Nation-building Funds Act 2008

No. 154, 2008

An Act about the Building Australia Fund, the Education Investment Fund and the Health and Hospitals Fund, and for other purposes

[Assented to 18 December 2008]

The Parliament of Australia enacts:

Chapter 1—Preliminary

1 Short title

This Act may be cited as the Nation‑building Funds Act 2008.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	18 December 2008
2. Sections 3 to 278	1 January 2009. However, if the Nation‑building Funds (Consequential Amendments) Act 2008 does not receive the Royal Assent before 1 January 2009, the provision(s) do not commence at all.	1 January 2009

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Simplified outline

The following is a simplified outline of this Act:

• Chapter 2 sets up the Building Australia Fund, which will enhance the Commonwealth’s ability:

(a) to make payments in relation to the creation or development of transport infrastructure; and

(b) to make payments in relation to the creation or development of communications infrastructure; and

(d) to make payments in relation to the creation or development of energy infrastructure; and

(e) to make payments in relation to the creation or development of water infrastructure.

• Chapter 3 sets up the Education Investment Fund, which will enhance the Commonwealth’s ability:

(a) to make payments in relation to the creation or development of higher education infrastructure; and

(b) to make payments in relation to the creation or development of research infrastructure; and

(d) to make payments in relation to the creation or development of eligible education infrastructure; and

(e) to make transitional HEEF payments.

• Chapter 4 sets up the Health and Hospitals Fund, which will enhance the Commonwealth’s ability to make payments in relation to the creation or development of health infrastructure.

4 Definitions

In this Act:

acquire includes acquire by way of issue.

Agency means the Future Fund Management Agency.

Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.

asset means:

(a) any kind of real or personal property; or

(b) any legal or equitable estate or interest in real or personal property; or

BAF Communications Portfolio Special Account means the BAF Communications Portfolio Special Account established by section 68.

BAF Energy Portfolio Special Account means the BAF Energy Portfolio Special Account established by section 75.

BAF evaluation criteria means evaluation criteria under section 120.

BAF Infrastructure Portfolio Special Account means the BAF Infrastructure Portfolio Special Account established by section 61.

BAF Water Portfolio Special Account means the BAF Water Portfolio Special Account established by section 82.

balance of the Building Australia Fund means the sum of:

(a) amounts standing to the credit of the Building Australia Fund Special Account; and

(b) the value of investments of the Building Australia Fund.

balance of the Education Investment Fund means the sum of:

(a) amounts standing to the credit of the Education Investment Fund Special Account; and

(b) the value of investments of the Education Investment Fund.

balance of the Health and Hospitals Fund means the sum of:

(a) amounts standing to the credit of the Health and Hospitals Fund Special Account; and

(b) the value of investments of the Health and Hospitals Fund.

bank has the same meaning as in the Financial Management and Accountability Act 1997.

Building Australia Fund means the Building Australia Fund established by section 12.

Building Australia Fund investment function of the Future Fund Board means:

(a) a function or power conferred on the Future Fund Board by section 32, 34, 40, 42, 44 or 45; or

(b) a right or power conferred on the Future Fund Board in its capacity as the holder of an investment of the Building Australia Fund.

Building Australia Fund Investment Mandate has the meaning given by subsection 35(4).

Building Australia Fund Special Account means the Building Australia Fund Special Account established by section 13.

business entity means:

(a) a company; or

(b) a partnership; or

(d) a body politic.

carriage service has the same meaning as in the Telecommunications Act 1997.

Chair means the Chair of the Future Fund Board.

COAG Reform Fund means the COAG Reform Fund established by section 5 of the COAG Reform Fund Act 2008.

Communications Department means the Department administered by the Communications Minister.

Communications Minister means the Minister who administers the Telecommunications Act 1997.

debenture has the same meaning as in the Corporations Act 2001.

derivative means a derivative (within the meaning of Chapter 7 of the Corporations Act 2001) that is a financial asset.

designated education infrastructure‑related matter has the meaning given by section 143.

drawing right means a drawing right issued under section 27 of the Financial Management and Accountability Act 1997.

Education Department means the Department administered by the Education Minister.

Education Investment Fund means the Education Investment Fund established by section 131.

Education Investment Fund investment function of the Future Fund Board means:

(a) a function or power conferred on the Future Fund Board by section 151, 153, 159, 161, 163 or 164; or

(b) a right or power conferred on the Future Fund Board in its capacity as the holder of an investment of the Education Investment Fund.

Education Investment Fund Investment Mandate has the meaning given by subsection 154(4).

Education Investment Fund Special Account means the Education Investment Fund Special Account established by section 132.

Education Minister means the Minister who administers Part 2‑2 of the Higher Education Support Act 2003.

Note: Part 2‑2 of the Higher Education Support Act 2003 deals with the Commonwealth Grant Scheme.

EIF Advisory Board means the Education Investment Fund Advisory Board established under section 170.

EIF designated Ministers means:

(a) the Education Minister; and

(b) the Research Minister.

EIF Education Portfolio Special Account means the EIF Education Portfolio Special Account established by section 181.

EIF evaluation criteria means evaluation criteria under section 172.

EIF Research Portfolio Special Account means the EIF Research Portfolio Special Account established by section 188.

eligible national broadband network matter has the meaning given by section 23.

Energy Department means the Department administered by the Energy Minister.

Energy Minister means the Minister who administers the Australian Energy Market Act 2004.

Finance Department means the Department administered by the Finance Minister.

Finance Minister has the same meaning as in the Financial Management and Accountability Act 1997.

financial asset has the meaning given by section 5.

Future Fund Board means the Future Fund Board of Guardians.

Future Fund Board member means a member of the Future Fund Board, and includes the Chair.

Future Fund Special Account means the Future Fund Special Account established by section 12 of the Future Fund Act 2006.

GFS Australia means the publication of the Australian Bureau of Statistics known as Australian System of Government Finance Statistics: Concepts, Sources and Methods, as updated from time to time. This updating takes 2 forms, as follows:

(a) from time to time, a new version of the publication is produced;

(b) from time to time, material in the current version of the publication is updated by other publications of the Australian Bureau of Statistics.

GFS system has the same meaning as in GFS Australia.

Health and Hospitals Fund means the Health and Hospitals Fund established by section 214.

Health and Hospitals Fund investment function of the Future Fund Board means:

(a) a function or power conferred on the Future Fund Board by section 227, 228, 234, 236, 238 or 239; or

(b) a right or power conferred on the Future Fund Board in its capacity as the holder of an investment of the Health and Hospitals Fund.

Health and Hospitals Fund Investment Mandate has the meaning given by subsection 229(4).

Health and Hospitals Fund Special Account means the Health and Hospitals Fund Special Account established by section 215.

Health Department means the Department administered by the Health Minister.

Health Minister means the Minister responsible for administering the Health Insurance Act 1973.

HHF Advisory Board means the Health and Hospitals Fund Advisory Board established under section 245.

HHF evaluation criteria means evaluation criteria under section 247.

HHF Health Portfolio Special Account means the HHF Health Portfolio Special Account established by section 255.

higher education institution means an institution specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition.

Infrastructure Department means the Department administered by the Infrastructure Minister.

Infrastructure Minister means the Minister who administers the Infrastructure Australia Act 2008.

investment means any mode of application of money or financial assets for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).

investment manager means a person or body (other than the Agency) who undertakes to do any or all of the following:

(a) invest amounts on behalf of the Future Fund Board;

(b) manage the investment of funds on behalf of the Future Fund Board;

(d) manage derivatives on behalf of the Future Fund Board;

(e) enter into securities lending arrangements on behalf of the Future Fund Board;

(f) realise financial assets on behalf of the Future Fund Board;

(g) perform custodial functions in relation to the financial assets of the Future Fund Board.

investment of the Building Australia Fund means a financial asset that, under a provision of this Act, is taken to be an investment of the Building Australia Fund.

investment of the Education Investment Fund means a financial asset that, under a provision of this Act, is taken to be an investment of the Education Investment Fund.

investment of the Health and Hospitals Fund means a financial asset that, under a provision of this Act, is taken to be an investment of the Health and Hospitals Fund.

modifications includes additions, omissions and substitutions.

national broadband network means a national telecommunications network for the high‑speed carriage of communications. For this purpose, carriage, communications and telecommunications network have the same meanings as in the Telecommunications Act 1997.

Note: See also subsection 7(2).

payment in relation to the creation or development of communications infrastructure has a meaning affected by section 22.

payment in relation to the creation or development of eligible education infrastructure has the meaning given by section 142.

payment in relation to the creation or development of energy infrastructure has a meaning affected by section 24.

payment in relation to the creation or development of health infrastructure has a meaning affected by section 220.

payment in relation to the creation or development of higher education infrastructure has the meaning given by section 139.

payment in relation to the creation or development of research infrastructure has the meaning given by section 140.

payment in relation to the creation or development of transport infrastructure has a meaning affected by section 21.

payment in relation to the creation or development of vocational education and training infrastructure has the meaning given by section 141.

payment in relation to the creation or development of water infrastructure has a meaning affected by section 25.

person (except in Division 2 of Part 3.4 and Division 2 of Part 4.4) includes a partnership.

Note: See also paragraph 22(1)(a) of the Acts Interpretation Act 1901.

realise includes redeem or dispose of.

