Industry Research and Development (Diversity in STEM Programs) Instrument 2024

The instrument directly affects several categories of persons and organisations. School aged persons from underrepresented cohorts are the primary beneficiaries of the DIST program, which provides education and resources about STEM study and careers. Women and non binary people are the target beneficiaries of the Elevate scholarship program for higher education in STEM. STEM employers are affected by the ADSAF program, which provides an accreditation framework and training aimed at encouraging them to advance gender equity and diversity measures. Those employers may choose to participate, but if they do, they will face assessment and reporting obligations under the accreditation framework. People from underrepresented cohorts currently working in STEM fields are affected by the Superstars of STEM program, which offers training and networking opportunities. Universities and other higher education providers that host Elevate scholarship recipients will be affected by the administration of those scholarships. The instrument also affects the Commonwealth department administering the programs, likely the Department of Industry, Science and Resources, which must design grant guidelines, assess applications, and monitor compliance. The instrument indirectly affects taxpayers who fund these programs through consolidated revenue. Private providers of STEM education and training who are not part of these programs may face increased competition for students and workers, as the programs direct funding toward underrepresented cohorts that might otherwise choose alternative pathways. Employers who do not participate in the ADSAF program are not directly affected, but the accreditation framework may create market pressure as employers seek accreditation to signal diversity credentials, potentially raising compliance costs for smaller firms. The instrument also affects constitutional lawyers and policy analysts who must assess whether the specified legislative powers are sufficient to support the programs, particularly those directed at LGBTQIA+ people and neurodivergent people, which may not clearly fall within the listed heads of power.

The instrument creates no direct statutory duties or rights on its own. It is a prescribing instrument that operates within the framework of the Act. The duties and rights arise from the Act itself and from grant agreements entered into under the programs. However, the instrument establishes the purposes for which the programs are to be conducted, and those purposes may inform the terms and conditions of grants. Rights to apply for funding under the prescribed programs are created by the instrument: because these programs are prescribed, they become eligible for funding under section 33 of the Act. Any person who meets the eligibility criteria set out in program guidelines may apply. The instrument does not guarantee that any particular person or organisation will receive funding; that remains at the discretion of the Minister or delegate. The purposes clause may give rise to expectations but not enforceable rights. For example, the purpose to "address barriers and disadvantage that First Nations peoples face" does not create a legal entitlement for First Nations applicants. The instrument imposes no duties on private persons or businesses to participate in any program. Participation in the ADSAF program is voluntary for employers. However, if an employer chooses to seek accreditation, they will be subject to the obligations of the accreditation framework, which may include reporting on gender equity and diversity measures. Those obligations are not set out in this instrument; they will be defined in program documentation. The rights of program applicants may be affected by the broad discretion the instrument gives administrators. For instance, the definition of "underrepresented cohorts" includes people facing age based discrimination, but the instrument does not define that term. Administrators will have discretion to interpret it, which could lead to inconsistent outcomes. Similarly, "low socioeconomic status" is undefined, giving wide latitude to set thresholds. Applicants may have a right to seek review of administrative decisions under the Act or the Administrative Appeals Tribunal Act, but that is not addressed in this instrument.

This instrument itself imposes no penalties. It is not a penal instrument; it is a prescribing instrument under section 33 of the Act. However, the parent Act contains provisions that could lead to penalties for conduct related to these programs. For example, if a person makes a false or misleading statement in an application for funding under one of the prescribed programs, they may be liable under the Criminal Code or under the Act itself. The Act provides for recovery of amounts paid where grants are misused. The instrument does not create any new enforcement powers. The enforcement framework will be whatever exists under the Act and under the specific grant agreements. The instrument's specification of legislative powers in clause 6 has indirect enforcement implications: if a program were challenged as beyond constitutional power, the court could enjoin the spending, effectively nullifying the program. The instrument attempts to pre empt such challenges by linking each program to a constitutional head of power and, in the case of the external affairs power, to specific treaty obligations. This specification is a form of constitutional compliance mechanism, but it does not itself create enforceable penalties. The instrument also does not create a private right of action. A person who is excluded from a program because they do not meet a discretionary interpretation of "underrepresented cohorts" cannot sue under this instrument; they would need to rely on administrative law or anti discrimination laws. The Minister's power under section 33 of the Act to prescribe programs is subject to the scope of the Act, but the instrument does not create any new mechanisms for review or enforcement. The practical enforcement is through grant administration: funding agreements will include milestones, reporting obligations, and clawback provisions. If a recipient fails to comply, the Commonwealth can terminate the grant and seek repayment. The instrument's broad definitions give administrators significant discretion in enforcing program rules, but that discretion is not guided by any statutory criteria in this instrument.

