EXPLANATORY STATEMENT
Issued by the authority of the Minister for Science and Technology
Industry Research and Development Act 1986
Industry Research and Development (Square Kilometre Array Program) Instrument 2022
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 (Square Kilometre Array Program) Instrument 2022 (the Legislative Instrument) is to prescribe the Square Kilometre Array Program (the Program). The Square Kilometre Array (SKA) project is an international effort of the inter-governmental SKA Observatory (SKAO) to build and operate world-leading radio telescopes, and includes Australia hosting an SKA telescope.
The funding for the Program has been secured through the Department of Industry, Science, Energy and Resources 2021-2022 Budget. The Program provides $383.8 million over 10 years (2021/22 – 2030/31) as part of the Australian Government’s commitment to support Australia’s participation in the Square Kilometre Array (SKA) project. The 2021-2022 Budget funding is in addition to $207.3 million of National Innovation and Science Agenda (NISA) funding over 2021/22 to 2024/25.
The objectives of the Program are:
- Leveraging scientific and technological strengths in radio astronomy to establish Australia as an international science leader.
- Increasing Australian industry capability, and creating high-value jobs.
- Improving outcomes for current and future Wajarri Yamaji people – the native title holders of the Australian SKA telescope site and surrounding area.
- Enhanced digital capabilities in Australian research programs, industry, and STEM education.
- Generating foreign income flows through construction and hosting of an SKA telescope.
The Program’s funding activities will fall into three categories:
- Annual membership contributions for Australia, which will be made to the SKAO intergovernmental organisation. These payments contribute to the SKA project’s construction and operation costs.
- Site establishment funding to ensure Australia meets its commitment to provide the SKAO with an appropriate site to build an SKA telescope. The funding will also support maintaining positive relationships with stakeholders located near the telescope site, including the Wajarri Yamaji.
- Establishing and operating an Australian SKA Regional Centre (AusSRC), which will be a collaboration of Australian universities and CSIRO (AusSRC collaboration). The AusSRC will form part of the planned international SKA Regional Centre (SRC) network, which will have a key role in processing SKA telescope data. The funding will used for infrastructure and personnel, and to resource the AusSRC to have a focus on supporting Australian research programs, multidisciplinary research, and translation to industry and STEM education.
Funding authorised by this Legislative Instrument comes from Program 1.1 Investing in science, technology and commercialisation, Outcome 1, as set out in the Portfolio Budget Statements 2021-22, Budget Related Paper No. 1.9, Industry, Science, Energy and Resources Portfolio (https://www.industry.gov.au/sites/default/files/2021-05/2021-22-department-of-industry-science-energy-and-resources-pbs.pdf) at page 37.
The SKAO membership payments will be delivered by the Department of Industry, Science, Energy and Resources (the Department), or its successor, as ‘Other Financial Arrangement’ payments. The payments will be made annually to the SKAO according to the SKAO’s Construction and Operations Funding Schedule, which sets out all SKAO member contributions from 2021 to 2030. Membership payments between 2021/22 and 2030/31 will total approximately $478.2 million, not factoring indexation and exchange rate variations. This is split between $295.9 million allocated in the 2021-2022 Budget and $182.3 million of NISA funding.
The site establishment funding, with the exception of the ILUA monetary benefits, will be allocated through a direct funding allocation to CSIRO. CSIRO is authorised to be allocated Program funds under the Science and Industry Research Act 1949. This funding will follow a fixed profile determined by previously-negotiated Wajarri Yamaji benefits, Indigenous heritage monitoring, and land acquisition costs.
The ILUA monetary benefits will be delivered by the Department, or its successor, as ‘Other Financial Arrangement’ payments.
The AusSRC component of the Program will be delivered by the Department’s International and Astronomy Branch in the Science and Commercialisation Division, as well as AusIndustry, which is a specialised design, management and delivery body with extensive expertise and capability in delivering similar programs. The AusSRC component will be delivered through a closed, non-competitive grants program, and will be 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. Eligibility and merit criteria will be outlined in the Program guidelines, and will be available at business.gov.au.
The AusSRC payments will be made according to a funding profile provided by the AusSRC and agreed by the Department. AusSRC partner institutes will also contribute to the AusSRC budget. The Department will provide a total of $63.1 million from the 2021-2022 Budget allocation through to the 2030/31 financial year. Eligibility criteria will include that the AusSRC is a collaboration between Australian universities and CSIRO.