Research Department means the Department administered by the Research Minister.

research institution means an institution specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition.

Research Minister means the Minister who administers the Australian Research Council Act 2001.

responsible Ministers means:

(a) the Treasurer; and

(b) the Finance Minister.

securities lending arrangement means an agreement of the kind known as a securities lending arrangement.

transitional HEEF payment has the meaning given by section 144.

Treasury Department means the Department administered by the Treasurer.

value of an investment of:

(a) the Building Australia Fund; or

(b) the Education Investment Fund; or

means the market value of the investment. For this purpose, disregard anything that would prevent or restrict conversion of a financial asset to money.

vocational education and training provider means a person or body specified in a legislative instrument made by the EIF designated Ministers for the purposes of this definition.

Water Department means the Department administered by the Water Minister.

Water Minister means the Minister who administers the Water Act 2007.

5 Financial assets

A reference in this Act to a financial asset is a reference to:

(a) an asset that, in accordance with GFS Australia, is treated as a financial asset for the purposes of the GFS system in Australia; or

(b) an asset specified in regulations made for the purposes of this paragraph;

but does not include a reference to an asset that, under the regulations, is taken to be a non‑financial asset for the purposes of this Act.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

6 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an offence.

7 Extension to external Territories

(1) This Act extends to every external Territory.

(2) However, for the purposes of this Act, it is immaterial whether a national broadband network extends to an external Territory.

8 Extra‑territorial application

This Act extends to acts, omissions, matters and things outside Australia (unless the contrary intention appears).

Chapter 2—Building Australia Fund

Part 2.1—Introduction

9 Object

The object of this Chapter is to enhance the Commonwealth’s ability:

(a) to make payments in relation to the creation or development of transport infrastructure; and

(b) to make payments in relation to the creation or development of communications infrastructure; and

(d) to make payments in relation to the creation or development of energy infrastructure; and

(e) to make payments in relation to the creation or development of water infrastructure.

10 Simplified outline

The following is a simplified outline of this Chapter:

• This Chapter sets up the Building Australia Fund, which consists of:

(a) the Building Australia Fund Special Account; and

(b) the investments of the Building Australia Fund.

• The main purposes of the Building Australia Fund Special Account are:

(a) to make payments in relation to the creation or development of transport infrastructure; and

(b) to make payments in relation to the creation or development of communications infrastructure; and

(d) to make payments in relation to the creation or development of energy infrastructure; and

(e) to make payments in relation to the creation or development of water infrastructure.

• The Finance Minister is responsible for authorising payments on the recommendation of the Infrastructure Minister, the Communications Minister, the Energy Minister or the Water Minister.

• If a payment is made by way of a grant of financial assistance, the terms and conditions on which the financial assistance is granted are to be set out in a written agreement between the Commonwealth and the recipient.

• The Future Fund Board is responsible for deciding how to invest the Building Australia Fund.

• Investments of the Building Australia Fund will consist of financial assets.

• The Future Fund Board is bound by a Building Australia Fund Investment Mandate given to it by the responsible Ministers.

Note: The Future Fund Act 2006 provides that the Future Fund Management Agency is responsible for assisting and advising the Future Fund Board.

Part 2.2—Building Australia Fund

Division 1—Introduction

11 Simplified outline

The following is a simplified outline of this Part:

• This Part sets up the Building Australia Fund.

• The Building Australia Fund consists of:

(a) the Building Australia Fund Special Account; and

(b) the investments of the Building Australia Fund.

• The balance of the Communications Fund is to be transferred to the Building Australia Fund.

• The balance of the Telstra Sale Special Account is to be transferred to the Building Australia Fund.

• One or more initial amounts are to be credited to the Building Australia Fund Special Account by 30 June 2009. The total of the initial amounts must equal $7.5 billion.

• The responsible Ministers may determine that additional amounts are to be credited to the Building Australia Fund Special Account.

• Amounts may be debited from the Building Australia Fund Special Account in accordance with the purposes of the Building Australia Fund Special Account.

• The main purposes of the Building Australia Fund Special Account are:

(a) to make payments in relation to the creation or development of transport infrastructure; and

(b) to make payments in relation to the creation or development of communications infrastructure; and

(d) to make payments in relation to the creation or development of energy infrastructure; and

(e) to make payments in relation to the creation or development of water infrastructure.

Note 1: The Communications Fund was established by repealed section 158ZG of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Note 2: The Telstra Sale Special Account was established under subsection 20(1) of the Financial Management and Accountability Act 1997.

Division 2—Establishment of the Building Australia Fund etc.

12 Establishment of the Building Australia Fund

(1) The Building Australia Fund is established by this section.

(2) The Building Australia Fund consists of:

(a) the Building Australia Fund Special Account; and

(b) the investments of the Building Australia Fund.

13 Establishment of the Building Australia Fund Special Account

(1) The Building Australia Fund Special Account is established by this section.

(2) The Building Australia Fund Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a Special Account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the Special Account), then amounts may be debited against the appropriation for that item and credited to that Special Account.

Division 3—Credits of amounts to the Building Australia Fund

14 Initial credits of amounts to the Building Australia Fund Special Account

(1) The responsible Ministers may, by writing, determine that:

(a) a specified amount is to be credited to the Building Australia Fund Special Account on a specified day; or

(b) a specified amount is to be credited to the Building Australia Fund Special Account in specified instalments on specified days.

(2) The responsible Ministers must ensure that, by the end of 30 June 2009, the total of the amounts credited to the Building Australia Fund Special Account under subsection (1) equals $7.5 billion.

Note 1: See also section 16 (balance of the Communications Fund to be credited to the Building Australia Fund Special Account).

Note 2: See also section 33 (Building Australia Fund to inherit investments of the Communications Fund).

Note 3: See also section 17 (balance of the Telstra Sale Special Account to be credited to the Building Australia Fund Special Account).

(3) The responsible Ministers must not make a determination under subsection (1) after 30 June 2009.

(4) A determination under subsection (1) is irrevocable.

(5) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the determination.

15 Subsequent credits of amounts to the Building Australia Fund Special Account—determinations by the responsible Ministers

(1) The responsible Ministers may, by writing, determine that:

(a) a specified amount is to be credited to the Building Australia Fund Special Account on a specified day; or

(b) a specified amount is to be credited to the Building Australia Fund Special Account in specified instalments on specified days.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) In making a determination under subsection (1), the responsible Ministers must have regard to the object of this Chapter.

(3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the determination.

16 Credit of amount to the Building Australia Fund Special Account—balance of the Communications Fund Special Account

As soon as practicable after the commencement of this section, there is to be credited to the Building Australia Fund Special Account an amount equal to the balance of the Communications Fund Special Account as at immediately before the commencement of this section.

Note: The Communications Fund Special Account was established by repealed section 158ZH of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

17 Credit of amount to the Building Australia Fund Special Account—balance of the Telstra Sale Special Account

(1) The responsible Ministers may, by writing, determine that an amount equal to the balance of the Telstra Sale Special Account as at a specified time is to be:

(a) debited from the Telstra Sale Special Account; and

(b) credited to the Building Australia Fund Special Account.

Note: The Telstra Sale Special Account was established under subsection 20(1) of the Financial Management and Accountability Act 1997.

(2) The responsible Ministers must make a determination under subsection (1) before the end of 30 June 2009.

(3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the determination.

Division 4—Debits of amounts from the Building Australia Fund

18 Purposes of the Building Australia Fund Special Account—payments purposes and purposes related exclusively to the Building Australia Fund

(1) Each of the following is a purpose of the Building Australia Fund Special Account:

(a) making payments in relation to the creation or development of transport infrastructure, so long as the payments are authorised under subsection 51(1);

(b) making payments in relation to the creation or development of communications infrastructure, so long as the payments are authorised under subsection 51(2);

(c) making payments in relation to eligible national broadband network matters, so long as the payments are authorised under subsection 51(3);

(d) making payments in relation to the creation or development of energy infrastructure, so long as the payments are authorised under subsection 51(4);

(e) making payments in relation to the creation or development of water infrastructure, so long as the payments are authorised under subsection 51(5);

(f) paying the costs of, or incidental to, the acquisition of financial assets under section 32;

(g) paying expenses of an investment of the Building Australia Fund;

(h) paying the costs of, or incidental to, the acquisition of derivatives under section 42;

(i) paying or discharging the costs, expenses and other obligations incurred by the Future Fund Board under a contract between the Future Fund Board and an investment manager engaged under subsection 45(1);

(j) paying or discharging the costs, expenses and other obligations incurred in connection with the establishment, maintenance or operation of a bank account of the Future Fund Board, where the bank account relates exclusively to the Building Australia Fund;

(k) paying a premium in respect of a contract of insurance entered into by the Future Fund Board exclusively in connection with the Building Australia Fund;

(l) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Future Fund Board exclusively in connection with the Building Australia Fund.

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

(2) Paragraphs (1)(b) and (c) do not limit each other.

(3) A payment under paragraph (1)(a), (b), (c), (d) or (e) may be made:

(a) by way of a grant of financial assistance; or

(b) otherwise than by way of a grant of financial assistance.

Note 1: Section 63 deals with the channelling of payments through the BAF Infrastructure Portfolio Special Account.

