Future Drought Fund (Drought Resilience Funding Plan 2024-2028) Determination 2024

The determination introduces and relies on several key concepts. Drought Resilience Funding Plan is the plan itself, a statutory instrument that must be replaced every four years under the Act. Future Drought Fund is the $5 billion capital fund, with $100 million in returns available annually for spending (Schedule 1, clause 1(3)). The plan’s vision is “[a]n innovative and profitable agriculture sector, a sustainable natural environment, and adaptable rural, regional, and remote communities - all with increased resilience to the impacts of drought and climate change” (Schedule 1, clause 3). The aim is “[t]o build drought resilience, including climate resilience for the public good of the Australian agriculture sector, landscapes, and communities” (Schedule 1, clause 4). The concept of public good is central and is defined operationally: benefits “should be able to be accessed and or shared by many … rather than be captured solely by individual businesses or industries for private commercial gain” (Schedule 1, clause 2(4)). Public good may be established where there are “significant spill over benefits for society and the economy, well beyond those derived by private beneficiaries.” Where activities could deliver both public and private benefits, decisions should “seek to leverage private or industry co-contributions to offset private gains” (same clause). This definition is economic in nature: it prioritises non-rival, non-excludable benefits and actively seeks to minimise private capture of public funds. Drought resilience is defined as “the ability to adapt, reorganise or transform in response to changing temperature, increasing variability and scarcity of rainfall and or changed seasonality of rainfall, for improved economic, environmental and social resilience” (Schedule 1, clause 2(5) note). This explicitly links drought resilience to climate change adaptation, broadening the Fund’s scope beyond pure drought preparation. Strategic objectives are three-fold: economic resilience (productivity and self-reliance), environmental resilience (improving landscape function through natural resource management), and social resilience (social capital, wellbeing and connectedness of rural, regional and remote agricultural communities) (Schedule 1, clause 5(2)). The plan states these do not require equal funding allocation and should work together. Funding principles are split into two categories: fund-wide principles (clause 6(2)) which guide the mix of programs (e.g., geographic scale, multiple outcomes, transformational change, co-investment, robust governance) and principles relating to decisions about arrangements and grants (clause 6(3)) which apply to individual funding decisions (e.g., consistency with vision, public good, no hardship assistance, diversity, collaboration, efficiency, mandatory data sharing, monitoring and evaluation). The plan also introduces the notion of no unnecessary ongoing operational or maintenance dependencies (clause 6(2)(k)), which implies that funded projects should not create an expectation of indefinite Commonwealth funding. These concepts collectively create a framework that is less about direct service delivery and more about shaping the behaviour of grant recipients through eligibility criteria and conditionality.

The determination primarily affects the Commonwealth Minister for Agriculture, Fisheries and Forestry (who made the instrument), the Department of Agriculture, Fisheries and Forestry as the administering body, and the Regional Investment Corporation Board (which provides advice under section 28 of the Act). However, the downstream effects are broad. The plan explicitly lists beneficiaries and partners: farmers, industry representatives, farming systems groups, Natural Resource Management organisations, professional advisers, universities and other research organisations, the private and not-for-profit sectors, and rural, regional and remote communities (Schedule 1, clause 1(4)). First Nations people and communities are singled out as a group with which the Fund must improve engagement and foster partnerships (clause 6(2)(f)). The plan also notes that First Nations experiences of drought can differ from the broader community (clause 1(2)). Entities seeking grants or entering into arrangements under sections 21 and 22 of the Act will be directly affected by the funding principles. They must satisfy the public good test (clause 6(3)(b)), which may exclude projects primarily designed to boost a single firm’s profitability. The requirement to make data and knowledge freely available (clause 6(3)(g)) will affect commercial confidentiality and intellectual property strategies of recipients. The co-investment principle (clause 6(2)(j)) means that applicants must contribute financially or in-kind, increasing the cost of accessing funds. The prohibition on in-drought hardship assistance (clause 6(3)(c)) means that farmers or communities in immediate crisis cannot look to this Fund for relief; that role falls to other programs. The plan’s emphasis on longer-term enduring outcomes (clause 6(2)(d)) and transformational change (clause 6(2)(c)) suggests that incremental or short-term projects may be deprioritised. Professional advisers and consultants who assist with grant applications will need to understand the public good framing and co-investment requirements. The Regional Investment Corporation Board, when providing advice, must consider the principles in clause 6(3) (clause 6(4)). Ultimately, the determination channels $100 million per year in public funds, and any person or body that could benefit from or be affected by that spending is affected. The plan does not create direct legal rights for individuals to claim funding; it is a guide for the Minister’s discretion. Therefore, the real impact is on the allocation of resources and the conditions attached to them, which shapes incentives for farmers, research organisations, community groups, and private businesses that wish to participate in drought resilience activities.

