House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)

Notes on Clauses

Preliminary

Clause 1: Short title

1. This provision specifies the short title of the Act for this Bill as the Higher Education Support Amendment (Australia's Economic Accelerator) Act 2022, which is how it is to be cited.

Clause 2: Commencement

2. The table in this clause sets out the commencement date for the provisions in the Bill once it is enacted. The whole of the Act will commence on the day after the Act receives the Royal Assent.

Clause 3: Schedules

3. This clause gives effect to the provisions in Schedule 1 to the Bill.

Schedule 1 - Amendments

Higher Education Support Act 2003

4. Schedule 1 to the Bill amends the Higher Education Support Act 2003 (HESA) to allow the Minister to make grants under Part 2-3 of HESA to:

a.

support arrangements to increase industry-led postgraduate research, by supporting postgraduate research degrees held at Australian universities in collaboration with industry organisations; and

b.

assist higher education providers to undertake programs of research (the Australia's Economic Accelerator program) which:

i.

progress the development of technologies and services to a state of commercial investor readiness; and

ii.

are in sectors aligned with areas of national priority.

5. The Bill also establishes a new governance framework to support the new grants to assist higher education providers to undertake the Australia's Economic Accelerator program. The Australia's Economic Accelerator program will aim to progress the development of technologies and services to a state of commercial investor readiness and are in sectors aligned with national priority areas. The governance framework will include the Australia's Economic Accelerator Advisory Board (AEA Advisory Board) appointed by the Minister and priority managers who will be engaged by the Secretary to support the work of the AEA Advisory Board. The AEA Advisory Board will be responsible for advising the Minister in relation to the Australia's Economic Accelerator program, including by providing advice on the objectives, conditions of eligibility and conditions of grants. The AEA Advisory Board will also oversee the priority managers and advise the Minister on the commercialisation of research, including advising the Minister through a research commercialisation strategy.

6. The Bill also establishes new information management provisions to provide that an officer who discloses, copies or records information obtained or created by the officer for the purposes of the Australia's Economic Accelerator program, other than in the course of official employment, commits an offence if the information is personal information, or the officer's actions are likely to cause competitive detriment to a person or found an action for breach of confidence.

Items 1 and 2: Subsection 41-10(1) (after table item 11); Subsection 41-10(1) (at the end of the table)

7. Section 41-10 of HESA deals with eligibility for grants under Part 2-3 of HESA. Specifically, the table in subsection 41-10(1) specifies the purposes for which grants under Part 2-3 are payable and eligibility for those grants.

8. Items 1 and 2 of Schedule 1 to the Bill insert new table items 11A and 14, respectively:

a.

in accordance with table item 11A, Table A providers, Table B providers and bodies corporate that are specified in the Other Grant Guidelines (currently the Other Grants Guidelines (Research) 2017) for the purposes of this item will be eligible for grants to support arrangements to increase industry-led study and postgraduate research by supporting postgraduate research degrees held at Australian universities in collaboration with industry organisations;

b.

in accordance with table item 14, Table A providers, Table B providers and bodies corporate that are specified in the Other Grants Guidelines for the purposes of this item will be eligible for grants to assist higher education providers to undertake programs of research, in areas of national priority (these areas are to be determined by Government and communicated to the AEA Board and reflected in their research commercialisation strategy and annual investment plan), that progress development of technologies and services to a state of commercial investor readiness.

Item 3: At the end of Part 2-3

9. Item 3 inserts a new Division 42 in Part 2-3, which deals with Australia's Economic Accelerator.

Subdivision 42-A-Research commercialisation strategy and investment plan Section 42-1 Research commercialisation strategy

10. New section 42-1 of HESA in new Division 42 sets out a requirement that the AEA Advisory Board must make a research commercialisation strategy and establishes the requirements surrounding that strategy, such as: when the strategy has to be determined; the period during which it will be in force (5 years); the AEA Advisory Board's provision of the strategy to the Minister; and the Minister's provision of the strategy to each House of the Parliament.

11. Proposed new subsection 42-1(6) provides that the research commercialisation strategy is not a legislative instrument. As a statement of strategy, the research commercialisation strategy will not determine or alter the content of the law and is intended to be administrative in nature. As such, subsection 42-1(6) is declaratory of the law and is not intended to prescribe a substantive exemption from the requirements of the Legislation Act 2003.

