Compilation #5 | Effective 2024-10-14
FRBR Work URI: /akn/au/act/2013/69
This Act may be cited as the Australian Jobs Act 2013.
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.
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The main object of this Act is to support the creation and retention of Australian jobs by:
requiring Australian Industry Participation plans for major projects; and
providing that an Australian Industry Participation plan for a major project will ensure that Australian entities have full, fair and reasonable opportunity to bid for:
the supply of key goods or services for the project; and
if the project involves establishing a new facility—the supply of key goods or services for the new facility’s initial operational phase.
The following is a simplified outline of this Act:
• An Australian Industry Participation plan (AIP plan) is required for a major project to establish, expand, improve or upgrade a facility.
• An AIP plan will deal with:
the project phase of a major project; and
if a major project involves establishing a new facility—the new facility’s initial operational phase.
• The key objective of an AIP plan is that Australian entities should have full, fair and reasonable opportunity to bid for:
the supply of key goods or services for the project; and
if the project involves establishing a new facility—the supply of key goods or services for the new facility’s initial operational phase.
• This Act sets up the Australian Industry Participation Authority.
• The Authority’s functions include:
approving AIP plans; and
monitoring compliance; and
other functions relating to Australian industry participation matters.
• The Minister may establish the Australian Industry Participation Advisory Board.
In this Act:
ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
ACN has the same meaning as in the Corporations Act 2001.
acquire has the same meaning as in the Competition and Consumer Act 2010.
advisory board member means a member of the AIP advisory board, and includes the Chair of the AIP advisory board.
AIP advisory board means the Australian Industry Participation Advisory Board established under section 85.
AIP matter means:
a matter relating to the opportunities for Australian entities to bid for the supply of key goods or services for a designated project; or
a matter relating to the opportunities for Australian entities to bid for the supply of key goods or services for the initial operational phase of a new relevant facility in relation to a designated project.
AIP plan rules means the rules set out in Division 2 of Part 2.
approved AIP plan means an approved AIP plan under section 18, 19 or 20.
Australian entity means an entity that has an ABN or an ACN.
Australian police force means:
the Australian Federal Police; or
a police force or police service of a State or Territory.
Authority means the Australian Industry Participation Authority.
bid includes tender.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
designated project has the meaning given by section 7.
draft AIP plan means a plan that is accompanied by a document stating that the plan is a draft AIP plan.
electricity facility means one, or a combination of 2 or more, of the following facilities: an electricity generation facility; an electricity transmission facility; an electricity distribution facility.
Note: See section 67.
an electricity generation facility;
an electricity transmission facility;
an electricity distribution facility.
eligible facility has the meaning given by section 6.
engage in conduct means:
do an act; or
omit to perform an act.
entity has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
entrusted official means:
the Authority; or
a member of the staff assisting the Authority; or
a person whose services are made available to the Authority under section 81; or
a person engaged as a consultant under section 82; or
an advisory board member.
goods has the same meaning as in the Competition and Consumer Act 2010.
key goods or services has the meaning given by section 10.
key goods or services for a new relevant facility’s initial operational phase has the meaning given by section 12.
key goods or services for a project has the meaning given by section 11.
key objective:
in relation to Part B of an approved AIP plan for a major project—has the meaning given by section 34; or
in relation to Part C of an approved AIP plan for a major project—has the meaning given by section 38.
land transport facility means one, or a combination of 2 or more, of the following things: a road; a tunnel; a bridge; a railway line; that is to be used for the transport of people or goods.
a road;
a tunnel;
a bridge;
a railway line;
that is to be used for the transport of people or goods.
legislative rules means rules made under section 128.
low-value contract has the meaning given by subsection 10(7).
low-value contract threshold amount has the meaning given by subsection 10(8).
major project has the meaning given by section 8.
major project threshold amount has the meaning given by subsection 8(2).
non-Australian entity means an entity other than an Australian entity.
operator means the person who is, or is to be, responsible for operating the facility.
petroleum has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
petroleum facility means one, or a combination of 2 or more, of the following things: a well, or other thing, for use for the exploration for petroleum; a well, or other thing, for use for the recovery of petroleum; a thing for use for the processing of petroleum; a thing for use for the storage of petroleum; a thing for use for the offloading of petroleum; a thing for use for the piped conveyance of petroleum.
Note: See also section 65, which deals with multiple operators.
a well, or other thing, for use for the exploration for petroleum;
a well, or other thing, for use for the recovery of petroleum;
a thing for use for the processing of petroleum;
a thing for use for the storage of petroleum;
a thing for use for the offloading of petroleum;
a thing for use for the piped conveyance of petroleum.
prescribed court means:
the Federal Court of Australia; or
the Federal Circuit and Family Court of Australia (Division 2).
procurement entity:
in relation to a project—means a person who is responsible for acquiring key goods or services for the project (for this purpose, it is immaterial whether the person is the project proponent for the project); or
in relation to a new relevant facility—means a person who is responsible for acquiring key goods or services for the facility’s initial operational phase (for this purpose, it is immaterial whether the person is the operator of the facility).
productive facility means a facility that is wholly or principally for use in carrying out one or more steps in: the production or distribution, or both, of goods; or the provision of services. project includes: a project as varied and in existence from time to time; and a project that has been completed.
the production or distribution, or both, of goods; or
the provision of services.
project includes:
a project as varied and in existence from time to time; and
a project that has been completed.
project proponent means the person who is responsible for carrying out the project.
protected information means information that: was obtained after the commencement of this section by a person in the person’s capacity as an entrusted official; and relates to the affairs of a person other than an entrusted official.
Note: See also section 9 (which deals with persons responsible for carrying out projects) and section 63 (which deals with multiple project proponents).
was obtained after the commencement of this section by a person in the person’s capacity as an entrusted official; and
relates to the affairs of a person other than an entrusted official.
relevant facility, in relation to a project, means:
to the extent to which the project involves establishing a new eligible facility—the new eligible facility; or
to the extent to which the project involves expanding, improving or upgrading an eligible facility—the expanded, improved or upgraded eligible facility.
Royal Commission has the same meaning as in the Royal Commissions Act 1902.
services has the same meaning as in the Competition and Consumer Act 2010.
sewage or wastewater facility means one, or a combination of both, of the following: equipment, excavations and structures that are to be used for treating sewage, or other wastes in water, produced by the public: to reduce the damage caused by its disposal in the natural environment; or to make any component of the things treated suitable for re-use; channels, drains or pipelines for carrying sewage, or other wastes in water, produced by the public to or from the equipment and structures covered by paragraph (a). State/Territory government body means: the government of a State or Territory; or an agency or authority of a State or Territory.
equipment, excavations and structures that are to be used for treating sewage, or other wastes in water, produced by the public:
to reduce the damage caused by its disposal in the natural environment; or
to make any component of the things treated suitable for re-use;
channels, drains or pipelines for carrying sewage, or other wastes in water, produced by the public to or from the equipment and structures covered by paragraph (a).
