of a financial asset in a business entity that is, or will be,
involved in the creation or development of water infrastructure;
(e) a payment in relation to a matter
incidental or ancillary to a matter set out in paragraph (a), (b), (c) or
(d).
Note: See section 121.
26
Future Fund Board must ensure that there is sufficient money in the Building
Australia Fund Special Account to cover authorised payments etc.
The Future Fund Board must take all
reasonable steps to ensure that the amount of money standing to the credit of
the Building Australia Fund Special Account is sufficient to cover:
(a) the debit of amounts for payments
authorised, or proposed to be authorised, under subsection 51(1), (2), (3), (4)
or (5); and
(b) amounts debited, or proposed to be
debited, under subsection 63(1); and
(c) amounts debited, or proposed to be
debited, under subsection 70(1); and
(d) amounts debited, or proposed to be
debited, under subsection 77(1); and
(e) amounts debited, or proposed to be
debited, under subsection 84(1); and
(f) amounts debited, or proposed to
be debited, under subsection 89(1); and
(g) amounts debited, or proposed to be
debited, under subsection 94(1); and
(h) amounts debited, or proposed to be
debited, under subsection 99(1); and
(i) amounts debited, or proposed to
be debited, under subsection 104(1).
Note: This may require the Future Fund Board to
realise an investment of the Building Australia Fund in accordance with
section 34.
Division 5—Inter‑fund transfers
27
Transfers from the Building Australia Fund to the Future Fund
(1) If an amount is debited from the Future
Fund Special Account for a purpose mentioned in subclause 2(2) of
Schedule 2 to the Future Fund Act 2006, the Finance Minister may,
by writing, direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the Future Fund
Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Future Fund Special Account as mentioned in
subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
28
Transfers from the Building Australia Fund to the Education Investment Fund
(1) If an amount is debited from the
Education Investment Fund Special Account for a purpose mentioned in
section 138, the Finance Minister may, by writing, direct that a specified
amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the Education
Investment Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Education Investment Fund Special Account as mentioned
in subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
29
Transfers from the Building Australia Fund to the Health and Hospitals Fund
(1) If an amount is debited from the Health
and Hospitals Fund Special Account for a purpose mentioned in section 219,
the Finance Minister may, by writing, direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the Health and
Hospitals Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Health and Hospitals Fund Special Account as mentioned
in subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
Part 2.3—Investment of the Building Australia Fund
30
Simplified outline
The following is a simplified outline of
this Part:
• The Future Fund Board is
responsible for deciding how to invest the Building Australia Fund.
• Investments of the Building
Australia Fund will consist of financial assets.
• Investments of the Building
Australia Fund will be held in the name of the Future Fund Board.
• The Future Fund Board is
bound by a Building Australia Fund Investment Mandate given to it by the
responsible Ministers.
31
Objects of investment of the Building Australia Fund
(1) The main object of the acquisition by the
Future Fund Board of a financial asset as an investment of the Building
Australia Fund is to enhance the Commonwealth’s ability:
(a) to make payments in relation to
the creation or development of transport infrastructure; and
(b) to make payments in relation to
the creation or development of communications infrastructure; and
(c) to make payments in relation to
eligible national broadband network matters; and
(d) to make payments in relation to
the creation or development of energy infrastructure; and
(e) to make payments in relation to
the creation or development of water infrastructure.
(2) The ancillary objects of the acquisition
by the Future Fund Board of a financial asset as an investment of the Building
Australia Fund are to enhance the ability of the Commonwealth and the Future
Fund Board to:
(a) discharge costs, expenses,
obligations and liabilities; and
(b) make payments;
as mentioned in paragraphs 18(1)(f) to (l),19(a) to (d)
and 20(a) to (g).
32
Investment of the Building Australia Fund
(1) The Future Fund Board may invest amounts
standing to the credit of the Building Australia Fund Special Account in any
financial assets.
(2) Investments under subsection (1) are
to be made in the name of the Future Fund Board.
(3) Investments under subsection (1) are
taken to be investments of the Building Australia Fund.
(4) This section does not authorise the
acquisition of a derivative.
Note: For acquisition of derivatives, see
section 42.
33
Building Australia Fund to inherit investments of the Communications Fund
Scope
(1) This section applies to a financial asset
if:
(a) immediately before the
commencement of this section, the financial asset was an investment of the
Communications Fund; and
(b) the financial asset is held by the
Commonwealth; and
(c) the financial asset has been
continuously held by the Commonwealth since the commencement of this section.
Note: The Communications Fund was established by
repealed section 158ZG of the Telecommunications (Consumer Protection
and Service Standards) Act 1999.
Investment of the Building Australia Fund
(2) The financial asset is taken to be an
investment of the Building Australia Fund.
Rights and powers
(3) The Future Fund Board may, on behalf of
the Commonwealth, exercise any rights or powers conferred on the Commonwealth
in the Commonwealth’s capacity as the holder of the financial asset.
(4) Such a right or power is taken to be a Building
Australia Fund investment function of the Future Fund Board.
34
Management of investments of the Building Australia Fund
(1) Income derived from an investment of the
Building Australia Fund is to be credited to the Building Australia Fund Special
Account.
(2) A return of capital, or any other
financial distribution, relating to an investment of the Building Australia
Fund is to be credited to the Building Australia Fund Special Account.
(3) The Future Fund Board may realise an
investment of the Building Australia Fund.
(4) Upon realisation of an investment of the
Building Australia Fund, the proceeds of the investment are to be credited to
the Building Australia Fund Special Account.
(5) At any time before an investment of the
Building Australia Fund matures, the Future Fund Board may authorise the re‑investment
of the proceeds upon maturity in a financial asset investment with the same
entity. The new investment is taken to be an investment of the Building
Australia Fund.
(6) Section 39 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Building Australia Fund.
35
Building Australia Fund Investment Mandate
(1) The responsible Ministers may give the
Future Fund Board written directions about the performance of its Building
Australia Fund investment functions, and must give at least one such direction.
Note 1: Building Australia Fund investment
function is defined in section 4.
Note 2: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) Subsection (1) has effect subject to
section 36.
(3) In giving a direction under
subsection (1), the responsible Ministers must have regard to:
(a) maximising the return earned on
the Building Australia Fund, consistent with international best practice for
institutional investment; and
(b) enhancing the Commonwealth’s
ability:
(i) to make payments in
relation to the creation or development of transport infrastructure; and
(ii) to make payments in
relation to the creation or development of communications infrastructure; and
(iii) to make payments in
relation to eligible national broadband network matters; and
(iv) to make payments in
relation to the creation or development of energy infrastructure; and
(v) to make payments in
relation to the creation or development of water infrastructure; and
(c) such other matters as the
responsible Ministers consider relevant.
(4) Directions under subsection (1) are
to be known collectively as the Building Australia Fund Investment Mandate.
(5) A direction under subsection (1) may
set out the policies to be pursued by the Future Fund Board in relation to:
(a) matters of risk and return; and
(b) the allocation of financial
assets.
A policy relating to the allocation of financial assets must
not be inconsistent with a policy relating to matters of risk and return.
(6) Subsection (5) does not limit
subsection (1).
(7) Subsection (5) has effect subject to
section 36.
(8) The Building Australia Fund Investment
Mandate prevails over subsection (12) to the extent of any inconsistency.
(9) The responsible Ministers must not give a
direction under subsection (1) that is inconsistent with this Act (other
than subsection (12)).
(10) A direction under subsection (1) must
not take effect before the 15th day after the day on which it is given.
(11) A direction under subsection (1) is a
legislative instrument.
Note 1: Section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 44 of
that Act.
Note 2: Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 54 of
that Act.
(12) In the performance of its Building
Australia Fund investment functions, the Future Fund Board must seek to:
(a) maximise the return earned on the
Building Australia Fund, consistent with international best practice for
institutional investment; and
(b) enhance the Commonwealth’s
ability:
(i) to make payments in
relation to the creation or development of transport infrastructure; and
(ii) to make payments in
relation to the creation or development of communications infrastructure; and
(iii) to make payments in
relation to eligible national broadband network matters; and
(iv) to make payments in
relation to the creation or development of energy infrastructure; and
(v) to make payments in
relation to the creation or development of water infrastructure.
Note: Building Australia Fund investment
function is defined in section 4.
(13) Subsection (12) has effect subject
to:
(a) this Act; and
(b) a direction under
subsection (1).
36
Limitation on Building Australia Fund Investment Mandate
(1) The responsible Ministers must not give a
direction under subsection 35(1) that has the purpose, or has or is likely to
have the effect, of directly or indirectly requiring the Future Fund Board to:
(a) invest an amount standing to the
credit of the Building Australia Fund Special Account in a particular financial
asset; or
(b) acquire a particular derivative;
or
(c) allocate financial assets to:
(i) a particular business
entity; or
(ii) a particular activity;
or
(iii) a particular business.
(2) Paragraphs (1)(a) and (b) do not
limit paragraph (1)(c).
37
Future Fund Board to be consulted on Building Australia Fund Investment Mandate
(1) Before giving the Future Fund Board a
direction under subsection 35(1), the responsible Ministers must:
(a) send a draft of the direction to
the Future Fund Board; and
(b) invite the Future Fund Board to
make a submission to the responsible Ministers on the draft direction within a
time limit specified by the responsible Ministers; and
(c) consider any submission that is
received from the Future Fund Board within that time limit.
(2) If:
(a) the responsible Ministers give the
Future Fund Board a direction under subsection 35(1); and
(b) the Future Fund Board made a
submission to the responsible Ministers on a draft of the direction within the
time limit specified by the responsible Ministers;
the submission is to be tabled in each House of the Parliament
with the direction.
Note: For tabling of the direction, see
section 38 of the Legislative Instruments Act 2003.
(3) A time limit specified under this section
must be reasonable.
38
Compliance with Building Australia Fund Investment Mandate
(1) The Future Fund Board must take all
reasonable steps to comply with the Building Australia Fund Investment Mandate.
(2) As soon as practicable after the Future
Fund Board becomes aware that it has failed to comply with the Building
Australia Fund Investment Mandate, the Future Fund Board must give the
responsible Ministers a written statement:
(a) informing the responsible
Ministers of the failure to comply with the Building Australia Fund Investment
Mandate; and
(b) setting out the action that the
Future Fund Board proposes to take in order to comply with the Building
Australia Fund Investment Mandate.
(3) If the responsible Ministers are
satisfied that the Future Fund Board has failed to comply with the Building
Australia Fund Investment Mandate, the responsible Ministers may, by written
notice given to the Future Fund Board, direct the Future Fund Board:
(a) to give the responsible Ministers,
within a period specified in the notice, a written explanation for the failure
to comply with the Building Australia Fund Investment Mandate; and
(b) to take action specified in the
notice, within a period specified in the notice, in order to comply with the
Building Australia Fund Investment Mandate.
(4) The Future Fund Board must comply with a
direction under subsection (3).
(5) A failure to comply with:
(a) the Building Australia Fund
Investment Mandate; or
(b) a direction under
subsection (3);
does not affect the validity of any transaction.
(6) A direction under subsection (3) is
not a legislative instrument.
39
Future Fund Board must not trigger the takeover provisions of the Corporations
Act 2001
(1) Subsections 606(1A) and (2A) and
section 611 of the Corporations Act 2001 do not apply to an
acquisition by the Future Fund Board if the acquisition is the result of the
performance by the Future Fund Board of its Building Australia Fund investment
functions.
(2) A failure by the Future Fund Board to
comply with section 606 of the Corporations Act 2001 (as modified
by this section) does not affect the validity of any transaction.
Note: See also section 39 of the Future Fund
Act 2006 (application of the Corporations Act 2001).
40
Borrowing
(1) The Future Fund Board must not borrow
money for a purpose in connection with the Building Australia Fund unless the borrowing
is authorised by subsection (2) or (3).
(2) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Building Australia Fund if:
(a) the purpose of the borrowing is to
enable the Future Fund Board to cover settlement of a transaction for the
acquisition of one or more financial assets; and
(b) at the time the relevant
acquisition decision was made, it was likely that the borrowing would not be
needed; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the Future Fund Board would not exceed 10%
of the balance of the Building Australia Fund.
(3) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Building Australia Fund if
the borrowing takes place in such circumstances (if any) as are specified in
the regulations.
41
Building Australia Fund investment policies
(1) The Future Fund Board must formulate
written policies to be complied with by it in relation to the following matters
in connection with the Building Australia Fund:
(a) the investment strategy for the
Building Australia Fund;
(b) benchmarks and standards for
assessing the performance of the Building Australia Fund;
(c) risk management for the Building
Australia Fund;
(d) a matter relating to international
best practice for institutional investment;
(e) a matter specified in the
regulations.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) The Future Fund Board must ensure that
policies formulated under subsection (1) are consistent with the Building
Australia Fund Investment Mandate.
Publication of policies
(3) The Future Fund Board must cause copies
of policies formulated under subsection (1) to be published on the
internet.
(4) The Future Fund Board must ensure that
the first set of policies formulated under subsection (1) is published on
the internet as soon as practicable after the commencement of this section.
Review of policies
(5) The Future Fund Board must conduct
periodic reviews of policies formulated under subsection (1).
(6) If there is a change in the Building
Australia Fund Investment Mandate, the Future Fund Board must review any
relevant policies formulated under subsection (1).
Compliance with policies
(7) The Future Fund Board must take all
reasonable steps to comply with policies formulated under subsection (1).
(8) A failure to comply with a policy
formulated under subsection (1) does not affect the validity of any
transaction.
Policies
(9) A policy formulated under
subsection (1) is not a legislative instrument.
42
Derivatives
(1) The Future Fund Board may acquire a
derivative for the purpose of:
(a) protecting the value of an
investment of the Building Australia Fund (other than a derivative); or
(b) protecting the return on an
investment of the Building Australia Fund (other than a derivative); or
(c) achieving indirect exposure to
financial assets (other than derivatives) for a purpose in connection with the
Building Australia Fund; or
(d) achieving transactional efficiency
for a purpose in connection with the Building Australia Fund;
but must not acquire a derivative for the purpose of:
(e) speculation; or
(f) leverage.
(2) The acquisition of a derivative under
subsection (1) must be consistent with the investment strategy embodied in
a policy formulated by the Future Fund Board under subsection 41(1).
(3) A derivative acquired under
subsection (1) is to be held in the name of the Future Fund Board.
(4) A derivative acquired under
subsection (1) is taken to be an investment of the Building Australia
Fund.
43
Additional financial assets
If, as a result of:
(a) the Future Fund Board’s holding of
an investment of the Building Australia Fund; or
(b) the exercise of any rights or
powers conferred on the Future Fund Board in its capacity as the holder of an
investment of the Building Australia Fund;
the Future Fund Board becomes the holder of a financial
asset, that financial asset is taken to be an investment of the Building
Australia Fund.
44
Securities lending arrangements
(1) The Future Fund Board may enter into
securities lending arrangements for a purpose in connection with the Building
Australia Fund.
(2) Any money received by the Future Fund
Board under a securities lending arrangement entered into under
subsection (1) is to be credited to the Building Australia Fund Special
Account.
(3) To avoid doubt, a securities lending
arrangement entered into under subsection (1) may provide for the Future
Fund Board to realise an investment of the Building Australia Fund.
(4) If, as the result of the operation of a
securities lending arrangement entered into under subsection (1), the
Future Fund Board becomes the holder of a financial asset, that financial asset
is taken to be an investment of the Building Australia Fund.
45
Investment managers
(1) The Future Fund Board may engage one or
more investment managers for purposes in connection with the Building Australia
Fund.
(2) The Future Fund Board must not:
(a) invest amounts under subsection
32(1); or
(b) acquire derivatives under
subsection 42(1); or
(c) enter into a securities lending
arrangement under subsection 44(1); or
(d) realise financial assets that are
investments of the Building Australia Fund;
unless the Future Fund Board does so:
(e) through an investment manager
engaged by the Future Fund Board under subsection (1) of this section; or
(f) in a manner approved, in writing,
by the responsible Ministers.
(3) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) operates within this Act.
(4) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) reports to:
(a) the Future Fund Board; and
(b) the Agency;
on the state of the investments of the Building Australia
Fund at such times and in such manner as the Future Fund Board determines.
46
Custody of securities
Section 40 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Building Australia Fund.
47
Refund of franking credits
If:
(a) the Future Fund Board receives a
refund of a tax offset under the Income Tax Assessment Act 1997; and
(b) the tax offset is attributable to
an investment of the Building Australia Fund;
the refund is to be credited to the Building Australia
Fund Special Account.
Note 1: See also section 84B of the Future Fund
Act 2006.
Note 2: For refunds of tax offsets, see
Division 63 of the Income Tax Assessment Act 1997.
48
Realisation of non‑financial assets
(1) If an asset held by the Future Fund Board
as an investment of the Building Australia Fund ceases to be a financial asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware of
the cessation; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had remained a financial asset, and an investment of
the Building Australia Fund, until the realisation.
(2) If an asset acquired by the Future Fund
Board, purportedly as an investment of the Building Australia Fund, is not a
financial asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware that
the asset is not a financial asset; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had been a financial asset, and an investment of the
Building Australia Fund, from the time of its acquisition by the Future Fund
Board until the realisation.
49
Additional function of the Future Fund Board
The functions of the Future Fund Board
include the function of investing amounts in accordance with this Chapter.
Part 2.4—Payments
Division 1—Introduction
50
Simplified outline
The following is a simplified outline of
this Part:
• The Finance Minister may
authorise payments in relation to the creation or development of transport
infrastructure on the recommendation of the Infrastructure Minister.
• The Infrastructure Minister
must obtain advice from Infrastructure Australia before making a
recommendation.
• The Finance Minister may
authorise:
(a) payments in
relation to the creation or development of communications infrastructure; and
(b) payments in
relation to eligible national broadband network matters;
on the recommendation of
the Communications Minister.
• The Communications Minister
must obtain advice from Infrastructure Australia before making a recommendation
in relation to communications infrastructure.
• The Finance Minister may
authorise payments in relation to the creation or development of energy
infrastructure on the recommendation of the Energy Minister.
• The Energy Minister must
obtain advice from Infrastructure Australia before making a recommendation.
• The Finance Minister may
authorise payments in relation to the creation or development of water
infrastructure on the recommendation of the Water Minister.
• The Water Minister must
obtain advice from Infrastructure Australia before making a recommendation.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• Payments may be channelled
through the BAF Infrastructure Portfolio Special Account, the BAF
Communications Portfolio Special Account, the BAF Energy Portfolio Special
Account or the BAF Water Portfolio Special Account.
• Grants of financial
assistance to the States and Territories may be channelled through the COAG
Reform Fund.
• The Finance Minister must
comply with general drawing rights limits.
• The total amount of
payments made in each financial year will depend on the macroeconomic
circumstances.
