EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 48
Issued by the authority of the Parliamentary Secretary for Agriculture, Fisheries and Forestry
Primary Industries and Energy Research and Development Act 1989
Fisheries Research and Development Corporation Amendment
Regulations 2012 (No. 1)
Section 149 of the Primary Industries and Energy Research and Development Act 1989 (the Act) provides 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 to be established and named by way of regulations. In accordance with that section, the Fisheries Research and Development Corporation Regulations 1991 (the Principal Regulations) establish the Fisheries Research and Development Corporation (FRDC) in respect of the fishing industry.
Subsection 5(1) of the Act allows a levy to be attached to a research and development corporation by way of regulations for raising research funds. Section 4(A) of the Principal Regulations attaches the fishing levy imposed by section 5 of the Fishing Levy Act 1991 to the FRDC for this purpose.
Subsection 5(3) of the Act requires that, if a levy is attached to a research and development corporation by way of regulation, then the regulations must declare the whole or a specified proportion of the levy to be the research component of the levy.
The Regulation amends the Principal Regulations to declare the proportion of the annual fishing levies that are to be directed to the FRDC in the 2011-12 financial year. The amendment therefore authorises the Department of Agriculture, Fisheries and Forestry to transfer the funds comprising the research component of the fishing levies to the FRDC.
The proportion of the fishing levies to be directed to the FRDC varies annually, because it is derived from independent sources. The fishing research component of the levies is derived from the gross value of production of Commonwealth managed fisheries, as determined by the Minister for the relevant financial year. The fisheries management component of the levies is derived from the costs borne by the Australian Fisheries Management Authority in managing Commonwealth fisheries. As a result, the proportion to be directed to the FRDC varies and must be declared in the Principal Regulations on an annual basis.
The Department of Agriculture, Fisheries and Forestry consulted with the Australian Fisheries Management Authority, which collects the fishing levies, in determining the proportion of the levies to be directed to the FRDC. The FRDC has also been notified of the Regulation. Because the amendment is of a minor and machinery nature and does not substantially alter existing arrangements, nor affect any parties other than the Commonwealth and the FRDC, no further consultation was necessary.
Because the amendment only affects the Commonwealth and the FRDC, rather than any individuals, the amendment does not engage any of the human rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The amendment is therefore compatible with those human rights and freedoms.
The Regulation commenced on the day after it was registered on the Federal Register of Legislative Instruments.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations
Details of the Regulations are below.
Regulation 1 – sets out that the Regulation is to be referred to as the Fisheries Research and Development Corporation Amendment Regulation 2012 (No 1).
Regulation 2 – sets out that the Regulation commences on the day after it is registered.
Regulation 3 – states that the Regulation amends the Fisheries Research and Development Corporation Regulations 1991.
Schedule 1 [1] – inserts an additional figure into the table at subregulation 4A(2) to update the research component of the levy for the 2011-12 financial year. An additional figure is inserted into the table at subregulation 4A(2) each year to enable funds collected through fishing levies for research and development to be paid to the Fisheries Research and Development Corporation.
Overview
The Fisheries Research and Development Corporation Amendment Regulation 2012 (No. 1) was enacted to address the need for annual updates to the proportion of fishing levies directed to the Fisheries Research and Development Corporation (FRDC) in line with changes in the gross value of production of Commonwealth managed fisheries. This regulation, issued under the authority of the Parliamentary Secretary for Agriculture, Fisheries and Forestry, amends the Fisheries Research and Development Corporation Regulations 1991 to reflect the most recent financial year's levy figures. The regulation ensures that the FRDC receives the correct proportion of the fishing levies for research purposes, as these proportions vary annually based on the gross value of production and the management costs borne by the Australian Fisheries Management Authority. The policy objective of these regulations is to maintain the alignment between the levies collected and the research funding needs of the fishing industry, without affecting any individual rights or freedoms as it operates within the bounds of the Commonwealth and the FRDC.
Scope and Application
The Fisheries Research and Development Corporation Amendment Regulations 2012 (No. 1) pertain to the amendment of the Fisheries Research and Development Corporation Regulations 1991, which were established under Section 8 of the Primary Industries and Energy Research and Development Act 1989. These regulations are designed to establish the Fisheries Research and Development Corporation (FRDC) with respect to the fishing industry. The Act applies to the FRDC and the Department of Agriculture, Fisheries and Forestry, which is responsible for the transfer of funds from the fishing levies to the FRDC. The regulations have a national jurisdictional reach, as they are concerned with the management and distribution of funds collected from fishing levies across Australia. The regulations declare the proportion of the annual fishing levies that are to be directed to the FRDC for a specific financial year, in this case, 2011-12. The specific proportion is derived from independent sources and varies annually based on the gross value of production of Commonwealth managed fisheries and the costs borne by the Australian Fisheries Management Authority in managing Commonwealth fisheries. The regulations do not provide any stated exclusions or exemptions, but the application is limited to the research component of the fishing levies. The amendment does not engage any human rights or freedoms as it does not affect individuals. The Regulations came into effect the day after they were registered on the Federal Register of Legislative Instruments, and they serve as a legislative instrument under the Legislative Instruments Act 2003.
Key Provisions
The Fisheries Research and Development Corporation Amendment Regulations 2012 (No. 1) amend the Fisheries Research and Development Corporation Regulations 1991 to update the proportion of fishing levies to be directed to the Fisheries Research and Development Corporation (FRDC) for the 2011-12 financial year. This is done through the insertion of a new figure into the table at subregulation 4A(2) of the Principal Regulations (Regulation 3, Schedule 1 [1]). The FRDC is established under section 8 of the Primary Industries and Energy Research and Development Act 1989 (the Act), and the fishing levy is attached to it by way of regulations under section 5 of the Act. The Act also requires that if a levy is attached to a research and development corporation, the regulations must declare the whole or a specified proportion of the levy to be the research component of the levy (subsection 5(3) of the Act).
These Regulations impose obligations on the Department of Agriculture, Fisheries and Forestry to determine the proportion of the fishing levies to be directed to the FRDC for each financial year, based on the gross value of production of Commonwealth managed fisheries and the costs borne by the Australian Fisheries Management Authority in managing Commonwealth fisheries. The Department must consult with the Australian Fisheries Management Authority in determining the proportion of the levies to be directed to the FRDC and notify the FRDC of the determination. The FRDC is then responsible for managing and allocating the funds received from the research component of the fishing levies for fisheries research and development.
There are no specific offences, penalties, or consequences for breach outlined in the Explanatory Statement for these Regulations. However, failure to comply with the obligations and requirements imposed by the Regulations could potentially result in legal or administrative consequences, such as the Department of Agriculture, Fisheries and Forestry being unable to transfer the funds comprising the research component of the fishing levies to the FRDC. The maximum penalties for breaches of the Primary Industries and Energy Research and Development Act 1989 are set out in section 15 of the Act, which include fines of up to 120 penalty units ($22,200) for individuals and 600 penalty units ($111,000) for bodies corporate. Additionally, the Act provides for the recovery of costs associated with the enforcement of the Act, including legal costs.