Commercialising Emerging Technologies (COMET) Program Directions No. 1 of 2006

These Directions, titled Commercialising Emerging Technologies (COMET) Program Directions No 1 of 2006, set out administrative and procedural instructions from the Minister for Industry, Tourism and Resources to the Industry Research and Development Board, under subsections 18A(1), 19(1) and 20(1) of the Industry Research and Development Act 1986 (preamble). They replace Directions No. 1 of 2004 and preserve existing policies and guidelines issued under the 2004 Directions until those are expressly replaced following commencement (preamble).

Mechanically the instrument does the following:

• Confers on the Board an additional, explicit function, that is the provision of technical assessment and merit ranking of eligible grant applications under the COMET Program (clause 3(a), clause 6(a), clause 8). The Board is to assess each eligible application on its merits using the Merit Criteria listed in clause 9, and to provide a merit ranking to the Program Delegate (clause 6(a), clause 8).

• Prescribes an assessment procedure and cadence. The Board must consider eligible applications at least every 60 days (clause 6(b)). The Board may refuse to provide a merit ranking where it is not satisfied with the level of merit of an eligible application in relation to one or more of the Merit Criteria (clause 7).

• Defines key actors and administrative roles. The Directions specify and define the Program Delegate, Business Advisers, COMET National Manager, Service Providers, recipients and applicants, and explain the Assistance Plan and eligible activities that funding may be used for (clause 4 and the defined terms listed under clause 4(a)).

• Leaves certain decision steps and gatekeeping with the Program Delegate. An application must include a National Manager recommendation and the Program Delegate must determine it eligible before the Board will admit it for technical assessment and merit ranking (definition of eligible application in clause 4(a)). The Program Delegate may also request ad hoc technical assessments from the Board in respect of matters arising from an Assistance Plan (clause 10).

• Establishes the scope for program evaluation. The Board may advise the Minister on non-financial administration matters and may collect and analyse program performance data, and is to cooperate with any independent evaluation of the program (clauses 11 and 12).

The Directions set their commencement conditionally: they take effect only once registered on the Federal Registrar of Legislative Instruments and published in the Gazette (clause 2). They do not themselves create funding entitlements beyond providing direction to the Board and describing parts of the administrative architecture for awarding and managing COMET grants. The instrument contains no express penalty, sanction, or enforcement provisions; its primary effect is to allocate assessment and advisory responsibilities and to set procedural rules for the Board and related actors.

The Directions define a compact set of operational concepts that structure who does what and which activities can be funded.

• Eligible application. An eligible application is an application for grant funding under the COMET Program that includes a National Manager recommendation and that the Program Delegate has determined to be eligible to be admitted for technical assessment and merit ranking by the Board (clause 4(a)). This definition makes two administrative gatekeeping steps explicit: a National Manager recommendation and a Program Delegate eligibility determination.

• Assistance Plan. An Assistance Plan is the tailored package of support for a recipient, designed to increase commercialisation of the recipient’s innovation (clause 4(a)). Assistance Plans are implemented through third-party service providers and are developed in consultation with the Business Adviser (clause 4(a) eligible activities summary).

• Eligible activities. The Directions enumerate the activities that may be part of an Assistance Plan. These include strategic and business planning, market research, management development such as approved management skills courses, intellectual property strategies, engagement of non-executive directors or mentors, proving technology, completing working prototypes, market validity work to build a credible business proposition, and a limited travel expense component for applicants located more than 200 kilometres from Sydney, Melbourne, Brisbane, Adelaide or Perth (clause 4(a) eligible activities list). The travel component is capped at 5 per cent of the grant amount and at a maximum of $3,200 (clause 4(a)).

• Business Advisers and COMET National Manager. Business Advisers are private sector consultants whose role includes assisting with applications, making assessments of applications, advising and assisting recipients through the commercialisation process, and undertaking other activities specified in an operational plan agreed with the Department (clause 4(a)). The COMET National Manager oversees the delivery of COMET by the Business Adviser network, assists with technical assessment of applications, and carries out activities under any operational plan agreed with the Department (clause 4(a)).

