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BOUNTY (TEXTILE YARNS) AMENDMENT ACT 1990 No. 69 of 1990 - SECT 10
Insertion of new Part and Part heading
10. After section 21 of the Principal Act the following Part and Part heading
are inserted:
"PART 3-CAPITALISATION GRANTS Persons may make application for capitalisation
grants
"21A. A person who is, or is likely to become, during the bounty period, a
producer of bountiable yarn in Australia may make application to the Minister
for a capitalisation grant. Nature of application
"21B. (1) Applications under section 21A must:
(a) be made in writing; and
(b) be lodged with the Authority after the commencement of this section
and before the end of the bounty period or, if a lesser period is
specified in the regulations, within that lesser period; and
(c) include details of any bounty that the applicant has received or is
likely to receive in respect of bountiable yarn produced before the
day of the application; and
(d) include an estimate of the amount of bounty that the applicant would
be likely to receive, but for the operation of this Part, in respect
of bountiable yarn produced on or after the day of the application;
and
(e) include details of advances on account of bounty received or applied
for before the day of the application; and
(f) include a business plan setting out the matters referred to in
subsection (2); and
(g) include an estimate of the grant sought to enable implementation of
the business plan, indicating the date from which the grant is sought
and the manner of its application; and
(h) include such other information as may be prescribed.
"(2) A business plan referred to in subsection (1) must set out:
(a) the applicant's business objectives in relation to the production in
Australia of bountiable yarn; and
(b) the applicant's business objectives in relation to the production in
Australia of any other TCF products; and
(c) the applicant's business objectives in relation to export initiatives
in respect of TCF products produced in Australia; and
(d) the applicant's objectives in relation to occupational and
environmental health and safety issues arising in respect of the
production of TCF products in Australia; and
(e) the applicant's plans for achieving the objectives referred to in
paragraphs (a), (b), (c) and (d) in terms of:
(i) organisational restructuring; and
(ii) investment (including investment in plant, equipment and
manufacturing systems); and
(iii) research and development (both within and outside Australia);
and
(iv) erection of purpose-built buildings; and
(v) debt and equity financing; and
(vi) sales and marketing; and
(vii) any other matters considered likely to assist in meeting those
objectives; during each financial year or part of a financial
year ending after the date of the application and before the
day following the end of the bounty period. Consideration of
applications by Authority
"21C. (1) The Authority must consider each application as soon as practicable
after it is received and, after having regard to the matters referred to in
subsection (2), must make a report in writing to the Minister recommending
that:
(a) a grant equal to the grant sought in the application be made to the
applicant; or
(b) a grant less than the grant sought in the application be made to the
applicant; or
(c) no grant be made; and provide reasons for that recommendation.
"(2) In preparing its report, the Authority must have regard to the following
matters:
(a) whether the grant sought, or any lesser grant that is consistent with
the proposals set out in the application, would, in the opinion of the
Authority, be likely to result in a lesser budgetary outlay by the
Commonwealth, on a net present value basis, than the outlay required
if the applicant had continued to claim bounty in respect of
bountiable yarn produced without the benefits of a capitalisation
grant;
(b) whether, in the opinion of the Authority, the business plan provided
in support of the application is financially viable;
(c) whether, in the opinion of the Authority, the business plan provided
in support of the application:
(i) will promote the restructuring and revitalisation of the TCF
industries so as to improve their efficiency and international
competitiveness; and
(ii) will reduce the dependence of those industries on assistance by
the Commonwealth;
(d) whether, in the opinion of the Authority, the business plan provided
in support of the application will promote occupational and
environmental health and safety;
(e) whether, in the opinion of the Authority, the making of the grant
sought, or any lesser grant that is consistent with the proposals set
out in the application, accords with Australia's international trade
obligations.
"(3) Where the Authority is of the opinion that it needs more information to
enable a proper consideration of the application, it may request the applicant
in writing to supply it with such further information as is specified in the
request within such time as is specified in the request.
"(4) If, without reasonable excuse, the applicant refuses or fails to comply
with the request, the application is to be taken to have been withdrawn.