The determination does not impose duties on private citizens or create enforceable rights. The duties it establishes are directed at the Minister (or delegate) when making spending decisions under the Act. Specifically, the Minister must ensure that each arrangement or grant made under sections 21 and 22 complies with the funding principles in clause 6 of Schedule 1. The principles are not mere guidelines: the plan is made under a head of power in the Act and therefore must be followed. The key duties are: (1) ensure activities are consistent with the vision, aim and strategic objectives (clause 6(3)(a)); (2) ensure activities deliver a public good (clause 6(3)(b)); (3) not provide in-drought assistance to directly address hardship (clause 6(3)(c)); (4) actively encourage participation of diverse people, businesses and landscapes including First Nations people (clause 6(3)(d)); (5) foster collaboration and avoid unnecessary duplication (clause 6(3)(e)); (6) design for efficient and effective outcomes (clause 6(3)(f)); (7) ensure data and knowledge from funded activities are shared freely in the public domain (clause 6(3)(g)); and (8) ensure planned monitoring, evaluation and learning activities are efficient, robust, and aligned with fund-level expectations (clause 6(3)(h)). Additionally, the fund-wide principles (clause 6(2)) are not technically duties on individual decisions but must be considered in designing the overall mix of programs. The Minister must ensure that the portfolio of arrangements and grants as a whole supports activities across different scales, prioritises multiple outcomes, considers transformational change, delivers enduring outcomes, includes robust governance, improves First Nations engagement, uses co-design, minimises compliance costs, uses transparent processes, requires co-investment, and avoids ongoing dependencies (clause 6(2)(a)-(k)). The duty to minimise compliance costs on farmers, businesses and community organisations (clause 6(2)(h)) is particularly notable as it imposes an obligation on program design, not just individual decisions. The Regional Investment Corporation Board has a duty to consider the principles in clause 6(3) when providing advice to the Minister under section 28 of the Act (clause 6(4)). For private parties, the determination creates no duties directly, but recipients of grants or parties to arrangements will face contractual obligations derived from the funding principles, such as data sharing, co-investment, and monitoring requirements. The right to seek funding is not created by this determination; it is preconditioned on the Minister’s compliance with the plan. There is no private right of action if the Minister fails to comply, though judicial review may be available under administrative law for error of law or failure to consider relevant matters. The plan also states that benefits from the Fund should “be able to be accessed and or shared by many” (clause 2(4)), which implies a duty on the Minister to ensure broad accessibility rather than capture by a few. In summary, the determination operates as a set of statutory constraints on executive spending, with indirect but significant effects on applicants.

