An Act to provide for the funding of projects related to land
transport matters, and for related purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Nation
Building Program (National Land Transport) Act 2009.
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. Parts 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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6 July 2005
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2. Parts 3, 4, 5, 6, 7 and 8
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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28 July 2005
(see F2005L02026)
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3. Part 9
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The day on which this Act receives the Royal Assent.
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6 July 2005
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Note: This table
relates only to the provisions of this Act as originally passed by 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
Object of Act
The object of this Act is to assist
national and regional economic and social development by the provision of
Commonwealth funding aimed at improving the performance of land transport
infrastructure.
4
Definitions
(1) In this Act, unless the contrary
intention appears:
appropriate auditor means:
(a) in relation to a person or body
whose accounts are required by law to be audited by the Auditor‑General
of a State—the Auditor‑General of the State; or
(b) in relation to a person or body
whose accounts are required by law to be audited by the Auditor‑General
of the Commonwealth—the Auditor‑General of the Commonwealth; or
(c) in relation to any other person or
body—a person (other than a director, officer or employee of the person or
body) who is:
(i) registered as a
company auditor or a public accountant under a law in force in a State; or
(ii) a member of the
Institute of Chartered Accountants in Australia or of the Australian Society of
Accountants.
approved funding recipient, in relation to a
Nation Building Program National Project, a Nation Building Program Transport
Development and Innovation Project, a Nation Building Program Off‑Network
Project or a Nation Building Program Black Spot Project, means the eligible
funding recipient identified in the project approval instrument.
approved purposes, in relation to a Nation
Building Program National Project, a Nation Building Program Transport
Development and Innovation Project, a Nation Building Program Off‑Network
Project or a Nation Building Program Black Spot Project, means the purposes
forming part of the project, other than any purposes that are excluded by the
project approval instrument from being purposes on which funding may be
expended.
authority of a State means a body:
(a) that is established by a State or
by a law of a State; or
(b) in which a State has a controlling
interest;
but does not include a local government authority.
construction:
(a) when used in relation to a railway
or road, has a meaning affected by subsection (2); and
(b) when used in relation to an inter‑modal
transfer facility, has a meaning affected by subsection (3).
Corridor Strategy means a strategy (as
updated from time to time) that:
(a) is called a Corridor Strategy; and
(b) is determined by executive action
of the Minister; and
(c) relates to land transport issues
affecting a corridor between 2 places joined, or proposed to be joined, by
existing or proposed roads or railways that are included in the National Land
Transport Network.
eligible funding recipient means:
(a) a State; or
(b) an authority of a State; or
(c) a local government authority; or
(d) any other body corporate.
funding agreement:
(a) when used in Part 3, 4, 6 or
7—means a written agreement between the Commonwealth and an eligible funding
recipient relating to the provision of Commonwealth funding under that Part for
a particular project; and
(b) when used in Part 5—means a
written agreement between the Commonwealth and a land transport research entity
(within the meaning of that Part) for the provision of Commonwealth funding for
the entity under that Part.
Indian Ocean Territory means:
(a) the Territory of Christmas Island;
or
(b) the Territory of Cocos (Keeling)
Islands.
inter‑modal transfer facility means a
facility for the transfer of cargo or passengers from one mode of transport to
another. At least one of the modes of transport must be road or rail.
local government authority means a body
established for the purposes of local government by or under a law applying in
a State or Territory.
maintenance, in relation to a road, railway
or inter‑modal transfer facility, includes works and repairs to keep the
road, railway or facility in a safe and useable condition.
National Land Transport Network means the
National Land Transport Network, as in force from time to time, that is
determined by the Minister under Part 2.
National Land Transport Plan means the plan
(as updated from time to time) that:
(a) is called the National Land
Transport Plan; and
(b) is determined by executive action
of the Minister; and
(c) sets priorities for expenditure on
the National Land Transport Network.
Nation Building Program Black Spot Project
has the meaning given by section 69.
Nation Building Program National Project has
the meaning given by section 8.
Nation Building Program Off‑Network Project has
the meaning given by section 52.
Nation Building Program Roads to Recovery funding
period means the period starting on 1 July 2009 and ending on
30 June 2014.
Nation Building Program Roads to Recovery List means
the list in force, immediately before the commencement of this definition,
under subsection 87(1) of this Act for the period starting on 1 July 2009
and ending on 30 June 2014.
Nation Building Program Transport Development and
Innovation Project has the meaning given by section 28.
project includes a program.
project approval instrument means:
(a) in relation to a Nation Building
Program National Project—the instrument approving the project under subsection
9(1); and
(b) in relation to a Nation Building
Program Transport Development and Innovation Project—the instrument approving
the project under subsection 29(1); and
(c) in relation to a Nation Building
Program Off‑Network Project—the instrument approving the project under
subsection 53(1); and
(d) in relation to a Nation Building
Program Black Spot Project—the instrument approving the project under
subsection 70(1).
public utility has a meaning affected by subsection (4).
railway includes any of the following:
(a) railway signs;
(b) railway control equipment;
(c) railway communications equipment;
(d) railway lighting equipment;
(e) a bridge or tunnel associated with
a railway, including a bridge or tunnel for the use of pedestrians;
(f) any other thing that is specified
in the regulations for the purposes of this definition, being a thing that is
associated with a railway.
road:
(a) subject to paragraph (b),
includes any of the following associated with a road:
(i) traffic signs;
(ii) traffic control
equipment;
(iii) street lighting
equipment;
(iv) a bridge or tunnel,
including a bridge or tunnel for the use of pedestrians;
(v) a path for the use of
persons riding bicycles;
(va) a facility off the road
used by heavy vehicles in connection with travel on the road (for example, a
rest area or weigh station);
(vi) any other thing that is
specified in the regulations for the purposes of this definition; and
(b) when used in Part 8:
(i) also includes a
vehicular ferry associated with a road; but
(ii) does not include the
other things specified in the regulations referred to in subparagraph (a)(vi).
State includes the Australian Capital
Territory and the Northern Territory.
Meaning of construction in relation to a railway
or road
(2) In this Act, construction,
when used in relation to a railway or road, includes:
(a) the reconstruction or realignment
of the railway or road; and
(b) the bringing of the railway or
road to a higher standard; and
(c) investigation and associated
engineering studies in connection with:
(i) the construction,
reconstruction or realignment of the railway or road; or
(ii) the bringing of the
railway or road to a higher standard; or
(iii) the planning of
alternative routes for the railway or road; and
(d) the acquisition of an interest in
land for the purpose of:
(i) constructing,
reconstructing or realigning the railway or road; or
(ii) the bringing of the
railway or road to a higher standard; and
(e) in relation to a matter described
in paragraph (a) or (b)—the doing of any other thing specified in the
regulations for the purposes of this subsection;
but does not include the maintenance of the railway or
road.
Meaning of construction in relation to an inter‑modal
transfer facility
(3) In this Act, construction,
when used in relation to an inter‑modal transfer facility, includes:
(a) the reconstruction of the
facility; and
(b) work to enable the facility to
operate more efficiently; and
(c) investigation and associated
engineering studies in connection with:
(i) the construction or
reconstruction of the facility; or
(ii) work to enable the
facility to operate more efficiently;
but does not include maintenance of the facility.
Meaning of public utility
(4) The regulations may define or otherwise
clarify the meaning of public utility for the purposes of this
Act.
Part 2—The National Land Transport Network
5
Determination of the National Land Transport Network
(1) The Minister must, in writing, determine
a National Land Transport Network.