• Program Delegate. The Program Delegate is an employee of the Department empowered by the Minister or otherwise duly authorised to administer the Program. The Directions explicitly distinguish this Program Delegate from a Delegate of the Board appointed under section 21 of the Industry Research and Development Act 1986 (clause 4(a) definition).

The Directions structure responsibilities and opportunities among a set of named public and private actors. The principal parties directly affected by the instrument and how they are placed by the text are as follows.

• The Commonwealth / the Minister. The Minister issues the Directions and remains the responsible Minister for the Program (preamble, clause 3 and definitions). The Minister can request advice from the Board on non-financial administration matters (clause 11). The Commonwealth is also the counterparty in funding agreements with recipients, as relevant to the definition of agreement (clause 4(a)).

• The Industry Research and Development Board. The Board is the body to which these Directions are addressed. It receives a new, additional function: to provide technical assessments and merit rankings of eligible applications under the COMET Program (clause 3(a)). The Board must assess eligible applications according to the Merit Criteria (clause 8) and provide merit rankings to the Program Delegate (clause 6(a)). The Board may also refuse to provide a merit ranking where it is not satisfied with an application’s merit (clause 7). The Board may advise the Minister on administrative matters and collect program performance data (clauses 11 and 12).

• The Program Delegate. The Program Delegate administers the Program and gatekeeps which applications are admitted for Board assessment. An application must have a National Manager recommendation and a Program Delegate determination of eligibility before the Board is to consider it (definition of eligible application in clause 4(a)). The Program Delegate also may request ad hoc technical assessments from the Board on issues arising from Assistance Plans (clause 10). The Directions identify the Program Delegate as distinct from delegates of the Board under the Act (clause 4(a)).

• Applicants and recipients. Entities that make applications to the Program are applicants. Entities that enter agreements with the Commonwealth to receive funding are recipients (clause 4(a) definitions). Recipients receive an Assistance Plan and the agreed funding pursuant to an agreement; the agreement is subject to the Program rules and may be amended in accordance with those rules (clause 4(a) agreement definition).

• Business Advisers. Business Advisers are private-sector consultants engaged to assist delivery of the Program. They guide applicants, assess applications in some capacity, advise and assist recipients through the commercialisation process and undertake other activities specified in an operational plan with the Department (clause 4(a)).

The Directions allocate duties primarily to the Board, the Program Delegate, Business Advisers and the COMET National Manager, and set out what applicants and recipients must provide for an application to be considered.

Board duties and operational rights:

• Assess eligible applications on their merits according to the Merit Criteria (clause 8 and clause 9). The Board must carry out assessments subject to clause 7, which permits the Board to refuse to provide a merit ranking if it is not satisfied with the merit of an eligible application (clause 7). The Board must consider eligible applications at least every 60 days (clause 6(b)). The Board provides a merit ranking to the Program Delegate (clause 6(a)).

• Advise the Minister and collect data. The Board may advise the Minister on non-financial administration matters, including program administration and whether the Program is meeting its objectives (clause 11). The Board may collect and analyse data on program performance, provide advice on performance, and cooperate with independent evaluation (clause 12).

Program Delegate duties and decision rights:

• Administer the Program and determine eligibility for Board assessment. The Program Delegate is the official empowered to administer the Program and to determine whether an application that contains a National Manager recommendation is eligible to be admitted for technical assessment and merit ranking by the Board (definition of eligible application and clause 4(a)). The Program Delegate may also request ad hoc technical assessments from the Board on matters arising from Assistance Plans (clause 10). The Program Delegate therefore controls entry to the Board’s assessment pipeline and can seek further technical input from the Board at its discretion.

