EXPLANATORY STATEMENT
Issued by the authority of the Minister for Resources
Industry Research and Development Act 1986
Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024
Purpose and Operation
Section 33 of the Industry Research and Development Act 1986 (the IR&D Act) provides a mechanism for the Minister to prescribe programs, by disallowable legislative instrument, in relation to industry, innovation, science or research, including in relation to the expenditure of Commonwealth money under such programs.
The statutory framework provided by section 33 of the IR&D Act enables a level of flexibility to provide authority for Commonwealth spending activities in relation to industry, innovation, science and research programs. This allows the Government to respond quickly and appropriately to the need to implement innovative ideas and pilot programs on an ongoing basis and as opportunities arise. Prescribing programs in legislative instruments provides transparency and parliamentary oversight of Government programs and spending activities, whilst reducing administrative burden on the Commonwealth.
Once a program is prescribed by the Minister under section 33, subsection 34(1) allows the Commonwealth to make, vary or administer arrangements in relation to activities under the prescribed program. Arrangements may include contracts, funding agreements or other arrangements, and may provide for money to be payable by the Commonwealth to one or more third parties. The power conferred on the Commonwealth by subsection 34(1) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a
non-corporate Commonwealth entity, or by their delegate (under section 36).
The Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024 (the Legislative Instrument) prescribes the Australia-United States (US) Partnership in Landsat Next Program (the Program).
Funding for the Program has been secured through the Industry, Science and Resources Portfolio 2024-25 Budget submission. The Program provides $207.4 million over 5 years from 2023-24, and then ongoing funding of $38.2 million (indexed) per year for Geoscience Australia (GA) to implement the Government’s commitment to join the Landsat Next satellite mission. The Program will strengthen Australia-US relations and ensure Australia has ongoing, streamlined access to data from Landsat satellites including the Landsat Next satellites which are currently expected to launch in 2030-31.
The purpose of the Program is to:
- establish, operate and maintain an upgraded satellite ground station in the Northern Territory, establish, operate and maintain associated infrastructure, instrumented sites, facilities and equipment, and deliver new data processing, data analytics and science capabilities in support of Landsat Next;
- provide access to high-quality land imaging data and data products to support key Australian industries, including mining and geological resource exploration, climate monitoring, disaster planning and response, and agriculture; and
- support free, open and streamlined access to satellite imaging data across the
Indo-Pacific, supporting Australia’s engagement with regional partners and collaboration on shared challenges, including climate change.
The Australia-US partnership in Landsat Next builds on Australia’s near 50-year collaboration with the US on the Program, reflecting the important role of the US-Australia relationship.
Funding authorised by this Legislative Instrument comes from Program 1.1 Geoscientific and Spatial Information Services, Outcome 1, as set out in the Portfolio Budget Statements
2024-25, Budget Related Paper No. 1.11, Industry, Science, and Resources Portfolio (https://www.industry.gov.au/sites/default/files/2024-05/2024-25-department-of-industry-science-resources-pbs.pdf) at page 137.
The Program will be delivered by GA, the national public sector geoscience organisation. This is consistent with responsibilities for ‘geoscience research and information services including remote sensing and spatial data co-ordination’ under the Administrative Arrangements Order – 13 October 2022 (as amended on 3 August 2023). GA have extensive expertise and capability in delivering similar programs utilising earth observation data and have maintained the Landsat partnership with the US Geological Survey (USGS) for almost 50 years. This Program uses GA’s unique position as geoscientific and Earth observation experts to build on the near half-century of cooperation between GA and the USGS on Landsat missions.
Funding will be appropriated directly to GA (a non-Corporate Commonwealth entity) and made available from 2023-24 to facilitate Australia’s participation in the Landsat Next partnership. Spending decisions will be made by the delegate of the Accountable Authority, GA, who will be the Senior Responsible Officer with responsibility for the Program. The Senior Responsible Officer holds delegation under the Public Governance, Performance and Accountability Act 2013, and sections 34(1)-(2) and 35(4) of the IR&D Act.
The Program will fund a broad range of activities, including infrastructure construction; land acquisition; ground station establishment, operation and maintenance; site and facilities maintenance and repairs; salaries, allowances, and training for staff; equipment and software purchases; data products development; international scientific collaboration including staff exchanges; outreach activities to socialise the Program with regional partners; and, facilitating engagement between Australian First Nations entrepreneurs and US and Canadian First Nations businesses in satellite operation and land imaging, amongst other expenses.
