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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Export Market
Development Grants Amendment Bill (No. 1)
1996
No. ,
1996
(Foreign Affairs and
Trade)
A Bill for an Act to amend the
Export Market Development Grants Act 1974, and for related
purposes
9603820—1,115/16.5.1996—(38/96) Cat. No.
96 4559 4 ISBN 0644 442964
Contents
A Bill for an Act to
amend the Export Market Development Grants Act
1974, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Export Market Development Grants
Amendment Act (No. 1) 1996.
(1) Subject to subsection (2), this Act commences on the day
on which it receives the Royal Assent.
(2) Schedule 8 commences immediately after the commencement of Schedule
5.
The Export Market Development Grants Act 1974 is amended in
accordance with the applicable items in the Schedules, and the other items in
the Schedules have effect according to their terms.
1 Subsection 3(1) (paragraph (a) of the
definition of grant ceiling)
Omit “$250,000”, substitute “$200,000”.
2 Application of amendment
(1) The amendment made by this Schedule applies in relation to a
balance-year claim or a full-year claim in relation to the grant year beginning
on 1 July 1995.
(2) The amendment made by this Schedule applies in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.
1 After section 12
Insert:
(1) This section applies to a claim if, on one or more occasions after the
claim is submitted, but before the Commission determines whether the claimant is
entitled to a grant, the claimant discloses to the Commission eligible
expenditure that was not disclosed in the claim. The total of that eligible
expenditure is called the unclaimed expenditure.
(2) If:
(a) the amount that would have been the amount of the claimant’s
grant if it were assumed that this section had not been enacted;
exceeds:
(b) 110% of the amount that would have been the amount of the
claimant’s grant if it were assumed that the unclaimed expenditure had not
been incurred;
the amount of the claimant’s grant is reduced by the amount of the
excess.
(3) Subsection (2) has effect despite section 16.
2 Subsection 16(1) (note)
Repeal the note, substitute:
Note 1: See section 12A for special rules about disclosure
of eligible expenditure after the submission of a claim.
Note 2: See Division 4 for special rules about bodies
corporate that are members of related company groups.
3 Subsection 16(2) (note)
Repeal the note, substitute:
Note 1: See section 12A for special rules about disclosure
of eligible expenditure after the submission of a claim.
Note 2: See Division 4 for special rules about bodies
corporate that are members of related company groups.
4 Application of amendments
(1) The amendments made by this Schedule apply in relation to a
balance-year claim or a full-year claim in relation to the grant year beginning
on 1 July 1995.
(2) The amendments made by this Schedule apply in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.
1 Subsection 40A(1) (paragraph (d) of the
definition of decision of the Commission)
After “subsection 40BD(1)”, insert “or
40BH(2)”.
2 Subsection 40A(1) (paragraph (e) of the
definition of decision of the Commission)
After “subsection 40BD(5)”, insert “or
40BH(2)”.
3 After section 40BG
Insert:
(1) The Minister may make a written determination specifying the maximum
number of approved joint ventures and approved consortia of which a person may
be a member.
(2) The Commission must not:
(a) approve a group of persons as an approved joint venture or approved
consortium; or
(b) vary a group’s approval as an approved joint venture or approved
consortium;
if the approval or variation would have the result that a person is a
member of more than the maximum number of approved joint ventures and approved
consortia mentioned in the determination.
(3) A copy of the determination must be published in the
Gazette.
(4) The Commission must give a free copy of the determination to any
person who requests a copy.
(5) The determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
4 Application of amendments
The amendments made by this Schedule apply to an approval given, or a
variation made, after the commencement of this item.
1 After section 11X
Insert:
(1) This section applies to expenditure of an approved joint venture or an
approved consortium if the approval of the joint venture or consortium is
subject to one or more conditions.
Note: Conditions of approval are dealt with in subsections
40BD(2) and (5).
(2) The expenditure is non-claimable expenditure to the extent (if any) to
which it is incurred in breach of those conditions.
2 Subsection 40A(1) (after paragraph (d) of the
definition of decision of the Commission)
Insert:
(da) under paragraph 40BD(2)(d), to specify one or more conditions to
which a group’s approval as an approved joint venture or approved
consortium is subject; or
3 Subsection 40BD(2)
Omit “A declaration”, substitute “An
approval”.
4 Subsection 40BD(2)
Add at the end:
; and (d) specify the conditions (if any) to which the approval is
subject.
5 Subsection 40BD(5)
Add at the end:
; or (d) a condition of the approval.
6 After subsection 40BD(5)
Insert:
(5A) A reference in subsection (5) to changing a condition includes a
reference to:
(a) imposing a further condition; or
(b) revoking a condition.
7 Subsection 40BE(3)
Repeal the subsection, substitute:
(3) In determining:
(a) whether to approve an applicant as an approved joint venture or
approved consortium; and
(b) the conditions (if any) to be specified in that approval;
the Commission must have regard to the guidelines issued under section
42.
1 Before section 13
Insert:
2 Before subsection 13(2A)
Insert:
(2AB) If the claim was prepared for the claimant by or on behalf of an
export market development grants consultant, the claim must name all the
individuals who assisted in the preparation of the claim in an eligible
capacity.
