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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
High Speed Rail Authority Bill 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport, Regional Development
and Local Government, the Hon Catherine King MP)
HIGH SPEED RAIL AUTHORITY
OUTLINE
1. This Bill establishes the High Speed Rail Authority as an independent body to advise on,
plan and develop the high speed rail system.
2. The Bill will give legislative authority for an Act to establish the High Speed Rail
Authority as a corporate Commonwealth entity for the purposes of the Public
Governance, Performance and Accountability Act 2013.
3. This Bill sets out the functions and powers of the High Speed Rail Authority, including
the composition of its five-member governance board, including the Chair, as the
accountable authority. Board members will be appointed based on consideration of their
qualifications, gender, geographical representation, knowledge, skills or experience in
railways, transport infrastructure and ability to coordinate effectively with jurisdictions.
The Minister has the authority to appoint Board members and the Chair, including acting
appointments, via written instrument.
4. The role of the High Speed Rail Authority will be to:
• lead, plan, develop, coordinate, oversee and monitor the construction and
operation of a high speed rail network in Australia
• provide advice on the policy and standards for the efficient and effective
development and construction of a high speed rail network
• ensure that the high speed rail network provides an attractive competitive
passenger transport service that is reliable, safe, frequent, accessible, efficient and
cost-effective
• consult with state and territory governments, interested stakeholders, and the
public generally on matters relating to the high speed rail corridors and high speed
rail network
• provide independent advice on the necessary interoperability and uniformity of the
high speed rail network across jurisdictions including working with the National
Transport Commission and state transport regulators in developing codes of
practice, guidelines and standards to ensure a standardised consistent high speed
rail network across jurisdictions (for example, interoperable rolling stock, track
gauge, signalling, power supply etc.)
• deliver on the existing scope and functions of the National Faster Rail Agency in
collaboration with the Department.
5. The High Speed Rail Authority may engage consultants to conduct planning and update
existing business cases and develop business cases for new high speed rail corridors.
6. The High Speed Rail Authority will comprise of staff members employed under the
Public Service Act 1999 or consultants. Staff members will have knowledge or experience
in fields relevant to the Authority's key functions and provide administrative support.
Detailed provisions on the terms and conditions of appointments and staffing are subject
to this Act as well as the Public Governance, Performance and Accountability Act 2013,
the Public Service Act 1999 and the Remuneration Tribunal Act 1973.
7. This Act also sets out the requirements for the Authority to meet, vote, and make
decisions in line with its established functions and powers.
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Financial impact statement
This Bill will have no financial impact as any impacts will be offset.
The Australian Government has made a commitment to establish the High Speed Rail
Authority as a statutory agency to begin work on the Sydney to Newcastle corridor as a
priority.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
High Speed Rail Authority Bill 2022
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 gives legislative authority for an Act to establish the High Speed Rail Authority
as a corporate Commonwealth entity for the purposes of the Public Governance,
Performance and Accountability Act 2013.
The objective of the Authority is to deliver on the government's commitment of
providing an efficient and effect high speed rail network to provide Australians with a
fast mode of travel between capital cities, enhance connectivity of regional centres with
major population centres, and generating broad economic benefits.
Human rights implications
The Bill, if enacted, will not engage any of the applicable rights or freedoms outlined in
the Human Rights (Parliamentary Scrutiny) Act 2011, such as those encompassed in the
International Covenant on Civil and Political Rights.
Conclusion
The Bill does not propose any offences or penalties that limit any human rights.
Minister for Infrastructure, Transport, Regional Development and Local Government,
the Hon Catherine King MP
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1: Short title
1. Once enacted, the short title of the Bill will be the High Speed Rail Authority Act 2022.
Clause 2: Commencement
2. The whole of the Act will commence upon proclamation by the Governor General. If the
Act does not commence within six months from the day it receives Royal Assent, it will
automatically commence the next day after the six months have lapsed. From the day this
Act receives Royal Assent, the Minister will be able to appoint members of the Board.
These appointments will take effect upon commencement of the High Speed Rail
Authority either on proclamation or six months after the Act receives Royal Assent. This
commencement clause allows the Authority to have a Board in place upon
commencement in order to lead and undertake the necessary functions of the Authority.
Without it, the Authority would commence without key members and officers who could
ensure it can operate and be administered appropriately. The Board will appoint a CEO as
its first priority.
Clause 3: Simplified outline of this Act
3. This clause articulates the simplified outline of the Act, which covers the functions of the
Authority, the Board, CEO and staff of the Authority and other miscellaneous items.
