But presumably, if you had any major concerns with respect to guidelines, you’d elevate it. In terms of your department, right? You wouldn’t just sit back and say, “Well, we’ve got these substantial concerns with respect to these guidelines. But ultimately, it’s the it’s the decision of the relevant department. You’d presumably you’d take some steps to to elevate it so it could be discussed at a higher level. Yeah,
I think that’s fair to say, Senator. In this case, we did provide suggestions to infrastructure, but they were merely suggestions. And as I said, there there was a process where we briefed our minister to endorse the release of those guidelines. Ultimately, though, the PGPA framework, including the CGRPs, are a devolved framework. The accountability for acquitting the responsibilities and obligations under both of those instruments does rest with the accountable authority, and so we we do provide advice and suggestions, but ultimately the accountability does sit with the relevant portfolio agency.
Okay, so your evidence is you provided suggestions. Were all of your suggestions accepted by the department?
I think, Senator, some of them were were adopted. Others, they decided not to take on board. But the the suggestions kind of cover a range of things. I think they went to sort of the readability of of some of the material, and and ultimately, as I said, it’s a decision for infrastructure and their minister in this case.
So they only adopted some of your suggestions.
That’s right.
That’s your evidence.
Yes.
Which of your suggestions didn’t they adopt,
Senator? I think I mean we we kind of they’re very lengthy documents. We provided a range of suggestions on drafting and other matters throughout the document. I wouldn’t be able to answer specifically what they did and didn’t adopt today. You can’t
even give us you can’t give us a general description in terms of subject areas where there was a divergence of opinion.
I wouldn’t characterize it as a divergence of opinion. I think we we made suggestions to improve, from our perspective, the readability of the document, and it was ultimately a matter that infrastructure needed to determine which of those suggestions they they agreed with.
Okay. All right. On what date did the finance minister, as I understand how you describe the process, actually, before I ask that question, can I just ask you to take on notice to provide further information with respect to the suggestions you made that were adopted and the suggestions you made that were not adopted, and if you could also provide copies of any correspondence between the Department of Finance and the Department of Infrastructure dealing with that process?
We can take that on. Do you do
that?
Yes. Thanks, Senator.
Thank you. So, as I understand your description of the process, the Finance Minister did have to approve the program guidelines after you’d finished your process of discussions with the Department of Infrastructure, on what date did the Finance Minister approve the program guidelines?
So, Senator, just just to clarify, our minister’s role is not to approve the content of the guidelines. In in some cases, she will be involved in agreeing to their publication on Grant Connect, as was the case here, and that occurred on the 26th of September.
The 26th of September. My understanding, and correct me if I’m wrong, is that the guidelines were actually publicly released on 1 September 2025, so that date of 26 September immediately raises an issue with respect to the timing of the approval, whether or not the approval was given after the guidelines had been publicly released. In which case, it would have been very difficult for the guidelines to then be withdrawn and whatever. So, can you explain the discrepancy in dates?
So, Senator, maybe it would help to clarify the the guidelines. I think the revised guidelines were published on the second of October.
Okay, so there was public release of the guidelines on one September. Yep. The minister’s approval to the grant to the release of the guidelines on on Grant Connect. On the 26th of September, but then on two October, there was the clarification. I’ve got the document here. The clarification to amend the guidelines, and that clarification deals with a pretty fundamental issue, and that is deals with the constitutional issue. And we received evidence yesterday from Professor Ann Toomey with respect to this issue. And what that, as I read it, what that addendum number one sought to do was to bring this program under the auspices of Section 96 of the Constitution, such that organizations seeking these these grants would need to be sponsored by a local, state, or territory government body. Is that correct?
That’s correct, Senator.
So, can you explain to me, from the Department of Finance’s perspective, how it was that the guidelines were released publicly on one September, prior to the finance minister approving the release of the guidelines,
Senator? As I mentioned, the the finance minister doesn’t approve the release of all guidelines. However, in in the case of the the revised guidelines, we determined that it was appropriate that her agreement was sought to the release of those that revision to the guidelines.
Sorry, as I well, let’s let’s try and use some precision here. As I understood your previous evidence, you were saying the minister’s approval was required before the guidelines were released on Grant Connect. Is that correct?
Not in not in every case, Senator. So, what about
this case? What about this case?
So, her her agreement was sought prior to the release of the revised version of the guidelines.
So the finance minister’s advice wasn’t sought to the prior release of the initial guidelines on one September.
No, Senator.
