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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Export Market
Development Grants Bill 1997
No. ,
1997
(Trade)
A Bill
for an Act relating to the grant of financial assistance to provide incentives
for the development of export
markets
9702120—975/25.2.1997—(21/97) CAt.
No. 96 7222 2 ISBN 0644 498080
Reader’s guide
This guide aims to give you a general idea of the purpose of this Act and
some information about its structure. It also explains briefly how the operation
and interpretation of this Act is affected by other Acts.
Purpose of this Act
This Act provides for the grant of financial assistance by Austrade to
small and medium Australian enterprises to provide incentives for them to
develop export markets. The underlying principle is that incentives are only
provided to export businesses that can return significant net benefit to
Australia because:
they are Australian businesses;
they are seeking to export products that are substantially Australian;
and
they are being encouraged to undertake additional promotional
activities.
This Act is a rewrite of the Export Market Development Grants Act
1974 which is repealed by the Export Market Development Grants (Repeal
and Consequential Provisions) Act 1997.
It gives effect to a number of policy changes designed to direct
financial assistance most effectively and remove administrative complexity,
while ensuring accountability.
An attempt has also been made in the drafting of the Act to use simple
language and to organise the material in such a way as to make it easier for
readers to understand the law.
Understanding this Act
This Act is divided into 9 Parts. To get a proper understanding of the
assistance scheme that this Act provides, you need to refer to Parts 2 to 7
in particular. The contents of those Parts are summarised below.
• Entitlement to grant (Part
2)
• Persons eligible for a grant (Part
3)
• Eligible products (Part
4)
• Eligible expenses (Part 5)
• Amount of grant (Part
6)
• Application for, and payment of,
grant (Part 7)
Part 1 contains formal provisions and the object of the Act. Part 8
deals with miscellaneous matters such as the approval procedure for bodies,
trading houses and joint ventures, review rights and repayment of grant.
Part 9 contains definitions and terms that are used throughout this Act. (A
list of terms defined in Part 9 appears after the Table of Contents.)
The diagrams at the end of this guide illustrate the contents of this Act
more fully. They are intended to be used as an illustration and do not have any
other effect. If there is any inconsistency between anything contained in the
diagrams and a provision of this Act, the provision prevails.
Related legislation
The following Acts are directly relevant to the operation or
interpretation of this Act.
Export Market Development Grants (Repeal and Consequential Provisions)
Act 1997
The Export Market Development Grants Act 1974 (the 1974 Act),
which contained the legislation regulating the previous scheme, is repealed by
that Act. Even though it is repealed, the Repeal and Consequential Provisions
Act provides that the 1974 Act is to continue to apply in certain circumstances.
It also saves some matters provided for under the 1974 Act to be applied for the
purposes of this Act.
Acts Interpretation Act 1901
That Act contains general rules about the meaning or effect of many terms
and provisions that are commonly used in Commonwealth Acts. For example, it
defines Australia, individual and document and provides that a power conferred
on a person to make an instrument includes the power to revoke or vary the
instrument.
Crimes Act 1914
The Crimes Act 1914, in particular sections 29A to 29D,
applies to sanction any conduct of a person who tries to obtain, or helps
another person to obtain, a grant, or an increased amount of grant, through
deceit, false representation or other unlawful means.
Administrative Appeals Tribunal Act 1975
That Act empowers the Administrative Affairs Tribunal to review, on its
merits, any decision of Austrade under this Act that has been referred to the
Tribunal under section 99 by a person whose interests have been affected by the
decision.
Administrative Decisions (Judicial Review) Act 1977
Under that Act, the Federal Court of Australia may review, on certain
questions of law only, any decision of Austrade under this Act that is referred
to it by a person aggrieved by the decision.
Diagram 1—Is an amount of grant payable to you?
(Overview of Act)
Diagram 2—Who is eligible for a grant? (Overview of
Part 3)
Diagram 3—What are eligible products? (Overview of
Part 4)
|
|
|
|---|---|
|
These products |
if they meet these conditions |
|
1. Goods |
(a) goods made in Australia—at least 50% Australian
content or Austrade satisfied that Australia will derive a significant net
benefit from their export |
|
2. External service supplied outside Australia to a
non-resident |
Austrade satisfied that Australia will derive a significant
net benefit from supply of the service |
|
3. Internal service supplied in Australia to a
non-resident |
Austrade satisfied that Australia will derive a significant
net benefit from supply of the service |
|
1. Tourism service supplied in
Australia: |
Austrade satisfied that Australia will derive a significant
net benefit from supply of the service |
|
5. Intellectual property rights relating to a trade
mark |
trade mark first used in Australia or of increased value or
significance because of use in Australia |
|
6. Other intellectual property rights |
rights result to a substantial extent from research or work
done in Australia |
|
7. Know-how |
know-how results to a substantial extent from research or
work done in Australia |
Diagram 4—What are eligible expenses of an
applicant? (Overview of Part 5)
Contents
List of terms defined in Part 9
|
approved activity, project or purpose |
|
approved body |
|
approved joint venture |
|
approved promotional purpose |
|
approved trading house |
|
associate |
|
association |
|
Austrade |
|
Australian law |
|
balance distribution date |
|
company |
|
conviction |
|
co-operative |
|
de facto spouse |
|
disposal |
|
disqualifying conviction |
|
eligible expenses |
|
eligible external services |
|
eligible goods |
|
eligible intellectual property |
|
eligible internal services |
|
eligible know-how |
|
eligible products |
|
eligible promotional activity |
|
eligible services |
|
eligible tourism service |
|
export |
|
export earnings |
|
export market development grants consultant |
|
external service |
|
goods made in Australia |
|
goods made outside Australia |
|
grant |
|
grantee |
|
grants entry test |
|
grant year |
|
income |
|
initial payment ceiling amount |
|
intellectual property |
|
internal service |
|
new market |
|
nominated contact member |
|
partnership |
|
payout factor |
|
person |
|
process |
|
provisional grant amount |
|
related company |
|
related company group |
|
relative |
|
repealed Act |
|
resident of Australia |
|
sale |
|
spouse |
|
supply |
|
Territory |
|
tourism service |
|
under insolvency administration |
A
Bill for an Act relating to the grant of financial assistance to provide
incentives for the development of export markets
The Parliament of Australia enacts:
This Act may be cited as the Export Market Development Grants Act
1997.
This Act commences on 1 July 1997.
The object of this Act is to bring benefits to Australia by encouraging
the creation, development and expansion of foreign markets for Australian goods,
services, intellectual property and know-how. It does so by providing for an
assistance scheme under which small and medium Australian exporters committed to
and capable of seeking out and developing export business are repaid part of
their expenses incurred in promoting those products.
Subject to this Act, a person that:
(a) is eligible under Part 3 for a grant in respect of a grant year;
and
(b) has incurred eligible expenses in that grant year in relation to
eligible products; and
(c) has applied for a grant in accordance with Part 7;
is entitled to a grant in respect of that grant year in the amount worked
out under Part 6.
Note: For eligible expenses, grant
year, eligible products and grant see
section 107.
(1) This Part defines who is eligible for a grant.
(2) The underlying principle is that only small or medium Australian
businesses that:
(a) are developing export markets for eligible products; and
(b) have a prospect of success in their export enterprise;
should be eligible for a grant.
Note: For grant and eligible
products see section 107.
(1) Each of the following:
(a) an individual who is a resident of Australia;
(b) a body incorporated under the Corporations Law;
(c) an association or co-operative incorporated under an Australian
law;
(d) a partnership regulated by an Australian law;
(e) a joint venture approved by Austrade under section 89;
(f) a trading house approved by Austrade under section 89;
(g) a body corporate established for a public purpose by or under an
Australian law;
is eligible for a grant in respect of a grant year if it satisfies the
conditions applicable to it under section 7.
(2) A body approved by Austrade under section 89 is eligible for a grant
in respect of a grant year.
Note: For Austrade, Australian
law, grant and grant year see section 107.
For resident of Australia see section 114.
Person other than approved joint venture or approved trading
house
(1) A person referred to in subsection 6(1) (other than an approved joint
venture or approved trading house) is eligible for a grant in respect of a grant
year if the following conditions are satisfied:
(a) the person was, in Austrade’s opinion, genuinely carrying on
business in Australia during the grant year;
(b) in the case of an individual, he or she was a resident of Australia
during the time in the grant year when he or she was, in Austrade’s
opinion, carrying on business in Australia;
(c) subject to section 8, the person is not a grantee in respect of 8 or
more previous grant years;
(d) the person’s income for the grant year is not more than
$50,000,000;
(e) the person’s export earnings for the grant year (together with,
in the case of a body corporate, the export earnings for the grant year of each
related company (if any) that applies for a grant in respect of the grant year),
are not more than $25,000,000;
(f) the person is not, when the person applies for the grant, disqualified
under section 13 from receiving a grant because the person, or an associate of
the person, is under insolvency administration;
(g) there are no disqualifying convictions outstanding against the person
under section 17 when the person applies for the grant;
(h) if Division 5 applies to the person—the person has been
registered under section 19 and has passed the grants entry test.
Note: For person, grant,
grant year, Austrade, resident of
Australia, grantee, income, export
earnings, related company, associate,
under insolvency administration and grants entry
test see section 107.
Approved joint venture
(2) An approved joint venture is eligible for a grant in respect of a
grant year if it satisfies the following conditions:
(a) it is not a grantee in respect of 5 or more previous grant
years;
(b) its export earnings for the grant year are not more than
$25,000,000;
(c) no associate of the joint venture is under insolvency administration
when the joint venture applies for the grant;
(d) there are no disqualifying convictions outstanding against the joint
venture under section 17 when the joint venture applies for the grant.
Note: For approved joint venture,
grant, grant year, Austrade,
grantee, export earnings, associate
and under insolvency administration see section
107.