Whilst this clause is included to assist readers to understand the substantive provisions,
the outlines are not intended to be comprehensive. It is intended that readers should rely
on the substantive provisions and explanation in this Explanatory Memorandum to
understand each parts of the Act.
Clause 4: Definitions
4. This clause provides full definitions of a number of terms used extensively in the Bill.
5. The term Chair refers to the Chair of the five-member Board who is also one of the five
members.
6. The term Board member refers to the Chair and the members of the Board.
7. The term faster rail network refers to railway networks which does not support high speed
trains, but supports other trains such as the faster and fast trains.
8. The term high speed rail network refers to a network of railways on which high speed rail
trains operate, but may in part support fast and faster trains in particular sections of the
network, or extends from corridors of the faster rail network.
Clause 5: Act binds the Crown
9. This Clause provides that the Act binds the Crown in right of the Commonwealth.
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Part 2 - High Speed Rail Authority
Division 1 - Introduction
Clause 6: Simplified outline of this Part
10. This clause articulates the simplified outline of this Part, which establishes the High Speed
Rail Authority, its functions and powers, and the general directions the Minister can give
to the Authority.
Division 2 - Establishment and functions
Clause 7: Establishment
11. Clause 7 is a formal provision establishing the High Speed Rail Authority. The High
Speed Rail Authority is a corporate Commonwealth entity for the purposes of the Public
Governance, Performance and Accountability Act 2013. The Authority is to be a body
corporate, shall have a seal, may acquire, hold and dispose of real and personal property
and may sue or be sued. The seal of the Authority is to be the responsibility of the Board
and is to be used as the Board directs. The clause also provides that the courts shall take
judicial notice of the seal. The High Speed Rail Authority will have all the functions,
powers, and liabilities exercisable as a body corporate and all the normal incidents of
corporate personality.
Clause 8: Functions
12. This clause provides a detailed description of the functions of the High Speed Rail
Authority. All the functions outlined in this clause are aimed at enabling strategic
planning of the high speed rail network across jurisdictions. All of the Authority's
functions as related in Clause 8 are in relation to work associated with both high speed rail
and faster rail. All the functions related to faster rail cover the scope and objectives of the
National Faster Rail Agency.
13. Functions 1(a)(i) gives the Authority a leading role in the planning and policy
development of the high speed rail network, including the ability to oversee the planning
and development works done by States and Territories.
14. The purpose of function 1(a)(ii) is for the Authority to consult and provide strategic
directions to States and Territories on the interoperability of the high speed rail network,
and to work with jurisdictions to manage and develop strategies to deal with funding and
implementation risks.
15. Function 1(a)(iii) allows the Authority to provide advice and recommendations to the
Minister, States and Territories, transport authorities, companies, partners, clients,
stakeholders and any other relevant party. The advice and recommendations can relate to
the planning, development, and implementation of the high speed rail network, including
environmental issues. The Authority can ensure the interconnectedness of the high speed
rail network across jurisdictions by developing consistent standards and codes of practice.
16. Function 1(a)(iv) includes undertaking evaluation and research to inform and update
business cases and develop business cases for new or existing rail corridors.
17. Function 1(b) and 2(c) allows the Authority to obtain State and Territory consent to
undertake construction work on a high speed rail network. This includes extending
existing faster rail corridors into the high speed rail network, or building new faster rail
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corridors that will become part of the high speed rail network. The construction and
extension function also includes undertaking land acquisition, investment in land interests
and land use planning.
18. There is also capacity for the Minister to add functions over time.
Clause 9: Powers
19. This clause gives the High Speed Rail Authority the power to do all things necessary or
convenient to be done for or in connection with its functions. Other powers include those
necessary for a body corporate to operate, such as the power to enter into contracts or
agreements, acquire, hold and dispose of real or personal property, as well as raise money,
by appropriate means, for the purpose of the Authority.
Clause 10: Authority does not have the privileges and immunities of the Crown
20. Clause 10 provides that the Authority does not have the privileges and immunities of the
Crown in right of the Commonwealth.
Division 3 - Minister may give directions to the Authority
Clause 11: General directions
21. Clause 11 outlines the circumstances in which the Minister may direct the High Speed
Rail Authority to perform its functions. The Minister may provide written directions to the
Authority about the performance of its functions, by legislative instrument. Any direction
must be of a general nature only to which the Authority must comply. In order to ensure
the independence of advice, the Minister cannot give directions to the Authority on the
content of any advice given by the Authority.