Business Adviser duties:

• Provide pre-application guidance and ongoing assistance. Business Advisers are private sector consultants who advise on COMET applications, make assessments of applications, assist recipients through the commercialisation process, and undertake other activities agreed with the Department under an operational plan (clause 4(a)). They also have an approval role over service-provider engagements for Assistance Plans, since service providers are identified by recipients but require Business Adviser approval (clause 4(a)).

COMET National Manager duties:

• Oversee Business Adviser delivery and assist with technical assessment. The National Manager oversees the Business Adviser network, assists with technical assessments, and undertakes other activities against an operational plan agreed with the Department (clause 4(a)). The National Manager’s recommendation is a precondition of an application being eligible for Board assessment (definition of eligible application).

The Directions are administrative instructions and do not themselves create offences, penalties, or an enforcement regime. The instrument allocates assessment, advisory and evaluative functions to the Board, Program Delegate, Business Advisers and the COMET National Manager, but it contains no express enforcement powers, sanction provisions, or compliance penalties. The text makes a number of procedural and definitional provisions while remaining silent on enforcement mechanisms.

Specifically:

• There is no penalty clause in the Directions text. The instrument does not prescribe consequences for a recipient failing to implement an Assistance Plan, for misuse of funds, or for breaches of an agreement with the Commonwealth. The agreement is defined as the contractual mechanism between recipient and Commonwealth (clause 4(a) agreement definition) but the Directions do not set payment terms, remedies or recovery mechanisms in the event of breach.

• The Directions do not provide administrative appeal or review pathways for applicants or recipients. The Board may refuse to provide a merit ranking (clause 7) and the Program Delegate determines eligibility to admit applications for Board assessment (definition of eligible application and clause 4(a)), yet the instrument does not specify internal reconsideration, merits review, or external review rights in the event of adverse decisions.

• Oversight and evaluation are framed as advisory and analytic. The Board may advise the Minister, collect and analyse program performance data and cooperate with independent programme evaluation (clauses 11 and 12). Those provisions create monitoring and evaluative obligations rather than enforcement measures. They do not specify downstream compliance actions or sanctions that would follow from evaluation findings.

• Roles that could exercise oversight,Business Advisers, the COMET National Manager and the Program Delegate,have operational responsibilities that include assessment and approval functions (clause 4(a) definitions and clauses 6 and 10). The Directions do not state that any of those roles have sanctioning authority. For example, Business Advisers approve service provider engagements for Assistance Plans (clause 4(a)) but no power to withhold funding is stated in the Directions.

• The Directions preserve the program rules by reference. The agreement may be amended in accordance with the Program rules (clause 4(a) agreement definition). Any enforcement or remedial powers that affect recipients are therefore likely to be found in the Program rules, in the funding agreement itself, or in the governing statute under which the Minister made the Directions. Those documents are not reproduced in this instrument.

The Directions are framed as ministerial directions given under statutory authority. The instrument explicitly states that it is given under subsections 18A(1), 19(1) and 20(1) of the Industry Research and Development Act 1986 (preamble). This establishes the Directions’ statutory provenance and ties the board-level instructions to the enabling Act.

The Directions make several explicit cross-references that create interaction points with other instruments and arrangements:

• Program rules and agreements. The definition of agreement references the rules of the Program by authorising amendments in accordance with those rules (clause 4(a) agreement definition). That links the Directions to the COMET Program rules which are separate instruments or administrative documents. The Directions therefore operate together with program rules to define contractual relationships and adjustments over time.

• Delegation distinctions. The definition of Program Delegate expressly notes that this is distinct from a Delegate of the Board appointed under section 21 of the Industry Research and Development Act 1986 (clause 4(a)). That cross-reference signals that the Directions are aware of separate statutory delegation regimes under the Act, and that the Program Delegate’s powers should be read as operationally distinct from statutory Board delegates. The Directions therefore sit alongside statutory delegation provisions rather than replacing them.

• Administrative process formalities. The Directions require their commencement upon registration on the Federal Registrar of Legislative Instruments and publication in the Gazette (clause 2). That ties the instrument into standard administrative law and legislative instrument formalities for Commonwealth directions and instruments.

