Bills Digest No.
14, 2022–23
PDF version [630KB]
Philip Hamilton
Politics and Public Administration Section
Rodney Bogaards
Economic Policy Section
Tim Brennan
Science, Technology, Environment and Resources Section
20
September 2022
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Key points
- The Bill establishes a statutory authority with the objective of leading the development of a high speed rail line along the east coast of Australia.
- The establishment of the High Speed Rail Authority (HSRA) as a statutory, Budget-funded, corporate Commonwealth entity (CCE) for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) is consistent with principles outlined in Department of Finance guidance in relation to the appropriateness and applicability of entity structures.
- The HSRA will managed by a part-time Board appointed by the Minister, and a CEO appointed by the Board, in consultation with the Minister.
- The functions of the HSRA include policy development and planning, and liaison with state and territory governments. The existing non-statutory National Faster Rail Agency (NFRA) will be abolished and its functions absorbed into the HSRA and the portfolio department.
- Since the 1980s, high speed rail proposals have been considered by Australian governments several times. No proposal has ever been implemented because governments have baulked at the significant costs, as well as risks and uncertainties, associated with such a long-term project.
- Aviation is a growing source of greenhouse gas emissions and there are limited technological options for significantly reducing the emissions from flying in the medium term. High speed rail could provide a low emissions alternative for intercity travel. The construction of a high speed rail line will, however, increase emissions and it may be several decades before the line will begin reducing emissions.
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Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Appendix A
Date introduced: 8
September 2022
House: House of
Representatives
Portfolio: Infrastructure,
Transport, Regional Development, Communications and the Arts
Commencement: On
the earlier of proclamation or 6 months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2022.
Purpose of
the Bill
The purpose of the High
Speed Rail Authority Bill 2022 (the Bill) is to establish the High Speed
Rail Authority (the HSRA) as a statutory corporate Commonwealth entity for the
purposes of the Public
Governance, Performance and Accountability Act 2013 (PGPA Act).
As defined by the Bill, the high speed rail network (HSR) will
connect Sydney, Melbourne, Brisbane and Canberra, and some regional centres on
the east coast of Australia or in New South Wales, Victoria or Queensland. In
relation to the HSR, ‘faster rail’ measures initiated under the Coalition Government
(which may link to the HSR), and associated corridors, the HSRA’s functions
include:
- leading
and coordinating policy development and planning
- consulting,
liaising and negotiating with states and territories and other relevant parties
- providing
advice and recommendations to the Minister and other relevant parties
- undertaking
evaluations and research and gathering information
- constructing
or extending railways for the HSR or a faster rail network (if the Commonwealth
has obtained a state’s consent or a territory’s consent).
The Bill also provides for the appointment of a Board and a
Chief Executive Officer (CEO) and allows the Minister to give written
directions to the HSRA about the performance of its functions.
Structure
of the Bill
This Bill comprises five parts:
- Part
1 provides a simplified outline of the High
Speed Rail Authority Bill 2022 and sets out the definitions of key terms
- Part
2 establishes the HSRA, including setting out its functions, and makes
provision for the Minister to give written directions to the HSRA about the
performance of its functions
- Part
3 sets out the terms and conditions of the Board of the HSRA, including an
outline of the Board’s functions
- Part
4 sets out the terms and conditions of the appointment of the CEO of the HSRA,
including an outline of the CEO’s functions. It provides that staff must be
employed under the Public
Service Act 1999 and enables the CEO to engage consultants to assist the
HSRA
- Part
5 outlines requirements for the HSRA’s corporate plan and a cycle of ten-year
reviews of the Act and rules, and the making of rules by the Minister.
Background
What is
High-Speed Rail
High-Speed Rail (HSR) is usually defined as train services
capable of travelling in excess of 250 kilometres per hour. This is how it
defined in this Bill. As the Phase 2 report of the Rudd
Government’s High Speed Rail Study highlights this typically cannot be
achieved simply by using faster trains but requires the construction of purpose-built
tracks (p. 46). Due to its speed, HSR often competes with aviation in
intercity markets.
Globally, many countries operate HSR networks. In the Geography
of Transport Systems, Rodrigue summarises the history of HSR, beginning
with its introduction in Japan in 1964 in time for the Tokyo Olympics. Since then,
Japan’s network of Shinkansen
(often referred to in English as ‘bullet trains’ but translating to ‘new trunk
line’) has expanded to connect most major Japanese cities. From the 1980s, HSR
rail networks began to be constructed in Europe and are now operating in France,
Germany, Italy, Spain, Belgium, the United Kingdom, and the Netherlands. In
Asia, Kao
and Lin describe how Japanese corporations were engaged to construct
Taiwan’s HSR, which opened in 2007. The most significant growth of HSR has,
however, been in China. Operation of the first Chinese HSR line only began in
2008 but, as CNN
reports, it now has the world’s largest HSR network, with 37,900 kilometres
of lines in operation, and plans to almost double that size by 2035.
High-Speed Rail in Australia: a brief history
HSR along the Australian east
coast has been an aspirational goal of various private sector interests,
political parties and governments since the 1980s. However, no proposal has ever been implemented because governments
have baulked at the significant public sector funding contribution and/or other
financial concessions required to make the proposal commercially viable for
private sector proponents given the risks and uncertainties associated with such
a long‑term project.
The first serious iteration of the concept was the Very
Fast Train (VFT) proposal for a HSR line between Sydney, Canberra and Melbourne
(with a possible extension to Brisbane). The project was backed by corporate
heavyweights BHP, Elders IXL, TNT and Japanese construction company Kumagai
Gumi. Following several government inquiries, however, the project folded in
August 1991, after failing to garner Australian Government support for the
significant tax concessions its corporate supporters had proposed.
Following the collapse of the VFT project, in the
mid-1990s a HSR line known as the Very High Speed Train (VHST) was proposed to
provide a service between Sydney and Canberra (for more information on the VFT
and VHST, see Parliamentary Library Background Paper Australian
Very Fast Trains–A Chronology). However, the tender process with the
Speedrail consortium—the consortium that had come closest to meeting the tender
requirements—was terminated by the Minister for Transport and Regional Services
in December 2000 (see media
release) because its bid did not meet the ‘no net cost to government’
criterion.
2010 High Speed Rail feasibility study
In August 2010 then Minister for Infrastructure and
Transport Anthony Albanese announced
a $20 million High Speed Rail feasibility study (HSR study). The study was
undertaken in two phases:
- Phase 1,
published in July 2011, identified a short list of corridors and station
options and estimated preliminary costs and demand for HSR on the east coast of
Australia.
- Phase 2,
published in April 2013, built on Phase 1 but was considerably broader and
deeper in objective and scope, and so refined many of the Phase 1 estimates,
particularly the demand and cost estimates.
