EXPLANATORY STATEMENT
Issued by the authority of the Minister for the Environment
Industry Research and Development Act 1986
Industry Research and Development (Environmental Education Centres Program) Instrument 2020
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 Minister for Industry, Science and Technology has delegated the Minister’s power under subsection 33(1) to the Minister for the Environment, under subsection 33(6) of the IR&D Act, to prescribe the Environmental Education Centres Program.
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 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 entity, or by their delegate (under section 36).
The purpose of the Industry Research and Development (Environmental Education Centres Program) Instrument 2020 (the Legislative Instrument) is to prescribe the Environmental Education Centres Program (the Program). The funding for the Program has been secured through the former Department of the Environment and Energy 2019-20 Budget. The Program provides $50 million as part of the Australian Government’s commitment to establish two environmental education centres: the Harry Butler Environmental Education Centre (HBEEC) in Perth, Western Australia and the National Centre for Coasts, Environment and Climate (NCCEC) in Point Nepean, Victoria. The Program provides $25 million to each centre to fund capital expenditure related to their establishment.
The HBEEC will develop and promote understanding of the positive relationship between economic development and environmental sustainability. Its activities will include a mix of education, advocacy and industry collaboration. Additionally, it will provide a facility for university students, an education centre for visiting primary school students and an interactive discovery centre for the community.
The NCCEC will foster research and education focused on the coastal environment, climate change, science, history and culture, the arts and community engagement. It will also provide facilities for scientific research, artists and studio space, and conference and accommodation purposes.
Funding is to be made available to Murdoch University and the University of Melbourne (eligible applicants), subject to an assessment under the Commonwealth Grant Rules and Guidelines 2019, to establish the two environmental education centres.
Funding for the Program comes from Program 1.2, Outcome 1, as set out in the Portfolio Budget Statements 2019-20, Budget Related Paper No. 1.6, Environment and Energy Portfolio (https://www.awe.gov.au/sites/default/files/2020-01/pbs-2019-20-environment-and-energy.pdf) at page 40.
The Program is administered and delivered by the Department of Agriculture, Water and the Environment (the Department).
The Program is an ad hoc grants program. The Program is administered by the Department in accordance with the Commonwealth Grant Rules and Guidelines 2019 (http://www.finance.gov.au/sites/default/files/commonwealth-grants-rules-and-guidelines.pdf). Eligibility criteria are outlined in the Program guidelines.
The eligible applicants were identified as the appropriate recipients of two $25 million grants during the 2019-20 Federal Budget process and agreed by the Prime Minister. The eligible applicants will be required to establish the environmental education centres in accordance with the grant activities and assessment requirements outlined in the Program guidelines.
Spending decisions will be made by the Minister for the Environment responsible for administering the Program, taking into account the recommendations of an assessment by Departmental officers against the Program guidelines.
As the Program is a targeted ad-hoc grant, the Program will not be subject to merits review. Merits review of the Program would not be appropriate because the Program involves the allocation of finite resources between the eligible applicants. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.14 of What decisions should be subject to merits review?).
Persons who are affected by decisions or who have complaints about the Program will 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.
Corporations Power
The Legislative Instrument specifies that the legislative power in respect of which the instrument is made is section 51(xx) of the Constitution (the corporations power).
Section 51(xx) of the Constitution empowers the Parliament to make laws with respect to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ (together, constitutional corporations).
In Williams v Commonwealth (2014) 252 CLR 416 (Williams No 2), the High Court, considering section 32B of the Financial Management and Accountability Act 1997 (the FMA Act), held (at [50]) that:
A law which gives the Commonwealth the authority to make an agreement or payment of that kind is not a law with respect to trading or financial corporations. The law makes no provision regulating or permitting any act by or on behalf of any corporation.
However, the relevant provisions of the IR&D Act are substantially different to the provisions considered by the High Court in Williams No 2. Section 34 of the IR&D Act corresponds to section 32B of the FMA Act considered by the High Court in Williams No 2. However, the FMA Act contained no provision in terms equivalent to those of section 35 of the IR&D Act.
