Industry Research and Development (Regional Aviation Connectivity Program) Instrument 2024

This instrument prescribes the Regional Aviation Connectivity Program (the program) under the Industry Research and Development Act 1986. The instrument is made by Catherine King, Minister for Infrastructure, Transport, Regional Development and Local Government, acting as delegate of the Minister for Industry and Science, and is dated 4 November 2024 (instrument preamble). It is expressly made under section 33 of the Industry Research and Development Act 1986 (s 3).

Mechanically, the instrument performs two primary functions. First, it prescribes the program for the purposes of subsection 33(1) of the Act by declaring that “the Regional Aviation Connectivity Program (the program) is prescribed” (s 5(1)). Second, for the purposes of subsection 33(3) of the Act, it identifies specific heads of the Constitution on which the Commonwealth will rely to make laws that give effect to the program (s 6). Those heads of power include trade and commerce among the States, bankruptcy and insolvency, the corporations power, the power to give financial assistance to States, referred matters and the government of a Territory (s 6(a)-(f)).

Substantively, the instrument defines the program’s policy scope. The program “provides funding to support and develop regional aviation services and regional aviation companies” (s 5(2)). It explicitly authorises funding for services that operate in the course of trade and commerce among States or in Territory-related inter-Territory or Territory-State operations (s 5(3)). It further specifies that funding may support services in Queensland or Tasmania (s 5(4)), and includes a temporal and functional list of assistance that may be provided in relation to a “regional aviation company under administration” as defined by the Corporations Act 2001 (s 5(5)(a)-(e)).

The commencement clause makes the whole instrument effective on the day it is registered (s 2(1) table). The definitions section supplies the operative meanings of “Act” and the critical subject-matter terms “program”, “regional aviation company” and “regional aviation services” (s 4). Notably, “regional aviation company” is defined by corporate form and activity: a body corporate that wholly or predominately provides regional aviation services, or a related body corporate of such a body (s 4). “Regional aviation services” is defined by function: services that provide or support flights to and from regional or remote areas (s 4).

The instrument does not set rates, eligibility criteria, application procedures, reporting requirements, remedial or enforcement processes, or appropriation outcomes. It is a prescription and specification instrument: it prescribes the program and identifies the constitutional bases for Commonwealth action. Operational design,how funding is allocated, conditions attached or how decisions are made,will need to be found in other instruments, grant guidelines, the Act itself, or departmental practices.

The text advances a short set of legal and policy concepts; below each concept is stated and then identified in the instrument for cross-reference.

• Prescription of program under s 33(1) of the Act. The instrument declares the Regional Aviation Connectivity Program to be "prescribed" (s 5(1)). This is a formal declaration enabling the Commonwealth to implement the program under the statutory framework created by the Industry Research and Development Act 1986.

• Funding to support and develop regional aviation services and companies. The program's object is expressed as the provision of funding to support and develop regional aviation services and regional aviation companies (s 5(2)). The statement is permissive and broad: “provides funding to support and develop” rather than prescribing precise policy goals, conditions, or measures.

• Territorial and interstate scope. The instrument makes explicit that funding may support regional aviation services that occur in the course of trade and commerce among the States, and in Territory-related operations (s 5(3)). It additionally singles out Queensland and Tasmania as jurisdictions where the program may provide funding (s 5(4)), linked to referrals noted in the instrument’s explanatory note.

• Assistance for companies under administration. The instrument authorises a defined suite of funding uses where a “regional aviation company” is under administration (a term taken from the Corporations Act 2001). Those authorised uses include sustaining operations during administration, supporting the administrator to avoid administration ending with winding up, preventing cessation of regional aviation services following administration, assisting persons affected by the administration (including passengers with cancelled flights), and any other activity addressing consequences of administration (s 5(5)(a)-(e)).

• Reliance on specified constitutional powers. To meet the constitutional requirement in s 33(3) of the Act, the instrument names several heads of power (s 6(a)-(f)): trade and commerce with other countries and among the States (s 6(a)); bankruptcy and insolvency (s 6(b)); the corporations power (s 6(c)); referred matters together with section 96 financial assistance (s 6(d)-(e)); and the government of a Territory (s 6(f)). The instrument also records the specific referrals by Queensland and Tasmania in the notes accompanying s 5(4) and s 6.

