EXPORT MARKET DEVELOPMENT GRANTS AMENDMENT ACT 1978
An Act to amend the Export Market Development Grants Act 1974.
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:
Short title, &c.
1. (1) This Act may be cited as the Export Market Development Grants Amendment Act 1978.
(2) The Export Market Development Grants Act 1974 is in this Act referred to as the Principal Act.
Commencement
2. This Act shall come into operation on the day on which it receives the Royal Assent.
Title
3. The title of the Principal Act is amended by adding at the end thereof “or for the Attraction of Tourists and other Visitors to Australia”.
Interpretation
4. Section 3 of the Principal Act is amended—
(a) by omitting from sub-section (1) the definition of “authority or association” and substituting the following definitions:
“‘approved body’ means an authority or association that is an approved body by virtue of a declaration under sub-section 40b(1);
“‘approved tourist body’ means a tourist body that is an approved tourist body by virtue of a declaration under sub-section 40b(2);
“‘authority or association’ means—
(a) an authority constituted by a law of the Commonwealth or of a State or internal Territory;
(b) a corporation, other than an authority referred to in paragraph (a), constituted for a public purpose by or under a law of the Commonwealth or of a State or internal Territory;
(c) a co-operative association; or
(d) any other body or association, corporate or unincorporate, representing the interests of an industry or of a substantial part of an industry;”;
(b) by inserting after the definition of “eligible goods” in sub-section (1) the following definitions:
“‘eligible industrial property rights’ means rights in relation to inventions or trade marks, or copyright in relation to works, designs and other things, being—
(a) inventions, works, designs or things that, in the opinion of the Board, have, to a substantial extent, resulted from research or work performed in Australia; or
(b) trade marks that, in the opinion of the Board, were first used in Australia or have increased in significance or value by reason of their use in Australia;
“‘eligible internal services’ means services that, in the opinion of the Board, are services by way of the performance in Australia of work (including work by way of repair, maintenance, modification or overhaul) on goods that adds to the value of those goods, being goods—
(a) imported into Australia with the intention of being subsequently exported;
(b) brought to Australia for the purpose only of that work; or
(c) brought to Australia for another purpose and kept in Australia temporarily for the purpose only of the performance of that work,
and owned by persons resident outside Australia;
“‘eligible know-how’ means know-how that, in the opinion of the Board, has to a substantial extent resulted from research or other work performed in Australia;
“‘eligible services’ means services that are eligible services by virtue of regulations under sub-section 43(2);
“‘eligible tourist services’ means services that are eligible tourist services by virtue of regulations under sub-section 43(3);”;
(c) by omitting from sub-section (1) the definitions of “export earnings” and “Government sponsored promotion” and substituting the following definition:
“‘Government sponsored promotion’ means the promotion of any of the activities referred to in paragraph 4(1)(a), (b), (c), (d), (e), (f), (g), (h) and (j) by means of—
(a) the doing of an act outside Australia;
(b) the export of a publication that is published in Australia and is principally intended for distribution outside Australia; or
(c) the production and issue, outside Australia, of a supplement to a newspaper or periodical that is produced and distributed outside Australia,
being an act, publication or supplement that is organized or sponsored—
(d) in the case of activities referred to in paragraphs 4(1)(f) or (g)—by the Department of Trade and Resources and the Department of Industry and Commerce; or
(e) in the case of any other activities—by the Department of Trade and Resources;”;
(d) by omitting “4” from the definition of “grant year” in sub-section (1) and substituting “7”;
(e) by omitting from sub-section (1) the definitions of “group of corporations” and “industrial property rights”;
(f) by omitting “or of industrial property rights” from the definition of “know-how” in sub-section (1) and substituting “, of rights in relation to inventions or trade marks or of copyright in relation to works, designs or other things”;
(g) by omitting from sub-section (1) the definition of “market”;
(h) by omitting from sub-section (1) the definitions of “new claimant”, “new market”, “person” and “prescribed body” and substituting the following definitions:
“‘person’ includes a company, a partnership or an authority or association;
“‘processed’, in relation to goods, does not include graded, packed or sorted;”;
(j) by adding at the end of sub-section (1) the following definition:
“‘tourist body’ means a person who promotes the supply of eligible tourist services in Australia to persons who reside outside Australia, but does not include a body controlled by the Commonwealth, a State or Territory.”; and
(k) by adding at the end thereof the following sub-section:
“(4) For the purposes of this Act, a person shall be taken to supply eligible services outside Australia or eligible internal services if, and only if, the Board is satisfied that the services are supplied in pursuance of a contract for the supply of the services between that person and a person resident outside Australia.
