Primary Industries (Consequential Amendments and Transitional Provisions) Rules 2024

The instrument relies on several key concepts defined in section 4 and cross-referenced to the enabling Act. Levy and charge have the same meanings as in the Primary Industries Levies and Charges Collection Act 1991 as in force immediately before commencement (1 January 2025). That Act defines levy broadly as an amount imposed under an excise or customs levy Act, and charge as an amount imposed under a customs charges Act. Fishing levy means the levy imposed by section 5 of the Fishing Levy Act 1991. Fodder takes its meaning from Part 5 of Schedule 14 to the Primary Industries (Customs) Charges Regulations 2000 as in force immediately before commencement. Sugar cane takes its meaning from Schedule 24 to the Primary Industries (Excise) Levies Act 1999 as in force immediately before commencement. These definitions are frozen in time: any later amendments to the underlying regulations or schedules do not affect the meaning for the transitional rules.

Collection products and matching payments have the meanings given by Schedule 4 to the Primary Industries (Consequential Amendments and Transitional Provisions) Act 2024. That Schedule defines collection products by reference to the new disbursement framework; matching payments are government contributions to research and development corporations. Old disbursement law means the disbursement provisions that were in force under the various repealed Acts, as continued by Schedule 4 to the enabling Act. Old fisheries disbursement law specifically means the Primary Industries Research and Development Act 1989 and the Fisheries Research and Development Corporation Regulations 1991 as in force immediately before the commencement of item 1 of Schedule 4 to the enabling Act.

The transitional rules themselves are divided into two parts. Part 1 is preliminary (name, commencement, authority, definitions). Part 2 contains the substantive transitional provisions (sections 5 to 12). Each section addresses a specific product, period, or administrative continuity issue. There is no general saving provision; rather, each transitional rule is tailored. This means that if a product or situation is not covered by these rules, the old law does not continue unless the enabling Act itself saves it.

The concept of continued application is central. When the instrument says a law continues to apply, it means the law operates as if it had not been repealed or amended, but only for the specified period and subject to any modifications expressed in the rules. For example, under section 5, the old sugar cane levy provisions continue only for the 12-month period beginning 1 March 2024; after that period, the new regime applies. The modification in subsections 5(3) and 5(4) overrides the old due dates, creating a hybrid of old substantive rules and new procedural due dates. This approach reduces the risk of default under old provisions while keeping the substantive levy base and rate unchanged.

The instrument also preserves declared bodies under section 10. These are bodies declared under specific Acts for the purposes of receiving disbursements, such as Meat and Livestock Australia, Dairy Australia, etc. The declarations continue in force for the continued application of the old disbursement law. This ensures that disbursement payments under the old law can still be made to the correct bodies without a gap.

Appropriations under section 12 are extended to cover payments under the continued old laws, the continued Animal Health Council funding, and the continued Plant Health Australia funding. Without this, there might be no lawful authority for the Commonwealth to disburse money under those continued provisions. This is a standard transitional necessity.

The rules affect a narrow but important group within the primary industries sector. The most directly affected are sugar cane growers, harvesters, and first purchasers who are liable for the sugar cane levy under the old excise levy regime. Because the levy period began on 1 March 2024, before the instrument's 1 January 2025 commencement, these participants may have already been operating under the old law for several months. The rules preserve that legal continuity but change the due date for payments and returns to the last day of each month. This affects cash flow timing and lodgement obligations for the remainder of that 12-month period.

Fodder importers and any persons liable for the customs charge on fodder are similarly affected for the 12-month period beginning 1 July 2024. This likely includes importers of animal feed products classified as fodder under the old regulations. The same due date shift applies. The defined term fodder is tied to the old Customs Charges Regulations, so the scope is fixed as at 1 January 2025.

Mushroom producers or purchasers who had an approval under the old collection regulations for an alternative payment method for the 2024-2025 financial year are automatically deemed to have an approval for the 2025-2026 financial year under the new rules. This affects a small subset of the mushroom levy population, likely large producers who qualified for the alternative method. The new approval can be revoked under the new rules, so these persons must be aware that the continuity is not guaranteed; if they fail to meet the new conditions, their approval may be cancelled.

