Public Governance, Performance and Accountability Amendment (Procurement—High Speed Rail Authority) Rules 2023

Administered by Department of Finance

Legislation au F2023L00765 Rules Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Finance

 

Public Governance, Performance and Accountability Act 2013

 

Public Governance, Performance and Accountability Rule 2014

 

Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) set out a framework for regulating resource management by Commonwealth entities and companies. Section 101 of the PGPA Act provides that the Finance Minister may make rules by legislative instrument to prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 105B(1)(b) of the PGPA Act provides the Finance Minister with authority to, by written instrument, make provisions about procurement for corporate Commonwealth entities that are prescribed by the rules. Corporate Commonwealth entities that are subject to the Commonwealth Procurement Rules (CPRs) are prescribed under section 30 of the PGPA Rule. Subsection 105B(2) provides that an instrument made under subsection 105B(1) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislation Act 2003.  

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

The Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023 (Amendment Rules) amends section 30 of the PGPA Rule to add one corporate Commonwealth entity as an entity prescribed to comply with written instruments about procurement, including the CPRs. The entity is the High Speed Rail Authority (HSRA).

 

The amendment reflects the government’s decision to abolish the non-corporate Commonwealth entity the National Faster Rail Agency (NFRA), and split its functions between the HSRA and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts. The functions of the NFRA are subject to certain international obligations on government procurement, and the Amendment Rules ensure that coverage of those obligations will continue to apply to the HSRA.    

 

The accountable authority of the HSRA may seek, at any time, to have the functions of this amendment reviewed, to the extent that it prescribes any functions of the HSRA that are not subject to international obligations referred to above. The functions of the HSRA are specified in its enabling legislation.

 

Details of the Amendment Rules are set out at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.

 

The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.

 

The Amendment Rules commence on the later of the day after this instrument is registered; and the day on which the High Speed Rail Authority Act 2022 commences.

 

Consultation

 

The Amendment Rules were developed by the Office of Parliamentary Counsel in consultation with the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, in accordance with section 17 of the Legislation Act 2003.

Details of the Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023


Section 1 – Name   

This section provides that the title of this instrument is the Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023.

 

Section 2 – Commencement 

This section provides that this instrument commences on the later of the day after this instrument is registered; and the day on which the High Speed Rail Authority Act 2022 commences.

 

Section 3 – Authority

This section provides that this instrument is made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

Section 4 – Schedules

This section provides that the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) is amended as set out in Schedule 1 to this instrument.

 

Schedule 1 – Amendments

 

Public Governance, Performance and Accountability Rule 2014

 

Item 1 – Section 30

 

This item prescribes the High Speed Rail Authority (HSRA) in section 30 of the PGPA Rule.

 

The table in section 30 of the PGPA Rule prescribes the corporate Commonwealth entities that are subject to the Commonwealth Procurement Rules (CPRs), or any written instrument created by the Finance Minister concerning procurement that affects those corporate Commonwealth entities. Non-corporate Commonwealth entities and their functions are automatically ‘relevant entities’ for the CPRs. Prescribed corporate Commonwealth entities are also considered ‘relevant entities’ for the CPRs. Corporate Commonwealth entities prescribed through section 30 of the PGPA Rule to date perform functions, either in part or in full, that are considered ‘covered procurement’ under Australia’s international government procurement obligations. Relevant international obligations have been incorporated in the CPRs.

 

The HSRA is expected to absorb some functions of the National Faster Rail Agency (a type of non-corporate Commonwealth entity) once it is abolished as a listed entity. The Amendment Rules will ensure the performance of these functions continues to comply with relevant international obligations upon their transfer to the HSRA.

 

The Amendment Rules are made under subsection 105B(1) of the PGPA Act, and are therefore a legislative instrument but they are exempt (due to the operation of subsection 105B(2) of the PGPA Act) from disallowance for the purposes of section 42 of the Legislation Act 2003.

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023

 

The Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023 (Amendment Rules) are compatible with the human rights and freedoms recognized or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) establishes a framework for regulating resource management by Commonwealth entities and companies. Section 101 of the PGPA Act provides that the Minister for Finance may make rules by legislative instrument to prescribe matters giving effect to the Act. Paragraph 105B(1)(b) of the PGPA Act provides the Finance Minister with authority to, by written instrument, make provisions about procurement for corporate Commonwealth entities that are prescribed by the rules. Corporate Commonwealth entities that are subject to the Commonwealth Procurement Rules are prescribed under section 30 of the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule). Subsection 105B(2) of the PGPA Act provides that an instrument made under subsection 105B(1) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislation Act 2003.  

 

The Amendment Rules amend section 30 of the PGPA Rule made under the PGPA Act by prescribing the High Speed Rail Authority as a corporate Commonwealth entity that must comply with written instruments about procurement, including the Commonwealth Procurement Rules.