The HSR Phase 2 study (hereafter, Phase 2 study) forecast
a travel time between Sydney and Brisbane of 2 hours 37 minutes, between Sydney
and Melbourne of 2 hours 44 minutes and between Sydney and Canberra of 64
minutes (p. viii). The entire line was forecast to be completed by 2058 (45
years after the release of the report), with the Sydney to Melbourne section
scheduled for completion by 2040 (p. x).
Project
costing
The project was estimated to cost $114 billion (in 2012
terms, approximately $135 billion in 2021 terms), comprised of $64 billion ($76
billion in 2021) for Brisbane to Sydney and $50 billion ($59 billion in
2021) for Melbourne to Sydney (p. viii). Significantly, the study anticipated
that governments would be expected to fund 86% of the upfront capital cost (p.
xi). However, once completed, the HSR system was expected to generate
sufficient operating income to cover operational and maintenance costs (p. xi).
The Phase 2 study noted that forecasts of costs and of passenger
numbers, decades in the future, were inherently uncertain. The study added,
however, that it is ‘most likely that demographic trends will support a
steadily improving case for HSR on the east coast rather than otherwise’ (p. xiv).
The economic assessment in the Phase 2 study concluded
that a future HSR program could deliver positive net economic benefits—with
most of the benefits accruing to long-distance business travellers travelling
between Sydney, Canberra, Melbourne, and Brisbane—rather than regional
communities (p. xii).
Economic
costs and benefits
When calculated using a discount
rate[1]
of 4% the economic benefit cost ratio was 2.5 for Sydney‑Melbourne and
2.3 for the whole network (p. xii). However, when calculated using a more
conventional 7% discount rate, which represents a higher hurdle for judging
economic performance, the economic benefit cost ratio was only 1.1 for the
whole network (that is, the benefits are only slightly larger than costs) (p. xii).
Moreover, with a 4% discount rate the community net benefit of the HSR project was
$101.3 billion, whereas with a 7% discount rate the community net benefit is
$4.9 billion (pp. 365–366). This indicates the economic evaluation of HSR in
this study was highly sensitive to the discount rate chosen. The recent media
statement by the Minister for Infrastructure, Transport, Regional
Development and Local Government, that HSR ‘would return over $2 for every $1
of investment’ is evidently based on the lower discount rate.
Choice of
discount rate
A discount rate of 4% is at the lower bound of discount
rates for major project evaluation. Lower discount rates place relatively high
values on the benefits that occur in the future (compared to higher discount
rates). It is important to note that the majority of HSR costs are upfront
capital costs and therefore are less affected by the discount rate chosen
because they occur at the start of the project.
Infrastructure Australia (IA), in its Guide
to Economic Appraisal (p. 23), recommends that three discount rates can
be used for economic appraisals of infrastructure projects: 4%, 7%, and 10%. IA
states that (p. 23):
To increase transparency, our project evaluations present the
economic appraisal results using all three discount rates to show the range of
analysis.
Although IA recommends that all three discount rates be
used, it recommends that 7% be used for the ‘central case’. IA further states
that these three rates (with 7% as the central case) should be used as (p. 23):
This aligns with the majority of current national, state and
territory guidelines on [cost-benefit analysis] in Australia. In cases where a
different real discount rate is used in an appraisal, the basis for doing so
should be specified.
The Phase 2
study uses two discount rates, 4% and 7%, but the 4% rate is the primary rate
used in the headline results. The Phase 2 study explained that (p. 364):
A four per cent discount rate has been assessed as suitable
for large scale and long-life infrastructure projects such as HSR. This is
consistent with international experience and the Australian Transport Council
(ATC) guidelines and has therefore been adopted as the discount rate for the
primary evaluation of HSR.
The 7% discount rate is typically the primary rate used in
presenting the costs and benefits of large infrastructure projects. For example,
the Western
Sydney Airport business case (p. 14), and IA business case evaluations of the
Melbourne
Metro (p. 1) and Sydney’s M4
(p. 1) and M12
(p. 1) Motorways (p. 1). However, 4% discount rates are also used in some
cases, for example, the Brisbane
Airport New Parallel Runway (p. A2‑90), the Inland
Rail (p. 12), and the Melbourne
Suburban Rail Link (p. 39).
In its May 2020 report, Fast Train Fever,
the Grattan Institute argued that HSR in Australia is not feasible due to the
nation’s small and dispersed population (p. 3). Grattan was also critical of
the low discount rate, suggesting it artificially inflated the Phase 2 study’s
benefit estimates. Grattan also noted that it was likely that a much lower
economic benefit-cost ratio would be generated if a study was conducted today
following the decision to build a second Sydney airport because it would affect
passenger demand. Moreover, Grattan suggested that if a further study was
undertaken it would need to be more explicit about how to fund the large
upfront and ongoing costs of HSR over the life of the project (p. 12).
Recommended
delivery model
The Phase 2 study outlined the potential steps that would
be required prior to the construction of the HSR. The preparation work would
begin with protection of the HSR corridor and reaching agreement between the
Australian, ACT and state governments on objectives, timelines, and dispute
resolution mechanisms. The Phase 2 study proposed that this should begin with a
Memorandum of Understanding (MoU) between the governments to formalise the
responsibilities of the parties. The MoU would enable governments to commit
money towards corridor protection and early planning work (pp. 40-41). The
Phase 2 study also suggested that the HSR authority be established following
the MoU and that it should be co-owned by the Australian, ACT and state governments
(p. 40).
The Phase 2 study’s
preferred model for delivering the HSR envisaged significant roles for both the
public and private sector. The preferred model involved governments contracting
work packages through competitive tenders but retaining responsibility for
integrating the completed works. Once completed, the model envisaged the
operation of train services being contracted to the private sector with governments
retaining an oversight role to ensure that agreed price and service quality
metrics were achieved. This model was compared to the Japanese HSR system where
a state‑owned entity is responsible for the development and strategic
management of the network but train operations are contracted to private
companies which pay a fee for use of lines (p. 39). Although this level of
detail is not explicitly discussed, the Bill appears to allow for a governance
structure resembling the Phase 2 study’s preferred model.
2013 High Speed Rail Advisory Group
In April 2013, at the release of the HSR Phase 2 study,
the High Speed Rail Advisory Group was announced. The advisory group was to
advise on key industry and community issues arising out of the HSR Phase 2
study.
In August 2013, the advisory group published its report, On Track: Implementing
High Speed Rail in Australia. The advisory group made recommendations
to:
- formally
commit to high speed rail and settle arrangements with state and territory
governments
- protect
the corridor (initially through national legislation)
- refer
high speed rail to Infrastructure Australia for initial assessment
- establish
a High Speed Rail Authority.
In a media
release on 8 November 2013 the new Coalition Government announced that the
advisory group was abolished.
