Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Land Transport Infrastructure Amendment Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill/Legislative Instrument
The Bill will amend the Nation Building Program (National Land Transport) Act 2009 (NBP Act) and repeal the Australian Land Transport Development Act 1988, the Roads to Recovery Act 2000 and the Railway Standardization (New South Wales and Victoria) Agreement Act 1958.
Key elements of the amendments to the NBP Act include:
d. renaming the Act to the National Land Transport Act 2014;
e. continuing the Roads to Recovery Programme post 30 June 2014;
f. combining Parts 3 and 6 of the Act into one part for Investment Projects;
g. adding a new eligible project type into Part 4 (Transport Development and Innovation Projects) to allow funding of research and investigations of projects funded under the Act, or submitted for consideration for funding under the Act; and
h. adding two new eligible funding recipients - partnerships for Parts 4 and 5 (Funding for land transport research entities) and non-corporate Commonwealth entities for Part 5.
The Australian Land Transport Development Act 1988, the Roads to Recovery Act 2000 and the Railway Standardization (New South Wales and Victoria) Agreement Act 1958 are being repealed as they are spent legislation.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Minister for Infrastructure and Regional Development, the Hon Warren Truss MP
NOTES ON CLAUSES
Clause 1: Short Title
1. Provides for the Act to be cited as the Land Transport Infrastructure Amendment Act 2014.
Clause 2: Commencement
2. Sub-clause 2(1) provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.
3. Item 1 of the table provides that sections 1 to 3 of the Bill, which provide for the short title, commencement of the provisions of the Bill and outline the effect of the Schedules to the Bill, and anything not covered elsewhere in the table, will commence on the day this Act receives the Royal Assent.
4. Item 2 of the table provides that Schedule 1 “Main Amendments” and Schedule 2 “Repeals and other amendments” will commence on a day to be fixed by Proclamation.
Clause 3: Schedules
5. Clause 3 outlines the effect of the Schedules to the Bill. Each Schedule amends or repeals the Act specified in that Schedule as provided by the items of the Schedule. Any other item in a Schedule has effect according to its terms.
SCHEDULE 1 – MAIN AMENDMENTS
Part 1 – Amendments
Nation Building Program (National Land Transport) Act 2009
Item 1- Section 1
6. Item 1 omits the short title of “Nation Building Program (National Land Transport) Act 2009” and substitutes it with a new short title of “National Land Transport Act 2014”.
Item 2 – Subsection 4(1) (definition of approved funding recipient)
7. Item 2 repeals the definition of approved funding recipient in subsection 4(1) and replaces it with a new definition. An approved funding recipient is the eligible funding recipient identified in the project approval instrument for a Black Spot Project, an Investment Project and a Transport Development and Innovation Project. This new definition is required as a result of the change of short title of the Act in Item 1, the combination of the approval and funding conditions for Off-Network Projects and National Projects in Part 3 in Item 20, the associated change of heading of Part 3 in Item 15 and the repeal of Part 6 of the Act in Item 38.
Item 3 – Subsection 4(1) (definition of approved purposes)
8. Item 3 repeals the definition of approved purposes in subsection 4(1) and replaces it with a new definition. Approved purpose are the purposes forming part of the project, other than any purposes that are excluded by the project approval instrument from being purposes on which funding may be expended, for a Black Spot Project, an Investment Project and a Transport Development and Innovation Project. This new definition is required as a result of the change of short title of the Act in Item 1, the combination of the approval and funding conditions for Off-Network Projects and National Projects in Part 3 in Item 20, the associated change of heading of Part 3 in Item 15 and the repeal of Part 6 of the Act in Item 38.
Item 4 – Subsection 4(1)
9. Item 4 inserts a definition of Black Spot Project into subsection 4(1). Black Spot Project has the meaning given by section 69 of the Act. This new definition is required as a result of the change of short title of the Act in Item 1.
Item 5 – Subsection 4(1) (definition of Corridor Strategy)
10. Item 5 repeals the definition of Corridor Strategy from subsection 4(1). This definition is being repealed as the term Corridor Strategy is no longer being used in the Act.
Item 6 – Subsection 4(1) (definition of eligible funding recipient)
11. Item 6 repeals the definition of eligible funding recipient in subsection 4(1) and replaces it with a new definition. An eligible funding recipient is a State, including the Australian Capital Territory and Northern Territory, an authority of a State, a local government authority, any other body corporate and, when used in Parts 4 and 5, a partnership. This new definition is required as partnerships have been included as an eligible funding recipient, to simplify funding arrangements for firms without a body corporate structure.
