Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES REGULATIONS (AMENDMENT) 1993 NO. 295

STATUTORY RULES 1993 No. 295

Issued by the authority of the Minister for Resources

Fisheries Act 1952

Fisheries Regulations (Amendment)

Section 17 of the Fisheries Act 1952 (the 1952 Act) empowers the Governor-General to make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Subsection 9(8) of the Act states that such fees as are prescribed are payable in respect of the grant of a licence, the endorsement of a licence, the transfer of a licence, or the variation of a licence.

The 1952 Act (other than Part IVA) was repealed by subsection 3(2) of the Fisheries Legislation (Consequential Provisions) Act 1991 (the Consequential Provisions Act) and regulation of Commonwealth fisheries came under the Fisheries Management Act 1991 (the Management Act). As a transitional arrangement, Part IVA of the 1952 Act was perpetuated under the Consequential Provisions Act for a further 2 years and will expire on 3 February 1994. There is a proposal currently before the Parliament to extend this period for a further 12 months.

Subsection 7(1) of the Consequential Provisions Act provides that the 1952 Act and instruments made or determined under the 1952 Act, including Regulations, continue in force to the extent necessary for the continuing operation of Part IVA. Subsection 7(3) of the Consequential Provisions Act provides that Part IVA (and, by implication, the 1952 Act and instruments made or determined under the 1952 Act which are necessary to support Part IVA) cease to have effect 2 years after the commencement of the Consequential Provisions Act. In the interim, subsection 7(2) of the Consequential Provisions Act provides that nothing in subsection 7(1) prevents, among other things, the amendment or variation of an instrument mentioned in subsection 7(1).

The consequence of the 1952 Act continuing for the purposes of Part IVA is that the fisheries (or parts of fisheries) which are the subject of agreements between the States and the Commonwealth made under Part IVA continue to be managed under the 1952 Act, instead of being managed under the Management Act, until the sunset provisions of subsection 7(3) of the Consequential Provisions Act take effect. Fisheries that continue to be managed under the 1952 Act in this manner are known as "Part IVA fisheries".

The Fisheries Regulations (the principal Regulations), among other things, specify fees in respect of the particular transactions relating to licences that are referred to in subsection 9(8) of the 1952 Act.

The Regulations amend the principal Regulations. The amendment implements new fees for Part IVA fisheries managed by the Australian Fisheries Management Authority (AFMA) and is proposed in parallel with amendments to the Fisheries Management Regulations in force under the Management Act, which set fees in relation to fisheries managed under that Act. The new fees are structured on the basis of specific cost recovery from users of each of AFMA's services.

The Regulations define a "formally managed fishery" to be, in effect, a fishery for which management costs are recovered by means of an amount of levy prescribed in a Regulation (known as a "fishery specific levy Regulation") which applies only to authorisations permitting fishing in that fishery and which is made under either the Fisheries Levy Act 1984 or, if the fishery is not a Part IVA fishery, the Fishing Levy Act 1991. The Regulations define an "informally managed fishery" to be, in effect, a fishery other than a formally managed fishery.

The Regulations specify new fees payable in respect of the grant of a licence, the endorsement of a licence, the transfer of a licence, or the variation of a licence. The amounts and incidences of the new fees set by the Regulations are set out in the new Schedule 1 to the principal Regulations.

To reflect the higher costs to AFMA of assessing applications for the grant of licences authorising the use of a boat in an informally managed fishery or the use of a foreign boat generally, the fees for those transactions are set higher than the fees for the grant of licences authorising the use of an Australian boat in a formally managed fishery. For the same reason, fees for the grant of a master fisherman's licence for a foreign boat are set higher than fees for the grant of a master fisherman's licence for an Australian boat. Fees for other transactions are set uniformly to reflect the cost to AFMA of providing the relevant services.

The Regulations apply (with exceptions) to transactions relating to licences that occur after the commencement of the Regulations. The exceptions are designed mainly to ensure that a fee recovered for a transaction of a particular type which affects a licence held by a person and which relates to a boat, is only recovered once, even if the same person also applies at a particular time for equivalent transactions in respect of other licences, fishing concessions under the Management Act or both, that are also held or applied for by the person and authorise (or would authorise) fishing using the same boat.

Details of the Regulations, which commenced on gazettal, are set out below:

Regulation 1 provides for the amendment of the principal Regulations.

Regulation 2 amends regulation 3 of the principal Regulations by inserting definitions of "formally managed fishery" and "informally managed fishery".

Regulation 3 amends regulation 10 (Licence and other fees) of the principal Regulations by omitting the regulation and substituting a new Regulation 10.

Regulation 4 amends Schedule 1 of the principal Regulations by omitting the Schedule and substituting a new Schedule 1.