Details of the Financial Framework (Supplementary Powers) Amendment (Industry, Science and Resources Measures No. 1) Regulations 2023

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Industry, Science and Resources
Measures No. 1) Regulations 2023.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after registration on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds a new table item to Part 4 of Schedule 1AB to establish legislative authority for government spending on an activity administered by the Department of Industry, Science and Resources (the department).

 

New table item 595 establishes legislative authority for government spending on the Protecting Australia's National Interest in Critical and Emerging Technologies program (the program), which aims to enhance Australia's ability to influence the development of international standards in critical and emerging technologies.

 

Standards set the requirements, and trajectory, for how technologies are created and used by industry to deliver products and services around the globe. Australia's objective is to be a world leader in the development of critical and emerging technologies, such as artificial intelligence, quantum and robotics. Australia's active participation in the development of standards that underpin these technologies is fundamental to achieving this vision.

 

The program provides Australian technical experts with skills and resources to support their engagement with the international standards development process. It will also improve the department's capacity to provide advice to the Australian Government, to enable effective responses to emerging developments in international standards development organisations (SDOs).

To implement the program, the department will harness the shared expertise of industry, government and research institutions to deliver a national approach to engaging in technology standards and policy setting processes.

 

Funding is provided for activities to support the protection of Australia's national interest in critical and emerging technology standards development, by ensuring Australia has high quality representation to standards bodies, and well-informed government policy in relation to technology standards. The program will deliver national interest benefits, through improved national security and economic outcomes through the following three elements:

 

International Critical Technology Standards Partnerships Plan (the Plan)

 

The Plan will build and strengthen partnerships with our international counterparts so that Australia can engage more effectively in SDOs. The Plan will deepen Australia's existing partnerships, such as with the Quadrilateral Security Dialogue nations (the Quad), Five Eyes and the United Kingdom, as well as broadening engagement to a wider range of partners. These partnerships will support Australia's efforts to identify areas of strategic importance where proactive action may be necessary and build a coalition of countries with whom we can act.

 

The Plan will be supported by:

*         procurement of technical advice about particular technologies or standards of interest that will support the Government's work of uplifting Australia's engagement with SDOs and our international partners; and

*         payments to cover travel and workshop-related expenses to facilitate the attendance of government employees at key regional and international meetings.

 

Early Warning System (EWS)

 

The EWS will assist the Government to identify and track relevant developments in SDOs. Delivered by departmental staffing resources, the EWS will consolidate data published by a range of SDOs to provide government agencies with information on critical and emerging standards under development. It will provide the Government with credible, timely, and comprehensive advice that will enable Australia to proactively seize opportunities to shape, contribute to, or counter standards proposals of interest or concern.

 

Business Standards Development Capability (BSDC) Program

 

The BSDC Program will enhance the ability of peak bodies and technical experts to participate in the development of international critical and emerging technology standards. The BSDC Program will include:

*         procurement to develop and operate training for technical experts to improve their knowledge of key issues relating to the standard development process, including but not limited to, the geopolitical environment and/or the operation of SDOs;

*         procurement to deliver negotiation and/or diplomacy skills training for technical experts, including from industry, to improve their ability to achieve their objectives in international standards development forums; and

*         sponsorship and funding of security clearances for selected technical experts through the Australian Government Security Vetting Agency to ensure that participants in priority technical standards committees can be briefed securely by Australian Government officials.

 

The department will manage all contracts and agreements that form part of the program. Spending decisions will be made in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Procurement Rules (CPRs) and the department's Accountable Authority Instructions.

 

Final spending decisions will be made by the Secretary of the department or an appropriate delegate. The delegate will have appropriate skills, qualification, and experience, with a strong understanding of the objectives of the program and the relevant legislation. The department's Accountable Authority Financial Delegation 2022 (or any subsequent updates) will determine the appropriate delegate for the financial commitment or payment to be made. Nominated Senior Executive Service officers will consult with the Department of Foreign Affairs and Trade and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts in making their decisions as appropriate.

 

The department will provide an opportunity for tenderers and suppliers to make complaints if they wish, and to receive feedback. These complaints and inquiries can be made at any time during the procurement process, and will be handled in accordance with probity requirements. Information about the tender and the resultant contracts will be made available on AusTender (www.tenders.gov.au). Procurement decisions will be based on value for money, including capability and capacity to deliver, and price and risk considerations. Further information about the program will be made available on the department's website.

 

Funding decisions made in connection with the program are not considered suitable for independent merits review, as they are decisions relating to the allocation of a finite resource to service providers. There would be delays with channelling funds to service providers and subsequent delays with meeting commitments under procurement contracts if funding decisions were subject to merits review. In addition, any funding that has already been paid or allocated to the service provider would be affected if the original decision was overturned. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The development of the program has been informed by significant and comprehensive consultation through longstanding relationships with the Department of Foreign Affairs and Trade, Department of Infrastructure, Transport, Regional Development, Communications and the Arts, the Department of Home Affairs, the Australian Signals Directorate and the Department of the Prime Minister and Cabinet. These agencies were supportive of the program given the agreed importance of critical and emerging technology standards for Australia's economic prosperity, national security, and the competitiveness of our future industries.

