Research, Development and Innovation Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (23:32): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

South Australia, with its population, demographics, environmental, social and political conditions, lends itself as a good place to test and pioneer innovative research and development projects.

The nature of many research and development proposals means that there may be legislative or regulatory barriers that act as a disincentive to industry and entrepreneurs to pursue trialling them in South Australia.

The Research, Development and Innovation Bill aims to attract innovative research and development proposals to SA and establish this state as a global leader in research, development and innovation trials. It will position South Australia as the first choice for industries engaged in research, development and innovation.

The government has previously introduced similar legislation, specifically to facilitate on road automated vehicle trials. The Motor Vehicles (Trials of Automotive Technologies) Amendment Act 2016 commenced on 9 June 2016. Under that legislation, the Minister may publish a notice in the Gazette to authorise the undertaking of an automotive technology (generally referred to as 'driverless cars') trial, and may issue exemptions from the relevant provisions of the Motor Vehicles Act 1959 and any other laws for purposes related to authorised trials. It is noteworthy that the National Transport Commission has considered the South Australian legislation and suggested that it could be adopted as a model for other jurisdictions.

This Bill creates a legislative framework to facilitate innovative research and development trials beyond the driverless cars example. It will enable government to respond quickly and flexibly, and in appropriate circumstances to remove regulatory barriers in a manner that appropriately balances competing factors.

The Bill provides for a 'research and development declaration' to be made by the Governor, on the recommendation of a Minister. This declaration is a mechanism to temporarily suspend, modify or dis-apply laws that would otherwise prohibit the pursuit of an innovative research and development proposal.

A research and development application may, to the extent that the Governor considers it necessary for the purposes of the project or activity, provide that an Act, or provisions of an Act or other law, does not apply, or applies with specified modifications, in respect of the project or activity. The declaration may also impose conditions or other requirements that apply in respect of the project or activity.

The Governor must not make a research and development declaration unless satisfied that it is appropriate having regard to:

whether the project or activity is consistent with the objects and purposes of the Act;

whether the applicant possesses the relevant skills, experience or capacity to give proper effect to the project or activity;

whether the project or activity is on balance in the public interest; and

whether any risks identified in respect of the project or activity can be appropriately eliminated or minimised; and

whether there is a risk of loss, harm, or other detriment to the community if the project or activity does or does not occur.

Further, the Governor must not make a research and development declaration unless the Governor considers that doing so will not give rise to any adverse effects to public health or to the environment. Finally, a research and development declaration may not dis-apply or modify the application of the Aboriginal Heritage Act 1988.

These are important considerations which will ensure that a declaration is only made in appropriate circumstances.

The Bill requires the applicant for a declaration to provide a detailed description of the project or activity, and to set out how the disapplication or modification of an Act or law is reasonably necessary for the purposes of the project or activity. The applicant is further required to include an assessment of the potential risks involved in the project or activity, with recommendations as to how any such risks may be eliminated or minimised. The Minister may request further information from the applicant prior to determining whether to make a recommendation to the Governor, including requiring the applicant to provide a report from an independent expert on any matter relevant to the application. Of course, the Minister may also require a public sector agency to provide information to the Minister to assist with making the decision about whether to make a recommendation.

Before making a recommendation to the Governor to make a declaration, the Minister is required to consult with other Ministers if the proposed declaration relates to an Act the administration of which is the responsibility of that other Minister. The Minister is also required to consult with any council the Minister considers would be particularly affected by the proposed declaration. It is also a requirement for the Minister to publish a proposed research and development declaration inviting comment from affected persons.

These requirements will ensure that the Minister is able to take into account all relevant factors, both positive and negative, when deciding whether it is appropriate to recommend that a research and development declaration should be made.

A research and development declaration must be laid before both Houses of Parliament and is subject to disallowance by resolution passed within 5 sitting days after the day on which the declaration is laid before the House.

The operation of a research and development declaration is limited to an initial maximum period of 18 months. There is scope for a further 18 month extension in special circumstances.

The Minister may require reports on the project or activity and the operation of the research and development application. This will enable appropriate monitoring and assessment of the impact of the research and development activity.

There may be situations where recommendations as to law reform measures arise out of the operation or effect of the research and development declaration and the project or activity under the declaration. In these cases, the Bill provides for a Minister to prepare a report to be laid before both Houses of the Parliament on the operation and effect of the research and development declaration.

The Bill will positively impact the South Australian community by providing businesses and entrepreneurs with a pathway to test and pioneer innovative research and development projects or initiatives in South Australia. It will assist in attracting businesses, investment and people to the state. This will flow on to create employment and economic opportunities in South Australia, assist with transitioning the economy and cement South Australia as a global leader in innovation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause provides for the short title of the Bill.

2—Commencement

This clause provides for commencement on a day to be fixed by proclamation.

3—Objects and purposes

This clause provides the objects and purposes of the measure which are to—

(a) create and promote opportunities for research, development and innovation in this State by ensuring that the legal and regulatory environment in the State is responsive and adaptable to such opportunities; and

(b) create an innovative approach to the delivery of public sector and private sector services; and

(c) expand and grow existing industries in the State and attract new industries to the State to increase employment and economic opportunities for the State and South Australians; and

(d) position South Australia as the first choice for industries engaged in research, development and innovation in order to secure broad public benefit; and

(e) to ensure that the public interest is protected and served in the making of a research and development declaration.

4—Interpretation

This clause provides defined terms for the purposes of the measure.

Part 2—Research and development declarations

5—Research and development declarations

This clause provides for the making of research and development declarations by the Governor in respect of specified projects or activities. A research and development declaration may be made by the Governor on the recommendation of the Minister if the Governor considers that the making of the declaration is appropriate having regard to—

(a) whether the project or activity is consistent with the objects and purposes of the measure; and

(b) whether the applicant and any related parties possess the relevant skills, experience or capacity to give proper effect to the project or activity; and

(c) whether the project or activity is, on balance, in the public interest; and

(d) whether any risks identified in respect of the project or activity can be appropriately eliminated or minimised; and

(e) whether there is a risk of loss, harm or other detriment to the community if the project or activity does or does not occur.

The Governor must also consider that the making of the declaration will not give rise to any adverse effects to public health or the environment.

A research and development declaration in respect of a project or activity may—

(a) to the extent that the Governor considers necessary for the purposes of the project or activity, provide that an Act, specified provision of an Act, or any other law does not apply, or applies with specified modifications, in respect of the project or activity; and

(b) impose conditions or other requirements that apply in respect of the project or activity.

A research and development declaration may not disapply or modify the application of the Aboriginal Heritage Act 1988 or a provision of that Act.

6—Application for research and development declaration

This clause provides for applications for research and development declarations to be made to the Minister and such applications must—

(a) provide a detailed description of the relevant project or activity along with an explanation of how the project or activity is appropriate having regard to the matters referred to in clause 5 against which the Governor must assess the project or activity; and

(b) identify, so far as is reasonably practicable, any Act, any provisions of an Act, and any other law that operate to prevent or restrict the project or activity and how the disapplication or modification (subject to conditions or other requirements) of the identified Act, provision of an Act, or other law is reasonably necessary for the purposes of the project or activity; and

(c) include an assessment of potential risks involved in the project or activity with recommendations as to how any such risks may be eliminated or minimised; and

(d) include any other information required by the Minister.

7—Further information

This clause provides that the Minister may require an applicant for a research and development declaration to provide further information as the Minister reasonably requires to determine whether or not to make a recommendation to the Governor about making the declaration, such as a report from an independent expert relating to any matter relevant to the application specified by the Minister.

8—Public sector agency to provide relevant information

This clause provides that the Minister may require a public sector agency (within the meaning of the Public Sector Act 2009) to provide information to the Minister that the Minister reasonably requires in deciding whether or not to make a recommendation to the Governor about making a research and development declaration.