Item 7- Subsection 4(1) (paragraph (a) of the definition of funding agreement)
12. Item 7 omits “6” from the definition of funding agreement in subsection 4(1) as a result of Part 6 of the Act being repealed in Item 38.
Item 8 – Subsection 4(1)
13. Item 8 inserts a definition of Investment Project into subsection 4(1). Investment Project has the meaning given by section 8 of the Act. This new definition is required as a result of the combination of the approval and funding conditions for Off-Network and National Projects in Part 3 of the Act in Item 20, and the related change to the heading of Part 3 in Item 15.
Item 9 – Subsection 4(1)
14. Item 9 repeals the definitions of National Land Transport Plan, Nation Building Program Black Spot Project, Nation Building Program National Project, Nation Building Program Off‑Network Project, Nation Building Program Roads to Recovery funding period, Nation Building Program Roads to Recovery List and Nation Building Program Transport Development and Innovation Project in subsection 4(1). The definition of National Land Transport Plan is being repealed as the term is no longer being used in the Act. The definition of Nation Building Program National Project is being repealed as the heading of Part 3 is being amended to Investment Projects (see item 15). The definition of Nation Building Program Off-Network project is being repealed as Part 6 of the Act is being repealed in Item 38. Items 4 and 13 insert new definitions for Black Spot Project and Transport Development and Innovation Project respectively as a result of the change of short title of the Act in Item 1. Item 12 inserts new definitions for Roads to Recovery funding period and Roads to Recovery List as a result of the change of short title of the Act in Item 1; and the change where the Roads to recovery funding period is specified in item 40.
Item 10 – Subsection 4(1)
15. Item 10 inserts a new definition of non-corporate Commonwealth entity into subsection 4(1). A non-corporate Commonwealth entity is defined as a Department within the meaning of the Public Service Act 1999, or an Executive Agency within the meaning of the Public Service Act 1999 or any other Agency (except a body corporate) to which the Financial Management and Accountability Act 1997 applies. This definition is required as Item 36 inserts non-corporate Commonwealth entity into the definition of land transport research entity.
Item 11 – Subsection 4(1) (definition of project approval instrument)
16. Item 11 repeals the definition of project approval instrument in subsection 4(1) and replaces it with a new definition. A project approval instrument is the instrument approving a project under subsection 70(1) for a Black Spot Project, the instrument approving a project under subsection 9(1) for an Investment Project and the instrument approving a project under subsection 29(1) for a Transport Development and Innovation project. This new definition is required as a result of the change of short title of the Act in Item 1, the change of heading of Part 3 in Item 15 and the repeal of Part 6 of the Act in Item 38.
Item 12 – Subsection 4(1)
17. Item 12 inserts definitions for Roads to Recovery funding period and Roads to Recovery List into subsection 4(1). The Roads to Recovery funding period is the period specified in the Roads to Recovery List under subsection 87(1). The Roads to Recovery List is the list in force under subsection 87(1). The current definitions are being repealed as a result of the change of short title of the Act in Item 1 and the changes made to the Roads to Recovery funding period in item 40.
Item 13 – Subsection 4(1)
18. Item 13 inserts a definition of Transport Development and Innovation Project into subsection 4(1). Transport Development and Innovation Project has the meaning given by section 28 of the Act. This new definition is required as a result of the change of short title of the Act in Item 1.
Item 14 – After section 4
19. Item 14 inserts a new section 4A into the Act. Section 4A details the constitutional bases upon which the Act relies.
Item 15 – Part 3 (heading)
20. Item 15 repeals the heading “Part 3‑Nation Building Program National Projects” and substitutes a new heading “Part 3‑Investment Projects”. This amendment is the result of the change of short title of the Act in Item 1 and the combination of the approval and funding conditions for Off-Network Projects and National Projects in Part 3 in Item 20.
Item 16 – Division 1 of Part 3 (heading)
21. Item 16 repeals the heading “Division 1‑Approval of projects as Nation Building Program National Projects” and substitutes it with “Division 1‑Approval of Investment Projects”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 17 – Section 8
22. Item 17 repeals existing section 8 and substitutes a new section 8. The new section 8 provides that an Investment Project is a project for which an approval by the Minister under subsection 9(1) is in force. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 18 – Section 9 (heading)
23. Item 18 repeals the heading of section 9 “Approval of Nation Building Program National Projects” and substitutes a new heading “Approval of Investment Projects”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 19 – Subsection 9(1)
24. Item 19 omits “Nation Building Program National” from subsection 9(1) and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 20 – Sections 10 and 11
25. Item 20 repeals existing sections 10 and 11 and substitutes new sections 10 and 11.
26. New section 10 provides the types of projects that are eligible for approval as an Investment Project.
27. New section 11 provides the matters which the Minister may have regard to in deciding whether it is appropriate to approve a project as an Investment Project.