Note 2: Section 70 deals with the channelling of payments through the BAF Communications Portfolio Special Account.

Note 3: Section 77 deals with the channelling of payments through the BAF Energy Portfolio Special Account.

Note 4: Section 84 deals with the channelling of payments through the BAF Water Portfolio Special Account.

Note 5: Sections 89, 94, 99 and 104 deal with the channelling of State/Territory grants payments through the COAG Reform Fund.

19 Purposes of the Building Australia Fund Special Account—transitional

Each of the following is a purpose of the Building Australia Fund Special Account:

(a) paying the costs of, or incidental to, the acquisition of financial assets under repealed Division 3 of Part 9C of the Telecommunications (Consumer Protection and Service Standards) Act 1999, where the costs were incurred before the commencement of this section;

(b) paying expenses of an investment of the Building Australia Fund, where:

(i) immediately before the commencement of this section, the investment was an investment of the Communications Fund; and

(ii) the expense was incurred before the commencement of this section;

(c) paying the costs of, or incidental to, the acquisition of derivatives under repealed section 158ZQ of the Telecommunications (Consumer Protection and Service Standards) Act 1999, where the costs were incurred before the commencement of this section;

(d) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Commonwealth in connection with the Communications Fund, where the costs, expenses, obligations or liabilities were incurred before the commencement of this section.

Note 1: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

Note 2: The Communications Fund was established by repealed section 158ZG of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

20 Purposes of the Building Australia Fund Special Account—purposes not related exclusively to the Building Australia Fund

Each of the following is a purpose of the Building Australia Fund Special Account:

(a) paying or discharging the costs, expenses and other obligations incurred in connection with the establishment, maintenance or operation of a bank account of the Future Fund Board, where those costs, expenses or obligations are not covered by:

(i) paragraph 18(1)(j); or

(ii) paragraph 136(1)(j); or

(iii) paragraph 137(e); or

(iv) paragraph 218(1)(f); or

(v) paragraph 2(1)(g) of Schedule 2 to the Future Fund Act 2006;

(b) paying a premium in respect of a contract of insurance entered into by the Future Fund Board, where the premium is not covered by:

(i) paragraph 18(1)(k); or

(ii) paragraph 136(1)(k); or

(iii) paragraph 137(f); or

(iv) paragraph 218(1)(g); or

(v) paragraph 2(1)(h) of Schedule 2 to the Future Fund Act 2006;

(c) paying or discharging any other costs, expenses, obligations or liabilities incurred by the Future Fund Board, where the costs, expenses, obligations or liabilities are not covered by:

(i) a paragraph of subsection 18(1); or

(ii) a paragraph of subsection 136(1); or

(iii) a paragraph of section 137; or

(iv) a paragraph of subsection 218(1); or

(v) a paragraph of subclause 2(1) of Schedule 2 to the Future Fund Act 2006;

(d) paying remuneration and allowances of Future Fund Board members;

(e) paying remuneration, and other employment‑related costs and expenses, in respect of members of the staff of the Agency;

(f) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth under a contract entered into under section 78 or 82 of the Future Fund Act 2006;

(g) paying or discharging the costs, expenses and other obligations incurred by the Commonwealth in connection with the operation of the Agency.

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

21 Extended meaning of payment in relation to the creation or development of transport infrastructure

For the purposes of this Act, each of the following payments is taken to be a payment in relation to the creation or development of transport infrastructure:

(a) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of transport infrastructure;

(b) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of transport infrastructure;

(c) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of transport infrastructure;

(d) a payment in relation to the acquisition of a financial asset in a business entity that is, or will be, involved in the creation or development of transport infrastructure;

(e) a payment in relation to a matter incidental or ancillary to a matter set out in paragraph (a), (b), (c) or (d).

Note: See section 121.

22 Extended meaning of payment in relation to the creation or development of communications infrastructure

For the purposes of this Act, each of the following payments is taken to be a payment in relation to the creation or development of communications infrastructure:

(a) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of communications infrastructure;

(b) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of communications infrastructure;

(c) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of communications infrastructure;

(d) a payment in relation to the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of communications infrastructure;

(e) a payment in relation to a matter incidental or ancillary to a matter set out in paragraph (a), (b), (c) or (d).

Note: See section 121.

23 Eligible national broadband network matter

For the purposes of this Act, an eligible national broadband network matter is any of the following matters:

(a) the acquisition of shares in a company that is, or will be, involved in the creation or development of a national broadband network;

(b) the acquisition of debentures of a company that is, or will be, involved in the creation or development of a national broadband network;

(c) the acquisition of units in a unit trust that is, or will be, involved in the creation or development of a national broadband network;

(d) the acquisition of any other financial asset in a business entity that is, or will be, involved in the creation or development of a national broadband network;

(e) the creation or development of a national broadband network;

(f) the supply of a broadband carriage service over a national broadband network;

(g) the acquisition of assets for use in connection with the creation or development of a national broadband network;

(h) a matter incidental or ancillary to a matter set out in paragraph (a), (b), (c), (d), (e), (f) or (g).

Note: See section 121.

24 Extended meaning of payment in relation to the creation or development of energy infrastructure

For the purposes of this Act, each of the following payments is taken to be a payment in relation to the creation or development of energy infrastructure:

(a) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of energy infrastructure;

(b) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of energy infrastructure;

(c) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of energy infrastructure;

(d) a payment in relation to the acquisition of a financial asset in a business entity that is, or will be, involved in the creation or development of energy infrastructure;

(e) a payment in relation to a matter incidental or ancillary to a matter set out in paragraph (a), (b), (c) or (d).

Note: See section 121.

25 Extended meaning of payment in relation to the creation or development of water infrastructure

For the purposes of this Act, each of the following payments is taken to be a payment in relation to the creation or development of water infrastructure:

(a) a payment in relation to the acquisition of shares in a company that is, or will be, involved in the creation or development of water infrastructure;

(b) a payment in relation to the acquisition of debentures of a company that is, or will be, involved in the creation or development of water infrastructure;

(c) a payment in relation to the acquisition of units in a unit trust that is, or will be, involved in the creation or development of water infrastructure;

(d) a payment in relation to the acquisition of a financial asset in a business entity that is, or will be, involved in the creation or development of water infrastructure;

(e) a payment in relation to a matter incidental or ancillary to a matter set out in paragraph (a), (b), (c) or (d).

Note: See section 121.

26 Future Fund Board must ensure that there is sufficient money in the Building Australia Fund Special Account to cover authorised payments etc.

The Future Fund Board must take all reasonable steps to ensure that the amount of money standing to the credit of the Building Australia Fund Special Account is sufficient to cover:

(a) the debit of amounts for payments authorised, or proposed to be authorised, under subsection 51(1), (2), (3), (4) or (5); and

(b) amounts debited, or proposed to be debited, under subsection 63(1); and

(d) amounts debited, or proposed to be debited, under subsection 77(1); and

(e) amounts debited, or proposed to be debited, under subsection 84(1); and

(f) amounts debited, or proposed to be debited, under subsection 89(1); and

(g) amounts debited, or proposed to be debited, under subsection 94(1); and

(h) amounts debited, or proposed to be debited, under subsection 99(1); and

(i) amounts debited, or proposed to be debited, under subsection 104(1).

Note: This may require the Future Fund Board to realise an investment of the Building Australia Fund in accordance with section 34.

Division 5—Inter‑fund transfers

27 Transfers from the Building Australia Fund to the Future Fund

(1) If an amount is debited from the Future Fund Special Account for a purpose mentioned in subclause 2(2) of Schedule 2 to the Future Fund Act 2006, the Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the Future Fund Special Account;

on a specified day.

(2) The specified amount must not exceed the amount debited from the Future Fund Special Account as mentioned in subsection (1).

(3) A direction under subsection (1) is not a legislative instrument.

28 Transfers from the Building Australia Fund to the Education Investment Fund

(1) If an amount is debited from the Education Investment Fund Special Account for a purpose mentioned in section 138, the Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the Education Investment Fund Special Account;

on a specified day.

(2) The specified amount must not exceed the amount debited from the Education Investment Fund Special Account as mentioned in subsection (1).

(3) A direction under subsection (1) is not a legislative instrument.

29 Transfers from the Building Australia Fund to the Health and Hospitals Fund

(1) If an amount is debited from the Health and Hospitals Fund Special Account for a purpose mentioned in section 219, the Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the Health and Hospitals Fund Special Account;

on a specified day.

(2) The specified amount must not exceed the amount debited from the Health and Hospitals Fund Special Account as mentioned in subsection (1).

(3) A direction under subsection (1) is not a legislative instrument.

Part 2.3—Investment of the Building Australia Fund

30 Simplified outline

The following is a simplified outline of this Part:

• The Future Fund Board is responsible for deciding how to invest the Building Australia Fund.

• Investments of the Building Australia Fund will consist of financial assets.

• Investments of the Building Australia Fund will be held in the name of the Future Fund Board.

• The Future Fund Board is bound by a Building Australia Fund Investment Mandate given to it by the responsible Ministers.