 

The development of the program has been undertaken in concert with international developments. This includes coordinated policy responses through the Quad to strengthen cooperation on international technology standards development. The department also works with other Australian Government agencies to progress collaboration on critical technology standards.

 

Ongoing stakeholder engagement will occur during the implementation of the program. Stakeholders include domestic standards and accreditation bodies such as Standards Australia, relevant industry peak bodies and individual technical experts who contribute to international standards development.

 

Funding for the program was included in the 2022-23 March Budget under the measure 'Digital Economy Strategy' for a period of four years commencing in 2022-23. Details are set out in Budget 2022-23, Budget Measures, Budget Paper No. 2 2022-23 at pages 157 and 158. Funding for this element is not for publication due to commercial-in-confidence sensitivities. It is the intent of the Government to inform the Parliament of the funding amount expected to be expended once contracts are awarded.

 

Funding for this item comes from Program 1.2: Growing innovative and competitive businesses, industries, and regions, which is part of Outcome 1. Details are set out in Portfolio Budget Statements 2022-23, Budget Related Paper No. 1.11, Industry, Science and Resources Portfolio at page 40. 

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the external affairs power (section 51(xxix)) and

*         the trade and commerce power (section 51(i)).

 

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 or things outside the geographical limits of Australia and matters concerning Australia's relations with other nations.

 

This program will support activities outside Australia associated with the development of international technology standards, including through bilateral, minilateral and multilateral engagement with foreign countries. The program will develop Australian industry's capability to contribute to the development of international technology standards in a way that is consistent with Australia's interests. These increased industry capabilities will allow improved representation to international forums where technology standards are developed and agreed, such as the International Organization for Standardization, International Telecommunication Union and International Electrotechnical Commission.

 

Trade and commerce power

 

Section 51(i) of the Constitution empowers the Parliament to make laws with respect to 'trade and commerce with other countries, and among the states'.

 

Ninety per cent of global trade relies on standards and Australia is a net importer of technology products and services. The measures to be undertaken under the program to protect Australia's competitiveness in international markets and ensure that goods can be safely imported into Australia without restrictive standards, support international and interstate trade and commerce.

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Industry, Science and Resources Measures No. 1) Regulations 2023

 

This disallowable 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

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Industry, Science and Resources Measures No. 1) Regulations 2023 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on the Protecting Australia's National Interest in Critical and Emerging Technologies program, (the program). The program will be administered by the Department of Industry, Science and Resources.

 

Funding is provided for activities to support the protection of Australia's national interest in critical and emerging technology standards development, by ensuring Australia has high quality representation to standards bodies, and well-informed government policy in relation to technology standards. The program will deliver national interest benefits, through improved national security and economic outcomes.

 

With the exception of ongoing costs to support staffing for a critical and emerging standards coordination capability, funding for the program will run over four years from 2022-23. This includes the following types of spending:

*         procurement of technical advice about particular technologies or standards of interest that will support the Government's work of uplifting Australia's engagement with standards development organisations (SDOs) and our international partners;

*         payments to cover travel and workshop-related expenses to facilitate the attendance of government employees at key regional and international meetings;

*         procurement to develop and operate training for technical experts to improve their knowledge of key issues relating to the standards setting process including but not limited to the geopolitical environment and/or operation of SDOs;

*         procurement to deliver negotiation and/or diplomacy skills training for technical experts, including from industry, to improve their ability to achieve their objectives in international standards development forums; and

*         sponsorship and funding of security clearances for select technical experts through the Australian Government Security Vetting Agency to ensure Australian participants in priority technical standards committees can be briefed securely by Australian Government officials.

 

Human rights implications

 

This disallowable legislative instrument engages the following rights:

*         the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), read with Article 2;

*         the right to enjoy the benefits of scientific progress - Article 15 of the ICESCR.

Right to work

 

Article 2 of the ICESCR requires that each State Party to the Covenant undertakes to take steps to the maximum of its available resources, especially economic and technical, to realise the rights recognised in the Covenant, particularly through legislative measures. Article 6 of the ICESCR recognises the right to work and provides that the States Parties will take appropriate steps to achieve the realisation of the right to work, including through technical and vocational training.

 

The program engages this right by seeking to improve Australia's ability to shape international technology standards in line with Australia's economic interests.

 

Right to enjoy the benefits of scientific progress

 

Article 15 of the ICESCR requires that each State Party to the Covenant recognise the right of everyone to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the protection of the moral and material interests of individuals resulting from any scientific, literary or artistic production. Particularly, Article 15 requires each State Party to the Covenant to recognise the benefits from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

 

The program engages this right by seeking to uplift Australia's capacity to engage with the development of international standards for critical and emerging technologies. The program promotes government and private sector co-operation domestically in order to contribute to international standards development. The activities in the program support Articles 2, 6, and 15 of the ICESCR and more broadly are compatible with core international human rights treaties that Australia is party to.

 

Conclusion

 

This disallowable legislative instrument is compatible with human rights because it promotes the protection of human rights.

 

 

 

Senator the Hon Katy Gallagher

Minister for Finance