State/Territory government body means:
the government of a State or Territory; or
an agency or authority of a State or Territory.
subsidiary has the same meaning as in the Corporations Act 2001.
supply has the same meaning as in the Competition and Consumer Act 2010.
telecommunications network has the same meaning as in the Telecommunications Act 1997.
trigger date, in relation to a project, has the meaning given by section 13.
water supply facility means one, or a combination of 2 or more, of the following: dams, weirs, reservoirs or tanks that are to be used for storing, and regulating the flow of, water for public consumption, or other use by the public; bores that are to be used for extracting water for public consumption, or other use by the public; channels or pipelines that are to be used: for supplying water for public consumption, or other use by the public; or for carrying water between dams or other storage places from which it is to be supplied through channels or pipelines for public consumption, or other use by the public; pumps and associated structures that are to be used: in extracting water from bores covered by paragraph (b); or for pumping water along channels or pipelines covered by paragraph (c); equipment and structures that are to be used for treating water that is to be supplied to the public through pipelines to make it fit for the public to drink.
dams, weirs, reservoirs or tanks that are to be used for storing, and regulating the flow of, water for public consumption, or other use by the public;
bores that are to be used for extracting water for public consumption, or other use by the public;
channels or pipelines that are to be used:
for supplying water for public consumption, or other use by the public; or
for carrying water between dams or other storage places from which it is to be supplied through channels or pipelines for public consumption, or other use by the public;
pumps and associated structures that are to be used:
in extracting water from bores covered by paragraph (b); or
for pumping water along channels or pipelines covered by paragraph (c);
equipment and structures that are to be used for treating water that is to be supplied to the public through pipelines to make it fit for the public to drink.
(1) For the purposes of this Act, eligible facility means:
a mine or quarry, whether alone or in combination with one or more other facilities that are reasonably necessary for the mine or quarry to operate; or
a land transport facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the land transport facility to operate; or
a wharf or other port facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the wharf or other port facility to operate; or
a petroleum facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the petroleum facility to operate; or
an electricity facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the electricity facility to operate; or
a factory, whether alone or in combination with one or more other facilities that are reasonably necessary for the factory to operate; or
an airport, whether alone or in combination with one or more other facilities that are reasonably necessary for the airport to operate; or
a passenger terminal, whether alone or in combination with one or more other facilities that are reasonably necessary for the passenger terminal to operate; or
a water supply facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the water supply facility to operate; or
a sewage or wastewater facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the sewage or wastewater facility to operate; or
a telecommunications network; or
any other productive facility, whether alone or in combination with one or more other facilities that are reasonably necessary for the productive facility to operate.
(2) The legislative rules may declare that a specified thing is an eligible facility for the purposes of this Act.
(3) The legislative rules may declare that a combination of 2 or more specified things is an eligible facility for the purposes of this Act.
Subsections (1), (2) and (3) have effect subject to subsections (5) and (6).
Exceptions
(5) The Authority may, by legislative instrument, declare that a specified thing is not an eligible facility for the purposes of this Act.
(6) The Authority may, by legislative instrument, declare that a combination of 2 or more specified things is not an eligible facility for the purposes of this Act.
Interpretation
To avoid doubt, for the purposes of subsections (2), (3), (5) and (6) it is immaterial whether the specified thing or things are in existence when the declaration is made.
(1) For the purposes of this Act, designated project means a project to do either or both of the following:
establish a new eligible facility;
expand, improve or upgrade an existing eligible facility;
to the extent to which:
one or more constitutional corporations are responsible for carrying out the project; or
a relevant facility:
(i) is, or is to be, in one or more offshore areas (within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) and outside the Greater Sunrise special regime area (within the meaning of the Seas and Submerged Lands Act 1973); and
relates to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf; or
a relevant facility is, or is to be, for purposes related to trade or commerce:
between Australia and places outside Australia; or
among the States; or
within a Territory; or
between a State and a Territory; or
between 2 Territories; or
a relevant facility is, or is to be, in a Territory; or
(g) a relevant facility is, or is to be, in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970).
However, subsection (1) does not apply to a project if the trigger date for the project is before the 90th day after the commencement of this section.
(1) If the total expenditure of a capital nature that has been incurred, or is reasonably likely to be incurred, in carrying out a designated project is greater than or equal to the major project threshold amount, the project is a major project for the purposes of this Act.
(2) For the purposes of this Act, major project threshold amount means $500 million.
For the purposes of this section, if a project is subject to one or more conditions, assume that those conditions will be satisfied.
Arm’s length transactions
If:
a person has incurred, or is reasonably likely to incur, expenditure in connection with a transaction; and
the parties to the transaction did not, or are not likely to, deal with each other at arm’s length in relation to the transaction; and
the amount of the expenditure is, or is reasonably likely to be, less than is reasonable;
the amount of the expenditure is taken, for the purposes of this section, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
Anti-avoidance
If:
at any time after the commencement of this section, one or more persons entered into, commenced to carry out, or carried out, a scheme; and
the scheme involves carrying out 2 or more low-value designated projects; and
the total expenditure of a capital nature that has been incurred, or is reasonably likely to be incurred, in carrying out those projects is greater than or equal to the major project threshold amount; and
having regard to the following:
the manner in which the scheme was entered into or carried out;
the form and substance of the scheme;
the time when the scheme was entered into and the length of the period during which the scheme was, or is likely to be, carried out;
the result in relation to the operation of this Act that, but for this section, would be achieved by the scheme;
it would be concluded that the person, or any of the persons, who entered into, commenced to carry out, or carried out, the scheme did so for the sole or dominant purpose of enabling a person to avoid the application of Part 2;
the Authority may, by writing, determine that each of those projects is a major project for the purposes of this Act.
For the purposes of subsection (5), it is immaterial whether the person last mentioned in paragraph (5)(d) is the person, or one of the persons, mentioned in paragraph (5)(a).
If the Authority makes a determination under subsection (5), the Authority must publish a copy of the determination on the Authority’s website.
A determination under subsection (5) is not a legislative instrument.
(9) For the purposes of subsection (5), if the total expenditure of a capital nature that has been incurred, or is reasonably likely to be incurred, in carrying out a designated project is less than the major project threshold amount, the project is a low-value designated project.
(10) For the purposes of subsection (5), scheme means:
any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.
Agreements
(1) If, under an agreement, a project, or a part of a project, is, or is to be, carried out by a person (the contractor) for and on behalf of another person, then, for the purposes of this Act:
the other person is taken to be the person responsible for carrying out the project, or the part of the project, as the case may be; and
the contractor is taken not to be responsible for carrying out the project, or the part of the project, as the case may be.
Subsection (1) has effect subject to subsections (3) and (5).
Declarations
The Authority may, by writing, declare that, for the purposes of this Act:
a specified person is taken to be the person responsible for carrying out a specified project; and
no other person is taken to be responsible for carrying out the project.
If the Authority makes a declaration under subsection (3) in relation to a person, the Authority must give a copy of the declaration to the person.
The Authority may, by writing, declare that, for the purposes of this Act:
2 or more specified persons are taken to have joint or several responsibility for carrying out a specified project; and
no other person is taken to be responsible for carrying out the project.
Note: See also section 63 (which deals with multiple project proponents).
If the Authority makes a declaration under subsection (5) in relation to 2 or more persons, the Authority must give a copy of the declaration to each of those persons.
A declaration under subsection (3) or (5) is not a legislative instrument.
(1) For the purposes of this Act, key goods or services means goods or services other than goods or services supplied, or to be supplied, under a low-value contract.
Anti-avoidance
If:
a person proposes to acquire goods or services for a major project under 2 or more low-value contracts; and
the total expenditure incurred, or to be incurred, by the person under those contracts is likely to be greater than or equal to the low-value contract threshold amount; and
having regard to the following:
the manner in which the contracts are likely to be entered into;
the period of time over which the contracts are likely to be entered into;
the likely interval or intervals of time (if any) between the entering into of the contracts;
the locations at which the contracts are likely to be entered into;
it would be concluded that the person proposes to acquire those goods or services under those contracts for the sole or dominant purpose of enabling a person to avoid the application of an approved AIP plan to those goods or services;
the Authority may, by writing, determine that those goods or services are key goods or services for the purposes of this Act.