Eligible expenditure
5. Section 4 of the Principal Act is amended—
(a) by omitting sub-section (1) and substituting the following sub-section:
“(1) Subject to the succeeding provisions of this section, a reference in this Act to eligible expenditure is a reference to expenditure that, in the opinion of the Board, has been incurred
by a person primarily and principally for the purpose of creating or seeking opportunities, or creating or increasing demand, for—
(a) the sale by that person for export, or the export by that person and sale by him, of eligible goods manufactured, produced, assembled or processed in Australia;
(b) in the case of a person who manufactured, produced, assembled or processed eligible goods at the time when the expenditure was incurred, the sale for export, or export and sale, of eligible goods manufactured, produced, assembled or processed in Australia by that person;
(c) in the case of a person who is an approved body, the sale for export, or export and sale, of eligible goods manufactured, produced, assembled or processed in Australia;
(d) the sale, outside Australia, of eligible goods manufactured, produced or assembled outside Australia wholly or principally out of materials or parts supplied by that person;
(e) the supply, by that person, for reward, in the course of carrying on business in Australia, of eligible services outside Australia;
(f) the supply, by that person, for reward, in the course of carrying on business in Australia, of eligible tourist services in Australia to persons resident outside Australia;
(g) in the case of a person who is an approved tourist body, the supply by residents of Australia, for reward, in the course of carrying on business in Australia, of eligible tourist services in Australia to persons resident outside Australia;
(h) the disposal, by that person, for reward, in the course of carrying on business in Australia, to persons resident outside Australia, for use and enjoyment outside Australia, of eligible industrial property rights owned by him or of eligible know-how owned by him; or
(j) the supply, by that person, for reward, in the course of carrying on business in Australia, of eligible internal services,
but does not include so much of any expenditure incurred by that person as—
(k) has been, or is to be, paid or reimbursed to him by another person, the government of the Commonwealth or of a State or Territory or any other government; or
(l) is incurred in connection with services, or the doing of anything, for which he has been, or is to be, paid by another person, the government of the Commonwealth or of a State or Territory or any other government.”;
(b) by omitting sub-paragraph (iii) of paragraph (a) of sub-section (2) and substituting the following sub-paragraphs:
“(iii) a person ordinarily employed in Australia by the claimant, by an associated company, by a prescribed associate, by a person referred to in sub-paragraph (iv), (v) or (vi) or by the association, in respect of services performed by him in Australia or in the course of a visit from Australia to a place or places outside Australia;
(iiia) a prescribed associate (other than a person referred to in sub-paragraph (iv), (v) or (vi)), being a resident of Australia;”;
(c) by inserting in paragraph (b) of sub-section (2) “that, in the opinion of the Board, are” before “directly attributable”;
(d) by omitting paragraph (c) of sub-section (2) and substituting the following paragraph:
“(c) expenses that, in the opinion of the Board, are directly attributable to the preparation or submission of a tender or quotation to a person resident outside Australia for the supply by the claimant of eligible services, eligible know-how or eligible internal services or of eligible goods that are not of the same kind and specification as, or not similar to, goods that are being regularly dealt with by the claimant, including expenses that, in the opinion of the Board, are directly attributable to the making of investigations and the preparation of information, designs, estimates or other material for the purposes of the submission by the claimant of such a tender or quotation;”;