Division 2—Direct payments
51
Authorisation of payments
(1) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of transport
infrastructure.
(2) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of
communications infrastructure.
(3) The Finance Minister may, by writing,
authorise a payment in relation to one or more eligible national broadband
network matters.
(4) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of energy
infrastructure.
(5) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of water
infrastructure.
(6) Subsections (2) and (3) do not limit
each other.
(7) 2 or more authorisations under this
section may be set out in the same document.
(8) An instrument under subsection (1),
(2), (3), (4) or (5) is not a legislative instrument.
52
Recommendations about payments
Transport infrastructure
(1) The Finance Minister must not authorise a
payment under subsection 51(1) unless the Infrastructure Minister has
recommended the authorisation of the payment.
(2) The Infrastructure Minister must not make
a recommendation under subsection (1) in relation to a payment unless
Infrastructure Australia has advised under section 116 that the payment
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the
Infrastructure Minister must have regard to:
(a) advice about the payment that was
given to the Infrastructure Minister by Infrastructure Australia under
section 116; and
(b) such other matters (if any) as the
Infrastructure Minister considers relevant.
Communications infrastructure
(4) The Finance Minister must not authorise a
payment under subsection 51(2) unless the Communications Minister has
recommended the authorisation of the payment.
(5) The Communications Minister must not make
a recommendation under subsection (4) in relation to a payment unless
Infrastructure Australia has advised under section 117 that the payment
satisfies the relevant BAF evaluation criteria.
(6) In deciding whether to make a
recommendation under subsection (4) in relation to a payment, the
Communications Minister must have regard to:
(a) advice about the payment that was
given to the Communications Minister by Infrastructure Australia under
section 117; and
(b) such other matters (if any) as the
Communications Minister considers relevant.
Eligible national broadband network matters
(7) The Finance Minister must not authorise a
payment under subsection 51(3) unless the Communications Minister has
recommended the authorisation of the payment.
Energy infrastructure
(8) The Finance Minister must not authorise a
payment under subsection 51(4) unless the Energy Minister has recommended the
authorisation of the payment.
(9) The Energy Minister must not make a
recommendation under subsection (8) in relation to a payment unless
Infrastructure Australia has advised under section 118 that the payment
satisfies the relevant BAF evaluation criteria.
(10) In deciding whether to make a
recommendation under subsection (8) in relation to a payment, the Energy
Minister must have regard to:
(a) advice about the payment that was
given to the Energy Minister by Infrastructure Australia under
section 118; and
(b) such other matters (if any) as the
Energy Minister considers relevant.
Water infrastructure
(11) The Finance Minister must not authorise a
payment under subsection 51(5) unless the Water Minister has recommended the
authorisation of the payment.
(12) The Water Minister must not make a
recommendation under subsection (11) in relation to a payment unless
Infrastructure Australia has advised under section 119 that the payment
satisfies the relevant BAF evaluation criteria.
(13) In deciding whether to make a
recommendation under subsection (11) in relation to a payment, the Water
Minister must have regard to:
(a) advice about the payment that was
given to the Water Minister by Infrastructure Australia under section 119;
and
(b) such other matters (if any) as the
Water Minister considers relevant.
53 Grant
to a State or Territory—transport infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(a).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement between
the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Infrastructure Minister on behalf of the
Commonwealth.
54
Grant to a State or Territory—communications infrastructure etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for a purpose
mentioned in paragraph 18(1)(b) or (c).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Communications Minister on behalf of the
Commonwealth.
55
Grant to a State or Territory—energy infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(d).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Energy Minister on behalf of the Commonwealth.
56
Grant to a State or Territory—water infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(e).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Water Minister on behalf of the Commonwealth.
57
Grant to a person other than a State or Territory—transport infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(a).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Infrastructure Minister on behalf of the
Commonwealth.
58
Grant to a person other than a State or Territory—communications infrastructure
etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for a purpose
mentioned in paragraph 18(1)(b) or (c).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Communications Minister on behalf of the
Commonwealth.
59
Grant to a person other than a State or Territory—energy infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(d).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Energy Minister on behalf of the Commonwealth.
60
Grant to a person other than a State or Territory—water infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Building Australia Fund Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 18(1)(e).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Water Minister on behalf of the Commonwealth.
Division 3—Channelling of payments through the BAF Infrastructure
Portfolio Special Account
61
Establishment of the BAF Infrastructure Portfolio Special Account
(1) The BAF Infrastructure Portfolio Special
Account is established by this section.
(2) The BAF Infrastructure Portfolio Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
62
Purpose of the BAF Infrastructure Portfolio Special Account
(1) The purpose of the BAF Infrastructure
Portfolio Special Account is making payments in relation to the creation or
development of transport infrastructure, so long as the payments are specified
under subsection 63(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) A payment under subsection (1) may
be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
63
Channelling of payments through the BAF Infrastructure Portfolio Special
Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Infrastructure
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the BAF
Infrastructure Portfolio Special Account for the purpose of making a specified
payment in relation to the creation or development of transport infrastructure.
(3) 2 or more directions under
subsection (1) may be set out in the same document.
(4) A direction under subsection (1) is
not a legislative instrument.
(5) The Finance Minister must give a copy of
a direction under subsection (1) to the Infrastructure Minister.
64
Recommendations about payments
(1) A payment in relation to the creation or
development of transport infrastructure must not be specified under subsection
63(2) unless the Infrastructure Minister has recommended the specification of
the payment.
(2) The Infrastructure Minister must not make
a recommendation under subsection (1) in relation to a payment unless
Infrastructure Australia has advised under section 116 that the payment
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the
Infrastructure Minister must have regard to:
(a) advice about the payment that was
given to the Infrastructure Minister by Infrastructure Australia under
section 116; and
(b) such other matters (if any) as the
Infrastructure Minister considers relevant.
65
Payments—debit from the BAF Infrastructure Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 63(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the BAF Infrastructure Portfolio Special Account.
Debit from the BAF Infrastructure Portfolio Special
Account
(2) The Infrastructure Minister must ensure
that, as soon as practicable after the amount is credited, the BAF
Infrastructure Portfolio Special Account is debited for the purposes of making
the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the BAF
Infrastructure Portfolio Special Account; and
(b) credited to the Building Australia
Fund Special Account.
66
Grant to a State or Territory—transport infrastructure
Scope
(1) This section applies if an amount is to
be debited from the BAF Infrastructure Portfolio Special Account for the
purpose of making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Infrastructure Minister on behalf of the
Commonwealth.
67
Grant to a person other than a State or Territory—transport infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the BAF Infrastructure Portfolio Special Account for the purpose of making a
payment to a person other than a State or Territory; and
(b) the payment is by way of a grant of
financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Infrastructure Minister on behalf of the
Commonwealth.
Division 4—Channelling of payments through the BAF Communications
Portfolio Special Account
68
Establishment of the BAF Communications Portfolio Special Account
(1) The BAF Communications Portfolio Special
Account is established by this section.
(2) The BAF Communications Portfolio Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
69
Purposes of the BAF Communications Portfolio Special Account
(1) Each of the following is a purpose of the
BAF Communications Portfolio Special Account:
(a) making payments in relation to the
creation or development of communications infrastructure, so long as the
payments are specified under subsection 70(2);
(b) making payments in relation to
eligible national broadband network matters, so long as the payments are
specified under subsection 70(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) Paragraphs (1)(a) and (b) do not
limit each other.
(3) A payment under paragraph (1)(a) or
(b) may be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
70
Channelling of payments through the BAF Communications Portfolio Special
Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Communications
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the BAF
Communications Portfolio Special Account:
(a) for the purpose of making a
specified payment in relation to the creation or development of communications
infrastructure; or
(b) for the purpose of making a
specified payment in relation to one or more eligible national broadband
network matters.
(3) Paragraphs (2)(a) and (b) do not
limit each other.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Communications Minister.
71
Recommendations about payments
Communications infrastructure
(1) A payment in relation to the creation or
development of communications infrastructure (other than a payment in relation
to an eligible national broadband network matter) must not be specified under
subsection 70(2) unless the Communications Minister has recommended the
specification of the payment.
(2) The Communications Minister must not make
a recommendation under subsection (1) in relation to a payment unless
Infrastructure Australia has advised under section 117 that the payment
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the
Communications Minister must have regard to:
(a) advice about the payment that was
given to the Communications Minister by Infrastructure Australia under
section 117; and
(b) such other matters (if any) as the
Communications Minister considers relevant.
Eligible national broadband network matters
(4) A payment in relation to an eligible
national broadband network matter must not be specified under subsection 70(2)
unless the Communications Minister has recommended the specification of the
payment.
72
Payments—debit from the BAF Communications Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 70(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the BAF Communications Portfolio Special Account.
Debit from the BAF Communications Portfolio Special
Account
(2) The Communications Minister must ensure
that, as soon as practicable after the amount is credited, the BAF
Communications Portfolio Special Account is debited for the purposes of making
the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the BAF
Communications Portfolio Special Account; and
(b) credited to the Building Australia
Fund Special Account.
73
Grant to a State or Territory—communications infrastructure etc.
Scope
(1) This section applies if an amount is to
be debited from the BAF Communications Portfolio Special Account for the
purpose of making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Communications Minister on behalf of the
Commonwealth.
74
Grant to a person other than a State or Territory—communications infrastructure
etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the BAF Communications Portfolio Special Account for the purpose of making a
payment to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Communications Minister on behalf of the
Commonwealth.
Division 5—Channelling of payments through the BAF Energy Portfolio
Special Account
75
Establishment of the BAF Energy Portfolio Special Account
(1) The BAF Energy Portfolio Special Account
is established by this section.
(2) The BAF Energy Portfolio Special Account
is a Special Account for the purposes of the Financial Management and
Accountability Act 1997.
76
Purpose of the BAF Energy Portfolio Special Account
(1) The purpose of the BAF Energy Portfolio
Special Account is making payments in relation to the creation or development
of energy infrastructure, so long as the payments are specified under
subsection 77(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) A payment under subsection (1) may
be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
77
Channelling of payments through the BAF Energy Portfolio Special Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Energy
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the BAF Energy
Portfolio Special Account for the purpose of making a specified payment in
relation to the creation or development of energy infrastructure.
(3) 2 or more directions under
subsection (1) may be set out in the same document.
(4) A direction under subsection (1) is
not a legislative instrument.
(5) The Finance Minister must give a copy of
a direction under subsection (1) to the Energy Minister.
78
Recommendations about payments
(1) A payment in relation to the creation or
development of energy infrastructure must not be specified under subsection
77(2) unless the Energy Minister has recommended the specification of the
payment.
(2) The Energy Minister must not make a
recommendation under subsection (1) in relation to a payment unless Infrastructure
Australia has advised under section 118 that the payment satisfies the
relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the Energy
Minister must have regard to:
(a) advice about the payment that was
given to the Energy Minister by Infrastructure Australia under
section 118; and
(b) such other matters (if any) as the
Energy Minister considers relevant.
79
Payments—debit from the BAF Energy Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 77(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the BAF Energy Portfolio Special Account.
Debit from the BAF Energy Portfolio Special Account
(2) The Energy Minister must ensure that, as
soon as practicable after the amount is credited, the BAF Energy Portfolio
Special Account is debited for the purposes of making the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the BAF Energy
Portfolio Special Account; and
(b) credited to the Building Australia
Fund Special Account.
80
Grant to a State or Territory—energy infrastructure
Scope
(1) This section applies if an amount is to
be debited from the BAF Energy Portfolio Special Account for the purpose of
making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that financial
assistance is granted are to be set out in a written agreement between the
Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Energy Minister on behalf of the Commonwealth.
81
Grant to a person other than a State or Territory—energy infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the BAF Energy Portfolio Special Account for the purpose of making a payment to
a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Energy Minister on behalf of the Commonwealth.
Division 6—Channelling of payments through the BAF Water Portfolio
Special Account
82
Establishment of the BAF Water Portfolio Special Account
(1) The BAF Water Portfolio Special Account
is established by this section.
(2) The BAF Water Portfolio Special Account
is a Special Account for the purposes of the Financial Management and
Accountability Act 1997.
83
Purpose of the BAF Water Portfolio Special Account
(1) The purpose of the BAF Water Portfolio
Special Account is making payments in relation to the creation or development
of water infrastructure, so long as the payments are specified under subsection
84(2).
Note: See section 21 of the Financial Management
and Accountability Act 1997 (debits from Special Accounts).
(2) A payment under subsection (1) may
be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
84
Channelling of payments through the BAF Water Portfolio Special Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Water
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the BAF Water
Portfolio Special Account for the purpose of making a specified payment in
relation to the creation or development of water infrastructure.
(3) 2 or more directions under
subsection (1) may be set out in the same document.
(4) A direction under subsection (1) is
not a legislative instrument.
(5) The Finance Minister must give a copy of
a direction under subsection (1) to the Water Minister.
85
Recommendations about payments
(1) A payment in relation to the creation or
development of water infrastructure must not be specified under subsection
84(2) unless the Water Minister has recommended the specification of the
payment.
(2) The Water Minister must not make a
recommendation under subsection (1) in relation to a payment unless
Infrastructure Australia has advised under section 119 that the payment
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the Water
Minister must have regard to:
(a) advice about the payment that was
given to the Water Minister by Infrastructure Australia under section 119;
and
(b) such other matters (if any) as the
Water Minister considers relevant.
86
Payments—debit from the BAF Water Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 84(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the BAF Water Portfolio Special Account.
Debit from the BAF Water Portfolio Special Account
(2) The Water Minister must ensure that, as
soon as practicable after the amount is credited, the BAF Water Portfolio
Special Account is debited for the purposes of making the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the BAF Water
Portfolio Special Account; and
(b) credited to the Building Australia
Fund Special Account.
87
Grant to a State or Territory—water infrastructure
Scope
(1) This section applies if an amount is to
be debited from the BAF Water Portfolio Special Account for the purpose of
making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Water Minister on behalf of the Commonwealth.
88
Grant to a person other than a State or Territory—water infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the BAF Water Portfolio Special Account for the purpose of making a payment to
a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Water Minister on behalf of the Commonwealth.
Division 7—Channelling of State/Territory grants payments through the
COAG Reform Fund
Subdivision A—Channelling of transport infrastructure grants
89
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Infrastructure
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the BAF
Infrastructure Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be a grant of financial assistance in relation to
transport infrastructure.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Infrastructure
Minister.
90
Recommendations about grants payments—transport infrastructure
(1) A grant must not be specified under
subsection 89(2) unless the Infrastructure Minister has recommended the
specification of the grant.
(2) The Infrastructure Minister must not make
a recommendation under subsection (1) in relation to a grant unless
Infrastructure Australia has advised under section 116 that the grant
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the
Infrastructure Minister must have regard to:
(a) advice about the grant that was
given to the Infrastructure Minister by Infrastructure Australia under
section 116; and
(b) such other matters (if any) as the
Infrastructure Minister considers relevant.
91
Transfers from the BAF Infrastructure Portfolio Special Account to the COAG
Reform Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 89(1) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the BAF Infrastructure Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Infrastructure Minister must, by writing, direct that the
amount is to be:
(a) debited from the BAF
Infrastructure Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Infrastructure Minister must give a
copy of a direction under subsection (2) to the Treasurer.
92
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Infrastructure Minister gives
a direction under subsection 91(2) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
93
Grant to a State or Territory—transport infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is a grant of financial
assistance in relation to transport infrastructure; and
(c) the grant is covered by subsection
92(2).
Note: Subsection 92(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Infrastructure Minister on behalf of the
Commonwealth.
Subdivision B—Channelling of communications infrastructure grants
94
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building Australia
Fund Special Account; and
(b) credited to the BAF Communications
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the BAF Communications
Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be a grant of financial assistance in relation to
communications infrastructure.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Communications
Minister.
95
Recommendations about grants payments—communications infrastructure
(1) A grant must not be specified under
subsection 94(2) unless the Communications Minister has recommended the
specification of the grant.
(2) The Communications Minister must not make
a recommendation under subsection (1) in relation to a grant unless
Infrastructure Australia has advised under section 117 that the grant
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the
Communications Minister must have regard to:
(a) advice about the grant that was
given to the Communications Minister by Infrastructure Australia under
section 117; and
(b) such other matters (if any) as the
Communications Minister considers relevant.
96
Transfers from the BAF Communications Portfolio Special Account to the COAG
Reform Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 94(1) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the BAF Communications Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Communications Minister must, by writing, direct that the
amount is to be:
(a) debited from the BAF
Communications Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Communications Minister must give a
copy of a direction under subsection (2) to the Treasurer.
97
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Communications Minister gives
a direction under subsection 96(2) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
98
Grant to a State or Territory—communications infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is a grant of financial
assistance in relation to communications infrastructure; and
(c) the grant is covered by subsection
97(2).
Note: Subsection 97(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Communications Minister on behalf of the
Commonwealth.
Subdivision C—Channelling of energy infrastructure grants
99
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Energy
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the BAF Energy
Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be a grant of financial assistance in relation to
energy infrastructure.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Energy Minister.
100
Recommendations about grants payments—energy infrastructure
(1) A grant must not be specified under
subsection 99(2) unless the Energy Minister has recommended the specification
of the grant.
(2) The Energy Minister must not make a
recommendation under subsection (1) in relation to a grant unless
Infrastructure Australia has advised under section 118 that the grant
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the Energy
Minister must have regard to:
(a) advice about the grant that was
given to the Energy Minister by Infrastructure Australia under
section 118; and
(b) such other matters (if any) as the
Energy Minister considers relevant.
101
Transfers from the BAF Energy Portfolio Special Account to the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 99(1) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the BAF Energy Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Energy Minister must, by writing, direct that the amount is to
be:
(a) debited from the BAF Energy
Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Energy Minister must give a copy of a
direction under subsection (2) to the Treasurer.
102
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Energy Minister gives a
direction under subsection 101(2) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
103
Grant to a State or Territory—energy infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is a grant of financial
assistance in relation to energy infrastructure; and
(c) the grant is covered by subsection
102(2).
Note: Subsection 102(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Energy Minister on behalf of the Commonwealth.
Subdivision D—Channelling of water infrastructure grants
104
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Building
Australia Fund Special Account; and
(b) credited to the BAF Water
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the BAF Water
Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be a grant of financial assistance in relation to
water infrastructure.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Water Minister.
105
Recommendations about grants payments—water infrastructure
(1) A grant must not be specified under
subsection 104(2) unless the Water Minister has recommended the specification
of the grant.
(2) The Water Minister must not make a
recommendation under subsection (1) in relation to a grant unless
Infrastructure Australia has advised under section 119 that the grant
satisfies the relevant BAF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the Water
Minister must have regard to:
(a) advice about the grant that was
given to the Water Minister by Infrastructure Australia under section 119;
and
(b) such other matters (if any) as the
Water Minister considers relevant.