• Definitions anchoring coverage. “Regional aviation company” and “regional aviation services” are defined in the definitions section (s 4). The definitions anchor eligibility and scope by reference to corporate form (body corporate/related body corporate) and activity (services that provide or support flights to and from regional or remote areas).

The instrument identifies several categories of affected parties and legal relationships by definition and by the funding purposes it prescribes. These are drawn directly from the instrument’s operative definitions and program descriptions.

• Regional aviation companies. The primary and concentrated beneficiary group is “regional aviation companies” as defined in s 4. That term covers bodies corporate that “wholly or predominately provide regional aviation services” and related bodies corporate of those entities. Those companies are the expressly contemplated recipients of funding intended to support or develop their services (s 5(2)). Where a regional aviation company is under administration, subsection 5(5) lists specific kinds of support that may be funded, so administrators, creditors and corporate stakeholders will be directly affected by any exercise of that power.

• Regional aviation services and their users. The program targets services “that provide or support flights to and from regional or remote areas” (s 4). That includes operators directly providing flights and entities that support flights (for example, ground handling, airport services, maintenance,provided these qualify as “support” under the definition). Persons using those services are indirectly affected because the instrument authorises assistance to persons affected by administration-related disruptions, including those with cancelled flights (s 5(5)(d)). This establishes a route for passenger-facing assistance funded by the program.

• Administrators under the Corporations Act. The instrument explicitly contemplates funding directed at “the administrator of the company” and assistance “directed at ensuring the administration of the company does not end with the winding up” (s 5(5)(b)-(c)). The constitutional reference to the Corporations Act (through the defined concept of “administration”) means insolvency practitioners appointed under corporate law are a materially affected cohort.

• Commonwealth executive and delegated decision-makers. The instrument itself is made by the Minister as delegate and cites s 33 of the Act as authority (instrument preamble; s 3). Consequently, Commonwealth ministers, departments and delegated officers who administer the program will be decision-makers with discretion to create grant programs, enter funding agreements and set conditions consistent with the instrument and the enabling Act.

• State and Territory governments. The instrument expressly contemplates funding for services occurring in the course of interstate trade and specific Territory contexts (s 5(3)). It also notes that the Parliaments of Queensland and Tasmania have referred air transport to the Commonwealth, which is relevant to constitutional coverage (s 5(4) note; s 6 notes). State and Territory governments may be affected as potential co-funders, partners or recipients of s 96 financial assistance, depending on implementation choices.

The instrument itself is primarily a prescription and does not impose duties, civil rights or criminal offences directly. It sets parameters for the program’s subject matter, identifies the constitutional bases, and defines critical terms. From that narrow text we can infer the contours of duties and rights likely to be material once the program is operational, and identify which obligations the instrument does place, implicitly by definition and expressly by authorised funding uses.

• Definitions create eligibility thresholds. The obligation to establish whether an entity is a “regional aviation company” will be a practical precondition of any funding arrangement. The instrument defines that term by corporate status and activity: a body corporate that wholly or predominately provides regional aviation services, or a related body corporate of such a body (s 4). The duty to demonstrate that status will fall on applicants or on decision-makers responsible for eligibility assessment.

• Reliance on Corporations Act concepts. Subsection 5(5) repeatedly relies on the Corporations Act concept “under administration”. That reliance imports duties from corporate insolvency law into the assessment process for assistance: administrators’ statutory roles and duties under the Corporations Act will be relevant to determining entitlements to assistance targeted at administrators or companies “under administration” (s 5(5)). For example, a duty to notify or provide evidence that administration exists will be necessary for any funding triggered by administration status.

• Rights to funding are not automatic. The instrument authorises the program to provide funding but does not create enforceable rights to receive funding. The use of the term “may provide” throughout s 5 (see ss 5(2), 5(3), 5(4), 5(5)) is permissive. That syntactic choice indicates the Commonwealth has discretion to decide whether and when to provide funding, and it does not create a statutory entitlement in the instrument itself.