Approved trading house
(3) An approved trading house is eligible for a grant in respect of a
grant year if:
(a) neither the trading house nor any associate of the trading house is
under insolvency administration when the trading house applies for the grant;
and
(b) there are no disqualifying convictions outstanding against the trading
house under section 17 when the trading house applies for the grant.
Note: For approved trading house,
grant and grant year see section
107.
(1) In determining for the purposes of paragraph 7(1)(c) or (2)(a) whether
a person is a grantee in respect of a grant year, any of the following grants
(within the meaning of the repealed Act) paid to the person is to be
disregarded:
(a) a grant of $3,500 or less in respect of a claim period before the
grant year that started on 20 May 1985;
(b) in the case of a person that was, for the purposes of the repealed
Act, a body specified in Schedule 7 to the Export Market Development Grants
Regulations made under that Act—any grant to that person in respect of a
claim period before the grant year that started on 20 May 1985;
(c) a grant:
(i) in respect of a claim period before the grant year that started on 1
July 1990; and
(ii) that was solely in respect of eligible expenditure (within the
meaning of the repealed Act) for eligible tourism services (within the meaning
of that Act).
Note: For grantee and repealed
Act see section 107.
(2) Paragraph 7(1)(c) does not apply to an applicant if the applicant is
applying for a grant only in respect of eligible expenses that were incurred for
eligible promotional activities carried out to further approved promotional
purposes in a new market for the person.
Note: For eligible expenses, eligible
promotional activity and approved promotional purpose see
section 107. For new market see section 113.
(3) In subsection (1):
claim period has the same meaning as in the repealed
Act.
This Division explains the meaning of export earnings.
(1) Subject to subsections (3) and (5) and section 12, the export
earnings of a person (other than an approved joint venture) for a grant
year are worked out by ascertaining from the following table, and adding up, the
relevant earnings of the person for the eligible products referred to in
column 2 of the table.
Note: For person, approved joint
venture, grant year and eligible product see
section 107.
|
Export earnings |
||
|---|---|---|
|
Column
1 |
Column 2 |
Column 3 |
|
1 |
eligible goods: |
so much of the amount or value of the consideration
received, or receivable, for the sale and export of the goods as is attributable
to the free on board value of the goods |
|
2 |
eligible goods: |
the amount or value of the consideration that would be,
under item 1, relevant earnings for those goods if the goods had been sold
in Australia |
|
3 |
an eligible external service supplied at any time by the
person |
the amount or value of the consideration received during the
year for the supply of that service less so much of the consideration as
is, in Austrade’s opinion, paid, or payable, outside Australia in relation
to that service |
|
4 |
an eligible internal service supplied at any time by the
person |
the amount or value of the consideration received during the
year for the supply of that service |
|
5 |
an eligible tourism service (indirect tourism
service) supplied by the person: |
20% of the amount or value of the consideration received
during the year for the supply of the service to the inbound tourist
operator |
|
6 |
if the person is an inbound tour operator—an indirect
tourism service supplied at any time by the person to a person that is not a
resident of Australia |
80% of the amount or value of the consideration received
during the grant year for the supply of that service |
|
7 |
an eligible tourism service (other than an indirect tourism
service) supplied at any time by the person to a person that is not a resident
of Australia |
the amount or value of the consideration received during the
year for the supply of that service |
|
8 |
eligible intellectual property or know-how disposed of at
any time by the person |
the amount or value of the consideration received during the
year for that disposal |
Note: For eligible goods,
export, supply, Australia,
Austrade, eligible external service, eligible
internal service, eligible tourism service,
disposal, eligible intellectual property and
eligible know-how see section 107. See also sections 109,
110 and 111.
(2) For the purposes of subsection (1):
(a) the date of export of goods exported under a bill of lading or an air
waybill is the earlier of:
(i) the date shown on the bill of lading or air waybill; and
(ii) the date on which the goods are received for shipment at the port or
airport of export; and
(b) the date of export of goods sold as stores for use on ships or
aircraft leaving Australia is the date of the sale; and
(c) the date of export of goods (for example, ships or aircraft) that are
taken out of Australia under their own power for the purpose of being exported
is the date on which the goods leave Australia; and
(d) the date of export of any other goods is the date on which they are
received for shipment at the port or airport of export.
(3) Any consideration for the sale, supply or disposal of an eligible
product in the following circumstances is to be disregarded in working out the
export earnings of the person:
(a) a sale, supply or disposal of an eligible product in the course of
trade with New Zealand;
(b) a sale, supply or disposal of an eligible product in the course of
trade with a foreign country that has been declared by the Minister, in writing,
to be subject to trade sanctions;
(c) if the person is a member of an approved joint venture—a sale,
supply or disposal of an eligible product that relates directly to the approved
activity, project or purpose of the joint venture.
Note: For eligible product, approved
joint venture and approved activity, project or
purpose see section 107. For foreign country see
section 22 of the Acts Interpretation Act 1901.
(4) A declaration under paragraph (3)(b) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(5) In working out the export earnings of a person that is also a trustee,
or a beneficiary, of a trust estate, disregard any earnings of the person in
that capacity.
Subject to section 12, the export earnings of an approved
joint venture for a grant year are the sum of the export earnings of all members
of the joint venture whose income for the grant year is not more than
$50,000,000, excluding any export earnings of a member that:
(a) are not in respect of the approved activity, project or purpose of the
joint venture; or
(b) were earned at a time during the grant year when the member was not a
resident of Australia.
Note: For approved joint venture, grant
year, income and approved activity,
project or purpose see section 107. For resident of
Australia see section 114.
If Austrade adjusts under section 96 the amount that, apart from this
section, would be (under section 10 or 11, as the case may be) the export
earnings of a person for a grant year, that amount as so adjusted is taken to be
the person’s export earnings for the grant
year.
For the purposes of paragraph 7(1)(f), a person specified in
column 2 of an item in the following table is disqualified from receiving a
grant if the circumstances specified in column 3 of that item
apply.
|
Persons disqualified from receiving a grant |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
1 |
individual |
the individual is under insolvency administration |
|
2 |
body corporate other than a body referred to in paragraph 6(1)(g) |
the body corporate or an associate of the body corporate is under
insolvency administration |
|
3 |
partnership or body corporate referred to in paragraph 6(1)(g) |
an associate of the partnership or of the body corporate is under
insolvency administration |
Note: For associate see section
107.
An individual is under insolvency administration only
if:
(a) the individual is in any of the following situations under the
Bankruptcy Act 1966:
(i) the individual is a bankrupt in respect of a bankruptcy from which he
or she has not been discharged;
(ii) property of the individual is subject to control under section 50 or
Division 2 of Part X of that Act;
(iii) the individual has, in the previous 3 years, executed a deed of
assignment or deed of arrangement under Part X of that Act;
(iv) creditors of the individual have, in the previous 3 years, accepted a
composition under Part X of that Act; or
(b) the individual is in a situation of a kind referred to in paragraph
(a) under the law of an external Territory or a foreign country.
Note: For external Territory and foreign
country see sections 17 and 22 respectively of the
Acts Interpretation Act 1901.
(1) Subject to subsection (2), a body corporate is under insolvency
administration only if:
(a) it is in any of the following situations under the Corporations
Law:
(i) the body corporate is being wound up;
(ii) there is a receiver, receiver and manager, or other controller, of
property of the body corporate who has functions or powers in connection with
managing the body corporate;
(iii) the body corporate is under administration or official
management;
(iv) the body corporate has executed a deed of company arrangement that
has not yet terminated;
(v) the body corporate has entered into a compromise or arrangement with
another person and the administration of the compromise or arrangement has not
been concluded; or
(b) the body corporate is in a situation of a kind referred to in
paragraph (a) under the law of an external Territory or a foreign
country.
Note: For external Territory and foreign
country see sections 17 and 22 respectively of the
Acts Interpretation Act 1901.
(2) Despite subsection (1), a body corporate that, apart from this
subsection, would be under insolvency administration is taken not to be under
insolvency administration if there is in force a certificate given by the person
administering the body corporate stating that the body corporate is able to pay
all its debts as and when they become due and payable.
Note: For person administering the body
corporate see subsection (3).
(3) In subsection (2):
person administering a body corporate means whichever of the
following has been appointed in relation to the body corporate:
(a) the liquidator or provisional liquidator of the body
corporate;
(b) the receiver, receiver and manager, or other controller, of property
of the body corporate;
(c) the administrator, or the official manager, of the body
corporate;
(d) the administrator of the deed of company arrangement executed by the
body corporate;
(e) the administrator of any compromise or arrangement into which the body
corporate has entered;
(f) a person exercising, under the law of an external Territory or a
foreign country, the same functions and the same powers as a person referred to
in one of paragraphs (a) to (e).
(1) For the purposes of this Act, a disqualifying conviction
is:
(a) in relation to an individual—a conviction of the individual for
a relevant offence; or
(b) in relation to a body corporate—a conviction of the body
corporate or of an associate of the body corporate for a relevant offence;
or
(c) in relation to a partnership or an approved joint venture—a
conviction of an associate of the partnership or of the joint venture for a
relevant offence.
Note: For associate see section
107.
(2) In this section:
relevant offence means:
(a) an offence that under subsection 229(3) of the Corporations Law
disqualifies a person from managing a corporation; or
(b) an offence against section 29A, 29B, 29C or 29D of the Crimes
Act 1914 that relates to an application for a grant; or
(c) an offence against section 39 of the repealed Act; or
(d) an offence under:
(i) section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914; or
(ii) a provision of a law of a State or Territory that corresponds to any
of those provisions;
that relates to an offence referred to in paragraph (a), (b) or
(c).
Note: For repealed Act see section
107.
A disqualifying conviction in respect of a person remains
outstanding against the person for the period starting on the day
on which the conviction was recorded and ending:
(a) if the conviction was for a term of imprisonment—5 years after
the individual convicted was released from prison; or
(b) in any other case—5 years after the day on which the conviction
was recorded.
