Industry Research and Development (Carbon Capture Technologies Program) Instrument 2023

This instrument, the Industry Research and Development (Carbon Capture Technologies Program) Instrument 2023, prescribes a new Commonwealth program for the purposes of subsection 33(1) of the Industry Research and Development Act 1986 (the Act) (clause 1; clause 3; clause 5(1)). It comes into legal effect the day after it is registered, per the commencement table (clause 2(1)). The instrument is made by the Hon Chris Bowen MP, as delegate of the Minister for Industry and Science, dated 31 October 2023 (header).

Mechanically, the instrument performs four discrete tasks:

• It gives the program an official name and legal prescription under the Act (clause 1; clause 5(1)).
• It defines the narrow object and operational scope of funding under the program, by providing that the program "provides funding to support the research, development and demonstration of carbon dioxide capture and carbon dioxide utilisation technologies" (clause 5(2)). The stated program purposes are to reduce greenhouse gas emissions and to accelerate RD&D to broaden application and reduce costs, with particular reference to hard-to-abate sectors and negative emissions technologies (clause 5(3)(a)-(b)(ii)).
• It specifies the constitutional and treaty-related legislative heads of power relied on for the program (clause 6). These include the corporations power, external affairs as it relates to particular treaty obligations, section 96 and other Constitution provisions, and Territory government power.
• It sets firm eligibility exclusions, stating that funding under the program must not be used for nature-based carbon sequestration, activities supporting fossil fuel production or fossil-fuel energy generation, and activities supporting extraction of coal or natural gas (including by enhanced petroleum recovery or other means) (clause 7).

The instrument does not itself contain application rules, funding amounts, assessment processes, reporting, penalty, repayment or IP arrangements. It prescribes the program and its eligibility boundaries only; operational detail is not present in the instrument text (see clauses 5-7, and the absence of any administrative provisions elsewhere in the instrument).

The instrument introduces and defines key concepts that set the program's legal perimeter.

Program and objective. The Carbon Capture Technologies Program is prescribed "for the purposes of subsection 33(1) of the Act" (clause 5(1)). The program "provides funding to support the research, development and demonstration of carbon dioxide capture and carbon dioxide utilisation technologies" (clause 5(2)). Its articulated purposes are twofold: to reduce greenhouse gas emissions so as to contribute to Australia’s greenhouse gas emission reduction obligations (clause 5(3)(a)); and to accelerate RD&D of emerging and priority carbon dioxide capture and utilisation technologies to broaden their application to hard-to-abate sectors and to assist in reducing costs (clause 5(3)(b)(i)-(ii)). The hard-to-abate sectors are exemplified in the instrument (cement, chemicals and steel), and the text also refers to other non-energy industrial emissions and negative emissions technologies (clause 5(3)(b)(i)).

Definitions of international instruments and their role. The instrument explicitly defines the Kyoto Protocol, the Paris Agreement and the United Nations Framework Convention on Climate Change as matters of reference, each "as in force for Australia from time to time" (clause 4). Those treaty references are then tied to the external affairs head of power in clause 6(b), which frames the program as relating to measures that would assist Australia to meet obligations under the UNFCCC, the Kyoto Protocol and the Paris Agreement, with particular citation to specified articles (clause 6(b)(i)-(iii)).

Specified legislative power. Clause 6 lists the constitutional bases used to justify the program. They are stated as the federal Parliament's powers in respect of: foreign and trading or financial corporations (clause 6(a)); external affairs in relation to assistance for meeting treaty obligations, and specific treaty articles (clause 6(b)); matters dealt with by the Constitution until Parliament otherwise provides together with section 96 of the Constitution (clause 6(c)); and the government of a Territory under section 122 (clause 6(d)). Those listings perform a legal framing function for any legislation, expenditure or administrative activity that implements the program.

Eligibility exclusions. Clause 7 sets categorical exclusions for eligible activities under the program: nature‑based carbon sequestration, supporting fossil fuel production or fossil fuel energy generation, and supporting extraction of coal or natural gas (including via enhanced petroleum recovery or other means) are expressly "not eligible activities for funding under the program." The exclusions are stated broadly and without ancillary definitions within the instrument.

Direct participants. The instrument affects parties who might seek or receive funding under the Carbon Capture Technologies Program. The program explicitly aims at research, development and demonstration of carbon dioxide capture and carbon dioxide utilisation technologies (clause 5(2)-(3)). Entities developing or demonstrating capture and utilisation technologies relevant to hard‑to‑abate sectors (for example the cement, chemicals and steel sectors named in clause 5(3)(b)(i)) are the intended beneficiaries. The instrument does not specify applicant categories, but the use of the corporations power as a specified legislative head (clause 6(a)) signals that foreign corporations and trading or financial corporations are within the program’s statutory reach.