For the purposes of subsection (2), it is immaterial whether the person last mentioned in paragraph (2)(c) is the person mentioned in paragraph (2)(a).
If the Authority makes a determination under subsection (2), the Authority must publish a copy of the determination on the Authority’s website.
A determination under subsection (2) is not a legislative instrument.
Arm’s length transactions
If:
a person has incurred, or is reasonably likely to incur, expenditure in connection with a transaction; and
the parties to the transaction did not, or are not likely to, deal with each other at arm’s length in relation to the transaction; and
the amount of the expenditure is, or is reasonably likely to be, less than is reasonable;
the amount of the expenditure is taken, for the purposes of this section, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
Low-value contract
(7) For the purposes of this Act, if the total expenditure incurred, or to be incurred, in acquiring goods or services under a contract is less than the low-value contract threshold amount, the contract is a low-value contract.
Low-value contract threshold amount
(8) For the purposes of this Act, low-value contract threshold amount means $1 million.
For the purposes of this Act, key goods or services are key goods or services for a project if, and only if, the goods or services are for use, wholly or partly, in connection with carrying out the project.
For the purposes of this Act, key goods or services are key goods or services for a new relevant facility’s initial operational phase if, and only if, the goods or services are for use, wholly or partly, in connection with the operation of the new relevant facility during the 2-year period starting when the establishment of the facility is completed.
(1) For the purposes of this Act, the trigger date for a project means:
if a trigger event for the project happens during the interim period—the first or only day during the interim period on which a trigger event for the project happens; or
if the earliest trigger event for the project happens on a day after the interim period—that day; or
if the Authority, by written notice given to the project proponent for the project, specifies another day—that other day.
Note 1: For trigger event, see subsection (4).
Note 2: For interim period, see subsection (5).
The Authority may specify a day under paragraph (1)(c):
on the Authority’s own initiative; or
on application made to the Authority by the project proponent for the project.
A day specified under paragraph (1)(c) must not be earlier than 120 days after the notice is given.
Trigger event
(4) For the purposes of this section, each of the following is a trigger event for a project:
block diagrams for the project are developed;
process flow diagrams for the project are developed;
a project proponent enters into a contract with another person under which the other person becomes a procurement entity in relation to the project;
a request for bids for the supply of key goods or services for the project is made;
technical specifications for the project are prepared;
a project proponent determines which standard or standards will apply to any of the key goods or services that are to be acquired for the project;
an equipment list for the project is prepared;
a project proponent first contacts a supplier with a request for pricing details for any of the key goods or services for the project;
a construction and contracting methodology for the project is developed;
an environmental submission is made in relation to the project;
a detailed schedule for the project is prepared;
a high-level scoping of the goods and services for the project is conducted.
Interim period
(5) For the purposes of this section, the interim period means the period:
beginning immediately after the end of the 90th day after the commencement of this section; and
ending 2 years after the commencement of this section.
This Act binds the Crown in each of its capacities.
This Act extends to every external Territory.
This Act extends to a matter relating to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf.
The project proponent for a major project must give the Authority a draft AIP plan for the project:
at least 90 days before the trigger date for the project; or
if the Authority, by written notice given to the project proponent, specifies a later time—before that later time.
The Authority may specify a day under paragraph (1)(b):
on the Authority’s own initiative; or
on application made to the Authority by the project proponent for the project.
Subsection (1) does not apply if the project proponent is not aware that the project is a major project.
If:
no draft AIP plan for a major project has been given under subsection (1); and
a draft AIP plan would have been required to have been given under subsection (1) if the project proponent for the project had been aware that the project was a major project; and
the project proponent for the project becomes aware that the project is a major project;
the project proponent for the project must:
give the Authority a draft AIP plan for the project; and
do so within 60 days after becoming so aware.
Exceptions
This section does not apply to the project proponent if the project proponent has prepared a plan that:
has been given to a State or Territory; and
complies with the conditions specified in the legislative rules.
This section does not apply to the project proponent if the conditions specified in the legislative rules are satisfied.
If the project proponent for a major project gives the Authority a draft AIP plan for the project under section 17, the Authority must:
approve the plan; or
refuse to approve the plan.
Approval of plan
The Authority must not approve a draft AIP plan under subsection (1) unless:
the draft AIP plan complies with the AIP plan rules; and
the Authority is satisfied that the steps specified in accordance with subsections 35(2), 36(2), 39(2) and 40(2) are adequate.
If the Authority approves the draft AIP plan under subsection (1), the plan becomes the approved AIP plan for the project.
If the Authority approves the draft AIP plan under subsection (1), the Authority must give the project proponent a written notice setting out the decision.
Refusal to approve plan—direction to give revised plan
If the Authority refuses to approve the draft AIP plan under subsection (1), the Authority must, by written notice given to the project proponent, direct the project proponent to:
give the Authority a revised draft AIP plan that:
complies with the AIP plan rules; and
sets out adequate steps specified in accordance with subsections 35(2), 36(2), 39(2) and 40(2); and
do so within 30 days after the notice is given.
The project proponent must comply with a direction under subsection (5).
Approval of revised plan
If:
the project proponent for a major project gives the Authority a revised draft AIP plan for the project; and
the revised draft AIP plan is given as a result of a direction under subsection (5); and
the revised draft AIP plan complies with that direction;
the Authority must approve the revised draft AIP plan.
If the Authority approves the revised draft AIP plan under subsection (7), the plan becomes the approved AIP plan for the project.
If the Authority approves the revised draft AIP plan under subsection (7), the Authority must give the project proponent a written notice setting out the decision.
Timing
The Authority must take all reasonable steps to ensure that a decision is made on a draft AIP plan for a project within 30 days after the Authority is given the draft AIP plan.
If:
(a) an approved AIP plan (the original plan) for a major project is in force; and
the project has not been completed;
the project proponent for the project may give the Authority a draft AIP plan that is expressed to replace the original plan.
If the project proponent gives the Authority a draft AIP plan for the project under subsection (1), the Authority must:
approve the plan; or
refuse to approve the plan.
Approval of replacement plan
The Authority must not approve a draft AIP plan under subsection (2) unless:
the draft AIP plan complies with the AIP plan rules; and
the Authority is satisfied that the steps specified in accordance with subsections 35(2), 36(2), 39(2) and 40(2) are adequate.
If the Authority approves the draft AIP plan under subsection (2), the plan becomes the approved AIP plan for the project.
If the draft AIP plan becomes the approved AIP plan for the project, the original plan ceases to be in force.
Notice of decision
If the Authority approves the draft AIP plan under subsection (2), the Authority must give the project proponent a written notice setting out the decision.
If the Authority refuses to approve the draft AIP plan under subsection (2), the Authority must give the project proponent a written notice setting out the decision.
Timing
The Authority must take all reasonable steps to ensure that a decision is made on a draft AIP plan for a project within 30 days after the Authority is given the draft AIP plan.
If:
(a) an approved AIP plan (the original plan) for a major project is in force; and
the project involves establishing a new relevant facility; and
the project has been completed;
the operator of the new relevant facility may give the Authority a draft AIP plan:
that is expressed to replace the original plan; and
Part B of which is identical to Part B of the original plan.
Note: Section 30 deals with Parts of AIP plans.
If the operator gives the Authority a draft AIP plan for the project under subsection (1), the Authority must:
approve the plan; or
refuse to approve the plan.
Approval of replacement plan
The Authority must not approve a draft AIP plan under subsection (2) unless:
the draft AIP plan complies with the AIP plan rules (other than Subdivision C of Division 2); and
the Authority is satisfied that steps specified in accordance with subsections 39(2) and 40(2) are adequate.
