EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Resources and Northern Australia,
Senator the Hon Matt Canavan
Offshore Minerals (Registration Fees) Act 1981
Offshore Minerals (Registration Fees) Regulations 2018
Purpose and Operation
The Offshore Minerals (Registration Fees) Act 1981 (the Act) imposes fees for the registration of certain documents under the Offshore Minerals Act 1994 (the OM Act). The purpose of the fee is to compensate the Designated Authorities (state and Northern Territory governments) for the costs of day-to-day administration of the Offshore Minerals legislation on behalf of the Commonwealth.
Section 5 of the Act provides that the Governor-General may make regulations prescribing matters either required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsections 4(1), (2), (4) and (5) of the Act impose fees for the registration of certain documents and provide that the levels of the fees are to be prescribed by regulations. Subsections 4(1A), (2A), (4A) and (5A) each impose a ceiling on the amount of fees that may be prescribed.
The Offshore Minerals (Registration Fees) Regulations (the sunsetting Regulations), which are due to sunset on 1 October 2018, prescribe the levels of the registration fees. Regulation 3 of the sunsetting Regulations provides that, for the purposes of the fee imposed by subsection 4(1) of the Act, the prescribed percentage of the value of consideration of the document to be registered, or value of the licence, share or interest transferred or otherwise dealt with by the document, is 1.5%. The maximum percentage that may be prescribed is 10%.
Regulation 4 provides that in cases where subsection 4(2), (4) or (5) of the Act applies, the fees payable shall be $600, $3,000 and $3,000 respectively. The maximum fees that may be imposed are $2,000, $20,000 and $20,000 respectively.
The Department of Industry, Innovation and Science (the department) has conducted a review of the sunsetting Regulations and determined that they should be remade without substantive change. To date, only a few licences have been granted under the OM Act. It is not proposed to increase the registration fees as the states and the Northern Territory currently incur negligible costs in administering mining activities in Commonwealth offshore areas.
A review of the current fees has determined that lower amounts would not be sufficient to appropriately compensate the Designated Authorities for their activities should offshore exploration and mining activities increase in future. The registration fees cover the cost of administration of the register and are also intended to contribute to the costs of overall regulation of offshore exploration and mining activities. The amounts of registration fees received on an annual basis will vary, depending on the number of transfers and dealings in relation to licences. At the same time, the amounts are not considered to be onerous for licence holders in the context of overall costs incurred in offshore exploration and mining activities, and noting that the prescribed amounts are significantly lower than the maximum amounts that may be prescribed under the Act.
The purpose of the Offshore Minerals (Registration Fees) Regulations 2018 (the 2018 Regulations) is to remake the sunsetting Regulations in substantially the same form with amendments to ensure consistency with current drafting practices, including simplifying language and restructuring provisions for greater clarity.
Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character (including regulations), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument. The 2018 Regulations also repeal the sunsetting Regulations.
A provision-by-provision description of the 2018 Regulations is set out at Attachment A.
Consultation
State and Northern Territory governments were consulted during the drafting of the 2018 Regulations. Jurisdictions were advised of the proposal to remake the sunsetting Regulations with no substantive change at the March 2018 meeting of the Upstream Petroleum Resources Working Group of the Council of Australian Governments’ Energy Council, with comments sought by 11 April 2018. No comments were received.
The offshore minerals industry in Australia is relatively small. In order to consult with the industry, and ensure broader awareness of the proposal to remake the sunsetting Regulations, information about the proposal and an invitation to comment were published on the department’s Consultation Hub. Interested stakeholders were also advised through an issue of Australian Petroleum News. Comments in relation to the proposal were sought by 13 April 2018. One submission was received; however, the content of the submission related to matters outside the scope of the sunsetting Regulations.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) has confirmed that a Regulation Impact Statement is not required for the 2018 Regulations. The OBPR reference is ID 22729.
Statement of Compatibility with Human Rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker of a legislative instrument to which section 42 (disallowance) of the Legislation Act 2003 applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. A Statement of Compatibility with Human Rights has been prepared to meet that requirement and is set out at Attachment B.
Attachment A
Details of the Offshore Minerals (Registration Fees) Regulations 2018
Section 1 – Name
This section provides that the name of the instrument is the Offshore Minerals (Registration Fees) Regulations 2018 (the 2018 Regulations).
Section 2 – Commencement
This section provides that the 2018 Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the 2018 Regulations are made under the Offshore Minerals (Registration Fees) Act 1981 (the Act). The applicable provisions that provide authority are subsections 4(1), (2), (4) and (5) and section 5 of the Act.
Section 4 – Schedules
This section is a machinery provision that enables the Schedule to the 2018 Regulations to operate according to its terms.
Section 5 – Definitions
This section provides for the definitions of terms used in the 2018 Regulations.
Section 6 – Registration fees
Subsection 6(1) provides that, for the purposes of the fee imposed by subsection 4(1) of the Act, the prescribed percentage is 1.5%.
Subsection 6(2) provides that, for the purposes of subsection 4(2) of the Act, the prescribed amount is $600. If the fee imposed by subsection 4(1) would otherwise be less than this amount, the amount prescribed for the purposes of subsection 4(2) is payable for registration of the document.
Subsection 6(3) provides that, in cases where subsection 4(4) or (5) of the Act applies, the fee payable for registration of the document is $3,000.
Schedule 1 – Repeals
This Schedule provides that the whole of the sunsetting Offshore Minerals (Registration Fees) Regulations is repealed.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Offshore Minerals (Registration Fees) Regulations 2018
These Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Offshore Minerals (Registration Fees) Regulations 2018 (the 2018 Regulations) are a legislative instrument for the purposes of the Legislation Act 2003.
The 2018 Regulations are prepared under subsections 4(1), (2), (4) and (5) and section 5 of the Offshore Minerals (Registration Fees) Act 1981, and repeal and remake the Offshore Minerals (Registration Fees) Regulations (the sunsetting Regulations), due to sunset on 1 October 2018.
The sunsetting Regulations prescribe fees for the registration of certain documents under the Offshore Minerals Act 1994. A review of the sunsetting Regulations determined that the Regulations are still required. The 2018 Regulations remake the sunsetting Regulations without substantive change.
Human rights implications
The 2018 Regulations do not engage any of the applicable rights or freedoms.
Conclusion
The 2018 Regulations are compatible with human rights, as they do not raise any human rights issues.
Senator the Hon Matt Canavan
Minister for Resources and Northern Australia