Details of the Financial Framework (Supplementary Powers) Amendment
(Agriculture, Water and the Environment Measures No. 7) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 7) Regulations 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Financial Framework (Supplementary Powers) Regulations 1997

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds four new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the Department of Agriculture, Water and the Environment (the department).

 

New table item 454 establishes legislative authority for government spending on the restoration of native aquatic animals and natural habitat in the Murray-Darling Basin, while providing employment opportunities for Indigenous Australians (the program).

 

The program will fund a range of projects to protect and rehabilitate aquatic species, including native fish populations, in Australia's freshwater rivers and lake systems in the Murray-Darling Basin, which will provide employment opportunities for Indigenous Australians. This will include the establishment of two new hatcheries for native aquatic species in northern Murray-Darling Basin communities in New South Wales (NSW) and Queensland (QLD), subject to the outcomes of feasibility studies currently underway. The program will also support projects to restore native aquatic species habitat, and research activities in relation to native aquatic species.

 

On 22 January 2019, the then Minister for Agriculture and Water Resources, the Hon David Littleproud MP (the Minister), announced the establishment of an independent panel to assess the causes of the fish deaths that occurred in the Lower Darling River in December 2018 and January 2019 and make recommendations within the framework of the Murray-Darling Basin Plan and the Murray-Darling Basin Agreement (both of these documents are available on the Federal Register of Legislation).

 

On 29 March 2019, the Final Report of the Independent Assessment of the 2018-19 Fish Deaths in the Lower Darling (the Vertessy Report) was presented to the Government. The report is available at https://www.mdba.gov.au/sites/default/files/pubs/Final-Report-Independent-Panel-fish-deaths-lower%20Darling_4.pdf.

 

On 10 April 2019, the Minister announced a suite of measures in response to the Vertessy Report, including $10 million to help restock rivers and lakes with native fish species and establish new hatcheries in the northern Murray-Darling Basin. Details of the announcement are available at https://minister.awe.gov.au/littleproud/media-releases/federal-government-responds-independent-report-fish-deaths.

 

The program addresses a number of recommendations from the Vertessy Report, including:

*         Recommendation 8 by directly contributing to native fish population recovery;

*         Recommendation 10 by increasing investment in research to address gaps in knowledge of riverine ecology; and

*         Recommendation 16 by assisting in the achievement of the outcomes of the Native Fish Recovery Strategy (the Strategy) through the involvement of local communities and Aboriginal stakeholders. Specifically, this includes contributing to the achievement of Outcomes 1 and 3 of the Strategy (that is, the recovery and persistence of native fish, and the active involvement of communities in native fish recovery). The Strategy is available at https://www.mdba.gov.au/sites/default/files/pubs/Native%20Fish%20Recovery%20Strategy%20-%20June%202020.pdf.

 

The program will support the following activities:

*         establishing a hatchery, grow-out facility and drought recovery centre for native aquatic species, with integrated commercial operations, in Menindee, NSW;

*         establishing a hatchery and grow-out facility for native aquatic species, with integrated commercial operations, in St George, QLD;

*         restoring the natural habitat of native aquatic species; and

*         research in relation to native aquatic species.

 

Hatchery for native aquatic species in Menindee, NSW

 

The program will support the establishment of a hatchery, grow-out facility and drought recovery centre for native aquatic species, with integrated commercial operations, in Menindee, NSW. This could include, but is not limited to, hatching or growing out native fish, fresh water mussels, fresh water crayfish and/or eels, with integrated commercial operations involving the selling of the hatchery or grow-out facility products. These commercial aspects will help maintain the facility's viability.

 

The facility could also grow young fish to more mature fish before release or sale, and during drought and poor water quality events, it could seek to shelter fish and other aquatic species from local rivers and water bodies to holding ponds and tanks. The facility is expected to provide employment opportunities for the Indigenous community, as well as facility tours and educational talks related to the drought recovery centre. Fish and other aquatic species translocation activities to assist in the protection of the native aquatic species populations may also be undertaken.

 

Potential funding recipients to construct the Menindee hatchery, if found to be a feasible project following the conclusion of a scoping study currently underway, could include:

*         the Central Darling Shire Council; and/or

*         a for-profit or not-for-profit organisation, a registered native title body corporate or another incorporated body.

 

Hatchery for native aquatic species in St George, QLD

 

Subject to the outcomes of a feasibility study currently underway, the program will support the establishment of a hatchery and grow-out facility for native aquatic species, with integrated commercial operations, in St George, QLD. As part of the proposed hatchery, one contributor to its financial viability could be a facility to grow out native fish for sale to market. Small agriculture enterprises that produce plants for market could also be integral to the hatchery. For example, water in the hatchery could be reused for hydroponic gardens, which would provide water cleaning (purification services) and at the same time produce high turnover plant crops for market.

