EXPLANATORY STATEMENT
Issued by the authority of the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management
Industry Research and Development Act 1986
Industry Research and Development (Water for Fodder Program) Instrument 2019
Purpose and Operation
Section 33 of the Industry Research and Development Act 1986 (the IR&D Act) provides a mechanism for the Minister to prescribe programs, by disallowable legislative instrument, in relation to industry, innovation, science or research.
The Minister for Industry, Science and Technology has delegated the Minister’s power under subsection 33(1) to the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management, under subsection 33(6) of the IR&D Act to prescribe the Water for Fodder Program (the Program).
The statutory framework provided by section 33 of the IR&D Act enables a level of flexibility to provide authority for certain Commonwealth activities in relation to industry, innovation, science and research programs. This allows the Government to respond quickly and appropriately to the need to implement innovative ideas and pilot programs on an ongoing basis and as opportunities arise. Prescribing programs in legislative instruments provides transparency and parliamentary oversight of Government programs and activities, whilst reducing administrative burden on the Commonwealth.
Once a program is prescribed by the Minister under section 33, subsection 34(1) allows the Commonwealth to make, vary or administer arrangements in relation to activities under the prescribed program. Arrangements may include contracts, funding agreements or other arrangements, and may provide for money to be payable by the Commonwealth to one or more third parties. The power conferred on the Commonwealth by subsection 34(1) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate entity, or by their delegate (under section 36).
The purpose of the Industry Research and Development (Water for Fodder Program) Instrument 2019 (the Legislative Instrument) is to prescribe the Water for Fodder Program (the Program). The Program was announced by the Prime Minister on 7 November 2019 as part of the Australian Government’s Drought Response, Resilience and Preparedness Plan. The Program is part of a larger arrangement which provides that 100 gigalitres of water will be produced from the Adelaide Desalination Plant and an equivalent amount released upstream from the River Murray. This water will be made available to farmers in the southern connected Murray-Darling Basin at discounted rates to grow fodder and pasture and to support drought affected farming communities across the country over the next two years.
The Legislative Instrument enables non-spending activities under the Program (for instance, entering into an arrangement with successful applicants).
The Program will be delivered by the Department of Agriculture. The Program involves the allocation of finite resources. However, given the nature of drought impacts, and the emergency nature of the Program, the Program design is non-competitive. Applicants must meet the Program eligibility criteria listed in the Program guidelines in order to apply.
Applications will be conditionally approved on a 24-hour rolling basis in accordance with the process set out in the Program guidelines. When the number of applications exceeds the water available under the Program, the Department will issue a sale closure notice. Applications received up until the sale close time that are not yet approved will enter an independent ballot to randomly rank them. Applications will be drawn from the ranked list in order until the volume of water remaining is distributed. The remaining applications will be held as reserve, for use in the event that one or more of the conditionally accepted applications is subsequently excluded or does not proceed for any reason. Both successful and unsuccessful applicants will be informed in writing.
Persons who are affected by decisions or who have complaints about the Program will have recourse through the Department. The Department will investigate complaints about the Program in accordance with its complaints policy and procedures.
External affairs power
Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs’. The external affairs power supports legislation which gives effect to Australia’s international obligations under treaties to which it is a party.
Australia has international obligations under the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD). The UNCCD recognises the need for participating countries to establish long-term policies and legislation to combat desertification and mitigate the effects of drought. In particular, articles 4 and 5 of the UNCCD provide that the Parties coordinate efforts when implementing their obligations, promote cooperation and develop integrated, long-term strategies at all levels.
In this regard, the Program will impact farmers in ‘affected areas’ of the southern connected Murray-Darling Basin by assisting them to produce fodder, silage and pasture during the current drought, aiding their capacity, and that of livestock industries, to rebuild after the drought breaks and assisting the resilience of the communities that rely on them.
Authority
Section 33 of the Industry Research and Development Act 1986 provides authority for the Legislative Instrument.
Consultation
In accordance with section 17 of the Legislation Act 2003, the Attorney-General’s Department and the Department of Industry, Innovation and Science were consulted on the Legislative Instrument.
Regulatory Impact
It is estimated that the regulatory burden is likely to result in a minor economic impact (OBPR reference number 25888).
Details of the Industry Research and Development (Water for Fodder Program) Instrument 2019
Section 1 – Name of Instrument
This section specifies the name of the Legislative Instrument as the Industry Research and Development (Water for Fodder Program) Instrument 2019.
Section 2 – Commencement
This section provides that the Legislative Instrument commences on the day after registration on the Federal Register of Legislation.
Section 3 – Authority
This section specifies the provision of the Industry, Research and Development Act 1986 (the Act) under which the Legislative Instrument is made.
Section 4 – Definitions
This item provides for definitions of terms used in the Legislative Instrument.
Section 5 – Prescribed Program
This section prescribes the Water for Fodder Program (the Program) for the purposes of section 33 of the Act.
The Program is for the administration by the Commonwealth of the sale of water allocations by South Australia to drought-affected farmers in the southern connected Murray-Darling Basin. The Program is part of a larger arrangement which provides that 100 gigalitres of water will be produced from the Adelaide Desalination Plant and an equivalent amount released upstream from the River Murray. This water will be made available to farmers in the southern connected Murray-Darling Basin at discounted rates to grow fodder and pasture and to support drought affected farming communities across the country over the next two years.
Section 6 – Specified Legislative Power
This section specifies that the legislative power in respect of which the Legislative Instrument is made is the power of the Parliament to make laws with respect to external affairs (section 51(xxix) of the Constitution), with respect to Australia’s obligations under the UNCCD, particularly Articles 4 and 5
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Industry Research and Development (Water for Fodder Program) Instrument 2019
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Program provides farmers in the southern connected Murray-Darling Basin with water at discounted rates to grow fodder and pasture and to support drought affected farming communities across the country over the next two years.
Human rights implications
The Program positively assists drought affected farmers in the southern connected Murray-Darling Basin to assist them to produce fodder, silage and pasture during the current drought, and also aiding their capacity, and that of livestock industries, to rebuild after the drought breaks and assisting the resilience of the communities that rely on them. This Legislative Instrument will therefore allow for the Australian Government to enable non-spending activities under the Program (for instance, entering into arrangements with successful applicants).
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon. David Littleproud MP
Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management