Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES RESEARCH AND DEVELOPMENT CORPORATION REGULATIONS (AMENDMENT) 1998 NO. 90

STATUTORY RULES 1998 No. 90

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 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 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 currently specified in the principal Regulations relate to the 1995/96 financial year. 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) is:

*       to omit reference to levies imposed under section 36(1) of the Fisheries Management Act 1991. There are no levies collected under that subsection; 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 and represents the fishing industry's actual contributions to the funding of the FRDC in accordance with current Government policy.

The Regulations are taken to have commenced on 1 July 1997 so that the matters referred to 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 would 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 1997.

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 1996/97; 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.