• Ministerial and administrative discretion. The instrument is made under s 33 of the Act by a Ministerial delegate (preamble; s 3). It therefore places decision-making capacity with Commonwealth ministers and their delegatees to prescribe and implement the program within the confines of the instrument and the Act. The text does not impose specific procedural duties on ministers or delegates (such as publication, consultation, or reporting requirements) in the instrument itself.

The instrument contains no express penalty provisions, civil sanctions, or criminal offences. It is a prescriptive instrument that declares a program and identifies constitutional heads of power; it does not itself create compliance offences or specific enforcement mechanisms.

• Silence on penalties. Nowhere in the instrument’s text (contents, definitions, prescribed program, or specified legislative power sections) are offences, pecuniary penalties, or enforcement regimes set out. Therefore any compliance obligations associated with receiving funding under the program must be enforced through other legal instruments or mechanisms established by the administering agency or under the Industry Research and Development Act 1986.

• Enforcement likely contractual/administrative. Given the instrument’s structure, practical enforcement will be through funding agreements, grant terms and conditions, contractual remedies, certifications, repayment clauses and the normal administrative law avenues (for example, merits review where applicable, judicial review for legal error). Those mechanisms are not set out in this instrument; they are matters for implementation under the Act and for the department or agency administering the program.

• Recovery of funds and conditions precedent. The instrument authorises funding for a range of purposes (s 5) but does not specify mechanisms for recovery where funds are misapplied. In practice, governments typically use grant agreements with clawback provisions, audit rights and repayment obligations. The lack of such provisions in the instrument itself means those enforcement tools must be provided elsewhere to operate.

• Insolvency and administration contexts. The instrument contemplates funding “in relation to a regional aviation company under administration” (s 5(5)). In those contexts, interplay with the Corporations Act (which governs administrators, winding up and creditors’ rights) will determine what enforcement or recovery options are available. For example, administrators have statutory duties under the Corporations Act; the instrument’s silence on enforcement suggests that any funding directed to an administrator would be shaped by the administrator’s statutory role and any contractual terms attached to funding.

• Parliamentary and financial controls remain. Although the instrument authorises funding, it is silent on appropriation and does not itself appropriate money. Accountability and enforcement also operate through usual financial management and parliamentary oversight mechanisms,appropriations, audit by the Auditor-General and disclosure,none of which are specified in this instrument but which remain relevant as practical enforcement levers.

The instrument explicitly frames itself in relation to several other legal sources, and its effect derives from those interconnections. The instrument names the Act under which it is made and invokes the Corporations Act 2001 and specific constitutional heads of power. These linkages determine legal scope, operability and overlaps.

• Industry Research and Development Act 1986. The instrument is made under s 33 of the Act (s 3) and is explicitly a prescription for the purposes of subsection 33(1) (s 5(1)). The instrument’s legal validity and the program’s operation are therefore dependent on the framework of the Act. The instrument does not reproduce s 33’s text, but its recurring references to subsection 33(1) and 33(3) indicate the instrument’s purpose is to activate the Act’s power to prescribe programs and to specify constitutional powers for that program.

• Corporations Act 2001. The instrument utilises the concept of a company “under administration” and the related corporate structures by reference to the Corporations Act 2001 (s 5(5)). The definitions section also uses "related body corporate (within the meaning of the Corporations Act 2001)" in defining “regional aviation company” (s 4). Accordingly, insolvency, administration and corporate grouping concepts from the Corporations Act will be central to identifying eligible companies and the legal consequences of funding that arises in administration contexts.

• Constitutional heads of power. Section 6 specifies particular heads of the Constitution to support legislative action implementing the program (s 6(a)-(f)). Those include paragraph 51(i) (trade and commerce), 51(xvii) (bankruptcy and insolvency), 51(xx) (corporations), 51(xxxvi) together with s 96 (referred matters/financial assistance to States), 51(xxxvii) (matters referred by States) and s 122 (government of a Territory). The instrument therefore anticipates that Commonwealth legislation or measures implementing the program will be framed to fall within those constitutional powers. The instrument’s explicit identification of these heads sets the legal boundary the Commonwealth intends to rely upon and indicates likely structuring of any implementing law.