This Division applies to a person (other than an approved body, approved
joint venture or approved trading house) that intends to apply for a grant in
respect of a grant year unless:
(a) the person is a grantee in respect of any previous grant year;
or
(b) the person’s application for a grant in respect of the
immediately preceding grant year is pending.
Note: For person and grantee see
section 107.
(1) The person must, before the end of the grant year, apply to Austrade
to be registered for the purposes of this Act.
(2) The application must be in a form, and must be made in a manner,
approved by Austrade.
(3) The application is taken not to have been made until it has been
received by:
(a) Austrade; or
(b) a person appointed by Austrade to receive applications under this
section.
(4) Austrade must:
(a) register the person; and
(b) as soon as practicable, notify the person, in writing, of the
registration.
(1) A person that:
(a) has been registered under section 19; and
(b) has not passed the grants entry test under the repealed Act;
must take a test under this section. The test is to be taken at such time
as Austrade considers to be appropriate to apply the test.
Note: For repealed Act see section
107.
(2) The purpose of the test is to find out whether the export enterprise
in relation to which the person is seeking a grant has a prospect of
success.
(3) Austrade is to decide whether the person has passed the
test.
(4) If a person has not passed the test, Austrade must tell the person in
writing which requirement of the test the person has not satisfied.
(1) Austrade may determine in writing the requirements that a person must
satisfy to pass the grants entry test.
(2) The determination may require the person to supply particular
information from:
(a) existing documents to be given to Austrade; or
(b) documents to be prepared and given to Austrade.
(3) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) Austrade may, by written notice given to a person that has taken the
grants entry test, request the person to give to Austrade, within the period and
in the manner specified in the notice, information about any matter specified in
the notice that Austrade requires to decide whether the person has passed the
test.
(2) The period specified in the notice must not be less than
28 days.
(3) Austrade may refrain from deciding whether the person has passed the
test, if the person does not give to Austrade the information
requested.
(4) This section does not, by implication, limit subsection
72(1).
(1) This Part sets out the conditions to be satisfied in deciding if a
particular product (whether goods, services, intellectual property or know-how)
is an eligible product.
(2) The underlying principle is that a product should be eligible only if
it is substantially of Australian origin.
(1) Subject to subsection (3), goods made in Australia are eligible
goods if they meet the 50% Australian content rule, that is, at least
50% of the free on board value of the goods is attributable to:
(a) components that were manufactured or produced in Australia;
and
(b) the cost of labour performed on the goods in Australia; and
(c) the overheads incurred in Australia in connection with the making of
the goods; and
(d) any mark-up included in the free on board value of the
goods.
(2) Subject to subsection (3), goods made outside Australia are
eligible goods if they meet the 75% Australian content rule, that
is, at least 75% of the value of the components used in the making of the goods
is attributable to goods that meet the 50% Australian content rule.
(3) Despite subsections (1) and (2):
(a) particular goods made in Australia that meet the 50% Australian
content rule; and
(b) particular goods made outside Australia that meet the 75% Australian
content rule;
are not eligible goods if Austrade has determined, in writing, having
regard to all the facts available to it, that the Australian input in those
goods is not sufficient to ensure that Australia will derive a significant net
benefit from their export.
(4) In addition:
(a) particular goods made in Australia that do not meet the 50% Australian
content rule; and
(b) particular goods made outside Australia that do not meet the 75%
Australian content rule;
are eligible goods if Austrade has determined, in writing, having regard to
all the facts available to it, that the Australian input in those goods is
sufficient to ensure that Australia will derive a significant net benefit from
their export.
Note: For goods made in Australia and
goods made outside Australia see section 107.
(1) Subject to subsection (4), an internal service is an eligible
internal service if the service is supplied in Australia to a person
that is not a resident of Australia.
Note: For internal service see section 107.
For resident of Australia see section 114.
(2) Subject to subsection (4), a tourism service is an eligible
tourism service if:
(a) the service is supplied in Australia to a person that is not a
resident of Australia; or
(b) the service is supplied in Australia:
(i) to a person that is a resident of Australia; but
(ii) for supply by that person, in the course of trade, to a person that
is not a resident of Australia.
Note: For tourism service see section 107. For
resident of Australia see section 114.
(3) Subject to subsection (4), an external service is an eligible
external service if the service is supplied outside Australia to a
person that is not a resident of Australia.
Note: For external service see section 107.
For resident of Australia see section 114.
(4) Despite subsection (1), (2) or (3) (as the case requires):
(a) a particular internal service; or
(b) a particular tourism service; or
(c) a particular external service;
that, apart from this subsection, would be an eligible internal service, an
eligible tourism service or an eligible external service (as the case may be),
is not such a service if Austrade determines, in writing, having regard to all
the facts available to it, that the Australian input in the service is not
sufficient to ensure that Australia will derive a significant net benefit from
the supply of the service.
Intellectual property is eligible intellectual property if
Austrade is satisfied:
(a) in the case of rights relating to a trade mark—that the trade
mark:
(i) was first used in Australia; or
(ii) has increased in significance or value because of its use in
Australia; or
(b) in the case of rights relating to any other thing—that the thing
resulted to a substantial extent from research or work done in
Australia.
Note: For intellectual property see section
107.
(1) Know-how is eligible know-how if Austrade is satisfied
that it resulted to a substantial extent from research or work done in
Australia.
(2) In subsection (1):
know-how means private knowledge, information or expertise
relating to commercial or industrial operations that:
(a) is of commercial value; and
(b) is imparted for the purpose of enabling the recipient to carry out a
particular activity.
(1) This Part defines what are the eligible expenses of an applicant for a
grant.
(2) The underlying principle is that only expenses relating to specific
promotional activities genuinely incurred by applicants for the purpose of
marketing eligible products in foreign countries should qualify.
Subject to section 30, expenses incurred by an applicant for a grant in
respect of a grant year are eligible expenses if the following
conditions are satisfied:
(a) the expenses are, under section 33, claimable expenses in respect of
an eligible promotional activity;
(b) if the applicant is an approved trading house or an approved joint
venture—the expenses are related to the approved activity, project or
purpose of the trading house or of the joint venture (as the case may
be);
(c) the expenses were incurred (within the meaning of Division 3) by
the applicant:
(i) if the applicant is not a grantee in respect of any previous grant
year—during the grant year or the immediately preceding year; or
(ii) in any other case—during the grant year;
(d) the expenses, together with other expenses of the applicant that
satisfy paragraphs (a) to (c), add up to $20,000 or more.
Note: For grant, grant year and
grantee see section 107.
If Austrade adjusts under section 96 the amount that, apart from this
section, would be (under section 29) the eligible expenses of an applicant for
the grant year, that amount as so adjusted is taken to be the applicant’s
eligible expenses for the grant year.
This Division explains:
(a) what is an eligible promotional activity; and
(b) what are claimable expenses in respect of such an activity.
In this Division, a reference to an agent of an applicant
does not include a representative of the applicant referred to in item 1 of
the table in section 33.
(1) The activity specified in column 2 of an item in the following
table is an eligible promotional activity in
relation to an applicant.
(2) The expenses specified in column 3 of an item in the following
table, to the extent to which they are not excluded expenses under
Subdivision 4, are claimable expenses of the applicant in respect of the
activity specified in column 2 of that item.
|
Claimable expenses in respect of eligible promotional
activities |
||
|---|---|---|
|
Column 1 Item |
Column 2 Activity |
Column 3 Expenses |
|
1 |
maintaining an overseas representative on a long term basis
in a foreign country to the extent to which the representative is maintained for
an approved promotional purpose |
so much of the expenses incurred by the applicant in a grant
year in: that, together with similar expenses (if any) incurred in
respect of other representatives during the grant year, does not exceed
$200,000 |
|
2 |
any visit (marketing visit) made by the applicant or its
agent to any place in or outside Australia to the extent to which the visit is
made for an approved promotional purpose |
all expenses: |
|
3 |
any communication by the applicant or its agent with a
potential buyer or a distributor, representative or consultant to the extent to
which the communication is made for an approved promotional
purpose |
all reasonable expenses incurred by the applicant in
payments to persons that, in Austrade’s opinion, were not closely related
to the applicant |
|
4 |
the provision, primarily for an approved promotional
purpose, of free samples to a person that is not a resident of Australia, as
follows: |
all reasonable expenses incurred by the applicant that are
attributable to the actual cost of providing the samples |
|
5 |
participation by the applicant or its agent in a trade fair,
or the provision by the applicant or its agent of promotional literature or
other advertising material, to the extent to which this is done for an approved
promotional purpose |
all reasonable expenses incurred by the applicant in
payments to persons that, in Austrade’s opinion, were not closely related
to the applicant |
|
6 |
engaging as a consultant on a short term basis (either in or
outside Australia) a person that, in Austrade’s opinion, is not closely
related to the applicant, to the extent to which the person undertakes market
research, or marketing activities, related to an approved promotional
purpose |
all reasonable expenses incurred by the
applicant |
Note 1: For approved promotional purpose see
Subdivision 3. For reasonable expenses see section
35.
Note 2: Austrade’s decisions whether a person is not
closely related to an applicant are subject to guidelines determined by the
Minister under section 101.
(1) This section sets out the allowable expenses of an applicant in
respect of a marketing visit (see item 2 of the table in section
33).
(2) If the applicant is not a grantee in respect of more than one previous
grant year, then, subject to subsection (6), the following expenses in
respect of any air travel reasonably undertaken by the applicant or its agent
are allowable:
(a) if the applicant has paid first class air fares in respect of the
travel—65% of those fares; or
(b) in any other case—the total amount of the air fares.
(3) Subject to subsection (6), all transport expenses (other than air
fares) in respect of any travel reasonably undertaken by the applicant or its
agent are allowable.