Part 3 - Board of the Authority
Division 1 - Introduction
Clause 12: Simplified outline of this Part
22. This clause articulates the simplified outline of this Part establishing the Board of the
Authority. This includes the Board's main functions, appointment of its members, and
decision-making.
Division 2 - Establishment and functions of the Board
Clause 13: Establishment of the Board
23. Clause 13 is a formal provision establishing the Board of the High Speed Rail Authority
(the Board).
Clause 14: Functions of the Board
24. This clause provides that the functions of the Board are to ensure proper, efficient and
effective performance of the Authority and to determine its strategies and policies, subject
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to ministerial direction (see clause 11). This clause also provides for the Board, as the
accountable authority, to do all things necessary or convenient in the performance of its
functions, including any other functions conferred on the Board by this Act.
Division 3 - Board members
Clause 15: Membership
25. The Board will comprise of five board members, including a Chair of the board.
Clause 16: Appointment
26. The Minister will appoint, by written instrument, the five members considered to have the
appropriate qualifications, knowledge, skills and experience. The Minister may consider
whether the he/she is satisfied that appointees have sufficient skills and qualifications in
areas including, but not limited to, transport infrastructure, rail construction, market
delivery, project evaluation, project planning and delivery and experience in local
government or the private sector. The Minister will also make considerations for Board
members to be appointed with fair and equal representation of gender and geographical
representation of jurisdictions that are impacted by the rail network.
27. The Minister will also appoint the Chair of the Board. Appointments are made on a part-
time basis, although provision is made for the Chair to be appointed full-time.
Clause 17: Term of appointment
28. The term of appointment is up to three years. The period reflects the Authority's status as
an overseeing authority and to ensure it has sufficient flexibility in its composition to
continue to fulfil its functions as related issues evolve.
Clause 18: Acting appointments
29. This clause provides that the Minister may appoint an appointed Board member to act as
the Chair where there is a vacancy in that office. A member may also act as the chair
should the chair be absent from duty, or from Australia, or become unavailable for any
reason or be unable to perform the duties of office, to ensure that the functions of the
Authority can be progressed in the chair's absence.
30. Sub-clause 18(2) provides that the Minister may appoint a person who is not a Board
member to act as an appointed member during a vacancy, or when a Board member
becomes unavailable for any reason.
Clause 19: Terms and conditions
31. This clause provides for terms and conditions of office for a Board member, not otherwise
provided for in the Act, to be determined by the Minister.
Clause 20: Remuneration
32. This clause provides that a member is to be paid remuneration determined by the
Remuneration Tribunal, including any allowances. The Remuneration Tribunal is required
to determine remuneration for offices that meet the definition of 'public office' in s3(4) of
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the Remuneration Tribunal Act 1973. This definition includes all offices established under
statute.
33. A member is to be paid the remuneration prescribed by the rules if no determination for
their remuneration is in operation by the Tribunal.
Clause 21: Leave of absence
34. Clause 21 outlines the leave provisions for members and the Chair in accordance with
their remuneration determination set by the Remuneration Tribunal. This clause provides
that the Minister may grant leave to the Chair other than recreation leave, and the Chair
may grant leave of absence to the Board members based on terms and conditions they see
fit. The Chair will also notify the Minister if they grant leave to a Board member for a
period greater than six months.
Clause 22: Other paid work
35. This clause allows the Minister to provide approval if any members, including the Chair,
wish to engage in other paid work. The Minister will determine if the work engaged could
conflict with the performance of their duties as a member of the Authority.
Clause 23: Resignation
36. This clause outlines the formal arrangements for the resignation of members. An
appointed member may resign in writing and deliver this to the Minister. Its effect will
take place on the day the Minister receives the notice or at a later date if it is specified in
the notice.
Clause 24: Termination of appointment
37. This clause sets out the conditions under which the Minister may terminate the
appointment of a member. The Minister shall terminate a Board member's appointment
for misbehaviour, physical or mental incapacity, if the member becomes bankrupt, or
applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, or
compounds with Board member's creditors, or makes an assignment of the Board
member's remuneration for the benefit of the Board member's creditors.
38. For a full-time Chair, the Minister shall terminate the appointment if they are absent
without leave for the period prescribed in sub-clause 24(d)(i) or if the Chair engages in
paid work outside of their duties of Office, without the Minister's approval. For a part-
time Board member, the Minister shall terminate the appointment if the member is absent
from three consecutive meetings without leave or the member engages in paid work that
conflicts or could conflict with their performance of Board member duties, as determined
by the Minister.