Note: Eligible capacity is defined by section
13B.
3 After section 13A
Insert:
(1) This section applies to a claim prepared for the claimant by or on
behalf of an export market development grants consultant.
(2) For the purposes of this Division, an individual assists in the
preparation of the claim in an eligible capacity if:
(a) either:
(i) the individual works (whether or not in the capacity of an employee)
on the preparation of the claim, where the work involves forming an opinion
(whether formal or informal) about the application of the law to a matter dealt
with by the claim; or
(ii) the individual directly or indirectly manages or supervises work
mentioned in subparagraph (i); and
(b) the work, management or supervision, as the case may be, is performed
by or on behalf of the export market development grants consultant.
(1) This section applies if:
(a) a claim is submitted to the Commission; and
(b) the claim was prepared for the claimant by or on behalf of an export
market development grants consultant; and
(c) an individual assisted in the preparation of the claim in an eligible
capacity; and
(d) the individual is disqualified at any time during the period beginning
when the claim is submitted and ending immediately before the Commission
determines whether the claimant is entitled to a grant.
Note 1: Eligible capacity is defined by
section 13B.
Note 2: Disqualified is defined by section
13F.
(2) The claim is taken, for the purposes of this Act (other than this
section and sections 13D and 13E), not to have been submitted.
As soon as practicable after the Commission becomes aware that section
13C applies to a claim, the Commission must give the claimant a written
notice:
(a) stating that the claim is taken not to have been submitted;
and
(b) setting out the effect of section 13E.
Claimant without knowledge of individual’s
conviction/disqualification
(1) If:
(a) section 13C applies in relation to a claim; and
(b) at the time the claim was submitted:
(i) the individual concerned was disqualified; and
(ii) the claimant neither knew of, nor had reasonable grounds to suspect
the existence of, the conviction that led to the individual being disqualified;
and
(iii) the claimant neither knew, nor had reasonable grounds to suspect,
that the individual was disqualified;
the claimant may submit a fresh claim under subsection 13(1).
Individual’s disqualification occurs after submission of
claim
(2) If:
(a) section 13C applies in relation to a claim; and
(b) at the time the claim was submitted, the individual concerned was not
yet disqualified;
the claimant may submit a fresh claim under subsection 13(1).
Deadline for fresh claim
(3) A fresh claim referred to in subsection (1) or (2) must be submitted
before the latest of the following times:
(a) the end of 90 days after the claimant receives the notice required by
section 13D;
(b) in the case of a full-year claim or a balance-year claim—the end
of 5 months after the end of the claim period;
(c) in the case of a half-year claim—the end of 6 months after the
end of the claim period.
Normal section 13 deadline does not apply to fresh claim
(4) Subsection 13(2A) does not apply to a fresh claim submitted in
accordance with this section.
(1) For the purposes of this Subdivision, if an individual has been
convicted (whether before or after the commencement of this section)
of:
(a) an offence against:
(i) a law of the Commonwealth, a State or a Territory; or
(ii) any other law;
involving fraud or dishonesty that is punishable by imprisonment for life
or for a period, or maximum period, of at least 2 years; or
(b) an offence against section 39 of this Act;
the individual is disqualified at all times during the
disqualification period.
Note: Disqualification period is defined by
subsection (2).
(2) For the purposes of this section, the disqualification
period is the period starting when the individual was convicted and
ending:
(a) if the individual was not sentenced to imprisonment—5 years
after the conviction; or
(b) if the individual was sentenced to imprisonment—5 years after
the individual’s release from prison.
(3) If a claim names an individual under subsection 13(2AB), the
Commission may refuse to consider the claim unless the individual gives the
Commission such written consents as the Commission requires to enable the
individual’s criminal records to be checked for the purposes of applying
this Subdivision to the claim.
(4) Where the Commission makes a claim form available:
(a) the form must contain an explanation of the effect of subsection (3);
or
(b) the Commission must make available another document that contains an
explanation of the effect of subsection (3).
(5) This section does not affect the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions for relieving persons from
requirements to disclose spent convictions).
4 Application of amendments
The amendments made by this Schedule apply in relation to a claim submitted
on or after whichever is the later of the following:
(a) the day on which this Act receives the Royal Assent;
(b) 1 July 1996.
1 After section 11YA
Insert:
(1) Expenditure is non-claimable expenditure to the extent (if any) to
which, in the Commission’s opinion, the expenditure:
(a) is incurred in, or in connection with, the carrying out of an illegal
activity; or
(b) promotes, aids or encourages an illegal activity; or
(c) is intended to promote, aid or encourage an illegal
activity.
(2) In subsection (1):
illegal activity means an act or omission that is an offence
against:
(a) a law of the Commonwealth, a State or a Territory; or
(b) any other law.
2 Application of amendment
(1) The amendment made by this Schedule applies in relation to a
balance-year claim or a full-year claim in relation to the grant year beginning
on 1 July 1995.
(2) The amendment made by this Schedule applies in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.
1 Subsection 3(1)
Insert:
ordinarily employed has a meaning affected by section
7.