(e) by inserting in paragraphs (d) and (e) of sub-section (2) “that, in the opinion of the Board, are” before “directly attributable”;
(f) by inserting in paragraph (e) of sub-section (2) “eligible” before “industrial property rights”;
(g) by omitting paragraphs (g), (h) and (i) of sub-section (2) and substituting the following paragraphs:
“(g) expenses, other than fares, in respect of travel, accommodation, sustenance or entertainment in respect of or in relation to a visit from a place in Australia to another place or other places, whether within or outside Australia, by the claimant or by a prescribed agent of the claimant or of the association ordinarily employed or carrying out duties in Australia;
“(h) expenses of advertising in Australia;”;
(h) by omitting from paragraph (k) of sub-section (2) “obtained by,” and substituting “obtained, by”;
(j) by omitting from paragraph (m) of sub-section (2) “a prescribed body” and substituting “an authority or association, or an approved tourist body, that is a claimant for a grant in relation to the grant year in respect of which the amounts were paid or payable”;
(k) by inserting after sub-section (2) the following sub-sections:
“(2a) Where—
(a) expenditure referred to in paragraph (2) (c) relates to the supply of eligible services outside Australia; and
(b) the Board is satisfied that consideration for those services has accrued or will accrue, or that, if those services were supplied, consideration for them would accrue, to a person other than a person resident, and carrying on business, in Australia,
the Board shall, for the purposes of this section, treat that expenditure as being reduced by an amount that the Board, having regard to the extent to which consideration for those services is consideration referred to in paragraph (b), considers appropriate.
“(2b) For the purposes of sub-section (2a), where the business or affairs of a claimant who carries on business both in and outside Australia are so arranged that, in the opinion of the Board, it is inappropriate to consider particular consideration for the supply by him of services outside Australia that has or will accrue, or that, if those services were supplied, would accrue, to him as consideration accruing to a person resident, and carrying on business, in Australia, the Board shall treat that consideration as accruing to a person other than a person resident, and carrying on business, in Australia.
“(2c) A reference in paragraph (2) (c) or sub-section (2b) to a claimant shall be read as including a reference to a consortium or other partnership resident in Australia the membership of which includes the claimant and which is formed or to be formed to supply the relevant eligible services or which, if required to supply those services, would be formed to do so.”;
(l) by omitting from paragraph (a) of sub-section (3), “prescribed body” and substituting “approved body, an approved tourist body or a company resident outside Australia”;
(m) by omitting from sub-section (4) “are prescribed agents of a claimant and”;
(n) by omitting from sub-section (5) “, in the ordinary course of business,”;
(p) by inserting in sub-section (6) “the Board is satisfied that” after “claimant,”;
(q) by omitting from paragraph (a) of sub-section (6) “goods, services, industrial property rights or know-how” and substituting “eligible goods, eligible services, eligible tourist services, eligible industrial property rights, eligible know-how or eligible internal services”;
(r) by omitting sub-section (7) and substituting the following sub-sections:
“(7) Where an amount paid or payable during a grant year by a claimant that is a company to a director of the claimant or of an associated company who is ordinarily carrying out the duties of a sales representative of the claimant outside Australia would, but for sub-paragraph (iv) or (v) of paragraph (a) of sub-section (2), be eligible expenditure incurred by the claimant, the Board may, if it considers it appropriate to do so, treat the whole or part of the amount as eligible expenditure incurred by the claimant during that year.
“(7a) Expenditure incurred by a regional tourist body otherwise than in relation to Government sponsored promotions shall not be taken to be eligible expenditure.