 

Any funding recipient for a hatchery in St George will be required to provide training and employment to Indigenous people as part of the operation of the facility. Funding arrangements will include requirements to give preference to Indigenous suppliers (including small Indigenous enterprises) as part of any contracting and sub-contracting arrangements, and encourage the use of Indigenous labour, wherever possible, in establishing and operating the hatchery. The facility will also need to be financially sustainable in the long term and not require additional financial assistance from the Government.

 

Potential funding recipients to construct the St George hatchery, if found to be a feasible project following the conclusion of a scoping study currently underway, could include:

*         the South West Indigenous Corporation;

*         a relevant local council; and/or

*         a for-profit or not-for-profit organisation, a registered native title body corporate or another incorporated body.

 

Restoring the natural habitat of native aquatic species

 

The program may support the restoration of the natural habitat of native aquatic species through activities such as riparian zone improvements including riverbank fencing, offstream stock watering points, resnagging of rivers, and riverbank restoration. This program component may also involve the provision of funding to assist community stocking groups to purchase aquatic species from local approved native fish hatcheries to support native fish stocking measures.

 

Research activities

 

The program may support conducting research activities in relation to native aquatic species, which may involve collaborating with a university or another educational institution, and/or providing these institutions with access to the hatchery facilities and specimens` for research. Funding could be used for part of the start-up costs for trialling the research arrangements. However, beyond that point the research collaboration activities might need to contribute to the ongoing running costs of the fish hatchery or similar facility in order to support its long term sustainability. At this stage, research activities are being considered in relation to the hatchery in Menindee, NSW only. The type of research activities that may be undertaken will be determined once the scoping study for the Menindee hatchery is completed.

 

Scoping studies on the feasibility of establishing hatcheries for native aquatic species in St George and Menindee were commissioned between late 2019 and early 2020. Both scoping studies were procured by the department through a limited tender process, and the successful tenderers were published on the AusTender website at www.tenders.gov.au. The studies are expected to be completed by the end of 2020, and inform future government spending on the program. 

 

The program will provide grants to successful applicants to deliver projects. The grants selection process is likely to be a mix of competitive, non-competitive, targeted and one-off grants. Separate grant opportunities are envisaged for each of the hatcheries based on the outcomes of scoping studies. Activities supported through grant funding could include:

*         the development and construction of the hatchery or grow-out facility;

*         collaborating with universities and research bodies in relation to native aquatic species;

*         providing for and supporting the restoration of the natural habitat for native aquatic species, equipment and facilities for translocation of fish and other aquatic species; and

*         the establishment of local sales of fish and other aquatic species.

 

The grants process will be administered by the Community Grants Hub, part of the Department of Social Services, in accordance with the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017 (the CGRGs). Information about the grant selection process and eligibility/assessment criteria will be included in the grant opportunity guidelines, which will be published on GrantConnect at www.grants.gov.au as required under the CGRGs. The grant applications will be assessed against eligibility/assessment criteria by the department, and recommendations will be provided to the decision maker.

 

The Minister for Resources, Water and Northern Australia will make final decisions in relation to the implementation of program activities and grant funding. The grant outcomes will be published on GrantConnect. Announcements regarding key implementation decisions will also be available on the departmental website (www.agriculture.gov.au).

 

Funding decisions made in connection with the program are not considered suitable for independent review, as they are decisions relating to the allocation of finite resources, and an allocation that has already been made to another party would be affected by overturning the original decision. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.19 of the guide, What decisions should be subject to merit review?).

 

In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources, and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right of review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The program forms part of the Government's response to the Vertessy Report. The independent panel, which conducted the assessment of the 2018-19 fish deaths in the Lower Darling, undertook a range of community and stakeholder consultations in the preparation of the report. The independent panel consulted with the Australian Government and Murray-Darling Basin state agencies, including the then Department of Agriculture and Water Resources, the Commonwealth Environmental Water Office, the Murray-Darling Basin Authority, the Bureau of Meteorology, the NSW Department of Primary Industries, the NSW Office of Environment and Heritage, the NSW Department of Industry, WaterNSW, and the Queensland Department of Natural Resources, Mines and Energy. Members of the panel travelled to Menindee and Pooncarie on 13 and 14 February 2019 and met with local communities, including the Barkandji people (the traditional owners of the Darling River).

 

The Menindee Fish Hatchery Working Group, which comprises members from the local community and the Indigenous community, is contributing to the scoping study for the proposed hatchery in Menindee. Consultation as part of the scoping study is also expected to involve the NSW Department of Primary Industries, and a range of relevant technical experts, including on aquaculture, hatchery design and operation matters. 