The determination itself does not create any penalties or enforcement mechanisms. It is a funding plan that guides the spending of money, not a regulatory instrument that imposes sanctions. Enforcement of the conditions attached to grants or arrangements made under sections 21 and 22 of the Act will occur through the contractual or grant agreement framework. Standard Commonwealth grant terms typically include provisions for repayment of funds, suspension of payments, and termination of agreements if conditions are breached. The plan does, however, embed certain accountability requirements. It requires that arrangements and grants ensure “planned monitoring, evaluation, and learning activities are efficient, robust and in alignment with fund level monitoring, evaluation and learning expectations” (Schedule 1, clause 6(3)(h)). It also requires that programs have “robust governance practices and monitoring, evaluation and learning” (clause 6(2)(e)). These provisions create an obligation on the Minister to design oversight mechanisms, but the practical enforcement will depend on the terms of individual grant agreements. The requirement that data and knowledge be shared freely in the public domain (clause 6(3)(g)) could be enforced by the Commonwealth through audit and contractual remedies if recipients fail to comply. The fund-wide principle requiring that there be “no unnecessary ongoing operational or maintenance dependencies” (clause 6(2)(k)) suggests that programs should be designed to be self-sustaining after the grant period, but it does not create a legal penalty if a recipient later seeks further funding. The prohibition on providing in-drought assistance to directly address hardship (clause 6(3)(c)) is a constraint on the Minister; if a grant is made that violates this principle, it would be ultra vires the plan and potentially the Act. Judicial review could be sought by an aggrieved party, but that would be a remedy under administrative law, not a penalty under this instrument. The Act itself may contain provisions for recovery of misspent funds, but those are not detailed in this determination. For practical purposes, the main enforcement risk for recipients is the loss of funding or clawback for non-compliance with grant conditions reflecting these principles. The determination does not create criminal offences or civil penalties. It is best understood as a governance instrument that shapes the accountability framework for the Fund’s expenditure, with enforcement delegated to standard grant administration procedures and, ultimately, the possibility of judicial review for non-compliance by the Minister.

The determination is made under the Future Drought Fund Act 2019 (the Act) and operates within that statutory framework. It replaces the Future Drought Fund (Drought Resilience Funding Plan 2020 to 2024) Determination 2020 and is subject to the Act’s provisions regarding the plan’s commencement, duration, and repeal (see section 6 note and subsection 31(4) of the Act). The Act itself establishes the Fund’s object (enhancing public good by building drought resilience), the annual spending cap, and the powers to make grants and arrangements under sections 21 and 22. This determination is the specific plan that must be in place for the Minister to exercise those spending powers. The determination also notes alignment with the National Drought Agreement and the forthcoming Australian Government Drought Plan (Schedule 1, clause 1(4)). The National Drought Agreement is a Commonwealth-state agreement on drought policy, and this determination commits the Fund to operate within the Commonwealth’s agreed role under that agreement. The plan also references the Regional Investment Corporation Act 2018 indirectly, as clause 6(4) provides that the Regional Investment Corporation Board may consider the funding principles when giving advice under section 28 of the Act. The determination is registered under the Legislation Act 2003, and subsection 31(4) of the Act provides that the plan comes into force the day after registration. The determination states it commences the day after registration (section 2). The plan does not purport to override or interact with other specific federal laws such as environmental legislation, competition law, or intellectual property law, but the requirement to share data and knowledge freely (clause 6(3)(g)) may conflict with contractual or statutory confidentiality obligations that recipients have with third parties. Recipients will need to ensure compliance with the Privacy Act 1988 when sharing data that includes personal information. The public good criterion and co-investment principle may interact with state and territory drought programs, and the plan encourages collaboration to avoid duplication (clause 6(3)(e)). The plan’s inclusion of climate resilience (clause 2(5) note) ties it to Commonwealth climate change policies, but it does not explicitly reference the Climate Change Act 2022 or other climate legislation. The interaction with the Government Procurement (Judicial Review) Act 2018 or similar procurement rules is not addressed, but grant-making under sections 21 and 22 of the Act may be subject to Commonwealth Grant Rules and Guidelines. Overall, this determination sits inside a web of enabling legislation, intergovernmental agreements, and administrative rules, but its primary interaction is as the mandatory spending framework under the Act.