This instrument operates within the Industry Research and Development Act 1986. It is made under section 33 of that Act, which allows the Minister to prescribe programs by legislative instrument. The Act itself provides for the functions of the Industry Research and Development Board (though the instrument does not mention the Board), the making of grants, and the administration of research and development activities. The instrument does not override or amend that Act. It interacts with Commonwealth anti discrimination laws, including the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. The programs are designed to benefit specific groups and may involve preferential treatment. The instrument's purpose to "reduce discrimination" and "promote equal opportunities" may be used to argue that the programs constitute special measures under those Acts, which are lawful. However, the instrument does not include an express declaration that any program is a special measure, which could leave the programs open to challenge if individual non beneficiaries claim reverse discrimination. The instrument cites eight international treaties as the basis for the external affairs power. Those treaties have not been directly incorporated into domestic law, but they may influence interpretation of relevant domestic legislation and may be used in constitutional litigation. The instrument does not create rights under those treaties; it uses them to justify the constitutional validity of the programs. The instrument also interacts with the Higher Education Support Act 2003 and the Australian Research Council Act 2001, as the Elevate program provides scholarships for higher education, potentially overlapping with existing scholarship and support schemes. The instrument does not expressly exclude other laws, so recipients may need to comply with multiple regulatory frameworks. The instrument interacts with state and territory anti discrimination laws. The programs are Commonwealth programs, but they may operate in state jurisdictions. The definition of "underrepresented cohorts" includes people facing age based discrimination, which is already covered by both Commonwealth and state laws. The instrument's broad language may create interpretive tension with existing definitions in those laws. The instrument also interacts with the Australian Charities and Not for profits Commission Act 2012 if any program recipients are charities, as their charitable purposes may need to align with the programs' objectives. The external affairs power specification interacts with the Commonwealth's treaty reporting obligations, as the programs may be cited in periodic reports to UN treaty bodies.

This instrument is new, made on 21 November 2024 and commencing the day after registration. It has no amendment history because it has not yet been amended. The instrument contains no amending schedules; section 4 is effectively inoperative. The instrument could be amended or revoked by the Minister at any time under the Legislative Instruments Act 2003 (now the Legislation Act 2003). Because it is a legislative instrument, it is subject to disallowance by either House of Parliament within 15 sitting days of tabling. The instrument was registered on the Federal Register of Legislation and is publicly available. Any future amendments would likely be made by a new instrument amending this one, and they would be published as a compilation on the Federal Register of Legislation. The commencement table indicates no deferred commencement; it starts the day after registration. This is standard for minor instruments. The instrument does not repeal or replace any earlier instrument; it is a standalone instrument. The programs it prescribes may have existed before as non statutory programs, and this instrument gives them a formal statutory basis. If the Minister later decides to discontinue a program, the instrument would need to be amended to remove that program from the list. The instrument does not sunset; it continues indefinitely unless repealed. The parent Act does not impose a sunset provision on section 33 instruments, so this instrument has no fixed expiry date.

This instrument is too new to have generated litigation. There is no reported case law interpreting it. However, there are potential grounds for legal challenge. The most likely challenge would be constitutional. The instrument specifies six heads of legislative power, but the programs it prescribes are broad. The external affairs power is tied to eight treaties, but it is not clear that all program elements are reasonably capable of being seen as implementing a treaty obligation. For example, the Superstars of STEM program provides networking opportunities for people from underrepresented cohorts. The treaty articles cited do not obviously require such programs. A plaintiff might argue that the connection is too tenuous, making the instrument invalid as an exercise of the external affairs power. The race power is specified, but programs that benefit only some but not all races may be challenged as not being "special laws" for a particular race, especially if the benefit is not confined to First Nations peoples. The "benefits to students" power is specified, but the definition of "student" is not settled. The age based discrimination cohort may not be supported by any enumerated power. The instrument also specifies the aliens power, but none of the programs appear on their face to relate to aliens. This could invite a challenge that the specification is a sham. The instrument could also be challenged on procedural grounds if it was not properly tabled or if the Minister lacked authority under section 33. Litigation could also arise from administrative decisions: a person excluded from a program could seek judicial review under the Administrative Decisions (Judicial Review) Act 1977, arguing that the definition of underrepresented cohorts was misapplied or that the decision maker took into account irrelevant considerations. The broad definitions leave significant discretion, which could lead to challenges for unreasonableness. The instrument's purposes clause might be used in litigation to argue that funding decisions must be consistent with those purposes, but the instrument does not create a duty to fund in accordance with the purposes. No litigation is currently known to be pending.