Why not,
Senator? We have a kind of a range of considerations that we put into whether or not it’s appropriate to require our ministers’ engagement in that decision making. I should I should say there are more than 480 guidelines released every year, so we don’t consider it’s appropriate for the Minister for Finance to have a role in every case. In this case,
because sorry, sorry to interrupt there, but presumably this is a $560 million program. So presumably the quantum of the program, the nature of the program, and Professor Ann Toomey’s given some pretty strong evidence in this regard. I would have thought heightened the need for for the Minister of Finance to be involved. Those are the sorts of considerations you’d consider, aren’t
they? They’re some of the considerations, Senator. So we would look at when we when we undertake our review within the department. We’re looking at consistency with the grant rules and principles, with the standard templates and terms and conditions that we would recommend. We’re looking at the clarity of information available to people who are eligible to apply. We’re looking at things around how the decisions around value for money will be Made in cases where we consider that there are significant risks around either implementation or other factors, we would require the finance minister to be involved.
So, if I can be clear, my particular concern in this case is that the guidelines were released on 1 September, publicly, without the revision, and then sometimes subsequently, 26 September, the minister approved the release of the guidelines on Grant Connect, or however we want to put it, with a substantial amendment, and presumably that was the basis upon which the minister agreed to the release of the guidelines. That that addendum number one was attached to the guidelines, and substantially changed the nature of the application process. So there had to be a project sponsor, be a state government or local government. So my question is, what happened between 1 September and 26 September, and how could it be that these guidelines were publicly released without the substantial amendment which was made in order to make this program constitutional?
Senator, I think I mean infrastructure will be able to speak in more detail about the kind of considerations that went into making the addendum to the to the guidelines. Our assessment was for the first set of guidelines that they were in line with what we would have expected to see, and therefore that they didn’t sort of reach the threshold at which we would suggest the minister for finance be engaged. However, the second set because of the significance of the revision, we we thought that it was appropriate that our ministers. No, no.
Sorry, I still don’t understand. There’s there’s a gap, right? So the guidelines were released on 1 September. Professor Ann Toomey gave very clear evidence yesterday that, from her perspective, the program was unconstitutional in the way it was originally proposed, right? Because Section 96 should have been should have been used, an amendment was made to take advantage of Section 96, which required project sponsors at a state and local government level. That’s a substantial change to the program. So, didn’t the Department of Finance raise that concern prior to 1 September 2026, or did the Department of Finance raise that concern prior to 1 September 2026,
Senator? I’d need to take that on notice. One thing I would say: one of the considerations we take when we’re reviewing guidelines, obviously, any funding arrangement between government and a non-government entity requires. Can
I just sorry to interrupt you again? We’ve got limited time shortly, so please. If you can just speak precisely to this program, I’m interested in the the process for this program. So, if we take Professor Ann Toomey’s evidence from yesterday, and she’s a constitutional law expert. Some guidelines with some clear constitutional issues were released on 1 September, and then subsequently on 2 October, those guidelines were revised. So the question I have is: Did the Department of Finance flag that issue with the Department of Infrastructure before the public release of those guidelines on 1 September,
I’ll take that on notice, Senator.
Well, I’m really surprised you don’t have you can’t respond to that. That seems to me a pretty clear issue and a fundamental issue in terms of guidelines that were substantially amended from a constitutional perspective after they were publicly released, I would really expect, especially given presumably, and I’m being respectful to you, right? But I’d expect that you would be across the the timeline, especially given the discrepancy in dates. You can’t provide this committee at this time any information with respect to that,
Senator. What I can say is that, as a as a general frame, one of the things that we consider is legal advice relating to. I’m
sorry, sorry to interrupt again. I’m speaking specifically about the matters which this committee is considering, and we have a timeline where guidelines were released on 1 September, from Professor N Tumi’s perspective, unconstitutional in terms of their mechanism. 26 September, the Department of Finance, the minister issues approval for release of guidelines with a substantial amendment, and that amendment is released on 2 October. So again, can you answer the question? Are you in a position to answer the question as to what happened prior to 1 September? Did the department raise its concern with respect to the need to have local government or state government sponsors with respect to these projects in order for the scheme to be constitutional, was that raised prior to 1 September,
Senator? The answer to your question goes to legal advice, and so in this forum, I’m going to suggest that I take that question on notice, and I will come up. So, are you making a public? Are
you sorry? Are you making a public interest immunity claim?
I’m not making a public interest immunity claim at this point. I would like to be able to take the question and consider what we can provide to you that does not disclose legal advice.
Well, can I just say to you, and this this will be my last question, and I’m going to say this to you in a respectful manner. When I started asking you questions about the advice the Department of Finance gave to the Department of Infrastructure with respect to these guidelines. You raised issues such as readability. You didn’t raise any issue with respect to constitutionality. Why is that?
Well. Senator, I by no means trying to kind of obfuscate for the committee. Most of our questions, most of our suggestions generally go to readability. There are other issues, as Professor Toomey has has drawn to the attention of the committee in her submissions, that go to the content of legal advice.
