EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 92
Issued by the Minister for Fisheries, Forestry and Conservation
Primary Industries and Energy Research and Development Act 1989
Fisheries Research and Development Corporation Amendment Regulations 2006 (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 (R & D Corporations) to be established and named by way of regulations. Sections 11 and 12 of the Act set out the functions and powers, respectively, of R & D Corporations.
Subsection 5(1) of the Act allows levies to be attached to a R & D Corporation by way of regulations for raising research funds. Subsection 5(3), requires that, if a levy is attached to an R & D Corporation by way of regulation 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.
In accordance with subsection 5(1) of the Act, the Fisheries Research and Development Corporation (FRDC) was established in respect of the fishing industry by the Fisheries Research and Development Corporation Regulations 1991 (the Principal Regulations). The Principal Regulations also attached to FRDC the fishing concession levies collected by the Australian Fisheries Management Authority (AFMA) which are declared under annual Fishing Levy Regulations.
The purpose of the Fisheries Research and Development Corporation Amendment Regulations (the Regulations) is to amend the Principal Regulations to provide retrospective authority for payments to the FRDC that have been made since the 1998/99 financial year. Due to an administrative oversight the research component currently specified in the Principal Regulations has not been updated since the 1998 /99 financial year. Instead the annual Fishing Levy Regulations have specified the research components as whole dollars for each of the financial years since 1 July 1999. The Australian Government Solicitor has provided legal advice that, for the purposes of the Act, this does not provide the appropriate authority to make payment to FRDC of the research component and that amendments to the Principal Regulations are required.
The authority to make payment of the research component collected, in accordance with subsection 5(3) of the Act, requires that the research component must be declared as a proportion or percentage of the fishing concession levies, not dollar amounts, and that this percentage must be declared in regulations made under the Act. The annual Fishing Levy Regulations, however, are made under another act, the Fishing Levy Act 1991.
The Regulations would amend the Principal Regulations by proscribing the research component as a percentage of the fishing concession levy for each financial year since 1999/2000.
The Regulations would be taken to have commenced retrospectively. This would provide retrospective authority to make payment to FRDC of the research components collected since 1 July 1999. This arrangement will reflect the results of reconciliations carried out by AFMA of levy collections and payments of research components to the FRDC since 1 July 1999 and will represent the fishing industry’s actual contributions to the funding of FRDC in accordance with current government policy.
Subsection 12(2) of the Legislative Instruments Act 2003 prohibits the retrospective operation of regulations which adversely affect the rights, or impose a liability on, a person other than the Commonwealth in respect of anything done or omitted to be done before the date of notification. The retrospective operation of the Regulations will not contravene subsection 12(2) because the matters in the Regulations only affect payments between the Commonwealth and Commonwealth authorities in respect of levies already collected or those required to be collected under long standing legislation with no impact upon any person or industry body. As such no industry consultation has been undertaken.
The Act specifies no conditions that need to be satisfied before the power to make Regulations may be exercised.
The Proposed Regulations would be legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Fisheries Research and Development Corporation Amendment Regulations 2006 (No. 1) were introduced to amend the Fisheries Research and Development Corporation Regulations 1991. These amendments were necessary to rectify an administrative oversight that had left the specified research component of fishing concession levies unpaid since the 1998/99 financial year. The Fisheries Research and Development Corporation (FRDC), established under the Primary Industries and Energy Research and Development Act 1989, was intended to receive a proportion of the fishing concession levies collected by the Australian Fisheries Management Authority (AFMA) as its research fund. However, due to an oversight, the research component had been specified as whole dollars rather than as a percentage of the levies, which is required by the Act. The regulations amend the Principal Regulations to declare the research component as a percentage of the fishing concession levies for each financial year since 1999/2000, thereby providing retrospective authority for the payments made since that time. This ensures that the fishing industry's contributions to the funding of FRDC are accurately reflected in accordance with current government policy. The Regulations were issued under the authority of the Minister for Fisheries, Forestry and Conservation and are intended to have retrospective effect without adversely affecting the rights or imposing a liability on any person or industry body.
Scope and Application
The Fisheries Research and Development Corporation Amendment Regulations 2006 (No. 1) pertain to the Fisheries Research and Development Corporation (FRDC) established under the Primary Industries and Energy Research and Development Act 1989. This Act allows for the creation of research and development corporations to promote research and development in primary industries. The FRDC, as named by the Fisheries Research and Development Corporation Regulations 1991, is specifically focused on the fishing industry and is funded through levies attached to the fishing concession. The amendment regulations address an oversight in the specification of the research component of these levies, ensuring that payments to the FRDC are made in accordance with the Act's requirements, namely that the research component must be declared as a percentage rather than in whole dollar amounts. The regulations aim to provide retrospective authority for payments made since the 1998/99 financial year, ensuring that the fishing industry's contributions to the funding of the FRDC are accurately reflected and consistent with government policy. The retrospective operation of these regulations does not contravene any prohibitions on adversely affecting the rights or imposing liabilities on persons other than the Commonwealth, as it solely concerns payments between Commonwealth authorities.
Key Provisions
The Fisheries Research and Development Corporation Amendment Regulations 2006 (No. 1) primarily serve to amend the Fisheries Research and Development Corporation Regulations 1991. These regulations are aimed at providing retrospective authority for payments to the Fisheries Research and Development Corporation (FRDC) that have been made since the 1998/99 financial year. The need for these amendments arises from an administrative oversight where the research component specified in the Principal Regulations has not been updated since the 1998/99 financial year. Instead, the annual Fishing Levy Regulations have specified the research components as whole dollars for each financial year since 1 July 1999. The Australian Government Solicitor has advised that this does not provide the appropriate authority to make payment to FRDC of the research component as required by the Primary Industries and Energy Research and Development Act 1989 (the Act).
Under these amended regulations, the research component will be prescribed as a percentage of the fishing concession levy for each financial year since 1999/2000. This change is intended to ensure that the payments to FRDC are in accordance with the legal requirements stipulated in the Act, which mandates that the research component must be declared as a proportion or percentage of the fishing concession levies. The retrospective operation of these Regulations will provide the necessary authority to make payment to FRDC of the research components collected since 1 July 1999, reflecting the actual contributions of the fishing industry to the funding of FRDC in line with current government policy.
These regulations impose obligations on the parties involved, particularly the Australian Fisheries Management Authority (AFMA) and FRDC, to ensure that the fishing concession levies are correctly apportioned and that the research component is accurately calculated and remitted to FRDC. The amendments are intended to correct a historical oversight and to ensure compliance with the statutory requirements set out in the Act. The retrospective operation of these regulations does not adversely affect any rights or impose any liability on any person or industry body other than the Commonwealth, as the matters in the Regulations only affect payments between the Commonwealth and Commonwealth authorities.
Breach of these regulations could potentially result in legal challenges regarding the validity of past payments to FRDC. While the Act does not specify particular offences or penalties for non-compliance, any failure to adhere to these regulatory requirements could lead to financial discrepancies and potential disputes over the allocation of funds. The retrospective nature of these Regulations ensures that there is no adverse impact on any party other than the Commonwealth, thus mitigating any potential civil or criminal consequences for breach. The maximum penalties for non-compliance are not explicitly stated in the explanatory statement but could be pursued under the general provisions of the Act or other relevant legislation.