This determination is a replacement instrument, not an amendment of a previous one. It wholly replaces the Future Drought Fund (Drought Resilience Funding Plan 2020 to 2024) Determination 2020 (section 6). Under subsection 31(5) of the Act, the expression of replacement in this instrument triggers the automatic repeal of the earlier determination upon commencement. The previous plan covered 2020 to 2024. This new plan covers 2024 to 2028. The plan notes that it is reviewed and replaced every four years as required by the Act (Schedule 1, clause 1(5)). The determination was made on 7 February 2024 by the Minister for Agriculture, Fisheries and Forestry, Murray Watt. It was registered under the Legislation Act 2003 and commences the day after registration (section 2). There are no amendments scheduled in the text; it is the initial version of the 2024-2028 plan. The four-year review cycle means that a replacement will be required before February 2028. The Act requires that the plan be in place for the Minister to make spending decisions; any gap would likely halt new grants. The replacement process involves consultation, as the plan states that “robust consultation” ensures it reflects needs and lived experience (clause 1(5)). The 2020-2024 plan was similarly structured, though the text of that plan is not included. The differences between the 2020-2024 and 2024-2028 plans are not detailed in this instrument, but the new plan expands on the concept of public good, adds more detailed funding principles (including the two-tier structure), and explicitly links drought resilience to climate change more directly than its predecessor may have. The plan also introduces the supporting Investment Strategy document as a new layer (clause 2(3)). There is no exposure draft or explanatory memorandum referenced in the determination, though an explanatory statement may have been prepared separately. For practitioners, the key point is that this is a fresh plan, and any programs or agreements under the previous plan that extend beyond its repeal may need to be reauthorised or transitioned. The plan’s own note (section 2 note) says the plan is repealed at the end of the four-year period unless repealed earlier, so the 2024-2028 plan will expire automatically in early 2028 unless superseded.

The determination itself has no reported litigation history as it is a new instrument. No court or tribunal proceedings are referenced in the text. The predecessor plan (2020-2024) also does not appear to have generated significant litigation, or if it did, it is not mentioned. This is typical for a funding plan of this type: it sets policy direction for spending and is unlikely to be directly challenged unless a specific grant decision is judicially reviewed on grounds that the Minister failed to consider the plan or misinterpreted it. Potential grounds for judicial review of a decision under this plan could include: failure to take into account a mandatory relevant consideration (e.g., the public good principle), taking into account an irrelevant consideration, or acting for an improper purpose (e.g., using the Fund for hardship relief despite the prohibition in clause 6(3)(c)). The Administrative Appeals Tribunal (or its successor, the Administrative Review Tribunal) may have jurisdiction over some grant decisions, but the determination does not confer any merits review rights. The Future Drought Fund Act does not provide a statutory appeal mechanism for funding decisions. Given that the plan is principles-based and affords the Minister considerable discretion, litigation is likely to be rare and difficult to win. The public good criterion is broadly defined and could be the subject of dispute if a party argues that a funded project primarily benefits a private firm. However, the plan’s language that “wherever activities could deliver both public and private benefits, relevant decisions should seek to leverage private or industry co-contributions” (clause 2(4)) suggests that mixed-benefit projects are permitted as long as there is co-investment. This may head off some challenges. The requirement that data be freely shared (clause 6(3)(g)) could lead to disputes if recipients claim intellectual property rights are infringed, but any such dispute would likely be under contract or intellectual property law rather than under this determination. In the absence of any noted litigation history, the main takeaway is that the plan has not been tested in court. Future litigation could clarify the meaning of “public good” or “not provide in-drought assistance,” but as of now the instrument stands as written without judicial gloss. This creates some interpretive risk for the Minister and for applicants, who must rely on the plain language and any departmental guidance.

Several features of the determination may catch readers off guard. The prohibition on using Fund money for “in-drought assistance to directly address hardship” (clause 6(3)(c)) is a sharp exclusion. Farmers or communities experiencing immediate drought impact cannot look to this $100 million annual stream for emergency relief. The Fund is explicitly for building resilience before drought hits, not for crisis management. This may conflict with public expectations that a “drought fund” would help during drought. The public good criterion (clause 6(3)(b) read with clause 2(4)) is ambiguous: it requires benefits to be shared by many and not captured for private commercial gain, but the Minister retains discretion to decide what counts as “shared by many.” This could be used to exclude projects that primarily benefit a single farming enterprise or a narrow industry group, even if those projects have spillover effects. The mandatory data sharing requirement (clause 6(3)(g)) applies to all data and knowledge obtained from funded activities, not just reports. Recipients may be required to release raw data, business insights, or research findings into the public domain, potentially undermining commercial advantage or intellectual property. The clause states “freely made available in the public domain” - a broad and potentially onerous obligation. The co-investment principle (clause 6(2)(j)) says to require co-investment “where appropriate”, but the use of “require” makes it likely that many programs will demand financial or in-kind contributions from applicants, increasing the effective cost of participation. The no ongoing operational or maintenance dependencies principle (clause 6(2)(k)) means that projects designed to continue after the grant period must be self-funding, not reliant on further Commonwealth money. This will affect community groups or local governments that expect ongoing operational support. The absence of program-level detail in the plan itself (clause 2(2)) means that the actual criteria for individual grants will be set out only in the supporting Investment Strategy. That Strategy is not included in the determination and can be changed without amending the statutory instrument, creating a two-tier framework where the high-level plan is fixed but delivery details can shift. The plan also states that strategic objectives do not require equal funding (clause 5(3)), so one objective (e.g., economic resilience) could dominate at the expense of environmental or social resilience. The definition of drought resilience includes “ability to adapt, reorganise or transform” in response to climate change, which extends the Fund’s scope beyond traditional drought preparation to general climate adaptation, potentially diluting focus. The plan replaces the 2020-2024 plan (section 6), so any multi-year arrangements made under the old plan may need to be reviewed for consistency with the new principles, particularly the stronger public good and co-investment language. Finally, the four-year sunset (section 2 note) means that programs with longer timeframes face periodic uncertainty about continuation after 2028. Applicants should plan for a possible funding gap if a replacement plan is not in place on time.