12. The research commercialisation strategy provides the vision, aims and objectives of the Australia's Economic Accelerator program, and provides the AEA Advisory Board's plan to drive innovation in the national priority areas. The strategy allows for the AEA Advisory Board to identify new and emerging opportunities in the relevant priority areas to make recommendations to government on the program's direction.

Section 42-5 Investment plan

13. New section 42-5 in new Division 42 establishes a requirement for the AEA Advisory Board to formulate written policies in relation to the program for each year. Those policies must deal with areas of national priority, the total amount of funding available and any other matters the AEA Advisory Board considers appropriate to deal with to meet the program's objectives. The AEA Advisory Board must ensure that the policies are consistent with the research commercialisation strategy.

14. Subsection 42-5(3) provides that a member of the AEA Advisory Board, or a person performing functions or exercising powers under the Australia's Economic Accelerator program must not act inconsistently with these policies.

15. The investment plan will set out specific and detailed advice on the investment opportunities within the national priority areas for a given year. The annual plan allows for the Australia's Economic Accelerator program to respond to developments in the research and industry sectors. The investment plan also provides for transparency over funding decisions and can set out directions for the Australia's Economic Accelerator program.

Subdivision 42-B-Advisory Board Section 42-10 Australia's Economic Accelerator Advisory Board

16. Section 42-10 establishes the AEA Advisory Board. The AEA Advisory Board will be an advisory panel and will not be a Commonwealth entity in its own right.

Section 42-15 Functions of the AEA Advisory Board

17. Section 42-15 sets out the functions of the AEA Advisory Board and provides that the Board has the functions of advising the Minister in relation to the translation and commercialisation of university research, advising the Minister in relation to the Australia's Economic Accelerator program including in relation to the objectives, conditions of eligibility and conditions of grant, overseeing the performance of functions by priority managers, any other functions conferred on the Board by the Act or by the Other Grants Guidelines, and that the Board has the function of doing anything incidental or conducive to the performance of the other listed functions.

18. It is expected that the Board will meet up to eight times a year to perform its functions, and the Board will provide advice to the Minister through the research commercialisation strategy and through annual reporting requirements.

Section 42-20 Annual report

19. Section 42-20 provides that the AEA Advisory Board must, as soon as practicable after the end of each financial year, prepare and give the Minister, for presentation to the Parliament, a report of the AEA Advisory Board's operations during the year.

20. The report must include details of the achievements and outcomes in the program and the barriers to translating and commercialising university research and the proposed ways of addressing them.

21. Note that section 34C of the Acts Interpretation Act 1901 also specifies requirements in relation to periodic reports such as the AEA Advisory Board's report.

Section 42-25 Membership of the AEA Advisory Board

22. Section 42-25 provides that the AEA Advisory Board consists of the Chair, the Deputy Chair and 4 to 6 other members.

Section 42-30 Appointment of members of the AEA Advisory Board

23. Section 42-30 provides for the appointment of the members of the AEA Advisory Board. It provides that members of the AEA Advisory Board are appointed on a part-time basis by the Minister by written instrument, that the member holds office for the period specified in the instrument of appointment but that period must not exceed 5 years, and that a member cannot be appointed for more than 3 consecutive periods.

24. It also provides that the Minister must appoint one member to be the Chair and another member to be a Deputy Chair. The Minister must also ensure that the members collectively possess experience and knowledge in research and its translation and commercialisation and represent government, industry, business and research sectors.

Section 42-35 Acting AEA Advisory Board members

25. Section 42-35 provides for the acting arrangements for AEA Advisory Board members.

26. Subsection 42-35(1) provides that the Deputy Chair of the AEA Advisory Board is to act as the Chair of the AEA Advisory Board during a vacancy in the office of Chair and during any or all periods where the Chair is absent from duty or unable to perform the duties of the office.

27. Subsection 42-35(2) provides that the Minister may, by written instrument, appoint a member to act as the Deputy Chair of the AEA Advisory Board during a vacancy in the office of Deputy Chair or during any or all periods when the Deputy Chair is acting as the Chair, absent from duty or unable to perform the duties of the office.