• State referrals. The instrument contains a note stating that Queensland and Tasmania have referred the matter of air transport to the Commonwealth for the purposes of paragraph 51(xxxvii) (s 5(4) note; s 6 note). Those referrals (referred to the Commonwealth Powers (Air Transport) Acts 1950 and 1952 respectively) extend Commonwealth legislative competence in relation to air transport in those states and therefore broaden constitutional coverage for operations in those jurisdictions.

The instrument contains its own short amendment and commencement history information. It is dated 4 November 2024 and is titled the Industry Research and Development (Regional Aviation Connectivity Program) Instrument 2024 (instrument preamble; s 1). The commencement provision states that “the whole of this instrument” commences on the day the instrument is registered (s 2(1) table, row 1: “The whole of this instrument , The day this instrument is registered”).

The instrument also includes an advisory note that the commencement table “relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument” (s 2(1) note). This indicates that any future amendments would be captured by separate instruments or amending instruments which would themselves record their own commencement details; the present document’s table is fixed to the original making.

No amendments are recorded within the text provided. There are no schedules, no transitional provisions, and no sunset clauses in the instrument as drafted. The instrument does not contain an express expiry or review clause; consequently, without amendment, it stands as the governing prescription under s 33 of the Act until amended or repealed by a subsequent instrument.

Because the instrument is made under the Industry Research and Development Act 1986, any amendment or repeal would normally occur through a further instrument under the Act or by legislative change to the Act itself. The instrument does not set out any special amendment process for the program beyond the standard processes for changes to delegated instruments. The text’s brevity means that operational changes,eligibility, funding modalities and conditions,can be effected through subsequent administrative instruments, guidelines or contractual terms subject to the constraints of the Act and the specified constitutional powers in s 6.

In summary: the instrument is newly made as at 4 November 2024, commenced on registration, and contains no recorded amendments or expiry. Any changes must be effected by later instruments or legislative amendment, and the present commencement table notes its fixed status as originally made.

The instrument itself contains no references to any court decisions, tribunal decisions, or earlier litigation. There are no cases named in the text and no litigation history recorded in the instrument. The instrument’s notes refer to statutes,the Commonwealth Powers (Air Transport) Acts of Queensland and Tasmania,which are matters of legislative record rather than judicial history (s 5(4) note; s 6 note).

Because the instrument is a prescription under the Industry Research and Development Act 1986, potential litigation in future could arise in several predictable legal domains, though none are recorded in the instrument:

• Constitutional challenge. Section 6 specifies the constitutional heads of power relied upon. A litigant might later challenge aspects of any implementing measures as exceeding constitutional power. The instrument pre-emptively nominates trade and commerce, insolvency, corporations, referred matters, s 96 financial assistance and the Territory power as the bases for valid legislative action (s 6). The instrument’s specification is therefore a declaratory step that would likely be central to any constitutional argument about the validity of implementing legislation or funding measures.

• Administrative law review. Decisions to grant, refuse or condition funding under the program will be administrative acts. Affected parties may seek judicial review for legal error, procedural unfairness or jurisdictional error if decision-makers exceed their statutory authority or fail to observe requirements of the enabling Act. The instrument itself contains no administrative procedure rules; administrative law claims would therefore focus on the Act, implementing instruments, and procedural fairness.

• Corporations and insolvency litigation. Funding directed at companies under administration or to administrators (s 5(5)(a)-(c)) may intersect with creditors’ rights, priority disputes and the duties of administrators under the Corporations Act. Litigation in that area would involve the Corporations Act’s statutory scheme rather than this instrument’s text.

• Contractual disputes and clawbacks. Where funding is provided under contracts or grant agreements, disputes over performance, misuse or recovery could arise and proceed as contract claims or as equitable claims for restitution. The instrument does not itself provide contract terms, so any such litigation would engage the specific agreements entered into by the Commonwealth.

At this stage the instrument does not record any litigation history. Any future disputes will engage the instrument only indirectly,through its role in prescribing the program and identifying constitutional bases,and will principally focus on the details of implementing legislation, grants, contracts and administrative decisions rather than on this prescription instrument alone.