(4) If the visit is made to a place outside Australia:
(a) the applicant is taken, for the purposes of this subsection, to have
incurred general expenses of $200 in respect of each day (working
day) during the visit that was primarily devoted to furthering the
approved promotional purpose for which the visit was made; and
(b) subject to subsections (5) and (6), those expenses are allowable in
respect of each working day in the visit.
(5) Expenses are not allowable under subsection (4) in respect of
more than 21 working days.
(6) If an agent (first agent) of the applicant who is a
relative of:
(a) the applicant; or
(b) another agent of the applicant;
meets the applicant or the other agent (as the case requires) outside
Australia while both:
(c) the first agent; and
(d) the applicant or other agent;
are making marketing visits outside Australia, the expenses of only one of
them (being the one nominated by the applicant) are allowable expenses of the
applicant. However, this subsection does not apply if the first agent, or (in a
case where 2 agents meet outside Australia) each of the agents, has been working
on a full-time basis for the applicant for the immediately preceding
5 years.
Note: For relative see section
107.
(1) Austrade is to determine for the purposes of section 33 whether
any expenses incurred by the applicant are reasonable.
(2) If it appears to Austrade that any expenses incurred by the applicant
in respect of an eligible promotional activity may not be reasonable, Austrade
must:
(a) notify the applicant, in writing, that it is of that opinion and of
its reasons for being of that opinion; and
(b) ask the applicant to establish, within the period specified by
Austrade, that the amount of the expenses was reasonably payable for the
activity for which the expenses were incurred.
(3) If Austrade determines that any expenses of the applicant are not
reasonable:
(a) Austrade must determine the amount that it considers to be reasonable
for those expenses; and
(b) expenses in that amount are taken to be the reasonable expenses of the
applicant for the purposes of this Division.
(4) In making a determination under subsection (1), Austrade must
take into consideration any information given by the applicant in answer to
Austrade’s request under paragraph (2)(b).
This Subdivision explains what are approved promotional
purposes.
For the purposes of section 33, an eligible promotional activity in
relation to an applicant is for an approved promotional purpose if
it is carried out for the purpose of creating, seeking or increasing demand or
opportunity in a foreign country for any of the following:
(a) eligible goods owned by the applicant and that the applicant intends
to sell for export or to export and sell;
(b) if the applicant is making goods in Australia—eligible
goods:
(i) made in Australia by the applicant; and
(ii) that any person intends to sell for export or to export and
sell;
(c) eligible goods made outside Australia:
(i) the Australian content of which is made up wholly or principally from
components supplied by the applicant; and
(ii) that any person intends to sell outside Australia;
(d) if the applicant is not an approved body or an approved trading
house—eligible services supplied by the applicant;
(e) if the applicant is not an approved body—eligible intellectual
property or eligible know-how:
(i) owned by the applicant; and
(ii) that the applicant intends to dispose of;
(f) if the applicant is an approved body or approved trading
house—eligible intellectual property or eligible know-how:
(i) owned by another person; and
(ii) that the other person intends to dispose of;
(g) if the applicant is an approved body:
(i) eligible goods made in Australia and that any other person intends to
sell for export or to export and sell; or
(ii) eligible services supplied by another person.
Note: For foreign country see section 22
of the Acts Interpretation Act 1901. For export,
goods made in Australia and goods made outside
Australia see section 107. For sell see section 109 and
for dispose see section 111.
(1) If the applicant is not an approved body, then, for the purposes of
section 33, an eligible promotional activity in relation to the applicant is
also for an approved promotional purpose if it is carried out for
the purpose of increasing the applicant’s return on the disposal by the
applicant of eligible intellectual property or eligible know-how.
(2) If the applicant is an approved body or approved trading house, then,
for the purposes of section 33, an eligible promotional activity in relation to
the applicant is also for an approved promotional purpose if it is
carried out for the purpose of increasing another person’s return on the
disposal by the other person of eligible intellectual property or eligible
know-how, to a third party.
(3) The return referred to in subsection (1) or (2):
(a) may be a return receivable at or after the time of disposal of the
intellectual property or know-how; and
(b) must be a return by way of royalty or licence fee.
This Subdivision sets out the expenses that are excluded expenses for the
purposes of subsection 33(2).
The following table lists the types of expenses that are excluded
expenses and the sections dealing with them.
|
List of excluded expenses |
||
|---|---|---|
|
Column 1 Item |
Column 2 Expense |
Column 3 Section |
|
1 |
Capital expenses |
41 |
|
2 |
Expenses incurred when applicant not resident of Australia |
42 |
|
3 |
Expenses related to trade with New Zealand |
43 |
|
4 |
Expenses incurred in breach of trade sanction |
44 |
|
5 |
Expenses (other financial assistance schemes) |
45 |
|
6 |
Expenses for which applicant is paid |
46 |
|
7 |
Expenses disclosed after submitting application |
47 |
|
8 |
Taxes etc. |
48 |
|
9 |
Expenses incurred as commission, discounts etc. |
49 |
|
10 |
Expenses (new markets) |
50 |
|
11 |
Expenses that involve payments to approved trading houses |
51 |
|
12 |
Expenses of approved trading house |
52 |
|
13 |
Expenses of approved joint venture |
53 |
|
14 |
Expenses of applicant that is also trustee of trust estate |
54 |
|
15 |
Expenses incurred by applicant to increase return on disposal of eligible
intellectual property etc. to a related company |
55 |
|
16 |
Expenses relating to illegal activities |
56 |
|
17 |
Expenses associated with “X”-rated films |
57 |
Expenses of an applicant that are of a capital nature are
excluded.
Expenses that were incurred by an applicant (other than an approved joint
venture) at a time when the applicant was not a resident of Australia are
excluded.
Note: For resident of Australia see section
114.
Expenses of an applicant are excluded if they were incurred in respect of
an eligible promotional activity related to trade with New Zealand.
Expenses of an applicant are excluded if they were incurred in respect of
an eligible promotional activity related to trade with a country that has been
declared, for the purposes of paragraph 10(3)(b), to be subject to trade
sanctions.
Expenses of an applicant are excluded if they were incurred for an
eligible promotional activity related to an approved promotional purpose that
was, when the expenses were incurred, approved for the purposes of a scheme
(other than the scheme provided for under this Act):
(a) administered by Austrade; and
(b) making provision for financial assistance.
(1) Expenses of an applicant in respect of an eligible promotional
activity related to a particular approved promotional purpose are excluded to
the extent (if any) to which the applicant has been paid, or is entitled to be
paid, any consideration for any thing done by the applicant to further that
purpose.
(2) For the purposes of subsection (1), any action by the applicant
to write off, waive or otherwise release a person from, an obligation to pay any
consideration is to be disregarded.
(1) This section applies if:
(a) on one or more occasions after applying for a grant in respect of a
grant year, but before Austrade determines whether the applicant is entitled to
the grant, an applicant discloses to Austrade eligible expenses
(undisclosed expenses) that were not disclosed in the application;
and
(b) the total amount of the undisclosed expenses is more than 10% of the
amount of the eligible expenses disclosed in the application (disclosed
expenses).
(2) The undisclosed expenses of the applicant are excluded to the extent
to which they exceed 10% of the disclosed expenses.
(1) Subject to subsection (2), expenses of an applicant are excluded if
they were incurred in payment of a tax, levy or other contribution under an
Australian law.
Note: For Australian law see section
107.
(2) Subsection (1) does not apply to charge imposed by the Passenger
Movement Charge Act 1978.
(1) Expenses of an applicant are excluded if they were incurred
as:
(a) commission or other remuneration paid, otherwise than by way of
salary, retainer or fee, in respect of commercial transactions relating to
eligible products; or
(b) remuneration by way of salary, retainer or fee, to the extent that the
remuneration is determined, directly or indirectly, by reference to the extent
or value of any commercial transactions relating to eligible products that the
person to whom the remuneration is paid has entered into; or
(c) discounts and credits, or amounts equivalent to discounts or credits,
allowed or paid in relation to commercial transactions relating to eligible
products.
Note: For commercial transaction see
subsection (2).
(2) In subsection (1):
commercial transaction, in relation to an eligible product,
means:
(a) the sale, supply or disposal of the product; and
(b) in the case of eligible intellectual property or eligible
know-how—the obtaining of an increased return on the disposal of the
intellectual property or know-how.
(1) This section applies to an applicant (other than an approved body,
approved joint venture or approved trading house) that is a grantee in respect
of 8 or more previous grant years.
(2) Expenses of the applicant are excluded to the extent (if any) to which
they relate to a market that is not a new market for the applicant.
Note: For new market see section
113.
Expenses of an applicant in respect of an eligible promotional activity
are excluded if:
(a) they consist of payments to an approved trading house to cover its
expenses relating to the activity; and
(b) the approved trading house is an eligible applicant for a grant in
respect of its eligible expenses relating to the activity.
Note: For approved trading house see section
107.
(1) Expenses of an approved trading house are excluded if they were
incurred in respect of an eligible promotional activity relating to the
promotion of an eligible product owned by a person that is, in Austrade’s
opinion, closely related to the approved trading house.
Note: Austrade’s decisions whether a person is closely
related to an approved trading house are subject to guidelines determined by the
Minister under section 101.
(2) Expenses of an approved trading house are excluded to the extent (if
any) to which they were incurred in breach of any condition to which its
approval as a trading house is subject.
(1) Expenses of an approved joint venture in respect of a grant year are
excluded to the extent (if any) to which they were incurred by:
(a) a member of the joint venture at a time when the member was not a
resident of Australia; or
(b) a member of the joint venture whose income for the grant year exceeds
$50,000,000.
(2) Expenses of an approved joint venture are excluded to the extent (if
any) to which they were incurred in breach of any condition to which its
approval as a joint venture is subject.
Note: For approved joint venture and
income see section 107. For resident of Australia
see section 114.