(2) The National Land Transport Network is to
consist of such of the following in the States as the Minister considers,
subject to subsection (3), should be included:
(a) existing and proposed roads:
(i) connecting 2 capital
cities; or
(ii) connecting a capital
city and a major centre of commercial activity; or
(iii) connecting 2 major
centres of commercial activity; or
(iv) connecting a capital
city or a major centre of commercial activity and an inter‑modal transfer
facility; or
(v) in a capital city or a
major centre of commercial activity that connect 2 or more roads covered by any
of subparagraphs (i) to (iv); or
(vi) connecting a road
covered by any of subparagraphs (i) to (v) and an inter‑modal
transfer facility;
(b) existing and proposed railways:
(i) connecting 2 capital
cities; or
(ii) connecting a capital
city and a major centre of commercial activity; or
(iii) connecting 2 major
centres of commercial activity; or
(iv) connecting a capital
city or a major centre of commercial activity and an inter‑modal transfer
facility; or
(v) in a capital city or a
major centre of commercial activity that connect 2 or more railways covered by
any of subparagraphs (i) to (iv); or
(vi) connecting a railway
covered by any of subparagraphs (i) to (v) and an inter‑modal
transfer facility;
(c) existing and proposed inter‑modal
transfer facilities which can be accessed by a road or railway covered by paragraph (a)
or (b).
(3) The Minister must not include an existing
or proposed road, railway or inter‑modal transfer facility in the
National Land Transport Network unless the Minister is satisfied that the road,
railway or facility is or will be important for either or both of the
following:
(a) the development of international,
inter‑State or inter‑regional trade and commerce;
(b) the facilitation of international,
inter‑State or inter‑regional travel.
(4) An instrument determining the National
Land Transport Network is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
6
Variation of the National Land Transport Network
(1) The Minister may, in writing, vary the
National Land Transport Network.
(2) The Minister must not vary the National
Land Transport Network unless the composition of the Network, once the
variation has been made, will accord with the requirements of section 5.
(3) An instrument varying the National Land
Transport Network is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
7
Publication
The Minister must cause the
determination, or any variation, of the National Land Transport Network to be
published in such way or ways as the Minister considers appropriate.
Note: This section applies in addition to the
requirements of the Legislative Instruments Act 2003.
Part 3—Nation Building Program National Projects
Division 1—Approval of projects as Nation Building Program National
Projects
8 What
is a Nation Building Program National Project?
A Nation Building Program National
Project is a project for which an approval by the Minister under
subsection 9(1) is in force.
9
Approval of Nation Building Program National Projects
(1) The Minister may, in writing, approve a
project as a Nation Building Program National Project if, and only if:
(a) the Minister is satisfied that the
project is eligible for approval (see section 10); and
(b) the Minister considers that it is
appropriate to approve the project (see section 11).
(2) An instrument approving a project is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
10
What projects are eligible for approval?
A project is eligible for approval as a
Nation Building Program National Project if the project is for one or more of
the following:
(a) the construction or maintenance of
an existing or proposed road that is included in the National Land Transport
Network;
(b) the construction or maintenance of
an existing or proposed railway that is included in the National Land Transport
Network;
(c) the construction of an
existing or proposed inter‑modal transfer facility that is included in
the National Land Transport Network;
(d) the acquisition or application of
technology that will, or may, contribute to the efficiency, security or safety
of transport operations on the National Land Transport Network.
Note: The definition of construction in
section 4 covers some kinds of work on an existing road, railway or
inter‑modal transfer facility (hence the references above to the
construction of an existing road, railway or inter‑modal transfer
facility).
11 Is
it appropriate to approve a project?
The matters to which the Minister may
have regard in deciding whether it is appropriate to approve a project as a
Nation Building Program National Project include, but are not limited to, the
following matters:
(a) the National Land Transport Plan;
(b) any relevant Corridor Strategy;
(c) the extent to which the project
will improve the efficiency, security or safety of transport operations on the
National Land Transport Network;
(d) the results of any assessment of
the economic, environmental or social costs or benefits of the project;
(e) any other transport or land use
plans that might be relevant to the project;
(f) the extent to which persons other
than the Commonwealth propose to contribute funding to the project.
12
Submission of particulars of projects
(1) The Minister may invite the submission of
particulars of projects for consideration for approval as Nation Building
Program National Projects.
(2) An invitation may be given:
(a) to such persons or bodies as the
Minister considers appropriate; and
(b) by any method that the Minister
considers appropriate.
(3) Subject to section 9, the Minister may
approve a project as a Nation Building Program National Project, whether or not
particulars of the project were submitted in response to an invitation.
(4) The Minister is not required to consider
a project for approval as a Nation Building Program National Project unless
such particulars of the project as the Minister requires have been submitted to
the Minister.
13
Matters specified in project approval instrument
(1) The project approval instrument for a
Nation Building Program National Project must:
(a) identify the project; and
(b) specify the maximum funding amount
that the Commonwealth may contribute to the project; and
(c) identify the eligible funding
recipient to which the funding may be paid; and
(d) if the approval is conditional on
a funding agreement being entered into with the eligible funding
recipient—contain a statement to that effect.
(2) The project approval instrument for a
Nation Building Program National Project must state that the approval is
conditional on a funding agreement being entered into with the eligible funding
recipient, unless the recipient is:
(a) a State; or
(b) an authority of a State; or
(c) a local government authority; or
(d) a body in which one of the
following persons or bodies has, or 2 or more of the following persons or
bodies together have, a controlling interest:
(i) the Commonwealth;
(ii) a State;
(iii) an authority of a
State.
Note: This subsection does not prevent the project
approval instrument from stating that the approval is conditional on a funding
agreement being entered into with a funding recipient of a kind referred to in paragraph (a),
(b), (c) or (d).
(3) The project approval instrument for a
Nation Building Program National Project may exclude one or more specified
purposes from being purposes on which funding may be expended.
14
Requirements with which funding agreements must comply
If the project approval instrument for a
Nation Building Program National Project states that the approval is
conditional on a funding agreement being entered into with the approved funding
recipient:
(a) the total amount of funding that
the agreement provides for must not exceed the maximum funding amount specified
in the project approval instrument; and
(b) the agreement must comply with any
other requirements (for example, requirements relating to the inclusion of
conditions) specified in the project approval instrument.
15
Variation or revocation of project approval instrument
(1) The Minister may, in writing, vary or
revoke the project approval instrument for a Nation Building Program National
Project.
(2) A variation may be of a matter dealt with
in the project approval instrument before the variation, or to include a new
matter in the project approval instrument. The instrument as varied must be
consistent with section 13.
Note: For example, the project approval instrument
may be varied to change the eligible funding recipient to which funding will be
paid, or to specify a purpose that is excluded from the purposes on which
funding may be expended.
(3) If there is a funding agreement with the
approved funding recipient, the powers given by subsection (1) must be
exercised in accordance with any relevant provisions of the funding agreement.
(4) An instrument varying or revoking the
project approval instrument is not a legislative instrument for the purposes of
the Legislative Instruments Act 2003.
Division 2—Provision of Commonwealth funding
16
Commonwealth funding for Nation Building Program National Projects
(1) Commonwealth funding for a Nation
Building Program National Project may be provided to the approved funding
recipient:
(a) in accordance with section 17;
or
(b) if the project approval instrument
states that the approval is conditional on a funding agreement being entered
into—in accordance with a funding agreement, entered into with the approved
funding recipient, that satisfies the requirements of section 14.