High Speed Rail Planning Authority Bill introduced
to Parliament multiple times
A private member’s Bill known as the High Speed Rail
Planning Authority Bill (HSRPA Bill), was introduced to the Parliament on five
separate occasions between 2013 and 2018:
The HSRPA Bill proposed to establish a planning authority
to advise on, plan and develop high speed rail on the east coast of Australia
and ensure the rail corridor is reserved. According to Anthony Albanese’s Second
Reading Speech on the 2018 HSRPA Bill:
The idea is that this authority's immediate priorities would
be to finalise the track alignment and to work with Infrastructure Australia on
the finalisation of a detailed business case, and it would then be able to go
out to the private sector. We know that so many companies who've been
successful in high-speed rail, construction and operation in Japan, China and
Europe would be willing to participate. We know this because they've told us
that that is the case.
According to the Parliamentary Library’s Flagpost High
Speed Rail for Australia – A Fast Track or Just the Same Old Pipe Dream?,
the Authority’s major functions were to involve land use planning for the HSR
corridor and directing the HSR’s development and construction. The Authority
was to also consider specific measures related to environmental impacts; ensure
that the HSR system provides a safe, regular, efficient and cost-effective rail
transport system; and consult with interested bodies and the public on matters
related to the HSR system generally.
2016 Corridor preservation for east coast High
Speed Rail
The preservation of a corridor for an east coast HSR line
was added to Infrastructure Australia’s Infrastructure
Priority List in 2016 and, as of February
2022, remained on the list. Modelling by Infrastructure Australia in 2017
estimates the net cost of protecting and acquiring the corridor at $2.8 billion
(2016 prices) using a 7% real discount rate.
2019 A change of t(r)ack: from ‘high speed rail’ to
slower ‘faster rail’
In March 2019, the Australian Government released the Faster
Rail Plan, which focused on improving the speed of rail in key travel corridors
(not necessarily through HSR). The Plan noted that some Australian rail lines
are currently extremely slow, for example, rail travel between Sydney and
Wollongong averages less than 60km per hour. The plan announced that a National Faster Rail Agency (NFRA) would be
established and business cases undertaken to assess the viability of upgrading
key rail corridors.
The NFRA
website reports that the former Australian Government committed $79 million
to develop faster rail business cases. Business cases have been completed for
the following rail corridors:
- from
Sydney to: Newcastle; Wollongong/Bomaderry; and Parkes
- from
Melbourne to Greater Shepparton
- from
Brisbane to: the Gold Coast (part 1); and the Sunshine Coast.
Business cases have also commenced for the following rail
corridors:
- Melbourne
to Warrnambool, Ballarat, Bendigo, Shepparton, Albury-Wodonga and Traralgon
(due for completion by mid-2022)
- Brisbane
to Gold Coast (part 2 – due for completion mid-2022)
- Melbourne
to Geelong (due for completion end of 2022)
- Perth
to Bunbury (due for completion in 2024).
According to the NFRA
website, the former Government also committed funding for construction of the
following projects:
- Brisbane
to the Gold Coast: In the 2021-22 Budget the Government committed $178.1 million,
which was matched by the Queensland Government, for the Kuraby to Beenleigh
section of this line. In the 2022-23 Budget the Government committed a further
$1.12 billion to this project
- Brisbane
to Sunshine Coast: In the 2022-23 Budget the Government committed $1.6 billion
for a 37-kilometre line between Beerwah and Maroochydore
- Sydney
to Newcastle: In the 2022-23 Budget the Government committed $1.0 billion
to the Tuggerah to Wyong section of this line
- Melbourne
to Geelong: the Australian and Victorian Governments have each committed $2 billion
to Stage 1 of this project which will reduce travel time between the two cities
by 10–15 minutes. Pre-construction is expected to commence in 2023.
2020 Financing faster rail inquiry
In December 2020, the House of Representatives Standing Committee
on Infrastructure, Transport and Cities released the Fairer funding
and Financing of Faster Rail report of its inquiry into financing
faster rail. The report recommended that the Commonwealth, in consultation with
state, territory, and local governments, develop mechanisms to fund rail
infrastructure using a ‘value capture’ model. According to Infrastructure
Australia’s Capturing
Value report, value capture is the act of collecting a portion of the
benefits from public infrastructure investments that flow to the value of land
(for example, through betterment levies, developer charges, leveraging
government land, taxes on property transactions and taxes on land value). The
Committee also made recommendations relating to how these mechanisms should be
developed.
2021 Labor commits to establishing a High Speed
Rail Authority
In a media
release on 15 November 2021 then Opposition leader Anthony Albanese
indicated that a Labor Government would ‘kickstart high speed rail by
establishing the High Speed Rail Authority and updating the business case for
this nation-building project’.
2022 and further down the track
On 8 September 2022 the Minister for Infrastructure,
Transport, Regional Development and Local Government announced
that the Government would be introducing legislation to establish the High
Speed Rail Authority.
The Authority will build on previous work including the
comprehensive study, commissioned under former Infrastructure Minister and now
Prime Minister Anthony Albanese, that found high speed rail was not only
viable, but would return over $2 for every $1 of investment …
The first priority of the Authority will be planning and
corridor works for the Sydney to Newcastle section of the high-speed rail
network, backed by a $500 million commitment from the Australian Government.
This commitment will see corridor planning and early works progress
in this fast-growing region of the east coast.
While the Authority works closely with the New South Wales
Government on this section, it will continue to advance plans for other
sections of the high-speed rail network, which will eventually connect Brisbane
to Melbourne, with stops in Canberra, Sydney and regional centres.
Potential
route
As yet, the route of an east coast high speed rail line is
not finalised, and this is likely to be one of the HSRA’s priorities. Previous
plans have often focussed on a Melbourne-Sydney-Brisbane route, which would
necessitate the involvement of the Governments of Victoria, New South Wales,
and Queensland in the project’s development. The route may also include
Canberra, which would require the involvement of the Australian Capital Territory
Government.
The Phase 2 study presented perhaps the most detailed
consideration of an east coast HSR route to date. The Phase 2 study’s approach
to selecting the route included consideration of user benefits (such as travel
times), accessibility to existing transport infrastructure, environmental and
social impacts, comparative cost estimates, and construction risk (pp. 138–139).
The Phase 2 study’s recommended route followed a ‘coastal
alignment between Brisbane and Sydney, followed by an inland alignment from
Sydney to Melbourne, with spur lines to the Gold Coast and Canberra’ (p. 4) The
route includes four capital city stations (each in the CBD), an additional four
city-periphery stations (one each in Melbourne and Brisbane and two in Sydney),
and 12 regional stations (p. viii). See Appendix A for a map of the route
proposed in the Phase 2 study.
