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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INFRASTRUCTURE AUSTRALIA AMENDMENT (INDEPENDENT REVIEW) BILL
2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport, Regional Development
and Local Government, the Hon Catherine King MP)
INFRASTRUCTURE AUSTRALIA AMENDMENT (INDEPENDENT REVIEW) BILL
2023
OUTLINE
The Infrastructure Australia Amendment (Independent Review) Bill 2023 (the Bill) will
amend the Infrastructure Australia Act 2008 (IA Act).
The Bill will make Infrastructure Australia (IA) a stronger, more focused expert adviser to the
Australian Government by implementing aspects of the Australian Government response to
the independent review of IA, announced by the Government on 8 December 2022.
The Bill will make amendments to the IA Act to:
• clearly articulate IA's role
• redefine IA's functions and products
• establish a new governance structure.
Amendments relating to clearly articulate IA's role
The Bill would amend Part 1 of the IA Act to insert an object clause that provides guidance
on the intended role of IA to advise the Australian Government. This amendment implements
recommendation 1 of the independent review, to provide IA with a clear mandate.
Amendments to redefine IA's functions and products
The Bill would amend Part 1 of the IA Act to redefine IA's primary functions around:
• conducting audits or assessments of nationally significant infrastructure to determine
adequacy and needs;
• conducting or endorsing evaluations of infrastructure projects;
• developing targeted infrastructure lists and plans; and
• providing advice on nationally significant infrastructure matters.
IA's infrastructure audits will ensure that IA considers the work of state and territory
infrastructure bodies, who undertake assessments of the infrastructure within their
jurisdiction, to identify nationally significant needs and identify any gaps. IA will also be able
to endorse the work of state and territory infrastructure bodies for project evaluations,
reducing duplication and uplifting jurisdictions to a nationally consistent approach.
IA's infrastructure priority lists would be smaller, more targeted and linked to its audits and
Australian Government priorities, with a focus on nationally-significant infrastructure
investment proposals put forward by the Commonwealth, states and territories. IA's advice
function would be enhanced by providing a specific power to inquire into matters relating to
nationally-significant infrastructure.
IA's functions are intended to be guided by the Australian Government's infrastructure
investment objectives and strategic priorities, which may be directed in a public statement.
These amendments implement recommendations from the independent review of IA, which
require legislative changes.
To ensure these amendments do not remove the validity of IA's previous work, the Bill also
includes application and transitional provisions that preserve products published by IA before
the commencement of the relevant provisions of the Bill.
Amendments for a new governance structure
The Bill would amend Part 2 of the IA Act to replace the IA Board with three Commissioners
who would become responsible for ensuring the performance of IA's functions. IA would
remain a corporate Commonwealth entity, however the Commissioners will be able to
undertake formal inquiries into national infrastructure investment topics. This would
formalise a role to develop clear and structured inquiry processes when dealing with the
complex infrastructure ecosystem for nationally significant infrastructure in an integrated
way.
Financial impact statement
The Bill will have no financial impact as any financial impact will be met from existing
appropriations.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Infrastructure Australia Amendment (Independent Review) Bill 2023
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
The Bill gives legislative authority to an Act to amend the functions and governance structure
of the corporate Commonwealth entity IA.
The objective of the amendments is to clearly articulate IA's role, redefine IA's functions and
products, and establish a new governance structure.
The Bill will replace the existing 12-member IA Board with three Commissioners as the
Accountable Authority and with responsibility for the performance of the functions of IA.
The Bill incorporates a new provision to apply a merit-based selection process to candidates
for appointment as Commissioners of IA following public advertising. The provision is
similar to the Merit and Transparency policy that applies in the selection of most Australian
Public Service (APS) agency heads and other statutory office holders working in, or in
conjunction with, APS agencies. The provision further allows the Minister to take affirmative
action in relation to the appointment of women to the Commissioner positions.
Human rights implications
The Bill engages the following rights:
• promoting gender equality with respect to article 4 of the Convention on the
Elimination of All Discrimination Against Women (CEDAW)
Article 4 states that adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered discrimination
as defined in the present Convention.
The Bill would positively effect gender equality by permitting the Minister to consider the
outcomes of a merit selection process and the number of women represented among the
Commissioners and take affirmative action in making an appointment.