The grant guidelines for the grant to the AusSRC will be approved by the Minister for Science and Technology, or their successor. Spending decisions for the AusSRC grant will be made by the AusIndustry Program Delegate who is the General Manager within the AusIndustry Division with responsibility for the administering the AusSRC grant, taking into account the recommendations of the Department.
The grant application must address the eligibility and merit criteria, and provide relevant supporting information. The application must provide an amount of detail and supporting information commensurate with the funding amount. To be successful, the application must score highly against each merit criterion.
The application from the AusSRC collaboration for the closed, non-competitive AusSRC grant will be assessed against the eligibility criteria and merit criteria set out in the Program guidelines in two stages. At first instance, the application will be assessed by AusIndustry against the eligibility criteria. An assessment panel will then consider the application against the merit criteria. This will include scoring the application out of 100. The panel may comprise representatives from the Australian Government and other independent technical experts. The assessment panel may seek input from independent experts to inform their assessments.
After considering the application, the assessment panel will make recommendations to the AusIndustry Program Delegate regarding the suitability of the application for funding. The AusIndustry Program Delegate will make the final decision to approve, taking into consideration the assessment panel’s recommendations, and the availability of grant funds. The AusIndustry Program Delegate will not approve funding if there are insufficient Program funds available across relevant financial years for the Program.
The AusSRC collaboration will be informed of their application outcome in writing. If the application is not satisfactory, the AusSRC collaboration will have an opportunity to discuss the outcome with the Department. The AusSRC collaboration may be asked to provide additional information and to correct any errors so their application can be reconsidered.
Spending decisions for all other expenses will also be made by the Head of Division of the Science and Commercialisation Division, taking into account the recommendations of the Department.
The Program involves a decision by government to allocate funding to support Australia’s participation in the SKA project as required under the Convention Establishing the Square Kilometre Array Observatory (the Convention). Australia ratified the Convention on 29 September 2021 following an inquiry by the Joint Standing Committee on Treaties (the Committee) where the Committee supported the Convention and recommended treaty action. Funding Australia’s participation in the SKA project is a mandatory decision upon the occurrence of ratifying the treaty. It has also been subject to parliamentary scrutiny through the Committee process. As a result, external merits review does not apply.
Payments made to the Wajarri Yamaji under an ILUA are subject to requirements in the Native Title Act 1993 to appropriately compensate for future deals affecting native title. As a result, merits review is not appropriate as no appropriate remedy could be conferred by the reviewing body. Any person aggrieved by a decision made in relation to the registration of an ILUA may apply to the Federal Court for a review of that decision.
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)
Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs’. The external affairs power supports Commonwealth legislation which gives effect to Australia’s obligations under treaties to which it is a party. Australia has obligations under the Convention Establishing the Square Kilometre Array Observatory (the Convention).
Article 3, Annex B of the Convention requires Australia to provide funding in accordance with a Funding Schedule approved by unanimous vote of the Council of the Square Kilometre Array Observatory. Article 5.3 of the Convention also requires Australia, as a host country, to host a SKA telescope. In that regard, funding provided under the Legislative Instrument will support SKAO and the SKA project and establish a site to build the telescope.
The external affairs power also supports legislation with respect to matters concerning Australia’s relations with other nations. In that regard, funding provided under the Legislative Instrument will support multilateral cooperation with a number of other countries in support of the SKAO and SKA project.
Executive power (section 61 of the Constitution) and express incidental power (section 51(xxxix) of the Constitution), 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 out for the benefit of the nation otherwise than by the Commonwealth.
In that regard, funding provided under the Legislative Instrument will increase scientific knowledge for Australia, such that the SKA telescope is a matter of national significance.
Astronomical and meteorological observations power (section 51(viii) of the Constitution)
Section 51(viii) of the Constitution empowers the Parliament to make laws with respect to ‘astronomical and meteorological observations’.
Funding provided under the Legislative Instrument will build and maintain the SKA telescope, including funding its continued operations. It will also support establishing and operating the AusSRC which will process SKA telescope data.
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.