Environmental
impacts
In the period since the last major study of HSR in
Australia there has been increasing international agreement that there is a
need for the world to move towards net zero greenhouse gas emissions. Globally,
this is encapsulated in the Paris
Agreement, which includes a commitment to carbon neutrality by mid‑century.
In Australia, the Government has committed, in the Climate Change Act
2022, to a 43% emission reduction by 2030 and net-zero emissions by
2050 (see p. 27 of the Parliamentary Library’s Bills
Digest).
Displacing
aviation emissions
Long-distance travel, currently mainly served by aviation,
is one of the more challenging sectors to decarbonise. Although currently a
relatively small component of overall emissions, as other sectors decarbonise, aviation’s
growing share of carbon budgets is likely to be the focus of increasing attention.
As an alternative long-distance transport option HSR could, potentially, divert
passengers from aviation and reduce transport emissions.
According to Australia’s
National Greenhouse Accounts, in 2019[3]
air and space transport (which is predominantly domestic aviation)[4]
accounted for 8.5 million tonnes of CO2-equivalent (Mt CO2e)
greenhouse gas emissions. Unlike the economy as a
whole, air and space emissions have been gradually rising and, although it represents
just 1.64% of Australia’s total emissions, this is a 4-fold increase on its
proportion of emissions in 1990 (0.41%).[5]
In 2016, the Department of the Environment and Energy estimated
that domestic aviation emissions will increase at an average of 2.2% per year
to 2034–35 despite improving aircraft technology and increasing uptake of
alternative fuels (p. 2).
Additionally, the emission of high-altitude non‑C02
emissions is believed to have significantly greater global warming
potential. Carbon
Brief reports that the IPCC has previously estimated that the total global
warming impact of aviation is likely to be 2 to 4 times higher than the CO2e
emissions would suggest, but that it is proving challenging to improve the
accuracy of this figure.
The outlook for reducing emissions in the aviation sector
is challenging. Whitehead
and Kane report that small electric aircraft already exist and could play a
role in short-haul (less than 500km) transport in coming decades. For longer
journeys, sustainable aviation fuels (SAF) made from renewable feedstocks are
likely to be a key technology. Virgin Australia is currently trialling blending
SAF with jet fuel in flights
leaving from Brisbane. SAFs have the advantage that they can be used with
existing planes and infrastructure. However, they still produce some emissions
and (at least currently) are only being used in small proportions blended with
jet fuel. An article by Harris
estimates that for a global 25% jet fuel market share, a USD$1.3 trillion investment
in SAFs would be required.
Given the driving distances between Australia’s major
cities and the challenges in decarbonising the aviation sector, there is a need
for a low-emissions fast transport option. It would appear that HSR might be
able to fill this role, although the potential climate impacts of a HSR line are
the subject of competing views.
Emissions
from construction and operation of HSR
The International
Energy Agency and International Union of Railways estimate that the energy
usage of HSR is about 90% lower than aviation per passenger kilometre (p. 93). Additionally,
it is likely that the electricity used to power HSR will become increasingly
emissions free as more renewable is deployed into the grid.
An analysis by Robertson found that a
HSR network would reduce emissions on travel between Sydney and Melbourne by an
average of 56% to 69% per year over the project life cycle. Although Robertson’s
study included operation and construction emissions, it did not include the
effect of high‑altitude non-CO2 emissions (which would likely
increase the benefits of HSR) or the effect of additional travel due to induced
demand[6]
(which would likely lessen the benefits of HSR).
Although it appears likely that the construction of a HSR
would, over a long-time period, result in a significant reduction in transport
emissions. The difficulty lies in the fact that it will be many years before these
emission reductions are realised. The Grattan Institute
found that, for a period of between 24 and 36 years, during the construction of
the project, emissions would increase (p. 22). Additionally, from the time
of committing to building the HSR, it ‘would not be until somewhere between
year 39 and year 51 that the bullet train would lead to lower emissions than if
the train had not been built’ (p. 23). There may be some capacity to lower
construction emissions due to developments in green
steel and other technologies, but, nevertheless, construction will
inevitably result in a period of increased emissions.
Other environmental impacts
A HSR rail line can be expected to have local
environmental impacts in the areas that it passes through. Depending on the
nature of these impacts they may initiate approval processes such as those
outlined in the Environment
Protection and Biodiversity Conservation Act 1999.
Additionally, a HSR line would have noise impacts (see
pages 131–133 in Phase
2 study). In the regional and rural areas that the HSR will pass through
this is likely to result in increased noise. In some urban areas, however, the
potential diversion of passengers from flights to HSR could result in decreased
noise.
Appropriateness of the entity model chosen for the HSRA
Following commitments to faster rail in the 2019–20
Budget, in July 2019 the National
Faster Rail Agency (NFRA) was established as an Executive
Agency within the then Infrastructure, Transport, Regional Development and
Communications portfolio, with a Chief
Executive Officer (CEO) appointed in December 2019. This administrative
measure did not require legislation.[7]
The Explanatory
Memorandum to the Bill states that, with the establishment of the HSRA, the
NFRA will be abolished and its functions absorbed into the HSRA and the
Department.
When deciding on the appropriate means by which to deliver
a service or execute a function, a significant source of information and guidance
is the PGPA Act, the key legislation with regard to governance and
administration of the public sector.[8]
Within the context of PGPA Act requirements, the
Department of Finance (Finance) classifies Commonwealth entities into 13
categories.[9]
Table 1, compiled by the Parliamentary Library from several Finance
sources, outlines the 13 categories with selected examples, including the
current and proposed categorisations of the HSRA.[10]
Table 1: Department of
Finance classification of Commonwealth entities into thirteen categories
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1. PRIMARY
(or Principal) bodies
are part of the
Commonwealth,
or have a
separate legal status
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2. SECONDARY
bodies
are established within a Primary body
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3. OTHER
bodies
are established
by
Commonwealth involvement
through membership or investment
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Secondary statutory
structures
are established by legislation
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1.1 Non-corporate Commonwealth Entities (NCEs)
NCEs are legally and financially part of the
Commonwealth, and include:
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2.1 Statutory advisory structures
Majority of members are likely to be external to the
Australian Government.
- Aged Care Quality and Safety Advisory Council
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3.1 Ministerial Councils and related bodies
Ministerial Councils provide a forum for
Commonwealth, State and Territory Ministers to discuss national policy
issues.
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- parliamentary departments
- Australian Bureau of Statistics
- listed entities prescribed by rules made under
the PGPA Act, or another Act
Examples of listed entities currently
prescribed by Schedule 1 of the PGPA Rule include:
- Geoscience Australia (DISER portfolio)
- IP Australia (DISER portfolio)
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2.2 Statutory office holders, offices and committees
Do not usually incur expenditure on their own account
nor prepare separate accounts. Instead, where expenditure is incurred, it is
accounted for through the accounts of a parent body.