31 Objects of investment of the Building Australia Fund

(1) The main object of the acquisition by the Future Fund Board of a financial asset as an investment of the Building Australia Fund is to enhance the Commonwealth’s ability:

(a) to make payments in relation to the creation or development of transport infrastructure; and

(b) to make payments in relation to the creation or development of communications infrastructure; and

(d) to make payments in relation to the creation or development of energy infrastructure; and

(e) to make payments in relation to the creation or development of water infrastructure.

(2) The ancillary objects of the acquisition by the Future Fund Board of a financial asset as an investment of the Building Australia Fund are to enhance the ability of the Commonwealth and the Future Fund Board to:

(a) discharge costs, expenses, obligations and liabilities; and

(b) make payments;

as mentioned in paragraphs 18(1)(f) to (l),19(a) to (d) and 20(a) to (g).

32 Investment of the Building Australia Fund

(1) The Future Fund Board may invest amounts standing to the credit of the Building Australia Fund Special Account in any financial assets.

(2) Investments under subsection (1) are to be made in the name of the Future Fund Board.

(3) Investments under subsection (1) are taken to be investments of the Building Australia Fund.

(4) This section does not authorise the acquisition of a derivative.

Note: For acquisition of derivatives, see section 42.

33 Building Australia Fund to inherit investments of the Communications Fund

Scope

(1) This section applies to a financial asset if:

(a) immediately before the commencement of this section, the financial asset was an investment of the Communications Fund; and

(b) the financial asset is held by the Commonwealth; and

Note: The Communications Fund was established by repealed section 158ZG of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Investment of the Building Australia Fund

(2) The financial asset is taken to be an investment of the Building Australia Fund.

Rights and powers

(3) The Future Fund Board may, on behalf of the Commonwealth, exercise any rights or powers conferred on the Commonwealth in the Commonwealth’s capacity as the holder of the financial asset.

(4) Such a right or power is taken to be a Building Australia Fund investment function of the Future Fund Board.

34 Management of investments of the Building Australia Fund

(1) Income derived from an investment of the Building Australia Fund is to be credited to the Building Australia Fund Special Account.

(2) A return of capital, or any other financial distribution, relating to an investment of the Building Australia Fund is to be credited to the Building Australia Fund Special Account.

(3) The Future Fund Board may realise an investment of the Building Australia Fund.

(4) Upon realisation of an investment of the Building Australia Fund, the proceeds of the investment are to be credited to the Building Australia Fund Special Account.

(5) At any time before an investment of the Building Australia Fund matures, the Future Fund Board may authorise the re‑investment of the proceeds upon maturity in a financial asset investment with the same entity. The new investment is taken to be an investment of the Building Australia Fund.

(6) Section 39 of the Financial Management and Accountability Act 1997 does not apply to an investment of the Building Australia Fund.

35 Building Australia Fund Investment Mandate

(1) The responsible Ministers may give the Future Fund Board written directions about the performance of its Building Australia Fund investment functions, and must give at least one such direction.

Note 1: Building Australia Fund investment function is defined in section 4.

Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) Subsection (1) has effect subject to section 36.

(3) In giving a direction under subsection (1), the responsible Ministers must have regard to:

(a) maximising the return earned on the Building Australia Fund, consistent with international best practice for institutional investment; and

(b) enhancing the Commonwealth’s ability:

(i) to make payments in relation to the creation or development of transport infrastructure; and

(ii) to make payments in relation to the creation or development of communications infrastructure; and

(iii) to make payments in relation to eligible national broadband network matters; and

(iv) to make payments in relation to the creation or development of energy infrastructure; and

(v) to make payments in relation to the creation or development of water infrastructure; and

(4) Directions under subsection (1) are to be known collectively as the Building Australia Fund Investment Mandate.

(5) A direction under subsection (1) may set out the policies to be pursued by the Future Fund Board in relation to:

(a) matters of risk and return; and

(b) the allocation of financial assets.

A policy relating to the allocation of financial assets must not be inconsistent with a policy relating to matters of risk and return.

(6) Subsection (5) does not limit subsection (1).

(7) Subsection (5) has effect subject to section 36.

(8) The Building Australia Fund Investment Mandate prevails over subsection (12) to the extent of any inconsistency.

(9) The responsible Ministers must not give a direction under subsection (1) that is inconsistent with this Act (other than subsection (12)).

(10) A direction under subsection (1) must not take effect before the 15th day after the day on which it is given.

(11) A direction under subsection (1) is a legislative instrument.

Note 1: Section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the direction—see section 44 of that Act.

Note 2: Part 6 (sunsetting) of the Legislative Instruments Act 2003 does not apply to the direction—see section 54 of that Act.

(12) In the performance of its Building Australia Fund investment functions, the Future Fund Board must seek to:

(a) maximise the return earned on the Building Australia Fund, consistent with international best practice for institutional investment; and

(b) enhance the Commonwealth’s ability:

(i) to make payments in relation to the creation or development of transport infrastructure; and

(ii) to make payments in relation to the creation or development of communications infrastructure; and

(iii) to make payments in relation to eligible national broadband network matters; and

(iv) to make payments in relation to the creation or development of energy infrastructure; and

(v) to make payments in relation to the creation or development of water infrastructure.

Note: Building Australia Fund investment function is defined in section 4.

(13) Subsection (12) has effect subject to:

(a) this Act; and

(b) a direction under subsection (1).

36 Limitation on Building Australia Fund Investment Mandate

(1) The responsible Ministers must not give a direction under subsection 35(1) that has the purpose, or has or is likely to have the effect, of directly or indirectly requiring the Future Fund Board to:

(a) invest an amount standing to the credit of the Building Australia Fund Special Account in a particular financial asset; or

(b) acquire a particular derivative; or

(i) a particular business entity; or

(ii) a particular activity; or

(iii) a particular business.

(2) Paragraphs (1)(a) and (b) do not limit paragraph (1)(c).

37 Future Fund Board to be consulted on Building Australia Fund Investment Mandate

(1) Before giving the Future Fund Board a direction under subsection 35(1), the responsible Ministers must:

(a) send a draft of the direction to the Future Fund Board; and

(b) invite the Future Fund Board to make a submission to the responsible Ministers on the draft direction within a time limit specified by the responsible Ministers; and

(2) If:

(a) the responsible Ministers give the Future Fund Board a direction under subsection 35(1); and

(b) the Future Fund Board made a submission to the responsible Ministers on a draft of the direction within the time limit specified by the responsible Ministers;

the submission is to be tabled in each House of the Parliament with the direction.

Note: For tabling of the direction, see section 38 of the Legislative Instruments Act 2003.

(3) A time limit specified under this section must be reasonable.

38 Compliance with Building Australia Fund Investment Mandate

(1) The Future Fund Board must take all reasonable steps to comply with the Building Australia Fund Investment Mandate.

(2) As soon as practicable after the Future Fund Board becomes aware that it has failed to comply with the Building Australia Fund Investment Mandate, the Future Fund Board must give the responsible Ministers a written statement:

(a) informing the responsible Ministers of the failure to comply with the Building Australia Fund Investment Mandate; and

(b) setting out the action that the Future Fund Board proposes to take in order to comply with the Building Australia Fund Investment Mandate.

(3) If the responsible Ministers are satisfied that the Future Fund Board has failed to comply with the Building Australia Fund Investment Mandate, the responsible Ministers may, by written notice given to the Future Fund Board, direct the Future Fund Board:

(a) to give the responsible Ministers, within a period specified in the notice, a written explanation for the failure to comply with the Building Australia Fund Investment Mandate; and

(b) to take action specified in the notice, within a period specified in the notice, in order to comply with the Building Australia Fund Investment Mandate.

(4) The Future Fund Board must comply with a direction under subsection (3).

(5) A failure to comply with:

(a) the Building Australia Fund Investment Mandate; or

(b) a direction under subsection (3);

does not affect the validity of any transaction.

(6) A direction under subsection (3) is not a legislative instrument.

39 Future Fund Board must not trigger the takeover provisions of the Corporations Act 2001

(1) Subsections 606(1A) and (2A) and section 611 of the Corporations Act 2001 do not apply to an acquisition by the Future Fund Board if the acquisition is the result of the performance by the Future Fund Board of its Building Australia Fund investment functions.

(2) A failure by the Future Fund Board to comply with section 606 of the Corporations Act 2001 (as modified by this section) does not affect the validity of any transaction.

Note: See also section 39 of the Future Fund Act 2006 (application of the Corporations Act 2001).

40 Borrowing

(1) The Future Fund Board must not borrow money for a purpose in connection with the Building Australia Fund unless the borrowing is authorised by subsection (2) or (3).

(2) The Future Fund Board is authorised to borrow money for a purpose in connection with the Building Australia Fund if:

(a) the purpose of the borrowing is to enable the Future Fund Board to cover settlement of a transaction for the acquisition of one or more financial assets; and

(b) at the time the relevant acquisition decision was made, it was likely that the borrowing would not be needed; and

(d) if the borrowing were to take place, the total amount borrowed by the Future Fund Board would not exceed 10% of the balance of the Building Australia Fund.

(3) The Future Fund Board is authorised to borrow money for a purpose in connection with the Building Australia Fund if the borrowing takes place in such circumstances (if any) as are specified in the regulations.

