Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES RESEARCH AND DEVELOPMENT CORPORATION AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 92 OF 2006)

 

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 92

 

Issued by the Minister for Fisheries, Forestry and Conservation

 

Primary Industries and Energy Research and Development Act 1989

 

Fisheries Research and Development Corporation Amendment Regulations 2006 (No. 1)

 

Section 149 of the Primary Industries  and Energy Research and Development Act 1989 (the Act) provides 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 (R & D Corporations) to be established and named by way of regulations. Sections 11 and 12 of the Act set out the functions and powers, respectively, of R & D Corporations.

 

Subsection 5(1) of the Act allows levies to be attached to a R & D Corporation by way of regulations for raising research funds. Subsection 5(3), requires that, if a levy is attached to an R & D Corporation 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 R & D Corporation is established.

 

In accordance with subsection 5(1) of the Act, the Fisheries Research and Development Corporation (FRDC) was established in respect of the fishing industry by the Fisheries Research and Development Corporation Regulations 1991 (the Principal Regulations). The Principal Regulations also attached to FRDC the fishing concession levies collected by the Australian Fisheries Management Authority (AFMA) which are declared under annual Fishing Levy Regulations.

 

The purpose of the Fisheries Research and Development Corporation Amendment Regulations (the Regulations) is to amend the Principal Regulations to provide retrospective authority for payments to the FRDC that have been made since the 1998/99 financial year. Due to an administrative oversight the research component currently specified in the Principal Regulations has not been updated since the 1998 /99 financial year. Instead the annual Fishing Levy Regulations have specified the research components as whole dollars for each of the financial years since 1 July 1999. The Australian Government Solicitor has provided legal advice that, for the purposes of the Act, this does not provide the appropriate authority to make payment to FRDC of the research component and that amendments to the Principal Regulations are required.

 

The authority to make payment of the research component collected, in accordance with subsection 5(3) of the Act, requires that the research component must be declared as a proportion or percentage of the fishing concession levies, not dollar amounts, and that this percentage must be declared in regulations made under the Act. The annual Fishing Levy Regulations, however, are made under another act, the Fishing Levy Act 1991.

 

The Regulations would amend the Principal Regulations by proscribing the research component as a percentage of the fishing concession levy for each financial year since 1999/2000.

 

The Regulations would be taken to have commenced retrospectively. This would provide retrospective authority to make payment to FRDC of the research components collected since 1 July 1999. This arrangement will reflect the results of reconciliations carried out by AFMA of levy collections and payments of research components to the FRDC since 1 July 1999 and will represent the fishing industry’s actual contributions to the funding of FRDC in accordance with current government policy.

 

Subsection 12(2) of the Legislative Instruments Act 2003 prohibits the retrospective operation of regulations which adversely affect the rights, 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 will not contravene subsection 12(2) because the matters in the Regulations only affect payments between the Commonwealth and Commonwealth authorities in respect of levies already collected or those required to be collected under long standing legislation with no impact upon any person or industry body. As such no industry consultation has been undertaken.

 

The Act specifies no conditions that need to be satisfied before the power to make Regulations may be exercised.

 

The Proposed Regulations would be legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 


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