- Gene Technology Regulator
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3.2 National law bodies
These bodies are established under consistent laws
enacted in every State and Territory, usually the result of some form of
intergovernmental agreement. They may be incorporated.
- Australian Health Practitioner Regulation Agency
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Secondary non-statutory
structures
are established without legislation
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- National Heavy Vehicle Regulator
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1.2 Corporate Commonwealth Entities (CCEs)
A CCE is a body corporate that has a separate legal
personality from the Commonwealth, and can act in its own right exercising
certain legal rights such as entering into contracts and owning property.
Most CCEs are financially separate from the Commonwealth.
- CSIRO
- National Gallery of Australia
- Reserve Bank of Australia
The Bill would establish the HSRA as a Corporate
Commonwealth Entity (CCE).
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2.3 Non-statutory advisory structures
Majority of members are likely to be external to the
Australian Government.
- Foreign Investment Review Board
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3.3 Interjurisdictional and international bodies
Bodies established by the Australian Government as a
result of treaty obligations or negotiated agreements with individual or a
number of governments (State, Territory or international).
- Australia-New Zealand Counter-Terrorism Committee
- Northern Territory Fisheries Joint Authority
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1.3 Commonwealth companies
A company established under the Corporations Act
2001 that the Commonwealth controls. A Commonwealth company is legally
and financially separate from the Commonwealth. Some are Government
Business Enterprises (GBEs).
- Aboriginal Hostels Ltd
- Bundanon Trust
- NBN Co Ltd (a GBE)
- RAAF Welfare Recreational Company
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2.4 Non-statutory functions with separate branding
Often responsible for the delivery of services to the
public and/or to government.
- Centrelink
- Comcare
- Comcover
- Medicare
- NFRA (established as an Executive Agency in July 2019)
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3.4 Structures linked to the Australian Government
through statutory contracts, agreements and delegations
These bodies are owned and operated by the private
sector, but have been recognised in legislation or a legislative instrument,
or are party to a statutory contract/funding agreement to deliver services on
the Government’s behalf.
- Australian Housing & Urban Research Institute
(AHURI)
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3.5 Joint ventures, partnerships and interests in
other companies
- Law Courts Ltd (jointly with NSW Govt)
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3.6 Subsidiaries of CCEs and Commonwealth companies
- Star Track Pty Ltd (subsidiary of AusPost)
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Source: This table has been compiled by the Parliamentary
Library using information from the following sources: Public Governance,
Performance and Accountability Rule 2014; Department of Finance (DoF), Australian
Government Organisations Register - Types of Bodies, (Canberra: DoF, 20
July 2018); ‘Types
of Australian Government Bodies’, DoF, 11 February 2021; ‘PGPA glossary’, DoF.
The establishment of the HSRA as a statutory,
Budget-funded, corporate Commonwealth entity (CCE) for the purposes of the PGPA
Act is consistent with the following principles outlined by Finance
guidance in relation to the appropriateness and applicability of entity structures:
Commonwealth
Governance Structures Policy (Governance policy): Governance structures
created through enabling legislation (e.g. a primary or a secondary statutory
body) have clearly defined purposes authorised by Parliament.
‘Types
of Australian Government Bodies’: A corporate Commonwealth entity is a body
corporate that has a separate legal personality from the Commonwealth. A corporate
Commonwealth entity can enter into contracts and own property separate from the
Commonwealth.
Corporate Commonwealth entities are still part of the
Australian Government. … Creating a corporate Commonwealth entity may be
suitable if:
-
the body will operate commercially or entrepreneurially
-
a multi-member accountable authority will provide optimal governance for
the body
-
there is a clear rationale for the assets of the body not to be owned or
controlled by the Australian Government
-
the body requires a degree of independence from the policies and
direction of the Australian Government.
Governance
assessment template – creating a new body: A governing board or
multi-member accountable authority is usually established for a Commonwealth
entity or company when collective decision-making and diverse expertise (beyond
what can be expected from one individual) are required to govern the body.
Boards are usually given autonomy to determine an entity’s corporate strategy
and direction (subject to statutory constraints) and therefore can operate with
a managerial freedom.
‘Types
of Australian Government Bodies’: The PGPA Act does not give
ministers a general power to direct the activities of a corporate Commonwealth
entity. It does give broad powers to require the entity to provide information
about its activities.
Corporate Commonwealth entities are generally not required to
comply with policies of the Australian Government except where there is:
-
a direction from the responsible Minister under the enabling legislation
-
a government policy order.
The Finance guidance compares CCEs with Commonwealth
companies. A company structure does not appear to be a good match for the
proposed form and functions of the HSRA.
‘Types
of Australian Government Bodies’: Creating a Commonwealth company may be
suitable if:
-
the body will primarily conduct commercial or entrepreneurial activities
and will generate profits for distribution to its members
-
the body will operate in a commercial or competitive environment (at
arm’s length from government)
-
the Australian Government is going the sell the body in the short to
medium term.
The Finance guidance notes that ‘issues’ can arise when
using a company structure.
‘Types
of Australian Government Bodies’: Lack of scrutiny
-
there is no formal opportunity for parliamentary scrutiny before a
company is established
-
the objects of a company may be amended by its members without
parliamentary scrutiny
-
a company can borrow and invest money without government approval.
Budget funding
-
Commonwealth companies may not be able to enter into multi-year
agreements if they rely on annual funding from the government. Lack of funding
certainty may affect their ability to pay debts when they fall due.
Public perception
-
there may be an assumption, or a public perception, that there is a
government guarantee for the operations of a Commonwealth company in the event
of its failure.
Taxes
-
a company is generally liable to pay Commonwealth, state and territory
taxes and charges, whereas enabling legislation may exempt a statutory body
from these taxes and charges.
Committee
consideration
At the time of writing the Bill has not been referred to Committee.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Bill has not been considered
by the Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee).
However, the Bill includes a provision of a type that has previously attracted the
attention of the Scrutiny of Bills Committee.
Under clause 11, the Minister may, by legislative
instrument, give written directions of a general nature to the HSRA about the
performance of its functions. Under subclause 11(3), the HSRA must
comply. Such legislative instruments will not be subject to disallowance by the
Parliament, as directions by a Minister to a person or body are exempt from
this process (Legislation
Act 2003, paragraph 44(2)(b) and Legislation
(Exemptions and Other Matters) Regulation 2015, section 9, table item 2).