28. This amendment combines the approval and funding conditions for Off-Network Projects and National Projects in Part 3. Parts 3 and 6 currently contain a significant number of identical provisions and combining the two parts into Part 3 will streamline the Act. The appropriateness criteria are a combination of the criterion in the existing Parts 3 and 6. The eligibility criteria are also a combination of the criterion in the existing Parts 3 and 6. However, one project type (maintenance of a road in an area with no local government authority) has been removed as this type of project is already covered under Part 8.
Item 21 – Subsection 12(1)
29. Item 21 omits “Nation Building Program National” from subsection 12(1) and substitutes “Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 22 – Subsection 12(3) and (4)
30. Item 22 omits “Nation Building Program National” from subsections 12(3) and (4) and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 23 – Subsection 13(1), (2) and (3)
31. Item 23 omits “Nation Building Program National” from subsections 13(1), (2) and (3) and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 24 – Section 14
32. Item 24 omits “Nation Building Program National” from section 14 and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 25 – Subsection 15(1)
33. Item 25 omits “Nation Building Program National” from subsection 15(1) and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 26 – Section 16 (heading)
34. Item 26 repeals the heading of section 16 “Commonwealth funding for Nation Building Program National Projects” and substitutes a new heading “Commonwealth funding for Investment Projects”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 27 – Subsections 16(1), 17(1) and 18(1)
35. Item 27 omits “Nation Building Program National” from subsections 16(1), 17(1) and 18(1) and substitutes “an Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 28 – Subparagraph 24(1)(c)(vi)
36. Item 28 omits “prescribed by the regulations” from subparagraph 24(1)(c)(vi) and substitutes “determined by the Minister by legislative instrument under subsection(4)”. This amendment removes the requirement to prescribe an amount below which work can be exempt from the public tender requirements in regulations and replaces it with a requirement that the amount by determined by the Minister by legislative instrument. This amendment will reduce regulation and time in delivering the outcome.
Item 29 – At the end of section 24
37. Item 29 inserts new subsection 24(4). Subsection 24(4) provides that the Minister may, by legislative instrument, determine an amount for the purposes of subparagraph (1)(c)(vi). This amendment is required as a result of Item 28.
Item 30 – After subsection 25(1)
38. Item 30 inserts new subsection 25(1A). Subsection 25(1A) provides that a funding recipient must, as soon as practicable after selling or disposing of an interest in land that was acquired using all or part of a funding payment, notify the Minister of the sale or disposal. This amendment will ensure a timely response from both the states and Commonwealth to the sale or disposal of land acquired using Commonwealth funding.
Item 31 – Subsections 25(2) and (4)
39. Item 31 omits “Nation Building Program National” from subsections 25(2) and (4) and substitutes “Investment”. This amendment is a result of the change of heading of Part 3 in Item 15.
Item 32 – Section 30
40. Item 32 omits “either or both” from section 30 and substitutes “any”. This amendment is necessary as a new subsection is being added to section 30 at Item 33.
Item 33 – At the end of section 30
41. Item 33 inserts new paragraph (c) into section 30. New paragraph (c) provides that research, investigations, studies or analysis of projects funded under Parts 3 and 7, projects that were funded under Part 6 before its repeal in Item 38, projects which have been submitted for funding under Parts 3 and 7 and the construction or maintenance of roads that have been funded in whole, or in part, under Part 8, can be funded under Part 4. This amendment will allow the funding of investigations and studies of projects currently, or previously, funded under the Act to enhance the management of projects and/or the Programme. This amendment will also allow the funding of analysis for projects seeking funding under the Act. Such analyses will inform advice to Government.
Item 34 – Paragraph 31(c)
42. Item 34 omits “on Nation Building Program National Projects” from paragraph 31(c) and substitutes “under the Act”. This amendment is a result of the addition of paragraph 30(c) into the Act in Item 33.
Item 35 – Part 5 (heading)
43. Item 35 repeals the heading “Part 5‑Nation Building Program funding for land transport research entities” and substitutes a new heading “Part 5‑Funding for land transport research entities”. This amendment is a result of the change of short title of the Act in Item 1.
