Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES RESEARCH AND DEVELOPMENT CORPORATION REGULATIONS (AMENDMENT) 1996NO. 239

STATUTORY RULES 1996 No. 239

Issued by the authority of the Minister for Resources and Energy

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 GovernorGeneral 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.

Subsection 5(1) of the PIERD Act provides, among other things, for the attachment off levies to an R & D Corporation by way of regulations. Subsection 5(3) among other things requires that, if levy is attached to an R & D Corporation, 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 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 previously specified in the principal Regulations related to the 1994-95 financial year. Because the size of the research component in any financial year should equal 0.25% of the gross value of production of fisheries as determined for that year, the specification of these research components is done retrospectively.

It is not possible to calculate the research components for a financial year until after the close of that financial year, as it is not known until then how much levy has been collected in a financial year.

The purpose of the Fisheries Research and Development Corporation Regulations (Amendment) (the Regulations) was:

*       to omit references to levies imposed under the Fisheries Levy Act 1984 as there are no longer any levies collected under this Act; and

*       to amend the principal Regulations to set the research components for the levies attached to the FRDC for the 1995-96 financial year. This reflects the results of reconciliations carried out by the Australian Fisheries Management Authority (AFMA) of levy collections and payments of research components to the FRDC for the 1995-96 financial year. This represents the fishing industry's actual contributions to the funding of the FRDC in accordance with current Government policy.

The Regulations (other than Regulation 4) are taken to have commenced on 1 July 1995 so that the matters referred to in them properly relate to the appropriate period. The AttorneyGeneral's Department had previously provided oral advice that such a retrospective commencement is both legally valid and, from a policy perspective, acceptable.

The advice took 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 affect only payments between the Commonwealth and Commonwealth authorities in respect of levies already collected, subsection 48(2) did not preclude the making of these Regulations.

Also included in section 30A of the PIERD Act are provisions for the payment of Government funds to FRDC. One of the provisions relevant to calculating the level of Government matching of industry contributions in any financial year is the gross value of production (GVP) of fisheries in each State and the Northern Territory during that year. Subsection 30A(5) provides that the Regulations may provide for the manner in which this figure is to be determined (the determination being, in effect, a forecast for that year).

Commonwealth funds are provided to match dollar for dollar industry contributions up to 0.25% of the gross value of production (GVP) of the Australian commercial fishing industry. The Commonwealth also provides additional unmatched finding equal to 0.5% of the industry's GVP.

Previously, there was no formula in the Regulations for the manner in which a State or Territory GVP is to be determined. It was deemed advisable to include such a formula in these Regulations. This action was without prejudice to the validity of State or Territory GVP determinations that have been made in past years.

Details of the Regulations are set out below:

Regulation 1 deems the Regulations other than Regulation 4 to have commenced on 1 July 1995. Regulation 4 commenced on gazettal.

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(10(c) to retain only those Acts pursuant to which levy including a research component was collected during 1995-96. These Acts are the Fishing Levy Act 1991, the Fisheries Agreements (Payments) Act 1991 and the Fisheries Management Act 1991. Paragraphs 3.1 and 3.3 omit references to the Fisheries Levy Act 1984, under which levies were no longer collected in 1995-96; and

*       sets the research components that have been paid to the FRDC, expressed in paragraph 4A(2) as percentages of the levies collected in 1995-96 by AFMA under the abovementioned Acts that continue to be attached to the FRDC.

Regulation 4 provides that the State or Territory GVP figure equals one third of the sum of the gross value of production of the goods that are the produce of the part of the fishing industry concerned with taking or culturing fish or fish products managed by or on behalf of that State or Territory for the 3 immediately preceding financial years.

Regulations 1 to 3 inclusive commenced on 1 July 1995 and Regulation 4 commenced on gazettal.