 

Human rights implications

 

The Amendment Rules do not engage any of the applicable rights or freedoms.

 

Conclusion

The Amendment Rules are compatible with human rights as they do not raise any human rights issues.

 

 

 

 

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance

Overview

The Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023 (Amendment Rules) were enacted to ensure that the High Speed Rail Authority (HSRA) is subject to the procurement rules that apply to corporate Commonwealth entities. These rules amend the Public Governance, Performance and Accountability Rule 2014 by adding the HSRA to the list of entities prescribed under section 30, thereby making it subject to procurement regulations, including the Commonwealth Procurement Rules. This legislative instrument was introduced to address the gap created by the abolition of the National Faster Rail Agency (NFRA) and the transfer of its functions to the HSRA, ensuring that the HSRA complies with Australia’s international obligations on government procurement. The Amendment Rules were made under the authority of the Public Governance, Performance and Accountability Act 2013, which empowers the Minister for Finance to make rules regarding the procurement processes of corporate Commonwealth entities. The Amendment Rules are exempt from disallowance under the Legislation Act 2003. In addition, a Statement of Compatibility with Human Rights was prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, confirming that the Amendment Rules are compatible with human rights as they do not engage any of the applicable rights or freedoms. This legislative instrument was developed in consultation with relevant government departments and commenced on the later of the day after the rules were registered and the day on which the High Speed Rail Authority Act 2022 commenced.

Scope and Application

The Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023 amends the Public Governance, Performance and Accountability Rule 2014 by adding the High Speed Rail Authority (HSRA) as a prescribed corporate Commonwealth entity under section 30 of the Rule. This amendment ensures that the HSRA must comply with written instruments about procurement, including the Commonwealth Procurement Rules (CPRs). The purpose of this change is to ensure continuity in compliance with Australia’s international government procurement obligations when the functions of the abolished National Faster Rail Agency are transferred to the HSRA. These Amendment Rules, made under the authority of the Public Governance, Performance and Accountability Act 2013, do not engage any of the human rights recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011. The rules come into effect on the later of the day after they are registered or the day the High Speed Rail Authority Act 2022 commences. The Amendment Rules apply to the HSRA, a corporate Commonwealth entity, and are designed to ensure that the HSRA's procurement activities comply with the CPRs and other relevant procurement instruments. The rules are made under subsection 105B(1) of the PGPA Act and are a legislative instrument exempt from disallowance under section 42 of the Legislation Act 2003. The accountable authority of the HSRA can seek a review of the functions of this amendment that do not pertain to international obligations. The Amendment Rules reflect the government's decision to restructure the National Faster Rail Agency's functions between the HSRA and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, ensuring that procurement obligations are upheld as these functions transition to the HSRA.

Key Provisions

The Public Governance, Performance and Accountability Amendment (Procurement – High Speed Rail Authority) Rules 2023, made under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), amend the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) to include the High Speed Rail Authority (HSRA) as a corporate Commonwealth entity subject to procurement rules, including the Commonwealth Procurement Rules (CPRs) (Section 4, Schedule 1, Item 1). This amendment reflects the government's decision to abolish the National Faster Rail Agency (NFRA) and transfer its functions to the HSRA. By prescribing the HSRA in section 30 of the PGPA Rule, the Amendment Rules ensure that the HSRA will comply with written instruments concerning procurement, thereby continuing to meet Australia's international government procurement obligations. The Amendment Rules impose specific obligations on the HSRA, requiring it to adhere to the provisions set out in written instruments concerning procurement, such as the CPRs. This includes ensuring that all procurement activities undertaken by the HSRA are conducted in compliance with the relevant rules and obligations, thereby maintaining transparency and accountability in its procurement processes (Section 105B(1)(b) PGPA Act). These obligations are critical for ensuring that the HSRA's procurement practices align with international standards and domestic regulations. Failure to comply with the procurement rules prescribed by the Amendment Rules may result in significant consequences. Although the specific penalties are not detailed in the Amendment Rules, non-compliance with procurement regulations can generally lead to administrative, civil, or criminal penalties under the PGPA Act or other relevant legislation. The exact penalties would depend on the nature and severity of the breach, but could include financial penalties, contractual sanctions, or even criminal charges for serious violations (Section 42 Legislation Act 2003). The Amendment Rules are exempt from disallowance, meaning they cannot be annulled by Parliament under the Legislation Act 2003 (Subsection 105B(2) PGPA Act). This legislative exemption underscores the importance and permanence of the procurement rules for corporate Commonwealth entities, including the HSRA. The compatibility of the Amendment Rules with human rights has been affirmed, as they do not engage any of the applicable rights or freedoms recognized in the Human Rights (Parliamentary Scrutiny) Act 2011. Consequently, the Amendment Rules do not raise any human rights issues, ensuring their alignment with both domestic and international human rights standards.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.