(2) The payments of funding are to be made
out of money appropriated by the Parliament.
17
Approval of provision of Commonwealth funding if no funding agreement
(1) The Minister may, in writing, approve the
provision of Commonwealth funding for a Nation Building Program National
Project to the approved funding recipient. The Minister may, in writing, vary
or revoke the approval.
(2) The funding is to be provided in one or
more instalments paid to the approved funding recipient. Subject to subsection (3),
the amount and timing of an instalment are as determined by the Minister.
(3) The total amount of funding provided for
the project to the approved funding recipient must not exceed the maximum
funding amount specified in the project approval instrument.
(4) An instrument:
(a) approving the provision of
Commonwealth funding, or varying or revoking such an approval; or
(b) determining the amount or timing
of an instalment of funding;
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Division 3—Conditions that apply to Commonwealth funding
Subdivision A—Sources of conditions
18 Sources
of conditions
(1) The conditions that apply to a payment
(the funding payment) of Commonwealth funding for a Nation
Building Program National Project (the funded project) to an
eligible funding recipient (the funding recipient) are:
(a) the mandatory conditions (see
Subdivision B); and
(b) either:
(i) if the funding payment
is provided in accordance with section 17—the conditions (if any)
determined under Subdivision C; or
(ii) if the funding payment
is provided in accordance with a funding agreement—the conditions specified in
the funding agreement.
(2) A funding agreement may specify a
condition by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.
Subdivision B—The mandatory conditions
19
This Subdivision sets out the mandatory conditions
The mandatory conditions are as set out
in this Subdivision.
20
Funding payment must be expended on the funded project
The funding payment must be wholly
expended on approved purposes in relation to the funded project.
21
Funding recipient must give Minister audited financial statements
For each financial year in which the
funding recipient spends or retains any of the funding payment, the funding
recipient must give to the Minister as soon as practicable, and in any event
within 6 months, after the end of that year:
(a) a written statement as to:
(i) the amount spent by
the funding recipient during that year out of the funding payment; and
(ii) the amount retained by
the funding recipient out of the funding payment as at the end of that year;
and
(b) a report in writing and signed by
the appropriate auditor stating whether, in the auditor’s opinion:
(i) the statement is based
on proper accounts and records; and
(ii) the statement is in
agreement with the accounts and records; and
(iii) the expenditure
referred to in subparagraph (a)(i) has been on the funded project.
22
Funding recipient must allow inspections by authorised persons
The funding recipient must, at all
reasonable times, permit a person authorised by the Minister:
(a) to inspect any work involved in
the carrying out of the funded project; and
(b) to inspect and make copies of any
documents relating to the funded project.
23
Funding recipient must provide information on request
The funding recipient must, as and when
requested by the Minister, provide information relevant to the progress of the
funded project or the operation or condition of the National Land Transport
Network.
24
State or State authority must call for public tenders for certain work
(1) If the funding recipient is a State or an
authority of a State, the funding recipient must call for public tenders for
all work on the funded project, other than:
(a) work that is maintenance of a road
or railway; or
(b) work that is to be carried out by
a public utility; or
(c) work that the Minister has, by a
written exemption relating to the project, exempted from this condition
because, in the Minister’s opinion:
(i) the work is urgently required
because of an emergency; or
(ii) the work is of such a
minor nature that the invitation of tenders for the work would involve undue
additional cost; or
(iii) the work is of a kind
for which it is not practicable to prepare adequate tender specifications; or
(iv) the work is of a kind
for which competitive tenders are unlikely to be received; or
(v) the work will
contribute to employment in a region; or
(vi) the cost of the work is
less than an amount prescribed by the regulations for the purposes of this
subparagraph.
(2) The Minister may, in writing, vary or
revoke an exemption referred to in paragraph (1)(c).
(3) An instrument granting, varying or
revoking an exemption referred to in paragraph (1)(c) is not a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
25
State or State authority using funding payment to acquire interest in
land—obligation if the interest is sold or disposed of
(1) If the funding recipient is a State or an
authority of a State, and the recipient sells or disposes of an interest in
land that was acquired using all or part of the funding payment—the recipient
must, subject to subsection (2), pay to the Commonwealth an amount
calculated using the formula:
where:
acquisition cost means the amount paid by the
funding recipient to acquire the interest (but not deducting any other costs
associated with that acquisition).
Commonwealth contribution means so much of
the funding payment as was used to meet the acquisition cost.
consideration or value means the greater of:
(a) the consideration received by the
funding recipient for the sale or disposal (but not deducting any costs
associated with that sale or disposal); and
(b) the market value of the interest
at the time of the sale or disposal.
(2) The funding recipient may instead, with
the written approval of the Minister, spend an amount equal to the
amount worked out under subsection (1) on approved purposes in relation to
another Nation Building Program National Project.
(3) The Minister may, in writing, vary or
revoke an approval referred to in subsection (2).
(4) If the funding recipient spends an amount
in accordance with subsection (2) on another Nation Building Program
National Project, then, for the purposes of the application of this Act in
relation to that other project:
(a) the funding recipient is taken to
have received a payment of Commonwealth funding in relation to that other
project equal to the amount so spent; and
(b) the amount so spent is taken to
have been paid out of that payment of Commonwealth funding.
(5) An instrument granting, varying or
revoking an approval referred to in subsection (2) is not a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
(6) For the purposes of this section, a
reference to acquiring an interest in land using all or part of the funding
payment includes a reference to compulsorily acquiring an interest in land and
using all or part of the funding payment to pay compensation for the
acquisition.
26
Amount repayable on breach of condition
(1) If the Minister notifies the funding
recipient in writing that the Minister is satisfied that the funding recipient
has failed to fulfil any condition that applies to the funding payment (whether
that condition is specified in this Subdivision, in a funding agreement or in a
determination under Subdivision C), then the funding recipient must repay to
the Commonwealth an amount equal to so much of the funding payment as the
Minister specifies in the notice.
(2) The Minister may, by notice in writing,
vary or revoke a notice given under subsection (1).
(3) If there is a funding agreement with the
funding recipient, the powers given to the Minister by subsections (1) and
(2) must be exercised in accordance with any relevant provisions of the funding
agreement.
(4) A notice under subsection (1), or an
instrument varying or revoking such a notice, is not a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
Subdivision C—Determination of other conditions if no funding agreement
27
Determination of other conditions if no funding agreement
(1) The Minister may, in writing, determine
other conditions that apply to the provision of funding in accordance with
section 17.
(2) The Minister may determine different
conditions to apply in different classes of situations.
(3) The Minister may, in writing, vary or
revoke conditions determined under subsection (1).
(4) An instrument determining, varying or
revoking conditions is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
(5) Despite subsection 14(2) of the Legislative
Instruments Act 2003, an instrument determining or varying conditions may
make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
Part 4—Nation Building Program Transport Development and Innovation
Projects
Division 1—Approval of projects as Nation Building Program Transport
Development and Innovation Projects
28
What is a Nation Building Program Transport Development and Innovation Project?
A Nation Building Program
Transport Development and Innovation Project is a project for which an
approval by the Minister under subsection 29(1) is in force.
29
Approval of Nation Building Program Transport Development and Innovation
Projects
(1) The Minister may, in writing, approve a
project as a Nation Building Program Transport Development and Innovation
Project if, and only if:
(a) the Minister is satisfied that the
project is eligible for approval (see section 30); and
(b) the Minister considers that it is
appropriate to approve the project (see section 31).
