Primary Industries Research and Development Regulations 2024

The central concept of the regulations is the continuation of statutory RDCs as vehicles for industry funded research and development. Each RDC exists under the Act, but this instrument ensures their legal continuity under the current legislative framework. The regulations do not create new RDCs; they confirm that the existing bodies remain in existence with the same names.

Prescribed primary industry is a critical concept. The Act allows regulations to designate industries for particular treatment. Here, the fishing industry is prescribed for two purposes: inclusion in the Fisheries RDC’s annual report (section 6(1)) and accountability to representative organisations (section 6(2)). This prescription triggers specific duties under the Act that would not otherwise apply. For example, the accountability provision requires the Corporation to consult with and report to organisations that represent the fishing industry, giving those organisations a statutory foothold in governance.

Separate accounting records is the second major concept. For the Grains RDC, the obligation is triggered whenever funding relates to a joint venture agreement or a subsidiary. This prevents the commingling of funds from those sources with the Corporation’s general R&D pool. For the Rural Industries RDC, the obligation is per industry across 14 distinct agricultural sectors. The regulation specifies not only that separate records must be kept (paragraph 40(a) of the Act), but also the precise items that must be credited and debited (paragraph 40(b) of the Act). This is a tightly prescribed audit trail: every dollar that enters or leaves the Corporation’s R&D activities for a given industry must be traceable to that industry’s separate record. The table in section 8 is the mapping key: it links each industry (e.g. buffalo industry, ginger industry, tea tree oil industry) to the specific levy or charge imposed by the Primary Industries (Excise) Levies Regulations 2024 or the Primary Industries (Customs) Charges Regulations 2024, giving the common name. That mapping is legally operative for determining which amounts fall within the crediting and debiting rules.

The concept of R&D collected amounts is referenced but defined in the Primary Industries Levies and Charges Disbursement Act 2024. These are the portions of levies and charges that are designated for research and development as opposed to other purposes (e.g. marketing, residue testing). The regulation ensures that these amounts, once paid to the Rural Industries RDC, are credited to the relevant industry’s separate record.

Finally, the concept of disbursement rules and charges regulations is imported by reference. Definitions such as “buffalo industry”, “deer industry”, “fishing industry” and others are not defined in this instrument; they take their meaning from the Disbursement Rules. That creates a layered regulatory structure where one instrument cross references another, and both are needed to fully understand the obligations.

The regulations directly affect four statutory corporations: Cotton Research and Development Corporation, Fisheries Research and Development Corporation, Grains Research and Development Corporation, and Rural Industries Research and Development Corporation. Each must comply with the continuing existence provisions (section 5), but the substantive burdens fall unevenly.

The Fisheries Research and Development Corporation is affected by the prescription of the fishing industry for annual reporting and accountability purposes (section 6). This means its management must prepare an annual report that specifically addresses the fishing industry (not just its general activities), and it must engage with representative organisations of the fishing industry in a way that satisfies the Act’s accountability requirements. The organisation(s) that represent the fishing industry are affected as statutory interlocutors.

The Grains Research and Development Corporation must maintain separate accounting records for any R&D funding conducted through joint venture agreements or subsidiaries. This affects the Corporation’s internal accounting systems, its relationship with joint venture partners (who may have audit rights depending on the agreement), and any subsidiary entities. The cost is non trivial: separate ledgers, reconciliations, and periodic reporting are needed. The regulation does not prescribe what constitutes a “joint venture agreement”, leaving that to general contract law and the Corporation’s own classification decisions.

The Rural Industries Research and Development Corporation bears the heaviest compliance burden. It must set up and maintain separate accounting records for each of the 14 listed industries: buffalo, deer, fodder, ginger, goat fibre, honeybee, macropod, meat chicken, ostrich, pasture seed, queen bee breeding, rice, tea tree oil, and thoroughbred horse. Within each record, it must track specifically identified credit and debit items. This requires dedicated systems, trained staff, and auditable processes. The affected industries are not the largest agricultural sectors; several are niche (e.g. queen bee breeding, macropod, ostrich). The compliance cost per dollar of R&D is likely higher for these smaller industries because the fixed cost of separate accounting is spread over a smaller fund.