"(5) Where the Authority is of the opinion that it needs additional
information in respect of payments, or likely payments, of bounty or of
advances on account of bounty in respect of any TCF products produced in
Australia by the applicant, it may, by notice in writing, request the
Comptroller to supply that information. Assessment of financial viability of
business plans
"21D. The Authority may, if it considers it necessary, refer a business plan
submitted by an applicant for a capitalisation grant to a suitably qualified
person for an assessment of the plan's financial viability. Minister to
consider report
"21E. (1) The Minister, after considering a report provided to the Minister by
the Authority, must, by notice in writing given to the applicant, inform the
applicant:
(a) that the Minister is prepared to make a capitalisation grant to the
applicant of a specified amount, being an amount equal to or less than
the amount sought in the application, on a specified day, on condition
that the applicant enters, within a specified period ending before
that specified day, into a capitalisation agreement with the Authority
on behalf of the Commonwealth; or
(b) that the Minister is not prepared to make a capitalisation grant to
the applicant.
"(2) The day specified in a notice under subsection (1) is to be a day during
the bounty period, being a day not earlier than the day the notice is given.
"(3) The Minister shall include in the notice to the applicant under
subsection (1) a statement:
(a) indicating the amount, if any, recommended to be granted in a
recommendation under paragraph 21C (1) (a), (b) or (c); and
(b) subject to subsection 21H (3), providing a broad statement of the
reasons for the recommendation.
"(4) Where a person has been notified that the Minister is prepared to make a
capitalisation grant on a particular day on condition that the person enters
into a capitalisation agreement and the person enters into such an agreement
in accordance with section 21F, the grant so notified is to be made to that
person on that day.
"(5) An applicant who is informed in a notice under subsection 21E (1) that
the Minister is prepared to make a capitalisation grant but who refuses or
fails, within the specified period, to enter into a capitalisation agreement,
shall be taken to have declined the grant. Capitalisation agreements
"21F. (1) A capitalisation agreement entered into between the applicant and
the Authority may include such terms and conditions in respect of the grant as
the Minister thinks appropriate for achieving the objectives of the business
plan.
"(2) Without limiting the generality of the matters that may be dealt with in
capitalisation agreements, each agreement is to identify the assets of the
applicant (including assets proposed to be acquired) that are essential to
achieving the objectives of the applicant's business plan.
"(3) Where an applicant wishes to sell, lease or otherwise deal with an asset
identified in a capitalisation agreement as essential to achieving the
objectives of the applicant's business plan, the applicant must make
application to the Minister or to a person authorised by the Minister for
agreement to that sale, lease or other dealing.
"(4) The Minister, or a person authorised by the Minister, on receipt of an
application by an applicant in respect of a proposed sale, lease or other
dealing with an asset identified as essential to achieving the objectives of
the applicant's business plan may, if, and only if, the Minister or that other
person is satisfied:
(a) that the asset has, for any reason, ceased to be essential to
achieving those objectives; or
(b) that the sale, lease or other dealing is not likely to prejudice the
achieving of those objectives; agree to the sale, lease or other
dealing, either absolutely or on such conditions as the Minister or
authorised person thinks appropriate.
"(5) Where:
(a) an applicant:
(i) fails to meet the terms and conditions included in a
capitalisation agreement; or
(ii) sells, leases or otherwise deals with an asset identified in a
capitalisation agreement as essential to achieving the
objectives of the applicant's business plan otherwise than in
accordance with the agreement of the Minister or other
authorised person; and
(b) the Minister makes a demand, in writing, for repayment of the
capitalisation grant concerned within a period of 90 days of making
that demand; and
(c) the applicant fails, within that period, to repay that amount; the
amount becomes, on the expiration of the period, a debt due to the
Commonwealth and may be recovered in a court of competent
jurisdiction.
"(6) In subsections (3), (4) and (5), a reference to the applicant (other
than a reference to the applicant in the expression "the applicant's business
plan") includes a reference to a person having control of the applicant's
business affairs. Identified assets register
"21G. (1) The Authority must establish and maintain a register to be known as
the identified assets register.
"(2) Brief particulars of each asset that, in a capitalisation agreement
entered into under section 21F, has been identified in accordance with
subsection (2) of that section, must be included by the Authority in the
register forthwith after that agreement is entered into.