(2) An instrument approving a project is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
30
What projects are eligible for approval?
A project is eligible for approval as a
Nation Building Program Transport Development and Innovation Project if the
project is for either or both of the following:
(a) planning, research,
investigations, studies or analysis of matters related to the present or future
development or usage of the National Land Transport Network;
(b) research or development related to
technology or practices that will, or may, be used in connection with transport
operations on the National Land Transport Network.
31 Is
it appropriate to approve a project?
The matters to which the Minister may
have regard in deciding whether it is appropriate to approve a project as a
Nation Building Program Transport Development and Innovation Project include,
but are not limited to, the following matters:
(a) the extent to which the project is
likely to improve the efficiency, security or safety of transport operations on
the National Land Transport Network;
(b) the extent to which the project is
likely to improve the economic, environmental or social impact or performance
of the National Land Transport Network, or of transport operations on the
Network;
(c) the extent to which the project is
likely to assist better‑informed decision‑making in relation to
future expenditure on Nation Building Program National Projects.
32
Submission of particulars of projects
(1) The Minister may invite the submission of
particulars of projects for consideration for approval as Nation Building
Program Transport Development and Innovation Projects.
(2) An invitation may be given:
(a) to such persons or bodies as the
Minister considers appropriate; and
(b) by any method that the Minister
considers appropriate.
(3) Subject to section 29, the Minister
may approve a project as a Nation Building Program Transport Development and
Innovation Project, whether or not particulars of the project were submitted in
response to an invitation.
(4) The Minister is not required to consider
a project for approval as a Nation Building Program Transport Development and
Innovation Project unless such particulars of the project as the Minister
requires have been submitted to the Minister.
33
Matters specified in project approval instrument
(1) The project approval instrument for a
Nation Building Program Transport Development and Innovation Project must:
(a) identify the project; and
(b) specify the maximum funding amount
that the Commonwealth may contribute to the project; and
(c) identify the eligible funding
recipient to which the funding may be paid; and
(d) if the approval is conditional on
a funding agreement being entered into with the eligible funding
recipient—contain a statement to that effect.
(2) The project approval instrument for a
Nation Building Program Transport Development and Innovation Project must state
that the approval is conditional on a funding agreement being entered into with
the eligible funding recipient, unless the recipient is:
(a) a State; or
(b) an authority of a State; or
(c) a local government authority; or
(d) a body in which one of the
following persons or bodies has, or 2 or more of the following persons or
bodies together have, a controlling interest:
(i) the Commonwealth;
(ii) a State;
(iii) an authority of a
State.
Note: This subsection does not prevent the project
approval instrument from stating that the approval is conditional on a funding
agreement being entered into with a funding recipient of a kind referred to in paragraph (a),
(b), (c) or (d).
(3) The project approval instrument for a
Nation Building Program Transport Development and Innovation Project may
exclude one or more specified purposes from being purposes on which funding may
be expended.
34
Requirements with which funding agreements must comply
If the project approval instrument for a
Nation Building Program Transport Development and Innovation Project states
that the approval is conditional on a funding agreement being entered into with
the approved funding recipient:
(a) the total amount of funding that
the agreement provides for must not exceed the maximum funding amount specified
in the project approval instrument; and
(b) the agreement must comply with any
other requirements (for example, requirements relating to the inclusion of
conditions) specified in the project approval instrument.
35
Variation or revocation of project approval instrument
(1) The Minister may, in writing, vary or revoke
the project approval instrument for a Nation Building Program Transport
Development and Innovation Project.
(2) A variation may be of a matter dealt with
in the project approval instrument before the variation, or to include a new
matter in the project approval instrument. The instrument as varied must be
consistent with section 33.
Note: For example, the project approval instrument
may be varied to change the eligible funding recipient to which funding will be
paid, or to specify a purpose that is excluded from the purposes on which
funding may be expended.
(3) If there is a funding agreement with the
approved funding recipient, the powers given by subsection (1) must be
exercised in accordance with any relevant provisions of the funding agreement.
(4) An instrument varying or revoking the
project approval instrument is not a legislative instrument for the purposes of
the Legislative Instruments Act 2003.
Division 2—Provision of Commonwealth funding
36
Commonwealth funding for Nation Building Program Transport Development and
Innovation Projects
(1) Commonwealth funding for a Nation
Building Program Transport Development and Innovation Project may be provided
to the approved funding recipient:
(a) in accordance with section 37;
or
(b) if the project approval instrument
for the project states that the approval is conditional on a funding agreement
being entered into—in accordance with a funding agreement, entered into with
the approved funding recipient, that satisfies the requirements of section 34.
(2) The payments of funding are to be made
out of money appropriated by the Parliament.
37
Approval of provision of Commonwealth funding if no funding agreement
(1) The Minister may, in writing, approve the
provision of Commonwealth funding for a Nation Building Program Transport
Development and Innovation Project to the approved funding recipient. The
Minister may, in writing, vary or revoke the approval.
(2) The funding is to be provided in one or
more instalments paid to the approved funding recipient. Subject to subsection (3),
the amount and timing of an instalment are as determined by the Minister.
(3) The total amount of funding provided for
the project to the approved funding recipient must not exceed the maximum
funding amount specified in the project approval instrument.
(4) An instrument:
(a) approving the provision of
Commonwealth funding, or varying or revoking such an approval; or
(b) determining the amount or timing
of an instalment of funding;
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Division 3—Conditions that apply to Commonwealth funding
Subdivision A—Sources of conditions
38
Sources of conditions
(1) The conditions that apply to a payment
(the funding payment) of Commonwealth funding for a Nation
Building Program Transport Development and Innovation Project (the funded
project) to an eligible funding recipient (the funding recipient)
are:
(a) the mandatory conditions (see
Subdivision B); and
(b) either:
(i) if the funding payment
is provided in accordance with section 37—the conditions (if any)
determined under Subdivision C; or
(ii) if the funding payment
is provided in accordance with a funding agreement—the conditions specified in
the funding agreement.
(2) A funding agreement may specify a
condition by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.
Subdivision B—The mandatory conditions
39
This Subdivision sets out the mandatory conditions
The mandatory conditions are as set out
in this Subdivision.
40
Funding payment must be expended on the funded project
The funding payment must be wholly
expended on approved purposes in relation to the funded project.
41
Funding recipient must give Minister audited financial statements
For each financial year in which the
funding recipient spends or retains any of the funding payment, the funding
recipient must give to the Minister as soon as practicable, and in any event
within 6 months, after the end of that year:
(a) a written statement as to:
(i) the amount spent by
the funding recipient during that year out of the funding payment; and
(ii) the amount retained by
the funding recipient out of the funding payment as at the end of that year;
and
(b) a report in writing and signed by
the appropriate auditor stating whether, in the auditor’s opinion:
(i) the statement is based
on proper accounts and records; and
(ii) the statement is in
agreement with the accounts and records; and
(iii) the expenditure
referred to in subparagraph (a)(i) has been on the funded project.
42
Funding recipient must allow inspections by authorised persons
The funding recipient must, at all
reasonable times, permit a person authorised by the Minister:
(a) to inspect any work involved in
the carrying out of the funded project; and
(b) to inspect and make copies of any
documents relating to the funded project.
43
Amount repayable on breach of condition
(1) If the Minister notifies the funding
recipient in writing that the Minister is satisfied that the funding recipient
has failed to fulfil any condition that applies to the funding payment (whether
that condition is specified in this Subdivision, in a funding agreement or in a
determination under Subdivision C), then the funding recipient must repay to
the Commonwealth an amount equal to so much of the funding payment as the
Minister specifies in the notice.