41 Building Australia Fund investment policies

(1) The Future Fund Board must formulate written policies to be complied with by it in relation to the following matters in connection with the Building Australia Fund:

(a) the investment strategy for the Building Australia Fund;

(b) benchmarks and standards for assessing the performance of the Building Australia Fund;

(d) a matter relating to international best practice for institutional investment;

(e) a matter specified in the regulations.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Future Fund Board must ensure that policies formulated under subsection (1) are consistent with the Building Australia Fund Investment Mandate.

Publication of policies

(3) The Future Fund Board must cause copies of policies formulated under subsection (1) to be published on the internet.

(4) The Future Fund Board must ensure that the first set of policies formulated under subsection (1) is published on the internet as soon as practicable after the commencement of this section.

Review of policies

(5) The Future Fund Board must conduct periodic reviews of policies formulated under subsection (1).

(6) If there is a change in the Building Australia Fund Investment Mandate, the Future Fund Board must review any relevant policies formulated under subsection (1).

Compliance with policies

(7) The Future Fund Board must take all reasonable steps to comply with policies formulated under subsection (1).

(8) A failure to comply with a policy formulated under subsection (1) does not affect the validity of any transaction.

Policies

(9) A policy formulated under subsection (1) is not a legislative instrument.

42 Derivatives

(1) The Future Fund Board may acquire a derivative for the purpose of:

(a) protecting the value of an investment of the Building Australia Fund (other than a derivative); or

(b) protecting the return on an investment of the Building Australia Fund (other than a derivative); or

(c) achieving indirect exposure to financial assets (other than derivatives) for a purpose in connection with the Building Australia Fund; or

(d) achieving transactional efficiency for a purpose in connection with the Building Australia Fund;

but must not acquire a derivative for the purpose of:

(e) speculation; or

(f) leverage.

(2) The acquisition of a derivative under subsection (1) must be consistent with the investment strategy embodied in a policy formulated by the Future Fund Board under subsection 41(1).

(3) A derivative acquired under subsection (1) is to be held in the name of the Future Fund Board.

(4) A derivative acquired under subsection (1) is taken to be an investment of the Building Australia Fund.

43 Additional financial assets

If, as a result of:

(a) the Future Fund Board’s holding of an investment of the Building Australia Fund; or

(b) the exercise of any rights or powers conferred on the Future Fund Board in its capacity as the holder of an investment of the Building Australia Fund;

the Future Fund Board becomes the holder of a financial asset, that financial asset is taken to be an investment of the Building Australia Fund.

44 Securities lending arrangements

(1) The Future Fund Board may enter into securities lending arrangements for a purpose in connection with the Building Australia Fund.

(2) Any money received by the Future Fund Board under a securities lending arrangement entered into under subsection (1) is to be credited to the Building Australia Fund Special Account.

(3) To avoid doubt, a securities lending arrangement entered into under subsection (1) may provide for the Future Fund Board to realise an investment of the Building Australia Fund.

(4) If, as the result of the operation of a securities lending arrangement entered into under subsection (1), the Future Fund Board becomes the holder of a financial asset, that financial asset is taken to be an investment of the Building Australia Fund.

45 Investment managers

(1) The Future Fund Board may engage one or more investment managers for purposes in connection with the Building Australia Fund.

(2) The Future Fund Board must not:

(a) invest amounts under subsection 32(1); or

(b) acquire derivatives under subsection 42(1); or

(d) realise financial assets that are investments of the Building Australia Fund;

unless the Future Fund Board does so:

(e) through an investment manager engaged by the Future Fund Board under subsection (1) of this section; or

(f) in a manner approved, in writing, by the responsible Ministers.

(3) The Future Fund Board must ensure that any investment manager engaged by the Future Fund Board under subsection (1) operates within this Act.

(4) The Future Fund Board must ensure that any investment manager engaged by the Future Fund Board under subsection (1) reports to:

(a) the Future Fund Board; and

(b) the Agency;

on the state of the investments of the Building Australia Fund at such times and in such manner as the Future Fund Board determines.

46 Custody of securities

Section 40 of the Financial Management and Accountability Act 1997 does not apply to an investment of the Building Australia Fund.

47 Refund of franking credits

If:

(a) the Future Fund Board receives a refund of a tax offset under the Income Tax Assessment Act 1997; and

(b) the tax offset is attributable to an investment of the Building Australia Fund;

the refund is to be credited to the Building Australia Fund Special Account.

Note 1: See also section 84B of the Future Fund Act 2006.

Note 2: For refunds of tax offsets, see Division 63 of the Income Tax Assessment Act 1997.

48 Realisation of non‑financial assets

(1) If an asset held by the Future Fund Board as an investment of the Building Australia Fund ceases to be a financial asset:

(a) the Future Fund Board must realise the asset as soon as practicable after the Future Fund Board becomes aware of the cessation; and

(b) this Act (other than this section) applies in relation to the asset (including in relation to the realisation of the asset) as if the asset had remained a financial asset, and an investment of the Building Australia Fund, until the realisation.

(2) If an asset acquired by the Future Fund Board, purportedly as an investment of the Building Australia Fund, is not a financial asset:

(a) the Future Fund Board must realise the asset as soon as practicable after the Future Fund Board becomes aware that the asset is not a financial asset; and

(b) this Act (other than this section) applies in relation to the asset (including in relation to the realisation of the asset) as if the asset had been a financial asset, and an investment of the Building Australia Fund, from the time of its acquisition by the Future Fund Board until the realisation.

49 Additional function of the Future Fund Board

The functions of the Future Fund Board include the function of investing amounts in accordance with this Chapter.

Part 2.4—Payments

Division 1—Introduction

50 Simplified outline

The following is a simplified outline of this Part:

• The Finance Minister may authorise payments in relation to the creation or development of transport infrastructure on the recommendation of the Infrastructure Minister.

• The Infrastructure Minister must obtain advice from Infrastructure Australia before making a recommendation.

• The Finance Minister may authorise:

(a) payments in relation to the creation or development of communications infrastructure; and

(b) payments in relation to eligible national broadband network matters;

on the recommendation of the Communications Minister.

• The Communications Minister must obtain advice from Infrastructure Australia before making a recommendation in relation to communications infrastructure.

• The Finance Minister may authorise payments in relation to the creation or development of energy infrastructure on the recommendation of the Energy Minister.

• The Energy Minister must obtain advice from Infrastructure Australia before making a recommendation.

• The Finance Minister may authorise payments in relation to the creation or development of water infrastructure on the recommendation of the Water Minister.

• The Water Minister must obtain advice from Infrastructure Australia before making a recommendation.

• Payments may be channelled through the BAF Infrastructure Portfolio Special Account, the BAF Communications Portfolio Special Account, the BAF Energy Portfolio Special Account or the BAF Water Portfolio Special Account.

• Grants of financial assistance to the States and Territories may be channelled through the COAG Reform Fund.

• The Finance Minister must comply with general drawing rights limits.

• The total amount of payments made in each financial year will depend on the macroeconomic circumstances.

Division 2—Direct payments

51 Authorisation of payments

(1) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of transport infrastructure.

(2) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of communications infrastructure.

(3) The Finance Minister may, by writing, authorise a payment in relation to one or more eligible national broadband network matters.

(4) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of energy infrastructure.

(5) The Finance Minister may, by writing, authorise a payment in relation to the creation or development of water infrastructure.

(6) Subsections (2) and (3) do not limit each other.

(7) 2 or more authorisations under this section may be set out in the same document.

(8) An instrument under subsection (1), (2), (3), (4) or (5) is not a legislative instrument.

52 Recommendations about payments

Transport infrastructure

(1) The Finance Minister must not authorise a payment under subsection 51(1) unless the Infrastructure Minister has recommended the authorisation of the payment.

(2) The Infrastructure Minister must not make a recommendation under subsection (1) in relation to a payment unless Infrastructure Australia has advised under section 116 that the payment satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Infrastructure Minister must have regard to:

(a) advice about the payment that was given to the Infrastructure Minister by Infrastructure Australia under section 116; and

(b) such other matters (if any) as the Infrastructure Minister considers relevant.

Communications infrastructure

(4) The Finance Minister must not authorise a payment under subsection 51(2) unless the Communications Minister has recommended the authorisation of the payment.

(5) The Communications Minister must not make a recommendation under subsection (4) in relation to a payment unless Infrastructure Australia has advised under section 117 that the payment satisfies the relevant BAF evaluation criteria.

(6) In deciding whether to make a recommendation under subsection (4) in relation to a payment, the Communications Minister must have regard to:

(a) advice about the payment that was given to the Communications Minister by Infrastructure Australia under section 117; and

(b) such other matters (if any) as the Communications Minister considers relevant.

Eligible national broadband network matters

(7) The Finance Minister must not authorise a payment under subsection 51(3) unless the Communications Minister has recommended the authorisation of the payment.

Energy infrastructure

(8) The Finance Minister must not authorise a payment under subsection 51(4) unless the Energy Minister has recommended the authorisation of the payment.

(9) The Energy Minister must not make a recommendation under subsection (8) in relation to a payment unless Infrastructure Australia has advised under section 118 that the payment satisfies the relevant BAF evaluation criteria.

(10) In deciding whether to make a recommendation under subsection (8) in relation to a payment, the Energy Minister must have regard to:

(a) advice about the payment that was given to the Energy Minister by Infrastructure Australia under section 118; and

(b) such other matters (if any) as the Energy Minister considers relevant.