Excluded participants and activities. Clause 7 identifies activities that are ineligible for funding: nature‑based carbon sequestration; activities supporting fossil fuel production or fossil fuel energy generation; and activities supporting extraction of coal or natural gas, including by enhanced petroleum recovery or other means. Entities whose projects fall in whole or in part within those activities cannot obtain program funding under this instrument. The exclusions therefore affect projects with dual uses, or where technologies could be used both for capture/utilisation and for fossil fuel extraction or enhanced recovery.

Government decisionmakers. The instrument was made by a Ministerial delegate (the Hon Chris Bowen MP, as delegate of the Minister for Industry and Science), indicating that Ministerial delegation is used to operationalise this instrument (header). Clause 3 records the legal authority for the instrument as section 33 of the Industry Research and Development Act 1986. The instrument does not itself set out which department or body will administer grant rounds, assess proposals, handle contractual terms or monitor compliance. Practitioners should therefore assume administrative functions will be performed by the relevant Commonwealth agency or delegate acting under the Act and any subsequent grant or program guidelines.

Parliament and constitutional context. Clause 6 specifically references the Parliament's heads of power that are relied on to make laws in support of the program. That includes foreign and trading or financial corporations (clause 6(a)); external affairs tied to particular treaty obligations (clause 6(b)); section 96 and other Constitutional provisions (clause 6(c)); and Territory government matters (clause 6(d)). These references indicate the statutory and constitutional framing relevant to parties considering legal jurisdictional or standing issues.

What the instrument creates by text. The instrument prescribes a funding program and sets eligibility boundaries; it does not create standalone civil duties, criminal offences, or direct private rights of action within the text. The primary mandatory content is the categorical disposition of eligible and ineligible activities: projects that are for nature-based sequestration, projects that support fossil fuel production or fossil fuel-based energy generation, and projects that support extraction of coal or natural gas (including via enhanced petroleum recovery) are expressly "not eligible activities for funding under the program" (clause 7). That provision constitutes a binding eligibility rule for any funding decisions made under the program as prescribed by this instrument.

Administrative obligations implicit from the instrument. Because the instrument is made under section 33 of the Act (clause 3), administrators responsible for awarding funding under the program must act consistently with the program prescription and the exclusions in clauses 5 and 7. The instrument itself does not provide procedural obligations such as transparency, public notice, merits review, or application processes. Those administrative duties, if any, will be found in the Act, in delegated administrative instruments, or in program guidelines that are not included in this instrument.

Rights of applicants and recipients. The instrument does not set out specific rights for applicants or recipients, such as entitlement to a particular funding quantum, confidentiality rights, or intellectual property arrangements. The only substantive "right" created by the instrument is the availability of funding for RD&D into carbon dioxide capture and utilisation technologies that meet the program purpose and are not excluded (clause 5(2)-(3); clause 7). Any contractual rights, reporting obligations, repayment conditions or enforcement mechanisms will need to be sourced from the Act, grant agreements, or other program materials.

Legal constraints on funding decisions. Clause 6 identifies the constitutional powers under which the program is specified. Those powers may constrain how funding and statutory instruments are framed, and they determine the forms of entities and activities that Parliament may lawfully regulate in relation to the program. For example, the explicit reliance on the corporations power (clause 6(a)) and external affairs as it relates to particular treaty articles (clause 6(b)) frames the legal footing for funding laws or regulations targeted at corporations or measures tied to Australia’s international obligations.

Absence of penal or enforcement measures in the instrument. The instrument contains no provisions that create offences, civil penalties, administrative sanctions, repayment obligations, auditing powers, or other enforcement mechanisms. Clauses 5-7 set out the program scope, purpose and exclusions, but do not prescribe enforcement processes or remedies for breach. The instrument therefore prescribes eligibility parameters only; it does not itself provide the enforcement architecture for ensuring compliance with those parameters.

Where enforcement will be found. Because the instrument is made under section 33 of the Act (clause 3), any enforcement, sanctioning or accountability mechanisms that apply to program funding decisions will derive from the Act and from subsequent grant instruments, contracts, program guidelines or departmental procedures. Practitioners and potential applicants must therefore consult the Industry Research and Development Act 1986 and associated administrative materials to identify actual enforcement provisions. The instrument, standing alone, does not supply those mechanisms.

Implications for recipients. The absence of enforcement text in the instrument means that recipients cannot rely on the instrument itself to determine what penalties might attach to non‑compliance. Funding agreements, grant conditions and statutory provisions under the Act are the likely sources of repayment obligations, clawback provisions, audit rights, or sanctions. The instrument’s role is to define what may and may not be funded; the instruments governing disbursements and administration will define consequences for contraventions.