106
Transfers from the BAF Water Portfolio Special Account to the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 104(1) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the BAF Water Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Water Minister must, by writing, direct that the amount is to
be:
(a) debited from the BAF Water
Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Water Minister must give a copy of a
direction under subsection (2) to the Treasurer.
107
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Water Minister gives a
direction under subsection 106(2) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
108
Grant to a State or Territory—water infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is a grant of financial
assistance in relation to water infrastructure; and
(c) the grant is covered by subsection
107(2).
Note: Subsection 107(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Water Minister on behalf of the Commonwealth.
Division 8—Total payments for a financial year
109
General drawing rights limit in relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—the Finance Minister declares in writing that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section; or
(b) in the case of a later financial
year—an Appropriation Act relating to the financial year declares that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section.
Issue of drawing rights
(2) The total amount covered by drawing
rights authorising the following debits in the financial year:
(a) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(a);
(b) the debit of an amount from the
BAF Infrastructure Portfolio Special Account (other than a debit under
section 91);
(c) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(b);
(d) the debit of an amount from the
BAF Communications Portfolio Special Account for the purpose of making a
payment in relation to the creation or development of communications
infrastructure, other than:
(i) a debit for the
purpose of making a payment in relation to an eligible national broadband
network matter; or
(ii) a debit under
section 96;
(e) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(d);
(f) the debit of an amount from the
BAF Energy Portfolio Special Account (other than a debit under
section 101);
(g) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(e);
(h) the debit of an amount from the
BAF Water Portfolio Special Account (other than a debit under
section 106);
(i) the debit of an amount from the
COAG Reform Fund in accordance with subsection 92(2);
(j) the debit of an amount from the
COAG Reform Fund in accordance with subsection 97(2);
(k) the debit of an amount from the
COAG Reform Fund in accordance with subsection 102(2);
(l) the debit of an amount from the
COAG Reform Fund in accordance with subsection 107(2);
must not exceed the general drawing rights limit for the
financial year.
Declaration
(3) A declaration under paragraph (1)(a)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the declaration.
110
Drawing rights in relation to other financial years
The application of section 109 to a
particular financial year does not limit the drawing rights that may be issued
in relation to any other financial year.
111 No
drawing rights to be issued if there is no general drawing rights limit in
relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—no declaration is in force under paragraph
109(1)(a); or
(b) in the case of a later financial
year—no Appropriation Act relating to the financial year declares that a specified
amount is the general drawing rights limit in relation to the
financial year for the purposes of section 109.
No drawing rights to be issued
(2) Drawing rights authorising any of the
following debits in the financial year must not be issued:
(a) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(a);
(b) the debit of an amount from the
BAF Infrastructure Portfolio Special Account (other than a debit under
section 91);
(c) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(b);
(d) the debit of an amount from the
BAF Communications Portfolio Special Account for the purpose of making a
payment in relation to the creation or development of communications
infrastructure, other than:
(i) a debit for the
purpose of making a payment in relation to an eligible national broadband
network matter; or
(ii) a debit under
section 96;
(e) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(d);
(f) the debit of an amount from the
BAF Energy Portfolio Special Account (other than a debit under
section 101);
(g) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(e);
(h) the debit of an amount from the
BAF Water Portfolio Special Account (other than a debit under
section 106);
(i) the debit of an amount from the
COAG Reform Fund in accordance with subsection 92(2);
(j) the debit of an amount from the
COAG Reform Fund in accordance with subsection 97(2);
(k) the debit of an amount from the
COAG Reform Fund in accordance with subsection 102(2);
(l) the debit of an amount from the
COAG Reform Fund in accordance with subsection 107(2).
112
Total payments to depend primarily on the macroeconomic circumstances
Scope
(1) This section applies to the following
decisions:
(a) a decision to authorise a payment
under section 51, where the authorisation will result in a debit from the
Building Australia Fund Special Account in a financial year;
(b) a decision to give a direction
under subsection 63(1), where the direction will result in a debit from the BAF
Infrastructure Portfolio Special Account in a financial year in accordance with
subsection 65(2);
(c) a decision to give a direction
under subsection 70(1), where the direction will result in a debit from the BAF
Communications Portfolio Special Account in a financial year in accordance with
subsection 72(2);
(d) a decision to give a direction
under subsection 77(1), where the direction will result in a debit from the BAF
Energy Portfolio Special Account in a financial year in accordance with
subsection 79(2);
(e) a decision to give a direction
under subsection 84(1), where the direction will result in a debit from the BAF
Water Portfolio Special Account in a financial year in accordance with
subsection 86(2);
(f) a decision to give a direction
under subsection 89(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 92(2);
(g) a decision to give a direction
under subsection 94(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 97(2);
(h) a decision to give a direction
under subsection 99(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 102(2);
(i) a decision to give a direction
under subsection 104(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 107(2).
Macroeconomic circumstances
(2) In making the decision, the Finance
Minister must have regard to the principle that the total of the following
debits in the financial year:
(a) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(a);
(b) the debit of an amount from the
BAF Infrastructure Portfolio Special Account (other than a debit under
section 91);
(c) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(b);
(d) the debit of an amount from the
BAF Communications Portfolio Special Account for the purpose of making a
payment in relation to the creation or development of communications
infrastructure, other than:
(i) a debit for the
purpose of making a payment in relation to an eligible national broadband
network matter; or
(ii) a debit under section 96;
(e) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(d);
(f) the debit of an amount from the
BAF Energy Portfolio Special Account (other than a debit under
section 101);
(g) the debit of an amount from the
Building Australia Fund Special Account for the purpose mentioned in paragraph
18(1)(e);
(h) the debit of an amount from the
BAF Water Portfolio Special Account (other than a debit under
section 106);
(i) the debit of an amount from the
COAG Reform Fund in accordance with subsection 92(2);
(j) the debit of an amount from the
COAG Reform Fund in accordance with subsection 97(2);
(k) the debit of an amount from the
COAG Reform Fund in accordance with subsection 102(2);
(l) the debit of an amount from the
COAG Reform Fund in accordance with subsection 107(2);
should depend primarily on the macroeconomic
circumstances.
Part 2.5—Reporting obligations etc.
113
Finance Minister may require Future Fund Board to prepare reports or give
information
Reports
(1) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a report about one or more
specified matters relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the report to the
Finance Minister within the period specified in the notice.
Information
(2) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a document setting out
specified information relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the document to the
Finance Minister within the period specified in the notice.
Compliance
(3) The Future Fund Board must comply with a
requirement under subsection (1) or (2).
Publication of reports and documents
(4) The Finance Minister may cause to be
published (whether on the internet or otherwise):
(a) a report under subsection (1);
or
(b) a document under
subsection (2).
Reports and documents
(5) A report under subsection (1) is not
a legislative instrument.
(6) A document under subsection (2) is
not a legislative instrument.
114
Keeping the responsible Ministers informed etc.
(1) The Future Fund Board must keep the
responsible Ministers informed of the operations of the Future Fund Board under
this Chapter.
(2) The Future Fund Board must give the
Finance Minister such reports, documents and information in relation to those
operations as are appropriate.
115
Finance Minister may give reports to other Ministers etc.
The Finance Minister may give:
(a) the Treasurer; or
(b) the Infrastructure Minister; or
(c) the Communications Minister; or
(d) the Energy Minister; or
(e) the Water Minister;
any of the following:
(f) a report under subsection 113(1)
or 114(2);
(g) a document under subsection 113(2)
or 114(2);
(h) any other information or document
obtained by the Finance Minister under this Chapter.
Part 2.6—Miscellaneous
116
Infrastructure Australia to advise Infrastructure Minister about transport
infrastructure
(1) It is a function of Infrastructure
Australia to advise the Infrastructure Minister about matters that:
(a) are referred to it by the
Infrastructure Minister; and
(b) relate to the making of payments
in relation to the creation or development of transport infrastructure.
(2) In giving advice under
subsection (1), Infrastructure Australia must apply the BAF evaluation
criteria.
(3) The function conferred on Infrastructure
Australia by subsection (1) is in addition to the functions conferred on
Infrastructure Australia by the Infrastructure Australia Act 2008.
117
Infrastructure Australia to advise Communications Minister about communications
infrastructure
(1) It is a function of Infrastructure
Australia to advise the Communications Minister about matters that:
(a) are referred to it by the
Communications Minister; and
(b) relate to the making of payments
in relation to the creation or development of communications infrastructure.
(2) In giving advice under
subsection (1), Infrastructure Australia must apply the BAF evaluation
criteria.
(3) The function conferred on Infrastructure
Australia by subsection (1) is in addition to the functions conferred on
Infrastructure Australia by the Infrastructure Australia Act 2008.
(4) All communications by Infrastructure
Australia to the Communications Minister are to be made through the
Infrastructure Minister.
(5) All communications by the Communications Minister
to Infrastructure Australia are to be made through the Infrastructure Minister.
118
Infrastructure Australia to advise Energy Minister about energy infrastructure
(1) It is a function of Infrastructure
Australia to advise the Energy Minister about matters that:
(a) are referred to it by the Energy
Minister; and
(b) relate to the making of payments
in relation to the creation or development of energy infrastructure.
(2) In giving advice under
subsection (1), Infrastructure Australia must apply the BAF evaluation
criteria.
(3) The function conferred on Infrastructure
Australia by subsection (1) is in addition to the functions conferred on
Infrastructure Australia by the Infrastructure Australia Act 2008.
(4) All communications by Infrastructure
Australia to the Energy Minister are to be made through the Infrastructure
Minister.
(5) All communications by the Energy Minister
to Infrastructure Australia are to be made through the Infrastructure Minister.
119
Infrastructure Australia to advise Water Minister about water infrastructure
(1) It is a function of Infrastructure
Australia to advise the Water Minister about matters that:
(a) are referred to it by the Water
Minister; and
(b) relate to the making of payments
in relation to the creation or development of water infrastructure.
(2) In giving advice under
subsection (1), Infrastructure Australia must apply the BAF evaluation
criteria.
(3) The function conferred on Infrastructure
Australia by subsection (1) is in addition to the functions conferred on
Infrastructure Australia by the Infrastructure Australia Act 2008.
(4) All communications by Infrastructure
Australia to the Water Minister are to be made through the Infrastructure
Minister.
(5) All communications by the Water Minister
to Infrastructure Australia are to be made through the Infrastructure Minister.
120
BAF evaluation criteria
(1) The Infrastructure Minister may, by
legislative instrument, formulate criteria (BAF evaluation criteria)
to be applied by Infrastructure Australia in giving advice under subsection
116(1), 117(1), 118(1) or 119(1).
(2) The BAF evaluation criteria may provide
that the criteria covered by any of the following paragraphs may be different
to the criteria covered by any other of the following paragraphs:
(a) the criteria to be applied by
Infrastructure Australia in giving advice under subsection 116(1);
(b) the criteria to be applied by
Infrastructure Australia in giving advice under subsection 117(1);
(c) the criteria to be applied by
Infrastructure Australia in giving advice under subsection 118(1);
(d) the criteria to be applied by
Infrastructure Australia in giving advice under subsection 119(1).
(3) Before formulating BAF evaluation
criteria, the Infrastructure Minister must consult:
(a) the Communications Minister; and
(b) the Energy Minister; and
(c) the Water Minister; and
(d) the responsible Ministers.
(4) The Infrastructure Minister must ensure
that BAF evaluation criteria are in force at all times after the commencement
of this section.
121
Investment provisions do not apply to certain assets
Scope
(1) This section applies to an asset if:
(a) the asset is:
(i) a share; or
(ii) a debenture; or
(iii) a unit in a unit
trust; or
(iv) any other financial
asset; and
(b) the asset is held by the
Commonwealth; and
(c) the asset was acquired:
(i) using money debited
from the Building Australia Fund Special Account for a purpose mentioned in
paragraph 18(1)(a), (b), (c), (d) or (e); or
(ii) using money debited
from the BAF Infrastructure Portfolio Special Account; or
(iii) using money debited
from the BAF Communications Portfolio Special Account; or
(iv) using money debited
from the BAF Energy Portfolio Special Account; or
(v) using money debited
from the BAF Water Portfolio Special Account.
Investment provisions do not apply
(2) Part 2.3 does not apply in relation
to the asset.
(3) Section 39 of the Financial
Management and Accountability Act 1997 does not apply in relation to the
asset.
122
Delegation by the Finance Minister
Department
(1) The Finance Minister may, by writing,
delegate any or all of his or her powers under section 27, 28, 29, 51, 63,
70, 77, 84, 89, 94, 99 or 104 to:
(a) the Secretary of the Finance
Department; or
(b) an SES employee, or acting SES
employee, in the Finance Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
Agency
(3) The Finance Minister may, by writing,
delegate any or all of his or her powers under section 27, 28 or 29 to:
(a) the Chair; or
(b) an SES employee, or acting SES
employee, in the Agency.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(4) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
123
Delegation by the Treasurer
The Treasurer may, by writing, delegate
any or all of his or her functions under subsection 92(2), 97(2), 102(2) or
107(2) to:
(a) the Secretary of the Treasury
Department; or
(b) an SES employee, or acting SES
employee, in the Treasury Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
124
Delegation by the Infrastructure Minister
(1) The Infrastructure Minister may, by
writing, delegate any or all of his or her functions or powers under
section 53, 57, 65, 66, 67, 91 or 93 to:
(a) the Secretary of the
Infrastructure Department; or
(b) an SES employee, or acting SES
employee, in the Infrastructure Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Infrastructure Minister.
125
Delegation by the Communications Minister
(1) The Communications Minister may, by
writing, delegate any or all of his or her functions or powers under
section 54, 58, 72, 73, 74, 96 or 98 to:
(a) the Secretary of the
Communications Department; or
(b) an SES employee, or acting SES
employee, in the Communications Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Communications Minister.
126
Delegation by the Energy Minister
(1) The Energy Minister may, by writing,
delegate any or all of his or her functions or powers under section 55,
59, 79, 80, 81, 101 or 103 to:
(a) the Secretary of the Energy
Department; or
(b) an SES employee, or acting SES
employee, in the Energy Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Energy Minister.
127
Delegation by the Water Minister
(1) The Water Minister may, by writing,
delegate any or all of his or her functions or powers under section 56,
60, 86, 87, 88, 106 or 108 to:
(a) the Secretary of the Water
Department; or
(b) an SES employee, or acting SES
employee, in the Water Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Water Minister.
Chapter 3—Education Investment Fund
Part 3.1—Introduction
128
Object
The object of this Chapter is to enhance
the Commonwealth’s ability:
(a) to make payments in relation to
the creation or development of higher education infrastructure; and
(b) to make payments in relation to
the creation or development of research infrastructure; and
(c) to make payments in relation to
the creation or development of vocational education and training
infrastructure; and
(d) to make payments in relation to
the creation or development of eligible education infrastructure; and
(e) to make transitional HEEF
payments.
129
Simplified outline
The following is a simplified outline of
this Chapter:
• This Chapter sets up the
Education Investment Fund, which consists of:
(a) the
Education Investment Fund Special Account; and
(b) the
investments of the Education Investment Fund.
• The main purposes of the
Education Investment Fund Special Account are:
(a) to make
payments in relation to the creation or development of higher education
infrastructure; and
(b) to make
payments in relation to the creation or development of research infrastructure;
and
(c) to make
payments in relation to the creation or development of vocational education and
training infrastructure; and
(d) to make
payments in relation to the creation or development of eligible education
infrastructure; and
(e) to make
transitional HEEF payments.
• The Finance Minister is
responsible for authorising payments on the recommendation of the Education
Minister, the Research Minister or the EIF designated Ministers.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• The Future Fund Board is
responsible for deciding how to invest the Education Investment Fund.
• Investments of the
Education Investment Fund will consist of financial assets.
• The Future Fund Board is
bound by an Education Investment Fund Investment Mandate given to it by the
responsible Ministers.
Note: The Future Fund Act 2006 provides that
the Future Fund Management Agency is responsible for assisting and advising the
Future Fund Board.
Part 3.2—Education Investment Fund
Division 1—Introduction
130
Simplified outline
The following is a simplified outline of
this Part:
• This Part sets up the
Education Investment Fund.
• The Education Investment
Fund consists of:
(a) the
Education Investment Fund Special Account; and
(b) the
investments of the Education Investment Fund.
• The balance of the Higher
Education Endowment Fund is to be transferred to the Education Investment Fund.
• One or more initial amounts
are to be credited to the Education Investment Fund Special Account by
30 June 2009. The total of the initial amounts must equal $2.5 billion.
• The responsible Ministers
may determine that additional amounts are to be credited to the Education
Investment Fund Special Account.
• Amounts may be debited from
the Education Investment Fund Special Account in accordance with the purposes
of the Education Investment Fund Special Account.
• The main purposes of the
Education Investment Fund Special Account are:
(a) to make
payments in relation to the creation or development of higher education
infrastructure; and
(b) to make
payments in relation to the creation or development of research infrastructure;
and
(c) to make
payments in relation to the creation or development of vocational education and
training infrastructure; and
(d) to make
payments in relation to the creation or development of eligible education
infrastructure; and
(e) to make
transitional HEEF payments.
Note: The Higher Education Endowment Fund was
established by section 11 of the repealed Higher Education Endowment
Fund Act 2007.
Division 2—Establishment of the Education Investment Fund etc.
131
Establishment of the Education Investment Fund
(1) The Education Investment Fund is
established by this section.
(2) The Education Investment Fund consists
of:
(a) the Education Investment Fund
Special Account; and
(b) the investments of the Education
Investment Fund.
132
Establishment of the Education Investment Fund Special Account
(1) The Education Investment Fund Special
Account is established by this section.
(2) The Education Investment Fund Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
Note: An Appropriation Act may contain a provision
to the effect that, if any of the purposes of a Special Account is a purpose
that is covered by an item in the Appropriation Act (whether or not the item
expressly refers to the Special Account), then amounts may be debited against
the appropriation for that item and credited to that Special Account.
Division 3—Credits of amounts to the Education Investment Fund
133
Initial credits of amounts to the Education Investment Fund Special Account
(1) The responsible Ministers may, by
writing, determine that:
(a) a specified amount is to be
credited to the Education Investment Fund Special Account on a specified day;
or
(b) a specified amount is to be
credited to the Education Investment Fund Special Account in specified
instalments on specified days.
(2) The responsible Ministers must ensure
that, by the end of 30 June 2009, the total of the amounts credited to the
Education Investment Fund Special Account under subsection (1) equals $2.5
billion.
Note 1: See also section 135 (balance of the
Higher Education Endowment Fund to be credited to the Education Investment Fund
Special Account).
Note 2: See also section 152 (Education Investment
Fund to inherit investments of the Higher Education Endowment Fund).
(3) The responsible Ministers must not make a
determination under subsection (1) after 30 June 2009.
(4) A determination under subsection (1)
is irrevocable.