(2) The Minister may, by notice in writing,
vary or revoke a notice given under subsection (1).
(3) If there is a funding agreement with the
funding recipient, the powers given to the Minister by subsections (1) and
(2) must be exercised in accordance with any relevant provisions of the funding
agreement.
(4) A notice under subsection (1), or an
instrument varying or revoking such a notice, is not a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
Subdivision C—Determination of other conditions if no funding agreement
44
Determination of other conditions if no funding agreement
(1) The Minister may, in writing, determine
other conditions that apply to the provision of funding in accordance with
section 37.
(2) The Minister may determine different
conditions to apply in different classes of situations.
(3) The Minister may, in writing, vary or
revoke conditions determined under subsection (1).
(4) An instrument determining, varying or
revoking conditions is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
(5) Despite subsection 14(2) of the Legislative
Instruments Act 2003, an instrument determining or varying conditions may
make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
Part 5—Nation Building Program funding for land transport research
entities
45
Definitions
In this Part:
funded entity, in relation to a funding
approval instrument, means the land transport research entity identified in the
instrument.
funding approval instrument means an
instrument under subsection 46(1) approving the provision of funding for a
particular land transport research entity for a particular period.
funding period, in relation to a funding
approval instrument, means the period identified in the instrument.
land transport operations means transport
operations involving road or rail, including operations involving inter‑modal
transfer facilities.
land transport research entity means an
eligible funding recipient whose functions include carrying out, arranging or
assisting planning, research, investigations, studies or analysis of matters
related to land transport operations.
46
Approval of funding for land transport research entities
(1) The Minister may, in writing, approve the
provision of funding for a particular land transport research entity for a
particular period.
(2) The matters to which the Minister may
have regard in deciding whether to approve the provision of funding for a land
transport research entity for a period include, but are not limited to, the
extent to which the entity’s activities during the period are likely to improve
land transport operations in Australia.
(3) The funding approval instrument must:
(a) identify the entity and the
period; and
(b) specify the maximum funding amount
that the Commonwealth may provide for the entity during the period; and
(c) contain a statement to the effect
that the approval is conditional on a funding agreement being entered into with
the entity.
(4) Subject to subsection (5), the
Minister may, in writing, vary or revoke the funding approval instrument.
(5) If there is a funding agreement with the
entity, the powers given by subsection (4) must be exercised in accordance
with any relevant provisions of the funding agreement.
(6) An instrument approving the provision of
Commonwealth funding, or varying or revoking such an approval, is not a
legislative instrument for the purposes of the Legislative Instruments Act
2003.
47
Submission of particulars to get funding
(1) The Minister may invite land transport
research entities to submit particulars of their proposed activities for
consideration for approval of funding under subsection 46(1).
(2) An invitation may be given:
(a) to such land transport research
entities as the Minister considers appropriate; and
(b) by any method that the Minister
considers appropriate.
(3) Subject to section 46, the Minister
may grant an approval under subsection 46(1) for a particular land transport
research entity, whether or not particulars of the entity’s proposed activities
were submitted in response to an invitation.
(4) The Minister is not required to consider
a land transport research entity for an approval under subsection 46(1) unless
such particulars of the entity’s proposed activities as the Minister requires
have been submitted to the Minister.
48
Commonwealth funding for land transport research entities
(1) If a funding approval instrument is in
force, Commonwealth funding for the funded entity may be provided during the
funding period in accordance with a funding agreement that satisfies the
requirements of section 49.
(2) The payments of funding are to be made
out of money appropriated by the Parliament.
49
Requirements with which funding agreements must comply
A funding agreement entered into for the
purposes of this Part must satisfy the following requirements:
(a) the total amount of funding that
the agreement provides for must not exceed the maximum funding amount specified
in the relevant funding approval instrument;
(b) the agreement must comply with any
other requirements (for example, requirements relating to the inclusion of
conditions) specified in the relevant funding approval instrument.
50
Conditions of funding
(1) The conditions that apply to a payment of
funding under this Part are the conditions specified in the relevant funding
agreement.
(2) A funding agreement may specify a
condition by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.
51
Relationship with Part 4
This Part does not limit, and is not
limited by, Part 4.
Part 6—Nation Building Program Off‑Network Projects
Division 1—Approval of projects as Nation Building Program Off‑Network
Projects
52
What is a Nation Building Program Off‑Network Project?
A Nation Building Program Off‑Network
Project is a project for which an approval by the Minister under
subsection 53(1) is in force.
53 Approval
of Nation Building Program Off‑Network Projects
(1) The Minister may, in writing, approve a
project as a Nation Building Program Off‑Network Project if, and only if:
(a) the Minister is satisfied that the
project is eligible for approval (see section 54); and
(b) the Minister considers that it is
appropriate to approve the project (see section 55).
(2) An instrument approving a project is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
54
What projects are eligible for approval?
A project is eligible for approval as a
Nation Building Program Off‑Network Project if the project is for one or
more of the following:
(a) the construction of an existing or
proposed road, in a State or Indian Ocean Territory, that is not
included in the National Land Transport Network;
(b) the maintenance of an existing or
proposed road, in a State or Indian Ocean Territory, that:
(i) is not included in the
National Land Transport Network; and
(ii) is in an area for
which no local government authority has responsibility;
(c) the construction of an existing or
proposed railway, in a State or Indian Ocean Territory, that is not included in
the National Land Transport Network;
(d) the construction of an
existing or proposed inter‑modal transfer facility, in a State or Indian
Ocean Territory, that is not included in the National Land Transport Network;
(e) the acquisition or application of
technology that will, or may, contribute to the efficiency, security or safety
of transport operations in a State or Indian Ocean Territory.
Note: The definition of construction in
section 4 covers some kinds of work on an existing road, railway or inter‑modal
transfer facility (hence the references above to the construction of an
existing road, railway or inter‑modal transfer facility).
55 Is
it appropriate to approve a project?
The matters to which the Minister may
have regard in deciding whether it is appropriate to approve a project as a
Nation Building Program Off‑Network Project include, but are not limited
to, the following matters:
(a) the extent to which the project is
likely to improve the ability of industries and communities to compete in
international, inter‑State or inter‑regional trade and commerce;
(c) the results of any assessment of
the economic, environmental or social costs or benefits of the project;
(d) the extent to which the project
will improve the safety of transport operations;
(e) the extent to which the project is
likely to improve access for communities to services and employment;
(f) for projects that relate to roads
in areas for which no local government authority has responsibility—the extent
to which the project will improve or maintain the serviceability of a road in
such an area;
(g) the extent to which persons other
than the Commonwealth propose to contribute funding to the project.
56
Submission of particulars of projects
(1) The Minister may invite the submission of
particulars of projects for consideration for approval as Nation Building
Program Off‑Network Projects.
(2) An invitation may be given:
(a) to such persons or bodies
as the Minister considers appropriate; and
(b) by any method that the Minister
considers appropriate.
(3) Subject to section 53, the Minister
may approve a project as a Nation Building Program Off‑Network Project,
whether or not particulars of the project were submitted in response to an
invitation.
(4) The Minister is not required to consider
a project for approval as a Nation Building Program Off‑Network Project
unless such particulars of the project as the Minister requires have been
submitted to the Minister.