Item 36 – Section 45 (definition of land transport research entity)
44. Item 36 inserts “, or a non-corporate Commonwealth entity,” after “eligible funding recipient” in the definition of land transport research entity in section 45. This amendment will allow non-corporate Commonwealth entities whose functions include carrying out, arranging or assisting planning, research, investigations, studies or analysis of matters related to land transport operations to receive funding under Part 5 of the Act.
Item 37 – At the end of Part 5
45. Item 37 inserts new section 51A. Section 51A provides that the Minister may enter into an arrangement with a non-corporate Commonwealth entity in writing for the purposes of Part 5. It further provides that if the Minister does enter into an arrangement it will be treated as if it were a funding agreement entered into under Part 5. This amendment is required to provide clarity as to the how funding can be provided to a non-corporate Commonwealth entity.
Item 38 – Part 6
46. Item 38 repeals Part 6 of the Act. Part 6 is being repealed as the approval and funding conditions for Off-Network Projects and National Projects are being combined in Part 3, with the new name of Investment Projects (see Item 20). Parts 3 and 6 currently contain a significant number of identical provisions and combining the two parts into Part 3 will streamline the Act.
Item 39 – Section 87
47. Item 39 omits “The Nation Building Program Roads to Recovery List must:” from section 87 and substitutes new subsection 87(1). Subsection 87(1) provides that the Minister must, by legislative instrument, determine a list (the Roads to Recovery List) that must contain the details specified in paragraphs 87 (a) and (b) and new paragraph (aa) being inserted at Item 40. This amendment inserts a power for the Minister to determine a Roads to Recovery List, which is necessary for the Roads to Recovery Program to function.
Item 40 – Before paragraph 87(a)
48. Item 40 inserts new paragraph (aa) into section 87. Paragraph 87(aa) provides that the Roads to Recovery List must specify a funding period in relation to the Roads to Recovery Program. This amendment, together with the new Roads to Recovery funding period definition in Item 12, remove the specification of the funding period in the Act and places it in the Roads to Recovery List. This will remove the need to amend the Act every time the funding period changes.
Item 41 – Paragraph 87(a)
49. Item 41 omits “Nation Building Program Roads to Recovery Program during the” from paragraph 87(a) and substitutes “Roads to Recovery Program during the specified”. This amendment is the result of the change of short title of the Act in Item 1 and the determination of the Roads to Recovery funding period in the Roads to Recovery List in Item 40.
Item 42 – At the end of section 87
50. Item 42 inserts new subsection 42(2). Subsection 42(2) provides that section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the Roads to Recovery List (the List). The exemption from disallowance for the List is appropriate given the administrative nature of the List and that certainty for funding recipients would be undermined if the List were subject to disallowance. In previous versions of the Act the List has been exempt from disallowance and variations to the List are also exempt from disallowance.
Item 43 – Subsection 92(1)
51. Item 43 omits “(1)” from subsection 92(1). This amendment is necessary for drafting purposes as subsection 92(2) is being repealed at Item 44.
Item 44 – Subsection 92(2)
52. Item 44 repeals subsection 92(2) of the Act. The Australian Land Transport Development Act 1988 and the Roads to Recovery Act 2000 are being repealed by Items 1 and 3 of Schedule 2 respectively as they are spent legislation and, therefore, subsection 92(2) is no longer required.
Item 45 – After section 92
53. Item 45 inserts new section 92A. Section 92A provides how the Act treats partnerships. This amendment is necessary to provide clarity as to how partnerships should be treated under the Act.
Item 46 – Section 94
54. Item 46 omits “6” from section 94. This amendment reflects the repeal of Part 6 of the Act in Item 38.
Item 47 – Amendments of listed provisions
55. Item 47 sets out amendments to provisions to reflect the change of title of the Act in Item 1.
Part 2 – Application and transitional provisions
Item 48 – Definitions
56. Item 48 inserts the definitions of new law and old law for the purposes of the application and transitional provisions. New law is defined as the National Land Transport Act 2014 as in force on and after the commencement of this item. Old law is defined as the Nation Building Program (National Land Transport) Act 2009 as in force immediately before the commencement of this item.
Item 49 – Application
57. Item 49 provides that the amendments made by Items 9 and 20 do not apply in relation to projects approved as Nation Building Program National Projects before the commencement of those items.
58. Item 49 also provides that the amendment made by Item 28 does not apply to projects approved as Nation Building Program National Projects before the commencement of that item.
59. Item 49 further provides that the amendment made by Item 30 applies to sales and disposals made on or after the commencement of that item, even if the land was acquired before the commencement of that item using all or part of a funding payment for a Nation Building Program National Project made before that commencement.
