Fisheries Management (Refund) Regulations (Amendment) 1996 No. 318
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 318
Issued by the authority of the Minister for Resources and Energy Fisheries Management Act 1991
Fisheries Management (Refund) Regulations (Amendment)
Section 168 of the Fisheries Management Act 1991 (the Management Act) empowers the Governor-General to make regulations for the purposes 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) or of penalty payable under Part 7 of the Management Act in relation to such levy.
Section 8 of the Levy Act empowers the Governor-General to make regulations for the purposes of section 6 of the Levy Act. Section 5 of the Levy Act imposes levy in respect of a fishing concession. Section 6 of the Levy Act provides that the amount of levy imposed on the fishing concession is the amount prescribed by the Regulations.
"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) provided for a refund to be paid to a person who surrendered a fishing permit before the permit expired where that person had paid levy under the former Fishing Levy Regulations in relation to the period of time or part of the period of time that the permit had left to run. The former Fishing Levy Regulations had set levy in respect of permits granted for fisheries for which no levy had been set under regulations dealing with a specific fishery.
The Fishing Levy (All Fisheries) Regulations have repealed and replaced, among other things, the former Fishing Levy Regulations.
The Fisheries Management (Refund) Regulations (Amendment) (the Regulations) amend the principal Regulations to:
* alter the formula for calculating the amount of any refund of levy to allow for the payment of appropriate refunds for the surrender of permits granted for less than one year; and
* take account of the Fishing Levy (All Fisheries) Regulations.
The Regulations also provide for a refund of levy to continue to be available to permit holders who paid levy under the former Fishing Levy Regulations prior to the commencement of the Regulations.
Details of the Regulations, which commenced on gazettal, are set out below:
Regulation 1 provides that the Regulations amend the principal Regulations. The note provides that the Regulations commenced on gazettal.
Regulation 2 omits regulation 2, which has become superfluous.
Regulation 3 omits and replaces regulation 3 of the principal Regulations. The new regulation 3:
* provides that where the holder of a fishing permits in respect of which levy has been paid under Part 17 of the new Regulations surrenders that permit AFMA must refund to the holder an amount calculated in accordance with the formula specified in the regulation; and
* provides for a refund of levy to continue to be available to permit holders who paid levy under the former Fishing Levy Regulations prior to the commencement of the Regulations.
Overview
The Fisheries Management (Refund) Regulations (Amendment) 1996, issued under the authority of the Minister for Resources and Energy, were enacted to amend the Fisheries Management (Refund) Regulations of 1991. These amendments were made to address the need for an appropriate refund formula for fishing permit holders who surrendered their permits before expiry, particularly in light of the introduction of the Fishing Levy (All Fisheries) Regulations. The purpose of these amendments is to ensure that permit holders receive an accurate refund of the levy paid for the unexpired portion of their permits, reflecting the new regulatory framework for fishing levies. The policy objective is to provide clarity and fairness in the refund process for fishing permit holders under the Fisheries Management Act 1991 and the Fishing Levy Act 1991.
Scope and Application
The Fisheries Management (Refund) Regulations (Amendment) 1996 (No. 318) applies to individuals and entities who hold fishing permits under the Fisheries Management Act 1991 and have paid a fishing levy under the Fishing Levy Act 1991. This Act amends the existing Fisheries Management (Refund) Regulations to alter the formula for calculating refunds for permits surrendered before their expiry, particularly for permits granted for less than one year. It also takes into account the Fishing Levy (All Fisheries) Regulations, which replaced the former Fishing Levy Regulations. The Regulations provide for continued availability of refunds to permit holders who paid levy under the former Fishing Levy Regulations before the commencement of these new Regulations. These Regulations have a Commonwealth jurisdictional reach as they are issued under the authority of the Minister for Resources and Energy. No specific exclusions or exemptions are outlined in the explanatory statement, and the application of these Regulations may be extended or restricted through subordinate instruments as deemed necessary by the Governor-General under the relevant Acts.
Key Provisions
The Fisheries Management (Refund) Regulations (Amendment) 1996 (No. 318) amends the existing Fisheries Management (Refund) Regulations to modify the formula for calculating refunds of fishing levies. This amendment is made under the authority provided in section 168 of the Fisheries Management Act 1991, which allows for regulations concerning the remission or refund of levies. Regulation 3 of the amending regulations alters the formula for refund calculations, ensuring that appropriate refunds are made when fishing permits are surrendered before their expiration, particularly for permits that are valid for less than one year. This amendment reflects changes in the Fishing Levy (All Fisheries) Regulations, which have replaced the former Fishing Levy Regulations.
The obligations imposed by these regulations primarily affect holders of fishing permits and the Australian Fisheries Management Authority (AFMA). Permit holders who surrender their permits before their expiration and have previously paid the fishing levy under the relevant regulations are entitled to a refund. AFMA is required to process these refund requests and calculate the refund amount based on the amended formula specified in Regulation 3. The regulations also ensure continuity by allowing refunds for those who paid the levy under the former Fishing Levy Regulations before the new regulations came into effect.
The Fisheries Management (Refund) Regulations (Amendment) impose specific obligations on AFMA and permit holders. AFMA must refund the calculated amount to permit holders who surrender their permits and have paid the levy. Permit holders must ensure that they have paid the relevant levy before requesting a refund. The regulations clarify the refund process and provide a legal framework for the refund calculations, ensuring that both AFMA and permit holders understand their respective roles and responsibilities.
Failure to comply with these regulations may result in civil or administrative consequences. For instance, if AFMA does not process refund requests in accordance with the amended regulations, it may face legal challenges from permit holders who are entitled to refunds. Conversely, permit holders who fail to meet the eligibility criteria for a refund may not be entitled to receive one. The regulations do not specify criminal penalties for non-compliance but emphasise the importance of adherence to the refund process to avoid disputes and ensure fairness in the administration of fishing permits and levies.