Fisheries Management (Refund) Amendment Regulations 2000 (No. 1) 2000 No. 311
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 311
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Fisheries Management Act 1991
Fisheries Management (Refund) Amendment Regulations 2000 (No. 1)
Section 168 of the Fisheries Management Act 1991 (the Management Act) empowers the Governor-General to make regulations for the purpose of the Management Act. Paragraph 168(2)(b) of the Management Act provides that regulations may be made providing for the remission or refund of levy under, amongst other legislation, the Fishing Levy Act 1991 (the Levy Act). Section 6 of the Levy Act provides that the amount of levy imposed on a fishing concession is the amount prescribed by Regulation.
"Fishing concession" is defined under the Levy Act and the Management Act to mean, among other things, a fishing permit. "Fishing permit" is defined under the Management Act to mean a fishing permit granted under section 32 of the Management Act. Subsection 32(1) of the Management Act provides that the Australian Fisheries Management Authority (AFMA) may, upon application in the approved form, grant to a person a fishing permit authorising the use of a nominated Australian boat for fishing in a specified area of the Australian Fishing Zone or a specified fishery.
The Fisheries Management (Refund) Regulations (the Principal Regulations) currently provide for refund of levy to a person who surrenders a fishing permit before the permit expires where that person has paid levy in respect of a fishing permit for an informally managed fishery in relation to the period of time or part of the period of time that the permit has left to run. The Principal Regulations also provide for the refund of overpaid levy in respect of certain fishing permits granted for the South East Trawl Fishery between 1 December 1996 and 30 November 1997.
The purpose of the Fisheries Management (Refund) Amendment Regulations (the Regulations) is to provide for the refund of levy paid in respect of permits for the South East Non-trawl Fishery (SENTF) in accordance with the Fishing Levy Regulations 1998 (the Levy Regulations). The Levy Regulations provide that the levy that was payable for each SENTF permit that was in force on 16 April 1999 was the sum total of a fixed amount and an amount per quota unit held for each of the species blue-eye trevalla, pink ling and blue warehou. These amounts for each quota unit included a, research component that was calculated on the basis of the Gross Value of Product (GVP) figures for the SENTF in the relevant year.
In late 1999, it was discovered that the GYP figures that were used to determine the research component had been miscalculated. The revised GVP was supplied to AFMA in November 1999 and was published in the Australian Fisheries Statistics 1999. AFMA then calculated the levy that should have been payable by permit holders affected by this error and found that permit holders were overcharged in respect of blue-eye trevalla and blue warehou, and undercharged in respect of pink ling. The Regulations allow for the refund of amounts overpaid for blue-eye trevalla and blue warehou. The undercharged amounts for pink ling will not be recovered.
The Regulations insert these provisions in substitution for the existing provisions relating to the refund of overpaid levy in respect of certain fishing permits granted for the South East Trawl Fishery because these refunds have been paid and the provisions are now redundant.
Details of the Regulations, which commenced on gazettal, are set out below:
Regulation 1 provides that the name of the Regulations is the Fisheries Management (Refund) Amendment Regulations 2000 (No. 1).
Regulation 2 states that the Regulations commence on gazettal.
Regulation 3 provides that the amendments of the principal Regulations are detailed in Schedule 1.
Schedule 1 provides for the substitution of a new Regulation 4 which sets out the formula for calculating the amount of levy to be refunded in respect of levy paid by the holder of a SENTF permit in accordance with the Levy Regulations.
Overview
The Fisheries Management (Refund) Amendment Regulations 2000 (No. 1), enacted by the Parliament of Australia, amend the existing Fisheries Management (Refund) Regulations to address discrepancies in the fishing levy charged for the South East Non-trawl Fishery (SENTF). This was introduced to rectify an error in the Gross Value of Product (GVP) figures used to determine the research component of the fishing levy, which led to overcharges and undercharges for certain species. The policy objective is to ensure that permit holders are fairly compensated for these miscalculations, specifically refunding the overpaid amounts for blue-eye trevalla and blue warehou, while acknowledging that the undercharged amounts for pink ling will not be recoverable. The regulations provide a formula for calculating the refund in accordance with the Fishing Levy Regulations 1998, replacing the previous provisions that have now become redundant following the settlement of the South East Trawl Fishery refunds.
Scope and Application
The Fisheries Management (Refund) Amendment Regulations 2000 (No. 1) apply to individuals or entities that hold or have held fishing permits for the South East Non-trawl Fishery (SENTF) within the Australian Fishing Zone, as defined under the Fisheries Management Act 1991. These Regulations specifically address the refund of levies paid under the Fishing Levy Act 1991 where there has been an overcharge or undercharge due to a miscalculation of the Gross Value of Product (GVP) figures used in determining the levy for quota units of certain species. The Regulations are in force as of their gazettal and are intended to correct the financial impact of the miscalculation on permit holders by providing refunds for the overpaid levies while acknowledging that the undercharged amounts will not be recovered. The jurisdictional reach of these Regulations is confined to the Commonwealth of Australia, and they amend the existing Fisheries Management (Refund) Regulations to incorporate the new provisions for SENTF permits. Any exclusions or exemptions are implicitly determined by the criteria of levy miscalculation and the specific species involved, as outlined in the Regulations.
Key Provisions
The Fisheries Management (Refund) Amendment Regulations 2000 (No. 1) (the Regulations) make changes to the existing Fisheries Management (Refund) Regulations to address the miscalculated Gross Value of Product (GVP) figures that led to overcharging and undercharging of permit holders for the South East Non-trawl Fishery (SENTF) (Regulation 4). Regulation 1 specifies the name of the Regulations, while Regulation 2 states that the Regulations commence on the date of their gazettal. Regulation 3 notes that the specific amendments are detailed in Schedule 1, which replaces the existing provisions regarding refunds for the South East Trawl Fishery.
Under the Fisheries Management Act 1991 (the Management Act) and the Fishing Levy Act 1991 (the Levy Act), the Australian Fisheries Management Authority (AFMA) is responsible for granting fishing permits and imposing levies on these permits. The Regulations require AFMA to refund the overpaid amounts to permit holders for the SENTF, as determined by the revised GVP figures. This obligation includes calculating the correct levy amount and processing refunds for the affected permits in line with the Fishing Levy Regulations 1998 (the Levy Regulations). The Regulations mandate that AFMA follow the formula set out in Schedule 1 for these calculations, ensuring that permit holders are appropriately compensated for the miscalculated levies.
Breaches of the provisions in the Fisheries Management (Refund) Amendment Regulations 2000 (No. 1) do not explicitly list specific offences, penalties, or consequences in the explanatory statement. However, non-compliance with these regulations by AFMA or permit holders might lead to disputes over the correct levy amounts and potential legal challenges. The Management Act and Levy Act provide the overarching framework within which these regulations operate, and any significant non-compliance might result in administrative or judicial review processes, with the potential for financial penalties or corrective actions if the courts find against the non-compliant party. The specific legal consequences would depend on the context of the non-compliance and the applicable statutory provisions.