28. Subsection 42-35(3) provides that the Minister may, by written instrument, appoint a person to act as a member of the AEA Advisory Board during a vacancy in the office of a member or during any or all periods when a member is acting as the Deputy Chair, absent for duty or unable to perform the duties of the office.

29. Subsection 42-35(4) provides that the requirement that the Minister ensure that the members collectively possess experience and knowledge in research and its translation and commercialisation, and represent government, industry, business and research sectors in subsection 42-30(5) also applies to acting appointments.

30. Note that provisions in Part 7 of the Acts Interpretation Act 1901, including section 33A, are also applicable to acting in offices or positions.

Section 42-40 Remuneration and allowances

31. Section 42-40 provides for the remuneration and allowances for members of the AEA Advisory Board.

32. Subsection 42-40(1) provides that a member of the AEA Advisory Board is to be paid the remuneration that is determined by the Remuneration Tribunal or, if no determination is in operation, the member is to be paid the remuneration prescribed by the rules made under subsection 42-40(4).

33. Subsection 42-40(2) provides that a member of the AEA Advisory Board is to be paid the allowances prescribed by the rules made under subsection 42-40(4).

34. Subsection 42-40(3) clarifies, for the avoidance of doubt, that the arrangements for the remuneration and allowances of AEA Advisory Board members set out in this section apply subject to any relevant provisions in the Remuneration Tribunal Act 1973 (which sets out a regime for the determination of remuneration and allowances to be set by the Remuneration Tribunal).

35. Subsection 42-40(4) provides that the Minister may, by legislative instrument, make rules prescribing matters for the purposes of this section.

Section 42-45 Leave of absence

36. Section 42-45 provides that the Minister may grant leave of absence to a member of the AEA Advisory Board on the terms and conditions determined by the Minister. A determination under this section is not a legislative instrument.

Section 42-50 Disclosure of interests to the Minister

37. Section 42-50 provides that a member of the AEA Advisory Board must give written notice to the Minister of any direct or indirect pecuniary interest that the member has or acquires that conflicts or could conflict with the proper performance of the member's functions.

Section 42-55 Disclosure of interests to the AEA Advisory Board

38. Section 42-55 deals with a member's disclosure of interests to the AEA Advisory Board.

39. Subsection 42-55(1) provides that a member of the AEA Advisory Board who has an interest in relation to a decision by the AEA Advisory Board to recommend, or not recommend, an approval of a grant under the AEA program, or an interest in another matter being considered or about to be considered by the AEA Advisory Board, must disclose the nature of the interest to a meeting of the AEA Advisory Board.

40. Subsections 42-55(2) and (3) provide that the disclosure must be made as soon as possible after the relevant facts have come to the member's knowledge and the disclosure must be recorded in the minutes of the meeting of the AEA Advisory Board.

41. Subsection 42-55(4) provides that the member must not be present during any deliberation by the AEA Advisory Board, and must not take part in any decision by the AEA Advisory Board with respect to the matter, unless otherwise determined by the AEA Advisory Board.

42. Subsection 42-55(5) provides that for the purposes of making a determination that a member may be present in deliberation by the AEA Advisory Board in relation to a matter in which the member has an interest, or a determination that a member can take part in a decision of the AEA Advisory Board in relation to such a matter, the member must not be present during the deliberation of the AEA Advisory Board for the purpose of making the determination, and must not take part in making the determination.

43. Subsection 42-55(6) provides that a determination made under subsection (4) must be recorded in the minutes of the meeting of the AEA Advisory Board.

Section 42-60 Resignation

44. Section 42-60 provides that a member of the AEA Advisory Board may resign their appointment by giving the Minister a written resignation and the resignation takes effect on the day it is received by the Minister, or on a later day if a later day is specified in the resignation.

Section 42-65 Termination

45. Section 42-65 provides that the Minister may terminate the appointment of a member of the AEA Advisory Board for misbehaviour, or if any of the following apply:

a.

the member is unable to perform the duties of the office because of physical or mental incapacity;

b.

the member becomes bankrupt, or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, or compounds with the member's creditors, or makes an assignment of the member's remuneration for the benefit of the member's creditors;

c.

the member is absent, except on leave of absence, from 3 consecutive meetings of the AEA Advisory Board; or

d.

the member fails, without reasonable excuse, to comply with the requirements to disclose interests set out in sections 42-50 or 42-55.