Division 4 - Meetings of the Board
Clause 25: Convening meetings
39. This clause outlines the provisions relating to the number of meetings of the High Speed
Rail Authority. The Chair shall convene such meetings of the Board as are necessary for
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the efficient conduct of its functions, and shall convene a meeting on receipt of a written
request signed by the Minister or no fewer than three members.
40. The Chair may convene a meeting at any time and must do so at least four times each
calendar year, with the exception of the first calendar year in which this Act commences.
Clause 26: Presiding at meetings
41. This clause outlines the role of the Chair to preside at meetings or, in the case of absence
of the Chair, a member elected by those present shall preside.
Clause 27: Quorum
42. This clause outlines the number of members needed to form a quorum is the majority of
Board members. In the special circumstances when a member leaves the meeting or when
they cannot be present to deliberate as required by section 29 of the Public Governance,
Performance and Accountability Act 2013, notwithstanding this member's absence, the
other members will constitute a quorum.
Clause 28: Voting at meetings
43. This clause outlines the rules relating to making decisions on matters at meetings, where
the majority of votes of members who are present and voting determines the decision.
44. Sub-clause 28(2) provides that where there is an equality of votes, the tie will be broken
by the casting vote of the presiding member.
Clause 29: Conduct of meetings
45. Clause 29 allows the Board to establish and regulate rules for the conduct of its meetings
as it sees fit, including the way members may participate in meetings, in accordance with
Section 33B of the Acts Interpretation Act 1901.
Clause 30: Minutes
46. This clause requires the Board to keep minutes of meetings.
Clause 31: Decisions without meetings
47. This clause allows the Board to conduct business out of session should it determine it
necessary and outlines the rules for making decisions under these circumstances.
Part 4 - Chief Executive Officer, staff and consultants
Division 1 - Introduction
Clause 32: Simplified outline of this Part
48. This clause articulates the simplified outline of this Part in regards to the Chief Executive
Officer (CEO) of the Authority, the CEO's functions and how the Authority may employ
staff.
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Division 2 - Chief Executive Officer
Clause 33: Chief Executive Officer
49. This clause provides for a Chief Executive Officer of the High Speed Rail Authority.
Clause 34: Functions of the CEO
50. This clause details the functions of the CEO. The primary function is to ensure the day-to-
day administration of the Authority and to do all things necessary or convenient to be
done for in connection with the performance of his or her duties. The CEO shall manage
the affairs of the Authority in accordance with the policies and strategies of the Board.
Clause 35: CEO to act in accordance with directions of the Board
51. Clause 35 outlines the circumstances in which the Board may direct the CEO to perform
his or her duties. This may take the form of the Board providing the CEO with a written
direction, so long as the directions are not inconsistent with the directions given to
Authority by the Minister under section 11. The CEO must comply with the Board's
directions unless those directions relate to the CEO's functions and powers under the
Public Service Act 1999.
52. Sub-clause 35(4) provides that the direction given by the Board is not a legislative
instrument. This sub-clause operates as a declaration of the law, and is not prescribing the
sub-clause as having substantive exemption from being a legislative instrument under the
Legislation Act 2003.
Clause 36: Appointment
53. The CEO can be appointed by the Board by written instrument, after consultation with the
Minister, on a full time basis, for up to, but not exceeding, five years. The CEO cannot be
a Board member.
Clause 37: Acting appointment
54. This clause allows the Board to appoint an acting CEO, after consultation with the
Minister, should the office become vacant for a period or for any reason, so long as the
appointee is not a Board member.
Clause 38: Terms and conditions
55. This clause provides for terms and conditions of office for a CEO, not otherwise provided
for in the Act, to be determined by the Board.
Clause 39: Remuneration
56. This clause provides that the CEO is to be paid remuneration determined by the
Remuneration Tribunal. The CEO is to be paid the remuneration, including allowances,
prescribed by the rules if no determination for their remuneration is in operation by the
Tribunal.
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Clause 40: Leave of absence
57. This clause provides that the CEO has leave entitlements under the Remuneration
Tribunal. Outside of this type of leave, the Chair may grant leave of absence to the CEO
on such terms and conditions as the Chair determines. The Chair will also notify the
Minister if the leave granted is for a period greater than one month.
Clause 41: Other paid work
58. This clause prevents the CEO from engaging in work outside the duties of their office in
the Authority unless the Chair provides approval.
Clause 42: Disclosure of interests
59. This clause outlines the requirements for the CEO to declare any interests, pecuniary or
otherwise, to the Board under section 29 of the Public Governance, Performance and
Accountability Act 2013.