Item 50 – Transitional - Nation Building Program National Projects
60. Item 50 provides that Nation Building Program National Projects will be treated as if they were Investment Projects; and instruments, funding agreements and funding conditions made for the purposes of a Nation Building Program National Project will be treated as if they were made for an Investment Project.
61. The capacity to vary or revoke instruments or vary or terminate agreements is preserved.
Item 51 – Transitional - Nation Building Program Transport Development and Innovation Projects
62. Item 51 provides that Nation Building Program Transport Development and Innovation Projects will be treated as if they were Transport Development and Innovation Projects; and instruments, funding agreements and funding conditions made for the purposes of a Nation Building Program Transport Development and Innovation Project will be treated as if they were made for an Transport Development and Innovation Project.
63. The capacity to vary or revoke instruments or vary or terminate agreements is preserved.
Item 52 – Transitional - Nation Building Program Off-Network Projects
64. Item 52 provides that Nation Building Program Off-Network Projects will be treated as if they were Investment Projects; and instruments, funding agreements and funding conditions made for the purposes of a Nation Building Program Off-Network Project will be treated as if they were made for an Investment Project.
65. The capacity to vary or revoke instruments or vary or terminate agreements is preserved.
Item 53 – Transitional - Nation Building Program Black Spot Projects
66. Item 53 provides that Nation Building Program Black Spot Projects will be treated as if they were Black Spot Projects; and instruments, funding agreements and funding conditions made for the purposes of a Nation Building Program Black Spot Project will be treated as if they were made for a Black Spot Project.
67. The capacity to vary or revoke instruments or vary or terminate agreements is preserved.
Item 54 – Transitional - Roads to Recovery Program
68. Item 54 provides that the old law, as in force immediately before the commencement of this item, continues to apply on and after commencement in relation to a payment made under Part 8 of the old law during the Nation Building Program Roads to Recovery funding period starting on 1 July 2009.
Item 55 – Transitional rules
69. Item 55 permits the Minister to make, by legislative instrument, rules prescribing matters of a transitional nature relating to the amendments made by this Act. This Item has been included as a backup in case the transitional items do not cover something that needs to be transitioned. The ability of the Minister to make rules is limited only to transitional issues relating to the amendments made by this Act.
SCHEDULE 2 – REPEAL OF ACTS
Part 1 – Repeal of Acts
Australian Land Transport Development Act 1988
Item 1 – The whole of the Act
70. Item 1 repeals the Australian Land Transport Development Act 1988 (the Act). The arrangements in the Act were superseded by the arrangements in the then AusLink (National Land Transport) Act 2005 (currently the Nation Building Program (National Land Transport) Act 2009) and consequently the Act can be repealed.
Railway Standardization (New South Wales and Victoria) Agreement Act 1958
Item 2 – The whole of the Act
71. Item 2 repeals the Railway Standardization (New South Wales and Victoria) Agreement Act 1958 (the Act). This Act incorporates an agreement between the Commonwealth, New South Wales and Victoria to implement gauge standardisation, with the Commonwealth loaning funding to New South Wales and Victoria for that purpose. These works were completed in 1962 and the last repayments against the loans were received in June 2013. As the loan has been repaid the NSW and Victoria Railway Act can be repealed. New South Wales and Victoria also had mirror Acts for the Agreement. The Victorian Act has been repealed.
Roads to Recovery Act 2000
Item 3 – The whole of the Act
72. Item 3 repeals the Roads to Recovery Act 2000 (the Act). The arrangements in the Act were superseded by the arrangements in the then AusLink (National Land Transport) Act 2005 (currently the Nation Building Program (National Land Transport) Act 2009) and consequently the Act can be repealed.
Part 2 – Other Amendments
Income Tax Assessment Act 1997
Item 4 – Section 995-1 (paragraph (a) of the definition of Transport Department)
73. Item 4 omits “Nation Building Program (National Land Transport) Act 2009” from the definition of Transport Department and substitutes it with “National Land Transport Act 2014” as a result of the change of short title of the Act in Item 1 of Schedule 1.
Item 5 – Section 995-1 (definition of Transport Minister)
74. Item 5 omits “Nation Building Program (National Land Transport) Act 2009” from the definition of Transport Minister and substitutes it with “National Land Transport Act 2014” as a result of the change of short title of the Act in Item 1 of Schedule 1.
Telstra Corporation Act 1991
Item 6 – Section 3 (definition of Transport Minister)
75. Item 6 omits “Nation Building Program (National Land Transport) Act 2009” from the definition of Transport Minister and substitutes it with “National Land Transport Act 2014 “as a result of the change of short title of the Act in Item 1 of Schedule 1.