(5) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
134
Subsequent credits of amounts to the Education Investment Fund Special
Account—determinations by the responsible Ministers
(1) The responsible Ministers may, by
writing, determine that:
(a) a specified amount is to be
credited to the Education Investment Fund Special Account on a specified day;
or
(b) a specified amount is to be
credited to the Education Investment Fund Special Account in specified
instalments on specified days.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) In making a determination under
subsection (1), the responsible Ministers must have regard to the object
of this Chapter.
(3) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
135
Credit of amount to the Education Investment Fund Special Account—balance of
the Higher Education Endowment Fund Special Account
Immediately after the commencement of
this section, there is to be credited to the Education Investment Fund Special
Account an amount equal to the balance of the Higher Education Endowment Fund
Special Account as at immediately before the commencement of this section.
Note: The Higher Education Endowment Fund Special
Account was established by section 11 of the repealed Higher Education
Endowment Fund Act 2007.
Division 4—Debits of amounts from the Education Investment Fund
136
Purposes of the Education Investment Fund Special Account—payments purposes and
purposes related exclusively to the Education Investment Fund
(1) Each of the following is a purpose of the
Education Investment Fund Special Account:
(a) making payments in relation to the
creation or development of higher education infrastructure, so long as the
payments are authorised under subsection 176(1);
(b) making payments in relation to the
creation or development of research infrastructure, so long as the payments are
authorised under subsection 176(2);
(c) making payments in relation to the
creation or development of vocational education and training infrastructure, so
long as the payments are authorised under subsection 176(3);
(d) making payments in relation to the
creation or development of eligible education infrastructure, so long as the
payments are authorised under subsection 176(4);
(e) making transitional HEEF payments,
so long as the payments are authorised under subsection 176(5);
(f) paying the costs of, or
incidental to, the acquisition of financial assets under section 151;
(g) paying expenses of an investment
of the Education Investment Fund;
(h) paying the costs of, or incidental
to, the acquisition of derivatives under section 161;
(i) paying or discharging the costs,
expenses and other obligations incurred by the Future Fund Board under a
contract between the Future Fund Board and an investment manager engaged under
subsection 164(1);
(j) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where the
bank account relates exclusively to the Education Investment Fund;
(k) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board exclusively in
connection with the Education Investment Fund;
(l) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board
exclusively in connection with the Education Investment Fund.
Note: See section 21 of the Financial Management
and Accountability Act 1997 (debits from Special Accounts).
(2) Paragraphs (1)(a), (b), (c), (d) and
(e) do not limit each other.
(3) A payment under paragraph (1)(a),
(b), (c) or (d) may be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
Note 1: Section 183 deals with the channelling of
payments through the EIF Education Portfolio Special Account.
Note 2: Section 190 deals with the channelling of
payments through the EIF Research Portfolio Special Account.
Note 3: Section 194 deals with the channelling of
State/Territory grants payments through the COAG Reform Fund.
137
Purposes of the Education Investment Fund Special Account—transitional
Each of the following is a purpose of
the Education Investment Fund Special Account:
(a) paying the costs of, or incidental
to, the acquisition of financial assets under Part 3 of the repealed Higher
Education Endowment Fund Act 2007, where the costs were incurred before the
commencement of this section;
(b) paying expenses of an investment
of the Education Investment Fund, where:
(i) immediately before the
commencement of this section, the investment was an investment of the Higher
Education Endowment Fund; and
(ii) the expense was incurred
before the commencement of this section;
(c) paying the costs of, or incidental
to, the acquisition of derivatives under section 31 of the repealed Higher
Education Endowment Fund Act 2007, where the costs were incurred before the
commencement of this section;
(d) paying or discharging the costs,
expenses and other obligations incurred by the Future Fund Board under a
contract between the Future Fund Board and an investment manager engaged under
subsection 34(1) of the repealed Higher Education Endowment Fund Act 2007,
where the costs, expenses or obligations were incurred before the commencement
of this section;
(e) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where:
(i) the bank account
relates exclusively to the Higher Education Endowment Fund; and
(ii) the costs, expenses or
obligations were incurred before the commencement of this section;
(f) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board exclusively in
connection with the Higher Education Endowment Fund, where the liability to pay
the premium was incurred before the commencement of this section;
(g) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Commonwealth
exclusively in connection with the Higher Education Endowment Fund, where the
costs, expenses, obligations or liabilities were incurred before the
commencement of this section.
Note 1: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
Note 2: The Higher Education Endowment Fund was
established by the repealed Higher Education Endowment Fund 2007.
138
Purposes of the Education Investment Fund Special Account—purposes not related
exclusively to the Education Investment Fund
Each of the following is a purpose of
the Education Investment Fund Special Account:
(a) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where
those costs, expenses or obligations are not covered by:
(i) paragraph 18(1)(j); or
(ii) paragraph 136(1)(j);
or
(iii) paragraph 137(e); or
(iv) paragraph 218(1)(f); or
(v) paragraph 2(1)(g) of
Schedule 2 to the Future Fund Act 2006;
(b) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board, where the premium
is not covered by:
(i) paragraph 18(1)(k); or
(ii) paragraph 136(1)(k);
or
(iii) paragraph 137(f); or
(iv) paragraph 218(1)(g); or
(v) paragraph 2(1)(h) of
Schedule 2 to the Future Fund Act 2006;
(c) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board,
where the costs, expenses, obligations or liabilities are not covered by:
(i) a paragraph of
subsection 18(1); or
(ii) a paragraph of
subsection 136(1); or
(iii) a paragraph of
section 137; or
(iv) a paragraph of subsection
218(1); or
(v) a paragraph of
subclause 2(1) of Schedule 2 to the Future Fund Act 2006;
(d) paying remuneration and allowances
of Future Fund Board members;
(e) paying remuneration, and other
employment‑related costs and expenses, in respect of members of the staff
of the Agency;
(f) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth under a contract
entered into under section 78 or 82 of the Future Fund Act 2006;
(g) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth in connection with
the operation of the Agency.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
139
Payments in relation to the creation or development of higher education
infrastructure
For the purposes of this Act, a payment
in relation to the creation or development of higher education infrastructure
is:
(a) a payment to a higher education
institution in relation to the creation or development of education
infrastructure; or
(b) any of the following payments:
(i) a payment in relation
to the acquisition of shares in a company that is, or will be, involved in the
creation or development of education infrastructure;
(ii) a payment in relation
to the acquisition of debentures of a company that is, or will be, involved in
the creation or development of education infrastructure;
(iii) a payment in relation
to the acquisition of units in a unit trust that is, or will be, involved in
the creation or development of education infrastructure;
(iv) a payment in relation
to the acquisition of any other financial asset in a business entity that is,
or will be, involved in the creation or development of education
infrastructure;
(v) a payment in relation
to a matter incidental or ancillary to a matter set out in
subparagraph (i), (ii), (iii) or (iv);
where the education
infrastructure relates to the higher education sector.
Note: See section 206.
140
Payments in relation to the creation or development of research infrastructure
For the purposes of this Act, a payment
in relation to the creation or development of research infrastructure
is:
(a) a payment to a research
institution in relation to the creation or development of research infrastructure;
or
(b) any of the following payments:
(i) a payment in relation
to the acquisition of shares in a company that is, or will be, involved in the
creation or development of research infrastructure;
(ii) a payment in relation
to the acquisition of debentures of a company that is, or will be, involved in
the creation or development of research infrastructure;
(iii) a payment in relation
to the acquisition of units in a unit trust that is, or will be, involved in
the creation or development of research infrastructure;
(iv) a payment in relation
to the acquisition of any other financial asset in a business entity that is,
or will be, involved in the creation or development of research infrastructure;
(v) a payment in relation
to a matter incidental or ancillary to a matter set out in
subparagraph (i), (ii), (iii) or (iv).
Note: See section 206.
141
Payments in relation to the creation or development of vocational education and
training infrastructure
For the purposes of this Act, a payment
in relation to the creation or development of vocational education and training
infrastructure is:
(a) a payment to a vocational
education and training provider in relation to the creation or development of
education infrastructure; or
(b) any of the following payments:
(i) a payment in relation
to the acquisition of shares in a company that is, or will be, involved in the
creation or development of education infrastructure;
(ii) a payment in relation
to the acquisition of debentures of a company that is, or will be, involved in
the creation or development of education infrastructure;
(iii) a payment in relation
to the acquisition of units in a unit trust that is, or will be, involved in
the creation or development of education infrastructure;
(iv) a payment in relation
to the acquisition of any other financial asset in a business entity that is,
or will be, involved in the creation or development of education
infrastructure;
(v) a payment in relation
to a matter incidental or ancillary to a matter set out in subparagraph (i),
(ii), (iii) or (iv);
where the education
infrastructure relates to the vocational education and training sector.
Note: See section 206.
142
Payments in relation to the creation or development of eligible education
infrastructure
For the purposes of this Act, a payment
in relation to the creation or development of eligible education infrastructure
is:
(a) a payment in relation to one or
more designated education infrastructure‑related matters; or
(b) any of the following payments:
(i) a payment in relation
to the acquisition of shares in a company that is, or will be, involved in the
creation or development of education infrastructure;
(ii) a payment in relation
to the acquisition of debentures of a company that is, or will be, involved in
the creation or development of education infrastructure;
(iii) a payment in relation
to the acquisition of units in a unit trust that is, or will be, involved in
the creation or development of education infrastructure;
(iv) a payment in relation to
the acquisition of any other financial asset in a business entity that is, or
will be, involved in the creation or development of education infrastructure;
(v) a payment in relation
to a matter incidental or ancillary to a matter set out in subparagraph (i),
(ii), (iii) or (iv);
where the education
infrastructure relates to education specified in a legislative instrument made
by the EIF designated Ministers for the purposes of this paragraph.
Note: See section 206.
143
Designated education infrastructure‑related matters
(1) The EIF designated Ministers may, by
legislative instrument, determine that, for the purposes of this Act, a
specified matter is a designated education infrastructure‑related
matter.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) The EIF designated Ministers must not
specify a matter under subsection (1) unless the matter relates to the
creation or development of education infrastructure.
144
Transitional HEEF payments
(1) For the purposes of this Act, a transitional
HEEF payment is:
(a) a grant of financial assistance to
an eligible higher education institution in relation to capital expenditure; or
(b) a grant of financial assistance to
an eligible higher education institution in relation to research facilities.
Note: A transitional HEEF payment requires a pre‑1 July
2009 recommendation of the EIF designated Ministers—see subsections 177(7),
184(4) and 191(4).
(2) An expression used in
paragraph (1)(a) or (b) has the same meaning as it had in the Higher
Education Endowment Fund Act 2007 as in force immediately before the
commencement of this section.
145
Future Fund Board must ensure that there is sufficient money in the Education
Investment Fund Special Account to cover authorised payments etc.
The Future Fund Board must take all
reasonable steps to ensure that the amount of money standing to the credit of
the Education Investment Fund Special Account is sufficient to cover:
(a) the debit of amounts for payments
authorised, or proposed to be authorised, under subsection 176(1), (2), (3),
(4) or (5); and
(b) amounts debited, or proposed to be
debited, under subsection 183(1); and
(c) amounts debited, or proposed to be
debited, under subsection 190(1); and
(d) amounts debited, or proposed to be
debited, under subsection 194(1).
Note: This may require the Future Fund Board to
realise an investment of the Education Investment Fund in accordance with
section 153.
Division 5—Inter‑fund transfers
146
Transfers from the Education Investment Fund to the Future Fund
(1) If an amount is debited from the Future
Fund Special Account for a purpose mentioned in subclause 2(2) of
Schedule 2 to the Future Fund Act 2006, the Finance Minister may,
by writing, direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the Future Fund
Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Future Fund Special Account as mentioned in
subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
147
Transfers from the Education Investment Fund to the Building Australia Fund
(1) If an amount is debited from the Building
Australia Fund Special Account for a purpose mentioned in section 20, the
Finance Minister may, by writing, direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the Building Australia
Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Building Australia Fund Special Account as mentioned in
subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
148
Transfers from the Education Investment Fund to the Health and Hospitals Fund
(1) If an amount is debited from the Health
and Hospitals Fund Special Account for a purpose mentioned in section 219,
the Finance Minister may, by writing, direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the Health and
Hospitals Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Health and Hospitals Fund Special Account as mentioned
in subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
Part 3.3—Investment of the Education Investment Fund
149
Simplified outline
The following is a simplified outline of
this Part:
• The Future Fund Board is
responsible for deciding how to invest the Education Investment Fund.
• Investments of the
Education Investment Fund will consist of financial assets.
• Investments of the
Education Investment Fund will be held in the name of the Future Fund Board.
• The Future Fund Board is
bound by an Education Investment Fund Investment Mandate given to it by the
responsible Ministers.
150
Objects of investment of the Education Investment Fund
(1) The main object of the acquisition by the
Future Fund Board of a financial asset as an investment of the Education
Investment Fund is to enhance the Commonwealth’s ability:
(a) to make payments in relation to
the creation or development of higher education infrastructure; and
(b) to make payments in relation to
the creation or development of research infrastructure; and
(c) to make payments in relation to
the creation or development of vocational education and training
infrastructure; and
(d) to make payments in relation to
the creation or development of eligible education infrastructure; and
(e) to make transitional HEEF
payments.
(2) The ancillary objects of the acquisition
by the Future Fund Board of a financial asset as an investment of the Education
Investment Fund are to enhance the ability of the Commonwealth and the Future
Fund Board to:
(a) discharge costs, expenses,
obligations and liabilities; and
(b) make payments;
as mentioned in paragraphs 136(1)(f) to (l), 137(a) to (g)
and 138(a) to (g).
151
Investment of the Education Investment Fund
(1) The Future Fund Board may invest amounts
standing to the credit of the Education Investment Fund Special Account in any
financial assets.
(2) Investments under subsection (1) are
to be made in the name of the Future Fund Board.
(3) Investments under subsection (1) are
taken to be investments of the Education Investment Fund.
(4) This section does not authorise the
acquisition of a derivative.
Note: For acquisition of derivatives, see
section 161.
152
Education Investment Fund to inherit investments of the Higher Education
Endowment Fund
Scope
(1) This section applies to a financial asset
if:
(a) immediately before the
commencement of this section, the financial asset was an investment of the
Higher Education Endowment Fund; and
(b) the financial asset is held by the
Future Fund Board; and
(c) the financial asset has been
continuously held by the Future Fund Board since the commencement of this
section.
Note: The Higher Education Endowment Fund was
established by section 11 of the repealed Higher Education Endowment
Fund Act 2007.
Investment of the Education Investment Fund
(2) The financial asset is taken to be an
investment of the Education Investment Fund.
153
Management of investments of the Education Investment Fund
(1) Income derived from an investment of the
Education Investment Fund is to be credited to the Education Investment Fund
Special Account.
(2) A return of capital, or any other
financial distribution, relating to an investment of the Education Investment
Fund is to be credited to the Education Investment Fund Special Account.
(3) The Future Fund Board may realise an
investment of the Education Investment Fund.
(4) Upon realisation of an investment of the
Education Investment Fund, the proceeds of the investment are to be credited to
the Education Investment Fund Special Account.
(5) At any time before an investment of the
Education Investment Fund matures, the Future Fund Board may authorise the re‑investment
of the proceeds upon maturity in a financial asset investment with the same
entity. The new investment is taken to be an investment of the Education
Investment Fund.
(6) Section 39 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Education Investment Fund.
154
Education Investment Fund Investment Mandate
(1) The responsible Ministers may give the
Future Fund Board written directions about the performance of its Education
Investment Fund investment functions, and must give at least one such
direction.
Note 1: Education Investment Fund investment
function is defined in section 4.
Note 2: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) Subsection (1) has effect subject to
section 155.
(3) In giving a direction under
subsection (1), the responsible Ministers must have regard to:
(a) maximising the return earned on
the Education Investment Fund, consistent with international best practice for
institutional investment; and
(b) enhancing the Commonwealth’s
ability:
(i) to make payments in
relation to the creation or development of higher education infrastructure; and
(ii) to make payments in
relation to the creation or development of research infrastructure; and
(iii) to make payments in
relation to the creation or development of vocational education and training
infrastructure; and
(iv) to make payments in
relation to the creation or development of eligible education infrastructure;
and
(v) to make transitional
HEEF payments; and
(c) such other matters as the
responsible Ministers consider relevant.
(4) Directions under subsection (1) are
to be known collectively as the Education Investment Fund Investment
Mandate.
(5) A direction under subsection (1) may
set out the policies to be pursued by the Future Fund Board in relation to:
(a) matters of risk and return; and
(b) the allocation of financial
assets.
A policy relating to the allocation of financial assets
must not be inconsistent with a policy relating to matters of risk and return.
(6) Subsection (5) does not limit
subsection (1).
(7) Subsection (5) has effect subject to
section 155.
(8) The Education Investment Fund Investment
Mandate prevails over subsection (12) to the extent of any inconsistency.
(9) The responsible Ministers must not give a
direction under subsection (1) that is inconsistent with this Act (other
than subsection (12)).
(10) A direction under subsection (1) must
not take effect before the 15th day after the day on which it is given.
(11) A direction under subsection (1) is a
legislative instrument.
Note 1: Section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 44 of
that Act.
Note 2: Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 54 of
that Act.
(12) In the performance of its Education
Investment Fund investment functions, the Future Fund Board must seek to:
(a) maximise the return earned on the
Education Investment Fund, consistent with international best practice for
institutional investment; and
(b) enhance the Commonwealth’s
ability:
(i) to make payments in
relation to the creation or development of higher education infrastructure; and
(ii) to make payments in
relation to the creation or development of research infrastructure; and
(iii) to make payments in
relation to the creation or development of vocational education and training
infrastructure; and
(iv) to make payments in
relation to the creation or development of eligible education infrastructure;
and
(v) to make transitional
HEEF payments.
Note: Education Investment Fund investment
function is defined in section 4.
(13) Subsection (12) has effect subject
to:
(a) this Act; and
(b) a direction under
subsection (1).
155
Limitation on Education Investment Fund Investment Mandate
(1) The responsible Ministers must not give a
direction under subsection 154(1) that has the purpose, or has or is likely to
have the effect, of directly or indirectly requiring the Future Fund Board to:
(a) invest an amount standing to the
credit of the Education Investment Fund Special Account in a particular
financial asset; or
(b) acquire a particular derivative;
or
(c) allocate financial assets to:
(i) a particular business
entity; or
(ii) a particular activity;
or
(iii) a particular business.
(2) Paragraphs (1)(a) and (b) do not
limit paragraph (1)(c).
156
Future Fund Board to be consulted on Education Investment Fund Investment
Mandate
(1) Before giving the Future Fund Board a
direction under subsection 154(1), the responsible Ministers must:
(a) send a draft of the direction to
the Future Fund Board; and
(b) invite the Future Fund Board to
make a submission to the responsible Ministers on the draft direction within a
time limit specified by the responsible Ministers; and
(c) consider any submission that is
received from the Future Fund Board within that time limit.