Commercial fishers liable for the fishing levy are affected by section 7, which continues the old fisheries disbursement law for the financial year beginning 1 July 2023 and any earlier financial year. This means that for the 2023-2024 year, the old research and development corporation arrangements apply. However, the instrument does not continue the old law for later years, so fishers must switch to the new disbursement regime for the 2024-2025 year onward, subject to the enabling Act.

Bodies that have been declared under the various industry Acts (meat, dairy, egg, forestry, horticulture, pig, sugar, wool) are affected by section 10, which preserves their declarations for the continued application of the old disbursement law. These bodies continue to receive matching payments and disbursements under the old framework for as long as it applies. They may also be affected by the modification to matching payments under section 11, which alters the reference base for the old fisheries disbursement law to include amounts paid under the new disbursement Act.

Administrators and delegates under the old collection Act and old disbursement law are affected by section 9, which preserves existing authorisations and delegations. This means that persons authorised to collect information or enforce compliance under the old laws continue to have that authority for the continued application of those laws. No new appointments are needed for the transitional period.

Finally, the Commonwealth is affected by section 12, which ensures that appropriations under the new Disbursement Act cover payments under the continued old laws. Without this, the Commonwealth could not lawfully make matching payments or other disbursements under the old framework. The effect is on Treasury and the relevant portfolio departments.

The instrument imposes few new duties; it mainly modifies existing duties from the continued old laws. For sugar cane levy payers and fodder charge payers, the primary duty is to pay the levy or charge and lodge returns in accordance with the old collection Act, but with the modified due date. The duty to pay on time remains, but the due date is now the last day of the month rather than whatever earlier date the old regulations prescribed. This is a right: the payer gains additional time to pay and lodge. It is not a waiver of the obligation; it is a postponement to a standardised date.

The right to use an alternative payment method for mushroom levy is carried over under section 6. A person who had an approval for the 2024-2025 financial year is taken to have an approval for the 2025-2026 financial year. This is a right to continue using the alternative method without reapplying. However, it is a conditional right: subsection 6(2) expressly states that the new approval can be revoked under the new collection rules. Therefore, the holder of the approval does not have an absolute right; they must continue to satisfy the conditions for the alternative method under the new rules. If they fail to do so, the revocation may occur without triggering a right to a hearing under these rules (though general administrative law may apply).

For declared bodies under section 10, the right to be recognised as a declared body for the purposes of the old disbursement law continues. This means the body can continue to receive disbursements and matching payments under the old framework. The right is not indefinite; it continues only for the continued application of the old disbursement law as provided by the enabling Act. The body does not need to reapply for declaration during the transitional period.

Under section 11, the old fisheries disbursement law is modified for the 2024-2025 financial year to include amounts paid under the new disbursement Act in the base for matching payments. This gives the Fisheries Research and Development Corporation a broader base for calculating government matching payments, potentially increasing its funding. It is a right for the corporation to have its matching payments calculated more favourably for that one year.

There are no express rights to opt out of the transitional provisions; they apply automatically to the persons and periods specified. A person cannot choose to be governed by the new law for the sugar cane levy or fodder charge during the transitional period. The old law continues regardless. However, the due date modification is a benefit, not a burden.

The duty to maintain records and comply with information-gathering powers under the old collection Act continues, as the old law continues. Section 9 preserves authorisations and delegations, which means that authorised officers under the old Act retain their powers for the transitional period. This imposes a duty on levy and charge payers to respond to such officers as if the old law were fully in force.

The instrument itself does not create any new penalties or enforcement mechanisms. There are no offence provisions, no infringement notices, and no civil penalty provisions within this legislative instrument. However, because the old laws continue to apply for specific periods and transactions, the penalty and enforcement provisions of those old laws continue to apply as well. For example, under the Primary Industries Levies and Charges Collection Act 1991 as in force before 1 January 2025, there were penalties for late payment, failure to lodge returns, and providing false information. Those penalties remain applicable for sugar cane levy and fodder charge obligations during the continued periods under section 5.