Levy payers in those industries are indirectly affected. While the regulation does not impose new levies, it ensures that their contributions are tracked separately. That gives them a stronger basis to challenge misallocation of funds, but also creates a risk that administration costs will reduce the net R&D money available. The thoroughbred horse industry is notable for being the only industry with a single levy line (no export charge), while several industries have both a domestic levy and an export charge (e.g. buffalo, honey, tea tree oil). The accounting records must handle both revenue streams.

The Department of Agriculture, Fisheries and Forestry and the Minister are affected as the responsible portfolio entities. The regulations are made by the Minister (Julie Collins) and will be administered by the department. Compliance monitoring and potential enforcement fall on the Minister and the departmental secretary.

The regulations impose four key duties, all on RDCs. First, the duty to continue in existence under section 5 is largely formal, but it means each RDC must operate within the Act’s governance framework and cannot be dissolved except by further legislative action. Second, the Fisheries RDC has a duty to include the fishing industry in its annual report and to be accountable to representative organisations of that industry (section 6). The Act’s paragraph 28(d) and subparagraph 29(b)(iii) likely require specific reporting content and consultation processes, though the details are not in this instrument.

Third, the Grains RDC has a duty to keep separate accounting records for R&D funding under joint venture agreements and subsidiaries (section 7). There is no duty to segregate funds for other purposes, only for these two categories. The duty applies for the purposes of paragraph 40(a) of the Act, which presumably authorises the Minister to require such records. The right of the Grains RDC to administer its general R&D funds without such segregation is preserved for all other activities.

Fourth, the Rural Industries RDC has a detailed duty under section 8. It must keep separate accounting records for each of the 14 industries. It must credit five categories of amounts (levy/charge disbursements to the extent equal to R&D collected amounts, contributions from industry, sale proceeds of R&D funded property, IP proceeds, and interest). It must debit all amounts spent on R&D for that industry under section 33 of the Act or section 22 of the Disbursement Act. The duty is continuing and applies to each item in the table. There is no discretion to pool funds across industries without separate records.

The rights created by the regulations are largely derivative. Industry participants in the 14 Rural Industries sectors have a right to expect that their levy and charge contributions are accounted for separately and not cross subsidising other industries. Representative organisations of the fishing industry have a right to be consulted under the accountability mechanism. Joint venture partners of the Grains RDC have a right to expect transparent accounting for joint venture R&D funds. However, these rights are not directly enforceable under the regulations; they are enforceable only through the Act’s provisions (which are not set out in this instrument). A levy payer who believes funds are misallocated would need to challenge the RDC’s compliance with the Act, with this regulation providing the standard of compliance.

The regulation does not create any rights of recourse for individual levy payers to demand access to the separate accounting records. It does not impose transparency obligations beyond the internal accounting structure. The accounting records are kept by the RDC and presumably subject to audit, but the public or levy payers may not have a direct right to inspect them unless the Act or other legislation provides that.

The Primary Industries Research and Development Regulations 2024 does not itself create any penalties. It is a procedural and administrative regulation made under the Act. Enforcement is therefore through the Act and its penalty provisions. The Act’s enforcement mechanisms are not reproduced in this instrument, but typical for such Acts include offences for providing false or misleading information, failure to keep records, or obstructing authorised officers. However, the central duties here (keeping separate accounting records, including a prescribed industry in an annual report, accountability to representative organisations) are not accompanied by specific penal provisions in the regulations.

Instead, the force of the regulations lies in how they frame the RDCs’ obligations under the Act. If the Grains RDC fails to keep separate accounting records for a joint venture, the Minister may have powers under the Act to direct compliance, appoint an administrator, or ultimately dissolve the Corporation. For the Rural Industries RDC, failing to maintain the 14 separate records would likely be a breach of paragraph 40(a) of the Act, which could have cascading consequences for the validity of its expenditure and disbursements.

The practical enforcement risk is that an audit by the Australian National Audit Office or a review commissioned by the Minister uncovers commingling of funds. In such a case, the RDC may need to reallocate spending, potentially disrupting R&D projects. The lack of specific penalties in the regulations means the primary recourse is administrative direction rather than criminal sanction, unless the Act contains relevant offences.