As this is a decision to allocate funding to the Program as a whole, which supports the implementation of policy decisions made by the Government, the Program will not be subject to merits review. Merits review of the Program would not be appropriate because decisions are budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person’s interests. The Administrative Review Council has recognised that decisions of this nature should be excluded from merits review (see paragraph 4.18 to 4.19 of What decisions should be subject to merits review? Available at https://www.ag.gov.au/legal-system/administrative-law/administrative-review-council-publications/what-decisions-should-be-subject-merit-review-1999).
Persons who are otherwise affected by decisions or who have complaints about the Program may make a complaint to the Department of Industry, Science and Resources (the Department) (https://www.industry.gov.au/contact-us/feedback-and-complaints). If a person is not satisfied with the way the Department handles the complaint, they may lodge a complaint with the Commonwealth Ombudsman.
Statement of the Relevance and Operation of Constitutional Heads of Power
For the purposes of subsection 33(3) of the IR&D Act, the Legislative Instrument specifies that the powers of the Parliament to make laws with respect to the following are specified for the Program prescribed by the Legislative Instrument:
- the external affairs power in section 51(xxix) of the Constitution;
- enterprises and activities that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation (see section 51(xxxix) and section 61 of the Constitution);
- the government of a Territory (within the meaning of section 122 of the Constitution).
External affairs power
The Legislative Instrument specifies that one legislative power in respect of which it is made is the external affairs power (section 51(xxix) of the Constitution). The external affairs power supports legislation with respect to matters concerning Australia’s relations with other nations. In that regard, funding provided under the Legislative Instrument will support relations and scientific collaboration with the US and within the Indo-Pacific region. It will enable Australia to provide free and open access to essential satellite land imaging data to partner countries in the Indo-Pacific region, supporting informed decisions to address a range of issues including planning, environmental and climate change mitigation challenges. The Legislative Instrument will also allow continued support of the highly productive Australian-US geoscientific relationship.
Funding provided under the Legislative Instrument will support the establishment, operation and maintenance of instrumented sites for calibration and validation of satellite instruments (including associated infrastructure) and data in the Indo‑Pacific, as necessary. This will require engagement with foreign governments to establish a suitable site or sites for installation.
The external affairs power also supports legislation with respect to matters, or things outside the geographical limits of Australia. In that regard, funding provided under the Legislative Instrument will support Australia’s downlink of data from satellites orbiting the Earth which will be provided to places outside of Australia.
Executive power and express incidental power, including the nationhood aspect
The express incidental power in section 51(xxxix) of the Constitution empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested in the Parliament, the executive or the courts by the Constitution. Section 61 of the Constitution supports activities that are peculiarly adapted to the government of a nation and cannot be carried on for the benefit of the nation otherwise than by the Commonwealth.
In that regard, funding provided under the Legislative Instrument will operationalise activities and matters concerning the establishment, use and maintenance of satellite ground stations, instrumented sites and their associated infrastructure, and use of satellite data, which will advance Australia as a nation. These activities also involve an element of partnership or collaboration with foreign entities for the purpose of utilising data from space-based platforms.
Territories power
The Legislative Instrument specifies that another legislative power in respect of which it is made is the territories power (section 122 of the Constitution). Section 122 of the Constitution empowers the Parliament to ‘make laws for the government of any territory’.
In that regard, funding provided under the Legislative Instrument will, through the establishment, operation and maintenance of an Australian-owned and operated ground station, create employment (including Indigenous partnerships) and other economic opportunities in the Northern Territory.
The Program will support a range of government initiatives including the Government’s Better, Safer Future for Central Australia Plan and the Northern Territory Government’s Space Strategy 2022-2026 and Developing the North agendas, while helping to position the Northern Territory as a regional centre for satellite ground station facilities. There will be considerable investment in local industry, people, construction, and services, supporting an upskilled workforce and economic growth in the region.
Funding provided under the Legislative Instrument will also support the establishment, operation and maintenance of instrumented sites for calibration and validation of satellite instruments and data in Australian Territories and other locations, as necessary.
Further details of the Legislative Instrument are set out at Attachment A.
Authority
Section 33 of the IR&D Act provides authority for the Legislative Instrument.