Similarly, under the old fisheries disbursement law continued by section 7, any enforcement provisions in the Primary Industries Research and Development Act 1989 (or regulations) that relate to the fishing levy remain operative for the 2023-2024 financial year and earlier years. The instrument does not preserve those penalties expressly; it preserves the law itself, which includes penalties.

The due date modifications in subsections 5(3) and 5(4) could affect penalty calculations. If a payment was due on a day other than the last day of the month, that due date is now the last day. This means that a payer who would have been late under the old due date may now be on time, avoiding penalty. Conversely, a payer who relied on the old due date and paid on that date might now be early; no penalty issue arises.

For the mushroom levy alternative payment method, if the new approval is revoked under the new rules, the person must revert to the standard payment method. Failure to do so could lead to penalties under the new collection rules. But that revocation is a future administrative act, not a penalty imposed by this instrument.

Section 9 preserves authorisations and delegations under the old collection Act. This means that authorised officers can continue to exercise powers such as entry, inspection, and record-keeping requirements. Non-compliance with those powers could lead to penalties under the old Act. However, the instrument does not specify which penalties from the old Act continue; it relies on the continued application of the whole Act.

Enforcement is likely to be handled by the Department of Agriculture, Fisheries and Forestry, or the relevant research and development corporations. The instrument does not designate a specific enforcer. Because the transitional provisions are time-limited, the enforcement risk is concentrated within defined windows.

Legal practitioners advising clients should check the penalty provisions of the old Acts as they stood on 31 December 2024. Those provisions remain effective for the transitional periods. The maximum penalties are not set out in this instrument; they are in the underlying Acts. For example, the Primary Industries Levies and Charges Collection Act 1991 may have had penalties of up to 60 penalty units for certain offences. Those penalties continue to apply.

The instrument sits within a larger legislative restructure. It is made under item 16 of Schedule 4 to the Primary Industries (Consequential Amendments and Transitional Provisions) Act 2024. That Act repealed or amended numerous primary industry statutes and created new ones, such as the Primary Industries Levies and Charges Collection Rules 2024 and the Primary Industries Levies and Charges Disbursement Act 2024. This instrument bridges the gap between the old and new regimes.

The most direct interaction is with the new collection rules. Section 6 of this instrument provides that an approval under the old collection regulations is taken to be an approval under clause 36-4 of Schedule 2 to the Primary Industries Levies and Charges Collection Rules 2024. This means the new rules govern the terms of the approval from the 2025-2026 financial year onward. The instrument also allows revocation under the new rules. Therefore, after the transitional year, the new rules fully apply.

Section 12 interacts with the new Disbursement Act by extending its appropriation provisions to cover payments under the continued old laws. This means that sections 37, 52, and 62 of the Primary Industries Levies and Charges Disbursement Act 2024 are deemed to apply to payments under the old disbursement law, the Australian Animal Health Council (Live-stock Industries) Funding Act 1996, and the Plant Health Australia (Plant Industries) Funding Act 2002. Without this, those payments would lack legislative authority after the repeal of the old appropriation provisions.

The instrument also interacts with the enabling Act's Schedule 4, which contains the main transitional provisions for disbursement law. This instrument supplements that Schedule by providing more detailed rules for specific products (sugar cane, fodder, fishing levy) and administrative continuity (authorisations, delegations, declarations). Where the Schedule says something applies, this instrument may modify it or add conditions. For example, the Schedule may provide generally for the continuation of old disbursement law, but this instrument in section 5 limits that continuation to specific periods and modifies due dates.

Section 8 interacts with the Horticulture Marketing and Research and Development Services Act 2000, which was repealed by the enabling Act. It preserves section 9 of a regulation made under that Act, ensuring that instruments in operation (likely contracts or agreements for transfer of assets and liabilities) remain effective. This prevents the repeal of the parent Act from invalidating subordinate instruments.

Section 11 interacts with the new disbursement Act by importing its payment amounts into the old fisheries disbursement law's matching payment formula. This is a narrow but important interaction: it ensures that amounts paid under the new Act are counted for the purpose of calculating government matching payments for the Fisheries Research and Development Corporation for one year.