 

The South West Indigenous Corporation (SWIC) comprises members of six Aboriginal Nation Groups from within southwest Queensland. The SWIC is undertaking the scoping study for the proposed native fish hatchery in St George and is consulting with a range of relevant technical experts, including on aquaculture, hatchery design and operational matters

 

Funding of $136.2 million over five years from 2018-19 was included in the Pre-election Economic and Fiscal Outlook 2019 under the measure 'Response to Fish Deaths in the Murray Darling Basin' (funding for the program is included under the measure). This measure is funded from uncontracted funds in the Sustainable Rural Water Use and Infrastructure Program. Details are set out in the Pre-election Economic and Fiscal Outlook 2019, Appendix B: Policy decisions since the 2019-20 Budget at pages 26 to 27.  

 

Funding for this item of $10 million over four years from 2020-21 will come from Program 5.1: Water Reform, which is part of Outcome 5. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.1, Agriculture, Water and Environment Portfolio at page 89.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the external affairs power (section 51(xxix)); and

*         the race power (section 51(xxvi)).

 

 

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 implementing Australia's obligations under international treaties to which it is a party.

 

Australia has obligations under the Convention on Biological Diversity [1993] ATS 32, including those contained in:

*         Article 6(a), which requires Contracting Parties to develop national strategies, plans or programs for the conservation and sustainable use of biological diversity;

*         Article 8(d), which requires Contracting Parties to promote the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings;

*         Article 8(f), which requires Contracting Parties to rehabilitate and restore degraded ecosystems and promote the recovery of threatened species; and

*         Article 10(d), which requires Contracting Parties to support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced.

 

Expenditure under the program will be directed at activities concerned with the protection of Australia's biodiversity by supporting the restoration of native aquatic species and natural habitat.

 

Race power

 

Section 51(xxvi) of the Constitution empowers the Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'.

 

Expenditure under the program will be directed at the advancement of Indigenous people and, in particular, will provide employment and career opportunities for Indigenous people in rural and regional communities.

 

New table item 455 establishes legislative authority for government spending on the Reef Builder - the Coastal Communities Recovery Project (the project), to rebuild and prevent the extinction of shellfish reefs in at least 11 locations along the Australian coastline.

 

The project is an initiative under the Government's $1 billion COVID-19 Relief and Recovery Fund, which has been established to support regions, communities and industry sectors that have been disproportionately affected by the COVID-19 crisis. The Fund initiatives support industries including aviation, agriculture, fisheries, tourism and the arts. The Fund aims to support communities and industries through the crisis and into recovery.

 

The project was jointly announced by the Deputy Prime Minister and Minister for Infrastructure, Transport and Regional Development, the Hon Michael McCormack MP, the Minister for Trade, Tourism and Investment, Senator the Hon Simon Birmingham, and the Minister for the Environment, the Hon Sussan Ley MP, on 1 October 2020 (https://minister.awe.gov.au/ley/media-releases/617-million-boost-environment-jobs-and-tourism).

 

The project will restore native shellfish (oyster and mussel) reefs in at least 11 sites located around Australia that have been historically impacted by overfishing and dredging. The intended impacts of the project are both economic and environmental. Local industries will be employed in the construction of the reefs, creating an immediate economic stimulus for coastal communities. It is estimated that up to 170 new direct and indirect jobs will be created. Over the longer term, the project will improve recreational fishing and diving opportunities, boost fish stocks by thousands of kilograms each year (through providing fish nursery grounds) and protect coastlines against erosion.

 

The rebuilding of shellfish reefs will involve the transport of rock rubble by barge to each site that is then spread across the seafloor and 'seeded' with juvenile oysters and mussels from local hatcheries. Once built, fish will aggregate around the reef. The reefs will become fully established within three to five years, and mature and stable ecosystems within seven to ten years.

 

The delivery of the project will be through a one-off ad hoc grant of $20 million to the Trustee for The Nature Conservancy Australia Trust (The Nature Conservancy), an environmental non-government organisation. The Nature Conservancy will look to secure additional co-funding and coordinate the restoration work in partnership with state and local governments, local businesses and communities. The funding for the project will be provided in 2020-21, with the delivery of the project by The Nature Conservancy to extend into 2021-22.

 

Reef rebuilds will occur in at least 11 of the following 13 locations:

*         New South Wales;

o   Port Stephens;

o   Botany Bay;

o   the Sapphire Coast;

*         South Australia;

o   Glenelg;

o   Onkaparinga;

o   Kangaroo Island;

*         Western Australia;

o   Peel Harvey estuary;

o   Swan River;

o   Albany;

*         Victoria;

o   Port Phillip Bay;

o   Gippsland Lakes;

*         Noosa River in Queensland; and

*         D'Entrecasteaux Channel in Hobart, Tasmania.