Subsection 35(2) of the IR&D Act limits the arrangements made under section 34 so that, where a party to an arrangement made under section 34 is a constitutional corporation, the arrangement must be subject to a written agreement containing terms and conditions under which money is payable by the Commonwealth. The corporation must comply with the terms and conditions. The activities of the corporation are therefore regulated through the terms and conditions made under each agreement pursuant to subsection 35(2).
Further, subsection 35(3) provides that the agreement must provide for circumstances in which the corporation must repay amounts to the Commonwealth.
The Program prescribed by the Legislative Instrument singles out and confers on Murdoch University and the University of Melbourne (both trading corporations) benefits which are directed to assisting them in the conduct of their ordinary activities, and imposes terms and conditions under the grant agreement in accordance with section 35 of the IR&D Act in relation to the application of funding provided by the Commonwealth to those universities.
In particular, the Program provides funding to Murdoch University and the University of Melbourne to assist these universities establish environmental education centres to provide facilities for education, advocacy, industry collaboration, research, art and conferencing activities. All of these activities would be consistent with the ordinary activities of these universities.
Authority
Section 33 of the Industry Research and Development Act 1986 provides authority for the Legislative Instrument including by a delegate.
Consultation
In accordance with section 17 of the Legislation Act 2003, the Department of Industry, Science, Energy and Resources and the Attorney-General’s Department have been consulted on this Legislative Instrument.
Regulatory Impact
It is estimated that the regulatory burden is likely to be minor. The Office of Best Practice Regulation assessed the Program is unlikely to have a regulatory impact on business, individuals or community organisations (OBPR ID 42559).
Details of the Industry Research and Development (Environmental Education Centres Program) Instrument 2020
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (Environmental Education Centres Program) Instrument 2020.
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 (the 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 Environmental Education Centres Program (the Program) for the purposes of section 33 of the Act.
The purpose of the Program is to provide funding to Murdoch University for the building of the Harry Butler Environmental Education Centre (HBEEC) in Perth, Western Australia and to the University of Melbourne for the building of the National Centre for Coasts, Environment and Climate (NCCEC) in Point Nepean, Victoria.
The HBEEC will develop and promote understanding of the positive relationship between economic development and environmental sustainability. Its activities will include a mix of education, advocacy and industry collaboration. Additionally, it will provide a facility for university students, an education centre for visiting primary school students and an interactive discovery centre for the community.
The NCCEC will be an interdisciplinary science research and education facility. The NCCEC will foster research and education focused on the coastal environment, climate change, science, history and culture, the arts and community engagement. It will also provide facilities for scientific research, artists and studio space, and conference and accommodation purposes.
The Program is intended to fund capital expenditure related to the establishment of the HBEEC and NCCEC.
Section 6 – Specified Legislative Power
This section specifies that the legislative power in respect of which the Legislative Instrument is made is the power of the Parliament to make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth (paragraph 51(xx) of the Constitution).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Industry Research and Development (Environmental Education Centres Program) Instrument 2020
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 purpose of the Industry Research and Development (Environmental Education Centres Program) Instrument 2020 (the Legislative Instrument) is to prescribe the Environmental Education Centres Program (the Program). The Program provides funding for capital expenditure to establish two environmental education centres: the Harry Butler Environmental Education Centre (HBEEC) in Perth, Western Australia and the National Centre for Coasts, Environment and Climate (NCCEC) in Point Nepean, Victoria.
The HBEEC will develop and promote understanding of the positive relationship between economic development and environmental sustainability. Its activities will include a mix of education, advocacy and industry collaboration. Additionally, it will provide a facility for university students, an education centre for visiting primary school students and an interactive discovery centre for the community.
The NCCEC will foster research and education focused on the coastal environment, climate change, science, history and culture, the arts and community engagement. It will also provide facilities for scientific research, artists and studio space, and conference and accommodation purposes.
Human rights implications
This Legislative Instrument positively engages the right to education. The Program provides funding for the building of adequate facilities to support learning and teaching, research and community engagement in a range of fields including sustainability, coastal environmental and climate change.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon. Sussan Ley MP
Minister for the Environment