For levy payers and industry organisations, enforcement is indirect. They could raise concerns with the Minister, trigger a review, or use the annual report and accountability mechanisms in the Fisheries RDC context to demand explanations. There is no private right of action for breach of the regulations. The regulations do not allow a levy payer to sue the RDC for failure to keep separate accounts. This is a material gap for those who fund the system and bear the economic cost of inefficiency.

The regulations sit within a web of interconnected Commonwealth legislation and instruments. The primary enabling Act is the Primary Industries Research and Development Act 1989, which establishes the framework for RDCs, their functions, funding, and accountability. The regulations expressly reference specific provisions of that Act: paragraphs 8(b), 28(d), 29(b)(iii), and 40(a) and (b). To understand the full scope of duties, one must read these provisions of the Act, which are not set out in the instrument.

The regulations also cross reference three other legislative instruments. The Primary Industries Levies and Charges Disbursement Rules 2024 defines the scope of each industry (e.g. buffalo industry, deer industry) and the meaning of terms like “research and development collected amounts”. The Primary Industries (Excise) Levies Regulations 2024 and the Primary Industries (Customs) Charges Regulations 2024 impose the actual levies and charges that fund the R&D activities. The table in section 8 of these regulations identifies each levy or charge by reference to a specific subclause in those regulations. For example, the buffalo slaughter levy is imposed by subclause 8-1(1) of Schedule 1 to the Levies Regulations. The accounting records must correlate the receipt of that levy amount with the relevant industry record.

The Primary Industries Levies and Charges Disbursement Act 2024 is also referenced directly. Section 8(2)(a) and (3) refer to amounts paid under subsection 15(1) of that Act and to amounts spent under section 22 of that Act. This Act governs how levy and charge money flows from collection to disbursement across all primary industries. The regulations allocate a portion of those flows to the Rural Industries RDC for R&D.

Corporations law also interacts. The Grains RDC’s obligation to keep separate accounting records for a subsidiary implies that the subsidiary is a separate legal entity under the Corporations Act 2001. The regulation imposes an additional record keeping obligation beyond what corporate law requires for group accounts. Similarly, joint venture agreements are structured under general contract law and possibly under the Corporations Act if the joint venture is a separate entity.

Intellectual property law is implicitly engaged through section 8(2)(c)(iii), which requires crediting of amounts from dealings in patents or other intellectual property arising from R&D activities. This means the Rural Industries RDC must track IP proceeds and allocate them to the correct industry record. The actual ownership and exploitation of patents are governed by the Patents Act 1990 and other IP legislation, but the regulations dictate the accounting treatment.

Finally, the regulations may intersect with state legislation if R&D activities occur in state jurisdictions, but the instrument is purely Commonwealth and preempts inconsistent state law only to the extent of any express intention.

The Primary Industries Research and Development Regulations 2024 is a new instrument, made on 10 October 2024 and commencing on 1 January 2025. As at the date of making, it has no amendment history. The instrument was made by the Governor General on the advice of the Federal Executive Council, with the Minister for Agriculture, Fisheries and Forestry (Julie Collins) as the responsible minister. The commencement table shows only one row: the whole instrument commences on 1 January 2025.

No earlier regulations are cited as being repealed. It is possible that this instrument replaces earlier regulations made under the same Act, but the text does not state that. The absence of a repeal or saving provision suggests either that no comparable earlier regulations existed or that they are independently continued. Given the Act dates from 1989, there were likely earlier regulations, but they are not mentioned. A prudent reader should check if any predecessor instrument is still in force or was impliedly repealed.

The definitions section imports meanings from the Disbursement Rules, the Levies Regulations, and the Charges Regulations, all designated “2024”. This suggests a coordinated remaking of the entire primary industries regulatory suite in 2024. The practical effect is that the regulations are part of a broader legislative refresh, possibly consolidating or updating earlier versions. However, the instrument itself does not list the previous instruments it replaces.

No amendments have been made to this instrument as of its commencement. Any future amendments would need to be tabled in Parliament and might be subject to disallowance. Given that it is a regulation rather than an Act, it can be amended by executive action without full parliamentary debate, subject to disallowance procedures.

As at the commencement date of 1 January 2025, there is no litigation history associated with these regulations. They are a new instrument, and no court has yet interpreted their terms. However, the potential for future litigation exists in several areas.