In its Scrutiny
Digest 2 of March 2022, the Scrutiny of Bills Committee raised concerns
about Ministerial directions not being subject to parliamentary disallowance in
relation to the Australian
Radioactive Waste Agency Bill 2022 (the ARWA Bill). The Scrutiny of Bills
Committee noted its expectation that such exemptions be fully justified in a
Bill’s Explanatory Memorandum, and that ‘the fact that a certain matter has
previously been within executive control or continues or is consistent with
current arrangements does not, of itself, provide an adequate justification’
(p. 25).’ The Scrutiny of Bills Committee sought the Minister’s advice as
to:
… why it is considered necessary and appropriate to provide
that directions given [to the agency and the CEO] are not subject to
disallowance; and
whether the [ARWA] bill could be amended to provide that
these directions are subject to disallowance to ensure that they are subject to
appropriate parliamentary oversight (pp. 26-27).
Policy
position of non-government parties/independents
Coalition
The Coalition, when recently in Government, had been investigating
faster rail options, not specifically HSR. Then Deputy Prime Minister Michael McCormack
was quoted in the rail industry publication Rail
Express saying that he would like to see HSR in his lifetime, but Australia’s
geographic size and small population makes HSR difficult and ‘there are other
priorities at hand’.
Australian
Greens
In 2020, the Greens’ Invest
to Recover plan committed to a ‘fully publicly owned high speed rail
connection from Melbourne to Brisbane’. Prior to the 2019 election, the
Australian Greens in their policy document, World
Class Public Transport, pledged to establish a High Speed Rail
Authority and provide $1.6 billion in funding ‘to cover the first four years of
expenses’.
Earlier, in 2012 the Greens
released the report, High Speed Rail:
Benefits That Add Up outlining the direct and indirect benefits from
HSR, including the time saved by consumers, congestion savings, accident
reductions and pollution reduction.
Position of
major interest groups
Australasian
Railway Association
The Australasian Railway Association (ARA) has not commented
on the introduction of the HSRA Bill. However, in its publication Faster
Rail In Australia, it proposes a three-step approach to achieving HSR
in the longer term:
- act
now to deliver faster rail by achieving top speeds on the network from 160km/h
to 200km/h so rail travel times compete with road
- establish
new fast rail lines in the next 5 to 10 years by building new tracks, improving
the existing network and purchasing new trains to achieve speeds from 200km/h
to 250km/h
- prepare
for high speed rail in the longer term with trains travelling faster than 250km/h
by securing rail corridors now to minimise project costs in the future.
MacroBusiness
blog
This business and investment blog
opposed the announcement of the HSRA Bill for three main reasons related to the
HSR network which underpins the establishment of HSRA:
1. The exorbitant cost associated with building and operating
the rail line
2. Lack of population density to support the project
3. Lack of competitiveness against air travel unless there are
massive ongoing operational subsidies from taxpayers.
The blog’s author Leith van Onselen suggested the biggest
barrier to the ‘HSR boondoggle’ is building the track from the outskirts of
Sydney, Melbourne or Brisbane into their respective CBDs.
These trains are not compatible with suburban commuter trains
unless they slow to the same slow speeds due to alignment and congestion, in
which case they are no longer HSR. Further, the current commuter train systems
in Sydney and Melbourne are already at capacity and cannot cope with existing
demands, let alone imposing a HSR network.
This means HSR would need to be separated from the existing
commuter network via new train lines and stations. And since our major cities
are already build-out, this would necessarily require acquiring some of the
most expensive capital city real estate in the world or tunnelling under it,
either of which would cost a fortune.
Urban
Development Institute of Australia
In response to the release of the HSRA Bill the Urban
Development Institute of Australia (UDIA) commented in the Australian
Financial Review that ‘Plans have to be carefully tuned to ensure we
link future cities [and] have well-thought-out, strategic plans well ahead of
any transport rollout’.
State and
Territory Governments
State and territory governments will be critical to any
development of a high speed rail network in Australia. They do not appear to
have made specific comments on the Bill and commitments
to the concept of an east coast HSR have also been limited. For example, HSR is
not mentioned in the Victorian
Infrastructure Plan 2021, the Queensland Government’s State
Infrastructure Strategy: June 2022, or the New South Wales Government’s
Staying
Ahead: State Infrastructure Strategy 2022–2042. The Australian Capital
Territory Government’s website
states that it has ‘commenced corridor preservation for a high-speed rail
service into the ACT and will reflect this in its future planning’.
Financial
implications
The Explanatory
Memorandum states that ‘this Bill will have no financial impact as any
impacts will be offset’ (p. 2).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible. The Statement of
Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
Parliamentary
Joint Committee on Human Rights
At the time of writing the Parliamentary Joint Committee
on Human Rights has not considered the Bill.
Key issues
and provisions
Definitions
Clause 4 comprises definitions, half of which
simply clarify the meaning of ‘Authority’, ‘Board’, ‘Board member’, ‘CEO’, and
‘Chair’. The definition of ‘paid work’ supports provisions relating to the
Chair and Board members (clauses 22 and 24) and the CEO (clause
41). Other definitions relate to faster rail and high speed rail.
‘Faster rail network’ means a network of railways in
Australia that are not capable of supporting high speed trains.
‘High speed rail corridor’ means the area through which the
high speed rail network will run.
‘High speed rail network’ means a network of railways that:
(a) are
capable, in whole or in part, of supporting high speed trains; and
(b) connect:
(i)
Sydney, Melbourne, Brisbane and Canberra; and
(ii)
some regional centres on the east coast of Australia or in New South Wales, Victoria
or Queensland.
‘High speed train’ means a vehicle that:
(a) is
designed to transport passengers or goods and operates on a railway (including
a vehicle that does not have wheels); and
(b) is
capable of travelling at speeds exceeding 250 km/hr.
The definition of ‘rules’ supports clause 50, which
provides that the Minister may, by legislative instrument, make rules required,
permitted, necessary or convenient for giving effect to the Act. Clause 50
is discussed below.
Establishment of the HSRA
Clause 7 establishes the HSRA and specifies that the
HSRA is a body corporate, and a corporate Commonwealth entity for the purposes
of the PGPA Act.
Functions of the HSRA
Functions listed
in the Bill
Clause 8 lists the functions of the HSRA. The Explanatory
Memorandum states that:
All of the Authority’s functions as related in Clause 8 are
in relation to work associated with both high speed rail and faster rail. All
the functions related to faster rail cover the scope and objectives of the
National Faster Rail Agency (p. 5).
As noted by the Explanatory Memorandum, the functions listed
in clause 8 aim to enable ‘strategic planning of the high speed rail
network across jurisdictions’ (p. 5). The HSRA will:
- lead
and coordinate policy development and planning (subparagraph 8(1)(a)(i))
- consult,
liaise and negotiate with states and territories and other relevant parties (subparagraph
8(1)(a)(ii))
- provide
advice and recommendations to the Minister and other relevant parties, including
advice and recommendations on environmental matters and interconnectedness (subparagraph
8(1)(a)(iii))
- undertake
evaluations and research and gather information (subparagraph 8(1)(a)(iv))
- if
the Commonwealth obtains a state’s consent (paragraph 8(1)(b)) or a territory’s
consent (paragraph 8(1)(c)), construct or extend that jurisdiction’s railway
for the high speed or faster rail network (consent from a state must be in
accordance with paragraph 51(xxxiv) of the Constitution)
- perform
any other functions conferred on the Authority (paragraphs 8(1)(d) and
(e)) and do anything incidental to, or conducive to, the performance of the
above functions (paragraph 8(1)(f)).
