Untitled document

Fisheries (Compensation and Procedures)

Regulations 2003

S.R. No. 38/2003

TABLE OF PROVISIONS

Regulation Page

1.	Objectives	1
2.	Authorising provision	1
3.	Principal Regulations	1
4.	Compensation payable under section 63 of the Fisheries Act
1995	2

243.        Process for determination of compensation payable

under section 63 2
244.	Manner in which compensation is payable 7

5. Statute law amendments 8

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ENDNOTES 10

i

STATUTORY RULES 2003

S.R. No. 38/2003

Fisheries Act 1995

Fisheries (Compensation and Procedures)

Regulations 2003

The Governor in Council makes the following Regulations:
Dated: 20 May 2003

Responsible Minister:

BOB CAMERON

Minister for Agriculture

HELEN DOYE

Clerk of the Executive Council

1. Objectives

The objectives of these Regulations are—

(a) to amend the Fisheries Regulations 1998 to provide for the determination and payment of compensation in relation to the

cancellation of access licences; and

(b) to make certain statute law amendments to the Fisheries Regulations 1998.

2. Authorising provision

These Regulations are made under section 153 of the Fisheries Act 1995.

3. Principal Regulations

In these Regulations, the Fisheries Regulations
19981 are called the Principal Regulations.

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4. Compensation payable under section 63 of the Fisheries Act 1995

After regulation 242 of the Principal Regulations insert—

'243. Process for determination of compensation payable under section 63

(1) If an access licence is cancelled as a result of

a direction under section 61 of the Act, the compensation made under section 63(3) of the Act—

(a) accept in full the claim; or

(b) make an offer for compensation.

(2) For the purposes of sub-regulation (1), the

compensation payable to the holder of a
cancelled transferable access licence must be
determined in accordance with the formula—
[A + (B – C) + D + E] – Y
where—

A is a fair and reasonable valuation for

the licence including any quota
entitlement issued in respect of the
licence;

B is an income support payment equal to 3 times the average of the 4 highest net incomes before tax (NIBT) expressed

in current dollars and returned from the
7 fishing seasons immediately before
the cancellation of the licence, and
based on catch records held by the

Secretary;

C is a discounted amount determined by

the independent negotiator to adjust for

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the benefit gained from receiving a lump sum in lieu of future income;

D is a fair and reasonable sum for any

financial loss suffered as a natural and direct consequence of the cancellation of the licence that is not met by A or B;

E is a solatium of not more than 10% of

the result of A + (B – C) + D;

Y is the total amount of the entitlement of

the holders of a registered financial
interest under section 59 of the Act in
the licence.

(3) For the purposes of sub-regulation (1), the

compensation payable to the holder of a
cancelled non-transferable access licence
must be determined in accordance with the
formula—
[(B – C) + D + E] – Y
where—

B is an income support payment equal to 3 times the average of the 4 highest net incomes before tax (NIBT) expressed

in current dollars and returned from the
7 fishing seasons immediately before
the cancellation of the licence, and
based on catch records held by the

Secretary;

C is a discounted amount determined by

the independent negotiator to adjust for
the benefit gained from receiving a

lump sum in lieu of future income;

D is a fair and reasonable sum for any

financial loss suffered as a natural and direct consequence of the cancellation of the licence that is not met by B;

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E is a solatium of not more than 10% of

the result of (B – C) + D;

Y is the total amount of the entitlement of

the holders of a registered financial
interest under section 59 of the Act in
the licence.

(4) For the purposes of sub-regulation (1), the

compensation payable to the holder of a registered financial interest in an access licence must be—

(a)	determined in accordance with the financial interest expressed as a dollar amount and declared by the holder of the financial interest and agreed to by the holder of the access licence on the application for compensation form; and
(b)	assessed as a component of item Y in the formula set out in sub-regulation (2) or sub-regulation (3), as the case may be.

(5) The Secretary must provide to the holder of a

cancelled licence and the holder of a
registered financial interest in respect of a

cancelled licence—

(a) notification of the direction issued under section 61 of the Act; and

(b) an application form for compensation.

