Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES RESEARCH AND DEVELOPMENT CORPORATION REGULATIONS (AMENDMENT) 1995 NO. 186

STATUTORY RULES 1995 No. 186

Issued by the Authority of the Minister for Resources

Primary Industries and Energy Research and Development Act 1989

Fisheries Research and Development Corporation Regulations (Amendment)

Section 149 of the Primary Industries and Energy Research and Development Act 1989 (the PIERD Act) empowers the Governor-General to make regulations for the purposes of the PIERD Act.

Section 8 of the PIERD Act provides for research and development corporations (referred to in the PIERD Act as R & D Corporations) to be established and named by way of regulations. Sections 11 and 12 of the PIERD Act set out the functions and powers respectively of R & D Corporations.

Subsection 5(1) of the PIERD Act provides, among other things, for the attachment of levies to an R & D Corporation by way of regulations. Subsection 5 (3) among other things requires that, if a levy is attached to an R & D Corporation, then the regulations must declare:

•       the whole or a specified proportion 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 R & D Corporation is established.

Section 30A of the PIERD Act provides that, among other things, the research component of a levy attached to an R & D Corporation established in respect of the fishing industry must be paid to the R & D Corporation.

The Fisheries Research and Development Corporation Regulations (the principal Regulations) provide for the establishment of the Fisheries Research and Development Corporation (FRDC) in respect of the fishing industry. The principal Regulations also attach particular levies to the FRDC and specify the research components of those levies.

The principal Regulations commenced on 3 February 1992. The levies and research components previously specified in the principal Regulations related only to the 1992/1993 financial year, and were based on estimates of levy revenue made in late 1991.

The Fisheries Research and Development Corporation Regulations (Amendment) (the Regulations) provide for the finalisation of the previous research components and also for the inclusion of new research components for the 1993/1994 and 1994/1995 financial years. Full explanations of the previous form of regulation 4A, the relevant provision in the principal Regulations, the changes made by the Regulations and the background to the changes are set out in the attachment.

The Regulations reflect the results of reconciliations carried out by the Australian Fisheries Management Authority, of levy collections and payments of research components to the FRDC for the 1991/1992, 1992/1993 and 1993/1994 financial years. They represent the fishing industry's actual contributions to the funding of the FRDC in accordance with current Government policy.

The Regulations are taken to have commenced on 3 February 1992 so that the matters provided in them properly relate to the appropriate financial years. The Attorney-General's Department has provided oral advice that such a retrospective commencement is both legally valid and, from a policy perspective, acceptable.

The advice takes account of section 48(2) of the Acts Interpretation Act 1901, which provides that retrospective commencement of legislation (at a time before it is notified in the Gazette) is ineffective if it would:

•       result in the rights of a person (other than the Commonwealth or an authority of the Commonwealth) being affected so as to disadvantage that person; or

•       impose liabilities on the person in respect of anything done or omitted to be done before the retrospective commencement of the legislation is notified.

As the matters in the Regulations only affect payments between the Commonwealth and Commonwealth authorities in respect of levies already collected, section 48(2) does not apply.

The principal Regulations would be amended again shortly after the end of the current financial year and again shortly after the end of succeeding financial years, to accommodate the payments of research components that are made to the FRDC out of levies collected from the fishing industry during the relevant financial year.

Details of the Regulations are set out below:

Regulation 1 deems the Regulations to have commenced on the commencement of Part 3 of the Fisheries Legislation (Consequential Provisions) Act 1991, in line with the commencement of regulation 4A of the principal Regulations. The note to the provision indicates that the date of this commencement was 3 February 1992.

Regulation 2 provides that the Regulations amend the principal Regulations.