Several aspects of this instrument warrant close attention. First, the definition of "underrepresented cohorts" is extremely broad and includes categories that are not standard legal classifications. "People facing age based discrimination" is not defined; it could include younger people who face discrimination in STEM (e.g., school leavers) or older workers who face ageism. This ambiguity gives administrators wide discretion. Similarly, "neurodivergent people" is not defined and is not a term used in Australian anti discrimination law; it could encompass a wide range of conditions from autism to dyslexia to ADHD. "Low socioeconomic status" is undefined; this could be measured by household income, postcode, parental education, or other metrics, creating uncertainty for applicants. The list also includes "culturally and linguistically diverse people", which is vague. The inclusion of "LGBTQIA+ people (including non-binary and gender diverse people)" creates potential constitutional vulnerability because none of the specified legislative powers clearly support programs that benefit people based on sexual orientation or gender identity, unless the external affairs power can be stretched. The instrument does not explain how that cohort falls within any enumerated power. The instrument also includes "girls and women" as a separate cohort, but the Elevate program is limited to women and non binary people, effectively excluding men and non binary women (if that distinction matters). The purposes clause for Elevate includes "material aid", which is not defined; this could include laptops, textbooks, or cash payments, each with different tax and social security implications for recipients. The ADSAF program is described as "encouraging" employers to advance diversity measures, but the accreditation framework may impose de facto standards that become market requirements, raising compliance costs for small and medium enterprises. The instrument does not provide for separate consideration of efficiency or economic impact. It also does not limit the total funding or duration of the programs; those will be determined by appropriations. The external affairs power specification is over inclusive, listing eight treaties with multiple articles. If one article is later amended or withdrawn, the justification may shift. The instrument also uses the phrase "in force for Australia from time to time", meaning treaty amendments automatically apply for constitutional purposes, potentially expanding the scope of the programs without further legislative instrument. The instrument does not include a definition of "STEM" beyond the acronym; it is simply "science, technology, engineering and mathematics". This is potentially broad enough to include social sciences if they involve mathematics, creating interpretive scope. The instrument also does not address how conflicts between cohort categories will be resolved, such as a low socioeconomic status person who is also First Nations and has a disability; the program may apply multiple criteria, but the instrument is silent. The absence of a sunset clause means these programs could continue indefinitely, locking in funding priorities that may become outdated.

Compliance with this instrument is not about following direct legal obligations, because it imposes none. Instead, compliance concerns two groups: organisations that seek to participate in the programs, and the administering department. For organisations seeking funding under the DIST, Elevate, ADSAF, or Superstars of STEM programs, compliance means ensuring that any applications and activities align with the program descriptions and purposes set out in the instrument. An applicant for the Elevate program must demonstrate that the scholarship is for a woman or non binary person to undertake higher education in STEM. An employer seeking accreditation under ADSAF must show that it will advance gender equity, diversity, and inclusion of underrepresented cohorts as those terms are defined in the instrument. The employer should be prepared to define and measure "gender equity" and "diversity" in ways that satisfy the accrediting body. Because the instrument uses broad language, employers should document their interpretations to avoid later disputes. For the DIST and Superstars programs, organisations must target the very broad underrepresented cohorts set out in the instrument, which may require them to develop policies for each of the nine categories. The safest approach is to explicitly include all nine categories in any program communications and selection criteria, even if the practical focus is narrower. For the administering department, compliance means ensuring that the programs are consistent with the purposes listed in clause 5(6) and that funding is not provided for purposes outside those listed. The department should maintain records showing how each program meets each stated purpose, particularly purpose 4 (addressing barriers for First Nations peoples) which is listed separately. The department should also be aware that the instrument's specification of legislative powers may be tested, so program design should be clearly linked to one or more of the specified heads of power, especially for programs benefiting LGBTQIA+ people and neurodivergent people, where the power is weakest. The department should also consider that the instrument does not authorise discrimination against persons outside the defined cohorts; programs must still comply with the Racial Discrimination Act and other anti discrimination laws. Grant agreements should include standard clauses allowing termination if a recipient engages in unlawful discrimination. For recipients, recordkeeping and reporting on diversity outcomes will be essential, as program continuation may depend on demonstrating measurable progress. The absence of statutory definitions for key terms means that recipients should seek clarity in grant agreements and program guidelines about how terms like "low socioeconomic status" and "neurodivergent" will be interpreted. Taking a conservative approach, recipients should collect data on all nine cohort categories to demonstrate compliance with the instrument's broad scope. Finally, because the instrument is a legislative instrument, any changes to the programs will require an amendment, so participants should monitor the Federal Register of Legislation for future instruments that may add, remove, or modify the prescribed programs or the underrepresented cohorts definition.