Expenses of an applicant are excluded to the extent (if any) to which
they were incurred in the capacity of trustee of a trust estate.
Expenses of an applicant are excluded if they were incurred in respect of
an eligible promotional activity aimed at increasing the applicant’s
return on the disposal of eligible intellectual property or eligible know-how to
a related company.
Expenses of an applicant in respect of an eligible promotional activity
related to a particular approved promotional purpose are excluded if any thing
done in furthering the purpose:
(a) was, at the time when it was done, an offence against a law of the
place where it was done; or
(b) would have been, at that time, an offence against an Australian law if
it had been done in Australia.
Note: For Australian law see section
107.
(1) Expenses of an applicant are excluded if they were incurred in respect
of an eligible promotional activity carried out for an approved promotional
purpose relating to a film that has an “X” classification.
(2) Expenses of an applicant are excluded if:
(a) they were incurred in respect of an eligible promotional activity
carried out for an approved promotional purpose relating to a film;
and
(b) the film has not been given a classification; and
(c) Austrade has reason to believe the film will be refused classification
or given an “X” classification.
(3) A reference in this section to classification of a film
is a reference to censorship classification under an Australian law.
Note: For Australian law see section
107.
(1) Subject to section 59, an expense is taken to have been incurred by an
applicant only at the time when the amount of the expense is
acquitted.
(2) For the purposes of subsection (1), the amount of an expense
incurred by an applicant is taken to have been acquitted at the
time when that amount:
(a) is paid off; or
(b) is set off, with the written consent of the person
(creditor) to whom it is payable, against money owed by the
creditor or another person to the applicant.
(3) For the purposes of subsection (2), if an amount is paid by
cheque or payment order, the amount is taken to be paid when the bank or
financial institution on which the cheque or payment order is drawn debits the
drawer’s account.
(4) For the purposes of subsection (2), the transfer or issue to a
person of shares in a company does not constitute an acquittal.
If:
(a) apart from this section, the amount of an expense for goods or
services would be taken to have been incurred during a grant year; and
(b) those goods or services, or some of them, were not provided before the
end of the grant year;
the amount, or the part of the amount relating to the goods or services
that were not so provided, is to be taken, if Austrade so determines, to be
incurred only when the goods or services are provided.
This Part sets out how to work out the amount payable to an applicant
that is entitled to a grant in respect of a grant year.
(1) Division 2 deals with the first part of the calculation process. It
explains how to work out the maximum amount (the provisional grant amount) that
each applicant entitled to a grant in respect of a grant year could
receive.
(2) As, however, the amount available to meet all payments of grant
falling due in a financial year is fixed, it follows that in some years there
may not be sufficient funds to meet all provisional grant entitlements in
full.
(3) Division 3 sets out the capping mechanism to be used in such
circumstances to ensure that all applicants entitled to a grant receive a share
of the amount available for distribution. Under the system to be applied,
applicants whose provisional grant amount does not exceed a predetermined amount
set by the Minister under section 68 (the initial payment ceiling amount) will
not be affected and will receive their full entitlement. Only those who would
have been entitled to higher amounts will have their prospective entitlements
reduced.
(4) Division 4 gives power to Austrade to determine some of the factors
(such as the initial payment ceiling amount) that are used in the calculation
process.
An applicant’s provisional grant amount for a grant year is to be
worked out under section 63 unless:
(a) Division 3 of Part 8 (Applicant party to transaction resulting in
applicant obtaining grant etc.) applies; or
(b) the applicant is a member of a related company group.
Sections 64 and 65 deal with these 2 cases.
(1) Subject to subsections (2), (3) and (4), an applicant’s
provisional grant amount for a grant year is 50% of the
applicant’s eligible expenses for the grant year less $7,500.
(2) If the applicant’s eligible expenses for the grant year do not
include expenses in respect of any communication with a potential buyer or a
distributor, representative or consultant (see item 3 of the table in
section 33), then, subject to subsection (4), the applicant’s
provisional grant amount for the grant year is the sum
of:
(a) the amount worked out under subsection (1) in relation to the
applicant; and
(b) 3% of that amount.
(3) If an applicant, other than an approved body or approved trading
house, is a grantee in respect of 3 or more grant years (including the grant
year in respect of which the calculation is being made), then, subject to
subsection (4), the applicant’s provisional grant
amount for the grant year is the lesser of the following
amounts:
(a) the amount that would be the applicant’s provisional grant
amount under subsection (1) or (2) (as the case may be) if this subsection
did not apply to the applicant;
(b) the amount obtained by multiplying the applicant’s export
earnings for the grant year by the relevant percentage applicable to the
applicant in accordance with the following table.
|
|
||
|---|---|---|
|
Relevant percentage |
||
|
Column 1
|
Column 2 Number of grant years in respect of which applicant is a
grantee |
Column 3
|
|
1 |
3 |
40% |
|
2 |
4 |
20% |
|
3 |
5 |
10% |
|
4 |
6 |
7.5% |
|
5 |
7 or more |
5% |
Note: For grantee and export
earnings see section 107.
(4) An applicant’s provisional grant amount for a grant year may not
exceed:
(a) if the applicant is an approved trading house—$500,000;
or
(b) in any other case—$200,000.
Note: For approved trading house see section
107.
If Austrade adjusts under Division 3 of Part 8 the amount that, apart
from this section, would be the applicant’s provisional grant amount, that
amount as so adjusted is taken to be the applicant’s provisional
grant amount for the grant year.
(1) This section applies to an applicant other than an approved trading
house if:
(a) the applicant is a body corporate; and
(b) at the end of the grant year the applicant was a member of a related
company group (other than an approved joint venture); and
(c) other members of the group have also applied for a grant in respect of
the grant year; and
(d) the group’s grant amount exceeds $250,000.
Note: For related company group and
approved joint venture see section 107. For group’s
grant amount see subsection (3).
(2) The applicant’s provisional grant amount for the
grant year is worked out by using the formula:
(3) In this section:
group’s grant amount means the amount obtained
by:
(a) working out the amount that would be (under section 63 or 64) the
provisional grant amount of each of the members of the related company group
that have applied for a grant in respect of the grant year if this section did
not apply to the member; and
(b) adding up all those amounts.
standard amount means the amount that would be (under section
63 or 64) the applicant’s provisional grant amount for the grant year if
this section did not apply to the applicant.
This Division sets out how to work out the actual amount that an
applicant entitled to a grant in respect of a grant year will receive.
(1) If an applicant is entitled to a grant in respect of a grant year, the
amount of the grant is worked out in accordance with the following
subsections.
(2) If the applicant’s provisional grant amount for the grant year
does not exceed the initial payment ceiling amount for the grant year, the
amount of the grant is equal to the applicant’s provisional grant
amount.
(3) If the applicant’s provisional grant amount for the grant year
exceeds the initial payment ceiling amount for the grant year:
(a) multiply the amount of the excess by the payout factor for the grant
year; and
(b) add the amount obtained under paragraph (a) to the initial
payment ceiling amount.
The result is the amount of grant payable to the applicant for the grant
year.
Note 1: For initial payment ceiling
amount, provisional grant amount and payout
factor see section 107.
Note 2: The payout factor for the grant year will only be
known after the balance distribution date for the year following the grant year
(See subsections 69(1) and (2)).
(1) The Minister may, from time to time, determine in writing:
(a) the amount that is the initial payment ceiling amount for:
(i) the grant year (initial year) immediately preceding the
year that is current when the determination comes into force; and
(ii) each grant year following the initial year; and
(b) the date:
(i) in the grant year that is current when the determination comes into
force; and
(ii) in each subsequent grant year;
that is the balance distribution date for that year.
(2) The balance distribution date for the grant year that is current when
the determination comes into force must be later than the date on which the
determination comes into force.
(3) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) For the purposes of subsection 67(3), Austrade must, in respect of
each grant year:
(a) work out in accordance with the regulations; and
(b) determine in writing;
the payout factor that, in calculating the amount payable to each
applicant:
(c) entitled to receive a grant in respect of that year; and
(d) whose provisional grant amount in respect of that year exceeds the
initial payment ceiling amount for that year;
is to be used to adjust the amount of the excess.
Note: For provisional grant amount and
initial payment ceiling amount see section 107.
(2) The determination must be made as soon as practicable after the
balance distribution date for the following year.
(3) The purpose, in applying the payout factor, is to ensure that the
amount of each grant payable in respect of the grant year is capped at the
appropriate level so that all payments of grant that become due in the year
following the grant year are able to be met from the money available for that
purpose.
(4) The regulations may prescribe the method for working out the factor
that will be the payout factor for a grant year.
(1) A person that is eligible for a grant in respect of a grant year may
make an application to Austrade for the grant.
(2) The application must:
(a) be in a form, and be made in a manner, approved by Austrade;
and
(b) be made within 5 months after the end of the grant
year.
(3) If the person is an approved joint venture, the application must be
made on behalf of the joint venture by the nominated contact member.
Note: For grant, grant year,
approved joint venture and nominated contact member
see section 107.
An application is not taken to have been made until it has been received
by:
(a) Austrade; or
(b) a person appointed by Austrade to receive applications under this
section.
(1) Austrade may:
(a) by written notice given to an applicant, ask the applicant;
or
(b) if the applicant is a body corporate that was a member of a related
company group as at the end of the grant year to which the application
relates—by written notice given to each body corporate that was a member
of the group, ask each of these bodies;
to give to Austrade specified information, or to make available to Austrade
specified books, records or documents, that Austrade may require to perform its
functions under this Act.
(2) Austrade may, by written notice to the applicant, ask the applicant to
give to Austrade any written consent (whether of the applicant or of any
associate of the applicant) specified in the notice that Austrade requires to
enable criminal records to be checked for the purposes of applying
Division 4 of Part 3 and section 86 to the applicant.