Compliance with this determination is primarily a matter for the Minister and the administering department. For private entities seeking grants or entering into arrangements under the Fund, compliance means understanding and aligning with the funding principles to ensure proposals are eligible and competitive. The following practical steps apply.

First, any proposal must be consistent with the vision, aim and three strategic objectives of building economic, environmental and social resilience (clause 6(3)(a)). Applicants should map their project outcomes explicitly to one or more of these objectives. The project must deliver a public good (clause 6(3)(b)). This means the benefits should be widely accessible and not captured primarily for private commercial gain. If the project will generate private benefits, applicants must offer co-investment (financial or in-kind) to offset those gains, as stated in clause 2(4). The plan expects co-investment to be required “where appropriate” (clause 6(2)(j)), so applicants should proactively propose a co-contribution level. The project must not provide in-drought hardship assistance (clause 6(3)(c)): if the activity is a direct response to an existing drought emergency, it will be rejected. Instead, focus on preparation, adaptation, and transformation. The project must actively encourage participation of a diverse range of people, businesses and landscapes, including First Nations people (clause 6(3)(d)). Applicants should demonstrate how they will engage First Nations communities and other underrepresented groups. The project should foster collaboration and avoid duplication with existing activities (clause 6(3)(e)) - evidence of coordination with other drought resilience initiatives is essential. The project must be designed to deliver efficient and effective outcomes (clause 6(3)(f)), with clear metrics. Data and knowledge obtained from the project must be shared freely in the public domain (clause 6(3)(g)). Applicants should plan budgets for data management and publication, and should not assume that commercially sensitive data can be withheld entirely, though the plan does not clarify exceptions. The project must include monitoring, evaluation and learning activities that are efficient, robust, and aligned with fund-level expectations (clause 6(3)(h)). Applicants should propose an evaluation framework. At the fund-wide level, proposed programs should support activities at multiple scales (farm, community, regional, national) (clause 6(2)(a)), achieve multiple outcomes across the three strategic objectives (clause 6(2)(b)), consider incremental, transitional and transformational change (clause 6(2)(c)), deliver enduring outcomes (clause 6(2)(d)), and include robust governance (clause 6(2)(e)). Applicants should also ensure that there are no unnecessary ongoing operational or maintenance dependencies on the Commonwealth (clause 6(2)(k)), meaning the project should have a clear exit strategy or self-sustaining plan after the grant period. Finally, the department must use transparent, structured and contestable processes to select proposals (clause 6(2)(i)), so applicants should be prepared for competitive assessment. For the Regional Investment Corporation Board, when providing advice under section 28 of the Act, it must consider the principles in clause 6(3) (clause 6(4)). Non-compliance with these principles in the Board’s advice could lead to flawed ministerial decisions. In summary, compliance requires that every grant application be framed in terms of public good, co-investment, diversity, data sharing, no hardship relief, and long-term self-sufficiency, with a clear theory of change linking to economic, environmental and social resilience.