EXPLANATORY STATEMENT
Issued by the authority of the Minister for Industry and Science
Industry Research and Development Act 1986
Industry Research and Development (National Rail Manufacturing Advocate 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 (National Rail Manufacturing Advocate Program) Instrument 2023 (the Legislative Instrument) is to prescribe the National Rail Manufacturing Advocate Program (the Program). The funding for the Program has been secured through the Department of Industry, Science and Resources (the Department) 2022-2023 Budget. The Program provides $1.5 million over a three year period as part of the Australian Government’s commitment to stimulate the Australian rail industry to build more trains in Australia and support skilled manufacturing jobs as part of the National Rail Manufacturing Plan.
The Program provides funding for a National Rail Manufacturing Advocate, who will provide advice to the Commonwealth and state and territory governments, advocate for the Australian rail industry, and support Australian Rail Industry businesses to access opportunities and innovations. The Program will develop a coordinated national approach to the support and growth of the Australian rail industry and skilled manufacturing jobs.
Funding authorised by this Legislative Instrument comes from Program 1.1, 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 32.
The Program will be delivered by the Industry Growth Division, which is a specialised design, management and delivery body within the Department with extensive expertise and capability in delivering similar programs..
The Program provides funding to appoint a National Rail Manufacturing Advocate for a three year period. The National Rail Manufacturing Advocate will be nominated by the Minister and approved by Cabinet. The National Rail Manufacturing Advocate will be engaged directly by the Department following a transparent, merit-based executive recruitment process involving an independent selection panel. The panel includes representatives from rail industry, rail research and innovation, and government-based industry advocacy. The successful applicant will be informed by the Chair of the independent selection panel, or delegated representative, and by receipt of a Letter of Appointment from the Minister. The Chair, or delegated representative, will also inform unsuccessful applicants.
Spending decisions will be made by the relevant Program Delegate who is the Deputy Secretary responsible for administering the Program, taking into account the recommendations of the independent selection panel. 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.
The Program involves the allocation of finite resources between competing applicants and therefore falls within the category of decisions that would not usually be subject to merits review according to paragraph 4.11 of the Administrative Review Council guide, 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:
Trade and commerce power
The Legislative Instrument specifies that the legislative power in respect of which it is made is the Commonwealth trade and commerce power (para 51(i) of the Constitution). The trade and commerce power supports Commonwealth activities which relate to trade and commerce with other countries, and among the States.
In that regard, the Program prescribed by the Legislative Instrument is aimed at supporting Australian Rail Industry businesses to engage in interstate and overseas trade and commerce by developing their capability to access interstate or overseas procurement and export opportunities and participate in national and global rolling stock supply chains. The Program is also aimed at actively promoting the ability of Australian Rail Industry businesses principally engaged in interstate and overseas trade or commerce to use new innovations that improve the efficiency and capacity of systems, products or operations.
Territories power
The Legislative Instrument specifies that the legislative power in respect of which it is made is the territories power (s 122 of the Constitution). The territories power supports the Commonwealth to legislate with respect to activities undertaken in a territory.
In that regard, funding provided under the Legislative Instrument may provide for opportunities and promotion of new innovations to and within Australia’s territories for Australian Rail Industry businesses.
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 no more than minor (Office of Best Practice Regulation No. 22‑02669).
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 (National Rail Manufacturing Advocate Program) Instrument 2023
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (National Rail Manufacturing Advocate 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 Program for the purposes of section 33 of the IR&D Act.
The Program provides funding for a National Rail Manufacturing Advocate, who will provide advice to the Commonwealthand state and territory governments, advocate for the Australian rail industry, and support the Australian Rail Industry businesses to access opportunities and innovations. The Program will develop a coordinated national approach to the support and growth of the Australian rail industry and skilled manufacturing jobs.
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 trade and commerce with other countries, and among the States (within the meaning of paragraph 51(i) of the Constitution), and 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 (National Rail Manufacturing Advocate 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 (National Rail Manufacturing Advocate Program) Instrument 2023 (the Legislative Instrument) provides legislative authority to commit Commonwealth funding for the National Rail Manufacturing Advocate Program (the Program).
The Program provides $1.5 million as part of the Australian Government’s commitment to stimulate the Australian rail industry to build more trains in Australia and support skilled manufacturing jobs.
The Program provides funding for a National Rail Manufacturing Advocate, who will provide advice to the Commonwealth and state and territory governments, advocate for the Australian rail industry, and support Australian Rail Industry businesses to access opportunities and innovations. The Program will develop a coordinated national approach to the support and growth of the Australian rail industry and skilled manufacturing jobs.
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