57
Matters specified in project approval instrument
(1) The project approval instrument for a
Nation Building Program Off‑Network Project must:
(a) identify the project; and
(b) specify the maximum funding amount
that the Commonwealth may contribute to the project; and
(c) identify the eligible funding
recipient to which funding may be paid; and
(d) if the approval is conditional on
a funding agreement being entered into with the eligible funding
recipient—contain a statement to that effect.
(2) The project approval instrument for a
Nation Building Program Off‑Network Project must state that the approval
is conditional on a funding agreement being entered into with the eligible
funding recipient, unless the recipient is:
(a) a State; or
(b) an authority of a State; or
(c) a local government authority; or
(d) a body in which one of the
following persons or bodies has, or 2 or more of the following persons or
bodies together have, a controlling interest:
(i) the Commonwealth;
(ii) a State;
(iii) an authority of a
State.
Note: This subsection does not prevent the project
approval instrument from stating that the approval is conditional on a funding
agreement being entered into with a funding recipient of a kind referred to in paragraph (a),
(b), (c) or (d).
(3) The project approval instrument for a
Nation Building Program Off‑Network Project may exclude one or more
specified purposes from being purposes on which funding may be expended.
58
Requirements with which funding agreements must comply
If the project approval instrument for a
Nation Building Program Off‑Network Project states that the approval is
conditional on a funding agreement being entered into with the approved funding
recipient:
(a) the total amount of funding that
the agreement provides for must not exceed the maximum funding amount specified
in the project approval instrument; and
(b) the agreement must comply with any
other requirements (for example, requirements relating to the inclusion of
conditions) specified in the project approval instrument.
59
Variation or revocation of project approval instrument
(1) The Minister may, in writing, vary or
revoke the project approval instrument for a Nation Building Program Off‑Network
Project.
(2) A variation may be of a matter dealt with
in the project approval instrument before the variation, or to include a new
matter in the project approval instrument. The instrument as varied must be
consistent with section 57.
Note: For example, the project approval instrument
may be varied to change the eligible funding recipient to which funding will be
paid, or to specify a purpose that is excluded from the purposes on which
funding may be expended.
(3) If there is a funding agreement with the
approved funding recipient, the powers given by subsection (1) must be
exercised in accordance with any relevant provisions of the funding agreement.
(4) An instrument varying or revoking the
project approval instrument is not a legislative instrument for the purposes of
the Legislative Instruments Act 2003.
Division 2—Provision of Commonwealth funding
60
Commonwealth funding for Nation Building Program Off‑Network Projects
(1) Commonwealth funding for a Nation
Building Program Off‑Network Project may be provided to the approved
funding recipient:
(a) in accordance with section 61;
or
(b) if the project approval instrument
for the project states that the approval is conditional on a funding agreement
being entered into—in accordance with a funding agreement, entered into with
the approved funding recipient, that satisfies the requirements of section 58.
(2) The payments of funding are to be made
out of money appropriated by the Parliament.
61
Approval of provision of Commonwealth funding if no funding agreement
(1) The Minister may, in writing, approve the
provision of Commonwealth funding for a Nation Building Program Off‑Network
Project to the approved funding recipient. The Minister may, in writing, vary or
revoke the approval.
(2) The funding is to be provided in one or
more instalments paid to the approved funding recipient. Subject to subsection (3),
the amount and timing of an instalment are as determined by the Minister.
(3) The total amount of funding provided for
the project to the approved funding recipient must not exceed the maximum
funding amount specified in the project approval instrument.
(4) An instrument:
(a) approving the provision of
Commonwealth funding, or varying or revoking such an approval; or
(b) determining the amount or timing
of an instalment of funding;
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Division 3—Conditions that apply to Commonwealth funding
Subdivision A—Sources of conditions
62
Sources of conditions
(1) The conditions that apply to a payment
(the funding payment) of Commonwealth funding for a Nation
Building Program Off‑Network Project (the funded project)
to an eligible funding recipient (the funding recipient) are:
(a) the mandatory conditions (see
Subdivision B); and
(b) either:
(i) if the funding payment
is provided in accordance with section 61—the conditions (if any)
determined under Subdivision C; or
(ii) if the funding payment
is provided in accordance with a funding agreement—the conditions specified in
the funding agreement.
(2) A funding agreement entered into with a
local government authority, in relation to the provision of funding to the body
for a Nation Building Program Off‑Network Project, must include a
condition that requires the body to maintain the level of its expenditure on
roads, so far as that expenditure comes from sources other than Commonwealth,
State or Territory funding.
(3) A funding agreement may specify a
condition by applying, adopting or incorporating any matter contained in an
instrument or other writing as in force or existing from time to time.
Subdivision B—The mandatory conditions
63
This Subdivision sets out the mandatory conditions
The mandatory conditions are as set out
in this Subdivision.
64
Funding payment must be expended on the funded project
The funding payment must be wholly
expended on approved purposes in relation to the funded project.
65
Funding recipient must give Minister audited financial statements
For each financial year in which the
funding recipient spends or retains any of the funding payment, the funding
recipient must give to the Minister as soon as practicable, and in any event
within 6 months, after the end of that year:
(a) a written statement as to:
(i) the amount spent by
the funding recipient during that year out of the funding payment; and
(ii) the amount retained by
the funding recipient out of the funding payment as at the end of that year;
and
(b) a report in writing and signed by the
appropriate auditor stating whether, in the auditor’s opinion:
(i) the statement is based
on proper accounts and records; and
(ii) the statement is in
agreement with the accounts and records; and
(iii) the expenditure
referred to in subparagraph (a)(i) has been on the funded project.
66
Funding recipient must allow inspections by authorised persons
The funding recipient must, at all
reasonable times, permit a person authorised by the Minister:
(a) to inspect any work involved in
the carrying out of the funded project; and
(b) to inspect and make copies of any
documents relating to the funded project.
67
Amount repayable on breach of condition
(1) If the Minister notifies the funding
recipient in writing that the Minister is satisfied that the funding recipient
has failed to fulfil any condition that applies to the funding payment (whether
that condition is specified in this Subdivision, in a funding agreement or in a
determination under Subdivision C) then the funding recipient must repay
to the Commonwealth an amount equal to so much of the funding payment as the
Minister specifies in the notice.
(2) The Minister may, by notice in writing,
vary or revoke a notice given under subsection (1).
(3) If there is a funding agreement with the
funding recipient, the powers given to the Minister by subsections (1) and
(2) must be exercised in accordance with any relevant provisions of the funding
agreement.
(4) A notice under subsection (1), or an
instrument varying or revoking such a notice, is not a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
Subdivision C—Determination of other conditions if no funding agreement
68
Determination of other conditions if no funding agreement
(1) The Minister may, in writing, determine
other conditions that apply to the provision of funding in accordance with
section 61.
(2) The Minister may determine different
conditions to apply in different classes of situations.
Note: The Minister may, for example, determine a
condition that requires a local government authority that receives funding in
accordance with section 61 to maintain the level of its expenditure on
roads, so far as that expenditure comes from sources other than Commonwealth,
State or Territory funding.
(3) The Minister may, in writing, vary or
revoke conditions determined under subsection (1).
(4) An instrument determining, varying or
revoking conditions is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
(5) Despite subsection 14(2) of the Legislative
Instruments Act 2003, an instrument determining or varying conditions may
make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
Part 7—Nation Building Program Black Spot Projects
Division 1—Approval of projects as Nation Building Program Black Spot
Projects
69
What is a Nation Building Program Black Spot Project?
A Nation Building Program Black
Spot Project is a project for which an approval by the Minister under
subsection 70(1) is in force.
