Primary Industry Funding Schemes (Clare Valley Wine Industry Fund) Regulations 2021

Clare Valley means the geographical area for which the Commonwealth geographical indication “Clare Valley” is in force under the Wine Australia Act 2013 at the commencement of the regulations. Schedule 1 provides a map “for information purposes only”, so the legal boundary is determined by the Commonwealth GI, not the map. This definition is critical because it determines which grapes are subject to the levy. Clare Valley grapes are grapes of any variety grown in that area and used or intended to be used for wine. Clare Valley winemaker is a person who carries on a business of making wine and processes Clare Valley grapes for that purpose. The definition does not require the winemaker to be located in the Clare Valley, or to grow any grapes; it is the processing of Clare Valley grapes that triggers the classification.

Delivered has a special extended meaning. For a sale, delivery occurs when the winemaker takes possession of the grapes. For a winemaker who also grows grapes, delivery is deemed to occur when the winemaker places the grapes in a container for purposes of commencing processing (including placing in a container for fermentation or in preparation for crushing or pressing). This deeming rule ensures that self-supplied grapes are treated identically to purchased grapes for levy purposes.

Prescribed period is the levy period. For the transitional period it includes the 12 months commencing 1 June 2021 (governed by the revoked 2008 regulations). From 2022 onward, the prescribed period is each 12 month period commencing 1 June. The definition was amended in 2023 to insert “or on 1 June in any subsequent year” to make clear the periodic nature.

Contributions are the amounts payable. For a winemaker with a vineyard, facility or cellar door in the Clare Valley, the contribution is the greater of (i) a minimum amount fixed by the Minister or (ii) the sum of a per tonne amount for the winemaker’s own grapes and a per tonne amount for grapes grown by others and delivered to the winemaker. For a winemaker without such a presence in the valley, the contribution is simply the per tonne amount for grapes grown by others. The grower also owes a per tonne contribution, but this is collected by the winemaker and remitted on the grower’s behalf. The Minister may fix maximum amounts payable by growers or winemakers, and may vary amounts mid period via Gazette notice; variations after the period has begun apply only to deliveries after the variation takes effect.

Default in relation to contributions occurs if within the immediately preceding two prescribed periods either (a) some or all contributions payable by the person have not been paid, or (b) the person has been refunded contributions. Notably, having been refunded contributions within the preceding two periods is itself a default, regardless of whether the refund was lawful. This means that a person who claims and receives a refund for a given period may be excluded from benefits for the next period until they have paid contributions in two subsequent periods without refund. The default concept is used only to exclude persons from benefits funded by the Fund; it does not itself create a debt or penalty.

The Fund is the Clare Valley Wine Industry Fund, which continues in existence from the 2008 regulations. It is administered by the Minister and comprises contributions, investment income, and other sums received. The Minister makes spending decisions. The representative body is not named in the regulations but is a body that in the Minister’s opinion represents Clare Valley winemakers or growers (or both). Payments from the Fund to such a body may cover its operating and management expenses, promotion, research, information dissemination, industry event participation, communication and cooperation programs, and “other purposes of the body”. The Minister may also make payments for any other purpose for the benefit of the Clare Valley wine industry.

The regulations directly bind any person who carries on a business of making wine and processes Clare Valley grapes , that is, any Clare Valley winemaker. This includes both winemakers located inside the Clare Valley GI area and those located outside it, provided they process grapes grown in the Clare Valley. A winemaker making wine exclusively from grapes grown outside the Clare Valley is not affected. Winemakers with a vineyard, winemaking facility or cellar door in the Clare Valley are subject to a different contribution formula (they must pay on their own grapes and on purchased grapes, with a minimum amount) compared to winemakers without such a presence (who only pay on purchased grapes). The regulations also directly bind growers of Clare Valley grapes who sell those grapes to a Clare Valley winemaker , they owe a per tonne contribution, collected by the winemaker. A grower who only grows grapes for a winemaker outside the Clare Valley is not affected.