(2) If:
(a) the responsible Ministers give the
Future Fund Board a direction under subsection 154(1); and
(b) the Future Fund Board made a
submission to the responsible Ministers on a draft of the direction within the
time limit specified by the responsible Ministers;
the submission is to be tabled in each House of the
Parliament with the direction.
Note: For tabling of the direction, see
section 38 of the Legislative Instruments Act 2003.
(3) A time limit specified under this section
must be reasonable.
157
Compliance with Education Investment Fund Investment Mandate
(1) The Future Fund Board must take all
reasonable steps to comply with the Education Investment Fund Investment Mandate.
(2) As soon as practicable after the Future
Fund Board becomes aware that it has failed to comply with the Education
Investment Fund Investment Mandate, the Future Fund Board must give the
responsible Ministers a written statement:
(a) informing the responsible
Ministers of the failure to comply with the Education Investment Fund
Investment Mandate; and
(b) setting out the action that the
Future Fund Board proposes to take in order to comply with the Education
Investment Fund Investment Mandate.
(3) If the responsible Ministers are
satisfied that the Future Fund Board has failed to comply with the Education
Investment Fund Investment Mandate, the responsible Ministers may, by written
notice given to the Future Fund Board, direct the Future Fund Board:
(a) to give the responsible Ministers,
within a period specified in the notice, a written explanation for the failure
to comply with the Education Investment Fund Investment Mandate; and
(b) to take action specified in the
notice, within a period specified in the notice, in order to comply with the
Education Investment Fund Investment Mandate.
(4) The Future Fund Board must comply with a
direction under subsection (3).
(5) A failure to comply with:
(a) the Education Investment Fund
Investment Mandate; or
(b) a direction under
subsection (3);
does not affect the validity of any transaction.
(6) A direction under subsection (3) is
not a legislative instrument.
158
Future Fund Board must not trigger the takeover provisions of the Corporations
Act 2001
(1) Subsections 606(1A) and (2A) and
section 611 of the Corporations Act 2001 do not apply to an
acquisition by the Future Fund Board if the acquisition is the result of the
performance by the Future Fund Board of its Education Investment Fund investment
functions.
(2) A failure by the Future Fund Board to
comply with section 606 of the Corporations Act 2001 (as modified
by this section) does not affect the validity of any transaction.
Note: See also section 39 of the Future Fund
Act 2006 (application of the Corporations Act 2001).
159
Borrowing
(1) The Future Fund Board must not borrow
money for a purpose in connection with the Education Investment Fund unless the
borrowing is authorised by subsection (2) or (3).
(2) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Education Investment Fund if:
(a) the purpose of the borrowing is to
enable the Future Fund Board to cover settlement of a transaction for the
acquisition of one or more financial assets; and
(b) at the time the relevant
acquisition decision was made, it was likely that the borrowing would not be
needed; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the Future Fund Board would not exceed 10%
of the balance of the Education Investment Fund.
(3) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Education Investment Fund if
the borrowing takes place in such circumstances (if any) as are specified in
the regulations.
160
Education Investment Fund investment policies
(1) The Future Fund Board must formulate
written policies to be complied with by it in relation to the following matters
in connection with the Education Investment Fund:
(a) the investment strategy for the
Education Investment Fund;
(b) benchmarks and standards for
assessing the performance of the Education Investment Fund;
(c) risk management for the Education
Investment Fund;
(d) a matter relating to international
best practice for institutional investment;
(e) a matter specified in the
regulations.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) The Future Fund Board must ensure that
policies formulated under subsection (1) are consistent with the Education
Investment Fund Investment Mandate.
Publication of policies
(3) The Future Fund Board must cause copies
of policies formulated under subsection (1) to be published on the
internet.
(4) The Future Fund Board must ensure that
the first set of policies formulated under subsection (1) is published on
the internet as soon as practicable after the commencement of this section.
Review of policies
(5) The Future Fund Board must conduct
periodic reviews of policies formulated under subsection (1).
(6) If there is a change in the Education
Investment Fund Investment Mandate, the Future Fund Board must review any
relevant policies formulated under subsection (1).
Compliance with policies
(7) The Future Fund Board must take all
reasonable steps to comply with policies formulated under subsection (1).
(8) A failure to comply with a policy
formulated under subsection (1) does not affect the validity of any
transaction.
Policies
(9) A policy formulated under subsection (1)
is not a legislative instrument.
161
Derivatives
(1) The Future Fund Board may acquire a
derivative for the purpose of:
(a) protecting the value of an
investment of the Education Investment Fund (other than a derivative); or
(b) protecting the return on an
investment of the Education Investment Fund (other than a derivative); or
(c) achieving indirect exposure to
financial assets (other than derivatives) for a purpose in connection with the
Education Investment Fund; or
(d) achieving transactional efficiency
for a purpose in connection with the Education Investment Fund;
but must not acquire a derivative for the purpose of:
(e) speculation; or
(f) leverage.
(2) The acquisition of a derivative under
subsection (1) must be consistent with the investment strategy embodied in
a policy formulated by the Future Fund Board under subsection 160(1).
(3) A derivative acquired under
subsection (1) is to be held in the name of the Future Fund Board.
(4) A derivative acquired under
subsection (1) is taken to be an investment of the Education Investment
Fund.
162
Additional financial assets
(1) If, as a result of:
(a) the Future Fund Board’s holding of
an investment of the Education Investment Fund; or
(b) the exercise of any rights or
powers conferred on the Future Fund Board in its capacity as the holder of an
investment of the Education Investment Fund;
the Future Fund Board becomes the holder of a financial
asset, that financial asset is taken to be an investment of the Education
Investment Fund.
Transitional—Higher Education Endowment Fund
(2) If, as a result of:
(a) the Future Fund Board’s holding of
an investment of the Higher Education Endowment Fund at a time before the
commencement of this section; or
(b) the exercise of any rights or powers
conferred on the Future Fund Board in its capacity as the holder of an
investment of the Higher Education Endowment Fund at a time before the
commencement of this section;
the Future Fund Board becomes the holder of a financial
asset at a time after the commencement of this section, that financial asset is
taken to be an investment of the Education Investment Fund.
163
Securities lending arrangements
(1) The Future Fund Board may enter into
securities lending arrangements for a purpose in connection with the Education
Investment Fund.
(2) Any money received by the Future Fund
Board under a securities lending arrangement entered into under
subsection (1) is to be credited to the Education Investment Fund Special
Account.
(3) To avoid doubt, a securities lending
arrangement entered into under subsection (1) may provide for the Future
Fund Board to realise an investment of the Education Investment Fund.
(4) If, as the result of the operation of a
securities lending arrangement entered into under subsection (1), the
Future Fund Board becomes the holder of a financial asset, that financial asset
is taken to be an investment of the Education Investment Fund.
164
Investment managers
(1) The Future Fund Board may engage one or
more investment managers for purposes in connection with the Education
Investment Fund.
(2) The Future Fund Board must not:
(a) invest amounts under subsection
151(1); or
(b) acquire derivatives under
subsection 161(1); or
(c) enter into a securities lending
arrangement under subsection 163(1); or
(d) realise financial assets that are
investments of the Education Investment Fund;
unless the Future Fund Board does so:
(e) through an investment manager
engaged by the Future Fund Board under subsection (1) of this section; or
(f) in a manner approved, in writing,
by the responsible Ministers.
(3) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) operates within this Act.
(4) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) reports to:
(a) the Future Fund Board; and
(b) the Agency;
on the state of the investments of the Education
Investment Fund at such times and in such manner as the Future Fund Board
determines.
165
Custody of securities
Section 40 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Education Investment Fund.
166
Refund of franking credits
If:
(a) the Future Fund Board receives a
refund of a tax offset under the Income Tax Assessment Act 1997; and
(b) the tax offset is attributable to
an investment of the Education Investment Fund;
the refund is to be credited to the Education Investment
Fund Special Account.
Note 1: See also section 84B of the Future Fund
Act 2006.
Note 2: For refunds of tax offsets, see
Division 63 of the Income Tax Assessment Act 1997.
167
Realisation of non‑financial assets
(1) If an asset held by the Future Fund Board
as an investment of the Education Investment Fund ceases to be a financial
asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware of
the cessation; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had remained a financial asset, and an investment of
the Education Investment Fund, until the realisation.
(2) If an asset acquired by the Future Fund
Board, purportedly as an investment of the Education Investment Fund, is not a
financial asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware that
the asset is not a financial asset; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had been a financial asset, and an investment of the
Education Investment Fund, from the time of its acquisition by the Future Fund
Board until the realisation.
168
Additional function of the Future Fund Board
The functions of the Future Fund Board
include the function of investing amounts in accordance with this Chapter.
Part 3.4—Payments
Division 1—Introduction
169
Simplified outline
The following is a simplified outline of
this Part:
• The Education Investment
Fund Advisory Board is established.
• The Education Investment
Fund Advisory Board is to advise the Education Minister about the following
matters:
(a) the making
of payments in relation to the creation or development of higher education
infrastructure;
(b) the making
of payments in relation to the creation or development of vocational education
and training infrastructure;
(c) the making
of payments in relation to the creation or development of eligible education
infrastructure.
• The Education Investment
Fund Advisory Board is to advise the Research Minister about the making of
payments in relation to the creation or development of research infrastructure.
• The Education Investment
Fund Advisory Board is to advise the EIF designated Ministers about the making
of transitional HEEF payments.
• The Finance Minister may
authorise:
(a) payments in
relation to the creation or development of higher education infrastructure; and
(b) payments in
relation to the creation or development of vocational education and training
infrastructure; and
(c) payments in
relation to the creation or development of eligible education infrastructure;
on the recommendation of
the Education Minister.
• The Finance Minister may
authorise payments in relation to the creation or development of research
infrastructure on the recommendation of the Research Minister.
• The Finance Minister may
authorise transitional HEEF payments on the recommendation of the EIF designated
Ministers.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• Payments may be channelled
through the EIF Education Portfolio Special Account or the EIF Research
Portfolio Special Account.
• Grants of financial
assistance to the States and Territories may be channelled through the COAG
Reform Fund.
• The Finance Minister must
comply with general drawing rights limits.
• The total amount of
payments made in each financial year will depend on the macroeconomic
circumstances.
Division 2—Education Investment Fund Advisory Board
170
Education Investment Fund Advisory Board
(1) The Education Investment Fund Advisory
Board is established.
(2) The EIF Advisory Board consists of such
persons as the EIF designated Ministers from time to time appoint, by writing,
to the EIF Advisory Board.
Note: EIF Advisory Board means the
Education Investment Fund Advisory Board—see section 4.
(3) A member of the EIF Advisory Board holds
office for the period specified in the instrument of appointment. The period
must not exceed 3 years.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
(4) A person is not eligible for appointment
to the EIF Advisory Board unless the EIF designated Ministers are satisfied
that the person has substantial experience or knowledge in a field relevant to
one or more of the EIF Advisory Board’s functions.
(5) The EIF designated Ministers may
terminate a person’s appointment to the EIF Advisory Board.
(6) The EIF designated Ministers may give the
EIF Advisory Board written directions as to:
(a) the way in which the EIF Advisory
Board is to carry out its functions; and
(b) procedures to be followed in
relation to meetings.
(7) A direction under subsection (6) is
not a legislative instrument.
171
Functions of the EIF Advisory Board
General functions
(1) The EIF Advisory Board has the following
functions:
(a) to advise the Education Minister
about matters referred to it by the Education Minister; and
(b) to advise the Research Minister
about matters referred to it by the Research Minister; and
(c) to advise the EIF designated
Ministers about matters referred to it by the EIF designated Ministers.
(2) Each matter referred to the EIF Advisory
Board under paragraph (1)(a) must be a matter that relates to:
(a) the making of payments in relation
to the creation or development of higher education infrastructure; or
(b) the making of payments in relation
to the creation or development of vocational education and training
infrastructure; or
(c) the making of payments in relation
to the creation or development of eligible education infrastructure.
(3) Each matter referred to the EIF Advisory
Board under paragraph (1)(b) must be a matter that relates to the making
of payments in relation to the creation or development of research
infrastructure.
(4) In giving advice under
paragraph (1)(a) or (b), the EIF Advisory Board must apply the EIF
evaluation criteria.
(5) Each matter referred to the EIF Advisory
Board under paragraph (1)(c) must be a matter that:
(a) relates to the object or operation
of this Chapter; and
(b) does not relate to the making of a
particular payment.
Functions relating to transitional HEEF payments
(6) The EIF Advisory Board also has the
function of advising the EIF designated Ministers about matters that:
(a) are referred to it by the EIF
designated Ministers before 1 July 2009; and
(b) relate to the making of
transitional HEEF payments.
(7) In giving advice under
subsection (6), the EIF Advisory Board must apply the provisions of the
document that:
(a) is entitled “Higher Education
Endowment Fund (HEEF) Application and Assessment Procedures for the 2009
Funding Round”; and
(b) was attached to the Higher
Education Endowment Fund Advisory Board Directions No. 1 of 2008 as in
force immediately before the commencement of this section;
subject to such modifications as are specified in the
regulations.
172
EIF evaluation criteria
(1) The EIF designated Ministers may, by
legislative instrument, formulate criteria (EIF evaluation criteria)
to be applied by the EIF Advisory Board in giving advice under paragraph
171(1)(a) or (b).
(2) The EIF evaluation criteria may provide
that the criteria to be applied by the EIF Advisory Board in giving advice
under paragraph 171(1)(a) may be different to the criteria to be applied by the
EIF Advisory Board in giving advice under paragraph 171(1)(b).
(3) Before formulating EIF evaluation
criteria, the EIF designated Ministers must consult the responsible Ministers.
(4) The EIF designated Ministers must ensure
that EIF evaluation criteria are in force at all times after the commencement
of this section.
173
Remuneration and allowances
(1) A member of the EIF Advisory Board is to
be paid the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the member
is to be paid the remuneration that is determined by the EIF designated
Ministers.
(2) A member of the EIF Advisory Board is to
be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
174
Disclosure of interests
(1) This section applies to a member of the
EIF Advisory Board who has a material personal interest in a matter being
considered, or about to be considered, by the EIF Advisory Board.
(2) The member must, as soon possible after
the relevant facts have come to the member’s knowledge:
(a) disclose the nature of the
interest at a meeting of the EIF Advisory Board; and
(b) disclose the nature of the
interest to the EIF designated Ministers.
(3) A disclosure under paragraph (2)(a)
must be recorded in the minutes of the meeting.
(4) The EIF designated Ministers must
terminate the appointment of a member of the EIF Advisory Board if the member
fails, without reasonable excuse, to comply with subsection (2).
(5) Subsection (4) does not limit subsection
170(5).
175
Resignation
(1) A member of the EIF Advisory Board may
resign his or her appointment by giving a written resignation to:
(a) the Education Minister; or
(b) the Research Minister.
(2) The resignation takes effect on the day
it is received by the Minister concerned or, if a later day is specified in the
resignation, on that later day.
Division 3—Direct payments
176
Authorisation of payments
(1) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of higher
education infrastructure.
(2) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of research
infrastructure.
(3) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of vocational
education and training infrastructure.
(4) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of eligible
education infrastructure.
(5) The Finance Minister may, by writing,
authorise a transitional HEEF payment.
(6) Subsections (1), (2), (3), (4) and
(5) do not limit each other.
(7) 2 or more authorisations under this
section may be set out in the same document.
(8) An instrument under subsection (1),
(2), (3), (4) or (5) is not a legislative instrument.
177
Recommendations about payments
Education infrastructure
(1) The Finance Minister must not authorise a
payment under subsection 176(1), (3) or (4) unless the Education Minister has
recommended the authorisation of the payment.
(2) The Education Minister must not make a
recommendation under subsection (1) in relation to a payment unless the
EIF Advisory Board has advised under paragraph 171(1)(a) that the payment
satisfies the relevant EIF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the
Education Minister must have regard to:
(a) advice about the payment that was
given to the Education Minister by the EIF Advisory Board under paragraph
171(1)(a); and
(b) such other matters (if any) as the
Education Minister considers relevant.
Research infrastructure
(4) The Finance Minister must not authorise a
payment under subsection 176(2) unless the Research Minister has recommended
the authorisation of the payment.
(5) The Research Minister must not make a
recommendation under subsection (4) in relation to a payment unless the
EIF Advisory Board has advised under paragraph 171(1)(b) that the payment
satisfies the relevant EIF evaluation criteria.
(6) In deciding whether to make a
recommendation under subsection (4) in relation to a payment, the Research
Minister must have regard to:
(a) advice about the payment that was
given to the Research Minister by the EIF Advisory Board under paragraph
171(1)(b); and
(b) such other matters (if any) as the
Research Minister considers relevant.
Transitional HEEF payments
(7) The Finance Minister must not authorise a
payment under subsection 176(5) unless the EIF designated Ministers have,
before 1 July 2009, recommended the authorisation of the payment.
(8) The EIF designated Ministers must not
make a recommendation under subsection (7) in relation to a payment unless
the EIF Advisory Board has given advice under subsection 171(6) about the
payment.
(9) In deciding whether to make a
recommendation under subsection (7) in relation to a payment, the EIF
designated Ministers must have regard to:
(a) advice about the payment that was
given to the EIF designated Ministers by the EIF Advisory Board under subsection
171(6); and
(b) such other matters (if any) as the
EIF designated Ministers consider relevant.
178
Grant to a State or Territory—education infrastructure etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Education Investment Fund Special Account for the purpose of making a
payment to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for a purpose
mentioned in paragraph 136(1)(c) or (d).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Education Minister on behalf of the Commonwealth.
179
Grant to a person other than a State or Territory—education infrastructure etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Education Investment Fund Special Account for the purpose of making a
payment to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for a purpose
mentioned in paragraph 136(1)(a), (c), (d) or (e).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Education Minister on behalf of the Commonwealth.
180
Grant to a person other than a State or Territory—research infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Education Investment Fund Special Account for the purpose of making a
payment to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 136(1)(b).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Research Minister on behalf of the Commonwealth.
Division 4—Channelling of payments through the EIF Education Portfolio
Special Account
181
Establishment of the EIF Education Portfolio Special Account
(1) The EIF Education Portfolio Special
Account is established by this section.
(2) The EIF Education Portfolio Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
182
Purposes of the EIF Education Portfolio Special Account
(1) Each of the following is a purpose of the
EIF Education Portfolio Special Account:
(a) making payments in relation to the
creation or development of higher education infrastructure, so long as the
payments are specified under subsection 183(2);
(b) making payments in relation to the
creation or development of vocational education and training infrastructure, so
long as the payments are specified under subsection 183(2);
(c) making payments in relation to the
creation or development of eligible education infrastructure, so long as the
payments are specified under subsection 183(2);
(d) making transitional HEEF payments,
so long as the payments are specified under subsection 183(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) Paragraphs (1)(a), (b), (c) and (d)
do not limit each other.