Section 42-70 Other terms and conditions

46. Section 42-70 provides that a member of the AEA Advisory Board holds office on the terms and conditions (if any), in relation to matters not covered by the Act, that are determined in writing by the Minister.

47. A determination in writing under section 42-70 is not a legislative instrument.

Subdivision 42-C-Priority managers Section 42-75 Priority managers

48. Subsection 42-75(1) provides that the Secretary may, on behalf of the Commonwealth, engage persons to be known as priority managers to perform any functions conferred by the Other Grants Guidelines on priority managers in relation to the Australia's Economic Accelerator program, and to provide technical and specialist advisory services to assist the AEA Advisory Board in performing any functions conferred by the Guidelines on the Board.

49. Subsection 42-75(2) provides that priority managers are to be engaged on the terms and conditions that the Secretary determines.

50. Priority managers will be engaged to manage a particular national priority area. They will be expected to have a suitable level of expertise in that priority area, as well as the appropriate qualifications or experience to perform the functions and provide the services outlined in subsection 42-75(1).

Item 4: At the end of subsection 179-5

51. Section 179-5 defines the meaning of 'personal information' for the purposes of HESA.

52. Item 4 excludes Australia's Economic Accelerator program information from the definition of personal information for that purpose.

53. This amendment is made to reflect that while Australia's Economic Accelerator program information may be 'personal information' for the purposes of the Privacy Act 1988, it is also subject to new secrecy provisions (in new Division 181, as distinct from the current secrecy provisions that apply under HESA). This amendment simply ensures that the new kind of information is subject to the new secrecy provisions, not the current provisions.

54. A note in the provision refers the reader to Division 181 for Australia's Economic Accelerator program information.

Items 5 and 6: Section 180-5

55. Section 180-5 defines the meaning of 'Higher Education Support Act information' for the purposes of the Act.

56. Items 5 and 6 split the definition of 'Higher Education Support Act information' into two subsections and provides that Australia's Economic Accelerator program information is not included in the definition of 'Higher Education Support Act information'.

57. A note in the provision refers the reader to Division 181 for Australia's Economic Accelerator program information.

Item 7: After Division 180

58. Item 7 inserts a new Division 181 into HESA dealing with the protection, disclosure and use of Australia's Economic Accelerator program information.

Section 181-1 What this Division is about

59. New section 181-1 contains an outline of new Division 181.

60. Section 181-1 provides that an officer who discloses, copies or records information obtained or created by the officer for the purposes of the Australia's Economic Accelerator program, other than in the course of official employment, commits an offence if the information is personal information or if the officer's actions are likely to cause competitive detriment to a person, or found an action for breach of confidence.

61. Section 181-1 provides that the officer will commit an offence unless an exception in this Division applies.

Section 181-5 Object of this Division

62. This section provides that the object of Division 181 is to give recipients and potential recipients of grants under the Australia's Economic Accelerator program, and their industry partners, confidence that personal information and other sensitive information provided in relation to the program will be dealt with appropriately.

Section 181-10 Meaning of Australia's Economic Accelerator program information

63. New section 181-10 sets out the meaning of the term 'Australia's Economic Accelerator program information', and provides that 'Australia's Economic Accelerator program information' is any information that was obtained or created by an officer for the purposes of the Australia's Economic Accelerator program.

Section 181-15 Use of Australia's Economic Accelerator program information

64. New section 181-15 deals with the use of Australia's Economic Accelerator program information, with subsection 181-15(1) establishing an offence for the unauthorised use or disclosure of such information and subsections 181-15(2)-(4) setting out exceptions to the offence.

65. Under subsection 181-15(1), an officer (which is a term defined in section 179-15 of HESA to include Commonwealth officers and officers of higher education providers) commits an offence if:

a.

the officer either discloses or makes a copy or other record of Australia's Economic Accelerator program information; and

b.

the information is Australia's Economic Accelerator program information that was obtained or created by the officer in the course of the officer's official employment; and

c.

the disclosure did not occur, or the copy or record was not made, in the course of that official employment; and

d.

any of the following circumstances exist:

i.

the information is personal information within the meaning of the Privacy Act 1988;

ii.

the disclosure, or the making of the copy or record causes or is likely to cause competitive detriment to a person; or

iii.

the disclosure, or the making of the copy or record, founds or is likely to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.