Although the Commissioners will not be referred to as a board, the affirmative action
provision would be broadly consistent with the policy underlying the Australian
Government's target for women's representation on government boards. Since 2016 the
Australian Government has committed to a target of women holding 50 per cent of
Government board positions in each portfolio. In addition, there was a target for men and
women to each hold at least 40 per cent of positions on individual boards. As there would be
three Commissioners, strict compliance with the board gender balance commitment will not
be possible.
Conclusion
The Bill is compatible with human rights as, to the extent that it engages human rights issues,
it does so in a positive way.
Minister for Infrastructure, Transport, Regional Development and Local Government,
the Hon Catherine King MP
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 provides that the Bill, when enacted, may be cited as the Infrastructure Australia
Amendment (Independent Review) Act 2023.
Clause 2: Commencement
2. The table in this clause sets out the commencement date for the provisions in the Bill once
it is enacted.
3. Sections 1 to 3, and anything in this Act not elsewhere covered by the table will
commence on Royal Assent and Schedule 1, Part 1 will commence on the day after the
Act receives Royal Assent.
4. Schedule 1, Part 2 will commence on a day to be fixed by Proclamation or six months and
one day after Royal Assent if no Proclamation is made. The commencement by
proclamation of Schedule 1 Part 2 will allow statutory appointments to be put in place to
commence with the new governance framework.
Clause 3: Schedules
5. The amendments set out in Schedule 1 to the Bill are intended to provide IA with a clear
mandate, to streamline its legislated functions and align these with the Australian
Government's needs for infrastructure advice, and to establish a new governance structure
for IA.
SCHEDULE 1 - Amendments
Part 1--Functions
Infrastructure Australia Act 2008
Item 1- After section 2
6. Item 1 inserts a new Object to the Act to define the principal purpose of IA. The intention
is to guide the interpretation of the other provisions of the IA Act.
7. The amendments focus IA to provide advice to the Commonwealth. IA will also avoid
duplication of the work of state and territory infrastructure planning and advisory bodies
that have been established.
Item 2 - Section 3 (definition of COAG)
8. Item 2 repeals the outdated definition of the Council of Australian Governments (COAG).
Item 3 - Paragraphs 5(a) to (gb)
9. Item 3 restructures and revises the functions of IA set out in paragraphs 5(a) to 5(gb) of
the IA Act, by repealing these and substituting new paragraphs 5(a) to 5(c).
10. The numbering of paragraph 5(b) is to be retained to maintain linkages between
division 415 of the Income Tax Assessment Act 1997 and the IA Act.
Item 4 - Section 5A to 5C
11. Item 4 repeals existing sections 5A to 5C of the IA Act and inserts new sections 5A to 5E
that provide further detail around the functions identified in section 5.
12. 5A details the amended function of conducting audits to determine the adequacy, capacity
and condition of nationally-significant infrastructure. Amendments included in
paragraph 5A(1)(a) make clear that growth means both economic and population growth.
New subsection 5A(2) would give discretion to the IA Board (subsequently to become the
Commissioners) over the frequency of audits. New subsection 5A(3) is intended to
remove duplication and guide IA to consider any reports prepared by state, territory and
local governments that may inform a national audit, including, but not restricted to, state
and territory infrastructure strategies and plans, as recommended by the independent
review. These amendments will ensure that IA considers previous work undertaken by
state, territory and local governments.
13. 5B details the amended provisions for IA to evaluate infrastructure proposals from or
through state and territory governments or the Commonwealth. This would ensure
proposals have a proponent that is able to progress nationally significant projects, and
avoid IA expending unnecessary resources.
14. 5B provides for IA to develop and promote a national planning and assessment
framework, in consultation with the states and territories, as best practice guidance to
enhance national consistency and coordination of infrastructure evaluations. Further, it
enables IA to endorse an evaluation conducted by a state or territory government entity, in
place of conducting its own evaluation. This amendment will permit IA to apply the
accreditation model envisaged by the independent review to enable IA to focus on
providing a nationally consistent approach to evaluations and reduce duplication of work.
15. Subsection 5B(2) is explanatory and not intended to provide a new substantive legislative
instrument exemption.
16. 5C details the amended function of developing targeted Infrastructure Priority Lists and
Infrastructure Plans. The new lists would prioritise nationally-significant infrastructure
investment proposals from Australian, state or territory governments, that are ready for
Commonwealth investment and linked to IA's audits and Australian Government
priorities. This provision does not require IA to rank each individual project on a list, but
rather identify projects which should be prioritised in the short, medium and long term
based on the Commonwealth's infrastructure investment principles.