"(3) The Authority must make the register available for inspection by members
of the public during normal business hours. Decisions to be made public
"21H. (1) As soon as practicable after an applicant for a capitalisation
grant:
(a) enters into a capitalisation agreement in respect of such a grant; or
(b) is to be taken to have declined such a grant; or
(c) is refused such a grant; the Authority must publish in the Gazette a
statement informing the public of the grant sought and of the grant
made or proposed to be made, or declined or refused, as the case
requires.
"(2) The Authority must, on request by a member of the public made after the
publication of the matters referred to in subsection (1) in respect of an
application for a capitalisation grant, give to the person making the request
a statement:
(a) indicating the amount, if any, recommended to be granted in a
recommendation under paragraph 21C (1) (a), (b) or (c); and
(b) subject to subsection (3), providing a broad statement of the reasons
for the recommendation.
"(3) In giving a statement of the reasons for a recommendation by the
Authority to the Minister either to the applicant concerned or to a member of
the public, the Authority must ensure that any matters that might:
(a) inhibit the provision of information on a confidential basis to the
Authority; or
(b) adversely affect the business or commercial interests of any person;
have been removed from the statement. Recipients of capitalisation
grants not entitled to bounty
"21J. (1) Where an applicant is offered a capitalisation grant, that person
is, subject to the operation of subsection (2), not entitled to a payment of
bounty in respect of any bountiable yarn the production of which was completed
by that person on or after the day on which the grant is made.
"(2) Where an applicant who is offered a capitalisation grant refuses or
fails, within the period specified by the Minister, to enter into a
capitalisation agreement, subsection (1) is to be taken never to have come
into effect. Offences in relation to grant application
"21K. (1) A person must not, in or in connection with an application under
this Part:
(a) knowingly or recklessly make to a person or body an oral or written
statement that is false or misleading in a material particular; or
(b) knowingly or recklessly give to a person or body a book, document or
other record that is false or misleading in a material particular.
Penalty: $3,000 or imprisonment for 6 months, or both.
"(2) Where, in proceedings for an offence against subsection (1) in respect of
any conduct engaged in by a corporation, it is necessary to establish the
state of mind of the corporation, it is sufficient to show that a director,
servant or agent of the corporation, being a director, servant or agent by
whom the conduct was engaged is within the scope of his or her actual or
apparent authority, had that state of mind.
"(3) Any conduct engaged in on behalf of a corporation:
(a) by a director, servant or agent of the corporation within the scope of
his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of a director, servant or agent of the
corporation, where the giving of such direction, consent or agreement
is within the scope of the actual or apparent authority of the
director, servant or agent; is to be taken, for the purposes of
subsection (1), to have been engaged in by the corporation.
"(4) A reference in subsection (2) to the state of mind of a person includes a
reference to the knowledge, intention, opinion, belief or purpose of the
person and the person's reasons for the intention, opinion, belief or purpose.
Recovery of grant on conviction
"21L. (1) Where a person is convicted of an offence against subsection 21K
(1), the court may, in addition to imposing a penalty under that subsection,
order the person to refund to the Commonwealth the amount of any grant made to
the person that, but for the commission of the offence, would not have been
made.
"(2) Where:
(a) a court makes an order under subsection (1) ordering a person to
refund an amount to the Commonwealth; and
(b) the court has civil jurisdiction to the extent of the amount; the
order is enforceable in all respects as a final judgment of the court
in favour of the Commonwealth.
"(3) Where:
(a) a court makes an order under subsection (1) ordering a person to
refund an amount to the Commonwealth; and
(b) the court:
(i) does not have civil jurisdiction; or
(ii) has civil jurisdiction, but does not have civil jurisdiction to
the extent of the amount; the proper officer of the court shall
issue to the Secretary of the Department a certificate in the
prescribed form containing the prescribed particulars.
"(4) The certificate may, in the prescribed manner and subject to the
prescribed conditions (if any), be registered in a court having civil
jurisdiction to the extent of the amount ordered to be refunded to the
Commonwealth.
"(5) Upon registration under subsection (4), the certificate is enforceable in
all respects as a final judgment of the court in favour of the Commonwealth.
"(6) The costs of registration of the certificate and other proceedings under
this section shall, subject to the prescribed conditions (if any), be deemed
to be payable under the certificate.
"PART 4-MISCELLANEOUS".
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