Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES RESEARCH AND DEVELOPMENT CORPORATION REGULATIONS (AMENDMENT) 1995 NO. 414

STATUTORY RULES 1995 No. 414

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 levies and research components currently specified in the principal Regulations relate only to the 1991/1992, 1992/1993 and 1993/1994 financial years. These figures were all inserted into the principal Regulations in June 1995, since:

•       it is not possible to calculate the research components for a financial year until after the close of the financial year, as it is not known until then how much levy had been collected in the financial year; and

•       a review of research components previously specified in the principal Regulations showed them to be incorrect.

The purpose of Fisheries Research and Development Corporation Regulations (Amendment) (the Regulations) is to amend the principal Regulations to attach levies to the FRDC and set the research components of those levies for the 1994/1995 financial year. This reflects the results of reconciliations carried out by the Australian Fisheries Management Authority, of levy collections and payments of research components to the FRDC for 1994/1995 and represents the fishing industrys actual contributions to the funding of the FRDC in accordance with current Government policy.

The Regulations are taken to have commenced on 1 July 1994 so that the matters provided in them properly relate to the appropriate period. The Attorney-General's Department has previously provided oral advice that such a retrospective commencement is both legally valid and, from a policy perspective, acceptable.

The advice takes account of subsection 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, subsection 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 make appropriate provision for the payment 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 1 July 1994.

Regulation 2 provides that the Regulations amend the principal Regulations.

Regulation 3 provides for the amendment of regulation 4A of the principal Regulations. This amendment:

•       varies the levies attached to the FRDC under paragraph 4A(1)(c) to reflect only those Acts under which levy including a research component was collected during 1994/1995 the fist in regulation 3 as amended states all of the levies attached to the FRDC for 1994/1995; and

•       sets the research components, expressed in paragraph 4A(2) as percentages of the levies collected by AFMA under those Acts, that have been paid to the FRDC.

The amendment to paragraph 4A(1)(c) inserts 2 Acts under which levy including a research component has been collected during 1994/1995, namely the Fisheries Agreements (Payments) Act 1991 and the Fisheries Management Act 1991. The amendment also refers to these 2 Acts as alternative sources of power for the collection of the levy,

That levy comprises a payment made by a foreign Government to the Commonwealth as part of an agreement for access to the Australian fishing zone. This levy is of an unusual nature and the Attorney-General's Department has provided advice that Australian law is not definitive on whether this levy should be characterised as a tax or as a contractual payment. If the levy is characterised as a tax, then it would be taken to have been collected under the Fisheries Agreements (Payments) Act 1991. If the levy is characterised as an access fee, then it would be taken to have been collected under the Fisheries Management Act 1991.