 

These potential sites were chosen based on extensive research in reef restoration undertaken by The Nature Conservancy. Several of the potential sites have been impacted by the 2019-20 bushfires and/or COVID-19. Final sites to be funded under the project will be part of contract negotiations with The Nature Conservancy once they have met the grant requirements.

 

The intended outcomes for the project are:

*         immediate employment and business stimulus to coastal communities impacted by COVID-19 and the 2019-20 bushfires;

*         enhancement of regional tourism to support regional economic recovery; and

*         restoration of an ecosystem that will provide longer term economic, social and environmental benefits.

 

The beneficiaries of the project include local businesses who will assist with the construction of the reefs such as shellfish hatcheries, rock quarries, earthmoving, maritime construction companies (barges, excavators, and commercial divers), trucking companies, surveyors and engineering groups. The construction of the reefs will provide immediate economic stimulus to these groups.

 

Over the medium to long term, the project will benefit the local tourism industry through enhanced recreational fishing and diving experiences. Local commercial fisheries will also benefit from improved fish stocks. Important environmental benefits of the project include healthier coastal ecosystems and reduced erosion.

 

The grant process will be administered through the Business Grants Hub in accordance with the requirements of the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

 

The Minister for the Environment, the Hon Sussan Ley MP, has approved the grant opportunity guidelines. The Business Grants Hub will undertake an assessment of the Nature Conservancy's proposal against the eligibility criteria in the grant opportunity guidelines and make recommendations to the Minister, who will then make the final decision to approve the grant based on these recommendations. The grant outcome will be reported on GrantConnect at www.grants.gov.au.

 

Merits review of decisions made in connection with the grant would not be considered appropriate because these decisions relate to the provision of a one-off grant to a certain service provider, over other service providers. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

The Nature Conservancy was determined to be an appropriate organisation to pursue a one-off ad hoc grant after a due diligence process. This process involved the verification of claims in The Nature Conservancy's project proposal, consideration of the suitability of other providers and development of a multi-stage assessment methodology. This process verified that The Nature Conservancy was the only organisation operating in Australia with a proven capacity to construct reefs at the scale required and move quickly to implementation, ensuring the employment benefits are realised quickly.

 

The review and audit process undertaken by the Australian National Audit Office also provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right to review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

Engagement with The Nature Conservancy was initiated when they submitted a proposal for funding to restore shellfish reefs at sites around Australia. That proposal made claims about the ability of The Nature Conservancy to deliver the project at the pace and scale required to meet the conditions of the COVID-19 Relief and Recovery Fund.

 

The department undertook a due diligence assessment to verify the claims made in The Nature Conservancy's proposal, including consulting with five state government agencies on their prior experience with The Nature Conservancy in delivering similar shellfish reefs. These agencies included the NSW Department of Primary Industries; the Victorian Department of Environment, Land, Water and Planning; the South Australian Department for Environment and Water; the Western Australian Department of Primary Industries and Regional Development (Fisheries Policy); and the Queensland Department of Environment and Science (Parks and Wildlife).

 

Consultation was also undertaken with the Fisheries Research and Development Corporation, the Commonwealth Scientific and Industrial Research Organisation and the National Environmental Science Program Marine Biodiversity Hub. The results of this process validated The Nature Conservancy as having a demonstrated track record of delivering reef restoration projects and an ability to leverage co-funding from state governments and the private sector. Letters of support were received from state ministers in South Australia, Western Australia and New South Wales, and the Fisheries Research and Development Corporation.

 

Further consultation with local community stakeholders will be undertaken by The Nature Conservancy as part of delivering the project. The details of this consultation will form part of the contract negotiation process between the Business Grants Hub and The Nature Conservancy.

 

Funding of $20 million in 2020-21 was included in the 2020-21 Budget under the measure 'COVID-19 Response Package - Relief and Recovery Fund - additional projects'. Details are set out in Budget 2020-21, Budget Measures, Budget Paper No. 2 2020-21 at pages 61 to 62.

 

Funding for this item will come from Program 1.1: Sustainable Management of Natural Resources and the Environment, which is part of Outcome 1. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.1, Agriculture, Water and Environment Portfolio at page 57.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the external affairs power (section 51(xxix)) of the Constitution.

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's obligations under international treaties to which it is a party.