Note: Part VIIC of the Crimes Act 1914 exempts a
person from having to disclose spent convictions.
(3) If Austrade makes a form available for the purpose of making an
application for a grant, the form must contain an explanation of the effect of
subsections (1) and (2) and paragraph 73(b). If Austrade does not make such a
form available, Austrade must give to each applicant a document that contains an
explanation of the effect of those provisions.
Austrade may refuse to consider an application if:
(a) the application is not in accordance with subsection 70(2);
or
(b) the applicant, or (if the applicant is a body corporate that was a
member of a related company group) a related company, has not complied with a
request of Austrade under section 72; or
(c) an individual who has helped, in a prescribed capacity, to prepare the
application has not complied with a request of Austrade under section
79.
Note: For prescribed capacity see subsection
74(2).
(1) This Division applies to an application for a grant made to Austrade
if:
(a) it has been prepared for the applicant by an export market development
grants consultant; and
(b) an individual helped, in a prescribed capacity, to prepare the
application.
Note: For export market development grants
consultant see section 107. For prescribed capacity see
subsection (2).
(2) For the purposes of this Part, an individual helps to prepare an
application in a prescribed capacity if:
(a) either:
(i) any work done by the individual in preparing the application involves
forming an opinion (whether formal or informal) about the operation of the law
on a matter dealt with by the application; or
(ii) the individual manages or supervises (directly or indirectly) work
mentioned in subparagraph (i); and
(b) the work, management or supervision (as the case may be) is performed
by or on behalf of an export market development grants consultant.
If the individual who helped to prepare the application:
(a) is, at the time when the application is made, disqualified from
preparing applications; or
(b) becomes disqualified from preparing applications at any time during
the period beginning when the application is made and ending immediately before
Austrade determines whether the applicant is entitled to a grant;
the application is taken for the purposes of this Act (other than this
Division) not to have been made.
If the application is taken (under section 75) not to have been made,
Austrade must, as soon as practicable after becoming aware of that fact, give to
the applicant a written notice:
(a) stating that the application is taken not to have been made;
and
(b) setting out the effect of section 77.
(1) If an application (first application) is taken (under
section 75) not to have been made, the applicant may make a fresh application
under subsection 70(1) if:
(a) when the first application was made, the individual concerned was not
yet disqualified; or
(b) when the first application was made:
(i) the individual concerned was disqualified; but
(ii) the applicant neither knew, nor had reasonable grounds to suspect,
that the individual was disqualified.
(2) The fresh application must be made within:
(a) 90 days after the applicant receives the notice referred to in section
76; or
(b) 5 months after the end of the grant year;
whichever is the later.
(1) If an individual has been convicted of:
(a) an offence that under subsection 229(3) of the Corporations Law
disqualifies a person from managing a corporation; or
(b) an offence against section 29A, 29B, 29C or 29D of the Crimes Act
1914 that relates to an application for a grant; or
(c) an offence against section 39 of the repealed Act; or
(d) an offence under:
(i) section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914; or
(ii) a provision of a law of a State or Territory that corresponds to any
of those provisions;
that relates to an offence referred to in paragraph (a), (b) or
(c);
the individual is disqualified from preparing applications
for the disqualification period.
(2) For the purposes of this section, the disqualification
period is the period starting on the day on which the conviction was
recorded and ending:
(a) if the conviction was for a term of imprisonment—5 years after
the individual convicted was released from prison; or
(b) in any other case—5 years after the day on which the conviction
was recorded.
Austrade may, by written notice to an individual who has helped, in a
prescribed capacity, to prepare an application, ask the individual to give to
Austrade any written consent that Austrade requires to enable criminal records
to be checked for the purposes of applying this Division to the
individual.
Note 1: For prescribed capacity see subsection
74(2).
Note 2: Part VIIC of the Crimes Act 1914 exempts a
person from having to disclose spent convictions.
(1) Austrade must:
(a) subject to section 73, consider each application for a grant;
and
(b) determine whether the applicant is entitled to a grant; and
(c) if Austrade determines that the applicant is entitled to a
grant—determine the amount of the grant as soon as practicable.
(2) The applicant becomes entitled to the grant when Austrade makes the
determination under paragraph (1)(b).
(1) If Austrade’s determination that an applicant is entitled to a
grant in respect of a grant year (first determination) is made
before the balance distribution date for the year following the grant year, the
following provisions apply.
Note: For balance distribution date see
section 107.
(2) If the applicant’s provisional grant amount for the grant year
does not exceed the initial payment ceiling amount for the grant year, the grant
becomes (subject to section 83) payable to the applicant when Austrade
determines the amount of the grant under paragraph 80(1)(c).
Note: For the amount of the grant see subsection
67(2).
(3) If the applicant’s provisional grant amount for the grant year
exceeds the initial payment ceiling amount for the grant year:
(a) the applicant is, on the making of the first determination (but
subject to section 83), entitled to be paid an advance on account of the grant
equal to the initial payment ceiling amount; and
(b) subject to section 83, the grant becomes payable to the applicant when
Austrade determines the amount of the grant under paragraph 80(1)(c).
Note 1: The amount of the grant may be determined in this
case only after the balance distribution date for the year following the grant
year. The applicant is then entitled to receive the amount of the grant less any
advance on account of the grant paid to the applicant. For the amount of the
grant see subsection 67(3).
Note 2: Subdivision 3 sets out the circumstances in
which a grant is not payable to an applicant.
If Austrade’s determination that the applicant is entitled to a
grant in respect of a grant year is made after the balance distribution date for
the year following the grant year, then, subject to section 83, the grant
becomes payable:
(a) if Austrade determines the amount of the grant before the 1 July
next following the balance distribution date—on that 1 July;
or
(b) in any other case—on the day on which the amount of the grant is
determined.
Note 1: For the amount of the grant see section
67.
Note
2: Subdivision 3 sets out the circumstances in which a grant is not payable
to an applicant.
(1) If section 65 applies to an applicant for a grant, the grant, or an
advance on account of the grant, becomes payable to the applicant
when:
(a) Austrade’s determination under paragraph 80(1)(c) in relation to
the applicant; and
(b) Austrade’s determination under paragraph 80(1)(c) in relation to
each company that:
(i) is related to the applicant; and
(ii) has also applied for a grant;
have been finalised.
Note: For related company see section 107. For
finalised see subsection (2).
(2) For
the purposes of subsection (1), a determination under paragraph 80(1)(c) is
finalised when:
(a) the determination; and
(b) any decision of a court affecting that determination;
may no longer be, or is not, subject to a review by, or an appeal to,
another court.
(3) In subsection (2):
court includes the Administrative Appeals Tribunal.
Note: Subdivision 3
sets out the circumstances in which a grant is not payable to an
applicant.
A grant, or an advance on account of a grant, that is payable to an
approved joint venture is to be paid to the nominated contact member.
Note: For nominated contact member see section
107.
(1) Despite Subdivision 2, a grant, or an advance on account of a grant,
is not payable to a person if, at the time when, or at any time after, the
person becomes entitled to the grant or advance, the person ceases to be a
resident of Australia.
(2) Subsection (1) does not affect the validity of a payment of grant, or
of an advance on account of grant, to the person before the person ceased to be
a resident of Australia.
Note: For resident of Australia see section
114.
(1) Despite Subdivision 2, a grant, or an advance on account of a
grant, is not payable to a person if, at the time when, or at any time after,
the person becomes entitled to the grant or advance, there is a disqualifying
conviction outstanding against the person.
(2) Subsection (1) does not affect the validity of a payment of grant, or
of an advance on account of grant, to the person at a time when there was no
disqualifying conviction outstanding against the person.
Note: For disqualifying conviction see section
107.
(1) Despite Subdivision 2, a grant, or an advance on account of a grant,
is not payable to a person if, at the time when, or at any time after, the
person becomes entitled to the grant or advance, the person or, (where
applicable) an associate of the person, is under insolvency
administration.
(2) Subsection (1) does not affect the validity of a payment of grant, or
of an advance on account of grant, to the person at a time when neither the
person, nor any associate of the person, was under insolvency
administration.
Note: For associate and under insolvency
administration see section 107.
(1) Any of the following:
(a) a body corporate established for a public purpose by or under an
Australian law;
(b) a co-operative;
(c) any other body corporate representing the interests of an industry or
of a substantial part of an industry;
may apply to Austrade for approval as an approved body.
(2) A group of persons may apply to Austrade for approval as a joint
venture.
(3) A person (other than a joint venture) may apply to Austrade for
approval as an approved trading house.
(4) The application must be in writing and in accordance with a form
approved by Austrade.
(1) Subject to section 92, Austrade must deal with the application in
accordance with the regulations.
(2) A decision of Austrade to approve, or not to approve, the applicant
must be in writing.
Note: Subsection 33(3) of the Acts Interpretation Act
1901 provides that a power conferred on a person to make an instrument (such
as a written approval) includes the power to cancel or vary the
instrument.
(3) Subject to subsections (4) and (5), an approval must specify the
conditions (if any) to which the approval is subject.
(4) An approval of a group of persons as a joint venture must:
(a) specify the activity, project or purpose for which the group is
approved; and
(b) specify the member of the group who is the nominated contact member
for the purposes of applications and payments of grant.
Only a resident of Australia may be specified as a nominated contact
member.
(5) An approval of a person as a trading house must specify the activity,
project or purpose for which the person is approved.
Note: The powers of Austrade under this section are subject
to guidelines (see section 101).
(1) An approval takes effect:
(a) on the day specified in the approval; or
(b) if no day is specified—on the day on which the approval is
given.
The day specified under paragraph (a) may be earlier than the day on which
the approval is given.
(2) An approval expires immediately before the beginning of the third
anniversary of the day on which the approval took effect.