Water infrastructure

(11) The Finance Minister must not authorise a payment under subsection 51(5) unless the Water Minister has recommended the authorisation of the payment.

(12) The Water Minister must not make a recommendation under subsection (11) in relation to a payment unless Infrastructure Australia has advised under section 119 that the payment satisfies the relevant BAF evaluation criteria.

(13) In deciding whether to make a recommendation under subsection (11) in relation to a payment, the Water Minister must have regard to:

(a) advice about the payment that was given to the Water Minister by Infrastructure Australia under section 119; and

(b) such other matters (if any) as the Water Minister considers relevant.

53 Grant to a State or Territory—transport infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Infrastructure Minister on behalf of the Commonwealth.

54 Grant to a State or Territory—communications infrastructure etc.

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Communications Minister on behalf of the Commonwealth.

55 Grant to a State or Territory—energy infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Energy Minister on behalf of the Commonwealth.

56 Grant to a State or Territory—water infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Water Minister on behalf of the Commonwealth.

57 Grant to a person other than a State or Territory—transport infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Infrastructure Minister on behalf of the Commonwealth.

58 Grant to a person other than a State or Territory—communications infrastructure etc.

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Communications Minister on behalf of the Commonwealth.

59 Grant to a person other than a State or Territory—energy infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Energy Minister on behalf of the Commonwealth.

60 Grant to a person other than a State or Territory—water infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the Building Australia Fund Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance; and

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Water Minister on behalf of the Commonwealth.

Division 3—Channelling of payments through the BAF Infrastructure Portfolio Special Account

61 Establishment of the BAF Infrastructure Portfolio Special Account

(1) The BAF Infrastructure Portfolio Special Account is established by this section.

(2) The BAF Infrastructure Portfolio Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

62 Purpose of the BAF Infrastructure Portfolio Special Account

(1) The purpose of the BAF Infrastructure Portfolio Special Account is making payments in relation to the creation or development of transport infrastructure, so long as the payments are specified under subsection 63(2).

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

(2) A payment under subsection (1) may be made:

(a) by way of a grant of financial assistance; or

(b) otherwise than by way of a grant of financial assistance.

63 Channelling of payments through the BAF Infrastructure Portfolio Special Account

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Infrastructure Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be debited from the BAF Infrastructure Portfolio Special Account for the purpose of making a specified payment in relation to the creation or development of transport infrastructure.

(3) 2 or more directions under subsection (1) may be set out in the same document.

(4) A direction under subsection (1) is not a legislative instrument.

(5) The Finance Minister must give a copy of a direction under subsection (1) to the Infrastructure Minister.

64 Recommendations about payments

(1) A payment in relation to the creation or development of transport infrastructure must not be specified under subsection 63(2) unless the Infrastructure Minister has recommended the specification of the payment.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Infrastructure Minister must have regard to:

(a) advice about the payment that was given to the Infrastructure Minister by Infrastructure Australia under section 116; and

(b) such other matters (if any) as the Infrastructure Minister considers relevant.

65 Payments—debit from the BAF Infrastructure Portfolio Special Account

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 63(1) for a purpose in relation to a payment; and

(b) the amount specified in the direction is credited to the BAF Infrastructure Portfolio Special Account.

Debit from the BAF Infrastructure Portfolio Special Account

(2) The Infrastructure Minister must ensure that, as soon as practicable after the amount is credited, the BAF Infrastructure Portfolio Special Account is debited for the purposes of making the payment.

(3) However, if the payment cannot be made, an amount equal to the credited amount is to be:

(a) debited from the BAF Infrastructure Portfolio Special Account; and

(b) credited to the Building Australia Fund Special Account.

66 Grant to a State or Territory—transport infrastructure

Scope

(1) This section applies if an amount is to be debited from the BAF Infrastructure Portfolio Special Account for the purpose of making a grant of financial assistance to a State or Territory.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Infrastructure Minister on behalf of the Commonwealth.

67 Grant to a person other than a State or Territory—transport infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the BAF Infrastructure Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Infrastructure Minister on behalf of the Commonwealth.

Division 4—Channelling of payments through the BAF Communications Portfolio Special Account

68 Establishment of the BAF Communications Portfolio Special Account

(1) The BAF Communications Portfolio Special Account is established by this section.

(2) The BAF Communications Portfolio Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

69 Purposes of the BAF Communications Portfolio Special Account

(1) Each of the following is a purpose of the BAF Communications Portfolio Special Account:

(a) making payments in relation to the creation or development of communications infrastructure, so long as the payments are specified under subsection 70(2);

(b) making payments in relation to eligible national broadband network matters, so long as the payments are specified under subsection 70(2).

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

(2) Paragraphs (1)(a) and (b) do not limit each other.

(3) A payment under paragraph (1)(a) or (b) may be made:

(a) by way of a grant of financial assistance; or

(b) otherwise than by way of a grant of financial assistance.

70 Channelling of payments through the BAF Communications Portfolio Special Account

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Communications Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be debited from the BAF Communications Portfolio Special Account:

(a) for the purpose of making a specified payment in relation to the creation or development of communications infrastructure; or

(b) for the purpose of making a specified payment in relation to one or more eligible national broadband network matters.

(3) Paragraphs (2)(a) and (b) do not limit each other.

(4) 2 or more directions under subsection (1) may be set out in the same document.

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Finance Minister must give a copy of a direction under subsection (1) to the Communications Minister.

71 Recommendations about payments

Communications infrastructure

(1) A payment in relation to the creation or development of communications infrastructure (other than a payment in relation to an eligible national broadband network matter) must not be specified under subsection 70(2) unless the Communications Minister has recommended the specification of the payment.

(2) The Communications Minister must not make a recommendation under subsection (1) in relation to a payment unless Infrastructure Australia has advised under section 117 that the payment satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Communications Minister must have regard to:

(a) advice about the payment that was given to the Communications Minister by Infrastructure Australia under section 117; and

(b) such other matters (if any) as the Communications Minister considers relevant.

Eligible national broadband network matters

(4) A payment in relation to an eligible national broadband network matter must not be specified under subsection 70(2) unless the Communications Minister has recommended the specification of the payment.

72 Payments—debit from the BAF Communications Portfolio Special Account

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 70(1) for a purpose in relation to a payment; and

(b) the amount specified in the direction is credited to the BAF Communications Portfolio Special Account.

Debit from the BAF Communications Portfolio Special Account

(2) The Communications Minister must ensure that, as soon as practicable after the amount is credited, the BAF Communications Portfolio Special Account is debited for the purposes of making the payment.

(3) However, if the payment cannot be made, an amount equal to the credited amount is to be:

(a) debited from the BAF Communications Portfolio Special Account; and

(b) credited to the Building Australia Fund Special Account.

73 Grant to a State or Territory—communications infrastructure etc.

Scope

(1) This section applies if an amount is to be debited from the BAF Communications Portfolio Special Account for the purpose of making a grant of financial assistance to a State or Territory.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Communications Minister on behalf of the Commonwealth.

74 Grant to a person other than a State or Territory—communications infrastructure etc.

Scope

(1) This section applies if:

(a) an amount is to be debited from the BAF Communications Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Communications Minister on behalf of the Commonwealth.

Division 5—Channelling of payments through the BAF Energy Portfolio Special Account

75 Establishment of the BAF Energy Portfolio Special Account

(1) The BAF Energy Portfolio Special Account is established by this section.

(2) The BAF Energy Portfolio Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

76 Purpose of the BAF Energy Portfolio Special Account

(1) The purpose of the BAF Energy Portfolio Special Account is making payments in relation to the creation or development of energy infrastructure, so long as the payments are specified under subsection 77(2).

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

(2) A payment under subsection (1) may be made:

(a) by way of a grant of financial assistance; or

(b) otherwise than by way of a grant of financial assistance.

77 Channelling of payments through the BAF Energy Portfolio Special Account

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Energy Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be debited from the BAF Energy Portfolio Special Account for the purpose of making a specified payment in relation to the creation or development of energy infrastructure.

(3) 2 or more directions under subsection (1) may be set out in the same document.

(4) A direction under subsection (1) is not a legislative instrument.

(5) The Finance Minister must give a copy of a direction under subsection (1) to the Energy Minister.

78 Recommendations about payments

(1) A payment in relation to the creation or development of energy infrastructure must not be specified under subsection 77(2) unless the Energy Minister has recommended the specification of the payment.

(2) The Energy Minister must not make a recommendation under subsection (1) in relation to a payment unless Infrastructure Australia has advised under section 118 that the payment satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Energy Minister must have regard to:

(a) advice about the payment that was given to the Energy Minister by Infrastructure Australia under section 118; and

(b) such other matters (if any) as the Energy Minister considers relevant.

79 Payments—debit from the BAF Energy Portfolio Special Account

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 77(1) for a purpose in relation to a payment; and

(b) the amount specified in the direction is credited to the BAF Energy Portfolio Special Account.

Debit from the BAF Energy Portfolio Special Account

(2) The Energy Minister must ensure that, as soon as practicable after the amount is credited, the BAF Energy Portfolio Special Account is debited for the purposes of making the payment.

(3) However, if the payment cannot be made, an amount equal to the credited amount is to be:

(a) debited from the BAF Energy Portfolio Special Account; and

(b) credited to the Building Australia Fund Special Account.