17. The complementary provision in section 5C to develop infrastructure plans may provide
for the identification of longer term nationally-significant infrastructure needs. To ensure
plans are appropriately targeted to the Australian Government's decision-making needs,
plans would be developed at the request of, or after consultation with, the responsible
Minister.
18. 5D provides detail on the function of providing advice on infrastructure matters not
covered by the project planning and prioritisation advice provisions in new sections 5A to
5C. The function includes a new provision for IA to inquire into matters relating to
nationally-significant infrastructure at the request of the Minister or after consulting with
the Minister, as suggested by the independent review.
19. 5E specifies that IA must have regard to the policies of the Commonwealth Government
in performing its function. This is intended to ensure IA is directing its resources and
framing its products and advice to the Commonwealth's information needs. The provision
is not intended to direct the specific content of any audit, evaluation, list, plan or advice to
be provided by IA.
Item 5 - Subsection 6(2)
20. Item 5 replaces the previous reference to relevant decisions of COAG. It provides that the
responsible Minister may have regard to any relevant decisions of a body which consists
only of, or includes, the Prime Minister; the Premiers of each State; and the Chief
Ministers of the Australian Capital Territory and Northern Territory.
Item 6 - After subsection 6E(2)
21. Item 6 inserts a transitional provision, to apply pending the commencement of the
amendments at item 22, to require the IA Board to have regard to the policies of the
Commonwealth Government in relation to infrastructure.
Item 7 - Section 39C
22. Item 7 repeals the requirement for IA to include in its annual report details of the
approved cost benefit analysis methods in force during the period of the annual report.
IA's assessment framework, published on its website, provides information on cost
benefit analysis methods applied.
Item 8 - Application, saving and transitional provisions
23. Item 8 inserts a provision to preserve the requirements, as they applied, for an
Infrastructure Priority List developed before the commencement of these amendments.
Projects on the list as it stood before commencement of the amendments would not be
automatically carried forward to a new list, but might be reviewed by IA for their
suitability to be included under the new list requirements or alternatively in another IA
product.
24. Provisions are also included to preserve existing evaluations done by IA before
commencement of the amendments and Infrastructure Plans prepared by IA.
25. Item 8 further inserts a provision to ensure any ministerial directions issued to IA before
commencement of the amendments would continue to be valid.
26. Item 8 further inserts provisions to identify the transition to new reporting arrangements in
section 39C.
Part 2--Governance
Infrastructure Australia Act 2008
Item 9 - Section 3 (definition of Board)
27. Item 9 repeals the definition of Board consequential to introducing Commissioners to
replace the Board.
Item 10 - Section 3 (definition of Chair)
28. Item 10 repeals the definition of Chair, consequential to the change in governance
structure and terminology.
Item 11 - Section 3
29. Item 12 inserts definitions for the Chief Commissioner and Commissioner.
Item 12 and 13 - Section 3 (definition of full-time Chair)
30. Items 12 and 13 repeal the definition of full-time Chair, and replace it with a definition for
full-time Commissioner, consequential to the change in governance structure and
terminology.
Item 14 - Section 3 (definition of member)
31. Item 14 repeals the definition of member, consequential to the change in governance
structure and terminology.
Item 15 and 16 - Section 3 (definition of part-time Chair)
32. Items 15 and 16 repeal the definition of part-time Chair, and replaces it with a definition
for part-time Commissioner, consequential to the change in governance structure and
terminology.
Item 17 and 18 - Subsection 4(3)
33. Items 17 and 18 amend subsection 4(3) to provide that the Commissioners will become
responsible for the IA seal. This is consequential to the change in governance structure
and terminology.
Item 19 - Subsection 5A(2)
34. Item 19 amends subsection 5A(2), inserted by item 4, to provide that the Commissioners
would become responsible for determining the frequency with which infrastructure audits
are prepared by IA. This is consequential to the change in governance structure and
terminology.
Item 20 - Subsection 5C(2)
35. Item 20 amends subsection 5C(2), inserted by item 4, to provide that the Commissioners
would become responsible for determining the frequency with which Infrastructure
Priority Lists are updated. This is consequential to the change in governance structure and
terminology.
Item 21 - Subsection 5C(5)
36. Item 21 amends subsection 5C(5), inserted by item 4, to replace the reference to the
Board, consequential to the change in governance structure and terminology.