66. The penalty for this offence is imprisonment for up to two years. This is consistent with penalties for similar offences in Divisions 179 and 180 of HESA. It is intended to act as the strongest possible deterrent to an officer's unlawful use and disclosure of Australia's Economic Accelerator program information, as it is important that industry partners and recipients of grants are assured that their information will be dealt with appropriately to give them confidence to participate in the program.

67. The offence reflects that the protection of Australia's Economic Accelerator program information is vital to encouraging industry participation in the program, and assuring participants in the program that their intellectual property rights and commercially sensitive information will not be at risk when participating in the program.

68. Subsections 181-15(2)-(4) provide that the offence in subsection 181-15(1) does not apply if:

a.

the person to whom the information relates has consented to the disclosure, or the making of the copy or record;

b.

the disclosure, or making of the copy or record, is authorised by Division 181;

c.

the disclosure, or the making of the copy or record, is required by a law of the Commonwealth.

69. The Notes under subsection 181-15(2)-(4) explain that a defendant bears the evidential burden in relation to the matter in those provisions, in accordance with subsection 13.3(3) of the Criminal Code.

Section 181-20 Disclosure of Australia's Economic Accelerator program information to Minister and staff

70. Section 181-20 authorises a Commonwealth officer to disclose Australia's Economic Accelerator program information to:

a.

the Minister; or

b.

a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984 as a member of staff of the Minister.

71. The authorisation in section 181-20 is intended to allow the Minister and their staff to be informed about the Australia's Economic Accelerator program.

72. Where this information is 'personal information' under the Privacy Act 1988 this provision will provide authorisation under law under Australian Privacy Principle 6 (which otherwise restricts the disclosure and use of personal information).

Section 181-25 Disclosure of Australia's Economic Accelerator program information by Minister

73. Subsection 181-25(1) provides that the Minister may make Australia's Economic Accelerator program information publicly available, if the information relates to programs of research in respect of which grants have been approved for the purposes of item 31A of the table in subsection 41-10(1), and the information is the name of a researcher, a description of the field of research, the amount of a grant, or other information of a general nature.

74. Subsection 181-25(2) provides that, despite subsection (1), the Minister must not disclose the information if a person demonstrates to the Minister that the release of the information would cause competitive detriment to the person, the information is not in the public domain, the information is not required to be disclosed under a law of the Commonwealth, State or Territory and the information is not readily discoverable.

75. This permitted disclosure of Australia's Economic Accelerator program information is appropriate as announcing successful grant recipients is in the interests of transparency and accountability for public funds. Persons who might be affected will be made aware of the Minister's plans to make information available when they are notified of the success of their grant applications.

Item 8: Section 206-1 (after table item 1A)

76. Item 8 inserts a new item 1AAA in the table in section 206-1. The effect of this amendment is that a decision under section 41-20 not to approve a grant for the purposes specified in item 14 of the table in subsection 41-10(1) is a 'reviewable decision' under HESA and the Minister is specified as the 'decision maker' for the purposes of Division 206. As a result, such a decision can be reconsidered in accordance with Division 209 on internal review and reviewed by the Administrative Appeal Tribunal in accordance with Division 212, following internal review.

Items 9 and 10: Section 238-12; At the end of section 238-12

77. Section 238-12 establishes the appropriation for HESA.

78. Item 9 splits section 238-12 into two subsections, with subsection (1) providing that amounts payable by the Commonwealth under HESA are payable out of the Consolidated Revenue Fund, which is appropriated accordingly, and subsection (2) providing that subsection (1) does not apply in relation to amounts payable in respect of members of the AEA Advisory Board (see Subdivision 42-B) or priority managers under section 42-75.

Item 11: Subclause 1(1) of Schedule 1

79. Item 9 inserts three new definitions in subclause 1(1) of Schedule 1 as follows:

a.

'AEA Advisory Board' has the same meaning given by section 42-10;

b.

'Australia's Economic Accelerator program' means a program specified in the Other Grants Guidelines under which grants for purposes specified in item 14 of the table in subsection 41-10(1) are to be paid;

c.

'Australia Economic Accelerator program information' has the meaning given by section 181-10 (as described above).