(3) A payment under paragraph (1)(a),
(b), (c) or (d) may be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
183
Channelling of payments through the EIF Education Portfolio Special Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the EIF Education
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the EIF
Education Portfolio Special Account:
(a) for the purpose of making a
specified payment in relation to the creation or development of higher
education infrastructure; or
(b) for the purpose of making a
specified payment in relation to the creation or development of vocational
education and training infrastructure; or
(c) for the purpose of making a
specified payment in relation to the creation or development of eligible
education infrastructure; or
(d) for the purpose of making a
specified transitional HEEF payment.
(3) Paragraphs (2)(a), (b), (c) and (d)
do not limit each other.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Education Minister.
184
Recommendations about payments—education infrastructure
Education infrastructure
(1) The following payments:
(a) a payment in relation to the
creation or development of higher education infrastructure;
(b) a payment in relation to the
creation or development of vocational education and training infrastructure;
(c) a payment in relation to the
creation or development of eligible education infrastructure;
must not be specified under subsection 183(2) unless the
Education Minister has recommended the specification of the payment.
(2) The Education Minister must not make a
recommendation under subsection (1) in relation to a payment unless the
EIF Advisory Board has advised under paragraph 171(1)(a) that the payment
satisfies the relevant EIF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the
Education Minister must have regard to:
(a) advice about the payment that was
given to the Education Minister by the EIF Advisory Board under paragraph
171(1)(a); and
(b) such other matters (if any) as the
Education Minister considers relevant.
Transitional HEEF payments
(4) A transitional HEEF payment must not be
specified under subsection 183(2) unless the EIF designated Ministers have,
before 1 July 2009, recommended the specification of the payment.
(5) The EIF designated Ministers must not
make a recommendation under subsection (4) in relation to a payment unless
the EIF Advisory Board has given advice under subsection 171(6) about the
payment.
(6) In deciding whether to make a
recommendation under subsection (4) in relation to a payment, the EIF
designated Ministers must have regard to:
(a) advice about the payment that was
given to the EIF designated Ministers by the EIF Advisory Board under
subsection 171(6); and
(b) such other matters (if any) as the
EIF designated Ministers consider relevant.
185
Payments—debit from the EIF Education Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 183(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the EIF Education Portfolio Special Account.
Debit from the EIF Education Portfolio Special Account
(2) The Education Minister must ensure that,
as soon as practicable after the amount is credited, the EIF Education
Portfolio Special Account is debited for the purposes of making the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the EIF Education
Portfolio Special Account; and
(b) credited to the Education
Investment Fund Special Account.
186
Grant to a State or Territory—education infrastructure etc.
Scope
(1) This section applies if an amount is to
be debited from the EIF Education Portfolio Special Account for the purpose of
making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Education Minister on behalf of the Commonwealth.
187
Grant to a person other than a State or Territory—education infrastructure etc.
Scope
(1) This section applies if:
(a) an amount is to be debited from
the EIF Education Portfolio Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Education Minister on behalf of the Commonwealth.
Division 5—Channelling of payments through the EIF Research Portfolio
Special Account
188
Establishment of the EIF Research Portfolio Special Account
(1) The EIF Research Portfolio Special
Account is established by this section.
(2) The EIF Research Portfolio Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
189
Purposes of the EIF Research Portfolio Special Account
(1) Each of the following is a purpose of the
EIF Research Portfolio Special Account:
(a) making payments in relation to the
creation or development of research infrastructure, so long as the payments are
specified under subsection 190(2);
(b) making transitional HEEF payments,
so long as the payments are specified under subsection 190(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) Paragraphs (1)(a) and (b) do not
limit each other.
(3) A payment under paragraph (1)(a) or
(b) may be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
190
Channelling of payments through the EIF Research Portfolio Special Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the EIF Research
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the EIF Research
Portfolio Special Account:
(a) for the purpose of making a
specified payment in relation to the creation or development of research
infrastructure; or
(b) for the purpose of making a
specified transitional HEEF payment.
(3) Paragraphs (2)(a) and (b) do not
limit each other.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Research Minister.
191
Recommendations about payments—research infrastructure and transitional HEEF
payments
Research infrastructure
(1) A payment in relation to the creation or
development of research infrastructure must not be specified under subsection
190(2) unless the Research Minister has recommended the specification of the
payment.
(2) The Research Minister must not make a
recommendation under subsection (1) in relation to a payment unless the
EIF Advisory Board has advised under paragraph 171(1)(b) that the payment
satisfies the relevant EIF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the Research
Minister must have regard to:
(a) advice about the payment that was
given to the Research Minister by the EIF Advisory Board under paragraph
171(1)(b); and
(b) such other matters (if any) as the
Research Minister considers relevant.
Transitional HEEF payments
(4) A transitional HEEF payment must not be
specified under subsection 190(2) unless the EIF designated Ministers have,
before 1 July 2009, recommended the specification of the payment.
(5) The EIF designated Ministers must not
make a recommendation under subsection (4) in relation to a payment unless
the EIF Advisory Board has given advice under subsection 171(6) about the
payment.
(6) In deciding whether to make a
recommendation under subsection (4) in relation to a payment, the EIF
designated Ministers must have regard to:
(a) advice about the payment that was
given to the EIF designated Ministers by the EIF Advisory Board under
subsection 171(6); and
(b) such other matters (if any) as the
EIF designated Ministers consider relevant.
192
Payments—debit from the EIF Research Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 190(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the EIF Research Portfolio Special Account.
Debit from the EIF Research Portfolio Special Account
(2) The Research Minister must ensure that,
as soon as practicable after the amount is credited, the EIF Research Portfolio
Special Account is debited for the purposes of making the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the EIF Research
Portfolio Special Account; and
(b) credited to the Education
Investment Fund Special Account.
193
Grant to a person other than a State or Territory—research infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the EIF Research Portfolio Special Account for the purpose of making a payment
to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Research Minister on behalf of the Commonwealth.
Division 6—Channelling of State/Territory grants payments through the
COAG Reform Fund
194
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Education
Investment Fund Special Account; and
(b) credited to the EIF Education
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the EIF Education
Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be:
(a) a grant of financial assistance to
a vocational education and training provider in relation to education
infrastructure; or
(b) a grant of financial assistance in
relation to a designated education infrastructure‑related matter.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Education
Minister.
195
Recommendations about grants payments
(1) A grant must not be specified under
subsection 194(2) unless the Education Minister has recommended the
specification of the grant.
(2) The Education Minister must not make a
recommendation under subsection (1) in relation to a grant unless the EIF
Advisory Board has advised under paragraph 171(1)(a) that the grant satisfies
the relevant EIF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the Education
Minister must have regard to:
(a) advice about the grant that was
given to the Education Minister by the EIF Advisory Board Australia under
paragraph 171(1)(a); and
(b) such other matters (if any) as the
Education Minister considers relevant.
196
Transfers from the EIF Education Portfolio Special Account to the COAG Reform
Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 194(1) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the EIF Education Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Education Minister must, by writing, direct that the amount is
to be:
(a) debited from the EIF Education
Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Education Minister must give a copy
of a direction under subsection (2) to the Treasurer.
197
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Education Minister gives a
direction under subsection 196(2) for a purpose in relation to a grant of
financial assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
198
Grant to a State or Territory—education infrastructure
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is covered by subsection
197(2).
Note: Subsection 197(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Education Minister on behalf of the Commonwealth.
Division 7—Total payments for a financial year
199
General drawing rights limit in relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—the Finance Minister declares in writing that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section; or
(b) in the case of a later financial
year—an Appropriation Act relating to the financial year declares that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section.
Issue of drawing rights
(2) The total amount covered by drawing
rights authorising the following debits in the financial year:
(a) the debit of an amount from the
Education Investment Fund Special Account for a purpose mentioned in paragraph
136(1)(a), (b), (c), (d) or (e);
(b) the debit of an amount from the
EIF Education Portfolio Special Account (other than a debit under
section 196);
(c) the debit of an amount from the
EIF Research Portfolio Special Account;
(d) the debit of an amount from the
COAG Reform Fund in accordance with subsection 197(2);
must not exceed the general drawing rights limit for the
financial year.
Declaration
(3) A declaration under paragraph (1)(a)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the declaration.
200
Drawing rights in relation to other financial years
The application of section 199 to a
particular financial year does not limit the drawing rights that may be issued
in relation to any other financial year.
201 No
drawing rights to be issued if there is no general drawing rights limit in
relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—no declaration is in force under paragraph
199(1)(a); or
(b) in the case of a later financial
year—no Appropriation Act relating to the financial year declares that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of section 199.
No drawing rights to be issued
(2) Drawing rights authorising any of the
following debits in the financial year must not be issued:
(a) the debit of an amount from the
Education Investment Fund Special Account for a purpose mentioned in paragraph
136(1)(a), (b), (c), (d) or (e);
(b) the debit of an amount from the
EIF Education Portfolio Special Account (other than a debit under
section 196);
(c) the debit of an amount from the
EIF Research Portfolio Special Account;
(d) the debit of an amount from the
COAG Reform Fund in accordance with subsection 197(2).
202
Total payments to depend primarily on the macroeconomic circumstances
Scope
(1) This section applies to the following
decisions:
(a) a decision to authorise a payment
under section 176, where the authorisation will result in a debit from the
Education Investment Fund Special Account in a financial year;
(b) a decision to give a direction
under subsection 183(1), where the direction will result in a debit from the
EIF Education Portfolio Fund in a financial year in accordance with subsection
185(2);
(c) a decision to give a direction
under subsection 190(1), where the direction will result in a debit from the
EIF Research Portfolio Fund in a financial year in accordance with subsection
192(2);
(d) a decision to give a direction
under subsection 194(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 197(2).
Macroeconomic circumstances
(2) In making the decision, the Finance
Minister must have regard to the principle that the total of the following
debits in the financial year:
(a) the debit of an amount from the
Education Investment Fund Special Account for a purpose mentioned in paragraph
136(1)(a), (b), (c), (d) or (e);
(b) the debit of an amount from the
EIF Education Portfolio Special Account (other than a debit under
section 196);
(c) the debit of an amount from the
EIF Research Portfolio Special Account;
(d) the debit of an amount from the
COAG Reform Fund in accordance with subsection 197(2);
should depend primarily on the macroeconomic
circumstances.
Part 3.5—Reporting obligations etc.
203
Finance Minister may require Future Fund Board to prepare reports or give
information
Reports
(1) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a report about one or more
specified matters relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the report to the
Finance Minister within the period specified in the notice.
Information
(2) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a document setting out
specified information relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the document to the
Finance Minister within the period specified in the notice.
Compliance
(3) The Future Fund Board must comply with a
requirement under subsection (1) or (2).
Publication of reports and documents
(4) The Finance Minister may cause to be
published (whether on the internet or otherwise):
(a) a report under
subsection (1); or
(b) a document under
subsection (2).
Reports and documents
(5) A report under subsection (1) is not
a legislative instrument.
(6) A document under subsection (2) is
not a legislative instrument.
204
Keeping the responsible Ministers informed etc.
(1) The Future Fund Board must keep the
responsible Ministers informed of the operations of the Future Fund Board under
this Chapter.
(2) The Future Fund Board must give the
Finance Minister such reports, documents and information in relation to those
operations as are appropriate.
205
Finance Minister may give reports to other Ministers etc.
The Finance Minister may give:
(a) the Treasurer; or
(b) the Education Minister; or
(c) the Research Minister;
any of the following:
(d) a report under subsection 203(1)
or 204(2);
(e) a document under subsection 203(2)
or 204(2);
(f) any other information or document
obtained by the Finance Minister under this Chapter.
Part 3.6—Miscellaneous
206
Investment provisions do not apply to certain assets
Scope
(1) This section applies to an asset if:
(a) the asset is:
(i) a share; or
(ii) a debenture; or
(iii) a unit in a unit
trust; or
(iv) any other financial
asset; and
(b) the asset is held by the
Commonwealth; and
(c) the asset was acquired:
(i) using money debited
from the Education Investment Fund Special Account for the purpose mentioned in
paragraph 136(1)(a), (b), (c) or (d); or
(ii) using money debited
from the EIF Education Portfolio Special Account; or
(iii) using money debited
from the EIF Research Portfolio Special Account.
Investment provisions do not apply
(2) Part 3.3 does not apply in relation
to the asset.
(3) Section 39 of the Financial
Management and Accountability Act 1997 does not apply in relation to the
asset.
207
Delegation by the Finance Minister
Department
(1) The Finance Minister may, by writing,
delegate any or all of his or her functions or powers under section 146,
147, 148, 176, 183, 190 or 194 to:
(a) the Secretary of the Finance
Department; or
(b) an SES employee, or acting SES
employee, in the Finance Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
Agency
(3) The Finance Minister may, by writing,
delegate any or all of his or her powers under section 146, 147 or 148 to:
(a) the Chair; or
(b) an SES employee, or acting SES
employee, in the Agency.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(4) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
208
Delegation by the Treasurer
The Treasurer may, by writing, delegate
any or all of his or her functions under subsection 197(2) to:
(a) the Secretary of the Treasury
Department; or
(b) an SES employee, or acting SES
employee, in the Treasury Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
209
Delegation by the Education Minister
(1) The Education Minister may, by writing,
delegate any or all of his or her functions or powers under section 178,
179, 185, 186, 187, 196 or 198 to:
(a) the Secretary of the Education
Department; or
(b) an SES employee, or acting SES
employee, in the Education Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Education Minister.
210
Delegation by the Research Minister
(1) The Research Minister may, by writing,
delegate any or all of his or her functions or powers under section 180,
192 or 193 to:
(a) the Secretary of the Research
Department; or
(b) an SES employee, or acting SES
employee, in the Research Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Research Minister.
Chapter 4—Health and Hospitals Fund
Part 4.1—Introduction
211
Object
The object of this Chapter is to enhance
the Commonwealth’s ability to make payments in relation to the creation or
development of health infrastructure.
212
Simplified outline
The following is a simplified outline of
this Chapter:
• This Chapter sets up the
Health and Hospitals Fund, which consists of:
(a) the Health
and Hospitals Fund Special Account; and
(b) the
investments of the Health and Hospitals Fund.
• The main purpose of the
Health and Hospitals Fund Special Account is to make payments in relation to
the creation or development of health infrastructure.
• The Finance Minister is
responsible for authorising payments on the recommendation of the Health
Minister.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• The Future Fund Board is
responsible for deciding how to invest the Health and Hospitals Fund.
• Investments of the Health
and Hospitals Fund will consist of financial assets.
• The Future Fund Board is
bound by a Health and Hospitals Fund Investment Mandate given to it by the
responsible Ministers.
Note: The Future Fund Act 2006 provides that
the Future Fund Management Agency is responsible for assisting and advising the
Future Fund Board.
Part 4.2—Health and Hospitals Fund
Division 1—Introduction
213
Simplified outline
The following is a simplified outline of
this Part:
• This Part sets up the
Health and Hospitals Fund.
• The Health and Hospitals
Fund consists of:
(a) the Health
and Hospitals Fund Special Account; and
(b) the
investments of the Health and Hospitals Fund.
• One or more initial amounts
are to be credited to the Health and Hospitals Fund Special Account by
30 June 2009. The total of the initial amounts must equal $5 billion.
• The responsible Ministers
may determine that additional amounts are to be credited to the Health and
Hospitals Fund Special Account.
• Amounts may be debited from
the Health and Hospitals Fund Special Account in accordance with the purposes
of the Health and Hospitals Fund Special Account.
• The main purpose of the
Health and Hospitals Fund Special Account is to make payments in relation to
the creation or development of health infrastructure.
Division 2—Establishment of the Health and Hospitals Fund etc.
214
Establishment of the Health and Hospitals Fund
(1) The Health and Hospitals Fund is
established by this section.
(2) The Health and Hospitals Fund consists
of:
(a) the Health and Hospitals Fund
Special Account; and
(b) the investments of the Health and
Hospitals Fund.
215
Establishment of the Health and Hospitals Fund Special Account
(1) The Health and Hospitals Fund Special
Account is established by this section.
(2) The Health and Hospitals Fund Special
Account is a Special Account for the purposes of the Financial Management
and Accountability Act 1997.
Note: An Appropriation Act may contain a provision
to the effect that, if any of the purposes of a Special Account is a purpose
that is covered by an item in the Appropriation Act (whether or not the item
expressly refers to the Special Account), then amounts may be debited against
the appropriation for that item and credited to that Special Account.
Division 3—Credits of amounts to the Health and Hospitals Fund
216
Initial credits of amounts to the Health and Hospitals Fund Special Account
(1) The responsible Ministers may, by
writing, determine that:
(a) a specified amount is to be
credited to the Health and Hospitals Fund Special Account on a specified day;
or
(b) a specified amount is to be
credited to the Health and Hospitals Fund Special Account in specified
instalments on specified days.
(2) The responsible Ministers must ensure
that, by the end of 30 June 2009, the total of the amounts credited to the
Health and Hospitals Fund Special Account under subsection (1) equals $5
billion.
(3) The responsible Ministers must not make a
determination under subsection (1) after 30 June 2009.
(4) A determination under subsection (1)
is irrevocable.
(5) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
217
Subsequent credits of amounts to the Health and Hospitals Fund Special
Account—determinations by the responsible Ministers
(1) The responsible Ministers may, by
writing, determine that:
(a) a specified amount is to be
credited to the Health and Hospitals Fund Special Account on a specified day;
or
(b) a specified amount is to be
credited to the Health and Hospitals Fund Special Account in specified instalments
on specified days.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) In making a determination under
subsection (1), the responsible Ministers must have regard to the object
of this Chapter.
(3) A determination under subsection (1)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the determination.
Division 4—Debits of amounts from the Health and Hospitals Fund
218
Purposes of the Health and Hospitals Fund Special Account—payments purposes and
purposes related exclusively to the Health and Hospitals Fund
(1) Each of the following is a purpose of the
Health and Hospitals Fund Special Account:
(a) making payments in relation to the
creation or development of health infrastructure, so long as the payments are
authorised under subsection 251(1);
(b) paying the costs of, or incidental
to, the acquisition of financial assets under section 227;
(c) paying expenses of an investment of
the Health and Hospitals Fund;
(d) paying the costs of, or incidental
to, the acquisition of derivatives under section 236;
(e) paying or discharging the costs,
expenses and other obligations incurred by the Future Fund Board under a
contract between the Future Fund Board and an investment manager engaged under
subsection 239(1);
(f) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where the
bank account relates exclusively to the Health and Hospitals Fund;
(g) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board exclusively in
connection with the Health and Hospitals Fund;
(h) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board
exclusively in connection with the Health and Hospitals Fund.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) A payment under paragraph (1)(a) may
be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
Note 1: Section 257 deals with the channelling of
payments through the HHF Health Portfolio Special Account.