Foreshadowed
additional functions
The Explanatory Memorandum observes that ‘there is also
capacity for the Minister to add functions over time’ (p. 6). The addition of
functions would be effected under paragraph 8(1)(e), which provides that
other functions can be prescribed by rules (in relation to rules, see the
discussion of clause 50 below). A similar mechanism has been used in,
for example, the Australian
Renewable Energy Agency Act 2011, in which paragraph 8(a) provides that
the functions of the Australian Renewable Energy Agency include ‘any other
functions that are prescribed by the regulations’.
Subclause 8(2) provides that rules prescribing other
functions ‘must specify the legislative power or powers of the Parliament in
respect of each function of the Authority that is prescribed’.
The
Minister’s second reading speech and the Explanatory Memorandum both
foreshadow the addition of functions not listed in the Bill. In her second
reading speech the Minister stated ‘this government is absolutely committed
to establishing this authority to oversee the construction and operation
of a high-speed rail network along Australia's eastern seaboard’ [emphasis
added]. Similarly, the Explanatory Memorandum states the role of the HSRA will
be to ‘lead, plan, develop, coordinate, oversee and monitor the construction
and operation of a high speed rail network in Australia’ [emphasis added](p.
1).
Establishment of the Board
The proposed provisions in relation to the Board are
similar to and consistent with provisions at other statutory authorities.
Establishment
and appointment
Clause 13 establishes the Board of the HSRA, and clause
14 establishes the functions of the Board, which are:
(a) to
decide, within the scope of any directions given to the Authority under [clause
11], the strategies and policies to be followed by the Authority; and
(b) to ensure
the proper, efficient and effective performance of the Authority’s functions;
and
(c) any
other functions conferred on the Board by this Act.
In addition, subclause 14(2) provides that the
Board has power to do ‘all things necessary or convenient to be done for or in
connection with the performance of its functions’.
Clause 15 establishes that the Board comprises a
Chair and four other members. Under clauses 16 and 17, Board
members will be appointed by the Minister by written instrument for a period not
exceeding three years, although they may be reappointed. Board members are
appointed on a part time basis, although the Chair may be appointed on a full-time
basis.
Under clause 18, the Minister may, in some
circumstances (for example, vacancy, or when a Board member is absent from
Australia), appoint a Board member to act as the Chair, or appoint a person to
act as a Board member other than the Chair.
Qualifications,
knowledge, skills or experience
Subclause 16(4) provides that a person is not
eligible for appointment as a Board member unless the Minister is satisfied
that the person has ‘appropriate qualifications, knowledge, skills or
experience’. The Bill does not provide criteria or guidance about the
qualifications, knowledge, skills or experience that would be appropriate for
appointees to possess, leaving this for the Minister to decide. Although it is
not unusual for enabling legislation to be silent on the selection of board appointees,
there are examples where legislation has included criteria or other guidance.
For example, in the National Housing
Finance and Investment Corporation Act 2018, section 18 specifies six
areas of qualifications, skills or experience, and also requires that ‘in
appointing Board members, the Minister must ensure that … the Board members
collectively have an appropriate balance of qualifications, skills or
experience in the fields mentioned’.
Remuneration,
and leave of absence
Clause 20 provides that Board members’ remuneration
is determined by the Remuneration Tribunal. If no determination is in
operation, the Board members’ remuneration is prescribed by rules (made by the
Minister under clause 50). Allowances will be prescribed by the rules.
Under subclause 21(3) the Chair may grant leave of
absence to any Board members on the terms and conditions that the Chair
determines. Under subclause 21(2) if the Chair is appointed on a part
time basis, the Minister may grant leave of absence to the Chair on the terms
and conditions that the Minister determines. Under subclause 21(1) if
the Chair is appointed on a full time basis the Chair has the recreation leave
entitlements that are determined by the Remuneration Tribunal, and the Minister
may grant the Chair leave of absence, other than recreation leave, on the terms
and conditions as to remuneration or otherwise that the Minister determines.
Establishment of the CEO
The proposed provisions in relation to the CEO are similar
to and consistent with provisions applicable to comparable CEO positions at
statutory authorities.
Clause 34 establishes that the CEO is responsible
for the day-to-day administration of the HSRA, in accordance with policies and
strategies determined by the Board. Clause 35 provides that the CEO must
act in accordance with directions of Board, except to the extent that a
direction relates to the CEO’s performance of functions or exercise of powers under
the Public
Service Act 1999 in relation to the Authority.
Clause 36 provides that the CEO is to be appointed
by the Board on a full-time basis by written instrument, after consultation
with the Minister. The CEO must not be a Board member. The CEO holds
office for a period not exceeding 5 years, though may be re-appointed. Under
clause 38 terms and conditions are determined by the Board. Clauses 39
and 40 provide that the CEO’s remuneration and recreation leave
entitlements are determined by the Remuneration Tribunal. If no determination
is in operation, the CEO’s remuneration is prescribed by rules (made by the
Minister under clause 50).
Clause 41 specifies that the CEO must not engage in
paid work outside the duties of the CEO’s office without the Chair’s approval. Clause
42 requires the CEO to comply with section 29 of the PGPA Act, which
deals with the duty to disclose interests, and this includes compliance with
rules made under section 29.
Under clause 43 the CEO may resign by giving the
Board a written resignation. Clause 37 provides that the Board may, by
written instrument and after consultation with the Minister, appoint a person
(other than a Board member) to act as the CEO.
Clause 44 provides that the Board may terminate the
CEO’s appointment for misbehaviour, or physical or mental incapacity, or if
specific circumstances arise relating to bankruptcy, absence from duty without
approved leave, and potential conflicts of interest.
Staff
The proposed provisions in relation to staff are similar
to and consistent with provisions applicable to comparable entities. Clause
45 provides that staff of the HSRA must be persons engaged under the Public
Service Act. The Explanatory Memorandum notes that:
The Authority will have the power to second staff from other
agencies under the Public Service Act 1999 to ensure there are
appropriately skilled personnel to undertake the Authority’s functions and
objectives (p. 11).
Clause 46 provides that the HSRA may engage
consultants to assist in the performance of its functions.