70
Approval of Nation Building Program Black Spot Projects
(1) The Minister may, in writing, approve a project
as a Nation Building Program Black Spot Project if, and only if:
(a) the Minister is satisfied that the
project is eligible for approval (see section 71); and
(b) the Minister considers that it is
appropriate to approve the project (see section 72).
(2) An instrument approving a project is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
71
What projects are eligible for approval?
A project is eligible for approval as a
Nation Building Program Black Spot Project if:
(a) the project is for the improvement
of road safety of a site (being all or part of any road); and
(b) the site is in a State; and
(c) the nature of the site has
contributed to, or is likely to contribute to, serious motor vehicle crashes involving
death or personal injury.
72 Is
it appropriate to approve a project?
The matters to which the Minister may
have regard in deciding whether it is appropriate to approve a project as a
Nation Building Program Black Spot Project include, but are not limited to, the
following matters:
(a) the accident history of the site
to which the project relates;
(b) the results of any assessment of
the safety benefits and the costs of the project;
(c) the results of any road safety
audit conducted in relation to the site;
(d) the extent to which persons other
than the Commonwealth propose to contribute funding to the project.
73
Submission of particulars of projects
(1) The Minister may invite the submission of
particulars of projects for consideration for approval as Nation Building
Program Black Spot Projects.
(2) An invitation may be given:
(a) to such States or authorities of a
State as the Minister considers appropriate; and
(b) by any method that the Minister
considers appropriate.
(3) Subject to section 70, the Minister
may approve a project as a Nation Building Program Black Spot Project, whether
or not particulars of the project were submitted in response to an invitation.
(4) The Minister is not required to consider
a project for approval as a Nation Building Program Black Spot Project unless
such particulars of the project as the Minister requires have been submitted to
the Minister.
74
Matters specified in project approval instrument
(1) The project approval instrument for a
Nation Building Program Black Spot Project must:
(a) identify the project; and
(b) specify the maximum funding amount
that the Commonwealth may contribute to the project; and
(c) identify the eligible funding
recipient, being a State or authority of a State, to which funding may be paid;
and
(d) if the approval is conditional on
a funding agreement being entered into with the eligible funding
recipient—contain a statement to that effect.
(2) The project approval instrument for a
Nation Building Program Black Spot Project may exclude one or more specified
purposes from being purposes on which funding may be expended.
75
Requirements with which funding agreements must comply
If the project approval instrument for a
Nation Building Program Black Spot Project states that the approval is
conditional on a funding agreement being entered into with the approved funding
recipient:
(a) the total amount of funding that
the agreement provides for must not exceed the maximum funding amount specified
in the project approval instrument; and
(b) the agreement must comply with any
other requirements (for example, requirements relating to the inclusion of
conditions) specified in the project approval instrument.
76
Variation or revocation of project approval instrument
(1) The Minister may, in writing, vary or
revoke the project approval instrument for a Nation Building Program Black Spot
Project.
(2) A variation may be of a matter dealt with
in the project approval instrument before the variation, or to include a new
matter in the project approval instrument. The instrument as varied must be
consistent with section 74.
Note: For example, the project approval instrument
may be varied to change the eligible funding recipient to which funding will be
paid, or to specify a purpose that is excluded from the purposes on which
funding may be expended.
(3) If there is a funding agreement with the
approved funding recipient, the powers given by subsection (1) must be
exercised in accordance with any relevant provisions of the funding agreement.
(4) An instrument varying or revoking the
project approval instrument is not a legislative instrument for the purposes of
the Legislative Instruments Act 2003.
Division 2—Provision of Commonwealth funding
77
Commonwealth funding for Nation Building Program Black Spot Projects
(1) Commonwealth funding for a Nation
Building Program Black Spot Project may be provided to the approved funding
recipient:
(a) in accordance with section 78;
or
(b) if the project approval instrument
for the project states that the approval is conditional on a funding agreement
being entered into—in accordance with a funding agreement, entered into with
the approved funding recipient, that satisfies the requirements of section 75.
(2) The payments of funding are to be made
out of money appropriated by the Parliament.
78
Approval of provision of Commonwealth funding if no funding agreement
(1) The Minister may, in writing, approve the
provision of Commonwealth funding for a Nation Building Program Black Spot
Project to the approved funding recipient. The Minister may, in writing, vary
or revoke the approval.
(2) The funding is to be provided in one or
more instalments paid to the approved funding recipient. Subject to subsection (3),
the amount and timing of an instalment are as determined by the Minister.
(3) The total amount of funding provided for
the project to the approved funding recipient must not exceed the maximum
funding amount specified in the project approval instrument.
(4) An instrument:
(a) approving the provision of
Commonwealth funding, or varying or revoking such an approval; or
(b) determining the amount or timing
of an instalment of funding;
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Division 3—Conditions that apply to Commonwealth funding
Subdivision A—Sources of conditions
79
Sources of conditions
(1) The conditions that apply to a payment
(the funding payment) of Commonwealth funding for a Nation
Building Program Black Spot Project (the funded project) to an
eligible funding recipient (the funding recipient) are:
(a) the mandatory conditions (see
Subdivision B); and
(b) either:
(i) if the funding payment
is provided in accordance with section 78—the conditions (if any)
determined under Subdivision C; or
(ii) if the funding payment
is provided in accordance with a funding agreement—the conditions specified in
the funding agreement.
(2) A funding agreement may specify a
condition by applying, adopting or incorporating any matter contained in an instrument
or other writing as in force or existing from time to time.
Subdivision B—The mandatory conditions
80
This Subdivision sets out the mandatory conditions
The mandatory conditions are as set out
in this Subdivision.
81
Funding payment must be expended on the funded project
The funding payment must be wholly
expended on approved purposes in relation to the funded project.
82
Funding recipient must give Minister audited financial statements
For each financial year in which the
funding recipient spends or retains any of the funding payment, the funding
recipient must give to the Minister as soon as practicable, and in any event
within 6 months, after the end of that year:
(a) a written statement as to:
(i) the amount spent by
the funding recipient during that year out of the funding payment; and
(ii) the amount retained by
the funding recipient out of the funding payment as at the end of that year;
and
(b) a report in writing and signed by
the appropriate auditor stating whether, in the auditor’s opinion:
(i) the statement is based
on proper accounts and records; and
(ii) the statement is in
agreement with the accounts and records; and
(iii) the expenditure
referred to in subparagraph (a)(i) has been on the funded project.
83
Funding recipient must allow inspections by authorised persons
The funding recipient must, at all
reasonable times, permit a person authorised by the Minister:
(a) to inspect any work involved in
the carrying out of the funded project; and
(b) to inspect and make copies of any
documents relating to the funded project.
84
Funding recipient must maintain records relating to motor vehicle crashes
(1) The funding recipient must maintain
records relating to the nature and frequency of motor vehicle crashes involving
death or personal injury occurring at the site of the funded project.
(2) The funding recipient must maintain the
records required by subsection (1) for a period of 5 years, commencing on
the receipt of the funding payment.
(3) The funding recipient must, at all
reasonable times, permit a person authorised by the Minister to inspect any
records maintained by the funding recipient as required by subsection (1).
85
Amount repayable on breach of condition
(1) If the Minister notifies the funding
recipient in writing that the Minister is satisfied that the funding recipient
has failed to fulfil any condition that applies to the funding payment (whether
that condition is specified in this Subdivision, in a funding agreement or in a
determination under Subdivision C) then the funding recipient must repay
to the Commonwealth an amount equal to so much of the funding payment as the
Minister specifies in the notice.