If the Authority approves the draft AIP plan under subsection (2), the plan becomes the approved AIP plan for the project.
If the draft AIP plan becomes the approved AIP plan for the project, the original plan ceases to be in force.
Notice of decision
If the Authority approves the draft AIP plan under subsection (2), the Authority must give the operator a written notice setting out the decision.
If the Authority refuses to approve the draft AIP plan under subsection (2), the Authority must give the operator a written notice setting out the decision.
Timing
The Authority must take all reasonable steps to ensure that a decision is made on a draft AIP plan for a project within 30 days after the Authority is given the draft AIP plan.
Project involves establishing a new relevant facility
If a major project involves establishing a new relevant facility, an approved AIP plan for the project:
comes into force when the Authority approves the plan; and
subject to this Division, continues in force until the end of the 2-year period beginning when the project is completed.
Project does not involve establishing a new relevant facility
If a major project does not involve establishing a new relevant facility, an approved AIP plan for the project:
comes into force when the Authority approves the plan; and
subject to this Division, continues in force until the project is completed.
If a person gives the Authority a draft AIP plan for a major project, the person must also give the Authority a summary of the steps specified in accordance with whichever of subsections 35(2), 36(2), 39(2) and 40(2) are applicable.
The summary must be in a form approved, in writing, by the Authority.
The Authority must ensure that the summary is available on the Authority’s website throughout the 15-day period beginning on the day after the summary was received by the Authority.
If:
the project proponent for a major project gives a draft AIP plan for the project to the Authority; and
the project involves establishing a new relevant facility; and
the establishment of the facility has not been completed;
the project proponent must:
notify the Authority of the estimated date of completion of the establishment of the facility; and
do so at or about the same time as the draft AIP plan is given to the Authority.
A notification under subsection (1) must be in a form approved, in writing, by the Authority.
The Authority must maintain a register in which the Authority includes all approved AIP plans that are in force.
The register may be kept in electronic form.
Project proponent
If an approved AIP plan for a major project is in force, the project proponent for the major project must comply with Part B of the plan.
Note: Section 30 deals with Parts of AIP plans.
Operator of new relevant facility
If:
an approved AIP plan for a major project is in force; and
the project involves establishing a new relevant facility;
the operator of the new relevant facility must comply with Part C of the plan.
Note: Section 30 deals with Parts of AIP plans.
Scope
This section applies to a major project if an approved AIP plan for the project is, or has been, in force.
Reporting period
(2) For the purposes of this section, a reporting period for the plan is:
the period of 6 months beginning on the day on which the plan is approved; and
each subsequent 6-month period during any part of which:
the plan is in force; and
the project proponent for the project is subject to any obligations under Part B of the plan.
Note: Section 30 deals with Parts of AIP plans.
Subsection (2) has effect subject to subsection (4).
(4) The Authority may, by written notice given to the project proponent for the project, determine that, for the purposes of this section, a reporting period for the plan has the meaning given by the determination.
A determination under subsection (4) is not a legislative instrument.
Compliance report—project proponent
The project proponent for the project must, within 3 months after the end of each reporting period, prepare and give the Authority a report relating to compliance with Part B of the plan during the reporting period.
Note: Section 30 deals with Parts of AIP plans.
A report under subsection (6) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
Scope
This section applies to a major project if:
an approved AIP plan for the project is, or has been, in force; and
the project involves establishing a new relevant facility.
Reporting period
(2) For the purposes of this section, a reporting period for the plan is:
the period of 6 months beginning on the day on which the plan is approved; and
each subsequent 6-month period during any part of which:
the plan is in force; and
the operator of the new relevant facility is subject to any obligations under Part C of the plan.
Note: Section 30 deals with Parts of AIP plans.
Compliance report—operator of new relevant facility
The operator of the new relevant facility must, within 3 months after the end of each reporting period, prepare and give the Authority a report relating to compliance with Part C of the plan during the reporting period.
A report under subsection (3) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If an approved AIP plan is, or has been, in force for a major project, the project proponent for the project must:
keep such records as are reasonably necessary to enable the Authority to ascertain whether Part B of the plan has been complied with; and
retain those records for 5 years.
Note: Section 30 deals with Parts of AIP plans.
If:
an approved AIP plan is, or has been, in force for a major project; and
the project involves establishing a new relevant facility;
the operator of the new relevant facility must:
keep such records as are reasonably necessary to enable the Authority to ascertain whether Part C of the plan has been complied with; and
retain those records for 5 years.
Note: Section 30 deals with Parts of AIP plans.
Subdivision A—General rules
This Division sets out the AIP plan rules.
If a major project involves establishing a new relevant facility, an AIP plan for the project must be divided into the following Parts:
Part A—Title;
Part B—Project Phase;
Part C—Initial Facility Operational Phase.
If a major project does not involve establishing a new relevant facility, an AIP plan for the project must be divided into the following Parts:
Part A—Title;
Part B—Project Phase.
An AIP plan must be in a form approved, in writing, by the Authority.
Subdivision B—Rule for Part A of the plan (Title)
Part A of an AIP plan for a major project must state that the plan is the AIP plan for the project.
Subdivision C—Rules for Part B of the plan (Project Phase)
Part B of an AIP plan for a major project must state that Part B of the plan binds the project proponent for the project from time to time.
key objective of Part B of the plan is that Australian entities should have full, fair and reasonable opportunity to bid for the supply of key goods or services for the project.Part B of an AIP plan for a major project must state that the
Part B of an AIP plan for a major project must state that, until the project is completed, the project proponent for the project will take all reasonable steps to ensure that each procurement entity for the project will achieve the following objectives:
the key objective of Part B of the plan;
the objective that the procurement entity will have a publicly accessible website;
the objective that the procurement entity will not request bids to supply key goods or services for the project unless the procurement entity has a broad understanding of the capability and capacity of Australian entities generally to supply those goods or services;
the objective that requirements that potential bidders must satisfy in order to bid to supply key goods or services for the project:
will be published on the website of the procurement entity; and
will be so published at a reasonable time before the request for bids is made;
the objective that:
standards for key goods or services for the project that are to be acquired by the procurement entity will be published on the website of the procurement entity; and
if the standards are neither Australian standards nor international standards—the procurement entity will publish on its website a statement explaining why neither Australian standards nor international standards are being used;
the objective that the procurement entity will not discriminate against Australian entities in relation to timeframes for responding to requests for bids to supply key goods or services for the project;
the objective that the procurement entity will:
provide feedback to Australian entities whose bids to supply key goods or services for the project have not been successful; and
ensure that such feedback includes recommendations about any relevant training and any relevant skills capability and capacity development;
the objective that the procurement entity will:
at all times have an employee who is designated as the procurement contact officer for the project; and
publish the procurement contact officer’s contact details on the procurement entity’s website.
Part B of an AIP plan must state that, until the project is completed, the project proponent will take specified steps directed towards ensuring that the objectives set out in subsection (1) are achieved by each procurement entity for the project.