Administrative discretion and legal risk. Because the instrument sets clear ineligible categories (clause 7) but leaves administrative design unspecified, there is implementation risk that different administrators may reach different views on borderline cases (for example, whether a particular technology "supports fossil fuel production" or constitutes "carbon dioxide utilisation"). The absence of statutory enforcement guidance in this instrument increases the importance of examining program guidelines and grant contracts for the enforcement mechanics that will govern conduct and remedies.

Treaty-linked enforcement considerations. Clause 6(b) ties the program to assisting Australia meet obligations under international instruments such as the UNFCCC, the Kyoto Protocol and the Paris Agreement, and cites particular articles. That connection is relevant to constitutional justification and to policy alignment, but the instrument does not convert international obligations into domestic enforcement measures under this instrument. Any domestic enforcement tied to treaty commitments must be established elsewhere in domestic law or program rules.

Parent statute. The instrument is made under section 33 of the Industry Research and Development Act 1986 (clause 3) and expressly operates for the purposes of subsections 33(1), 33(3) and 33(4) of the Act (clauses 5 and 7; clause 6). The instrument therefore functions as a delegated instrument that prescribes a program within the statutory framework established by the Act. Any interaction with other domestic statutes relevant to funding, taxation, environmental assessment or procurement will depend on how the program is administered under the Act and through the grant agreements or rules that implement it; the instrument itself does not address those cross‑statutory interactions.

External affairs and treaty interaction. Clause 6(b) expressly invokes the external affairs power as it relates to measures that would assist Australia to meet obligations under the UNFCCC, the Kyoto Protocol and the Paris Agreement, and the instrument cites particular treaty articles (UNFCCC Article 4, Kyoto Article 10, Paris Agreement Article 4) as the relevant international provisions. The instrument therefore frames the program’s domestic lawful basis in part by reference to Australia’s international commitments. The instrument also defines the treaties "as in force for Australia from time to time" in clause 4, meaning changes in those instruments or in their domestic standing may affect the interpretive context of the program’s external affairs justification.

Constitutional powers and federal reach. Clause 6(a) cites the corporations power (paragraph 51(xx) of the Constitution) and identifies foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth as within the program’s legislative reach. Clause 6(c) references matters provided for by the Constitution until Parliament otherwise provides together with section 96, and clause 6(d) references section 122 (Territories). The inclusion of these heads of power indicates the constitutional bases Parliament may use when enacting laws, making payments or regulating in support of the program. Practitioners should note that these statements perform a legal framing role; they do not themselves create cross‑statutory obligations.

Overlap and exclusions with other programs. Clause 7 expressly excludes funding for nature‑based sequestration, support for fossil fuel production or fossil fuel energy generation, and support for extraction of coal or natural gas, including via enhanced petroleum recovery. These exclusions create statutory boundaries between what this program funds and activities that may be funded under other Commonwealth, State, Territory or private programmes. The instrument does not identify or modify those other programs. In practice, applicants with projects that incorporate both covered and excluded activities will need to segregate the excluded elements or seek alternative funding streams.

Original instrument and commencement. The instrument is dated 31 October 2023 and records that it is made under section 33 of the Industry Research and Development Act 1986 (header; clause 3). Clause 2(1) contains a commencement table which states that "The whole of this instrument" commences the day after the instrument is registered. Clause 2(2) states that any information in column 3 of the table is not part of the instrument and that information may be inserted or edited in published versions without forming part of the instrument.

No amendments recorded in the text. The instrument as provided contains no subsequent amendment provisions, modification schedules, expiry terms or sunset clauses. The commencement table contains a note that the table relates only to the provisions "as originally made" and will not be amended in the table to deal with later amendments of the instrument. The text contains no history of prior versions or replacement instruments. Therefore, within the instrument as provided, there is no recorded amendment history.

Implication for practitioners. Because the instrument does not record amendments or a legislative history, practitioners seeking changes to program scope or eligibility must look to later instruments, the parent Act, parliamentary records, or departmental publications for any subsequent changes. Clause 2(2) warns that published versions may include non‑instrument information in the column 3 notes; such notes are not part of the legal instrument and thus should not be relied on as legislative content.

Practical step. To establish any amendment history, practitioners should consult the consolidated Federal Register of Legislation entry for the instrument, the Government Notices as registered, and any notices of variation or revocation issued under the Act. Those sources are outside the present instrument text; they will show whether the instrument has been amended or replaced after its original registration date.

No cases or litigation records in the instrument. The instrument's text contains no reference to any litigation, judicial decisions, or administrative appeals relating to the instrument or to the Carbon Capture Technologies Program. It names no jurisprudence, and there are no annotations indicating judicial review or legal challenges.

What this absence means. The instrument is a delegated administrative instrument that prescribes program scope and exclusions. The absence of litigation history in the instrument itself does not preclude future judicial or administrative review of program decisions, eligibility determinations, or constitutional challenges to its framing. Any such litigation would appear in court records, administrative tribunal materials or legal databases, none of which are provided in or referenced by the instrument.