Consultation
In September 2023, the US invited Australia to be a core partner in its Landsat Next satellite mission. Following detailed negotiations, GA (with the support of the Department) and the USGS agreed a set of principal activities and obligations that will form the Landsat Next partnership.
GA and the Department have consulted across the Australian Public Service, and particularly with the Department of the Prime Minister and Cabinet and the Department of Foreign Affairs and Trade throughout the process.
In accordance with section 17 of the Legislation Act 2003, the Attorney-General’s Department has been consulted on this Legislative Instrument.
Regulatory Impact
It is estimated that the regulatory burden is likely to be minor (Office of Impact Analysis reference number OIA24-06494).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.
Attachment A
Details of the Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024.
Section 2 – Commencement
This section provides that the Legislative Instrument commences on the day after registration on the Federal Register of Legislation.
Section 3 – Authority
This section specifies the provision of the Industry, Research and Development Act 1986 (IR&D Act) under which the Legislative Instrument is made.
Section 4 – Definitions
This item provides for definitions of terms used in the Legislative Instrument, namely Act and program.
Section 5 –Prescribed program
This section prescribes the Australia-US Partnership in Landsat Next Program (the Program) for the purposes of section 33(1) of the IR&D Act.
The Program provides funding for GA to build on the near 50 year partnership with the USGS by joining the Landsat Next satellite land imaging mission. This involves securing open access to past and future Landsat data, as well as facilitating and collaborating on the use of Landsat data, and includes funding to establish, operate and maintain an upgraded Australian-owned and operated ground station and associated equipment and infrastructure in the Northern Territory.
Section 6 – Specified Legislative Power
This section specifies that, for the purposes of subsection 33(3) of the Act, the powers of the Parliament to make laws with respect to the following are specified:
- the external affairs power in section 51(xxix) of the Constitution;
- enterprises and activities that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation (see section 51(xxxix) and section 61 of the Constitution);
- the government of a Territory (within the meaning of section 122 of the Constitution).
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Industry Research and Development (Australia-United States Partnership in Landsat Next Program) Instrument 2024 (the Legislative Instrument) provides legislative authority to commit Commonwealth funding for the Australia-US Partnership in Landsat Next Program (the Program).
The Program will ensure Australia has ongoing and streamlined access to data from Landsat satellites, including the next-generation Landsat Next satellites currently expected to launch in 2030-31. Landsat Next will equip Australia with the next generation of Earth observation and land imaging information and strengthen our relationship with the US and Indo-Pacific regional partners. The Australia-US partnership in Landsat Next builds on Australia’s near 50 year partnership with the US on the Program, reflecting the important role of the US‑Australia relationship.
Human rights implications
This Legislative Instrument engages the rights to equality and non-discrimination because it assists the interests of a particular group in the community who could be viewed as disadvantaged, being First Nations Australians.
Rights to equality and non-discrimination
Article 2(1) of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force in full on 28 January 1993) (ICCPR), and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR) require State Parties to respect and ensure to all individuals the rights recognised in the Covenants without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The right to equal protection of the law is recognised in Article 26 of the ICCPR. Article 2(2) of the ICESCR, and Articles 2(1) and 5 of International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (CERD) prohibit discrimination on the basis of race.
Differences in treatment will not amount to prohibited discrimination (that is, they will be legitimate) if the reasons for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate. The Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination, 75th session, UN Doc CERD/C/GC/32 (24 September 2009), paragraph 8, recognises that ‘non-discrimination’ does not necessitate uniform treatment when there are significant differences in situation between one person or group and another, or, in other words, if there is an objective and reasonable justification for differential treatment.
This Legislative Instrument engages the rights to equality and non-discrimination because it supports the interests of First Nations entrepreneurs and US and Canadian First Nations businesses therefore it applies to a certain group of persons within the population and draws a distinction between persons who are First Nations Australians.
Although, prima facie, this Program provides differential treatment in favour of First Nations Australians, the purpose which the Program aims to achieve is legitimate and the reasons for differentiation are reasonable and objective.
This Program positively draws upon each of the above principles and statements of International Human Rights instruments through the various measures and initiatives set out above. The Program aims to promote rights to equality and non-discrimination to develop the capacity of First Nations Australians.
Conclusion
This Legislative Instrument is compatible with human rights as it promotes and recognises the rights to equality and non-discrimination provisions of international human rights instruments and conventions and does not raise any human rights issues.
The Hon Madeleine King MP
Minister for Resources