Industry Research and Development (Cyber Security Small Business Program) Instrument 2017 [F2017L00685] and Industry Research and Development (Onshore Gas Social and Economic Research Fund Program) Instrument 2017 [F2017L00752]-Advice only [2017] AUSStaCSDLM 255 (8 September 2017)

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Instrument	Industry Research and Development (Cyber Security Small Business Program) Instrument 2017 [F2017L00685] Industry Research and Development (Onshore Gas Social and Economic Research Fund Program) Instrument 2017 [F2017L00752]
Purpose	Prescribe the Cyber Security Small Business Program; and the the Onshore Gas Social and Economic Research Fund Program
Authorising legislation	Industry Research and Development Act 1986
Department	Industry, Innovation and Science
Disallowance	15 sitting days after tabling (tabled Senate 20 June 2017) Notice of motion to disallow currently must be given by 12 September 2017 15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)

Parliamentary scrutiny – ordinary annual services of the government

Scrutiny principle 23(3)(d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation).

Under subsection 33(3) of the Industry Research and Development Act 1986 which was inserted by the Industry Research and Development Amendment (Innovation and Science Australia) Act 2016, executive spending may be authorised by specifying schemes in instruments made under that Act.^[1] The money which funds these schemes is specified in an appropriation bill, but the details of the scheme may depend on the content of the relevant instruments. Once the details of the scheme are outlined in the instruments, questions may arise as to whether the funds allocated in the appropriation bill were inappropriately classified as ordinary annual services of the government.

Ordinary annual services should not include spending on new proposals because the Senate's constitutional right to amend proposed laws appropriating revenue or moneys for expenditure extends to all matters not involving the ordinary annual services of the government.^[2] In accordance with the committee's scrutiny principle 23(3)(d), the committee's scrutiny of instruments made under subsection 33(3) of the the Industry Research and Development Act 1986 therefore includes an assessment of whether measures may have been included in the appropriation bills as an 'ordinary annual service of the government', despite being spending on new policies.

The committee notes that these instruments seek to authorise the Commonwealth to spend money in relation to the Cyber Security Small Business Program ($12 million over four years from 2016-17) and the Onshore Gas Social and Economic Research Fund ($4 million over four years from 2016-17).

It appears to the committee that the above programs are new policies not previously authorised by special legislation; and that the initial appropriation in relation to these new policies may have been inappropriately classified as 'ordinary annual services' and therefore improperly included in Appropriation Bill (No. 3) 2016-2017, or Appropriation Bill (No. 1) 2017-18 (which are not subject to amendment by the Senate).

The committee draws the above to the attention of the minister, the Senate and the relevant Senate committees.

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[1] For more extensive comment on this issue, see Delegated legislation monitor 2 of 2017,

pp 19-21; and Senate Standing Committee for the Scrutiny of Bills, Ninth Report of 2016,

pp 571-574.

[2] In order to comply with the terms of a 2010 Senate resolution relating to the classification of appropriations for expenditure, new policies for which no money has been appropriated in previous years should be included in an appropriation bill that is not for the ordinary annual services of the government (and which is therefore subject to amendment by the Senate).

The complete resolution is contained in Journals of the Senate, No. 127—22 June 2010, pp 3642-3643. See also Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 2 of 2017, pp 1-5.