Clause 43: Resignation
60. This clause outlines the formal arrangements for the resignation of the CEO. A CEO may
resign in writing and deliver this to the Board. The date of effect is the day it is received
by the Board unless otherwise stated in the written notice. The Chair of the Board is then
required to notify the Minister of this resignation.
Clause 44: Termination of appointment
61. This clause sets out the conditions under which the Board may terminate the appointment
of a CEO. The Board shall terminate a CEO's appointment for misbehaviour, physical or
mental incapacity, if the CEO becomes bankrupt or applies to take the benefit of any law
for relief of bankruptcy or insolvency, compounds with creditors, makes an assignment of
the CEO's remuneration for the benefit of their creditors, if they are absent without leave
for the period prescribed in sub-clause 44(d), if the CEO engages in other paid work
without the Chair's approval, or failing to comply with section 29 of the Public
Governance, Performance and Accountability Act 2013.
62. The Board is then required to notify the Minister of this termination.
Division 3 - Staff and consultants
Clause 45: Staff
63. Staff will be engaged following the legal establishment of the Authority. These staff will
be employees of the High Speed Rail Authority and will be recruited under the Public
Service Act 1999. Staffing will be the responsibility of the CEO, who shall have all the
powers exercisable of a Head of a Statutory Agency.
64. The Authority will have the power to second staff from other agencies under the Public
Service Act 1999 to ensure there are appropriately skilled personnel to undertake the
Authority's functions and objectives.
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Clause 46: Consultants
65. This clause provides that the Authority may engage persons of suitable qualifications and
experience as consultants.
66. The Authority may, through the engagement of consultants, establish an independent
expert panel with national and international representatives, to provide evidence-based
advice and guidance on the best practice for developing and implementing the high speed
rail system, to inform corridor identification, and codes and operating standards for the
high speed rail network. These decisions will be at the discretion of the Authority once it
is established.
Part 5 - Miscellaneous
Clause 47: Simplified outline of this Part
67. This clause articulates the simplified outline of this Part relating to miscellaneous matters
such as the Authority's corporate plan requirements, reviewing the Act and the Minister's
power to make rules.
Clause 48: Corporate plan
68. This clause provides that the Board must prepare a corporate plan for the purpose of
section 35 of the Public Governance, Performance and Accountability Act 2013. The
Board shall consult with the Minister in the preparation of the corporate plan and may also
consult with stakeholders as per sub-clause 48(b) if suitable.
Clause 49: Review of this Act
69. This clause provides for the operation of this Act and the rules to be reviewed at least
once every ten years. The Minister shall request the review and table the report of the
review in each House of the Parliament within fifteen sitting days of the House after
receiving the report.
Clause 50: Rules
70. This clause enables rules to be made by the Minister which will include, but not limited
to, prescribing additional functions on the Authority and the remuneration conditions for
Board members and the CEO which are not determined by the Remuneration Tribunal.
71. Dealing with these matters in rules rather than regulations accords with the Office of
Parliamentary Counsel's Drafting Direction No. 3.8 - Subordinate legislation. That
Drafting Direction states that 'OPC's starting point is that subordinate instruments should
be made in the form of legislative instruments (as distinct from regulations) unless there is
good reason not to do so'.
72. Consistent with the Drafting Direction, the approach of dealing with these matters in rules
(rather than regulations) has a number of advantages including:
(a) it facilitates the use of a single type of legislative instrument (or a reduced number of
types of instruments) being needed for the Act; and
(b) it enables the number and content of the legislative instruments under the Act to be
rationalised; and
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(c) it simplifies the language and structure of the provisions in the Act that provide the
authority for the legislative instruments; and
(d) it shortens the Act.
73. Due to these advantages, the Drafting Direction states that drafters should adopt this
approach where appropriate with new Acts.
74. The Drafting Direction states that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text of an
Act, should be included in regulations unless there is a strong justification otherwise. The
Bill does not enable rules to provide for any of these matters. This is clarified by the
subclause that specifically prevents rules from including these types of matters.
75. This clause also clarifies that the rules made under the clause are a legislative instrument
for the purposes of the Legislation Act 2003. Under that Act, legislative instruments and
their explanatory statements must be tabled in both Houses of the Parliament within six
sitting days of the date of registration of the instrument on the Federal Register of
Legislation. Once tabled, the rules will be subject to the same level of parliamentary
scrutiny as regulations (including consideration by the Senate Standing Committee for the
Scrutiny of Delegated Legislation), and a motion to disallow the rules may be moved in
either House of the Parliament within 15 sitting days of the date the rules are tabled.
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