First, the definitions of industries are imported from the Disbursement Rules. A dispute could arise over whether a particular producer or product falls within an industry definition (e.g. what constitutes the “buffalo industry” or the “fodder industry”). That dispute would likely involve interpreting the Disbursement Rules, not this regulation, but the effect would be on whether separate accounting is required.

Second, the crediting and debiting rules in section 8 are detailed. The Rural Industries RDC might face a challenge from an industry body alleging that certain amounts should have been credited or debited but were not. For example, interest on invested funds must be credited per paragraph 8(2)(d). If the Corporation invests industry funds at a low rate or fails to allocate interest correctly, that could be grounds for judicial review or a complaint to the Minister. Similarly, the treatment of intellectual property proceeds could be contested.

Third, the separate accounting requirement for Grains RDC joint ventures could lead to disputes over what constitutes a “joint venture agreement”. The term is not defined in the regulations. If the Grains RDC treats an arrangement as not being a joint venture and does not keep separate records, a partner or competitor could argue that the regulation applies. The court would need to interpret the scope of the term.

Fourth, the accountability provisions for the fishing industry (section 6) could generate litigation if an industry organisation argues that the Fisheries RDC did not adequately consult or report. The phrase “representative organisations” is not further defined, so disputes about which organisations qualify are possible.

Fifth, constitutional challenges are conceivable but unlikely. The regulation is grounded in the corporations power (as RDCs are Commonwealth statutory bodies) and the fisheries, grains, and rural industries powers indirectly. The allocation of levy funds through the disbursement system has been tested in other contexts.

No decisions from the Federal Court or High Court are cited in the instrument. Practitioners should monitor the Commonwealth Law Reports and the Federal Court’s decisions in primary industries matters for future case law.

The first gotcha is that the industry definitions are entirely imported from the Disbursement Rules. A reader who only reads these regulations will not know what “buffalo industry” or “honeybee industry” means. The definitions in section 4 merely point to the Disbursement Rules. Those Rules may include complex exclusions, thresholds, or inclusions that dramatically affect who is captured. Any compliance analysis must start with the Disbursement Rules, not with this instrument.

Second, the separate accounting requirement for the Rural Industries RDC is not a one size fits all. The table in section 8 lists 14 industries, but note that some industries have both a levy and a charge (e.g. buffalo, honey, queen bee breeding, tea tree oil), while others have only a levy (deer, ginger, goat fibre, macropod, meat chicken, ostrich, pasture seed, rice, thoroughbred horse) or only a charge (fodder). The crediting rules in subsection 8(2) apply to “a levy or charge covered by column 2”. If an industry has two entries (levy and charge), the accounting record must capture both. If only one, only that stream is required. But the accounting record is per industry, not per levy. So the Corporation must still maintain a single record per industry that credibly attributes both levy and charge receipts.

Third, the Grains RDC requirement in section 7 is limited to “funding of research and development activities carried out in accordance with a joint venture agreement” or by a subsidiary. It does not require separate accounting for all R&D activities. This may incentivise the Grains RDC to avoid joint ventures or subsidiaries to minimise administrative burden, which could be an unintended consequence that reduces collaboration.

Fourth, there is no explicit transitional provision in these regulations. They commence on 1 January 2025. If the Rural Industries RDC had existing accounting records for these industries before that date, it must adjust its systems from day one. Any commingling of pre commencement funds with post commencement funds could be problematic. The instrument does not state whether pre commencement balances must be retrospectively allocated.

Fifth, the phrase “to the extent those amounts are equal to the research and development collected amounts” in subsection 8(2)(a)(i) is critical. The disbursement of levy money to the RDC may include amounts for purposes other than R&D (e.g. marketing). Only the R&D portion must be credited to the separate record. The Corporation must identify which part of a payment is for R&D, relying on definitions in the Disbursement Act. If the disbursing body does not clearly earmark the R&D portion, the Corporation may face ambiguity.

Sixth, the debiting rule in subsection 8(3) covers “all amounts spent by that Corporation under section 33 of the Act, or section 22 of the Primary Industries Levies and Charges Disbursement Act 2024”. This is a comprehensive sweep. But spending that is not under those sections (e.g. administrative overheads not specifically allocated under those sections) may not need to be debited, leaving the record potentially unbalanced. The regulation does not require that the total debits equal total credits; it only requires that specified items be recorded. That could allow net balances to accumulate or be depleted without clear attribution.