The Minister for Agriculture, Food and Fisheries (or the relevant portfolio Minister) is the administrator of the Fund and the decision maker for key functions: fixing contribution amounts (per tonne, minimum and maximum), varying amounts by Gazette notice, approving refund claims, determining the representative body, deciding on payments from the Fund, and authorising persons to inspect records. The Minister also receives financial statements and contributions. A person authorised by the Minister may inspect winemaker records at any reasonable time.

An industry representative body (likely the Clare Valley Wine and Grape Association or similar) is the intended beneficiary of the majority of Fund disbursements. The regulations do not prescribe which body; the Minister decides. That body receives taxpayer-levy money for its operations, promotion, research, and other purposes. The body also may receive information from the Minister identifying which contributors have paid or been refunded, which presumably assists in monitoring default status.

Indirectly affected are consumers of Clare Valley wine, because the levy increases the cost of grape production and wine making, which may be passed through in prices. Competing wine regions without similar compulsory levies may have a small cost advantage. Third party suppliers (e.g. labour, contractors, service providers to Clare Valley wineries) may be affected if winemakers reduce spending in response to the levy or if the Fund’s promotional activities shift demand.

Persons in default are excluded from direct benefits or services funded by the Fund. This affects growers and winemakers who have unpaid contributions or have received a refund within the preceding two prescribed periods. The exclusion is a structural disincentive to seek refunds, and it penalises non payment by denying access to industry good funded by other contributors.

The South Australian Government (through the Minister and administering department) bears administrative costs, which are explicitly payable from the Fund, meaning the industry ultimately funds its own regulation. Taxpayers are not materially affected because the Fund is industry funded.

Duties of Clare Valley winemakers:

• Contribution duty: Pay contributions for their own grapes and, on behalf of growers, for purchased grapes. The amount is the greater of the minimum or the sum of per tonne amounts, as fixed by the Minister. Payment is due on or before the last day of the month following the prescribed period (e.g. 31 July for the June-May period).
• Record keeping duty: Keep proper records of the tonnage of Clare Valley grapes delivered, the growers of those grapes, and the contributions required (both own behalf and on behalf of growers). Records must be available for inspection by a person authorised by the Minister at any reasonable time.
• Reporting duty: Furnish the Minister with a financial statement in the form and containing the information required by the Minister, in electronic form if the winemaker has the necessary equipment. This must be accompanied by payment of the total contributions due. The statement is due on the same date as payment.
• Collection duty: Deduct the grower’s contribution from the amount payable to the grower for the grapes and remit it to the Minister. If the winemaker fails to do so, the winemaker likely remains liable for the full amount.

Rights of winemakers and growers:

• Refund right: A winemaker may claim a refund of contributions paid on their own behalf. A grower may claim a refund of contributions paid by or on behalf of the grower. A claim must be in writing within six months following the prescribed period. The Minister must refund the amount plus interest at the official cash rate from the date of payment to the date the claim is lodged, provided the claimant satisfies the Minister of entitlement with acceptable evidence. The interest rate is the cash rate fixed by the RBA prevailing on the date of lodgment.
• Rights of growers: Growers do not have a duty under the regulations to pay directly, but they owe contributions which are collected by the winemaker. They have the right to claim a refund of those contributions.

Minister’s duties:

• Administer the Fund.
• Pay refund claims on satisfaction.
• Publish notices in the Gazette fixing contribution amounts and variations.
• Determine which body represents the industry and make payments to it.

Rights of the representative body:

• Receive payments from the Fund for operating expenses, promotion, research, events, communication programs, and other purposes of the body.
• Receive from the Minister information identifying contributors who have paid or been refunded.

Exclusion duty: A person in default is not entitled to receive direct benefits or services funded by the Fund. This is a prohibition on the Minister or the representative body from conferring benefits on such persons. It creates a compliance incentive but also a disincentive to claim refunds.

Prohibition on false statements: Any person must not make a statement that is false or misleading in a material particular in information provided or records kept for the purposes of the regulations. This applies to winemakers, growers, and any other person.

The regulations do not confer a right on contributors to vote on the levy rate, to approve the Minister’s choice of representative body, or to direct the fund’s spending. All discretion lies with the Minister.

The only monetary penalty expressly provided is in regulation 10: a maximum of $5,000 for making a false or misleading statement in information provided or records kept for the purposes of the regulations. This is a criminal penalty (likely a summary offence under state law). The penalty is not indexed and is relatively low, suggesting enforcement is expected through administrative mechanisms rather than prosecution.

Enforcement mechanisms are otherwise indirect. The regulations do not create an express offence for non payment of contributions. Instead, the consequences are administrative: exclusion from benefits (regulation 9) and the loss of the right to receive any direct benefits or services funded by the Fund while in default. A person in default is defined to include those who have not paid contributions within the preceding two prescribed periods, or who have been refunded contributions. This means a non paying winemaker or grower loses access to industry funded services, but they are still required to pay contributions for subsequent periods; the default concept does not relieve the obligation.

The Minister has power to inspect winemaker records (regulation 7(7)(b)) through an authorised person. This is a compliance tool to verify tonnage and contributions. There is no explicit power to audit growers, but growers are not required to keep records under the regulations.

The refund mechanism creates an incentive for accurate reporting: a winemaker or grower who overpays can claim a refund with interest, but the claim must be lodged within six months. After that period, the overpayment is likely forfeited to the Fund. Conversely, underpayment may lead to contributions being treated as unpaid, triggering default status.

The regulations do not specify any debt recovery mechanism if a winemaker or grower fails to pay. The Act under which the regulations are made (Primary Industry Funding Schemes Act 1998) likely contains enforcement provisions such as recovery of unpaid contributions as a debt due to the Crown, but those are not in the text provided. The regulations rely on the underlying Act for enforcement teeth.

The exchange of information provision (regulation 8) allows the Minister to supply the representative body with data identifying which contributors have paid or been refunded. This likely enables the body to police access to benefits , for example, denying attendance at industry events to those in default.

The false statement penalty has a low maximum, which may be insufficient to deter sophisticated fraud, but the $5,000 cap is fixed and not adjusted for inflation. The 2021 regulations do not prescribe any civil penalties or infringement notices.

There are no provisions for suspension of a winemaker’s licence, revocation of approvals, or public naming of defaulters. The regime is thus relatively light touch compared to other industry funding schemes that tie levy payment to licensing conditions.

The regulations are made under the Primary Industry Funding Schemes Act 1998 (SA). That Act is the enabling statute and contains the general framework for compulsory industry levies. The regulations are subordinate to that Act. Any inconsistency between the regulations and the Act would see the Act prevail. The Act likely includes provisions on delegation, fund administration, judicial review of Ministerial decisions, and recovery of unpaid contributions. The regulations rely on the Act for these matters; they do not replicate them.

The definition of “Clare Valley” depends on the Wine Australia Act 2013 (Cth). The geographical indication “Clare Valley” is registered under that Commonwealth Act. If the Commonwealth GI is amended, suspended, or revoked, the definition of Clare Valley for the purposes of the regulations would change automatically. The regulations do not incorporate the GI by reference in a static way; they use an ambulatory reference (“in force … at the commencement of these regulations”). That means the GI as it existed on 2 September 2021 is fixed. If the GI later changes, the regulations would need to be amended to adopt it. The Schedule 1 map is for informational purposes only and is not controlling.

The revoked Primary Industry Funding Schemes (Clare Valley Wine Industry Fund) Regulations 2008 continue to operate for the transitional prescribed period (1 June 2021 to 31 May 2022) under Schedule 2. That means contributions for that period are governed by the 2008 regulations, with modifications: the refund period is shortened to six months (instead of whatever period the 2008 regulations provided). The Minister may vary contribution amounts for that period by Gazette notice. The transitional provisions ensure continuity without a gap.