Part B of an AIP plan for a major project must state that, until the project is completed, the project proponent for the project will:
have a publicly accessible website; and
conduct awareness programs about opportunities for Australian entities to supply key goods or services for the project; and
conduct training programs that are:
for employees of procurement entities for the project; and
directed towards ensuring that the objectives set out in section 35 are achieved; and
publish on its website a statement of the proponent’s expectations in relation to:
(i) key goods or services that are likely to be acquired for the project; and
opportunities for Australian entities to supply key goods or services for the project; and
opportunities for non-Australian entities to supply key goods or services for the project;
broken down into categories of goods or services in the way specified in the legislative rules; and
both:
cause to be published on a publicly accessible website statements about available opportunities to supply key goods or services for the project; and
notify the Authority of the URL of the website; and
if the project proponent has a global supply chain—encourage Australian entities that are supplying, or have supplied, key goods or services for the project to:
develop the capability and capacity to supply key goods or services to the project proponent’s global supply chain; and
integrate into the project proponent’s global supply chain; and
both:
at all times have an employee who is designated as the project proponent’s contact officer for the purposes of this Act; and
notify the Authority of the contact officer’s contact details.
Part B of an AIP plan must state that, until the project is completed, the project proponent will take specified steps directed towards the fulfilment of the obligations set out in subsection (1).
Subdivision D—Rules for Part C of the plan (Initial Facility Operational Phase)
Part C of an AIP plan for a major project must state that Part C of the plan binds the operator of the new relevant facility from time to time.
key objective of Part C of the plan is that Australian entities should have full, fair and reasonable opportunity to bid for the supply of key goods or services for the new relevant facility’s initial operational phase.Part C of an AIP plan for a major project must state that the
Part C of an AIP plan for a major project must state that the operator of the new relevant facility will take all reasonable steps to ensure that each procurement entity for the new relevant facility will achieve the following objectives:
the key objective of Part C of the plan;
the objective that the procurement entity will have a publicly accessible website;
the objective that the procurement entity will not request bids to supply key goods or services for the new relevant facility’s initial operational phase unless the procurement entity has a broad understanding of the capability and capacity of Australian entities generally to supply those goods or services;
the objective that requirements that potential bidders must satisfy in order to bid to supply key goods or services for the new relevant facility’s initial operational phase:
will be published on the website of the procurement entity; and
will be so published at a reasonable time before the request for bids is made;
the objective that:
standards for key goods or services that are to be acquired for the new relevant facility’s initial operational phase by the procurement entity will be published on the website of the procurement entity; and
if the standards are neither Australian standards nor international standards—the procurement entity will publish on its website a statement explaining why neither Australian standards nor international standards are being used;
the objective that the procurement entity will not discriminate against Australian entities in relation to timeframes for responding to requests for bids to supply key goods or services for the new relevant facility’s initial operational phase;
the objective that the procurement entity will:
provide feedback to Australian entities whose bids to supply key goods or services for the new relevant facility’s initial operational phase have not been successful; and
ensure that such feedback includes recommendations about any relevant training and any relevant skills capability and capacity development;
the objective that the procurement entity will:
at all times have an employee who is designated as the procurement contact officer for the new relevant facility; and
publish the procurement contact officer’s contact details on the procurement entity’s website.
Part C of an AIP plan must state that the operator of the new relevant facility will take specified steps directed towards ensuring that the objectives set out in subsection (1) are achieved by each procurement entity for the new relevant facility.
Part C of an AIP plan for a major project must state that the operator of the new relevant facility will:
have a publicly accessible website; and
conduct awareness programs about opportunities for Australian entities to supply key goods or services for the new relevant facility’s initial operational phase; and
conduct training programs that are:
for employees of procurement entities for the new relevant facility; and
directed towards ensuring that the objectives set out in section 39 are achieved; and
publish on its website a statement of the operator’s expectations in relation to:
(i) key goods or services that are likely to be acquired for the new relevant facility’s initial operational phase; and
opportunities for Australian entities to supply key goods or services for the new relevant facility’s initial operational phase; and
opportunities for non-Australian entities to supply key goods or services for the new relevant facility’s initial operational phase;
broken down into categories of goods or services in the way specified in the legislative rules; and
both:
cause to be published on a publicly accessible website statements about available opportunities to supply key goods or services for the new relevant facility’s initial operational phase; and
notify the Authority of the URL of the website; and
if the operator has a global supply chain—encourage Australian entities that are supplying, or have supplied, key goods or services for the new relevant facility’s initial operational phase to:
develop the capability and capacity to supply key goods or services to the operator’s global supply chain; and
integrate into the operator’s global supply chain; and
both:
at all times have an employee who is designated as the operator’s contact officer for the purposes of this Act; and
notify the Authority of the contact officer’s contact details.
Part C of an AIP plan must state that the operator of the new relevant facility will take specified steps directed towards the fulfilment of the obligations set out in subsection (1).
If:
the preliminary trigger day for a designated project occurs after the commencement of this section; and
at any time on the preliminary trigger day, the project proponent for the project was aware that it was reasonably likely that the project would be a major project;
the project proponent must:
notify the Authority of the preliminary trigger day; and
do so within 60 days after the preliminary trigger day.
If:
the preliminary trigger day for a designated project occurs after the commencement of this section; and
the project proponent for the project was not aware, at any time on the preliminary trigger day, that it was reasonably likely that the project would be a major project; and
the project proponent becomes aware that the project is, or is reasonably likely to be, a major project;
the project proponent must:
notify the Authority of the preliminary trigger day; and
(e) do so within 14 days after becoming so aware.
A notification under this section must:
be in a form approved, in writing, by the Authority; and
be accompanied by such information as is specified in the legislative rules; and
be accompanied by such documents (if any) as are specified in the legislative rules.
Preliminary trigger day
(4) For the purposes of this section, the preliminary trigger day for a project means the day on which the earliest of the following events happens:
the project concept design begins;
an environmental assessment begins to be carried out by a project proponent;
a project proponent enters into a contract with another person to carry out an environmental assessment of the project;
the raw materials for the project are estimated;
the utility consumption for the project is estimated.
If a person becomes a project proponent for a major project, the person must:
notify the Authority that the person has become a project proponent for the project; and
do so within 60 days after becoming a project proponent.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If a person ceases to be a project proponent for a major project, the person must:
notify the Authority of the cessation; and
do so within 60 days after the cessation occurs.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If a major project is abandoned or cancelled, the project proponent for the project must:
notify the Authority of the abandonment or cancellation; and
do so within 60 days after the project is abandoned or cancelled.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If:
a person is the project proponent for a major project; and
a notifiable event occurs;
the person must:
notify the Authority of the event; and
do so within 60 days after the event occurs.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
(3) The legislative rules may declare that a specified event is a notifiable event for the purposes of this section.
If:
a major project involves establishing a new relevant facility; and
a person becomes an operator of the new relevant facility;
the person must:
notify the Authority; and
do so within 60 days after becoming an operator.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If:
a major project involves establishing a new relevant facility; and
a person ceases to be an operator of the new relevant facility;
the person must:
notify the Authority of the cessation; and
do so within 60 days after the cessation occurs.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
If:
a major project involves establishing a new relevant facility; and
a notifiable event occurs;
the operator of the new relevant facility must:
notify the Authority of the event; and
do so within 60 days after the event occurs.
A notification under subsection (1) must:
be in a form approved, in writing, by the Authority; and
(b) be accompanied by such information as is specified in the legislative rules.
(3) The legislative rules may declare that a specified event is a notifiable event for the purposes of this section.
Scope
This section applies to a person if the Authority believes on reasonable grounds that the person has information or a document that is relevant to the operation of this Act.
Requirement
The Authority may, by written notice given to the person, require the person to:
give to the Authority, within the period and in the manner and form specified in the notice, any such information; or
produce to the Authority, within the period and in the manner specified in the notice, any such documents; or
make copies of any such documents and to produce to the Authority, within the period and in the manner specified in the notice, those copies.
A period specified under subsection (2) must not be shorter than 14 days after the notice is given.