(2) The Minister may, by notice in writing,
vary or revoke a notice given under subsection (1).
(3) If there is a funding agreement with the
funding recipient, the powers given to the Minister by subsections (1) and
(2) must be exercised in accordance with any relevant provisions of the funding
agreement.
(4) A notice under subsection (1), or an
instrument varying or revoking such a notice, is not a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
Subdivision C—Determination of other conditions if no funding agreement
86
Determination of other conditions if no funding agreement
(1) The Minister may, in writing, determine
other conditions that apply to the provision of funding in accordance with
section 78.
(2) The Minister may determine different
conditions to apply in different classes of situations.
(3) The Minister may, in writing, vary or
revoke conditions determined under subsection (1).
(4) An instrument determining, varying or
revoking conditions is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
(5) Despite subsection 14(2) of the Legislative
Instruments Act 2003, an instrument determining or varying conditions may
make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
Part 8—Nation Building Program Roads to Recovery Program
87 Nation
Building Program Roads to Recovery List
The Nation Building Program Roads to
Recovery List must:
(a) specify the amounts of
Commonwealth funding that are to be provided under the Nation Building Program
Roads to Recovery Program during the funding period; and
(b) in relation to each of those
amounts, either:
(i) specify the name of
the person or body that is to receive the amount; or
(ii) state that the amount
is specified on account of a particular State, or a particular area of a State,
but the persons or bodies that are to receive the amount have not yet been
decided.
88
Variation of Nation Building Program Roads to Recovery List
(1) If:
(a) a person or body (the named
recipient) specified in a Nation Building Program Roads to Recovery
List ceases to exist before receiving the full amount (the named
recipient’s amount) specified for the named recipient in the List; and
(b) the Minister considers that one or
more other persons or bodies have taken over the responsibilities of the named
recipient;
the Minister may, in writing, vary the List to redirect
some or all of the remainder of the named recipient’s amount to the other
person or body, or to one or more of the other persons or bodies.
(2) If the Minister considers that:
(a) the amount specified in a Nation
Building Program Roads to Recovery List for a person or body (the named
recipient) was wholly or partly on account of a particular area for
which the named recipient was responsible; and
(b) before the named recipient
receives the full amount (the named recipient’s amount) specified
for the named recipient in the List, one or more other persons or bodies takes
over responsibility for all or part of that area;
the Minister may, in writing, vary the List to redirect
some or all of the remainder of the named recipient’s amount to the other
person or body, or to one or more of the other persons or bodies.
(2A) If:
(a) a Nation Building Program Roads to
Recovery List includes a statement referred to in subparagraph 87(b)(ii) in
relation to an amount; and
(b) the Minister considers that one or
more persons or bodies are or will become responsible for all or part of the
State or area referred to in the statement;
the Minister may, in writing, vary the List to direct some
or all of the amount to the person or body, or to one or more of the persons or
bodies.
(2B) If an amount is specified in a Nation
Building Program Roads to Recovery List in relation to a person or body, the
Minister may, in writing, vary the List to increase that amount.
(3) The Minister may, in writing, vary a
Nation Building Program Roads to Recovery List to correct an error or to update
the name of a person or body specified in the List.
(4) The Minister cannot vary a Nation
Building Program Roads to Recovery List except as permitted by
subsection (1), (2), (2A), (2B) or (3).
(5) An instrument varying a Nation Building Program
Roads to Recovery List is a legislative instrument, but section 42
(disallowance) of the Legislative Instruments Act 2003 does not apply to
the instrument.
(6) The Minister cannot revoke a Nation
Building Program Roads to Recovery List.
89
Payments to persons and bodies specified in Nation Building Program Roads to
Recovery List
(1) Subject to this section and to section 92,
each amount specified in a Nation Building Program Roads to Recovery List for a
Nation Building Program Roads to Recovery funding period is payable to the
person or body (if any) specified in the List for that amount.
(2) The amount is payable in one or more
instalments. The amounts and timing of instalments are as determined by the
Minister.
(3) The amount may only be paid during the
funding period.
(4) Payments under this Part are to be made
out of money appropriated by the Parliament.
(5) An instrument determining the amount or
timing of an instalment of funding is not a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
90
Conditions that apply to payments
(1) The Minister must, in writing, determine
the conditions that apply to payments under this Part.
(2) The conditions must include:
(a) a condition that requires the
payment to be spent on the construction or maintenance of roads; and
(b) a condition that requires the
expenditure to be properly accounted for; and
(c) for any payment that is made to a
local government authority—a condition that requires the authority to maintain
the level of its expenditure on roads, so far as that expenditure comes from
sources other than Commonwealth, State or Territory funding; and
(d) a condition that requires signs to
be displayed in relation to projects (other than maintenance programs) that are
funded under this Part.
(3) The conditions may also include
conditions requiring the funding recipient to repay amounts to the Commonwealth
in the event of a breach of any of the conditions.
(4) Subsections (2) and (3) do not limit
the matters that may be dealt with in the conditions.
(5) The Minister may, in writing, vary or
revoke any of the conditions.
(6) An instrument determining, varying or
revoking conditions is a legislative instrument for the purposes of the Legislative
Instruments Act 2003, but neither section 42 nor Part 6 of that
Act applies to the instrument.
(7) Despite subsection 14(2) of the Legislative
Instruments Act 2003, an instrument determining or varying conditions may
make provision in relation to a matter by applying, adopting or incorporating
any matter contained in an instrument or other writing as in force or existing
from time to time.
91
Minister’s power to waive conditions etc.
(1) The Minister may, by notice in writing to
a person or body:
(a) exempt the person or body from a
condition determined under section 90; and
(b) if the Minister considers it
appropriate to do so—specify a replacement condition to be complied with by the
person or body.
(2) The Minister may, by notice in writing to
the person or body:
(a) revoke the exemption; or
(b) vary or revoke a replacement
condition.
(3) The other conditions determined under
section 90 have effect in relation to a replacement condition as if
the replacement condition were a condition determined under section 90.
(4) A notice under subsection (1), or an
instrument revoking an exemption or varying or revoking a replacement
condition, is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Part 9—Miscellaneous
92
Recovery of amounts as debt due to Commonwealth
(1) An amount that a person or body is liable
to repay to the Commonwealth under a condition that applies to a payment under
this Act:
(a) may be recovered by the
Commonwealth as a debt in a court of competent jurisdiction; or
(b) may be deducted from any future
payment to the person or body under this Act.
(2) An amount that a person or body is liable
to repay to the Commonwealth under the conditions that apply to a payment made
under the Australian Land Transport Development Act 1988 or the Roads
to Recovery Act 2000 may be deducted from any future payment to the person
or body under this Act.
93
Delegation
(1) Subject to subsection (2), the
Minister may, by signed instrument, delegate to an SES employee, or an acting
SES employee, in the Department all or any of the Minister’s powers or
functions under this Act.
(2) The Minister’s powers and functions under
Part 2 are not to be delegated.
94
Annual report on operation of Act
As soon as practicable after the end of
each financial year that ends after the commencement of Parts 3, 4, 5, 6,
7 and 8, the Minister must cause a report to be tabled in each House of the
Parliament on the operation of this Act during the financial year.
95
Provision of funding otherwise than under this Act
This Act does not impliedly limit any
power of the Commonwealth to provide funding for, or in relation to, land
transport matters otherwise than under this Act.
96
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.