 

Australia has obligations relating to the Convention on Biological Diversity [1993] ATS 32.  Relevantly, Australia has committed to:

*         promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings (Article 8(d));

*         rehabilitate and restore degraded ecosystems and promote the recovery of threatened species (Article 8(f)); and

*         encourage cooperation between government authorities and private sector in developing methods for sustainable use of biological resources (Article 10(e)).

 

The funding will assist the project with activities directed at protecting, rehabilitating and maintaining natural habitats. In doing so, the rebuilding of coastal reefs would support the recovery of threatened marine species by providing increased habitat and restoring coastal ecosystems.

 

New table item 456 establishes legislative authority for government spending on the establishment and maintenance of a water information platform for the Murray-Darling Basin (the platform), a website providing information on water availability, allocations, use and trade, and other matters relating to the Murray-Darling Basin (the Basin).

 

The platform will improve access to information on water planning, policies and programs as part of the Murray-Darling Communities Investment Package, which was announced by the Minister for Resources, Water and Northern Australia, the Hon Keith Pitt MP, on 4 September 2020. The announcement is available at minister.awe.gov.au/pitt/media-release/new-chapter-mdbp.

 

The platform will include information about:

*         water availability, allocations, use and trade;

*         water planning, policies and programs;

*         water levels in storages and in-stream flow rates;

*         water resource management and planning arrangements (for example, river operations, water resource plans, and the Basin Plan information);

*         environmental watering events (which involve the delivery of water to key ecological sites to achieve environmental resilience and protection outcomes); and

*         water markets and trading.

 

The platform will also contain information on water resource management, for example plain English explanation of the principles and processes used by Basin states and territories to inform decisions about where water is delivered and why. This includes decisions on water that is used for environmental purposes, including for the protection of specific wetlands.

 

Implementation of the platform will involve expenditure to procure services in two phases.

 

Phase 1 (to be completed in 2021) will involve the procurement of services to:

*         conduct consultations with Basin stakeholders to identify their needs;

*         undertake a gap analysis of existing versus required information portals/gateways;

*         scope the IT system requirements that will meet water user needs, including identification of available data sources from the Australian, state and territory governments and private sector sources (for example, the Australian Government entities such as the Murray-Darling Basin Authority (MDBA) and the Bureau of Meteorology, and state and territory government agencies with responsibility for water management and operations);

*         build an IT platform; and

*         implement and evaluate the preliminary platform to link to existing information on other websites.

 

Phase 2 (to be completed by the end of June 2024) will involve the procurement of services to develop and implement a more sophisticated water information platform for public release that is less dependent on external sources of information to deliver user information requirements (that is, a standalone system hosted by a private enterprise or an Australian Government entity).

 

Phase 2 will require thorough analysis of user requirements based on the experience using the Phase 1 product (a website with links to other agencies' information), with data architects and analysts, data configuration experts, software and hardware IT personnel contracted to build a standalone, independent water information portal for the Basin. The objective is to provide a single source of truth that allows users to find water information relating to the Basin.

 

The Australian Government, in collaboration with Basin state and territory governments, will develop a single authoritative water information platform through which the public can access a wide range of information online on water availability, allocations, use and trade, and other matters relating to the Basin.

 

The proposal for the platform originated in the Australian Government's response to feedback from Basin water users provided to the Interim Inspector-General of Murray-Darling Basin Water Resources, Mr Mick Keelty AO APM, as part of his reports into the Impact of lower inflows on state shares under the Murray-Darling Basin Agreement and the Independent assessment of social and economic conditions in the Basin. It was found that, while a lot of information is publicly available, it is published across a wide range of websites and is often difficult to interpret. These inquiry reports are available at www.igwc.gov.au and www.mdba.gov.au, respectively.

 

The platform will address concern among water users and the community about how information is shared by providing a centralised source of water information. The MDBA is currently undertaking research to better understand the water information needs of end users, which will inform the development of the platform.

 

The department will procure contractors and other external service providers to scope, develop and deliver the platform. The procurement methods may involve an open tender, limited tender or procurement from existing arrangements. The procurement activities will be undertaken in accordance with the Commonwealth resource management framework, including the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Procurement Rules.

 

Information about the platform will be publicly available through the departmental website at www.agriculture.gov.au. Information relating to the procurements will be published on AusTender at www.tenders.gov.au as required, including the request for tender documents, eligibility and evaluation criteria, and outcomes.

 

Expenditure decisions will be made by either the Minister for Resources, Water and Northern Australia (or a delegate of the Minister) or the Secretary of the department (or a delegate of the Secretary of the department), taking into account the recommendations of an assessment by departmental officials.

 

Funding decisions made in connection with the platform are not considered suitable for merits review, as these decisions relate to the allocation of finite resources between competing applicants and an allocation that has already been made to another party would be affected by overturning the original decision. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.11 to 4.14 of the guide, What decisions should be subject to merit review?).