The instrument does not interact with Commonwealth-state schemes such as the Australian Animal Health Council or Plant Health Australia beyond appropriations. It does not affect state levies or charges; it deals only with Commonwealth levies and charges.

There is no express savings for the operation of the Criminal Code or the Acts Interpretation Act 1901; those general laws apply as usual. The instrument is a legislative instrument within the meaning of the Legislation Act 2003.

As at the date of writing, this instrument has no amendment history. It is an original instrument made on an unknown date in 2024 and commenced on 1 January 2025. The table in section 2 notes that the commencement table relates only to the provisions as originally made and will not be amended to deal with later amendments. This is a standard drafting caution.

Because the instrument is transitional, its provisions have a limited lifespan. Most provisions apply for defined periods (e.g., sugar cane levy till 28 February 2025, fodder charge till 30 June 2025). After those periods, the provisions will cease to have practical effect. The instrument will likely be repealed or left to expire by effluxion of time.

Future amendments could occur if the transitional periods need adjustment, or if further products or situations require transitional treatment. Any amendment would be made by another legislative instrument under the same enabling power. The instrument does not contain a sunset clause; it relies on the natural expiry of the transitional periods.

Legal practitioners should monitor the Federal Register of Legislation for any amending instruments. Given that the parent Act is part of a substantial rewrite of primary industries law, there may be subsequent instruments correcting errors or extending transitional periods if the new rules are not fully operational.

There is no reported litigation concerning this instrument. It is very new and transitional. Given its narrow scope and administrative nature, it is unlikely to generate significant litigation. Disputes could arise over the interpretation of the continued old laws, especially the due date modifications. For example, a person might argue that the due date shift does not apply because the original due date was already the last day of the month, or that the shift applies to a particular type of payment not covered by the wording. Such disputes would be resolved under general administrative law or in the Federal Court.

The instrument could be challenged on validity grounds if it is argued that it exceeds the regulation-making power in item 16 of Schedule 4. However, item 16 likely gives broad power to make transitional rules. The instrument is consistent with the enabling Act's purpose of orderly transition.

There are no cases cited in the instrument itself. The explanatory materials (not provided) may discuss the policy rationale but are not part of the law.

Several features of the instrument could catch practitioners off guard. First, the definitions in section 4 are frozen as at the commencement of each section. This means that if the underlying definition of fodder or sugar cane changes after 1 January 2025 under other instruments, those changes do not affect the transitional rules. But the definitions are expressed as "as in force immediately before the commencement of this section". Because the instrument commences as a whole on 1 January 2025, "immediately before the commencement of this section" means immediately before 1 January 2025. However, if a section were to be amended later and re-commenced, the frozen date could theoretically shift. Practitioners should check the exact wording of each section, but in the original instrument, all sections commence at the same time.

Second, the due date modification in subsections 5(3) and 5(4) applies only if the due date is a day other than the last day of the month. If the old law already specified the last day, there is no change. The instrument does not clarify what happens if the old due date was a range of dates or a period. It also does not address the situation where the due date falls on a weekend or public holiday; the old law's rules on that continue.

Third, section 6 deems an approval to have been granted under the new rules, but subsection 6(2) allows revocation in accordance with the new rules. A person who relies on the deemed approval may find it revoked if they fail to meet the new rules' conditions, which might differ from the old conditions. They should not assume the same method continues unchanged.

Fourth, section 7 continues the old fisheries disbursement law only for the financial year beginning 1 July 2023 or any earlier financial year. This means that for the 2024-2025 financial year, the old fisheries disbursement law does not continue under this instrument. However, the enabling Act may provide a separate continuation. Practitioners must check Schedule 4 of the enabling Act to see if the old fisheries disbursement law continues more broadly.

Fifth, section 8 preserves only section 9 of the Horticulture Marketing and Research and Development Services (Transfer of Industry Assets and Liabilities) Regulation 2014. It does not preserve the whole regulation or the parent Act. If there are other provisions in that regulation that are necessary for the operation of section 9, they may not continue unless saved elsewhere. This creates a risk that the preserved section may be unworkable if its context is repealed.