Compliance
A person must comply with a requirement under subsection (2) to the extent that the person is capable of doing so.
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 50(2)(c).
The Authority may:
inspect a document or copy produced under subsection 50(2); and
make and retain copies of, or take and retain extracts from, such a document.
The Authority may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 50(2)(c).
The Authority may take, and retain for as long as is necessary, possession of a document produced under subsection 50(2).
The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Authority to be a true copy.
The certified copy must be received in all courts and tribunals as evidence as if it were the original.
Until a certified copy is supplied, the Authority must, at such times and places as the Authority thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
An individual is excused from giving information or producing a document under section 50 on the ground that the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.
Scope
This section applies to the project proponent for a major project if an approved AIP plan is, or has been, in force for the project.
Requirement
The Authority may, by written notice given to the project proponent, require the proponent to:
give to the Authority such information relating to the project as is specified in the notice; and
do so within the period and in the manner and form specified in the notice.
A period specified under paragraph (2)(b) must not be shorter than 14 days after the notice is given.
Compliance
A person must comply with a requirement under subsection (2) to the extent that the person is capable of doing so.
Self-incrimination
An individual is excused from giving information under this section on the ground that the information might tend to incriminate the individual or expose the individual to a penalty.
General information-gathering power not limited
This section does not, by implication, limit section 50.
Scope
If:
an approved AIP plan is, or has been, in force for a major project; and
the project involves establishing a new relevant facility;
this section applies to the operator of the new relevant facility.
Requirement
The Authority may, by written notice given to the operator, require the operator to:
give to the Authority such information relating to the operation of the new relevant facility as is specified in the notice; and
do so within the period and in the manner and form specified in the notice.
A period specified under paragraph (2)(b) must not be shorter than 14 days after the notice is given.
Compliance
A person must comply with a requirement under subsection (2) to the extent that the person is capable of doing so.
Self-incrimination
An individual is excused from giving information under this section on the ground that the information might tend to incriminate the individual or expose the individual to a penalty.
General information-gathering power not limited
This section does not, by implication, limit section 50.
Scope
(1) This section applies if a person (the relevant person), without reasonable excuse, contravenes Part 2, 3 or 4.
Adverse publicity notice
The Authority may, by written notice given to the relevant person, require the relevant person to:
take either or both of the following actions within the period specified in the notice:
to publicise, in the way specified in the notice, the contravention, the details of the contravention, and any other related matter;
to notify a specified person or specified class of person, in the way specified in the notice, of the contravention, the details of the contravention, and any other related matter; and
give the Authority, within 7 days after the end of the period specified in the notice, evidence that the action or actions were taken by the relevant person in accordance with the notice.
If the relevant person is a subsidiary of a constitutional corporation, the Authority may, by written notice given to the corporation, require the corporation to:
take either or both of the following actions within the period specified in the notice:
to publicise, in the way specified in the notice, the name of the relevant person, the relevant person’s contravention, the details of the contravention, the fact that the relevant person is a subsidiary of the corporation, and any other related matter;
to notify a specified person or specified class of person, in the way specified in the notice, of the relevant person’s contravention, the details of the contravention, the fact that the relevant person is a subsidiary of the corporation, and any other related matter; and
give the Authority, within 7 days after the end of the period specified in the notice, evidence that the action or actions were taken by the corporation in accordance with the notice.
Naming relevant person etc. in annual report
The Authority may, in a report under section 83:
name the relevant person as having contravened Part 2, 3 or 4, and set out details of the contravention; and
if the relevant person is a subsidiary of a body corporate—name the relevant person as a subsidiary of the body corporate.
Naming relevant person etc. in other ways
The Authority may, by electronic or other means:
name the relevant person as having contravened Part 2, 3 or 4, and set out details of the contravention; and
if the relevant person is a subsidiary of a body corporate—name the relevant person as a subsidiary of the body corporate.
Prior notice to relevant person etc.
If the Authority proposes to:
give a notice to a person under subsection (2) or (3); or
name a person in a report in accordance with subsection (4); or
name a person under subsection (5);
the Authority must:
give the person notice in writing of the proposal and the reasons for the proposal; and
invite the person to:
make written representations to the Authority about the proposal; and
do so within the period of 28 days beginning on the day specified in the notice; and
have regard to any written representations made by the person within that period.
Restraining injunctions
If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of the Authority, grant an injunction:Part 2, 3 or 4, a prescribed court may, on the application of
restraining the person from engaging in the conduct; and
if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
If:
a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
the refusal or failure was, is or would be a contravention of Part 2, 3 or 4;
a prescribed court may, on the application of the Authority, grant an injunction requiring the person to do that act or thing.
Grant of interim injunction
If an application is made to a prescribed court for an injunction under section 58, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
A prescribed court is not to require the Authority, as a condition of granting an interim injunction, to give any undertakings as to damages.
A prescribed court may discharge or vary an injunction granted under this Division.
Restraining injunctions
The power of a prescribed court under this Division to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind.
Performance injunctions
The power of a prescribed court under this Division to grant an injunction requiring a person to do an act or thing may be exercised:
if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing.
The powers conferred on a prescribed court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
If there are 2 or more persons (the multiple project proponents) who have joint or several responsibility for carrying out a project, or a part of a project, then:
for the purposes of this Act, each of the multiple project proponents is a project proponent for the project; and
a reference in:
this Act; or
the legislative rules; or
another instrument made under this Act; or
an approved AIP plan; or
a draft AIP plan;
to the project proponent for the project is to be read as a reference to each of the multiple project proponents.
Scope
This section applies if:
(a) there are 2 or more project proponents (the multiple project proponents) for a project; and
either of the following:
this Act;
an approved AIP plan for the project;
imposes an obligation on the project proponent for the project.
Obligations of project proponent
The obligation is imposed on each of the multiple project proponents, but may be discharged by any of the multiple project proponents.
If:
a major project involves establishing a new relevant facility; and
(b) there are 2 or more persons (the multiple operators) who have, or are to have, joint or several responsibility for operating the new relevant facility, or a part of the new relevant facility;
then:
for the purposes of this Act, each of the multiple operators is an operator of the new relevant facility; and
a reference in:
this Act; or
the legislative rules; or
another instrument made under this Act; or
an approved AIP plan; or
a draft AIP plan;
to the operator of the new relevant facility is to be read as a reference to each of the multiple operators.
Scope
This section applies if:
a major project involves establishing a new relevant facility; and
(b) there are 2 or more operators (the multiple operators) of the new relevant facility; and
either of the following:
this Act;
an approved AIP plan for the project;
imposes an obligation on the operator of the facility.
Obligations of operators
The obligation is imposed on each of the multiple operators, but, if the multiple operators have, or are to have, joint responsibility for operating the new relevant facility, the obligation may be discharged by any of the multiple operators.
There is to be an Australian Industry Participation Authority.
Note: In this Act, Authority means the Australian Industry Participation Authority (see section 5).
The functions of the Authority are:
such functions as are conferred on the Authority by this Act; and
to advise and assist persons in relation to their obligations under this Act; and
to monitor compliance with this Act; and
to promote compliance with this Act; and
to collect, analyse, interpret and disseminate information relating to AIP matters; and
to support, encourage, conduct and evaluate training programs that are directed towards improving the skills and knowledge of people involved in AIP matters; and
to support, encourage, conduct and evaluate educational, promotional and community awareness programs that are relevant to AIP matters; and
to support, encourage, conduct and evaluate research about AIP matters; and
to advise the Minister about AIP matters; and
to consult and cooperate with other persons, organisations and governments on AIP matters; and
on behalf of the Commonwealth, to administer such schemes and programs as are specified in the legislative rules; and
such functions as are conferred on the Authority by a law other than this Act; and
such other functions (if any) as are specified in the legislative rules; and
to do anything incidental to or conducive to the performance of any of the above functions.