 

In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources, and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

The right of review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may also be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate.

 

The department has consulted with states and territories through the Basin Officials Committee and the Basin Officials Committee Alternates (Deputy Secretaries and senior departmental officials). Representatives have provided feedback on the proposed project plan for the platform, which has been subsequently endorsed by the Basin Officials Committee. The department has also engaged with the Digital Transformation Agency, the Australian Bureau of Agricultural and Resource Economics and Sciences, and the MDBA. All entities have provided recommendations and supported the platform to proceed. The MDBA and the Digital Transformation Agency have been consulted throughout the project development and will continue to be consulted during the future phases of the platform.

 

Water users were consulted through the review by the Interim Inspector-General of Murray-Darling Basin Water Resources and the Independent assessment of social and economic conditions in the Basin (over 2,000 people in total). That consultation informed the development of this project which addresses the need identified by water users for a single-source information platform.

 

Funding for the platform of $5.4 million over four years from 2020-21 was included in the 2020-21 Budget under the measure 'Murray-Darling Communities Investment Package'. Details are set out in Budget 2020-21, Budget Paper No. 2 2020-21 at pages 52 to 53.  

 

Funding for this item will come from Program 5.1: Water Reform, which is part of Outcome 5. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.1, Agriculture, Water and Environment Portfolio at pages 29 and 90.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

Expenditure under the item will support the establishment of an online platform involving the communication of information via the internet. The online platform will provide publicly accessible, authoritative information relating to water.

 

New table item 457 establishes legislative authority for government spending on the development of online guidance materials for farm forestry, private native forestry and forest resources on Indigenous land to support the growth of Australia's renewable timber and wood-fibre industry (the program).

 

The program is an initiative under the Australian Government's National Forest Industries Plan Growing a better Australia - A billion trees for jobs and growth (the Plan), which provides the long-term vision for Australia's forestry industry and supports the sustainable forest industries as growth engines for regional Australia. The Plan builds on the Forest Industry Advisory Council's paper Transforming Australia's forest products industry - Recommendations from the Forest Industry Council. The Plan is available at https://www.agriculture.gov.au/forestry/publications/growing-better-australia.

 

The Plan was announced by the then Minister for Agriculture and Water Resources, the Hon David Littleproud MP, and the then Assistant Minister for Agriculture and Water Resources, Senator the Hon Richard Colbeck, on 12 September 2018. Media release is available at www.richardcolbeck.com.au/assets/files/20180912abillionnewtrees-forestrysplanforthefuture.pdf.

 

In the 2018-19 Budget, the Government committed $20 million over four years from 2018-19 for the following measures under the Plan:

*         transform farm forestry into a commercial enterprise supplying timber to Australia's forestry sector;

*         enable the identification, improvement and use of existing forest resources on Indigenous owned and managed land and privately owned land;

*         drive further innovation, research and development of new products and value adding in the forestry industry;

*         determine opportunities and gaps in key regional forestry hubs; and

*         work with industry and state and territory governments to communicate evidence-based information on forestry.

 

The Plan contains the ambitious target of creating settings to enable the forestry industry to increase new plantation forestry plantings by a billion new trees over a decade. Key implementation actions under the Plan to date include:

*         establishment of nine regional forestry hubs;

*         mapping and modelling of national forestry resources;

*         establishing the National Institute for Forest Products Innovation Centre in Gippsland, Victoria;

*         amendment of the Carbon Credits (Carbon Farming Initiative) Regulations 2011 to allow plantation projects in specified areas receiving greater than 600 mm rainfall, where tree planting is unlikely to have a material adverse impact on availability of water, to participate in the Emissions Reduction Fund; and

*         growing community understanding of forestry management.

 

A core priority of the Plan is to increase wood supply to respond to growing domestic and global demand for wood fibre. Generally, the size of the wood production estate in Australia has been static or falling over recent years, at a time when demand is increasing for renewable, environmentally sensitive resources, particularly from the construction and manufacturing sectors. The 2019-20 summer bushfires have exacerbated the looming wood supply shortfall in many regions and disrupted supply continuity.

 

The Plan includes measures to unlock the contribution to wood supply from farm forestry, and from forestry on Indigenous owned and/or managed land and private land. In particular, new table item 457 will provide legislative authority for the Government to provide grant funding to an industry body to collate and deliver online guidance materials on establishing, managing and marketing forestry resources to encourage landholders to increase wood supply for the industry.