• Contractual and administrative boundaries. The instrument places responsibility for eligibility determinations and for admitting applications to Board assessment with the Program Delegate (definition of eligible application). The Board’s role is to assess and rank eligible applications. That division of functions interacts with broader administrative law principles about delegation and decision-making within public programmes. The Directions do not, however, state appeals, merits review or judicial review procedures; any such procedural protections would be contained in the underlying Act, in program rules or in the agreements themselves.

• Program evaluation and inter-agency reporting. The Board may collect and analyse program performance data and cooperate with any independent evaluation of the Program (clause 12). This creates an interaction with any independent evaluators or external reviewers appointed under other statutory or administrative arrangements, subject to those parties’ terms of engagement.

The Directions state in their preamble that they replace the previous Directions No. 1 of 2004 (preamble). They also state that policies and guidelines issued under Directions No. 1 of 2004 will remain in force until replaced following the commencement of these Directions and will continue to apply to COMET grant funding that was approved by the Program Delegate under the Directions No. 1 of 2004 (preamble). The text is dated 15 December 2006 and signed by the Minister for Industry, Tourism and Resources (preamble).

Commencement conditions are recorded in clause 2: these Directions will come into effect once both of two steps have been completed, registration on the Federal Registrar of Legislative Instruments and publication in the Gazette (clause 2). That procedural requirement for commencement is part of the instrument’s lifecycle and determines when the instrument becomes operative.

Beyond these items, the instrument itself does not record subsequent amendments or a history of prior alterations apart from the replacement of the 2004 Directions. The agreement definition anticipates future change by allowing that the agreement between recipient and the Commonwealth may be amended from time to time in accordance with the Program rules (clause 4(a) agreement definition). That creates a mechanism within the governance architecture for program-level amendments to agreements without necessarily amending these Directions.

The Directions do not contain a schedule or annex that lists amendment dates or versioning beyond noting that the instrument replaces the 2004 Directions and the date of signature. There is no text within the instrument that purports to amend the underlying Industry Research and Development Act 1986; the Directions are issued under the Act’s delegations. The instrument therefore relies on a single discrete replacement event from the 2004 Directions to the 2006 Directions and preserves existing operational policies and guidelines from the prior Directions until the Department replaces them post-commencement (preamble).

To restate what is in the text: replacement occurred on 15/12/06; continuity of existing policies and guidelines from Directions No. 1 of 2004 is explicitly preserved until the Department replaces them following the new Directions’ commencement (preamble). No further amendment events are recorded in this instrument.

The Directions themselves do not include any record of litigation, court decisions, administrative appeals or legal disputes. The instrument contains no references to cases, tribunal decisions or judicial interpretations. There are no clauses that mention dispute resolution in relation to Board decisions or Program Delegate determinations within the text provided. The Directions also do not establish procedural review rights, appeals mechanisms or statutory review pathways; they allocate assessment and advisory functions and set process requirements, but do not record any litigation history or precedent.

Because the instrument is limited to ministerial directions and administrative definitions, any litigated issues arising from the COMET Program,such as disputes about eligibility, contract performance, grant recoveries, procurement, conflicts of interest, or judicial review of administrative decisions,are not documented in this Directions text. The Directions do not record whether any decisions made under the previous 2004 Directions were subject to legal challenge, nor do they set out legal findings that would form a litigation history.

For readers seeking to know whether particular Board decisions or Program Delegate actions under COMET have been the subject of litigation, the Directions do not provide that information. The instrument’s silence on litigation means that one cannot infer from it whether disputes have occurred or how courts have treated COMET-related decisions; instead, the Directions focus on structuring assessment, ranking and advisory responsibilities.

The Directions create a number of operational features and discretion points that practitioners and applicants should note because they materially affect process, timing and control of funding decisions. The following items identify mechanisms within the text that can produce unexpected outcomes if not anticipated.

