EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 46

 

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 2007

(No. 1)

 

Section 149 of the Primary Industries and Energy Research and Development Act 1989 (the Act) provides, in part, 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 (RDCs) to be established and named by way of regulations.

 

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

 

The Regulations declare the specific portion of the levy which is to be directed to the Fisheries Research and Development Corporation (the FRDC) during the 2006-07 financial year.

 

In accordance with subsection 5(1) of the Act, the FRDC was established in respect of the fishing industry by the Fisheries Research and Development Corporation Regulations 1991 (the Principal Regulations). The Australian Fisheries Management Authority (AFMA) collects levies annually from the fishing industry. The research component of the levy is collected by AFMA and then paid to the FRDC by the Department of Agriculture, Fisheries and Forestry (the Department).

 

In order for AFMA to transfer the research component it collects, subsection 5(3) requires that the research component must be declared as a proportion or percentage of the total fishing levy collected. The Regulations would the research component for 2006-07 (as a percentage) providing the Department with the authority to pay the funds to the FRDC.

 

The research component is calculated as a percentage of the Gross Value of Production (GVP) of the fishing industry, in accordance with the Act. The GVP varies from year to year, and not all the other factors required to calculate it are produced until well into or towards the end of the financial year. To ensure that there are no over or under-payments of the research component, retrospective updates of the Principal Regulations are required each year to reflect the amounts collected by AFMA and the final determination of GVP for each fishery for that year. Accordingly, the declaration of the research component always occurs retrospectively.

 

The Regulations amend the Principal Regulations by prescribing the research component as a percentage of the total fishing levy collected for the 2006-07 financial year. This provides authority for payment to FRDC of the research components collected since 1 July 2006. This arrangement would reflect payments of levy to AFMA since 1 July 2006, and the funding of the FRDC in accordance with current government policy.

 

The total fishing levy collected is calculated by the following formula:

 

total fishing levy collected = the research component [0.25% of GVP] + AFMA fisheries management levy

 

The Securing our Fishing Future package, which included business exit assistance - fishing concession voluntary surrenders, has resulted in subsequent decreases in the fisheries management levy and the total fishing levy collected by AFMA, as there are less fishers to collect from. Since the research component is expressed as a percentage of the total fishing levy collected, it increased to 12.35% for the 2006-07 financial year (up from 6.7% in the 2005-06 financial year).

 

The Regulations ensure that the FRDC is provided with the same amount of revenue for the 2006-07 financial year as it was in the 2005-06 financial year. No new fees or charges would be imposed.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Regulations 1 to 3 of the Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments. Schedule 1 to the Regulations is taken to have commenced on 1 July 2006.

 

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

 

Due to the nature of the calculation of the research component of the levy, consultation for the Regulations was not conducted. AFMA collects a levy from Commonwealth fishers. The levy has two parts that are both collected at the same time; AFMA management costs, and the research component (which is 0.25% of Commonwealth fisheries GVP). The research component is expressed as percentage of the Commonwealth fishing levy which varies independently each year.

 

The Regulations

 

Details of the Regulations are below.

 

Regulation 1 sets out that the Regulations are to be referred to as the Fisheries Research and Development Corporation Amendment Regulations 2007 (No 1).

 

Regulation 2 sets out that the Regulations shall commence the day after they are registered (Regulations 1-3) and on 1 July 2006 (Schedule 1). Schedule 1 commences on 1 July so as to provide authority for payments of levy received prior to the creation of the regulation, so that FRDC can receive the entire research component, collected since 1 July 2006.

 

Regulation 3 states that the Regulations amend the Fisheries Research and Development Corporation. The amendment inserts an additional clause in Regulation 4A to update the research component of the levy for the 2206-07 financial year. A new regulation is inserted every financial year to enable the funds to be paid to FRDC.

 

Schedule 1 [1] paragraph 2G sets the research component of the levies. The research component is collected from fishers by the Australian Fisheries Management Authority, as part of the annual fishing management levy under the Fishing Levy Act 1991. As the component changes each year, the proposed Regulations must be updated every year. The setting of the research component provides the Department with the authority to pay the funds to FRDC. The payment of the research component will provide FRDC with the funds to meet their financial obligations.