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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Research, Development and Innovation
Bill 2017
A BILL FOR
An Act to attract, support and facilitate opportunities for research and
development and to foster innovation in order to benefit the State; and for
other purposes.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Objects and purposes
4Interpretation
Part 2—Research and development
declarations
5Research and development
declarations
6Application for research
and development declaration
7Further information
8Public sector agency to provide relevant
information
9Consultation
10Commencement and duration of research and
development declaration
11Variation or revocation of
research and development declaration
12Disallowance
Part 3—Reporting
13Reporting to Minister
14Reporting to
Parliament
Part 4—Miscellaneous
15Offence
16Validity of acts
17Liability provision
18Confidentiality of
commercial information
19Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Research, Development and Innovation
Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
The objects and purposes of this Act 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.
In this Act, unless the contrary intention appears—
commercial information means—
(a) information concerning the trade secrets of a person; or
(b) information (other than trade secrets) that has a commercial value to
a person; or
(c) any other information concerning the business, professional,
commercial or financial affairs of a person;
council has the same meaning as in the
Local
Government Act 1999
;
environment has the same meaning as in the
Environment
Protection Act 1993
;
public health has the same meaning as in the
South
Australian Public Health Act 2011
;
research and development declaration—see
section 5
.
Part 2—Research
and development declarations
5—Research
and development declarations
(1) Subject to this
Act, the Governor may, on the recommendation of the Minister and by notice in
the Gazette, make a declaration (a research and development
declaration) in respect of a specified project or activity.
(2) 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 and
subject to this section, 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.
(3) A condition or other requirement imposed under
subsection (2)(b)
may (without limitation)—
(a) include conditions or requirements applying in the place of an Act, a
provision of an Act, or a law that does not apply or is modified under
subsection (2)(a)
; and
(b) provide for the payment of costs relating to the research and
development declaration.
(4) The Governor must
not make a research and development declaration in respect of a project or
activity unless the Governor considers that the making of the
declaration—
(a) is appropriate having regard to—
(i) whether the project or activity is consistent with the objects and
purposes of this Act; and
(ii) whether the applicant and any related parties possess the relevant
skills, experience or capacity to give proper effect to the project or activity;
and
(iii) whether the
project or activity is, on balance, in the public interest; and
(iv) whether any risks identified in respect of the project or activity
can be appropriately eliminated or minimised; and
(v) whether there is a risk of loss, harm or other detriment to the
community if the project or activity does or does not occur; and
(b) will not give rise to any adverse effects to public health or the
environment.
(5) 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) A research and development declaration applies according to its terms
despite any Act or law to the contrary.
(7) For the avoidance of doubt, the power of the Governor to make a
research and development declaration is not affected by a provision of another
Act that provides for the disapplication or modification of a provision of an
Act or law (including by the granting of an exemption from an Act or
law).
6—Application
for research and development declaration
(1) An application for
a research and development declaration under
section 5
in respect of a project or activity is to be made to the Minister and
must—
(a) provide a
detailed description of the project or activity along with an explanation of how
the project or activity is appropriate having regard to the matters referred to
in
section 5(4)
; 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.
(2) An application under
subsection (1)
must—
(a) be in a form approved by the Minister; and
(b) be accompanied by the fee fixed by the Minister.
(3) A failure to comply with a requirement of this section will not
invalidate or otherwise affect a research and development declaration made by
the Governor under
section 5
.
(4) The Minister may, in relation to a specified project or activity,
indicate at any time (irrespective of whether or not an application has been
made under this section) that the Minister will not make a recommendation to the
Governor for the purposes of
section 5(1)
in respect of the project or activity.
(1) The Minister may
require an applicant under
section 6
to provide further information as the Minister reasonably requires to
determine whether or not to make a recommendation to the Governor for the
purposes of
section 5
.
(2) Without limiting
the operation of
subsection (1)
, an applicant must, if requested to do so by the Minister, provide the
Minister with a report from an independent expert relating to any matter
relevant to the application specified by the Minister.
(3) A request under
subsection (2)
may specify that the independent expert must hold such qualifications or
experience as are specified by the Minister.
8—Public
sector agency to provide relevant information
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 for the purposes of
section 5
.
(1) The Minister
must, before making a recommendation to the Governor for the purposes of
section 5(1)
in respect of a proposed research and development
declaration—
(a) consult (in accordance with any requirements of the regulations)
with—
(i) if the proposed research and development declaration relates to an Act
the administration of which is the responsibility of another Minister—that
other Minister; and
(ii) any council the Minister considers would be particularly affected by
the proposed research and development declaration such that the council should
be consulted; and
(b) have regard to, 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
subsection (2)
.