(1) If Austrade is of the opinion that there may be grounds for cancelling
the approval of a person as a trading house or as an approved body, or the
approval of a group of persons as a joint venture, Austrade must:
(a) give to the person, or in the case of an approved joint venture, to
the nominated contact member, written notice of Austrade’s opinion
specifying the reasons for that opinion; and
(b) invite the person or member to make a written submission to Austrade
in relation to the matter within a reasonable period specified in the
notice.
(2) In deciding whether to cancel the approval, Austrade must take into
consideration the matters raised in any submission received within the period
specified in the notice.
Note: The powers of Austrade under this section are subject
to guidelines (see section 101).
(1) The Minister may make a written determination fixing the maximum
number of approved joint ventures of which a person may be a member.
(2) A copy of the determination must be published in the
Gazette.
(3) The determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(4) Austrade must not:
(a) approve a group of persons as a joint venture; or
(b) vary a group’s approval as a joint venture;
if the approval or variation would result in a person contravening
subsection (1).
This Division deals with cases where, because of certain specified
business arrangements, an applicant for a grant is carrying on a business that
is to any extent similar to the business, or any part of the business, of
another person who has already received grants under this Act or under the
repealed Act. The Division empowers Austrade to treat particulars of the other
person for the purposes of this Act as being those of the applicant.
(1) This section applies if:
(a) at any time a person (previous owner) carried on a
particular business in Australia; and
(b) at a later time:
(i) the previous owner sold or transferred the business or any part
(relevant part) of the business; or
(ii) in the case of a business carried on by a partnership—there was
a change in the membership of the partnership that carried on the business;
or
(iii) the previous owner entered into any other arrangement relating to
that business; and
(c) as a result of the sale, transfer, change in membership or other
arrangement, another person (new owner) carries on:
(i) the business or the relevant part of the business; or
(ii) a business that is, to any extent, similar to the business, or any
part of the business, carried on by the previous owner.
Note: For partnership see section
107.
(2) If:
(a) the new owner applies for a grant in respect of a grant year;
and
(b) Austrade does not exempt the new owner from the operation of this
section;
subsection (3) has effect.
(3) Austrade must:
(a) treat any eligible expenses incurred by the previous owner in the
capacity of owner of the business, or of the relevant part of the business, as
having been incurred by the new owner; and
(b) treat any export earnings derived by the previous owner from the
business, or the relevant part of the business, as export earnings of the new
owner; and
(c) treat any registration of the previous owner under section 19 or under
section 13I of the repealed Act as a registration of the new owner;
and
(d) treat the new owner as having passed the grants entry test if the
previous owner has passed that test or the grants entry test (within the meaning
of the repealed Act); and
(e) treat any grant, or advance on account of grant, paid or payable
(whether under this Act or under the repealed Act) to the previous owner in the
capacity of owner of the business, or of the relevant part of the business, as
having been paid, or as being payable, to the new owner; and
(f) treat any other aspect of the business, or of the relevant part of the
business, as if it had been carried on by the new owner.
Note: For eligible expenses, export
earnings, repealed Act and grants entry test
see section 107.
This Division empowers Austrade to adjust an applicant’s export
earnings, eligible expenses or provisional grant amount if Austrade is satisfied
that the applicant has been party to an arrangement or transaction that is
likely to result in the applicant obtaining a grant or an increase in the amount
of a grant.
If Austrade is satisfied:
(a) that an applicant for a grant in respect of a grant year has done, or
has been party to, any act or thing (as, for example, the making of an agreement
or payment, the forming of a company or the allocation of income or expenses
between different persons or different years); and
(b) that as a result the applicant is likely to obtain a grant, or an
increase in the amount of the grant, in respect of that year;
Austrade may, for the purposes of this Act:
(c) make such adjustments to:
(i) the amount that, apart from this section and section 12, would be the
applicant’s export earnings; and
(ii) the amount that, apart from this section and section 30, would be the
applicant’s eligible expenses;
as it thinks necessary; and
(d) work out the amount that, apart from this section and section 64,
would be the applicant’s provisional grant amount for the grant
year.
Note: For export earnings and eligible
expenses see section 107.
Each of the following decisions of Austrade is a reviewable
decision:
(a) a decision under subsection 20(3) that a person has not passed the
grants entry test;
(b) a decision under Part 4 relating to eligible products;
(c) any decision relating to an application for a grant;
(d) a decision under Division 1 to refuse an application for approval as
an approved body or to vary or cancel such an approval;
(e) a decision under Division 1 to refuse a person’s application for
approval as a trading house or to vary or cancel such an approval;
(f) a decision under Division 1 to refuse a group’s application for
approval as a joint venture or to vary or cancel such an approval;
(g) a decision under subsection 89(3) to specify one or more conditions to
which a person’s approval as an approved body is subject;
(h) a decision under subsection 89(3) to specify one or more conditions to
which a person’s approval as a trading house is subject;
(i) a decision under subsection 89(3) to specify one or more conditions to
which a group’s approval as a joint venture is subject;
(j) a decision under a scheme determined under section 100 to refuse to
accredit an export market development grants consultant or to vary or cancel
such an accreditation.
(1) A person who is affected by a reviewable decision may, if dissatisfied
with the decision, request Austrade to reconsider it.
(2) The request must be made by written notice received by
Austrade:
(a) within the period of 30 days after the day on which the person first
receives notice of the decision; or
(b) within such further period as Austrade allows.
(3) The notice must set out the reasons for making the request.
(4) After receiving the request, Austrade must reconsider the decision and
may confirm or vary the decision in such manner as Austrade thinks
fit.
Note: Section 27A of the Administrative Appeals Tribunal
Act 1975 requires applicants to be notified of their review
rights.
An application may be made to the Administrative Appeals Tribunal for the
review of a decision of Austrade that has been confirmed or varied under
subsection 98(4).
(1) Austrade may determine in writing a scheme for the accreditation of
export market development grants consultants.
Note: For export market development grants
consultant see section 107.
(2) The scheme may empower Austrade to make decisions:
(a) accrediting export market development grants consultants;
and
(b) varying or cancelling the accreditation of export market development
grants consultants.
(3) The scheme may make provision relating to the keeping by Austrade of a
register of export market development grants consultants accredited under the
scheme. In particular, the scheme may provide for the following:
(a) the keeping of the register in such form and manner as Austrade
directs;
(b) the inspection of the register;
(c) the provision of information contained in the register;
(d) the fees to be charged by Austrade for such an inspection or for
providing such information.
(4) A determination under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Minister must determine, in writing:
(a) guidelines to be complied with by Austrade in forming, for the
purposes of paragraph 7(1)(a), an opinion whether a person is genuinely carrying
on business in Australia; and
(b) guidelines to be complied with by Austrade in forming, for the
purposes of Part 5, an opinion whether a person is, or is not, closely
related to an applicant; and
(c) guidelines for the exercise by Austrade of its powers under Division 1
relating to the following:
(i) the approval of a person as a trading house or as an approved
body;
(ii) the approval of a group of persons as a joint venture;
(iii) the variation and cancellation of those approvals; and
(d) guidelines to be complied with by Austrade in determining whether to
exempt a person from the operation of section 94.
(2) The Minister may determine, in writing, guidelines to be applied by
Austrade for the exercise by Austrade of any of its other powers or functions
under this Act.
(3) Austrade must comply with the relevant guidelines (if any) determined
under this section in exercising any of its powers or functions under this
Act.
(4) A determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(1) This section applies for the purposes of a prosecution for:
(a) an offence against section 29A, 29B, 29C or 29D of the Crimes Act
1914 that relates to an application for a grant; or
(b) an offence under section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to an offence referred to in
paragraph (a).
(2) If it is necessary to prove the state of mind of a body corporate in
relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, employee or agent had the state of mind.
(3) If:
(a) conduct is engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
referred to in subsection (1), to have been engaged in by the body corporate
unless the body corporate establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
(4) If it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by an employee or agent of the
individual within the scope of his or her actual or apparent authority;
and
(b) that the employee or agent had the state of mind.
(5) If:
(a) conduct is engaged in on behalf of an individual by an employee or
agent of the individual; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
referred to in subsection (1), to have been engaged in also by the individual,
unless the individual establishes that he or she took reasonable precautions and
exercised due diligence to avoid the conduct.
(6) If:
(a) an individual is convicted of an offence referred to in subsection
(1); and
(b) the individual would not have been convicted of the offence if
subsections (4) and (5) had not been enacted;
the individual is not liable to be punished by imprisonment for that
offence.
(7) In this section:
director, in relation to a body that:
(a) is incorporated for a public purpose by an Australian law;
and
(b) is constituted by one or more members;
means the member, or any of the members, constituting the body.
Note: For Australian law see section
107.
engage in conduct includes fail or refuse to engage in
conduct.
state of mind, in relation to a person, includes:
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(1) This section applies if:
(a) a person is convicted of an offence against section 29A, 29B, 29C or
29D of the Crimes Act 1914; and
(b) the offence relates to an application by the person, or by an
applicant of whom the person is an associate, for a grant in respect of a grant
year.
(2) If the grant, or an advance on account of the grant, has been paid by
Austrade, the applicant for the grant must repay the amount of the grant or of
the advance to Austrade.
(3) An amount that is repayable by the applicant to Austrade under
subsection (2), is a debt due to Austrade and may be:
(a) deducted from any amount payable to the applicant under this Act;
or
(b) recovered by Austrade from the applicant in a court of competent
jurisdiction.
Note: For associate see section
107.
(1) This section applies if a grant, or an advance on account of a grant,
has been paid by Austrade to an applicant because of:
(a) the making of a statement that was false or misleading; or
(b) the use of a book, record or document that contained information that
was false or misleading.
(2) The applicant is liable to repay to Austrade the amount of the grant
or of the advance.
(3) An amount that is repayable by the applicant to Austrade under
subsection (2), is a debt due to Austrade and may be:
(a) deducted from any amount payable to the applicant under this Act;
or
(b) recovered by Austrade from the applicant in a court of competent
jurisdiction.