 

The grant process will be administered by the Community Grants Hub, part of the Department of Social Services, in accordance with the Commonwealth Grants Rules and Guidelines 2017. A one-off, ad hoc grant is expected to be provided to a forestry industry organisation or organisations to be chosen after a period of consultation. The selected organisation or organisations will be invited to submit a funding proposal, which will be assessed by the department against eligibility criteria set out in the grant opportunity guidelines. The Assistant Minister for Forestry and Fisheries will approve the grant opportunity guidelines and make the final decision on the successful grant recipient or recipients based on the recommendations of the department. The outcome of the grant will be available on GrantConnect at www.grants.gov.au.

 

The selected grantee is expected to be an established entity with strong industry representative links to ensure that guidance materials focus on meeting the needs of potential suppliers and industry. The grantee will be expected to engage target landholders in the preparation of guidance materials and their delivery. It is intended that guidance materials will be published on an industry body website to increase industry engagement, with a link from the departmental website.

 

Funding decisions made in connection with the program would not be considered appropriate for independent merits review, because these decisions relate to one-off payments to certain service providers over other service providers. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraphs 4.16 to 4.19 of the guide, What decisions should be subject to merit review?).

 

In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms help to ensure the proper use of Commonwealth resources, and appropriate transparency around decisions relating to making, varying or administering arrangements to spend relevant money.

 

Further, the right of review under section 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may be available. Persons affected by spending decisions would also have recourse to the Commonwealth Ombudsman where appropriate

 

The Plan is based on the Forest Industry Advisory Council's paper Transforming Australia's forest products industry - Recommendations from the Forest Industry Council. As part of consultation on the paper, 74 public submissions were received and taken into account in formulating its recommendations. These submissions are available on the departmental website at https://www.agriculture.gov.au/forestry/industries/fiac/submissions. Further, the department has consulted with the forestry industry in a number of forums when developing the Plan.

 

The core finding of the Forest Industry Advisory Council's paper and subsequent consultations was that demand for wood and wood products is increasing, but wood supply volumes cannot currently respond. This issue has increased in importance following the impacts on wood supply from the 2019-20 summer bushfires.

 

In relation to the program, the department consulted with farm and private forest landholders and Indigenous landholders as part of the development of the Plan. The consultations revealed that landholders lacked access to information and resources on how they could contribute to and benefit from wood production. The development and online dissemination of guidance materials on forestry resources under the program is being supported as a result of these consultations.

 

Funding of $20 million was included in the 2018-19 Budget under the measure 'Australian Agriculture and Export Growth Plan - National Forestry Industry Plan' for a period of four years commencing in 2018-19. This includes funding of $0.5 million in 2020-21 for the program. Details are set out in Budget 2018-19, Budget Measures, Budget Paper No. 2 2018-19 at page 73.

 

Funding for this item will come from the National Forestry Industry Plan subprogram under Program 3.3: Forestry Industry, which is part of Outcome 3. Details are set out in the Portfolio Budget Statements 2020-21, Budget Related Paper No. 1.1, Agriculture, Water and Environment Portfolio at page 70.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the communications power (section 51(v)) of the Constitution.

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

In this regard, the Plan involves spending to collate and develop digital guidance material on forestry resources, which would be distributed exclusively via the internet to farm, private native and Indigenous forestry managers.

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 7) Regulations 2020

 

This disallowable 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

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The powers in the FF(SP) Act to make, vary or administer arrangements or grants may be exercised on behalf of the Commonwealth by Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.

 

The Financial Framework (Supplementary Powers) Amendment (Agriculture, Water and the Environment Measures No. 7) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on certain activities administered by the Department of Agriculture, Water and the Environment (the department).

 

This instrument adds the following table items to Part 4 of Schedule 1AB:

*         table item 454 for restoring native aquatic animals in the Murray-Darling Basin and providing employment for Indigenous Australians;

*         table item 455 for the Reef Builder - the Coastal Communities Recovery Project;

*         table item 456 for the Murray-Darling Basin Water Information Platform; and

*         table item 457 for the National Forest Industries Plan - Online Resources.

 

Table item 454 - Restoring native aquatic animals in the Murray-Darling Basin and providing employment for Indigenous Australians

 

Table item 454 establishes legislative authority for government spending on the restoration of native aquatic animals in the Murray-Darling Basin, while providing employment opportunities for Indigenous Australians (the program).

 

The program will fund a range of projects to protect and rehabilitate aquatic species, including native fish populations, in Australia's freshwater rivers and lake systems in the Murray-Darling Basin, which will provide employment opportunities for Indigenous Australians. This will include the establishment of two new hatcheries for native aquatic animals in northern Murray-Darling Basin communities in New South Wales (NSW) and Queensland (QLD), subject to the outcomes of feasibility studies currently underway. The program will also support projects to restore native aquatic species habitat, and research activities in relation to native aquatic species.