(2) The Minister
must, for the purposes of
subsection (1)(b)
—
(a) publish, as the
Minister sees fit, a proposed research and development declaration inviting
affected persons to comment within a period allowed by the Minister (which must
be a period of not less than 28 days from the date of the publication of the
notice under
paragraph (b)
); and
(b) notify the general
public, by notice in the Gazette, of the publication of the proposed research
and development declaration under
paragraph (a)
.
(3) The Minister may, as the Minister sees fit, have regard to any
comments received in respect of a proposed research and development declaration
from persons other than affected persons.
(4) This section is taken to be an exhaustive statement of the
requirements of procedural fairness in relation to the making of a research and
development declaration.
(5) In this section—
affected person, in relation to a proposed research and
development declaration, means a person whose legal rights and interests would
be directly affected by the making of the proposed declaration.
10—Commencement
and duration of research and development declaration
(1) Subject to this Act, 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.
(2) 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 if satisfied that special circumstances justify the extension in the
particular case.
(3) A research and development declaration may only be extended under
subsection (2)
—
(a) for a maximum additional period of 18 months; and
(b) once.
11—Variation
or revocation of research and development declaration
(1) The Governor may,
on the recommendation of the Minister and by notice published in the Gazette,
vary a research and development declaration.
(2) The Minister must, before making a recommendation for the purposes of
subsection (1)
, undertake any consultation required under
section 9
as if the proposed variation was a proposed research and development
declaration.
(3) The Governor may revoke a research and development declaration at any
time.
(1) If a research
and development declaration is made under
section 5
, or a variation to a research and development declaration is made under
section 11
, the Minister must cause a copy of the research and development
declaration or the variation (as the case requires) to be laid before both
Houses of Parliament.
(2) If either House
of Parliament passes a resolution disallowing a research and development
declaration or a variation of a research and development declaration laid before
it under
subsection (1)
, the declaration or the variation (as the case requires) will cease to
have effect.
(3) A resolution of a House of Parliament is not effective for the
purposes of
subsection (2)
unless the resolution is passed within 5 sitting days (which need not
fall within the same session of Parliament) after the day on which the
declaration or the variation was laid before the House under
subsection (1)
.
(4) Nothing is this section affects the validity of a research and
development declaration or a variation made to a research and development
declaration disallowed under this section before the passing of the disallowance
resolution.
(1) 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.
(2) The Minister may require a report under
subsection (1)
to be provided—
(a) on 1 or more specified occasions; or
(b) at periodic intervals as specified by the Minister.
(3) Nothing in this section affects the power to impose reporting
requirements as a condition of a research and development declaration under
section 5(2)(b)
.
(1) 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.
(2) A report prepared under
subsection (1)
in respect of a research and development declaration may include
recommendations as to law reform measures arising out of the operation or effect
of the research and development declaration and the undertaking of a project or
activity under the declaration.
(3) For the purposes of
preparing a report under
subsection (1)
in respect of a research and development declaration, 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.
(4) A report under this section must not contain a person's commercial
information of a confidential nature unless the Minister has first consulted
with the person about the inclusion of the information in the report.
(5) The Minister must
cause a report prepared under
subsection (1)
to be laid before both Houses of Parliament within 6 sitting days of the
completion of the report.
A person who fails to comply with a condition or requirement of a research
and development declaration commits an offence.
Maximum penalty:
In the case of a natural person—Imprisonment for
4 years.
In the case of a body corporate—$120 000.
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.
(1) 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 this Act with a view to exercising or performing a power or
function under this Act 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.
(2) 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).
(3) A limitation of liability in a research and development declaration
provided for under
subsection (2)
may—
(a) vary according to the circumstances to which it is expressed to apply;
and
(b) be subject to any conditions specified in the research and development
declaration,
and the details of such a limitation of liability must be clearly specified
in the declaration.
18—Confidentiality
of commercial information
(1) Subject to this
Act, a person engaged or formerly engaged in the administration, operation or
enforcement of this Act or a research and development declaration under this Act
must not disclose commercial information of another person obtained in the
course of performing functions or exercising powers under this Act or a research
and development declaration except—
(a) with the consent of the other person; or
(b) where the information is contained in a research and development
declaration or a report laid before both Houses of Parliament under
section 14(5)
or is otherwise publicly available; or
(c) as authorised by the Minister; or
(d) in connection with the administration, operation or enforcement of
this Act or a research and development declaration; or
(e) to an agency or instrumentality of this State, another State, a
Territory of the Commonwealth or the Commonwealth for the purposes of the proper
performance of its functions; or
(f) to a police officer or a member of the police force of this State,
another State, a Territory of the Commonwealth or the Commonwealth; or
(g) for the purposes of legal proceedings.
Maximum penalty: $20 000.
(2) Information that has been disclosed under
section 18(1)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $20 000.
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
(2) The regulations may—
(a) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(b) be of general or limited application; and
(c) provide that a matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister.