Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023

Administered by Attorney-General's Department

Legislation au F2023L00354 Not in force Legislative Instrument

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Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023

EXPLANATORY STATEMENT

Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003

 

INTRODUCTION

 

The Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (Cth) (the Legislation Act). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Certificate will be subjected to the disallowance provisions of the Legislation Act as because the deferred sunsetting day specified in the Certificate is after the first anniversary of the originally scheduled sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less) does not apply.

 

outline

 

Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

 

Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration. Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day unless the instrument is repealed earlier (paragraph 51(1)(d) of the Legislation Act).

 

This allows instruments to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.

 

The Certificate defers the sunsetting date of the following instruments by 24 months from 1 April 2023 to 1 April 2025 (together, the ‘Agricultural Levies Instruments’):

a)      the Cotton Research and Development Corporation Regulations 1990;

b)      the Dairy Produce Regulations 1986;

c)      the Fisheries Research and Development Corporation Regulations 1991;

d)      the Forestry Marketing and Research and Development Services Regulations 2008;

e)      the Grains Research and Development Corporation Regulations 1990;

f)       the Horticulture Marketing and Research and Development Services Regulations 2001;

g)      the Primary Industries (Customs) Charges Regulations 2000;

h)      the Primary Industries (Excise) Levies (Forest Growers) Designated Bodies Declaration 2007;

i)        the Primary Industries (Excise) Levies (Pasture Seeds) Declaration 2012;

j)        the Primary Industries (Excise) Levies Regulations 1999;

k)      the Primary Industries Levies and Charges Collection Regulations 1991;

l)        the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998;

m)    the Rural Industries Research and Development Corporation Regulations 2000;

n)      the Wool Services Privatisation (Miscellaneous Provisions) Regulations 2000;

o)      the Wool Services Privatisation (Research Body) Declaration 2008; and

p)      the Wool Services Privatisation (Wool Levy Poll) Regulations 2003.

 

The ability to defer sunsetting dates is an integral part of the sunsetting framework.  It provides the necessary flexibility to ensure the standard 10 year sunsetting period does not result in unintended consequences or impose an unreasonable administrative burden on Commonwealth agencies or the Parliament. In this case, new instruments to replace the Agricultural Levies Instruments are expected to be developed and to commence within 24 months of the current sunsetting days to modernise and streamline agricultural levies legislation. This follows a thematic review conducted by the former Department of Agriculture and Water Resources (the former Department) following an alignment of the sunsetting days of the Agricultural Levies Instruments under the Legislation (Agricultural Levies Instruments) Sunset-altering Declaration 2016.

 

PROCESS BEFORE CERTIFICATE WAS MADE

 

Regulatory impact analysis

Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Impact Analysis (OIA). The OIA reference for this standing exemption is ID19633.

 

Consultation before making

Before the Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

 

The Department of Agriculture, Fisheries and Forestry (the Department) has undertaken consultation with over 70 relevant industry stakeholders and all Research and Development Corporations as part of the reforms to agricultural levies legislation, including the proposed deferral of the Agricultural Levies Instruments. Continuing consultation with industry will ensure that stakeholders are informed of the approach going forward for these instruments.

 

Certificates of deferral are machinery in nature, and enable legislative instruments that would otherwise sunset to remain in force for a further, but strictly limited, period of time. This will minimise the administrative burden on stakeholders associated with consultation on a deferral that will only have effect for a limited amount of time. Any replacement instruments will be subject to further consultation and parliamentary oversight, including oversight of whether adequate consultation occurred with persons likely to be affected by the replacement instruments.

 

A 24 month deferral of the Agricultural Levies Instruments will allow sufficient time for further consultation prior to the replacement instruments being made. The deferral will avoid the need to remake the Agricultural Levies Instruments in their current form for the short period of time before they are repealed and replacement instruments are made. As such, given that deferral of the sunsetting dates of the Agricultural Levies Instruments is consistent with the policy intent of the sunsetting regime, and does not significantly alter existing arrangements, appropriate consultation has occurred for the purposes of section 17 of the Legislation Act.

 

Statutory preconditions relevant to the Certificate

If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for 6, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:

(a)    the responsible rule-maker to apply to the Attorney-General in writing, and

(b)    the Attorney-General to be satisfied that:

(i)     the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day

(ii)   the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided

(iii) the dissolution of expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or

(iv) the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and

(c)    the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.

 

The rule-maker for the Agricultural Levies Instruments, the Minister for Agriculture, Fisheries and Forestry and Minister for Emergency Management, Senator the Hon Murray Watt, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the 16 Agricultural Levies Instruments.

 

On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the instruments would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after their sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.

 

Statement of Reasons for issuing of the Certificate

For the purposes of subsection 51(5) of the Legislation Act this section sets out the statement of the reasons for issuing the Certificate.

 

The agricultural levies and charges system was established in its current form around 30 years ago. The system is a partnership between government and industry to fund industry priorities. Levies or other taxes are collected from primary producers by government at industry’s request. Industry decides whether to establish a levy, sets levy rates and exemptions, and decides whether to discontinue a levy. The Agricultural Levies Instruments are an essential part of the legislative framework for the levies system. They enable the imposition of levies and charges and their disbursement and provide for the administration of levy collection and establishment and operation of levy recipient bodies.

 

The instruments will likely cease to be in force in their current form within 24 months of their original sunsetting days. The original sunsetting days of the Agricultural Levies Instruments were aligned by the Legislation (Agricultural Levies Instruments) Sunset-altering Declaration 2016. Following this, the former Department undertook a thematic review of the agricultural levies legislation which led to the proposed reform of the primary and delegated legislation.

 

Over time there has been an accumulation of amendments and additions which has resulted in levies legislation that is complex and inconsistent. There are also some redundant provisions. The new responsible department, the Department of Agriculture, Fisheries and Forestry, has reviewed the levies legislative framework and is currently developing new levies legislation which is streamlined and modernised for proposed commencement before 1 April 2025 together with new instruments.

 

Accordingly, to allow sufficient time for the replacement legislation to be developed and to commence, it is practical and appropriate for the Agricultural Levies Instruments to remain in place until they are repealed as anticipated within the next 24 months. Deferral of the sunsetting day will also avoid the need to remake the legislative instruments in their current form for the short period of time before they would cease to be in force.

 

More information

Further details on the provisions of the Certificate are provided in Attachment A.

 

The Agricultural Levies Instruments which are subject to the Certificate, and which will now sunset at a later day as specified in the Certificate, are available on the Federal Register of Legislation.

 

Further information may be requested from the Attorney-General’s Department about the operation of the Certificate, and from the Department of Agriculture, Fisheries and Forestry about the Agricultural Levies Instruments to which the Certificate applies.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023 (the Certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).

 

Overview of the Certificate

The Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the Certificate instead of the originally scheduled sunsetting day. The instruments specified in the Certificate are (together, the ‘Agricultural Levies Instruments’):

a)      the Cotton Research and Development Corporation Regulations 1990;

b)      the Dairy Produce Regulations 1986;

c)      the Fisheries Research and Development Corporation Regulations 1991;

d)      the Forestry Marketing and Research and Development Services Regulations 2008;

e)      the Grains Research and Development Corporation Regulations 1990;

f)       the Horticulture Marketing and Research and Development Services Regulations 2001;

g)      the Primary Industries (Customs) Charges Regulations 2000;

h)      the Primary Industries (Excise) Levies (Forest Growers) Designated Bodies Declaration 2007;

i)        the Primary Industries (Excise) Levies (Pasture Seeds) Declaration 2012;

j)        the Primary Industries (Excise) Levies Regulations 1999;

k)      the Primary Industries Levies and Charges Collection Regulations 1991;

l)        the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998;

m)    the Rural Industries Research and Development Corporation Regulations 2000;

n)      the Wool Services Privatisation (Miscellaneous Provisions) Regulations 2000;

o)      the Wool Services Privatisation (Research Body) Declaration 2008; and

p)      the Wool Services Privatisation (Wool Levy Poll) Regulations 2003.

 

The Agricultural Levies Instruments are expected to be repealed and replaced within 24 months of their scheduled sunsetting days as part of the reforms to modernise and streamline agricultural levies legislation. The Certificate allows the Agricultural Levies Instruments to continue to be in force for a further, but limited, period of time when they would otherwise sunset. This removes the administrative burden of remaking the instruments which would have a limited duration prior to their expected repeal and replacement, or where circumstances prevent the making of a replacement instrument prior to the sunsetting day. 

 

Human Rights Implications

A certificate of deferral of sunsetting extends the operation of the instrument but does not change or affect the rights engaged under the original instrument. The Certificate does not engage, and therefore is compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights Act. It is notable that the Agricultural Levies Instruments, and subsequent amendments made to them, have been assessed as compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Primary Industries Levies and Charges Collection Amendment (Returns) Regulations 2018, which previously amended the Primary Industries Levies and Charges Collection Regulations 1991, were assessed to engage the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights. Those regulations were compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Before issuing the Certificate, the Attorney-General was satisfied that the Agricultural Levies Instruments would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their sunsetting date. Issuing a certificate of deferral therefore avoids the need to replace the Agricultural Levies Instruments in their current form for a short period of time before they are expected to be repealed and replaced.

 

Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the remade Agricultural Levies Instruments will be assessed at the time they are made, including through the requirement to prepare a Statement of Compatibility with Human Rights.

 

Conclusion

This Certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act, as it does not raise any human rights issues, and ensures that any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.


Attachment A

NOTES ON SECTIONS

 

Section 1  Name

 

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023. The Certificate may be cited by this name.

 

Section 2  Commencement

 

This section provides for the Certificate to commence on the day after it is registered.

 

Section 3  Authority

 

This section provides that the Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003.

 

Section 4  Deferral of sunsetting

 

This section provides that the following instruments, for which the sunsetting day is 1 April 2023, are repealed by section 51 of the Legislation Act 2003 on 1 April 2025:

  • the Cotton Research and Development Corporation Regulations 1990;
  • the Dairy Produce Regulations 1986;
  • the Fisheries Research and Development Corporation Regulations 1991;
  • the Forestry Marketing and Research and Development Services Regulations 2008;
  • the Grains Research and Development Corporation Regulations 1990;
  • the Horticulture Marketing and Research and Development Services Regulations 2001;
  • the Primary Industries (Customs) Charges Regulations 2000;
  • the Primary Industries (Excise) Levies (Forest Growers) Designated Bodies Declaration 2007;
  • the Primary Industries (Excise) Levies (Pasture Seeds) Declaration 2012;
  • the Primary Industries (Excise) Levies Regulations 1999;
  • the Primary Industries Levies and Charges Collection Regulations 1991;
  • the Primary Industries Levies and Charges (National Residue Survey Levies) Regulations 1998;
  • the Rural Industries Research and Development Corporation Regulations 2000;
  • the Wool Services Privatisation (Miscellaneous Provisions) Regulations 2000;
  • the Wool Services Privatisation (Research Body) Declaration 2008;
  • the Wool Services Privatisation (Wool Levy Poll) Regulations 2003.

 

The note provides that the Legislation (Agricultural Levies Instruments) Sunset‑altering Declaration 2016 declared the sunsetting day of 1 April 2023 for the above instruments.

 

Section 5  Repeal of the instrument

 

This section provides that the Certificate is repealed at the start of 2 April 2025.

 

Overview

The Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023, issued under the authority of the Legislation Act 2003, aims to address the impending sunsetting of various agricultural levies instruments. The Certificate, issued by the Attorney-General, defers the automatic repeal of these instruments by 24 months, allowing for their continued operation until 1 April 2025 instead of the originally scheduled sunsetting date of 1 April 2023. This legislative action is intended to provide sufficient time for the development and implementation of modernised and streamlined agricultural levies legislation. The Certificate, which will be subjected to disallowance provisions due to the extended deferral period, was made following consultation with relevant industry stakeholders and after careful consideration of the statutory preconditions set out in the Legislation Act. The deferral aims to avoid administrative burdens and unintended consequences associated with the automatic repeal of the instruments. The sunsetting framework established under Part 4 of Chapter 3 of the Legislation Act ensures that legislative instruments remain current and relevant, automatically repealing them after a fixed period. However, the framework also allows for the deferral of this sunsetting process, providing flexibility to accommodate the development of new legislative instruments. In this instance, the deferral allows the Department of Agriculture, Fisheries and Forestry to finalise and commence new agricultural levies legislation before the existing instruments are repealed. This approach aligns with the policy intent of the sunsetting regime and avoids the need to re-enact the current instruments for a short period before their repeal. The Certificate is compatible with human rights as it does not alter the rights engaged under the original instruments and ensures that any replacement instruments will be subject to parliamentary scrutiny and oversight.

Scope and Application

The Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023 applies to a specific set of agricultural levies instruments listed within the Certificate, including regulations and declarations governing the Cotton Research and Development Corporation, Dairy Produce, Fisheries Research and Development Corporation, and others related to primary industries. The Certificate defers the sunsetting date of these instruments by 24 months from 1 April 2023 to 1 April 2025. The deferral is intended to provide the necessary time for the development and commencement of new instruments designed to modernise and streamline the agricultural levies legislation. This Certificate is a legislative instrument under the Legislation Act 2003 (Cth) and must be registered on the Federal Register of Legislation. It is subject to disallowance provisions due to the deferral period exceeding 12 months. The Certificate extends the operational period of the specified instruments without altering their existing rights or obligations, ensuring that any new instruments replacing them will undergo parliamentary scrutiny and human rights assessment.

Key Provisions

The Legislation (Deferral of Sunsetting—Agricultural Levies Instruments) Certificate 2023 (the Certificate) under the Legislation Act 2003 defers the sunsetting date of the specified Agricultural Levies Instruments by 24 months, from 1 April 2023 to 1 April 2025. The Agricultural Levies Instruments, which include regulations and declarations related to agricultural levies, will now sunset on 1 April 2025 instead of their originally scheduled date of 1 April 2023. The Certificate ensures these instruments remain in force for a limited period to allow for the development and implementation of new, modernised legislation. This is detailed in section 4 of the Certificate, which specifies the new sunsetting date for the listed instruments. The obligations imposed by the Certificate on the parties or entities it governs primarily revolve around the continued operation of the Agricultural Levies Instruments until the new sunsetting date. The relevant authorities, such as the Department of Agriculture, Fisheries and Forestry, are responsible for ensuring that these instruments are administered in accordance with the law until their repeal. The Certificate also mandates that any replacement instruments developed to supersede the Agricultural Levies Instruments must undergo parliamentary scrutiny and consultation with relevant stakeholders. This is to ensure that the new instruments are appropriately designed and do not impose any unforeseen burdens on the stakeholders. Breaching the terms of the Certificate or the Agricultural Levies Instruments could have legal consequences. While the Certificate itself does not impose specific offences or penalties, non-compliance with the Agricultural Levies Instruments could result in penalties as outlined in the respective instruments. These penalties can include fines and other administrative sanctions depending on the nature and severity of the breach. Additionally, the disallowance provisions of the Legislation Act apply to the Certificate, meaning that it can be subject to parliamentary review and potential disallowance if it does not meet the legislative requirements. The Certificate is also subject to the disallowance provisions of the Legislation Act, ensuring that it can be reviewed and potentially disallowed by Parliament if it fails to comply with the legislative requirements. In summary, the Certificate provides a mechanism to defer the sunsetting of the Agricultural Levies Instruments, allowing for the continued operation of these instruments until new legislation is developed. The obligations under the Certificate require the relevant authorities to administer these instruments properly until they are repealed. Breaches of the Agricultural Levies Instruments may incur penalties as specified within the instruments themselves, and the Certificate is subject to parliamentary scrutiny and potential disallowance under the Legislation Act.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.