Seventh, the regulations do not require the accounting records to be audited or made public. The separate records are for the Corporation’s internal purposes. Levy payers have no direct right to inspect them. This limits the transparency value of the requirement.

Eighth, the thoroughbred horse industry is listed with a levy imposed by subclause 12-6(1) or (2) of Schedule 1 to the Levies Regulations. The use of “(1) or (2)” suggests two alternative levy rates or triggers. The accounting record must be able to differentiate which subclause applies. This adds complexity.

For the Fisheries Research and Development Corporation, compliance with section 6 requires two actions. First, ensure the annual report includes specific information about the fishing industry (whatever that requires under the Act). Second, establish a process for accountability to representative organisations of the fishing industry. That may involve identifying which organisations are “representative”, consulting with them on R&D priorities, and reporting back. Document all engagements.

For the Grains Research and Development Corporation, section 7 requires that any R&D funding carried out under a joint venture agreement or by a subsidiary be accounted for in separate financial records. This means: (a) identify all current and future joint venture agreements, (b) identify all subsidiaries, (c) for each, open a separate ledger or sub ledger for R&D funding, (d) ensure that all inflows and outflows related to that joint venture or subsidiary are recorded solely in that ledger, (e) reconcile periodically, and (f) be prepared to demonstrate the segregation to auditors or the Minister. The Corporation should also review existing agreements to determine whether they fall within the definition of “joint venture agreement” under general law. If in doubt, err on the side of separate records or seek legal advice.

For the Rural Industries Research and Development Corporation, compliance with section 8 is the most demanding. The Corporation must take the following steps.

1. Map the 14 industries in the table to the industry definitions in the Disbursement Rules. Obtain a current copy of those rules and ensure the legal meaning of each industry is understood.

2. For each industry, establish a separate accounting record. This could be a general ledger account or a distinct sub ledger. The record must be capable of receiving credits and debits for that industry only.

3. Identify all payments received from the Commonwealth under subsection 15(1) of the Disbursement Act that relate to the R&D collected amounts for each industry. For each payment, determine which portion is the R&D collected amount (as defined in that Act) and credit that amount to the relevant industry record.

4. Identify all contributions received from industry participants (e.g. voluntary contributions, matching payments). Credit these to the relevant industry record.

5. Track all sales of property that were paid for by R&D money spent under section 33 of the Act or section 22 of the Disbursement Act. When property is sold, allocate the proceeds to the industry whose funds were used to acquire it. Similarly, track production sales and IP dealings. Crediting these amounts to the correct industry record requires a cost allocation system that links each asset or intangible to the original funding source.

6. For interest earned on invested funds, allocate the interest to the industry record that provided the original investable amount. This requires maintaining a pool of investments per industry or calculating a pro rata share of pooled investments.

7. For debits, all amounts spent under section 33 of the Act or section 22 of the Disbursement Act for R&D activities relating to that industry must be debited. This means the Corporation must have a project accounting system that tags each expenditure by industry. Overheads directly attributable to an industry’s R&D should be included; general corporate overhead not allocated under those sections may not need to be debited, but the Corporation should document its methodology.

8. Regularly reconcile each industry record to ensure that credits and debits are complete and accurate. The records should be auditable. The Corporation should engage internal audit or external auditors to test compliance.

9. Maintain records for at least the statutory retention period under the Act or general Commonwealth records requirements (likely 7 years). The regulations do not prescribe a retention period, so the Act’s default applies.

10. For the fishing industry, also comply with section 6 as noted above. For the Grains RDC, comply with section 7.

All RDCs should also keep a copy of the Disbursement Rules, Levies Regulations, and Charges Regulations as they exist at the relevant time, because the definitions and levy identifications may change over time. The regulation does not incorporate those instruments as in force from time to time (it says “means as in the Disbursement Rules”, which likely means as defined at the time of operation, but this should be confirmed by a lawyer). If the underlying instruments are amended, the RDC must update its systems accordingly.

Finally, the RDCs should document their compliance approach in a policy or manual, including how they decide what constitutes a joint venture agreement (for Grains) and how they allocate property sales and IP proceeds (for Rural Industries). That documentation will be critical in demonstrating compliance to the Minister, auditors, or a court.