The regulations interact with general South Australian administrative law (e.g., the Judicial Review Act 1991 (SA)) because Ministerial decisions , fixing contribution amounts, approving refunds, designating the representative body, making payments , are likely subject to judicial review on grounds of jurisdictional error, unreasonableness, or procedural fairness. The regulations themselves do not exempt any decisions from review.

The regulations may interact with Commonwealth competition and consumer law if the representative body uses Fund money for activities that raise competition concerns. However, as a government mandated levy, it may be protected by state immunity.

Tax law implications: Contributions are likely deductible as business expenses under the Income Tax Assessment Act 1997 (Cth) because they are compulsory levies incurred in gaining assessable income. Refunds may be assessable income to the extent the contributions were originally deducted. The interest paid on refunds is assessable as ordinary income.

Corporations law: The representative body is presumably an incorporated association or company. Payments to it are subject to its constitution and to relevant state or federal law.

There are no provisions for interstate or international consistency. The scheme applies only to Clare Valley grapes processed by Clare Valley winemakers. Grapes grown in the Clare Valley but processed outside the definition of “Clare Valley winemaker” are not captured. If a winemaker outside the region uses Clare Valley grapes but does not make wine (e.g., sells them as table grapes), they are not a Clare Valley winemaker and the contributions do not apply.

The regulations were originally made on 2 September 2021 (Gazette 2.9.2021 p3446, with regulation 2 commencing that date). They revoked and replaced the Primary Industry Funding Schemes (Clare Valley Wine Industry Fund) Regulations 2008.

The only amendment recorded in the provided legislative history is by 13/2023, gazetted 30 March 2023 and commencing that day. This amendment made two substantive changes:

• Definition of “prescribed period” (regulation 3(1)): The original definition included only “the period of 12 months commencing on 1 June 2022”. The amendment added “or on 1 June in any subsequent year”, clarifying that the prescribed period repeats annually. This was necessary because the transitional period (2021-22) was dealt with separately, and the 2022-23 period and beyond were covered by the original formula, but the drafting was arguably ambiguous beyond one cycle.

• Removal of spent transitional provisions: Schedule 2 Part 1 was omitted under the Legislation Revision and Publication Act 2002. That Part presumably contained transitional provisions that had expired. The other Part 2 (renumbered) contains the transitional provisions for the 2021 prescribed period, which remain operative for refund claims until late 2022 or beyond, and for any ongoing default calculations based on that period.

The amendment also removed regulation 2 (happily, the definition of “commencement” regulation which had become redundant) and tidied the legislative history. The penalty amount of $5,000 has not been adjusted since 2021, suggesting no indexation provision.

No other amendments are noted. The regulations are current as at the provided legislative history (which appears to be up to 2023). Future amendments could include changes to contribution rates (done by Ministerial Gazette notice rather than regulation amendment), changes to the GI definition, or extension of the scheme to other wine regions.

The regulations themselves give the Minister power to vary contribution amounts by Gazette notice (regulation 5(5)), which is an administrative act not requiring parliamentary scrutiny. That is a significant design feature: the levy rate can change without legislative amendment, reducing transparency but allowing flexibility.

The source provides no information about any litigation involving these regulations. As subordinate legislation specific to the Clare Valley wine industry, it is unlikely to have generated reported cases. However, one can infer potential areas of dispute:

• Geographical indication: A dispute about whether a particular property falls within the Clare Valley GI could lead to litigation under the Wine Australia Act 2013 (Cth), which would in turn affect levy liability. The regulations defer to the Commonwealth GI, so any challenge to the GI boundary would be under Commonwealth law.

• Ministerial discretion: Decisions by the Minister to fix contribution amounts, vary them mid period, deny a refund, or designate the representative body could be judicially reviewed under South Australian administrative law grounds (e.g., failing to take relevant considerations, taking irrelevant ones, unreasonableness). No such case is reported in the source.

• Default and exclusion from benefits: A person excluded from benefits might argue that being “in default” includes having been refunded contributions, which could be contested if the refund was claimed in error. But no case is cited.

• False statement prosecutions: None reported.

• Interaction with Commonwealth wine tax or regulations: No cross jurisdictional disputes are mentioned.

The regulations are relatively narrow in scope, so litigation is likely rare. Lawyers and compliance professionals should be aware that the regulations are untested, meaning administrative decisions could be legally fragile if not carefully made. The Minister’s discretion is broad, but not unlimited.

Because the source is the regulation text itself, no case law can be fabricated. The deep dive must reflect that no litigation history is provided.

Several traps exist for the unwary practitioner advising a Clare Valley winemaker or grower.

Default includes having been refunded contributions. Regulation 3(2) defines “in default” as including having been refunded contributions. This means a person who lawfully claims and receives a refund for a given period is automatically in default for the next two prescribed periods. They lose eligibility for any direct benefits or services funded by the Fund. This creates a powerful disincentive against claiming refunds, even if the person is entitled to one. A financially unsophisticated grower who seeks a refund of overpaid contributions may find themselves excluded from industry events, research services, or assistance programs. The provision seems designed to discourage refund claims and to keep money in the Fund.

The refund claim period is only six months. Regulation 6(1) requires a refund claim to be made within six months following the prescribed period. After that, the overpayment is forfeited. The Minister has no discretion to extend the time. A winemaker who discovers an overpayment late may lose all entitlement to a refund, and the contribution remains in the Fund.

Interest on refunds runs only until the claim is lodged, not until it is paid. Under regulation 6(3), interest at the official cash rate is payable from the date of payment to the date of lodgment of the claim. If the Minister takes months to process the claim, the claimant receives no interest for the processing period. The official cash rate is also low (historically 0.1% to 4.35%), so the interest is minimal. There is no penalty for late payment of refunds by the Minister.

Variation of contribution amounts mid period. The Minister may vary contribution amounts by Gazette notice published after the commencement of a prescribed period. The varied amount only applies to deliveries after the variation takes effect. This creates uncertainty for winemakers planning cash flow. A winemaker may have budgeted based on the original rate and then face a higher rate for part of the year.

Self supplied grapes are deemed delivered when processing begins. The deeming rule in regulation 3(3)(b) means the contribution obligation arises at the moment the winemaker places grapes in a container for processing, not when the grapes are picked or blended. A winemaker who grows their own grapes must track the timing of this event to ensure contributions are calculated for the correct prescribed period.

Minimum contribution for winemakers with a presence in the Clare Valley. Even if a winemaker processes only a small tonnage (or none in a period), they may owe the minimum contribution fixed by the Minister if they have a vineyard, winemaking facility or cellar door in the Clare Valley. This imposes a fixed cost on being present, regardless of production volume.

Collecting grower contributions is the winemaker’s responsibility. If a winemaker fails to deduct the grower’s contribution from the purchase price, the winemaker must still remit the full amount to the Minister. The winemaker has no statutory right to recover the contribution from the grower; it must be done contractually. A winemaker who pays a grower in full without deducting the levy is out of pocket.

The representative body is not named. The Minister decides which body receives Fund payments. There is no requirement for the Minister to consult contributors. A winemaker or grower unhappy with the choice of body has no direct recourse under the regulations.

False statements penalty is modest but applies to both information and records. The $5,000 maximum penalty is low relative to the potential value of contributions. However, the offence is strict liability (likely under the Act), and it applies to any false or misleading statement, including omission. A winemaker who inadvertently omits a grower’s details from a financial statement could theoretically be prosecuted.

Transitional trap for the 2021 period. The refund period for contributions paid under the 2008 regulations for the 2021‑22 prescribed period is modified to six months following that period, which ended 31 May 2022. That means refund claims for that period had to be lodged by 30 November 2022. Anyone advising a client now should check whether any claim was made.

For a Clare Valley winemaker, compliance involves a cycle of record keeping, reporting, paying, and potentially claiming refunds. The steps are:

1. Identify classification: Determine whether the winemaker has a vineyard, winemaking facility or cellar door in the Clare Valley GI area. This affects the contribution formula , winemakers with such a presence must pay on self grown grapes and purchased grapes, with a minimum. Winemakers without such a presence pay only on purchased grapes.

2. Track tonnage: Throughout each prescribed period (1 June to 31 May), record the tonnage of Clare Valley grapes delivered. For purchased grapes, record the grower’s identity. For self grown grapes, record the date each batch is placed in a container for processing (fermentation, crushing or pressing). This deeming rule determines the period in which the contribution accrues.

3. Monitor Ministerial Gazette notices: At least annually, check the South Australian Government Gazette for notices fixing contribution amounts (per tonne for own grapes, per tonne for purchased grapes, minimum contribution for winemakers with a presence). Also check for variations published during a period. The amounts may change year to year and within a year. Maintain a system to apply the correct rate to each delivery.

4. Calculate contributions: For each prescribed period, calculate the total contributions due:

   • For winemaker’s own grapes: multiply tonnes of self delivered grapes by the per tonne amount for own grapes.
   • For purchased grapes: multiply tonnes purchased by the per tonne amount for purchased grapes.
   • Add the two amounts, then compare to the minimum contribution. Pay the greater.
   • Add the grower contributions: multiply tonnes purchased by the per tonne amount for grower contributions. This amount must be collected from the grower’s payment.
   • Total to remit = winemaker contribution + grower contributions.

5. Collect grower contributions: When paying growers for grapes, deduct the grower’s contribution from the amount payable. Include the deduction on invoices or payment advices. Ensure the deduction is documented to avoid disputes.

6. Prepare financial statement: By 31 July following the prescribed period (i.e., within one month after 31 May), prepare a statement in the form required by the Minister. The statement must include tonnage details, grower information, and contributions calculated. If the winemaker has the necessary equipment, the statement must be in an electronic form acceptable to the Minister.

7. Pay contributions: Forward the total contributions (winemaker + growers) to the Minister with the financial statement by the same deadline (31 July). Failure to pay on time triggers default status and potential exclusion from benefits.

8. Keep records: Maintain proper records of tonnage, growers, and contributions for at least the period needed to respond to inspection requests and to calculate default status. Records must be available for inspection at any reasonable time by a person authorised by the Minister.

9. Claim refunds (if applicable): If overpayment occurred, file a written claim with the Minister within six months following the prescribed period. Include evidence acceptable to the Minister (e.g., payment receipts, tonnage records). The refund will be paid with interest at the cash rate from payment date to lodgment date. Be aware that claiming a refund places the winemaker in default for the next two periods, potentially excluding them from benefits.

10. Monitor default status: Keep track of the past two prescribed periods. If any contributions remain unpaid or if a refund has been received, the winemaker is in default and must not accept direct benefits or services funded by the Fund (e.g., free attendance at industry events funded by the Fund). Ensure the business does not inadvertently receive such benefits.

For a grower of Clare Valley grapes, compliance is simpler but still requires awareness:

1. Pay contribution: The contribution is deducted from the sale price by the winemaker. The grower must ensure the winemaker makes the deduction and does not pay the full price. The grower has no independent reporting duty.

2. Claim refund (if applicable): If the grower believes contributions were overpaid, they may claim a refund from the Minister within six months after the prescribed period, with evidence. Same default risk applies.

3. Beware of default: A grower who claims a refund may be excluded from benefits. A grower whose winemaker fails to remit contributions may be treated as in default, even though the grower paid the contribution indirectly.

The representative body receiving Fund payments must ensure it only provides direct benefits or services to persons who are not in default. The Minister’s exchange of information provision (regulation 8) allows the body to identify defaulters.

A lawyer or advisor should check the current Gazette notices for contribution rates, verify the client’s GI boundary, review any transitional issues if the client had dealings in the 2021-22 period, and ensure winemakers have solid systems for tracking delivery dates and deeming events. The low penalty for false statements does not make compliance optional; administrative consequences (exclusion from benefits, potential debt recovery under the Act) can be more serious. The regulations create a mandatory levy controlled by Ministerial discretion with limited rights of input by contributors. Compliance is essentially a matter of accurate record keeping and timely payment.