Last Updated: June 27, 2017

North Galilee Basin Rail approvals and NAIF

On 3 December 2016 media broadly reported that the Northern Australia Infrastructure Facility (‘NAIF’) granted preliminary approval for funding the North Galilee Basin Rail (NGBR) Line.[1] There is no regulatory provision for NAIF to grant ‘preliminary approval’ for financial assistance for a project under the Northern Australia Infrastructure Facility Act 2016 (‘NAIF Act’).

Under the provisions of the Investment Mandate, the NAIF board must make a decision to offer, or not to offer a Financing Mechanism.[2]  NAIF must take all reasonable steps to comply with the Investment Mandate.[3] Section 7 of the Investment mandate lists the matters that NAIF must consider when making investment decisions.[4]  To be eligible for financial assistance, a project proponent must meet all of the mandatory criteria in Schedule 1 to the Investment Mandate.[5] Also, NAIF must not provide financial assistance to projects that have not received all relevant regulatory, environmental and Native Title approvals.[6]

Adani spokesman Ron Watson has stated that Adani have applied for NAIF funding because it is available, but that it is not critical for the NGBR to proceed.[7]  The State Development Minister Dr Anthony Lynham said the latest, and final, secondary approval was granted for the NGBR, but it is unclear whether the NGBR has secured all of the ‘relevant approvals’ within the meaning of the NAIF Act.[8]

The NAIF Act does not provide for any merits review or appeal of a NAIF’s decision to finance a project. Statutory judicial review of the decision may be available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and a statement of reasons can be requested by a person who is aggrieved by the decision.

The Act provides that the functions of the Facility are “to grant financial assistance to States and Territories for the construction of Northern Australia economic infrastructure”.

However the Investment Mandate defines the ‘project proponent’ as the entity that submits an ‘investment proposal for a project’ – in essence, the entity that is responsible for a project and that applies for the financial assistance.  Accordingly while a project proponent should apply for the funding it is likely to be granted to the State or Territory government to administer.

The Facility cannot make an investment decision in respect of the NGBR if the Queensland Government (i.e. as the “relevant jurisdiction” under section 13 of the Investment Mandate) provides written notification that financial assistance should not be provided. This is provided by section 13(4) of the Investment Mandate, with which the Facility is compelled to “take all reasonable steps to comply”.

 

 

 

[1] Gail Burke and Dea Clarke, ‘Adani’s $2 billion Carmichael rail line in Queensland closer to federal loan,’ ABC News (online), 3 December 2016, http://www.abc.net.au/news/2016-12-03/adani-carmichael-rail-line-closer-to-federal-loan/8089790; Michael Koziol and David Wroe, ‘Turnbull Government eyes $1 billion Adani loan backed by new infrastructure fund,’The Sydney Morning Herald (online), 4 December 2016,   http://www.smh.com.au/federal-politics/political-news/turnbull-government-eyes-1-billion-adani-loan-backed-by-new-infrastructure-fund-20161204-gt3joz.html ; Matthew Killoran and John McCarthy, ‘Matt Canavan says ‘positive news’is set to be announced on Adani mega mine,’ The Courier Mail (online), 5 December 2016, http://www.couriermail.com.au/news/queensland/matt-canavan-says-positive-news-is-set-to-be-announced-on-adani-mega-mine/news-story/a7fadc07f070e64cf1e4f9c3cdfd8927 .

[2] Northern Australia Infrastructure Facility Investment Mandate Direction 2016 (Cth) s 4 (‘Investment Mandate’).

[3] Northern Australia Infrastructure Facility Act 2016 (Cth) s 9(3).

[4] Investment Mandate s 7(1) The Facility must not provide a Financing Mechanism unless the Board is satisfied the Project would not otherwise have received sufficient financing from other financiers; s 7(2)(a) Before making an Investment Decision, the Board must be satisfied the Investment Proposal has met all mandatory criteria in Schedule 1.

[5] The proponent must demonstrate to the board’s satisfaction that financial assistance is necessary to enable the Project to proceed, or to proceed much earlier than it would otherwise.

[6] Northern Australia Infrastructure Facility Investment Mandate Direction 2016 (Cth) s 15(2); NAIF may consider and approve investment proposals conditional upon the project obtaining all relevant approvals, s 15(1).

[7] Michael Koziol, ‘’It’s not critical': Adani says it doesn’t even need controversial $1 billion government loan’, The Sydney Morning Herald (Australia) 5 December 2016 available at http://www.smh.com.au/federal-politics/political-news/its-not-critical-adani-says-it-doesnt-even-need-controversial-1-billion-government-loan-20161205-gt425r.html.

[8] Above n 6.

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