Note 2: Section 262 deals with channelling of
State/Territory grants payments through the COAG Reform Fund.
219
Purposes of the Health and Hospitals Fund Special Account—purposes not related
exclusively to the Health and Hospitals Fund
Each of the following is a purpose of
the Health and Hospitals Fund Special Account:
(a) paying or discharging the costs,
expenses and other obligations incurred in connection with the establishment,
maintenance or operation of a bank account of the Future Fund Board, where
those costs, expenses or obligations are not covered by:
(i) paragraph 18(1)(j); or
(ii) paragraph 136(1)(j);
or
(iii) paragraph 137(e); or
(iv) paragraph 218(1)(f); or
(v) paragraph 2(1)(g) of
Schedule 2 to the Future Fund Act 2006;
(b) paying a premium in respect of a
contract of insurance entered into by the Future Fund Board, where the premium
is not covered by:
(i) paragraph 18(1)(k); or
(ii) paragraph 136(1)(k);
or
(iii) paragraph 137(f); or
(iv) paragraph 218(1)(g); or
(v) paragraph 2(1)(h) of
Schedule 2 to the Future Fund Act 2006;
(c) paying or discharging any other
costs, expenses, obligations or liabilities incurred by the Future Fund Board,
where the costs, expenses, obligations or liabilities are not covered by:
(i) a paragraph of
subsection 18(1); or
(ii) a paragraph of
subsection 136(1); or
(iii) a paragraph of
section 137; or
(iv) a paragraph of
subsection 218(1); or
(v) a paragraph of
subclause 2(1) of Schedule 2 to the Future Fund Act 2006;
(d) paying remuneration and allowances
of Future Fund Board members;
(e) paying remuneration, and other
employment‑related costs and expenses, in respect of members of the staff
of the Agency;
(f) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth under a contract
entered into under section 78 or 82 of the Future Fund Act 2006;
(g) paying or discharging the costs,
expenses and other obligations incurred by the Commonwealth in connection with
the operation of the Agency.
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
220
Extended meaning of payment in relation to the creation or development of
health infrastructure
For the purposes of this Act, each of
the following payments is taken to be a payment in relation to the
creation or development of health infrastructure:
(a) a payment in relation to the
acquisition of shares in a company that is, or will be, involved in the
creation or development of health infrastructure;
(b) a payment in relation to the
acquisition of debentures of a company that is, or will be, involved in the
creation or development of health infrastructure;
(c) a payment in relation to the
acquisition of units in a unit trust that is, or will be, involved in the
creation or development of health infrastructure;
(d) a payment in relation to the
acquisition of any other financial asset in a business entity that is, or will
be, involved in the creation or development of health infrastructure;
(e) a payment in relation to a matter
incidental or ancillary to a matter set out in paragraph (a), (b), (c) or
(d).
Note: See section 274.
221
Future Fund Board must ensure that there is sufficient money in the Health and
Hospitals Fund Special Account to cover authorised payments etc.
The Future Fund Board must take all
reasonable steps to ensure that the amount of money standing to the credit of
the Health and Hospitals Fund Special Account is sufficient to cover:
(a) the debit of amounts for payments
authorised, or proposed to be authorised, under subsection 251(1); and
(b) amounts debited, or proposed to be
debited, under subsection 257(1); and
(c) amounts debited, or proposed to be
debited, under subsection 262(1).
Note: This may require the Future Fund Board to
realise an investment of the Health and Hospitals Fund in accordance with
section 228.
Division 5—Inter‑fund transfers
222
Transfers from the Health and Hospitals Fund to the Future Fund
(1) If an amount is debited from the Future
Fund Special Account for a purpose mentioned in subclause 2(2) of
Schedule 2 to the Future Fund Act 2006, the Finance Minister may,
by writing, direct that a specified amount is to be:
(a) debited from the Health and
Hospitals Fund Special Account; and
(b) credited to the Future Fund
Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Future Fund Special Account as mentioned in
subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
223
Transfers from the Health and Hospitals Fund to the Building Australia Fund
(1) If an amount is debited from the Building
Australia Fund Special Account for a purpose mentioned in section 20, the
Finance Minister may, by writing, direct that a specified amount is to be:
(a) debited from the Health and
Hospitals Fund Special Account; and
(b) credited to the Building Australia
Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Building Australia Fund Special Account as mentioned in
subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
224
Transfers from the Health and Hospitals Fund to the Education Investment Fund
(1) If an amount is debited from the
Education Investment Fund Special Account for a purpose mentioned in
section 138, the Finance Minister may, by writing, direct that a specified
amount is to be:
(a) debited from the Health and
Hospitals Fund Special Account; and
(b) credited to the Education
Investment Fund Special Account;
on a specified day.
(2) The specified amount must not exceed the
amount debited from the Education Investment Fund Special Account as mentioned
in subsection (1).
(3) A direction under subsection (1) is
not a legislative instrument.
Part 4.3—Investment of the Health and Hospitals Fund
225
Simplified outline
The following is a simplified outline of
this Part:
• The Future Fund Board is
responsible for deciding how to invest the Health and Hospitals Fund.
• Investments of the Health
and Hospitals Fund will consist of financial assets.
• Investments of the Health
and Hospitals Fund will be held in the name of the Future Fund Board.
• The Future Fund Board is
bound by a Health and Hospitals Fund Investment Mandate given to it by the
responsible Ministers.
226
Objects of investment of the Health and Hospitals Fund
(1) The main object of the acquisition by the
Future Fund Board of a financial asset as an investment of the Health and
Hospitals Fund is to enhance the Commonwealth’s ability to make payments in
relation to the creation or development of health infrastructure.
(2) The ancillary objects of the acquisition
by the Future Fund Board of a financial asset as an investment of the Health
and Hospitals Fund are to enhance the ability of the Commonwealth and the
Future Fund Board to:
(a) discharge costs, expenses,
obligations and liabilities; and
(b) make payments;
as mentioned in paragraphs 218(1)(b) to (h) and 219(a) to
(g).
227
Investment of the Health and Hospitals Fund
(1) The Future Fund Board may invest amounts
standing to the credit of the Health and Hospitals Fund Special Account in any
financial assets.
(2) Investments under subsection (1) are
to be made in the name of the Future Fund Board.
(3) Investments under subsection (1) are
taken to be investments of the Health and Hospitals Fund.
(4) This section does not authorise the
acquisition of a derivative.
Note: For acquisition of derivatives, see
section 236.
228
Management of investments of the Health and Hospitals Fund
(1) Income derived from an investment of the
Health and Hospitals Fund is to be credited to the Health and Hospitals Fund
Special Account.
(2) A return of capital, or any other
financial distribution, relating to an investment of the Health and Hospitals
Fund is to be credited to the Health and Hospitals Fund Special Account.
(3) The Future Fund Board may realise an
investment of the Health and Hospitals Fund.
(4) Upon realisation of an investment of the
Health and Hospitals Fund, the proceeds of the investment are to be credited to
the Health and Hospitals Fund Special Account.
(5) At any time before an investment of the
Health and Hospitals Fund matures, the Future Fund Board may authorise the re‑investment
of the proceeds upon maturity in a financial asset investment with the same
entity. The new investment is taken to be an investment of the Health and
Hospitals Fund.
(6) Section 39 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Health and Hospitals Fund.
229
Health and Hospitals Fund Investment Mandate
(1) The responsible Ministers may give the
Future Fund Board written directions about the performance of its Health and
Hospitals Fund investment functions, and must give at least one such direction.
Note 1: Health and Hospitals Fund investment
function is defined in section 4.
Note 2: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) Subsection (1) has effect subject to
section 230.
(3) In giving a direction under
subsection (1), the responsible Ministers must have regard to:
(a) maximising the return earned on
the Health and Hospitals Fund, consistent with international best practice for
institutional investment; and
(b) enhancing the Commonwealth’s
ability to make payments in relation to the creation or development of health
infrastructure; and
(c) such other matters as the
responsible Ministers consider relevant.
(4) Directions under subsection (1) are
to be known collectively as the Health and Hospitals Fund Investment
Mandate.
(5) A direction under subsection (1) may
set out the policies to be pursued by the Future Fund Board in relation to:
(a) matters of risk and return; and
(b) the allocation of financial
assets.
A policy relating to the allocation of financial assets
must not be inconsistent with a policy relating to matters of risk and return.
(6) Subsection (5) does not limit
subsection (1).
(7) Subsection (5) has effect subject to
section 230.
(8) The Health and Hospitals Fund Investment
Mandate prevails over subsection (12) to the extent of any inconsistency.
(9) The responsible Ministers must not give a
direction under subsection (1) that is inconsistent with this Act (other
than subsection (12)).
(10) A direction under subsection (1) must
not take effect before the 15th day after the day on which it is given.
(11) A direction under subsection (1) is a
legislative instrument.
Note 1: Section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 44 of
that Act.
Note 2: Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 54 of
that Act.
(12) In the performance of its Health and
Hospitals Fund investment functions, the Future Fund Board must seek to:
(a) maximise the return earned on the
Health and Hospitals Fund, consistent with international best practice for
institutional investment; and
(b) enhance the Commonwealth’s ability
to make payments in relation to the creation or development of health
infrastructure.
Note: Health and Hospitals Fund investment
function is defined in section 4.
(13) Subsection (12) has effect subject
to:
(a) this Act; and
(b) a direction under
subsection (1).
230
Limitation on Health and Hospitals Fund Investment Mandate
(1) The responsible Ministers must not give a
direction under subsection 229(1) that has the purpose, or has or is likely to
have the effect, of directly or indirectly requiring the Future Fund Board to:
(a) invest an amount standing to the
credit of the Health and Hospitals Fund Special Account in a particular
financial asset; or
(b) acquire a particular derivative;
or
(c) allocate financial assets to:
(i) a particular business
entity; or
(ii) a particular activity;
or
(iii) a particular business.
(2) Paragraphs (1)(a) and (b) do not
limit paragraph (1)(c).
231
Future Fund Board to be consulted on Health and Hospitals Fund Investment
Mandate
(1) Before giving the Future Fund Board a
direction under subsection 229(1), the responsible Ministers must:
(a) send a draft of the direction to
the Future Fund Board; and
(b) invite the Future Fund Board to
make a submission to the responsible Ministers on the draft direction within a
time limit specified by the responsible Ministers; and
(c) consider any submission that is
received from the Future Fund Board within that time limit.
(2) If:
(a) the responsible Ministers give the
Future Fund Board a direction under subsection 229(1); and
(b) the Future Fund Board made a
submission to the responsible Ministers on a draft of the direction within the
time limit specified by the responsible Ministers;
the submission is to be tabled in each House of the
Parliament with the direction.
Note: For tabling of the direction, see
section 38 of the Legislative Instruments Act 2003.
(3) A time limit specified under this section
must be reasonable.
232
Compliance with Health and Hospitals Fund Investment Mandate
(1) The Future Fund Board must take all
reasonable steps to comply with the Health and Hospitals Fund Investment
Mandate.
(2) As soon as practicable after the Future
Fund Board becomes aware that it has failed to comply with the Health and
Hospitals Fund Investment Mandate, the Future Fund Board must give the
responsible Ministers a written statement:
(a) informing the responsible
Ministers of the failure to comply with the Health and Hospitals Fund
Investment Mandate; and
(b) setting out the action that the
Future Fund Board proposes to take in order to comply with the Health and
Hospitals Fund Investment Mandate.
(3) If the responsible Ministers are
satisfied that the Future Fund Board has failed to comply with the Health and
Hospitals Fund Investment Mandate, the responsible Ministers may, by written
notice given to the Future Fund Board, direct the Future Fund Board:
(a) to give the responsible Ministers,
within a period specified in the notice, a written explanation for the failure
to comply with the Health and Hospitals Fund Investment Mandate; and
(b) to take action specified in the
notice, within a period specified in the notice, in order to comply with the
Health and Hospitals Fund Investment Mandate.
(4) The Future Fund Board must comply with a
direction under subsection (3).
(5) A failure to comply with:
(a) the Health and Hospitals Fund
Investment Mandate; or
(b) a direction under
subsection (3);
does not affect the validity of any transaction.
(6) A direction under subsection (3) is
not a legislative instrument.
233
Future Fund Board must not trigger the takeover provisions of the Corporations
Act 2001
(1) Subsections 606(1A) and (2A) and
section 611 of the Corporations Act 2001 do not apply to an
acquisition by the Future Fund Board if the acquisition is the result of the
performance by the Future Fund Board of its Health and Hospitals Fund
investment functions.
(2) A failure by the Future Fund Board to
comply with section 606 of the Corporations Act 2001 (as modified
by this section) does not affect the validity of any transaction.
Note: See also section 39 of the Future Fund
Act 2006 (application of the Corporations Act 2001).
234
Borrowing
(1) The Future Fund Board must not borrow
money for a purpose in connection with the Health and Hospitals Fund unless the
borrowing is authorised by subsection (2) or (3).
(2) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Health and Hospitals Fund if:
(a) the purpose of the borrowing is to
enable the Future Fund Board to cover settlement of a transaction for the
acquisition of one or more financial assets; and
(b) at the time the relevant
acquisition decision was made, it was likely that the borrowing would not be
needed; and
(c) the period of the borrowing does
not exceed 7 days; and
(d) if the borrowing were to take
place, the total amount borrowed by the Future Fund Board would not exceed 10%
of the balance of the Health and Hospitals Fund.
(3) The Future Fund Board is authorised to
borrow money for a purpose in connection with the Health and Hospitals Fund if
the borrowing takes place in such circumstances (if any) as are specified in
the regulations.
235
Health and Hospitals Fund investment policies
(1) The Future Fund Board must formulate
written policies to be complied with by it in relation to the following matters
in connection with the Health and Hospitals Fund:
(a) the investment strategy for the
Health and Hospitals Fund;
(b) benchmarks and standards for
assessing the performance of the Health and Hospitals Fund;
(c) risk management for the Health and
Hospitals Fund;
(d) a matter relating to international
best practice for institutional investment;
(e) a matter specified in the
regulations.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) The Future Fund Board must ensure that
policies formulated under subsection (1) are consistent with the Health
and Hospitals Fund Investment Mandate.
Publication of policies
(3) The Future Fund Board must cause copies
of policies formulated under subsection (1) to be published on the
internet.
(4) The Future Fund Board must ensure that
the first set of policies formulated under subsection (1) is published on
the internet as soon as practicable after the commencement of this section.
Review of policies
(5) The Future Fund Board must conduct
periodic reviews of policies formulated under subsection (1).
(6) If there is a change in the Health and
Hospitals Fund Investment Mandate, the Future Fund Board must review any
relevant policies formulated under subsection (1).
Compliance with policies
(7) The Future Fund Board must take all
reasonable steps to comply with policies formulated under subsection (1).
(8) A failure to comply with a policy
formulated under subsection (1) does not affect the validity of any
transaction.
Policies
(9) A policy formulated under
subsection (1) is not a legislative instrument.
236
Derivatives
(1) The Future Fund Board may acquire a
derivative for the purpose of:
(a) protecting the value of an
investment of the Health and Hospitals Fund (other than a derivative); or
(b) protecting the return on an
investment of the Health and Hospitals Fund (other than a derivative); or
(c) achieving indirect exposure to
financial assets (other than derivatives) for a purpose in connection with the
Health and Hospitals Fund; or
(d) achieving transactional efficiency
for a purpose in connection with the Health and Hospitals Fund;
but must not acquire a derivative for the purpose of:
(e) speculation; or
(f) leverage.
(2) The acquisition of a derivative under
subsection (1) must be consistent with the investment strategy embodied in
a policy formulated by the Future Fund Board under subsection 235(1).
(3) A derivative acquired under
subsection (1) is to be held in the name of the Future Fund Board.
(4) A derivative acquired under
subsection (1) is taken to be an investment of the Health and Hospitals
Fund.
237
Additional financial assets
If, as a result of:
(a) the Future Fund Board’s holding of
an investment of the Health and Hospitals Fund; or
(b) the exercise of any rights or
powers conferred on the Future Fund Board in its capacity as the holder of an
investment of the Health and Hospitals Fund;
the Future Fund Board becomes the holder of a financial
asset, that financial asset is taken to be an investment of the Health and
Hospitals Fund.
238
Securities lending arrangements
(1) The Future Fund Board may enter into
securities lending arrangements for a purpose in connection with the Health and
Hospitals Fund.
(2) Any money received by the Future Fund
Board under a securities lending arrangement entered into under
subsection (1) is to be credited to the Health and Hospitals Fund Special
Account.
(3) To avoid doubt, a securities lending
arrangement entered into under subsection (1) may provide for the Future
Fund Board to realise an investment of the Health and Hospitals Fund.
(4) If, as the result of the operation of a
securities lending arrangement entered into under subsection (1), the
Future Fund Board becomes the holder of a financial asset, that financial asset
is taken to be an investment of the Health and Hospitals Fund.
239
Investment managers
(1) The Future Fund Board may engage one or
more investment managers for purposes in connection with the Health and
Hospitals Fund.
(2) The Future Fund Board must not:
(a) invest amounts under subsection
227(1); or
(b) acquire derivatives under
subsection 236(1); or
(c) enter into a securities lending
arrangement under subsection 238(1); or
(d) realise financial assets that are
investments of the Health and Hospitals Fund;
unless the Future Fund Board does so:
(e) through an investment manager
engaged by the Future Fund Board under subsection (1) of this section; or
(f) in a manner approved, in writing,
by the responsible Ministers.
(3) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) operates within this Act.
(4) The Future Fund Board must ensure that
any investment manager engaged by the Future Fund Board under
subsection (1) reports to:
(a) the Future Fund Board; and
(b) the Agency;
on the state of the investments of the Health and
Hospitals Fund at such times and in such manner as the Future Fund Board
determines.
240
Custody of securities
Section 40 of the Financial
Management and Accountability Act 1997 does not apply to an investment of
the Health and Hospitals Fund.
241
Refund of franking credits
If:
(a) the Future Fund Board receives a
refund of a tax offset under the Income Tax Assessment Act 1997; and
(b) the tax offset is attributable to
an investment of the Health and Hospitals Fund;
the refund is to be credited to the Health and Hospitals
Fund Special Account.
Note 1: See also section 84B of the Future Fund
Act 2006.
Note 2: For refunds of tax offsets, see
Division 63 of the Income Tax Assessment Act 1997.
242
Realisation of non‑financial assets
(1) If an asset held by the Future Fund Board
as an investment of the Health and Hospitals Fund ceases to be a financial
asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware of
the cessation; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had remained a financial asset, and an investment of
the Health and Hospitals Fund, until the realisation.