Section 3 does not, by implication, limit subsection (1).
The Authority is to be appointed by the Minister by written instrument.
A person is not eligible for appointment as the Authority unless the Minister is satisfied that the person has:
substantial experience or knowledge; and
significant standing;
in at least one of the following fields:
economics;
industry;
public administration.
The Authority holds office on a full-time basis.
The Authority holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The Authority may be reappointed: see the Acts Interpretation Act 1901.
The Minister may appoint a person to act as the Authority:
during a vacancy in the office of the Authority (whether or not an appointment has previously been made to the office); or
during any period, or during all periods, when the Authority:
is absent from duty or from Australia; or
is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see Acts Interpretation Act 1901.section 33A of the
A person is not eligible for appointment to act as the Authority unless the person is eligible for appointment as the Authority.
The Authority is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Authority is to be paid the remuneration that is prescribed by the legislative rules.
The Authority is to be paid the allowances that are prescribed by the legislative rules.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
The Authority has the recreation leave entitlements that are determined by the Remuneration Tribunal.
The Minister may grant the Authority leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
The Authority must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
The Authority must give written notice to the Minister of all interests, pecuniary or otherwise, that the Authority has or acquires and that conflict or could conflict with the proper performance of the Authority’s functions.
The Authority may resign his or her appointment by giving the Minister a written resignation.
The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
The Minister may terminate the appointment of the Authority:
for misbehaviour; or
if the Authority is unable to perform the duties of his or her office because of physical or mental incapacity.
The Minister may terminate the appointment of the Authority if:
the Authority:
becomes bankrupt; or
applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
compounds with his or her creditors; or
makes an assignment of his or her remuneration for the benefit of his or her creditors; or
the Authority is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
the Authority engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 74); or
the Authority fails, without reasonable excuse, to comply with section 75.
The Authority holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
The Authority may, by writing, delegate any or all of the Authority’s functions or powers to:
an SES employee; or
an acting SES employee; or
an APS employee who holds or performs the duties of:
an Executive Level 2 position; or
an equivalent position.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
A delegate must comply with any written directions of the Authority.
The staff assisting the Authority are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.
The Authority may also be assisted:
(a) by officers and employees of Agencies (within the meaning of the Public Service Act 1999); or
by officers and employees of authorities of the Commonwealth; or
by officers and employees of a State or Territory; or
by officers and employees of authorities of a State or Territory;
whose services are made available to the Authority in connection with the performance of any of the Authority’s functions.
The Authority may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Authority.
The consultants are to be engaged on the terms and conditions that the Authority determines in writing.
The Authority must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Authority during that year.
Note: See also Acts Interpretation Act 1901, which contains extra rules about annual reports.section 34C of the
The Minister may, by legislative instrument, give directions to the Authority about the performance of the Authority’s functions.
Note 1: For variation and revocation, see the Acts Interpretation Act 1901.
Note 2: Section 42 (disallowance) and Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).Part 4 of Chapter 3 (sunsetting) of the
A direction under subsection (1) must be of a general nature only.
The Authority must comply with a direction under subsection (1).
The Minister may, by writing, establish a committee to be known as the Australian Industry Participation Advisory Board.
Note: In this Act, AIP advisory board means the Australian Industry Participation Advisory Board (see section 5).
Before establishing the AIP advisory board, the Minister must consult the Authority.
An instrument made under subsection (1) is not a legislative instrument.
The AIP advisory board has the following functions:
to advise the Authority, at the Authority’s request, about matters relating to the performance of the Authority’s functions;
to advise the Minister, at the Minister’s request, about AIP matters;
to do anything incidental to or conducive to the performance of either of the above functions.
The AIP advisory board consists of the following members:
a Chair;
at least 2, and not more than 4, other members.
Each advisory board member is to be appointed by the Minister by written instrument.
An advisory board member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: A board member is eligible for reappointment: see the Acts Interpretation Act 1901.
An advisory board member holds office on a part-time basis.
The Minister must ensure that the members of the AIP advisory board collectively possess experience or knowledge in all of the following fields:
economics;
industry;
project management;
procurement of goods or services.
For the purposes of a reference in the Acts Interpretation Act 1901 to a vacancy in the membership of a body, there are taken to be 2 offices of members of the AIP advisory board in addition to the Chair of the AIP advisory board.
An advisory board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the legislative rules.
An advisory board member is to be paid the allowances that are prescribed by the legislative rules.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
The Minister may grant leave of absence to an advisory board member on the terms and conditions that the Minister determines.
An advisory board member must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.
An advisory board member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the AIP advisory board must disclose that interest to a meeting of the advisory board.
The disclosure must be made as soon as possible after the relevant facts have come to the advisory board member’s knowledge.
The disclosure must be recorded in the minutes of the meeting.
Unless the AIP advisory board otherwise determines, the advisory board member:
must not be present during any deliberation of the advisory board on the matter; and
must not take part in the making of a decision by the advisory board in relation to the matter.
For the purposes of making a determination under subsection (4), the advisory board member:
must not be present during any deliberation of the advisory board for the purpose of making the determination; and
must not take part in making the determination.
A determination under subsection (4) must be recorded in the minutes of the meeting of the advisory board.
An advisory board member may resign his or her appointment by giving the Minister a written resignation.
The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
The Minister may terminate the appointment of an advisory board member.
The AIP advisory board must hold such meetings as are necessary for the performance of its functions.
The Chair of the AIP advisory board:
may convene a meeting; and
must convene a meeting if requested in writing by:
the Authority; or
the Minister.
The Chair of the AIP advisory board must preside at all meetings at which he or she is present.
If the Chair is not present at a meeting, the other advisory board members present must appoint one of themselves to preside.
At a meeting of the AIP advisory board, a quorum is constituted by a majority of the advisory board members.
However, if:
an advisory board member is required by section 93 not to be present during the deliberations, or to take part in any decision, of the advisory board with respect to a particular matter; and
when the advisory board member leaves the meeting concerned, there is no longer a quorum present;
the remaining advisory board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
A question arising at a meeting is to be determined by a majority of the votes of the advisory board members present and voting.
The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, a casting vote.
Subject to this Division, the AIP advisory board may regulate proceedings at its meetings as it considers appropriate.
(2) For the purposes of Acts Interpretation Act 1901, the AIP advisory board is taken to have been established by this Act.section 33B of the
Note: Section 33B of the Acts Interpretation Act 1901 contains extra rules about meetings by telephone etc.
The AIP advisory board must keep minutes of its meetings.
A person commits an offence if:
the person is, or has been, an entrusted official; and
the person has obtained protected information in the person’s capacity as an entrusted official; and
the person:
discloses the information to another person; or
uses the information; and
the disclosure or use is not:
authorised by a provision of this Part; or
in compliance with a requirement under a law of the Commonwealth; or
in compliance with a designated law of a State or Territory.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Exceptions
Except where it is necessary to do so for the purposes of giving effect to this Act, an entrusted official is not to be required:
to produce to a court or tribunal a document containing protected information; or
to disclose protected information to a court or tribunal.
Designated law
(3) The legislative rules may declare that a specified law of a State or Territory is a designated law for the purposes of this section.
An entrusted official may disclose or use protected information if:
the disclosure or use is for the purposes of this Act; or
the disclosure or use is for the purposes of the performance of the functions of the Authority; or
the disclosure or use is for the purposes of the performance of the functions of the AIP advisory board; or
the disclosure or use is in the course of the official’s employment or service as an entrusted official.