9—Consultation

This clause provides for consultation to be undertaken by the Minister in respect of a proposed research and development declaration. Before making a recommendation to the Governor in respect of a proposed research and development declaration, the Minister must consult with—

(a) any another Minister who is responsible for the administration of an Act to which the proposed research and development declaration relates; and

(b) any council the Minister considers would be particularly affected by the proposed research and development declaration such that they should be consulted,

and—

(c) take into account, as the Minister sees fit, comments received from affected persons in response to the publication of the proposed research and development declaration in accordance with the section.

In addition, the Minister must publish a proposed research and development declaration in accordance with the clause and take into account, as the Minister sees fit, comments received from affected persons in response to the publication and the Minister may also, as the Minister sees fit, take into account any comments received from any other persons.

10—Commencement and duration of research and development declaration

This clause provides that a research and development declaration—

(a) operates from the date of publication in the Gazette or such later date as specified in the declaration; and

(b) remains in force for 18 months from that date or such shorter period as specified in the declaration.

However, the Governor may, on the recommendation of the Minister and by notice published in the Gazette, extend the period for which a research and development declaration remains in force (for a maximum additional period of 18 months) if satisfied that special circumstances justify the extension in the particular case.

11—Variation or revocation of research and development declaration

This clause provides that the Governor may, on the recommendation of the Minister and by notice published in the Gazette, vary a research and development declaration. Before making a recommendation for such a variation the Minister must undertake any consultation required under clause 9 as if the proposed variation was a proposed research and development declaration.

This clause also provides that the Governor may revoke a research and development declaration at any time.

12—Disallowance

This clause provides for research and development declarations and variations to such declarations to be laid before both Houses of Parliament after which either House may pass a resolution disallowing the declaration or variation in which case the declaration or variation will cease to have effect. A resolution of a House of Parliament must be passed within 5 sitting days of the laying of the declaration or variation before the House.

Part 3—Reporting

13—Reporting to Minister

This clause provides that the Minister may, at any time during which a research and development declaration remains in force, require a person undertaking a project or activity under the declaration to provide to the Minister a report, containing the particulars required by the Minister, on the project or activity and the operation of the research and development declaration.

14—Reporting to Parliament

This clause provides that the Minister may, at any time, prepare a report on the operation and effect of the research and development declaration and a project or activity undertaken under the research and development declaration. For the purposes of preparing such a report, the Minister may require a person to provide the Minister with information relating to the research and development declaration and the project or activity undertaken under the research and development declaration. The Minister must cause a report prepared under this clause to be laid before both Houses of Parliament within 6 sitting days of the completion of the report.

The clause provides protections for commercial information in that a report under this section must not contain commercial information of a person unless the Minister has first consulted with the person about the inclusion of the information in the report.

Part 4—Miscellaneous

15—Offence

This clause provides that a person who fails to comply with a condition or requirement of a research and development declaration commits an offence. The maximum penalty for a natural person is imprisonment for 4 years and for a body corporate is $120,000.

16—Validity of acts

This clause provides that any act or omission undertaken or made, or purportedly undertaken or made, in good faith by a person or body under a research and development declaration is taken to have been lawfully undertaken or made and such an act or omission is, and remains, lawful and valid despite any Act or law to the contrary.

17—Liability provision

This clause provides that no act or omission undertaken or made, or purportedly undertaken or made, by the Governor, the Minister or any other person engaged in the administration of the measure with a view to exercising or performing a power or function under the measure gives rise to any liability (whether based on a statutory or common law duty to take care or otherwise) against the Governor, the Minister or the Crown.

This clause further provides that a research and development declaration may provide that an act or omission undertaken or made, or purportedly undertaken or made, in good faith by a specified person, or class of persons, under the research and development declaration gives rise to no liability or to limited liability (whether based on a statutory or common law duty to take care or otherwise) against the person or class of persons (as the case requires).

18—Confidentiality of commercial information

This clause provides for the protection of commercial information that is obtained in the course of performing functions or exercising powers under the measure or a research and development declaration.

19—Regulations

This clause provides that the Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, the measure.

Debate adjourned on motion of Hon. J.S.L. Dawkins.