(2) If an asset acquired by the Future Fund
Board, purportedly as an investment of the Health and Hospitals Fund, is not a
financial asset:
(a) the Future Fund Board must realise
the asset as soon as practicable after the Future Fund Board becomes aware that
the asset is not a financial asset; and
(b) this Act (other than this section)
applies in relation to the asset (including in relation to the realisation of
the asset) as if the asset had been a financial asset, and an investment of the
Health and Hospitals Fund, from the time of its acquisition by the Future Fund
Board until the realisation.
243
Additional function of the Future Fund Board
The functions of the Future Fund Board
include the function of investing amounts in accordance with this Chapter.
Part 4.4—Payments
Division 1—Introduction
244
Simplified outline
The following is a simplified outline of
this Part:
• The Health and Hospitals
Fund Advisory Board is established.
• The function of the Health
and Hospitals Fund Advisory Board is to advise the Health Minister about the
making of payments in relation to the creation or development of health
infrastructure.
• The Finance Minister may
authorise payments in relation to the creation or development of health
infrastructure on the recommendation of the Health Minister.
• If a payment is made by way
of a grant of financial assistance, the terms and conditions on which the
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the recipient.
• Payments may be channelled
through the HHF Health Portfolio Special Account.
• Grants of financial
assistance to the States and Territories may be channelled through the COAG
Reform Fund.
• The Finance Minister must
comply with general drawing rights limits.
• The total amount of
payments made in each financial year will depend on the macroeconomic
circumstances.
Division 2—Health and Hospitals Fund Advisory Board
245
Health and Hospitals Fund Advisory Board
(1) The Health and Hospitals Fund Advisory
Board is established.
(2) The HHF Advisory Board consists of such
persons as the Health Minister from time to time appoints, by writing, to the HHF
Advisory Board.
Note: HHF Advisory Board means the
Health and Hospitals Fund Advisory Board—see section 4.
(3) A member of the HHF Advisory Board holds
office for the period specified in the instrument of appointment. The period
must not exceed 3 years.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
(4) A person is not eligible for appointment
to the HHF Advisory Board unless the Health Minister is satisfied that the
person has substantial experience or knowledge in a field relevant to the HHF
Advisory Board’s function.
(5) The Health Minister may terminate a
person’s appointment to the HHF Advisory Board.
(6) The Health Minister may give the HHF
Advisory Board written directions as to:
(a) the way in which the HHF Advisory
Board is to carry out its functions; and
(b) procedures to be followed in
relation to meetings.
(7) A direction under subsection (6) is
not a legislative instrument.
246
Functions of the HHF Advisory Board
(1) The functions of the HHF Advisory Board
are:
(a) to advise the Health Minister
about matters that:
(i) are referred to it by
the Health Minister; and
(ii) relate to the making
of payments in relation to the creation or development of health
infrastructure; and
(b) to advise the Health Minister
about matters that:
(i) are referred to it by
the Health Minister; and
(ii) relate to the object
or operation of this Chapter; and
(iii) do not relate to the
making of particular payments.
(2) In giving advice under
paragraph (1)(a), the HHF Advisory Board must apply the HHF evaluation
criteria.
247
HHF evaluation criteria
(1) The Health Minister may, by legislative
instrument, formulate criteria (HHF evaluation criteria) to be
applied by the HHF Advisory Board in giving advice under paragraph 246(1)(a).
(2) Before formulating HHF evaluation
criteria, the Health Minister must consult the responsible Ministers.
(3) The Health Minister must ensure that HHF
evaluation criteria are in force at all times after the commencement of this
section.
248
Remuneration and allowances
(1) A member of the HHF Advisory Board is to
be paid the remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the member
is to be paid the remuneration that is determined by the Health Minister.
(2) A member of the HHF Advisory Board is to
be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
249
Disclosure of interests
(1) This section applies to a member of the
HHF Advisory Board who has a material personal interest in a matter being
considered, or about to be considered, by the HHF Advisory Board.
(2) The member must, as soon possible after
the relevant facts have come to the member’s knowledge:
(a) disclose the nature of the
interest at a meeting of the HHF Advisory Board; and
(b) disclose the nature of the
interest to the Health Minister.
(3) A disclosure under paragraph (2)(a)
must be recorded in the minutes of the meeting.
(4) The Health Minister must terminate the
appointment of a member of the HHF Advisory Board if the member fails, without
reasonable excuse, to comply with subsection (2).
(5) Subsection (4) does not limit
subsection 245(5).
250
Resignation
(1) A member of the HHF Advisory Board may
resign his or her appointment by giving the Health Minister a written
resignation.
(2) The resignation takes effect on the day
it is received by the Health Minister or, if a later day is specified in the
resignation, on that later day.
Division 3—Direct payments
251
Authorisation of payments
(1) The Finance Minister may, by writing,
authorise a payment in relation to the creation or development of health
infrastructure.
(2) 2 or more authorisations under subsection (1)
may be set out in the same document.
(3) An instrument under subsection (1)
is not a legislative instrument.
252
Recommendations about payments
(1) The Finance Minister must not authorise a
payment under subsection 251(1) unless the Health Minister has recommended the
authorisation of the payment.
(2) The Health Minister must not make a
recommendation under subsection (1) in relation to a payment unless the
HHF Advisory Board has advised under paragraph 246(1)(a) that the payment
satisfies the HHF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the Health
Minister must have regard to:
(a) advice about the payment that was
given to the Health Minister by the HHF Advisory Board under paragraph
246(1)(a); and
(b) such other matters (if any) as the
Health Minister considers relevant.
253
Grant to a State or Territory
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Health and Hospitals Fund Special Account for the purpose of making a
payment to a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 218(1)(a).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Health Minister on behalf of the Commonwealth.
254
Grant to a person other than a State or Territory
Scope
(1) This section applies if:
(a) an amount is to be debited from
the Health and Hospitals Fund Special Account for the purpose of making a
payment to a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance; and
(c) the payment is for the purpose
mentioned in paragraph 218(1)(a).
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Health Minister on behalf of the Commonwealth.
Division 4—Channelling of payments through the HHF Health Portfolio
Special Account
255
Establishment of the HHF Health Portfolio Special Account
(1) The HHF Health Portfolio Special Account
is established by this section.
(2) The HHF Health Portfolio Special Account
is a Special Account for the purposes of the Financial Management and
Accountability Act 1997.
256
Purpose of the HHF Health Portfolio Special Account
(1) The purpose of the HHF Health Portfolio
Special Account is making payments in relation to the creation or development
of health infrastructure, so long as the payments are specified under
subsection 257(2).
Note: See section 21 of the Financial
Management and Accountability Act 1997 (debits from Special Accounts).
(2) A payment under subsection (1) may
be made:
(a) by way of a grant of financial
assistance; or
(b) otherwise than by way of a grant
of financial assistance.
257
Channelling of payments through the HHF Health Portfolio Special Account
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Health and
Hospitals Fund Special Account; and
(b) credited to the HHF Health
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be debited from the HHF Health
Portfolio Special Account for the purpose of making a specified payment in
relation to the creation or development of health infrastructure.
(3) 2 or more directions under
subsection (1) may be set out in the same document.
(4) A direction under subsection (1) is
not a legislative instrument.
(5) The Finance Minister must give a copy of
a direction under subsection (1) to the Health Minister.
258
Recommendations about payments
(1) A payment must not be specified under
subsection 257(2) unless the Health Minister has recommended the specification
of the payment.
(2) The Health Minister must not make a
recommendation under subsection (1) in relation to a payment unless the
HHF Advisory Board has advised under paragraph 246(1)(a) that the payment
satisfies the HHF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a payment, the Health
Minister must have regard to:
(a) advice about the payment that was
given to the Health Minister by the HHF Advisory Board under paragraph
246(1)(a); and
(b) such other matters (if any) as the
Health Minister considers relevant.
259
Payments—debit from the HHF Health Portfolio Special Account
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 257(1) for a purpose in relation to a payment; and
(b) the amount specified in the
direction is credited to the HHF Health Portfolio Special Account.
Debit from the HHF Health Portfolio Special Account
(2) The Health Minister must ensure that, as
soon as practicable after the amount is credited, the HHF Health Portfolio
Special Account is debited for the purposes of making the payment.
(3) However, if the payment cannot be made,
an amount equal to the credited amount is to be:
(a) debited from the HHF Health
Portfolio Special Account; and
(b) credited to the Health and
Hospitals Fund Special Account.
260
Grant to a State or Territory
Scope
(1) This section applies if an amount is to
be debited from the HHF Health Portfolio Special Account for the purpose of
making a grant of financial assistance to a State or Territory.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Health Minister on behalf of the Commonwealth.
261
Grant to a person other than a State or Territory
Scope
(1) This section applies if:
(a) an amount is to be debited from
the HHF Health Portfolio Special Account for the purpose of making a payment to
a person other than a State or Territory; and
(b) the payment is by way of a grant
of financial assistance.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the person.
(3) An agreement under subsection (2)
may be entered into by the Health Minister on behalf of the Commonwealth.
Division 5—Channelling of State/Territory grants payments through the
COAG Reform Fund
262
Channelling of State/Territory grants payments through the COAG Reform Fund
(1) The Finance Minister may, by writing,
direct that a specified amount is to be:
(a) debited from the Health and Hospitals
Fund Special Account; and
(b) credited to the HHF Health
Portfolio Special Account;
on a specified day.
(2) The direction must be expressed to be
given in order to enable the specified amount to be:
(a) transferred from the HHF Health
Portfolio Special Account to the COAG Reform Fund; and
(b) debited from the COAG Reform Fund
for the purpose of making a specified grant of financial assistance to a State
or Territory.
(3) A grant specified under
subsection (2) must be a grant of financial assistance in relation to
health infrastructure.
(4) 2 or more directions under
subsection (1) may be set out in the same document.
(5) A direction under subsection (1) is
not a legislative instrument.
(6) The Finance Minister must give a copy of
a direction under subsection (1) to the Treasurer and the Health Minister.
263
Recommendations about grants payments
(1) A grant must not be specified under
subsection 262(2) unless the Health Minister has recommended the specification
of the grant.
(2) The Health Minister must not make a
recommendation under subsection (1) in relation to a grant unless the HHF
Advisory Board has advised under paragraph 246(1)(a) that the grant satisfies
the HHF evaluation criteria.
(3) In deciding whether to make a
recommendation under subsection (1) in relation to a grant, the Health
Minister must have regard to:
(a) advice about the grant that was
given to the Health Minister by the HHF Advisory Board under paragraph
246(1)(a); and
(b) such other matters (if any) as the
Health Minister considers relevant.
264
Transfers from the HHF Health Portfolio Special Account to the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Finance Minister gives a
direction under subsection 262(1) for a purpose in relation to a grant of financial
assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the HHF Health Portfolio Special Account.
Transfer direction
(2) As soon as practicable after the amount
is credited, the Health Minister must, by writing, direct that the amount is to
be:
(a) debited from the HHF Health
Portfolio Special Account; and
(b) credited to the COAG Reform Fund;
on a specified day.
(3) The direction must be expressed to be
given in order to enable the amount to be debited from the COAG Reform Fund for
the purpose of making the grant.
(4) 2 or more directions under
subsection (2) may be set out in the same document.
(5) A direction under subsection (2) is
not a legislative instrument.
(6) The Health Minister must give a copy of a
direction under subsection (2) to the Treasurer.
265
Grants payments—debit from the COAG Reform Fund
Scope
(1) This section applies if:
(a) the Health Minister gives a
direction under subsection 264(2) for a purpose in relation to a grant of financial
assistance to a State or Territory; and
(b) the amount specified in the
direction is credited to the COAG Reform Fund.
Debit from the COAG Reform Fund
(2) The Treasurer must ensure that, as soon
as practicable after the amount is credited, the COAG Reform Fund is debited
for the purposes of making the grant.
266
Grant to a State or Territory
Scope
(1) This section applies if:
(a) an amount is to be debited from
the COAG Reform Fund for the purpose of making a grant of financial assistance
to a State or Territory; and
(b) the grant is covered by subsection
265(2).
Note: Subsection 265(2) deals with grants channelled
through the COAG Reform Fund.
Terms and conditions
(2) The terms and conditions on which that
financial assistance is granted are to be set out in a written agreement
between the Commonwealth and the State or Territory.
(3) An agreement under subsection (2)
may be entered into by the Health Minister on behalf of the Commonwealth.
Division 6—Total payments for a financial year
267
General drawing rights limit in relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—the Finance Minister declares in writing that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section; or
(b) in the case of a later financial
year—an Appropriation Act relating to the financial year declares that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of this section.
Issue of drawing rights
(2) The total amount covered by drawing
rights authorising the following debits in the financial year:
(a) the debit of an amount from the
Health and Hospitals Fund Special Account for the purpose mentioned in
paragraph 218(1)(a);
(b) the debit of an amount from the
HHF Health Portfolio Special Account (other than a debit under
section 264);
(c) the debit of an amount from the
COAG Reform Fund in accordance with subsection 265(2);
must not exceed the general drawing rights limit for the
financial year.
Declaration
(3) A declaration under paragraph (1)(a)
is a legislative instrument, but section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the declaration.
268
Drawing rights in relation to other financial years
The application of section 267 to a
particular financial year does not limit the drawing rights that may be issued
in relation to any other financial year.
269 No
drawing rights to be issued if there is no general drawing rights limit in
relation to a financial year
Scope
(1) This section applies to a financial year
if:
(a) in the case of the financial year
ending on 30 June 2009—no declaration is in force under paragraph
267(1)(a); or
(b) in the case of a later financial
year—no Appropriation Act relating to the financial year declares that a
specified amount is the general drawing rights limit in relation
to the financial year for the purposes of section 267.
No drawing rights to be issued
(2) Drawing rights authorising any of the
following debits in the financial year must not be issued:
(a) the debit of an amount from the
Health and Hospitals Fund Special Account for the purpose mentioned in
paragraph 218(1)(a);
(b) the debit of an amount from the
HHF Health Portfolio Special Account (other than a debit under
section 264);
(c) the debit of an amount from the
COAG Reform Fund in accordance with subsection 265(2).
270
Total payments to depend primarily on the macroeconomic circumstances
Scope
(1) This section applies to the following
decisions:
(a) a decision to authorise a payment
under section 251, where the authorisation will result in a debit from the
Health and Hospitals Fund Special Account in a financial year;
(b) a decision to give a direction
under subsection 257(1), where the direction will result in a debit from the
HHF Health Portfolio Special Account in a financial year in accordance with
subsection 259(2);
(c) a decision to give a direction
under subsection 262(1), where the direction will result in a debit from the
COAG Reform Fund in a financial year in accordance with subsection 265(2).
Macroeconomic circumstances
(2) In making the decision, the Finance
Minister must have regard to the principle that the total of the following
debits in the financial year:
(a) the debit of an amount from the
Health and Hospitals Fund Special Account for the purpose mentioned in
paragraph 218(1)(a);
(b) the debit of an amount from the
HHF Health Portfolio Special Account (other than a debit under
section 264);
(c) the debit of an amount from the
COAG Reform Fund in accordance with subsection 265(2);
should depend primarily on the macroeconomic
circumstances.
Part 4.5—Reporting obligations etc.
271
Finance Minister may require Future Fund Board to prepare reports or give
information
Reports
(1) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a report about one or more
specified matters relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the report to the
Finance Minister within the period specified in the notice.
Information
(2) The Finance Minister may, by written
notice given to the Future Fund Board, require the Future Fund Board to:
(a) prepare a document setting out
specified information relating to the performance of the Future Fund Board’s
functions under this Chapter; and
(b) give copies of the document to the
Finance Minister within the period specified in the notice.
Compliance
(3) The Future Fund Board must comply with a
requirement under subsection (1) or (2).
Publication of reports and documents
(4) The Finance Minister may cause to be
published (whether on the internet or otherwise):
(a) a report under
subsection (1); or
(b) a document under
subsection (2).
Reports and documents
(5) A report under subsection (1) is not
a legislative instrument.
(6) A document under subsection (2) is
not a legislative instrument.
272
Keeping the responsible Ministers informed etc.
(1) The Future Fund Board must keep the
responsible Ministers informed of the operations of the Future Fund Board under
this Chapter.
(2) The Future Fund Board must give the
Finance Minister such reports, documents and information in relation to those
operations as are appropriate.
273
Finance Minister may give reports to other Ministers etc.
The Finance Minister may give:
(a) the Treasurer; or
(b) the Health Minister;
any of the following:
(c) a report under subsection 271(1)
or 272(2); or
(d) a document under subsection 271(2)
or 272(2); or
(e) any other information or document
obtained by the Finance Minister under this Chapter.
Part 4.6—Miscellaneous
274
Investment provisions do not apply to certain assets
Scope
(1) This section applies to an asset if:
(a) the asset is:
(i) a share; or
(ii) a debenture; or
(iii) a unit in a unit
trust; or
(iv) any other financial
asset; and
(b) the asset is held by the
Commonwealth; and
(c) the asset was acquired:
(i) using money debited
from the Health and Hospitals Fund Special Account for the purpose mentioned in
paragraph 218(1)(a); or
(ii) using money debited
from the HHF Health Portfolio Special Account.
Investment provisions do not apply
(2) Part 4.3 does not apply in relation
to the asset.
(3) Section 39 of the Financial
Management and Accountability Act 1997 does not apply in relation to the
asset.
275
Delegation by the Finance Minister
Department
(1) The Finance Minister may, by writing,
delegate any or all of his or her powers under section 222, 223, 224, 251,
257 or 262 to:
(a) the Secretary of the Finance
Department; or
(b) an SES employee, or acting SES
employee, in the Finance Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
Agency
(3) The Finance Minister may, by writing,
delegate any or all of his or her powers under section 222, 223 or 224 to:
(a) the Chair; or
(b) an SES employee, or acting SES
employee, in the Agency.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(4) In exercising powers under a delegation,
the delegate must comply with any directions of the Finance Minister.
276
Delegation by the Treasurer
The Treasurer may, by writing, delegate
any or all of his or her functions under subsection 265(2) to:
(a) the Secretary of the Treasury
Department; or
(b) an SES employee, or acting SES
employee, in the Treasury Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
277
Delegation by the Health Minister
(1) The Health Minister may, by writing,
delegate any or all of his or her functions or powers under section 253,
254, 259, 260, 261, 264 or 266 to:
(a) the Secretary of the Health
Department; or
(b) an SES employee, or acting SES
employee, in the Health Department.
Note: The expressions SES employee and
acting SES employee are defined in section 17AA of the Acts
Interpretation Act 1901.
(2) In exercising powers under a delegation,
the delegate must comply with any directions of the Health Minister.
Chapter 5—Regulations
278
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
[Minister’s second reading speech made in—
House of Representatives on 13 November 2008
Senate on 3 December 2008]