An entrusted official may disclose protected information to the Minister.
An entrusted official may disclose protected information to:
the Secretary of the Department; or
an officer of the Department who is authorised by the Secretary, in writing, for the purposes of this section;
if the disclosure is for the purposes of advising the Minister.
An entrusted official may disclose protected information to a Royal Commission.
The Authority may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (1).
An instrument under subsection (2) is not a legislative instrument.
Scope
This section applies if the Authority is satisfied that particular protected information will enable or assist any of the following agencies, bodies or persons:
the Australian Communications and Media Authority;
the Australian Competition and Consumer Commission;
the Australian Prudential Regulation Authority;
the Australian Securities and Investments Commission;
the National Competition Council;
the Productivity Commission;
the Australian Statistician;
the Commissioner of Taxation;
the Australian Competition Tribunal;
the Director of Public Prosecutions;
the Australian Transaction Reports and Analysis Centre;
the Reserve Bank of Australia;
Industry Capability Network Limited (ACN 068 571 513);
(n) the Comptroller-General of Customs (within the meaning of the Customs Act 1901);
a State/Territory government body whose functions include a function that corresponds to a function of the Authority;
a designated State/Territory government body;
a designated professional disciplinary body;
to perform or exercise any of the functions or powers of the agency, body or person.
Disclosure
If an entrusted official is authorised by the Authority, in writing, for the purposes of this section, the official may disclose that protected information to the agency, body or person concerned.
The Authority may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2).
A person commits an offence if:
the person is subject to a condition under subsection (3); and
the person engages in conduct; and
the person’s conduct breaches the condition.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
An instrument under subsection (3) is not a legislative instrument.
Designated professional disciplinary bodies
A person commits an offence if:
the person is:
a designated professional disciplinary body; or
a member of a designated professional disciplinary body; and
protected information has been disclosed under subsection (2) to the body; and
the person:
discloses the information to another person; or
uses the information; and
the disclosure or use is not:
with the consent of the Authority; or
for the purpose of deciding whether or not to take disciplinary or other action; or
for the purpose of taking disciplinary or other action.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Designated State/Territory government body
(7) The legislative rules may declare that a specified State/Territory government body is a designated State/Territory government body for the purposes of this section.
Designated professional disciplinary body
(8) The legislative rules may declare that a specified professional disciplinary body is a designated professional disciplinary body for the purposes of this section.
An entrusted official may disclose protected information that relates to the affairs of a person if:
the person has consented to the disclosure; and
the disclosure is in accordance with that consent.
An entrusted official may disclose protected information if it has already been lawfully made available to the public.
An entrusted official may disclose:
summaries of protected information; or
statistics derived from protected information;
if those summaries or statistics, as the case may be, are not likely to enable the identification of a person.
Scope
This section applies if the Authority is satisfied that disclosure of particular protected information is reasonably necessary for:
the enforcement of the criminal law; or
the enforcement of a law imposing a pecuniary penalty; or
the protection of the public revenue.
Disclosure
The Authority may disclose that protected information to:
a Department, agency or authority of the Commonwealth, a State or a Territory; or
an Australian police force;
whose functions include that enforcement or protection, for the purposes of that enforcement or protection.
If an entrusted official is authorised by the Authority, in writing, for the purposes of this section, the official may disclose that protected information to:
a Department, agency or authority of the Commonwealth, a State or a Territory; or
an Australian police force;
whose functions include that enforcement or protection, for the purposes of that enforcement or protection.
Secondary disclosure and use
A person commits an offence if:
the person is, or has been, an employee or officer of:
a Department, agency or authority of the Commonwealth, a State or a Territory; or
an Australian police force; and
protected information has been disclosed under subsection (2) or (3) to the Department, agency, authority or police force, as the case may be; and
the person has obtained the information in the person’s capacity as an employee or officer of the Department, agency, authority or police force, as the case may be; and
the person:
discloses the information to another person; or
uses the information; and
the disclosure or use is not:
with the consent of the Authority; or
for the purpose of enforcing the criminal law; or
for the purpose of enforcing a law imposing a pecuniary penalty; or
for the purpose of protecting the public revenue.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Conditions
The Authority may, by writing, impose conditions to be complied with in relation to protected information disclosed under subsection (2) or (3).
A person commits an offence if:
the person is subject to a condition under subsection (5); and
the person engages in conduct; and
the person’s conduct breaches the condition.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
An instrument under subsection (5) is not a legislative instrument.
Applications may be made to the Administrative Review Tribunal for review of any of the following decisions of the Authority:
This Act does not apply to the operation of a new relevant facility in relation to a designated project except to the extent to which:
one or more constitutional corporations are responsible for operating the facility; or
the facility:
(i) is in one or more offshore areas (within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) and outside the Greater Sunrise special regime area (within the meaning of the Seas and Submerged Lands Act 1973); and
relates to the exercise of Australia’s sovereign rights in the exclusive economic zone or the continental shelf; or
the facility is for purposes related to trade or commerce:
between Australia and places outside Australia; or
among the States; or
within a Territory; or
between a State and a Territory; or
between 2 Territories; or
the facility is in a Territory; or
(e) the facility is in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970).
Subsection (1) is to be disregarded in determining whether a project is a designated project.
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
Commonwealth not to give preference
A function or power conferred by this Act must not be performed or exercised in such a way as to give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.
Trade to be absolutely free
A function or power conferred by this Act must not be performed or exercised in such a way that the performance of the function, or the exercise of the power, would infringe section 92 of the Constitution.
Note: Section 92 of the Constitution requires trade among the States to be absolutely free.
If:
apart from this subsection, this Act would operate so as to prevent or interfere with the exercise of the powers, or the performance of the functions or duties, of the government of a State; and
that operation would be invalid because of the Constitution;
this Act does not so operate.
If:
apart from this subsection, this Act would operate so as to prevent or interfere with the exercise of the powers, or the performance of the functions or duties, of the government of the Australian Capital Territory or the Northern Territory; and
that operation would be invalid because of the Constitution if it were assumed that the Territory were a State;
this Act does not so operate.
If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
A contravention of this Act does not affect the validity of any transaction.
For the purposes of this Act, if a transaction has involved, or will involve, non-cash consideration, assume that the monetary value of that consideration has been, or will be, incurred.
For the purposes of this Act, an amount in a foreign currency is to be translated into Australian currency.
The amount of foreign currency is to be translated to Australian currency at the exchange rate applicable at the relevant time.
This Act does not affect the law relating to legal professional privilege.
None of the following:
the Minister;
the Authority;
a delegate of the Authority;
a member of the staff assisting the Authority;
a person assisting the Authority under section 81;
the AIP advisory board;
an advisory board member;
is liable to an action or other proceeding for damages for, or in relation to, an act or matter in good faith done or omitted to be done:
in the performance or purported performance of any function; or
in the exercise or purported exercise of any power;
conferred by this Act.
Before the end of the period of 5 years after the commencement of this section, the Minister must cause to be conducted a review of the operation of this Act.
A review under subsection (1) must be conducted in a manner that provides for wide public consultation.
The Minister must cause to be prepared a report of a review under subsection (1).
The Minister must cause copies of a report to be tabled in each House of the Parliament within 15 sittings days of that House after the completion of the preparation of the report.
The Minister may, by legislative instrument, make rules (legislative rules) prescribing matters:
(a) required or permitted by this Act to be prescribed by the legislative rules; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under Legislation Act 2003.section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history