2 After section 6
Insert:
(1) If:
(a) apart from this section, an individual is not ordinarily employed by
another person; and
(b) the individual performs work that benefits the other person, whether
directly or indirectly; and
(c) having regard to the following matters, the Commission is satisfied
that the relationship between the individual and the other person may reasonably
be regarded as equivalent to the relationship of employment for the purposes of
this Act:
(i) whether the individual performs work at the premises of the other
person;
(ii) whether the individual uses business facilities provided by the other
person;
(iii) the extent to which the other person exercises control over the work
performed by the individual;
(iv) whether the individual is a former employee of the other person or of
an associate of the other person;
(v) whether the other person is the only person for whose benefit the
individual performs work;
(vi) whether the individual is employed by a company or trustee that is
closely associated with the individual or the individual’s
family;
(vii) whether it may reasonably be concluded that the relationship between
the individual and the other person was entered into or maintained for the sole
or dominant purpose of obtaining a grant under this Act;
(viii) any other relevant matters;
the Commission may determine that this Act has effect as if the individual
were ordinarily employed by the other person.
(2) A determination has effect accordingly.
3 Subsection 11C(1)
Add at the end:
Note: Ordinarily employed has a meaning
affected by section 7.
4 Subsection 11S(1)
Add at the end:
Note: Ordinarily employed has a meaning
affected by section 7.
5 Application of amendments
(1) The amendments made by this Schedule apply in relation to a
balance-year claim or a full-year claim in relation to the grant year beginning
on 1 July 1995.
(2) The amendments made by this Schedule apply in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.
1 After Division 2 of Part
II
Insert:
(1) This section applies to a claim for grant in respect of the whole or
the first 6 months of a particular grant year (the first-time grant
year) if no previous grant year was an active grant year for the
claimant.
(2) However, this section does not apply to:
(a) an approved body; or
(b) an approved joint venture or approved consortium; or
(c) an approved trading house.
(3) Grant is not payable to the claimant in respect of the claim
unless:
(a) the claimant is registered under section 13I for the first-time grant
year; and
(b) if the claim is a full-year claim—the claimant applied for
registration during the first-time grant year; and
(c) if the claim is a first-half claim or a balance-year claim—the
claimant applied for registration during the first 6 months of the first-time
grant year.
(1) A person may apply to the Commission to be registered for a specified
grant year.
(2) The application must be in the form and manner approved by the
Commission.
(3) The application is taken not to have been made until:
(a) it has been received by the Commission; or
(b) it has been received on behalf of the Commission by an officer or
employee of the Commission or by a person appointed by the Commission to receive
applications under this section.
(4) The Commission must register the applicant for the grant
year.
(5) As soon as practicable after registering the applicant, the Commission
must give the applicant a written notice of the registration.
2 After paragraph 19(1)(d)
Insert:
(da) treat any registration of the original owner under section 13I as a
registration of the new owner; and
3 Subsection 40A(1) (after paragraph (a) of the
definition of decision of the Commission)
Insert:
(aa) under section 13I (which deals with registration of first-time
claimants); or
4 Application of amendments
The amendments made by this Schedule apply in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.
1 Subsection 13(2AA)
Repeal the subsection.
2 Before Division 3 of Part
II
Insert:
(1) This section applies to a claim for grant in respect of the whole or
the first 6 months of a particular grant year if no previous grant year was an
active grant year for the claimant.
(2) However, this section does not apply to:
(a) an approved body; or
(b) an approved joint venture or approved consortium; or
(c) an approved trading house.
(3) Grant is not payable to the claimant in respect of the claim unless
the claimant passes the grants entry test at such time during the
period:
(a) beginning at the start of the grant year; and
(b) ending immediately before the Commission determines whether the
claimant is entitled to a grant;
as the Commission considers to be the appropriate time to apply the
test.
(4) In subsection (3):
grants entry test means the test formulated under section
13K.
(1) The Commission may make a written determination formulating a test, to
be known as the grants entry test.
(2) The test may confer a power on the Commission.
(3) The test may require:
(a) an existing document to be given to the Commission; or
(b) a document to be prepared and given to the Commission.
(4) Subsection (3) does not, by implication, limit subsection
(1).
(5) The Commission must give a free copy of the determination to any
person who asks for a copy.
(6) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This section applies to a person for a grant year if the person is
registered for the grant year under section 13I.
(2) The Commission may, by written notice given to the person, request the
person to give the Commission, within the period and in the manner specified in
the notice, information that is relevant to whether the person passes the grants
entry test formulated under section 13K.
(3) The period specified in the notice must be at least 28 days. The
notice must set out the effect of subsection (4).
(4) If the person refuses or fails to comply with the request, grant is
not payable to the person for the whole or the first 6 months of the grant
year.
(5) This section does not, by implication, limit subsection
13(4).
3 Application of amendments
(1) The amendments made by this Schedule apply in relation to a
balance-year claim or a full-year claim in relation to the grant year beginning
on 1 July 1995, so long as the claim is submitted to the Commission after
the commencement of this item.
(2) The amendments made by this Schedule apply in relation to a claim for
grant in relation to a period beginning on or after 1 July 1996.