Regulation 3 omits regulation 4A and substitutes in its place a new regulation 4A. New subregulations 4A(1) and (2) specify respectively the levies attached to the FRDC and the proportions of each of the levies that are the research component, payable to the FRDC, New subregulation 4A(3) specifies the fishing industry to be the primary industry to which the levies relate,

ATTACHMENT

ANALYSIS OF THE AMENDMENTS TO REGULATION 4A OF THE FISHERIES RESEARCH AND DEVELOPMENT CORPORATION REGULATIONS

The Commonwealth, either directly or through its agent, the Australian Fisheries Management Authority (AFMA), has the power to collect levy from the fishing industry as follows:

•       If fisheries are managed under the Fisheries Management Act 1991 (the Management Act), levy can be collected under the Fishing Levy Act 1991 (for domestic fishing) and the Foreign Fishing Licences Levy Act 1991 and the Fisheries Agreements (Payments) Act 1991 (for foreign fishing).

•        If fisheries were managed under the now repealed Fisheries Act 1952 (the 1952 Act), the predecessor of the Management Act, levy could have been collected under the Fisheries Levy Act 1984 (for domestic fishing) and the Foreign Fishing Boats Levy Act 1981 (for foreign fishing).

During the period from the 1991/1992 financial year to the 1993/1994 financial year inclusive, the Commonwealth collected levy relating to domestic fishing variously under the Fisheries Levy Act 1984 and the Fishing Levy Act 1991, while management arrangements for domestic fisheries were being transferred from the 1952 Act to the Management Act. The Commonwealth did not collect any levy during that period under the Foreign Fishing Licences Levy Act 1991 or the Fisheries Agreements (Payments) Act 1991, as all foreign fishing subject to Australian law during that period was regulated under the 1952 Act. All levy relating to foreign fishing collected during that period was collected under the Foreign Fishing Boats Levy Act 1981.

Prior to its amendment by the Fisheries Research and Development Corporation Regulations (Amendment) (the Regulations), regulation 4A of the Fisheries Research and Development Corporation Regulations (the principal Regulations) provided as follows:

The levies described in the following table were attached to the Fisheries Research and Development Corporation (FRDC) and the proportions of those levies specified in the table were research components:

Levy set under	Research component
Fisheries Levy Act 1984	7.09 per cent
Fishing Levy Act 1991	12.82 per cent
Foreign Fishing Licences Levy Act 1991	0.51 per cent

Payments of levies described in the following table were attached to the FRDC and the proportions of those payments specified in the table were research components:

Levy paid under	Research component
Fisheries Agreements (Payments) Act 1991 (section 5)	3.03 per cent
Fisheries Agreements (Payments) Act 1991 (section 6)	3.03 per cent

Regulation 4A in this form commenced on 3 February 1992. The Acts and research components specified in Regulation 4A related only to the 199211993 financial year, and were based on estimates of levy revenue made in late 1991. The estimates needed to be finalised and new proportions for the research components needed to be included for subsequent financial years.

In particular, the research components initially specified in regulation 4A relating to the Foreign Fishing Licences Levy Act 1991 and the Fisheries Agreements (Payments) Act 1991 were based on the forecast that foreign fishing would be regulated under the Management Act from 1992 onwards. In fact, as indicated above, foreign fishing was regulated entirely under the 1952 Act during the all of the period from 1991/1992 financial year to the 1993/1994 financial year inclusive.

To ensure consistency of the principal Regulations with the collections of levy that were actually made, the Regulations provide for levies to be attached to the FRDC, and research components of those levies, to be those stated in the following table:

Levy under	Research Component (per cent)
	1991/1992	1992/1993	1993/1994
Fisheries Levy Act 1984	7.09	7.24	8.85
Fishing Levy Act 1991	12.82	8.44	6.49
Foreign Fishing Boats Levy Act 1981	1.85	2.23	2.58

Although levy relating to the foreign fishing will in future financial years be collected under the Foreign Fishing Licences Levy Act 1991 and the Fisheries Agreements (Payments) Act 1991, no such collections have taken place up to the end of the 1993/1994 financial year. Therefore neither levy nor payments under those Acts are presently attached to the FRDC.