Fisheries (Compensation and Procedures) Regulations 2003

i Fisheries (Compensation and Procedures) Regulations 2003 S.R. No. 38/2003 TABLE OF PROVISIONS Regulation Page 1. Objectives 1 2. Authorising provision 1 3. Principal Regulations 1 4. Compensation payable under section 63 of the Fisheries Act 1995 2 243. Process for determination of compensation payable under section 63 2 244. Manner in which compensation is payable 7 5. Statute law amendments 8 ═══════════════ ENDNOTES 10 -- 1 of 11 -- 1 STATUTORY RULES 2003 S.R. No. 38/2003 Fisheries Act 1995 Fisheries (Compensation and Procedures) Regulations 2003 The Governor in Council makes the following Regulations: Dated: 20 May 2003 Responsible Minister: BOB CAMERON Minister for Agriculture HELEN DOYE Clerk of the Executive Council 1. Objectives The objectives of these Regulations are— (a) to amend the Fisheries Regulations 1998 to provide for the determination and payment of compensation in relation to the cancellation of access licences; and (b) to make certain statute law amendments to the Fisheries Regulations 1998. 2. Authorising provision These Regulations are made under section 153 of the Fisheries Act 1995. 3. Principal Regulations In these Regulations, the Fisheries Regulations 1998 1 are called the Principal Regulations. -- 2 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 2 4. Compensation payable under section 63 of the Fisheries Act 1995 After regulation 242 of the Principal Regulations insert— '243. Process for determination of compensation payable under section 63 (1) If an access licence is cancelled as a result of a direction under section 61 of the Act, the Secretary must in respect of a claim for compensation made under section 63(3) of the Act— (a) accept in full the claim; or (b) make an offer for compensation. (2) For the purposes of sub-regulation (1), the compensation payable to the holder of a cancelled transferable access licence must be determined in accordance with the formula— [A + (B – C) + D + E] – Y where— A is a fair and reasonable valuation for the licence including any quota entitlement issued in respect of the licence; B is an income support payment equal to 3 times the average of the 4 highest net incomes before tax (NIBT) expressed in current dollars and returned from the 7 fishing seasons immediately before the cancellation of the licence, and based on catch records held by the Secretary; C is a discounted amount determined by the independent negotiator to adjust for r. 4 -- 3 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 3 the benefit gained from receiving a lump sum in lieu of future income; D is a fair and reasonable sum for any financial loss suffered as a natural and direct consequence of the cancellation of the licence that is not met by A or B; E is a solatium of not more than 10% of the result of A + (B – C) + D; Y is the total amount of the entitlement of the holders of a registered financial interest under section 59 of the Act in the licence. (3) For the purposes of sub-regulation (1), the compensation payable to the holder of a cancelled non-transferable access licence must be determined in accordance with the formula— [(B – C) + D + E] – Y where— B is an income support payment equal to 3 times the average of the 4 highest net incomes before tax (NIBT) expressed in current dollars and returned from the 7 fishing seasons immediately before the cancellation of the licence, and based on catch records held by the Secretary; C is a discounted amount determined by the independent negotiator to adjust for the benefit gained from receiving a lump sum in lieu of future income; D is a fair and reasonable sum for any financial loss suffered as a natural and direct consequence of the cancellation of the licence that is not met by B; r. 4 -- 4 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 4 E is a solatium of not more than 10% of the result of (B – C) + D; Y is the total amount of the entitlement of the holders of a registered financial interest under section 59 of the Act in the licence. (4) For the purposes of sub-regulation (1), the compensation payable to the holder of a registered financial interest in an access licence must be— (a) determined in accordance with the financial interest expressed as a dollar amount and declared by the holder of the financial interest and agreed to by the holder of the access licence on the application for compensation form; and (b) assessed as a component of item Y in the formula set out in sub-regulation (2) or sub-regulation (3), as the case may be. (5) The Secretary must provide to the holder of a cancelled licence and the holder of a registered financial interest in respect of a cancelled licence— (a) notification of the direction issued under section 61 of the Act; and (b) an application form for compensation. (6) An application for compensation submitted to the Secretary must— (a) specify in respect of a claim made by— (i) the holder of a transferable access licence, the amounts claimed for each item in the formula set out in sub-regulation (2) except items C and E; r. 4 -- 5 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 5 (ii) the holder of a registered financial interest in a transferable access licence, the entitlement held