EXPLANATORY STATEMENT
Issued by the authority of the Minister for Industry and Science
Industry Research and Development Act 1986
Industry Research and Development (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023
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 purpose of the Industry Research and Development (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023 (the Legislative Instrument) is to prescribe the Enhancing Australia's Science and Research Leadership in the Asia-Pacific Region Program (the Program). Funding for the Program has been secured through the Department of Industry, Science and Resources (the Department) 2022-2023 Budget. The Program provides $10 million over 6 years (2022/23 – 2027/28) to the Australian Academy of Science (the Academy), as part of the Australian Government’s commitment to deepen engagement in the Asia-Pacific region and build Australia’s capabilities across multiple domains.
The Academy, as Australia’s member to the International Science Council (ISC), will receive the grant to undertake activities in its capacity as host of the ISC Regional Presence for Asia and the Pacific (Regional Office). Hosting the Regional Office would contribute to Government priorities to deepen engagement with countries in the Asia-Pacific region, including the Pacific islands, in the areas of science policy and scientific research of international significance.
Funding authorised by this Legislative Instrument comes from Program 1, Outcome 1 , as set out in the Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.11, Industry, Science and Resources Portfolio (https://www.industry.gov.au/sites/default/files/2022-10/October_2022-23_Industry%2C%20Science%20and%20Resources_PBS.pdf) at page 17.
The Program will be delivered by Program Portfolio and Delivery Branch which is a specialised design, management and delivery body within the Department, with extensive expertise and capability in delivering similar programs.
The Program provides $10 million through a one-off, non-competitive grant to the Academy. The Program is administered by the Department in accordance with the Commonwealth Grant Rules and Guidelines 2017 (https://www.finance.gov.au/sites/default/files/2019-11/commonwealth-grants-rules-and-guidelines.pdf). As this is a one-off, non-competitive grant to the identified eligible recipient, there are no selection criteria; however, the grant is contingent on the submission of an acceptable project proposal with sufficient relevant supporting information commensurate with the funding amount. This is subject to assessment of merit in accordance with the Grant Opportunity Guidelines, including but not limited to consideration of value for money, ability of the project to deliver intended outcomes, and associated risk. To be successful the application must demonstrate merit in each of these areas.
Spending decisions will be made by the Program Delegate who is a General Manager responsible for administering the Program. The Program Delegate is a SES officer who holds delegation under the Department’s general financial framework, including delegation under the Public Governance, Performance and Accountability Act 2013, and sections 34 and 35 of the IR&D Act.
After considering the application, the assessment panel will make recommendations to the Program Delegate regarding the suitability of the application for funding. The Program Delegate will make the final decision to approve, taking into consideration the assessment panel’s recommendations, and the availability of grant funds. The Program Delegate will not approve funding if there are insufficient Program funds available across relevant financial years for the Program.
As this is a one-off, non-competitive grant to an identified recipient that 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 will relate to the provision of a one-off, non-competitive grant to a certain service provider over other service providers. The Administrative Review Council has recognised that decisions of this nature should be excluded from merits review (see paragraphs 4.16 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 will also have recourse to the Department. The Department investigates any complaints about the Program in accordance with its complaints policy and procedures. If a person is not satisfied with the way the Department handles the complaint, they may lodge a complaint with the Commonwealth Ombudsman.
The Legislative Instrument specifies that the legislative powers in respect of which the Instrument is made are the following:
External affairs power
Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs’. The external affairs power supports legislation with respect to matters concerning Australia’s relations with other nations. The Program provides funding to deepen Australia’s engagement in the Asia-Pacific region, showcase Australia’s science capabilities and strengthen Australia’s position as a collaborative leader in the region. Activities conducted under the Program will relate to advancing science on internationally significant issues, advancing science to contribute to international policy, or advancing scientific responsibility and freedom in other countries.
The external affairs power also supports legislation with respect to matters or things outside the geographical limits of Australia. In that regard, the Program provides funding to support activities to be conducted in the Asia-Pacific region such as hosting or attending workshops, conferences, training and skill development sessions focused on collaboration and partnership development.
Pacific Islands power
The Pacific Islands power in section 51(xxx) of the Constitution empowers the Parliament to make laws with respect to the relations of the Commonwealth with the islands of the Pacific. In that regard, the Program provides funding activities that will assist the islands of the Pacific by supporting disaster resilience and capacity development in the Pacific, as well as through the development of leaders and practitioners trained to deliver advice at the science‑policy interface within and for the benefit of the Pacific region.
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 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 22‑03007).
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 (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023.
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 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.
Section 5 – Prescribed Program
This section prescribes the Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program (the Program) for the purposes of section 33 of the IR&D Act. The Program supports the Australian Government’s commitment to deepen engagement in the Asia-Pacific region by supporting cross-national research, a network of science policy leaders and practitioners, collaboration and partnership development.
Section 6 – Specified Legislative Power
This section specifies that the legislative powers in respect of which the Legislative Instrument is made are the following:
- The external affairs power (paragraph 51(xxix) of the Constitution)
- The Pacific Islands power (paragraph 51(xxx) 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 (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023
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 (Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program) Instrument 2023 (the Legislative Instrument) provides legislative authority to commit Commonwealth funding for the Enhancing Australia’s Science and Research Leadership in the Asia-Pacific Program (the Program). The Program supports the Australian Government’s commitment to deepen engagement in the Asia-Pacific region by supporting the Australian Academy of Science to host the International Science Council Regional Presence for Asia and the Pacific (Regional Office). Hosting the Regional Office will deepen engagement with countries in the Asia-Pacific region, including the Pacific islands, in the areas of science policy and scientific research of international significance.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Ed Husic MP
Minister for Industry and Science