(4) For the purposes of subsection (1), a certificate purporting to
be signed by the Managing Director of Austrade, or by a person acting in the
office of Managing Director of Austrade, that states that an amount of grant has
been paid because of a reason referred to in paragraph (1)(a) or (b), is,
upon its mere production, receivable as prima facie evidence of that
fact.
The costs of the administration of this Act:
(a) are to be paid out of the money (appropriation amount)
appropriated by the Parliament for the purpose of meeting payments under this
Act; and
(b) must not exceed in any grant year 5% of the appropriation amount for
the grant year.
(1) The Governor-General may make regulations:
(a) prescribing matters required or permitted by this Act to be
prescribed; or
(b) prescribing matters necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may:
(a) provide for the procedure to be followed by Austrade for the approval
of joint ventures, approved trading houses and approved bodies; and
(b) require persons to make statutory declarations verifying:
(i) applications; and
(ii) documents, books or records used for the purposes of this
Act.
In this Act, unless the contrary intention appears:
approved activity, project or purpose, in relation to an
approved joint venture, means the activity, project or purpose for which the
joint venture is approved under section 89.
approved body means any body corporate, co-operative or
association that is approved by Austrade as an approved body under section
89.
approved joint venture means a group of persons that is
approved by Austrade as a joint venture under section 89.
approved promotional purpose has the meaning given by
Subdivision 3 of Division 2 of Part 5.
approved trading house means a person that is approved by
Austrade as an approved trading house under section 89.
associate means:
(a) in relation to a company—a director of the company; or
(b) in relation to an association or a co-operative—a member of the
body (however described) that governs, manages, or conducts the affairs of, the
association or co-operative; or
(c) in relation to a body corporate referred to in paragraph
6(1)(g):
(i) if subparagraph (ii) does not apply—a member of the body
corporate; or
(ii) if another body is responsible for the management, or the conduct of
the affairs, of the body corporate—a member of that body; or
(d) in relation to a partnership:
(i) an individual, or a body corporate, that is a member of the
partnership; or
(ii) an individual who is a director of a company, or a member of any
other body corporate, that is a member of the partnership; or
(e) in relation to an approved joint venture:
(i) an individual, or a body corporate, that is a member of the joint
venture; or
(ii) an individual, or a body corporate, that is a partner of a
partnership that is a member of the joint venture; or
(iii) an individual who is a director of a company, or a member of any
other body corporate, that is a member of the joint venture.
association means an association incorporated under an
Australian law.
Austrade means the Australian Trade Commission established by
section 7 of the Australian Trade Commission Act 1985.
Australian law means a law of the Commonwealth, of a State or
of a Territory.
balance distribution date, in relation to a grant year, means
the date determined by the Minister under section 68 to be the balance
distribution date for that year.
company means a body incorporated under the Corporations
Law.
conviction has a meaning affected by section 108.
co-operative means a co-operative incorporated under an
Australian law.
de facto spouse, in relation to an individual, means an
individual who:
(a) is not legally married to the first individual; but
(b) lives with the first individual in a marriage-like
relationship.
disposal, in relation to intellectual property or know-how,
includes sale, grant, assignment or supply.
Note: See also section 111.
disqualifying conviction has the meaning given by section
16.
eligible expenses has the meaning given by Division 1 of
Part 5.
eligible external services has the meaning given by
subsection 25(3).
eligible goods has the meaning given by section 24.
eligible intellectual property has the meaning given by
section 26.
eligible internal services has the meaning given by
subsection 25(1).
eligible know-how has the meaning given by section
27.
eligible products means:
(a) eligible goods; or
(b) eligible services; or
(c) eligible intellectual property; or
(d) eligible know-how.
eligible promotional activity has the meaning given by
subsection 33(1).
eligible services means:
(a) eligible external services; or
(b) eligible internal services; or
(c) eligible tourism services.
eligible tourism service has the meaning given by subsection
25(2).
export means export from Australia, but does not include the
taking of goods out of Australia with the intention that the goods will at some
later time be brought back to Australia to remain permanently in
Australia.
Note: See also section 110.
export earnings has the meaning given by Division 2 of
Part 3.
export market development grants consultant means a person
who asks for, or receives, any fee for any work relating to the preparation of
an application for a grant.
external service means any service other than a service that
is declared by the regulations not to be an external service.
goods made in Australia means goods manufactured, produced,
assembled or processed in Australia.
goods made outside Australia means goods manufactured,
produced, assembled or processed outside Australia.
grant means a grant under this Act.
grantee means a person that has received, or is entitled to
receive, a grant under this Act or under the repealed Act in respect of a grant
year.
grants entry test means:
(a) the test that is required to be taken under section 20; or
(b) a grants entry test within the meaning of the repealed Act.
grant year means:
(a) the year commencing on 1 July 1996, 1 July 1997 or 1 July 1998;
or
(b) a grant year within the meaning of the repealed Act other than a year
commencing on or after 1 July 1996.
income, in relation to a person, means:
(a) any income of the person that:
(i) is assessable income under the Income Tax Assessment Act 1936;
or
(ii) if that Act does not apply to the person—would be assessable
income under that Act if it applied to the person; or
(b) any money (other than income referred to in paragraph (a)) that the
person receives by way of financial assistance from:
(i) the Commonwealth, a State or a Territory; or
(ii) a body established by or under an Australian law; or
(c) if the person is a body corporate referred to in paragraph
6(1)(g)—any payment to the body from money appropriated by the Parliament
of the Commonwealth, of a State or of a Territory for the purposes of the
body.
initial payment ceiling amount, in relation to a grant year,
means the amount determined by the Minister under section 68 to be the initial
payment ceiling amount for that grant year.
intellectual property does not include rights relating to
know-how.
internal service means a service prescribed for the purposes
of this definition.
new market has the meaning given by section 113.
nominated contact member, in relation to an approved joint
venture, means the member who is specified in the joint venture’s approval
as being the nominated contact member.
partnership means a partnership that is regulated in
accordance with the law of a State or Territory.
Note: See also section 112.
payout factor, in relation to a grant year, means the factor
determined by Austrade under section 69 in respect of that grant year.
person includes a partnership and an approved joint
venture.
Note: This definition widens the ordinary meaning of
person which, under section 22 of the Acts Interpretation Act
1901, includes a body politic or corporate as well as an
individual.
process, in relation to goods, does not include grade, pack
or sort.
provisional grant amount has the meaning given by Division 2
of Part 6.
related company, in relation to a body corporate that has
applied for a grant in respect of a grant year, means a body corporate that is
related (within the meaning of section 50 of the Corporations Law) to the
first body corporate as at 30 June in the grant year.
related company group means a group of related
companies.
relative, in relation to an individual, means:
(a) a spouse of the individual; or
(b) any individual who is, or is a spouse of, a parent, grandparent,
brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child
of that individual.
repealed Act means the Export Market Development Grants
Act 1974.
resident of Australia has the meaning given by section
114.
sale has a meaning affected by section 109.
spouse includes a de facto spouse.
supply means supply for consideration.
Territory means an internal Territory.
tourism service means a service prescribed for the purposes
of this definition.
under insolvency administration has the meaning given by
sections 14 and 15.
A reference in this Act to a conviction of a person for an
offence includes:
(a) a reference to a conviction recorded before the commencement of this
Act; and
(b) a reference to the making (whether before or after the commencement of
this Act) of an order under:
(i) section 19B of the Crimes Act 1914; or
(ii) a corresponding provision of another Australian law or of a law of a
foreign country;
in relation to the person in respect of an offence.
Note: Section 19B of the Crimes Act 1914 empowers a
court that has found a person guilty of an offence to take action without
proceeding to record a conviction.
A person is taken to sell eligible goods only if Austrade
is satisfied that the property in the goods passes from that person to a person
that is not a resident of Australia at the time when the goods are
sold.
If:
(a) a person (seller) sells eligible goods at a time when
the goods are in Australia; and
(b) the buyer later exports the goods;
the seller (not the buyer) is taken to export the goods.
Note: For sell see section
109.
A person is taken to dispose of eligible intellectual property or
eligible know-how only if Austrade is satisfied that the property or
know-how (as the case may be) is disposed of for reward to a person that is not
a resident of Australia for use or enjoyment outside Australia.
A joint venture is taken to be a partnership only if the agreement
establishing the joint venture is effective to establish a partnership between
the parties to the joint venture under the law relating to partnerships in the
place where the agreement is made.
(1) Subject to subsection (2), a market is a new market for
a person if, in Austrade’s opinion, the person has, over the prescribed
period, received from the sale, supply or disposal of eligible products to that
market export earnings of not more than:
(a) $300,000; or
(b) if a lesser amount is prescribed—that amount.
Note: For market and prescribed
period see subsection (3).
(2) A market stops being a new market for a person after the person has,
for 3 grant years, received grants only because of eligible expenses incurred by
the person for eligible promotional activities carried out to further approved
promotional purposes in that market or any other new market for the
person.
Note: For eligible expenses, eligible
promotional activity and approved promotional purpose see
section 107.
(3) In this section:
market means a market constituted by a foreign
country.
Note: For foreign country see section 22
of the Acts Interpretation Act 1901.
prescribed period, in relation to a person, means the period
of 3 years immediately before the grant year in respect of which the person
first applies for a grant in respect of eligible expenses for promoting eligible
products in that market.
For the purposes of this Act, each of the following is a resident
of Australia:
(a) an individual:
(i) whose principal place of residence is in Australia; and
(ii) who intends to remain permanently in Australia;
(b) a company;
(c) a partnership, co-operative or association;
(d) a body corporate established by an Australian law for a public
purpose;
(e) the Commonwealth, a State or Territory.
Note: For company, partnership,
co-operative, association, Australian
law and Territory see section 107.