Item 22 - Part 2A
37. Item 22 repeals the entirety of Part 2A in relation to the Board of IA and substitutes a new
Part 2A in relation to Commissioners.
38. This amendment will implement a new governance structure for IA proposed by the
independent review. The 12-member Board, including the Chair, would be replaced with
three Commissioners, including a Chief Commissioner.
39. Responsibilities and other arrangements covered by the part would be mostly carried over
unchanged. A new provision, subsection 6E(3), would require the Commissioners to have
regard to the policies of the Commonwealth Government in relation to infrastructure. Two
Commissioners would generally constitute a quorum.
40. Commissioners (including the Chief Commissioner) may be appointed on a full-time or
part-time basis. The maximum term of appointment for Commissioners would be 5 years,
in recognition that frequent turnover of the small number of Commissioners will be
disruptive to IA and because the Commissioners are expected to bring to IA considerable
subject matter expertise.
41. A merit-based selection process would apply to identify the most suitable candidates for
appointment as Commissioners (noting this does not apply to the reappointment, if they
were currently holding office). At the same time, provision is made for the Minister to
take affirmative action to apply the Government's gender equality targets for government
boards. The Minister may also take into consideration appropriate geographical
representation among the Commissioners so they reflect IA's national remit.
42. An instrument of appointment is not a legislative instrument - see item 8 of the table in
subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015.
Item 23 - Section 28A (heading)
43. Item 23 replaces the term Board with the term Commissioners in the heading of
section 28A, consequential to the change in governance structure and terminology.
Item 24 - Subsections 28A(1) and (2)
44. Item 24 replaces the term Board with the term Commissioners in subsections 28A(1) and
(2), consequential to the change in governance structure and terminology.
Item 25 - Subsection 29(1)
45. Item 25 replaces the term Board with the term Commissioners in subsection 29(1),
consequential to the change in governance structure and terminology.
Item 26 - Section 31
46. Item 26 replaces the term Board with the term Commissioners in section 31,
consequential to the change in governance structure and terminology.
Item 27 - Subsection 33(2)
47. Item 27 omits all references to Chair within subsection 33(2) and substitutes the term
Chief Commissioner. This is consequential to the change in structure and terminology.
Item 28 - Subsection 34(1)
48. Item 28 replaces the term Board with the term Commissioners in subsection 34(1).
Item 29 - Section 35
49. Item 29 replaces the term Chair's with the term Chief Commissioner's in section 35.
Item 30 - Section 36
50. Item 30 replaces the term Board with the term Commissioners in section 36.
Item 31 - Subsections 37(1) and (2)
51. Item 31 replaces the term Chair with the term Chief Commissioner in subsections 37(1)
and (2).
Item 32 and 33 - Section 38 and Section 39B
52. Items 32 and 33 replace the term Board with the term Commissioners in sections 38 and
39B.
Item 34 - Paragraph 39B(b)
53. Item 34 replaces the words it considers, in relation to the Board, with the words the
Commissioners consider in paragraph 39B(b).
Item 35 - Section 39C
54. Item 35 replaces the term Board with the term Commissioners in section 39C.
Item 36 - Paragraph 40A(1)(a)
55. Item 36 replaces the words member of the Board with Commissioner in
paragraph 40A(1)(a).
Item 37 - Section 40B (heading)
56. Item 37 replaces the term Board with the term Commissioners in the heading of
section 40B.
Item 38 - Subsection 40B(1)
57. Item 38 omits the words Board may, in writing, delegate any or all of its powers and
substitutes the words to Commissioners may, in writing, delegate any or all of the
Commissioners' powers in subsection 40B(1). This would carry over the existing
delegation provision that applies for the Board to the Commissioners.
Item 39 - Paragraph 40B(1)(a)
58. Item 39 replaces the words member of the Board with Commissioner in
paragraph 40B(1)(a).
Item 40 - Subsection 40B(2)
59. Item 40 replaces the term Board with the term Commissioners in subsection 40B(2).
Item 41 - Subsection 40C(2)
60. Item 41 omits the words the Infrastructure Australia or the Board delegates and
substitutes the words to Infrastructure Australia or the Commissioners delegate in
subsection 40C(2).
Item 42 - Application, saving and transitional provisions
61. Item 42 inserts application, saving and transitional provisions to ensure that anything done
by, or in relation to, the Board or Chair before the commencement of the amendments
which abolish the Board and Chair position and replace these with Commissioners and a
Chief Commissioner remains valid and continues to apply after commencement.