This instrument is short and conceptually narrow, but there are several practical pitfalls and legal traps that arise from what it does,and what it does not,say. These “gotchas” are drawn directly from the text and the logical implications of its silences.

• “May provide” is permissive, not mandatory. The instrument repeatedly uses permissive language: the program “may provide funding” (see ss 5(2), 5(3), 5(4), 5(5)). Do not assume that eligible companies or affected persons have a statutory entitlement to funding. Expect discretion and conditions attached to any funding decision.

• The instrument does not appropriate money. It authorises funding but contains no appropriation. Any actual disbursement requires appropriation through the normal budgetary process. Applicants should not assume funds are available absent appropriation and the relevant departmental instruments.

• Definitions are consequential. “Regional aviation company” is defined narrowly by corporate form and activity as a body corporate that wholly or predominately provides regional aviation services, or a related body corporate (s 4). If a business is not a body corporate, or provides regional services only marginally, it may fall outside the instrument’s scope. Similarly, “regional aviation services” are explicitly services that “provide or support flights to and from regional or remote areas” (s 4). Commercial actors who provide ancillary services might be excluded unless they can show their activity “supports” flights to/from regional or remote areas.

• Reliance on Corporations Act definitions. The instrument explicitly imports the Corporations Act’s concept “under administration” (s 5(5)). Applicants seeking administration-related funding must verify status under the Corporations Act. Mischaracterising a corporate state as “under administration” without statutory backing will risk refusal or recovery obligations.

• Broad discretionary support for administrators. Subsection 5(5)(b) permits funding “including to support the administrator to not end the administration with the winding up of the company.” This could influence the behaviour of administrators, creditors and potential purchasers. But the instrument does not constrain how that support must be provided, which creates uncertainty about creditor priority, prospective dilution of creditor recoveries, and compatibility with administrators’ duties under the Corporations Act.

• Passenger assistance is permitted but not defined. s 5(5)(d) permits assistance to persons affected, “including persons whose flights have been cancelled.” The form, quantum and qualifying criteria for such assistance are unspecified. Recipients should expect detailed program guidelines and documentation requirements for claims.

Because the instrument prescribes the program’s scope but does not set operational rules, compliance is a two-stage process: (1) ensure the entity and proposed activity fall within the instrument’s definitional scope; and (2) comply with the implementing program rules, grant agreements and the Corporations Act where relevant. The instrument’s text guides the first stage; the second stage depends on program guidelines and contractual terms which are not contained in this instrument.

1. Confirm definitional status under the instrument

• Corporate form: verify the entity is a body corporate or a related body corporate of a qualifying body corporate as defined in s 4. If the business is an unincorporated operator (for example, a sole trader or partnership), it will not meet the definition of “regional aviation company” under this instrument.
• Activity test: document that the entity “wholly or predominately” provides regional aviation services, meaning services that provide or support flights to and from regional or remote areas (s 4). Prepare evidence of route maps, schedules, passenger volumes, percentage of revenue attributable to regional routes, and contracts with regional airports or service providers to show predominance.
• Related bodies corporate: if relying on related body corporate status, map group corporate structures and supply chain relationships that demonstrate the qualifying relationship under the Corporations Act definition referenced in s 4.

2. If the company is under administration

• Confirm administration status under the Corporations Act. Because s 5(5) operates in the context of a company “under administration (within the meaning of the Corporations Act 2001)”, ensure statutory criteria are met and maintain documentary proof of the administrator’s appointment, administrators’ reports and any proposals to creditors.
• Coordinate with the administrator. Funding options listed in s 5(5) include assistance to the administrator and measures to avoid administration ending in winding up. Administrators will need to assess the commercial and legal prudence of accepting or coordinating with Commonwealth support in light of statutory duties to creditors and the company.

3. Prepare for passenger assistance processes

• If proposing funding that will be used to assist passengers with cancelled flights (s 5(5)(d)), design an evidence and verification process: hold records of cancelled flights, affected passenger lists, customer communications and refund/compensation history. Expect program rules to require proof of entitlement and to define the form and limits of assistance.