in respect of item Y in the formula set out in sub-regulation (2); (iii) the holder of a non-transferrable access licence, the amount claimed for each item in the formula set out in sub-regulation (3) except items C and E; (iv) the holder of a registered financial interest in a non-transferable access licence, the entitlement held in respect of item Y in the formula set out in sub-regulation (3); and (b) be supported by financial documentation to substantiate those items in the relevant formula that must be specified in accordance with paragraph (a). (7) The Secretary may appoint an independent negotiator who, in the opinion of the Secretary, has extensive knowledge of financial matters and asset valuation to provide the Secretary with advice on the compensation payable in respect of a cancelled access licence by a direction under section 61. (8) The independent negotiator may provide advice to the Secretary on the financial documentation referred to in sub-regulation (6)(b). r. 4 -- 6 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 6 (9) An application for compensation must be submitted by a date specified in writing by the Secretary, being a date not less than 6 months after the date on which the direction under section 61 of the Act is published. (10) In this regulation— "financial documentation" means for the purposes of sub-regulation (6)— (a) in the case of item A or B— (i) a statement endorsed by a certified practising accountant, being a member of CPA Australia, the Institute of Chartered Accountants in Australia or the National Institute of Accountants; or (ii) a personal taxation statement issued by the Australian Taxation Office; (b) in the case of item D, any documentation that the Secretary determines is relevant in determining the claim; (c) in the case of item Y— (i) a certified copy of a written agreement between the holder of the cancelled access licence and the holder of a registered financial interest in the licence and a statement signed by the holder of the licence and the holder of the registered financial interest that states r. 4 -- 7 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 7 the terms of the agreement and any dollar amount outstanding at the time the agreement was entered into; or (ii) if a written agreement was not entered into at the time an arrangement or understanding was made between the holder of the cancelled access licence and the holder of a registered financial interest in the licence, a statement signed by the holder of the licence and the holder of the registered financial interest that states the terms of the agreement and any dollar amount then outstanding; "independent negotiator" means a person appointed under sub-regulation (7). 244. Manner in which compensation is payable (1) If the Secretary accepts in full a claim for compensation made under section 63(3) of the Act, the Secretary must— (a) give notice in writing of the acceptance to— (i) the holder of the cancelled access licence; and (ii) the holder of any registered financial interest in the cancelled access licence; and (b) pay the compensation in sub-regulation (a) to the claimant as directed, being by means of a cheque or bank transfer. r. 4 -- 8 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 8 (2) If the Secretary makes an offer for compensation in relation to a cancelled access licence under regulation 243(1)(b), the Secretary must give the holder of the cancelled access licence and the holder of any registered financial interest in the cancelled access licence a notice in writing that sets out— (a) the total compensation amount offered; and (b) the compensation amount offered for each item calculated in accordance with the relevant formula in regulation 243. (3) If the holder of the cancelled access licence or any holder of a registered financial interest in the cancelled access licence accepts in writing an offer for compensation made under regulation 243(1)(b), the Secretary must pay the compensation as directed in writing by the holder of the cancelled access licence or any holder of a registered financial interest, being by means of a cheque or bank transfer.'. 5. Statute law amendments (1) In regulation 105(2) of the Principal Regulations, in the definition of "specified details" in paragraph (b)(vii), for "Part A" substitute "Part B". (2) In regulation 242 of the Principal Regulations— (a) after "Gippsland Lakes Fishery," insert "the Gippsland Lakes Fishery (Bait) Access Licence,"; and (b) after "Mallacoota Lower Lake Fishery" insert ", the Ocean Fishery". r. 5 -- 9 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 9 (3) In Schedule 13 to the Principal Regulations— (a) after the heading "DESIGNATED LICENCE CONDITIONS" insert "(section 53 of the Act)"; and (b) omit— (i) "303(3)(p)(i)"; (ii) "303(3)(q)"; (iii) "303(3)(t)"; (iv) "303(3)(u)"; (v) "303(3)(v)"; and (c) after "327(d)" insert "327(f)". ═══════════════ r. 5 -- 10 of 11 -- S.R. No. 38/2003 Fisheries (Compensation and Procedures) Regulations 2003 10 ENDNOTES 1 Reg. 3: S.R. No. 23/1998. Reprint No. 2 as at 22 May 2001. Reprinted to S.R. No. 43/2001 and subsequently amended by S.R. Nos 78/2001, 118/2001, 45/2001, 19/2002, 63/2002, 78/2002, 22/2003, 24/2003 and 25/2003. Endnotes -- 11 of 11 --