• Gatekeeping by the Program Delegate. An application is only an eligible application if it includes a National Manager recommendation and the Program Delegate determines that it is eligible for Board assessment (definition of eligible application). This places initial and material control with the Program Delegate. Applications that do not secure a National Manager recommendation or that the Program Delegate does not admit will not proceed to the Board for technical assessment and merit ranking. The practical effect is that applicants must secure both operational (National Manager) and administrative (Program Delegate) preconditions.

• Division of responsibilities between the Program Delegate and the Board. The Board provides merit rankings to the Program Delegate (clause 6(a)), but the Program Delegate determines eligibility to admit applications for ranking and can also request ad hoc technical assessments from the Board (clause 10). This two-way flow,Program Delegate admitting applications to Board, and Program Delegate requesting further Board input,means that the Program Delegate retains significant control over the pipeline and over what the Board assesses in practice.

• The combination of advisory and assessment roles for Business Advisers. Business Advisers are tasked with guiding applicants, making assessments of applications, advising and assisting recipients, and approving service-provider engagements (clause 4(a)). In practical terms, that means the same class of private consultants may both assist applicants and have an assessment role. The Directions do not set out protocols in the instrument to manage potential role friction between advisory and evaluative functions. The instrument also gives Business Advisers formal approval rights over service providers engaged under Assistance Plans.

• Subjective and qualitative Merit Criteria. The four Merit Criteria are inherently evaluative: management capability, market opportunity and strategy, technical feasibility, and demonstrated need for funding (clause 9). The Directions do not standardise scoring matrices, weightings or minimum thresholds for each criterion. The Board may refuse to provide a merit ranking where it is not satisfied with an application’s merit against any criterion (clause 7). Applicants should therefore expect subjectivity and exercise care in documenting and evidencing claims against each criterion.

The Directions set out procedural preconditions and substantive expectations for applicants and recipients. Compliance therefore involves aligning applications and Assistance Plans to the administrative pipeline and to the Merit Criteria, while following the defined roles for Business Advisers, National Manager and Program Delegate. Practical compliance steps, drawn directly from the instrument, are as follows.

1. Secure a National Manager recommendation and Program Delegate eligibility.

• Ensure an application includes a National Manager recommendation, because an application without that recommendation will not meet the Directions’ definition of an eligible application (definition of eligible application in clause 4(a)). Engage early with the COMET National Manager and the Business Adviser to understand operational plans and the likely content of any recommendation.

• Recognise the Program Delegate’s gatekeeping role. The Program Delegate must determine an application to be eligible before the Board will assess and rank it (definition of eligible application). Applicants should seek confirmation of eligibility from the Program Delegate wherever possible prior to relying on Board review timing.

2. Address the Merit Criteria clearly and evidentially.

• The Board must assess applications against four qualitative Merit Criteria: management capability to commercialise, market opportunity and strategy, technical feasibility, and demonstrated need for COMET funding (clause 9). Structure application narratives and attachments to show concrete evidence against each criterion: management track records, team composition and gaps, market analyses and strategies, technical development plans and validation milestones, and detailed budgets showing what COMET funding will buy and why it is required.

• Anticipate subjective assessment. Because the Merit Criteria require evaluative judgement and the Board may refuse to provide a merit ranking if unsatisfied (clause 7), provide robust, independently verifiable evidence where possible: third-party references, prototype demonstrations, documented market traction, letters of intent from potential partners or investors, and costed assistance plans.

3. Develop an Assistance Plan that maps to eligible activities.

• Assistance Plans are tailored packages developed in consultation with the Business Adviser and must be implemented through third-party service providers identified by the recipient and approved by the Business Adviser (clause 4(a)). Ensure the Assistance Plan covers only eligible activities listed in the Directions: strategic and business planning, market research, management development, IP strategy, engagement of non-executive directors or mentors, proving technology, working prototype completion, market validity work, and travel for remote recipients subject to the cap.