80 Grant to a State or Territory—energy infrastructure

Scope

(1) This section applies if an amount is to be debited from the BAF Energy Portfolio Special Account for the purpose of making a grant of financial assistance to a State or Territory.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Energy Minister on behalf of the Commonwealth.

81 Grant to a person other than a State or Territory—energy infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the BAF Energy Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Energy Minister on behalf of the Commonwealth.

Division 6—Channelling of payments through the BAF Water Portfolio Special Account

82 Establishment of the BAF Water Portfolio Special Account

(1) The BAF Water Portfolio Special Account is established by this section.

(2) The BAF Water Portfolio Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

83 Purpose of the BAF Water Portfolio Special Account

(1) The purpose of the BAF Water Portfolio Special Account is making payments in relation to the creation or development of water infrastructure, so long as the payments are specified under subsection 84(2).

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

(2) A payment under subsection (1) may be made:

(a) by way of a grant of financial assistance; or

(b) otherwise than by way of a grant of financial assistance.

84 Channelling of payments through the BAF Water Portfolio Special Account

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Water Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be debited from the BAF Water Portfolio Special Account for the purpose of making a specified payment in relation to the creation or development of water infrastructure.

(3) 2 or more directions under subsection (1) may be set out in the same document.

(4) A direction under subsection (1) is not a legislative instrument.

(5) The Finance Minister must give a copy of a direction under subsection (1) to the Water Minister.

85 Recommendations about payments

(1) A payment in relation to the creation or development of water infrastructure must not be specified under subsection 84(2) unless the Water Minister has recommended the specification of the payment.

(2) The Water Minister must not make a recommendation under subsection (1) in relation to a payment unless Infrastructure Australia has advised under section 119 that the payment satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a payment, the Water Minister must have regard to:

(a) advice about the payment that was given to the Water Minister by Infrastructure Australia under section 119; and

(b) such other matters (if any) as the Water Minister considers relevant.

86 Payments—debit from the BAF Water Portfolio Special Account

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 84(1) for a purpose in relation to a payment; and

(b) the amount specified in the direction is credited to the BAF Water Portfolio Special Account.

Debit from the BAF Water Portfolio Special Account

(2) The Water Minister must ensure that, as soon as practicable after the amount is credited, the BAF Water Portfolio Special Account is debited for the purposes of making the payment.

(3) However, if the payment cannot be made, an amount equal to the credited amount is to be:

(a) debited from the BAF Water Portfolio Special Account; and

(b) credited to the Building Australia Fund Special Account.

87 Grant to a State or Territory—water infrastructure

Scope

(1) This section applies if an amount is to be debited from the BAF Water Portfolio Special Account for the purpose of making a grant of financial assistance to a State or Territory.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Water Minister on behalf of the Commonwealth.

88 Grant to a person other than a State or Territory—water infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the BAF Water Portfolio Special Account for the purpose of making a payment to a person other than a State or Territory; and

(b) the payment is by way of a grant of financial assistance.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Water Minister on behalf of the Commonwealth.

Division 7—Channelling of State/Territory grants payments through the COAG Reform Fund

Subdivision A—Channelling of transport infrastructure grants

89 Channelling of State/Territory grants payments through the COAG Reform Fund

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Infrastructure Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be:

(a) transferred from the BAF Infrastructure Portfolio Special Account to the COAG Reform Fund; and

(b) debited from the COAG Reform Fund for the purpose of making a specified grant of financial assistance to a State or Territory.

(3) A grant specified under subsection (2) must be a grant of financial assistance in relation to transport infrastructure.

(4) 2 or more directions under subsection (1) may be set out in the same document.

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Finance Minister must give a copy of a direction under subsection (1) to the Treasurer and the Infrastructure Minister.

90 Recommendations about grants payments—transport infrastructure

(1) A grant must not be specified under subsection 89(2) unless the Infrastructure Minister has recommended the specification of the grant.

(2) The Infrastructure Minister must not make a recommendation under subsection (1) in relation to a grant unless Infrastructure Australia has advised under section 116 that the grant satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a grant, the Infrastructure Minister must have regard to:

(a) advice about the grant that was given to the Infrastructure Minister by Infrastructure Australia under section 116; and

(b) such other matters (if any) as the Infrastructure Minister considers relevant.

91 Transfers from the BAF Infrastructure Portfolio Special Account to the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 89(1) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the BAF Infrastructure Portfolio Special Account.

Transfer direction

(2) As soon as practicable after the amount is credited, the Infrastructure Minister must, by writing, direct that the amount is to be:

(a) debited from the BAF Infrastructure Portfolio Special Account; and

(b) credited to the COAG Reform Fund;

on a specified day.

(3) The direction must be expressed to be given in order to enable the amount to be debited from the COAG Reform Fund for the purpose of making the grant.

(4) 2 or more directions under subsection (2) may be set out in the same document.

(5) A direction under subsection (2) is not a legislative instrument.

(6) The Infrastructure Minister must give a copy of a direction under subsection (2) to the Treasurer.

92 Grants payments—debit from the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Infrastructure Minister gives a direction under subsection 91(2) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the COAG Reform Fund.

Debit from the COAG Reform Fund

(2) The Treasurer must ensure that, as soon as practicable after the amount is credited, the COAG Reform Fund is debited for the purposes of making the grant.

93 Grant to a State or Territory—transport infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the COAG Reform Fund for the purpose of making a grant of financial assistance to a State or Territory; and

(b) the grant is a grant of financial assistance in relation to transport infrastructure; and

Note: Subsection 92(2) deals with grants channelled through the COAG Reform Fund.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Infrastructure Minister on behalf of the Commonwealth.

Subdivision B—Channelling of communications infrastructure grants

94 Channelling of State/Territory grants payments through the COAG Reform Fund

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Communications Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be:

(a) transferred from the BAF Communications Portfolio Special Account to the COAG Reform Fund; and

(b) debited from the COAG Reform Fund for the purpose of making a specified grant of financial assistance to a State or Territory.

(3) A grant specified under subsection (2) must be a grant of financial assistance in relation to communications infrastructure.

(4) 2 or more directions under subsection (1) may be set out in the same document.

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Finance Minister must give a copy of a direction under subsection (1) to the Treasurer and the Communications Minister.

95 Recommendations about grants payments—communications infrastructure

(1) A grant must not be specified under subsection 94(2) unless the Communications Minister has recommended the specification of the grant.

(2) The Communications Minister must not make a recommendation under subsection (1) in relation to a grant unless Infrastructure Australia has advised under section 117 that the grant satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a grant, the Communications Minister must have regard to:

(a) advice about the grant that was given to the Communications Minister by Infrastructure Australia under section 117; and

(b) such other matters (if any) as the Communications Minister considers relevant.

96 Transfers from the BAF Communications Portfolio Special Account to the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 94(1) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the BAF Communications Portfolio Special Account.

Transfer direction

(2) As soon as practicable after the amount is credited, the Communications Minister must, by writing, direct that the amount is to be:

(a) debited from the BAF Communications Portfolio Special Account; and

(b) credited to the COAG Reform Fund;

on a specified day.

(3) The direction must be expressed to be given in order to enable the amount to be debited from the COAG Reform Fund for the purpose of making the grant.

(4) 2 or more directions under subsection (2) may be set out in the same document.

(5) A direction under subsection (2) is not a legislative instrument.

(6) The Communications Minister must give a copy of a direction under subsection (2) to the Treasurer.

97 Grants payments—debit from the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Communications Minister gives a direction under subsection 96(2) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the COAG Reform Fund.

Debit from the COAG Reform Fund

(2) The Treasurer must ensure that, as soon as practicable after the amount is credited, the COAG Reform Fund is debited for the purposes of making the grant.

98 Grant to a State or Territory—communications infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the COAG Reform Fund for the purpose of making a grant of financial assistance to a State or Territory; and

(b) the grant is a grant of financial assistance in relation to communications infrastructure; and

Note: Subsection 97(2) deals with grants channelled through the COAG Reform Fund.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Communications Minister on behalf of the Commonwealth.

Subdivision C—Channelling of energy infrastructure grants

99 Channelling of State/Territory grants payments through the COAG Reform Fund

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Energy Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be:

(a) transferred from the BAF Energy Portfolio Special Account to the COAG Reform Fund; and

(b) debited from the COAG Reform Fund for the purpose of making a specified grant of financial assistance to a State or Territory.

(3) A grant specified under subsection (2) must be a grant of financial assistance in relation to energy infrastructure.

(4) 2 or more directions under subsection (1) may be set out in the same document.

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Finance Minister must give a copy of a direction under subsection (1) to the Treasurer and the Energy Minister.

100 Recommendations about grants payments—energy infrastructure

(1) A grant must not be specified under subsection 99(2) unless the Energy Minister has recommended the specification of the grant.

(2) The Energy Minister must not make a recommendation under subsection (1) in relation to a grant unless Infrastructure Australia has advised under section 118 that the grant satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a grant, the Energy Minister must have regard to:

(a) advice about the grant that was given to the Energy Minister by Infrastructure Australia under section 118; and

(b) such other matters (if any) as the Energy Minister considers relevant.

101 Transfers from the BAF Energy Portfolio Special Account to the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 99(1) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the BAF Energy Portfolio Special Account.

Transfer direction

(2) As soon as practicable after the amount is credited, the Energy Minister must, by writing, direct that the amount is to be:

(a) debited from the BAF Energy Portfolio Special Account; and

(b) credited to the COAG Reform Fund;

on a specified day.

(3) The direction must be expressed to be given in order to enable the amount to be debited from the COAG Reform Fund for the purpose of making the grant.

(4) 2 or more directions under subsection (2) may be set out in the same document.

(5) A direction under subsection (2) is not a legislative instrument.

(6) The Energy Minister must give a copy of a direction under subsection (2) to the Treasurer.

102 Grants payments—debit from the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Energy Minister gives a direction under subsection 101(2) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the COAG Reform Fund.

Debit from the COAG Reform Fund

(2) The Treasurer must ensure that, as soon as practicable after the amount is credited, the COAG Reform Fund is debited for the purposes of making the grant.

103 Grant to a State or Territory—energy infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the COAG Reform Fund for the purpose of making a grant of financial assistance to a State or Territory; and

(b) the grant is a grant of financial assistance in relation to energy infrastructure; and

Note: Subsection 102(2) deals with grants channelled through the COAG Reform Fund.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Energy Minister on behalf of the Commonwealth.

Subdivision D—Channelling of water infrastructure grants

104 Channelling of State/Territory grants payments through the COAG Reform Fund

(1) The Finance Minister may, by writing, direct that a specified amount is to be:

(a) debited from the Building Australia Fund Special Account; and

(b) credited to the BAF Water Portfolio Special Account;

on a specified day.

(2) The direction must be expressed to be given in order to enable the specified amount to be:

(a) transferred from the BAF Water Portfolio Special Account to the COAG Reform Fund; and

(b) debited from the COAG Reform Fund for the purpose of making a specified grant of financial assistance to a State or Territory.

(3) A grant specified under subsection (2) must be a grant of financial assistance in relation to water infrastructure.

(4) 2 or more directions under subsection (1) may be set out in the same document.

(5) A direction under subsection (1) is not a legislative instrument.

(6) The Finance Minister must give a copy of a direction under subsection (1) to the Treasurer and the Water Minister.

105 Recommendations about grants payments—water infrastructure

(1) A grant must not be specified under subsection 104(2) unless the Water Minister has recommended the specification of the grant.

(2) The Water Minister must not make a recommendation under subsection (1) in relation to a grant unless Infrastructure Australia has advised under section 119 that the grant satisfies the relevant BAF evaluation criteria.

(3) In deciding whether to make a recommendation under subsection (1) in relation to a grant, the Water Minister must have regard to:

(a) advice about the grant that was given to the Water Minister by Infrastructure Australia under section 119; and

(b) such other matters (if any) as the Water Minister considers relevant.

106 Transfers from the BAF Water Portfolio Special Account to the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Finance Minister gives a direction under subsection 104(1) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the BAF Water Portfolio Special Account.

Transfer direction

(2) As soon as practicable after the amount is credited, the Water Minister must, by writing, direct that the amount is to be:

(a) debited from the BAF Water Portfolio Special Account; and

(b) credited to the COAG Reform Fund;

on a specified day.

(3) The direction must be expressed to be given in order to enable the amount to be debited from the COAG Reform Fund for the purpose of making the grant.

(4) 2 or more directions under subsection (2) may be set out in the same document.

(5) A direction under subsection (2) is not a legislative instrument.

(6) The Water Minister must give a copy of a direction under subsection (2) to the Treasurer.

107 Grants payments—debit from the COAG Reform Fund

Scope

(1) This section applies if:

(a) the Water Minister gives a direction under subsection 106(2) for a purpose in relation to a grant of financial assistance to a State or Territory; and

(b) the amount specified in the direction is credited to the COAG Reform Fund.

Debit from the COAG Reform Fund

(2) The Treasurer must ensure that, as soon as practicable after the amount is credited, the COAG Reform Fund is debited for the purposes of making the grant.

108 Grant to a State or Territory—water infrastructure

Scope

(1) This section applies if:

(a) an amount is to be debited from the COAG Reform Fund for the purpose of making a grant of financial assistance to a State or Territory; and

(b) the grant is a grant of financial assistance in relation to water infrastructure; and

Note: Subsection 107(2) deals with grants channelled through the COAG Reform Fund.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.

(3) An agreement under subsection (2) may be entered into by the Water Minister on behalf of the Commonwealth.

Division 8—Total payments for a financial year

109 General drawing rights limit in relation to a financial year

Scope

(1) This section applies to a financial year if:

(a) in the case of the financial year ending on 30 June 2009—the Finance Minister declares in writing that a specified amount is the general drawing rights limit in relation to the financial year for the purposes of this section; or

(b) in the case of a later financial year—an Appropriation Act relating to the financial year declares that a specified amount is the general drawing rights limit in relation to the financial year for the purposes of this section.

Issue of drawing rights

(2) The total amount covered by drawing rights authorising the following debits in the financial year:

(a) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(a);

(b) the debit of an amount from the BAF Infrastructure Portfolio Special Account (other than a debit under section 91);

(c) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(b);

(d) the debit of an amount from the BAF Communications Portfolio Special Account for the purpose of making a payment in relation to the creation or development of communications infrastructure, other than:

(i) a debit for the purpose of making a payment in relation to an eligible national broadband network matter; or

(ii) a debit under section 96;

(e) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(d);

(f) the debit of an amount from the BAF Energy Portfolio Special Account (other than a debit under section 101);

(g) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(e);

(h) the debit of an amount from the BAF Water Portfolio Special Account (other than a debit under section 106);

(i) the debit of an amount from the COAG Reform Fund in accordance with subsection 92(2);

(j) the debit of an amount from the COAG Reform Fund in accordance with subsection 97(2);

(k) the debit of an amount from the COAG Reform Fund in accordance with subsection 102(2);

(l) the debit of an amount from the COAG Reform Fund in accordance with subsection 107(2);

must not exceed the general drawing rights limit for the financial year.

Declaration

(3) A declaration under paragraph (1)(a) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.

110 Drawing rights in relation to other financial years

The application of section 109 to a particular financial year does not limit the drawing rights that may be issued in relation to any other financial year.

111 No drawing rights to be issued if there is no general drawing rights limit in relation to a financial year

Scope

(1) This section applies to a financial year if:

(a) in the case of the financial year ending on 30 June 2009—no declaration is in force under paragraph 109(1)(a); or

(b) in the case of a later financial year—no Appropriation Act relating to the financial year declares that a specified amount is the general drawing rights limit in relation to the financial year for the purposes of section 109.

No drawing rights to be issued

(2) Drawing rights authorising any of the following debits in the financial year must not be issued:

(a) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(a);

(b) the debit of an amount from the BAF Infrastructure Portfolio Special Account (other than a debit under section 91);

(c) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(b);

(i) a debit for the purpose of making a payment in relation to an eligible national broadband network matter; or

(ii) a debit under section 96;

(e) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(d);

(f) the debit of an amount from the BAF Energy Portfolio Special Account (other than a debit under section 101);

(g) the debit of an amount from the Building Australia Fund Special Account for the purpose mentioned in paragraph 18(1)(e);

(h) the debit of an amount from the BAF Water Portfolio Special Account (other than a debit under section 106);

(i) the debit of an amount from the COAG Reform Fund in accordance with subsection 92(2);

(j) the debit of an amount from the COAG Reform Fund in accordance with subsection 97(2);

(k) the debit of an amount from the COAG Reform Fund in accordance with subsection 102(2);

(l) the debit of an amount from the COAG Reform Fund in accordance with subsection 107(2).

112 Total payments to depend primarily on the macroeconomic circumstances

Scope

(1) This section applies to the following decisions:

(a) a decision to authorise a payment under section 51, where the authorisation will result in a debit from the Building Australia Fund Special Account in a financial year;

(b) a decision to give a direction under subsection 63(1), where the direction will result in a debit from the BAF Infrastructure Portfolio Special Account in a financial year in accordance with subsection 65(2);

(c) a decision to give a direction under subsection 70(1), where the direction will result in a debit from the BAF Communications Portfolio Special Account in a financial year in accordance with subsection 72(2);

(d) a decision to give a direction under subsection 77(1), where the direction will result in a debit from the BAF Energy Portfolio Special Account in a financial year in accordance with subsection 79(2);

(e) a decision to give a direction under subsection 84(1), where the direction will result in a debit from the BAF Water Portfolio Special Account in a financial year in accordance with subsection 86(2);

(f) a decision to give a direction under subsection 89(1), where the direction will result in a debit from the COAG Reform Fund in a financial year in accordance with subsection 92(2);

(g) a decision to give a direction under subsection 94(1), where the direction will result in a debit from the COAG Reform Fund in a financial year in accordance with subsection 97(2);

(h) a decision to give a direction under subsection 99(1), where the direction will result in a debit from the COAG Reform Fund in a financial year in accordance with subsection 102(2);

(i) a decision to give a direction under subsection 104(1), where the direction will result in a debit from the COAG Reform Fund in a financial year in accordance with subsection 107(2).

Macroeconomic circumstances

(2) In making the decision, the Finance Minister must have regard to the principle that the total of the following debits in the financial year: