EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 83

 

Issued by the Minister for Agriculture, Fisheries and Forestry

 

Primary Industries and Energy Research and Development Act 1989

 

Fisheries Research and Development Corporation Amendment Regulations 2008

(No. 1)

 

Section 149 of the Primary Industries and Energy Research and Development Act 1989 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Section 8 of the Act provides for research and development corporations (RDCs) to be established and named by way of regulations.

 

Subsection 5(1) of the Act allows a levy to be attached to a RDC by way of regulations for raising research funds. Subsection 5(3) requires that, if a levy is attached to an RDC by way of regulation, then the regulations must declare:

·          the whole or a specified portion of the levy to be the research component of the levy; and

·          the primary industry to which the levy relates, being a primary industry in respect of which the RDC is established.

 

The Regulations declare the specific portion of the levy which is to be directed to the Fisheries Research and Development Corporation (the FRDC) during the 2007-08 financial year.

 

In accordance with subsection 5(1) of the Act, the FRDC was established in respect of the fishing industry by the Fisheries Research and Development Corporation Regulations 1991 (the Principal Regulations). The Australian Fisheries Management Authority (AFMA) collects levies annually from the fishing industry. The research component of the levy is collected by AFMA and then paid to the FRDC by the Department of Agriculture, Fisheries and Forestry (the Department).

 

In order for AFMA to transfer the research component it collects, subsection 5(3) requires that the research component must be declared as a proportion or percentage of the total fishing levy collected. The proposed Regulations would set the research component for 2007-08 (as a percentage) providing the Department with the authority to pay the funds to the FRDC.

 

The research component collected from Commonwealth fishing concession holders by AFMA is based on an estimate of 0.25 percent of each fishery Gross Value of Production (GVP). The GVP varies from year to year, and not all the other factors required to calculate it are known until well into or towards the end of the financial year. Retrospective updates of the Principal Regulations are required each year to reflect the amounts collected by AFMA for each fishery for that year. Accordingly, the declaration of the research component always occurs retrospectively.

 

The Regulations amend the Principal Regulations by prescribing the research component as a percentage of the total fishing levy collected for the 2007-08 financial year. This provides authority for payment to FRDC of the research components collected since 1 July 2007. This arrangement would reflect payments of levy to AFMA since 1 July 2007, and the funding of the FRDC in accordance with current government policy.

 

AFMA collects a levy from Commonwealth fishers. The levy has two parts that are both collected at the same time; AFMA management costs, and the research component (which is based on an estimate of 0.25 percent of Commonwealth fisheries GVP). The total fishing levy collected is calculated by the following formula:

 

Total fishing levy collected = AFMA fisheries management levy + research component

 

The research component expressed as a percentage of the total fishing levy collected is 7.51 percent for the 07-08 financial year (down from 12.35 percent for the 06-07 financial year). A major factor in this decrease is the reduction in subsidy provided as part of the Governments Securing our Fishing Future package. The levy subsidy has reduced from $7 million in 06-07 to $5 million in the 07-08 financial year, which has increased the total fisheries management costs to be recovered from industry. Although the research component as a percent has decreased significantly, the actual dollar amount based on the GVP has only slightly reduced. The GVP varies independently each year (due to changes in factors such as production and exchange rates) resulting in a different proportion of the levy being the research component each year. No new fees or charges would be imposed.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments. Schedule 1 to the Regulations is taken to have commenced on 1 July 2007.

 

Subsection 12(2) of the Legislative Instruments Act 2003 prohibits the retrospective operation of regulations which adversely affect the rights of, or impose a liability on, a person other than the Commonwealth in respect of anything done or omitted to be done before the date of notification. The retrospective operation of the Regulations does not contravene subsection 12(2) as the matters in the Regulations only affect payments between the Commonwealth and Commonwealth authorities in respect of levy already collected or those required to be collected under long standing legislation with no impact upon any other person or industry body.

 

Due to the nature of the calculation of the research component of the levy (0.25 percent of Commonwealth fisheries GVP), consultation for the Regulations was not conducted.

 

The Regulations

 

Details of the Regulations are below.

 

Regulation 1 sets out that the Regulations are to be referred to as the Fisheries Research and Development Corporation Amendment Regulations 2008 (No. 1).

 

Regulation 2 sets out that the Regulations shall commence the day after they are registered (Regulations 1-3) and on 1 July 2007 (Schedule 1). Schedule 1 commences on 1 July so as to provide authority for payments of levy received prior to the creation of the regulation, so that FRDC can receive the entire research component, collected since 1 July 2007.

 

Regulation 3 states that the Regulations amend the Fisheries Research and Development Corporation. The amendment inserts an additional clause in Regulation 4A to update the research component of the levy for the 2007-08 financial year. A new regulation is inserted every financial year to enable the funds to be paid to FRDC.

 

Schedule 1 [1] paragraph 2H sets the research component of the levies. The research component is collected from fishers by AFMA as part of the annual fishing management levy under the Fishing Levy Act 1991. As the component changes each year, the proposed Regulations must be updated every year. The setting of the research component provides the Department with the authority to pay the funds to FRDC. The payment of the research component will provide FRDC with the funds to meet their financial obligations.