 

The program will support the following activities:

*         establishing a hatchery, grow-out facility and drought recovery centre for native aquatic species, with integrated commercial operations, in Menindee, NSW;

*         establishing a hatchery and grow-out facility for native aquatic species, with integrated commercial operations, in St George, QLD;

*         restoring the natural habitat of native aquatic species; and

*         research in relation to native aquatic species.

 

Human rights implications

 

Table item 454 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 454 is compatible with human rights as it does not raise any human rights issues.

 

Table item 455 - Reef Builder - the Coastal Communities Recovery Project

 

Table item 455 establishes legislative authority for government spending on the Reef Builder - the Coastal Communities Recovery Project, to rebuild and prevent the extinction of shellfish reefs in at least 11 locations along the Australian coastline.

 

The project is an initiative under the Government's $1 billion COVID-19 Relief and Recovery Fund, which has been established to support regions, communities and industry sectors that have been disproportionately affected by the COVID-19 crisis.

 

The project will restore native shellfish (oyster and mussel) reefs in at least 11 sites located around Australia that have been historically impacted by overfishing and dredging. The intended impacts of the project are both economic and environmental. Local industries will be employed in the construction of the reefs, creating an immediate economic stimulus for  

coastal communities. Over the longer term, the project will improve recreational fishing and diving opportunities, boost fish stocks by thousands of kilograms each year (through providing fish nursery grounds) and protect coastlines against erosion.

 

The rebuilding of shellfish reefs will involve the transport of rock rubble by barge to each site that is then spread across the seafloor and 'seeded' with juvenile oysters and mussels from local hatcheries. Once built, fish will aggregate around the reef. The reefs will become fully established within three to five years, and mature and stable ecosystems within seven to ten years.

 

The delivery of the project will be through a one-off ad hoc grant of $20 million to the Trustee for The Nature Conservancy Australia Trust (The Nature Conservancy), an environmental non-government organisation. The funding for the project will be provided in 2020-21, with the delivery of the project by The Nature Conservancy to extend into 2021-22.

 

 

Human rights implications

 

Table item 455 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 455 is compatible with human rights as it does not raise any human rights issues.

 

Table item 456 - Murray-Darling Basin Water Information Platform

 

Table item 456 establishes legislative authority for government spending on the establishment and maintenance of a water information platform for the Murray-Darling Basin (the platform), a website providing information on water availability, allocations, use and trade, and other matters relating to the Murray-Darling Basin (the Basin).

 

The platform will improve access to information on water planning, policies and programs as part of the Government's Murray-Darling Communities Investment Package.

 

The platform will include information about:

*         water availability, allocations, use and trade;

*         water planning, policies and programs;

*         water levels in storages and in-stream flow rates;

*         water resource management and planning arrangements (for example river operations, water resource plans, and the Basin Plan information);

*         environmental watering events (which involve the delivery of water to key ecological sites to achieve environmental resilience and protection outcomes); and

*         water markets and trading.

 

Implementation of the platform will involve expenditure to procure services to develop a single authoritative water information platform through which the public can access a wide range of information online on water availability, allocations, use and trade, and other matters relating to the Basin.

 

Human rights implications

 

Table item 456 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 456 is compatible with human rights as it does not raise any human rights issues.

 

Table item 457 - National Forest Industries Plan - Online Resources

 

Table item 457 establishes legislative authority for government spending on the development of online guidance materials for farm forestry, private native forestry and forest resources on Indigenous land to support the growth of Australia's renewable timber and wood-fibre industry (the program).

 

The program is an initiative under the Australian Government's National Forest Industries Plan Growing a better Australia - A billion trees for jobs and growth (the Plan), which provides the long-term vision for Australia's forestry industry and supports the sustainable forest industries as growth engines for regional Australia.

 

A core priority of the Plan is to increase wood supply to respond to growing domestic and global demand for wood fibre. Generally, the size of the wood production estate in Australia has been static or falling over recent years, at a time when demand is increasing for renewable, environmentally sensitive resources, particularly from the construction and manufacturing sectors. The 2019-20 summer bushfires have exacerbated the looming wood supply shortfall in many regions and disrupted supply continuity.

 

The Plan includes measures to unlock the contribution to wood supply from farm forestry, and from forestry on Indigenous owned and/or managed land and private land. Grant funding of $0.5 million in 2020-21 will be provided to an industry body to collate and deliver online guidance materials on establishing, managing and marketing forestry resources to encourage landholders to increase wood supply for the industry.

 

Human rights implications

 

Table item 457 does not engage any of the applicable rights or freedoms.

 

Conclusion

 

Table item 457 is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

Senator the Hon Simon Birmingham

Minister for Finance