(6) An application for compensation submitted to the Secretary must—

(a) specify in respect of a claim made by—

(i)  the holder of a transferable access licence, the amounts claimed for each item in the formula set out in sub-regulation (2) except items C and E;

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(ii) interest in a transferable access

the holder of a registered financial respect of item Y in the formula set out in sub-regulation (2);

(iii) access licence, the amount
claimed for each item in the

the holder of a non-transferrable (3) except items C and E;

(iv) interest in a non-transferable
access licence, the entitlement

the holder of a registered financial formula set out in sub-regulation (3); and

(b) documentation to substantiate those

be supported by financial be specified in accordance with paragraph (a).

(7) The Secretary may appoint an independent

negotiator who, in the opinion of the financial matters and asset valuation to provide the Secretary with advice on the compensation payable in respect of a cancelled access licence by a direction under section 61.

(8) The independent negotiator may provide

advice to the Secretary on the financial
documentation referred to in sub-regulation
(6)(b).

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(9) An application for compensation must be

submitted by a date specified in writing by
the Secretary, being a date not less than
6 months after the date on which the
direction under section 61 of the Act is

published.

(10) In this regulation—

"financial documentation" means for the

purposes of sub-regulation (6)—

(a) in the case of item A or B—

(i) certified practising
accountant, being a member
of CPA Australia, the
Institute of Chartered
Accountants in Australia or

a statement endorsed by a Accountants; or

(ii) a personal taxation statement
issued by the Australian
Taxation Office;

(b) documentation that the Secretary

in the case of item D, any determining the claim;

(c) in the case of item Y—

(i) agreement between the
holder of the cancelled
access licence and the holder
of a registered financial
interest in the licence and a
statement signed by the
holder of the licence and the

a certified copy of a written financial interest that states

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the terms of the agreement
and any dollar amount
outstanding at the time the
agreement was entered into;
or

(ii)  if a written agreement was not entered into at the time an arrangement or

understanding was made between the holder of the cancelled access licence and

the holder of a registered
financial interest in the
licence, a statement signed
by the holder of the licence
and the holder of the
registered financial interest
that states the terms of the
agreement and any dollar
amount then outstanding;

"independent negotiator" means a person

appointed under sub-regulation (7).

244. Manner in which compensation is payable

(1) If the Secretary accepts in full a claim for

compensation made under section 63(3) of

the Act, the Secretary must—

(a) give notice in writing of the acceptance to—

(i)  the holder of the cancelled access licence; and

(ii)

the holder of any registered access licence; and

(b) pay the compensation in sub-regulation (a) to the claimant as directed, being by means of a cheque or bank transfer.

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(2) If the Secretary makes an offer for

compensation in relation to a cancelled
access licence under regulation 243(1)(b),
the Secretary must give the holder of the
cancelled access licence and the holder of
any registered financial interest in the
cancelled access licence a notice in writing

that sets out—

(a)	the total compensation amount offered; and
(b)

the compensation amount offered for the relevant formula in regulation 243.

(3) If the holder of the cancelled access licence or any holder of a registered financial interest in the cancelled access licence accepts in writing an offer for compensation

made under regulation 243(1)(b), the directed in writing by the holder of the cancelled access licence or any holder of a registered financial interest, being by means of a cheque or bank transfer.'.

5. Statute law amendments

(1) In regulation 105(2) of the Principal Regulations,

in the definition of "specified details" in paragraph

(b)(vii), for "Part A" substitute "Part B".

(2) In regulation 242 of the Principal Regulations—

(a)

after "Gippsland Lakes Fishery," insert "the Licence,"; and

(b) after "Mallacoota Lower Lake Fishery" insert ", the Ocean Fishery".

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(3) In Schedule 13 to the Principal Regulations—

(a) after the heading "DESIGNATED LICENCE CONDITIONS" insert "(section 53 of the Act)"; and

(b) omit—

(i) "303(3)(p)(i)";

(ii) "303(3)(q)";

(iii) "303(3)(t)";

(iv) "303(3)(u)";

(v) "303(3)(v)"; and

(c) after "327(d)" insert "327(f)".

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Fisheries (Compensation and Procedures) Regulations 2003

Endnotes

S.R. No. 38/2003

ENDNOTES

1 Reg. 3: S.R. No. 23/1998. Reprint No. 2 as at 22 May 2001. Reprinted to

S.R. No. 43/2001 and subsequently amended by S.R. Nos 78/2001,
118/2001, 45/2001, 19/2002, 63/2002, 78/2002, 22/2003, 24/2003 and 25/2003.