Corporate plan, and review every 10 years
Clause 48 provides that, in preparing or varying a
corporate plan under section 35 of the PGPA Act, the Board must consult
with the Minister, and such of the following as it considers appropriate: government,
commercial, industrial, consumer and other relevant bodies and organisations,
and investors in infrastructure and owners of infrastructure
Clause 49 provides that, at least once every 10 years,
the Minister must cause a review of the operation of the Act and the rules to
be undertaken. The Minister must cause a copy of the report of the review to be
tabled in each House of the Parliament within 15 sitting days of that House
after the report is given to the Minister.
Minister’s powers to give directions and make rules
Minister
may give directions to the HSRA
Under clause 11, the Minister may, by legislative
instrument, give written directions to the HSRA about the performance of its
functions. Under subclause 11(3), the HSRA must comply with such
directions. Such legislative instruments will not be subject to disallowance by
the Parliament, as directions by a Minister to a person or body are exempt from
this process (Legislation
Act 2003, paragraph 44(2)(b) and Legislation
(Exemptions and Other Matters) Regulation 2015, section 9, table item 2). The
Scrutiny of Bills Committee has raised concerns regarding this type of exemption,
as discussed above under ‘Committee consideration’.
Consequent to clause 11, clause 35 provides
that ‘the Board may give written directions to the CEO, not inconsistent with
any direction given to the Authority under [clause 11], about the
performance of the CEO’s duties’.[11]
The CEO must comply with such a direction, but the direction is not a
legislative instrument.
Minister
may make rules
Clause 50 provides that the Minister may, by legislative
instrument, make rules required, permitted, necessary or convenient for giving
effect to the Act. The Explanatory Memorandum explains why the subordinate instruments
are rules rather than regulations.
[T]he Office of Parliamentary Counsel's Drafting Direction
No. 3.8 – Subordinate legislation … states that matters such as compliance and
enforcement, the imposition of taxes, setting amounts to be appropriated, and
amendments to the text of an Act, should be included in regulations unless
there is a strong justification otherwise. The Bill does not enable rules to
provide for any of these matters. This is clarified by the subclause [50(2)]
that specifically prevents rules from including these types of matters (p. 12).
As explained by the Explanatory Memorandum, clause 50
also clarifies that the rules are a legislative instrument for the purposes of
the Legislation Act 2003. Consequently, the rules must be tabled in
Parliament and ‘a motion to disallow the rules may be moved in either House of
the Parliament within 15 sitting days of the date the rules are tabled’ (p. 13).
Possible subject
matter of rules
The Bill, the
Minister’s second reading speech, and the Explanatory Memorandum foreshadow
that the Minister may make rules including, but not limited to, two matters.
Clauses 20 and 39 provide that remuneration for
Board members and the CEO is determined by the Remuneration Tribunal, and ‘if
no determination of that remuneration by the Tribunal is in operation, the
Board member [or CEO] is to be paid the remuneration that is prescribed by the
rules’.
Paragraph 8(1)(e) provides that additional
functions for the HSRA can be prescribed by rules. Both the
Minister’s second reading speech and the Explanatory Memorandum foreshadow
that the HSRA may oversee the operation of a high-speed rail network, a
function not specifically listed in clause 8.
A similar mechanism has been used in, for example, the Australian
Renewable Energy Agency Act 2011, in which paragraph 8(f) provides that
the functions of the Australian Renewable Energy Agency include ‘any other
functions that are prescribed by the regulations’.
Subclause 8(2) provides that rules prescribing additional
functions for the HSRA ‘must specify the legislative power or powers of the
Parliament in respect of each function of the Authority that is prescribed’.
Appendix A
[1]. The
discount rate ‘translates future costs and benefits to a common time unit, to
compare costs and benefits that accrue at different times.’ Discounting also
‘allows the appropriate comparison of costs and benefits over different
timescales between different options and projects.’ Source: Guide
to Economic Appraisal: Technical Guide of the Assessment Framework, (Canberra:
Infrastructure Australia, July 2021), p. 23.
[2]. Under
Standing Order 42 the Clerk of the House of Representatives removes from the
Notice Paper any item of private member’s business which has not been called on
for eight consecutive sitting Mondays: House
of Representatives Standing Orders, (Canberra: Department of the House
of Representatives, 2 August 2022), Chapter 6, p. 33.
[3]. There
are figures available for 2020 and 2021, however, the public health measures undertaken
in response to the COVID‑19 pandemic (such as lockdowns and state border
closures) significantly impacted travel. As such, transport statistics from 2020
and 2021 are unlikely to be representative.
[4]. International
aviation does not count towards individual nation’s greenhouse gas accounts.
Space industries will have contributed some of these emissions, but this is
likely to be a much smaller share than domestic aviation.
[5]. In
2019, air and space transport emitted 8.47Mt CO2e of the nation’s
total 516.39Mt CO2e. In 1990, air and space transport emissions were
2.62 Mt CO2e of Australia’s 640.64 Mt CO2e. Source: Department of Industry, Science, Energy and Resources, Australia’s
National Greenhouse Accounts, Activity Tables, National
Inventory by Economic Sector 2020 – Data Tables (Excel), Sheet: Data
Table 1: National Direct Emissions by Economic Sector, 1990 to 2020.
[6]. When
new transport infrastructure is built it often reduces the overall cost of
travel (including time costs) for potential passengers. Because of this reduced
cost, some people will choose to make trips they would not otherwise have
taken. This can have benefits such as increasing the range of services that are
accessible for a person but also costs such as environmental impacts and
increased congestion. Induced demand for a new HSR line could include people
using HSR who may not have otherwise make a trip but also (due to the shift of
passengers from air to HSR) spare capacity becoming available on scheduled air
services which might be (at least partially) filled by new passengers who
otherwise may not have undertaken a trip. This issue is discussed by Robertson and, in more
detail, by Jiang and
colleagues.
[7]. Other
current entities designated as Executive Agencies include the Bureau
of Meteorology, the National
Archives of Australia, and Services
Australia.
[8]. Department
of Finance (Finance) webpages accessible from Structure
of the Australian Government Public Sector provide information about the
types of entities, and guidance in relation to proposals to create new
entities.
[9]. The
Australian
Government Organisations Register (AGOR), a database of entities operated
by Finance, acknowledges some challenges with the categories: ‘Australian
Government bodies are diverse, which means classification is not always
straightforward. The following table provides guidance on the main types of
Australian Government bodies. Bodies may possess some but not all of the
features listed. Where a government body could be classified under more than
one body type, the most relevant classification has been chosen.’
Notwithstanding this caveat, the classification system is a useful guide to the
options available when establishing a new agency. Note that AGOR uses 12 categories,
whereas recent Finance webpages use 13 categories.
[10]. Information
about specific entities is available from the AGOR, and the PGPA
Act Flipchart and List (Primary/Principal bodies only).
[11]. However,
subclause 35(3) does not apply to the extent that the direction relates
to the CEO’s performance of functions or exercise of powers under the Public
Service Act 1999.
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