Since October 2016, the Australian Government has been negotiating an ILUA with the Wajarri Yamaji – the native title holders of the area in and around Australia’s SKA site - to enable the SKAO to access the site. The process has involved conducting Indigenous heritage surveys to ensure the permitted access to the site avoids locations with significant heritage value, and agreeing to a package of monetary and non-monetary benefits.
The Department has been continuously engaged with the institutions leading the effort to establish the AusSRC (including CSIRO, University of Western Australia, and Curtin University). The AusSRC collaboration has been consulted on the purpose, design, budget, and activities of the AusSRC.
Regulatory Impact
It is estimated that the regulatory burden is likely to be nil (OBPR reference 43336).
Details of the Industry Research and Development (Square Kilometre Array Program) Instrument 2022
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (Square Kilometre Array Program) Instrument 2022.
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 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 Square Kilometre Array Program (the Program) for the purposes of section 33 of the IR&D Act.
The Program provides funding to support the Australian Government’s commitment to support Australia’s participation in the Square Kilometre Array (SKA) project including hosting of a SKA telescope. The Program provides funding to:
- Pay Australia’s membership contributions to the SKA Observatory (SKAO), which support the SKA project’s construction and operations costs.
- Provide and operate an appropriate telescope site in Western Australia.
- Establish and operate an Australian SKA Regional Centre (AusSRC), which will form part of the planned international SKA Regional Centre (SRC) network. The SRC network will have a key role in processing SKA telescope data. The AusSRC will have a specific focus on supporting Australian research programs, multidisciplinary research, and translation of advanced digital capability to industry and STEM education.
- Engage in other enterprises and activities related to the SKA Project and AusSRC.
Section 6 – Specified Legislative Power
This section specifies that the legislative powers in respect of which the Legislative Instrument is made are the powers of the Parliament to make laws with respect to astronomical and meteorological observations (within the meaning of paragraph 51(viii) of the Constitution), external affairs (within the meaning of paragraph 51(xxix) of the Constitution) and 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 paragraph 51(xxxix) and section 61 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 (Square Kilometre Array Program) Instrument 2022
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 (Square Kilometre Array Program) Instrument 2022 (the Legislative Instrument) is to prescribe the Square Kilometre Array Program (the Program). The Program provides $383.8 million over 10 years (2021/22 – 2030/31) as part of the Australian Government’s commitment to support Australia’s participation in the Square Kilometre Array (SKA) project.
The objectives of the Program are:
- Leveraging scientific and technological strengths in radio astronomy to establish Australia as an international science leader.
- Increasing Australian industry capability, and creating high-value jobs.
- Improving outcomes for current and future Wajarri Yamaji people – the native title holders of the Australian SKA telescope site and surrounding area.
- Enhanced digital capabilities in Australian research programs, industry, and STEM education.
- Generating foreign income flows through construction and hosting of an SKA telescope.
Human rights implications
This Legislative Instrument engages the right to self-determination, the rights to work and the rights in work; and the right to enjoy the benefit of scientific progress.
The Legislative Instrument supports the establishment of the SKA Project on Wajarri Yamaji land and the delivery of a package of Indigenous Land Use Agreement (ILUA) benefits. The benefits are monetary and non-monetary. Non-monetary benefits include extending an existing fibre link to provide internet access and support for a variety of Indigenous roles during SKA construction and operations.
Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to self-determination which provides that all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law.
The Instrument also supports the construction and operation of an SKA telescope in Australia, and the establishment of the Australian SKA Regional Centre (AusSRC) which will undertake processing of SKA telescope data. These activities will create high-value jobs and opportunities for Australian industry, including a variety of Indigenous roles. The AusSRC will be required to monitor and report on the number of new Indigenous employees engaged over the full period of the grant.
Article 6 of the ICESCR recognises the right to work, and provide that the steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Articles 1 and 2 of the International Labour Organization’s Convention concerning Employment Policy requires Members to promote full, productive and freely chosen employment, and to decide on and apply measures to obtain that object within the framework of a co-ordinated economic and social policy.
The SKA project will deliver world-leading radio telescopes. As one of the largest scientific endeavours in history, the SKA project brings together a wealth of the world’s finest scientists, engineers and policy makers.
Article 15 of the ICESCR recognises the right of everyone to enjoy the benefits of scientific progress and its applications, as well as the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
Conclusion
This Legislative Instrument is compatible with human rights as it has a positive effect on human rights.
The Hon Melissa Price MP
Minister for Science and Technology