Sixth, section 9 preserves authorisations and delegations "in relation to the continued application of that Act, and the regulations under that Act". If a delegation was made under an old Act that has been repealed, but the delegation relates to both continued and non-continued applications, it may be unclear whether the delegation operates for the non-continued parts. The wording limits the continuation to "in relation to the continued application", suggesting that the delegation only applies for the transitional period and subject matter.

Seventh, section 10 preserves declared body declarations only for the continued application of the old disbursement law. As soon as the old disbursement law ceases to apply for a particular product, the declaration ceases to have effect for that purpose. Bodies may need to be declared anew under the new disbursement law.

Eighth, section 12's extension of appropriation provisions to continued laws might be overlooked by Treasury and departmental finance officers. If they assume the new appropriations only cover the new regime, they might not authorise payments under the old laws. The instrument cures this, but practitioners should ensure that the relevant officers are aware of section 12.

Finally, the instrument does not include a regulation-making power of its own; it is made under a specific item in a Schedule. Therefore, it cannot be amended by future regulations under a general power; any amendment must be by another instrument under the same item. This limits flexibility.

Compliance with this instrument does not require filing any new forms or obtaining any new approvals in most cases. The instrument operates automatically. However, affected persons should take several practical steps.

For sugar cane levy payers and fodder charge payers, check whether you are within the 12-month periods (1 March 2024 to 28 February 2025 for sugar cane; 1 July 2024 to 30 June 2025 for fodder). If you lodged returns or made payments under the old due dates before the instrument commenced, you may have been early. For any payments or returns with due dates after 1 January 2025, recalculate the due date: if the old law said payment is due on, say, the 15th of the month, it is now due on the last day of that month. Adjust your internal systems and cash flow accordingly. If you have already paid by the old due date, you have complied early; no further action needed. If you have not yet paid, you now have until the last day.

For mushroom levy participants who had an alternative payment method approval for the 2024-2025 financial year: you are deemed to have an approval for the 2025-2026 financial year. You do not need to reapply. However, you should review the conditions of the new approval under clause 36-4 of Schedule 2 to the Primary Industries Levies and Charges Collection Rules 2024. If you do not meet those conditions, your approval may be revoked. Contact the relevant collection authority to confirm the conditions and ensure you continue to qualify. If you wish to cease using the alternative method, you may need to notify the authority, as the approval remains in force until revoked.

For fishing levy payers: ensure compliance with the old fisheries disbursement law for the 2023-2024 financial year and any earlier years for which the old law continues. For the 2024-2025 financial year, note that this instrument does not continue the old law; you must comply with the new regime unless the enabling Act provides otherwise. Check the new disbursement rules and collection rules for your obligations.

For declared bodies under section 10: no action is needed; your declaration continues automatically. However, you should verify that your declaration was in force immediately before 1 January 2025 and that it falls within the listed Acts in subsection 10(2). If your declaration was made after that date, it may not be covered. For bodies not covered, you may need to seek a new declaration under the new law. Also note that the continuity is only for the continued application of the old disbursement law; once that ceases, the declaration may need to be renewed.

For persons who hold authorisations or delegations under the old collection Act or old disbursement law: your authority continues only for the continued application of those laws. You cannot exercise powers under the new law unless you have a fresh delegation. Check the instrument of delegation to see if it explicitly limits its application to the old law. If so, you may need a new delegation under the new Act for any actions not covered by the transitional provisions.

For Commonwealth officials making payments: ensure that you cite the correct appropriation. Section 12 of this instrument allows payments under sections 37, 52, and 62 of the Primary Industries Levies and Charges Disbursement Act 2024 to be used for continued old law payments. Do not rely solely on old appropriation Acts, which may have been repealed. Update your payment systems to reference the new appropriation provisions.

Record-keeping: maintain records as required under the continued old laws. The due date shift does not affect the retention periods or content requirements. For sugar cane and fodder, keep records of levy payments, returns, and any communications with the collection agency. For mushroom levy, keep evidence of your deemed approval (e.g., a copy of the old approval letter) in case it is questioned.

Finally, stay alert for any amending instruments that might adjust the transitional periods or add new products. The restructure of primary industries legislation is ongoing, and further transitional instruments may be needed. Monitor the Federal Register of Legislation for updates.