Where to look for litigation materials. If a practitioner needs to identify any judicial or administrative decisions about the program, its administration, or constitutional issues arising from the clause 6 specified powers, the appropriate sources are the Federal Court, the Administrative Appeals Tribunal, State Supreme Courts if relevant, and consolidated legal research platforms. Those sources are external to the instrument. The instrument itself does not supply any litigation precedent or history.

Categorical exclusions are absolute in text. Clause 7 states that listed activities "are not eligible activities for funding under the program." The language is categorical, without carve‑outs or qualifying words inside the clause. Projects or project components that could be characterised as nature‑based sequestration, supporting fossil fuel production or fossil fuel energy generation, or supporting extraction of coal or natural gas (including via enhanced petroleum recovery) will be ineligible. Practitioners should note that the instrument provides no definitions for those terms, increasing the potential for disputes about classification.

Lack of operational definitions. The instrument does not define "carbon dioxide capture", "carbon dioxide utilisation", "nature‑based carbon sequestration", "supporting fossil fuel production", or the limits of "supporting the extraction of coal or natural gas, including via enhanced petroleum recovery or other means" (clause 4 supplies only definitions for the Act and the treaties). The absence of these technical or definitional markers shifts interpretive weight to administrators and program guidelines. That creates a risk for applicants whose projects have borderline or dual‑use characteristics.

No administrative detail in the instrument. The instrument prescribes the program’s purpose and exclusions, but contains no application, assessment, selection, funding agreement, reporting, audit, intellectual property, or dispute resolution provisions. This blank space means applicants cannot determine from the instrument alone how to apply, what obligations will attach to funding, or how compliance will be monitored and enforced. The administrative details will be critical and must be sought in program guidelines or grant contracts.

Dual‑use or mixed projects. Projects that combine eligible capture/utilisation elements with excluded activities (for example, a technology development project that could be used for enhanced petroleum recovery) pose a compliance risk. The instrument’s ineligibility clause includes "including via enhanced petroleum recovery or other means" (clause 7(c)), which suggests a broad capture of extraction support activities. Applicants with complex projects must ensure that excluded elements are not funded under this program or that they are demonstrably distinct and separable.

Treaty references may matter in legal challenges. Clause 6(b) ties the program to assisting Australia meet treaty obligations and cites specific treaty provisions. That linkage could be used by administrators or litigants to justify or challenge particular funding choices, depending on whether projects clearly advance the treaty objectives cited. The instrument does not, however, specify how that treaty linkage will be operationalised.

Confirm project scope against clause 5 purposes. Start by ensuring the project is explicitly focused on research, development and demonstration of carbon dioxide capture and carbon dioxide utilisation technologies, and that it addresses one or more of the program purposes in clause 5(3). The program explicitly targets emissions reduction and accelerating RD&D to broaden application to hard‑to‑abate sectors and reduce technology costs (clause 5(2)-(3)). A compliant proposal will map its activities to these objectives.

Exclude ineligible activities. Clause 7 is the clearest compliance gate. Projects or project components that constitute nature‑based carbon sequestration, activities supporting fossil fuel production or fossil fuel energy generation, or activities supporting coal or natural gas extraction (including via enhanced petroleum recovery or other means) are ineligible for funding. Applicants must ensure their proposals avoid including those activities as funded items. If a project has mixed elements, prepare a clear segregation of scope and budgets so that excluded elements are not funded under the program.

Anticipate administrative definitions and guidelines. Because the instrument lacks operational definitions and application rules, do not rely on the instrument alone. Seek the program’s published guidelines, application forms and funding agreements from the administering agency. Those documents will set the definitions, assessment criteria, reporting obligations and compliance consequences that will govern funding. The instrument provides only the high‑level eligibility perimeter; the administering documentation will control day‑to‑day compliance.

Document emissions‑reduction outcomes. Clause 5(3)(a) requires the program’s purpose to contribute to meeting Australia’s greenhouse gas emissions reduction obligations. Applicants should prepare evidence and modelling showing how the project will reduce emissions or accelerate low‑emission technologies, and tie those outcomes to reductions or cost declines in the target sectors named in clause 5(3)(b)(i). Quantitative evidence, assumptions and metrics will be necessary in program assessments even though the instrument does not prescribe metric standards.

Manage dual-use and technology transfer risks. Where technologies can be applied to both eligible uses (capture and utilisation) and excluded uses (supporting extraction or fossil fuel production), applicants should prepare strong evidentiary and contractual measures to show how funding will be ringfenced to eligible RD&D. That includes separate budgets, restricted reporting lines, and contractual covenants in grant agreements to restrict use of funds for excluded activities. Because the instrument does not itself set grant contract terms, administrators are likely to require contractual protections.