(s) by omitting “or” (last occurring) from paragraph (b) of the definition of “prescribed agent” in sub-section (8);
(t) by adding at the end of the definition of “prescribed agent” in sub-section (8) the following word and paragraph:
“or (d) in relation to any claimant or in relation to an association referred to in sub-section (3)—any person determined by the Board to be a person not at arm’s length with the claimant or the association;”; and
(u) by inserting after the definition of “prescribed agent” in sub-section (8) the following definitions:
“‘prescribed associate’ means—
(a) in relation to a claimant or an association referred to in sub-section (3), being an unincorporated company—a member of the governing body of the company;
(b) in relation to a claimant, being a partnership— any partner and, where any partner is a company, a director of that company; or
(c) in relation to any claimant or any association referred to in sub-section (3)—any person determined by the Board to be a person not at arm’s length with the claimant or the association;
“‘regional tourist body’ means an approved tourist body the principal function of which, in the opinion of the Board, is the promotion of tourist attractions and facilities for tourists in a particular region or other area in Australia;
Eligible goods
6. Section 5 of the Principal Act is amended by omitting from paragraph (a) of sub-section (1) “, processed or packed, or graded and sorted” and substituting “or processed”.
7. Sections 6, 7, 8, 9 and 10 of the Principal Act are repealed and the following section is substituted:
Minimum amount to be spent on eligible tourist services
“6. Where the eligible expenditure incurred by a person during a grant year in relation to the supply of eligible tourist services, not including expenditure incurred by way of fares, is less than $5,000, the Board shall, for the purposes of this Act, disregard so much of that expenditure as was incurred otherwise than in relation to Government sponsored promotions.”.
Residents of Australia
8. Section 11 of the Principal Act is amended by omitting paragraphs (c) and (d) and substituting the following paragraphs:
“(c) a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia and is declared by the Minister, on the advice of the Board, by writing signed by him, to be a company to which this paragraph applies; or
(d) a partnership which carries on business in Australia and exists by virtue of the law of a State or Territory,
Claims for grants
9. Section 13 of the Principal Act is amended by inserting after sub-section (2) the following sub-section:
“(2a) A claim relating to a grant year shall be submitted within 5 months after the end of that year, or within such further time as the Board allows.”.
10. Sections 14 to 18 (inclusive) of the Principal Act are repealed and the following sections are substituted:
Persons not eligible for grants
“14. (1) Grants are not payable to—
(a) a State or the Northern Territory; or
(b) an authority or association declared by the regulations to be a body to which grants are not payable.
“(2) A grant is not payable to a person in respect of eligible expenditure incurred by that person at a time when that person was not a resident of Australia.
“(3) Where a person, other than an approved body, received, or became entitled to receive, grants in respect of eligible expenditure incurred by him during any 3 or more grant years preceding a particular grant year, a grant is not payable to him in respect of eligible expenditure incurred by him during that grant year unless the amount of his export earnings in that grant year exceeds $25,000 or, if the whole of that amount consists of consideration for the disposal of eligible industrial property rights or eligible know-how, $ 10,000.
“(4) A reference in sub-section (3) to the amount of the export earnings of a person in a year shall be read as a reference to the amount that, in the opinion of the Board, would be the amount of the export earnings, within the meaning of the Export Expansion Grants Act 1978, of that person in that year if ‘eligible goods’ and ‘eligible services’ had the same respective meanings in that Act as they have in this Act.
“(5) A reference in sub-section (3) to eligible expenditure shall be read as not including a reference to eligible expenditure incurred in relation to the supply of eligible tourist services.
Grant entitlements
“15. Subject to this Act, the grant entitlement of a claimant in relation to a grant year is an amount equal to 70% of the eligible expenditure incurred by the claimant during that year.
Limit of grants
“16. (1) In this section—
‘Government entitlement’, in relation to a claimant, in relation to a grant year, means an amount equal to 70% of the eligible expenditure incurred by the claimant during that year in relation to Government sponsored promotions;
‘non-Government entitlement’, in relation to a claimant, in relation to a grant year, means an amount equal to 70% of the eligible expenditure incurred by the claimant during that year otherwise than in relation to Government sponsored promotions.
“(2) The amount of the grant entitlement, in relation to a grant year, of a claimant shall not exceed the sum of—
(a) so much of the non-Government entitlement of the claimant for that year as does not exceed $100,000; and
(b) so much of the Government entitlement of the claimant for that year as, together with the amount calculated under paragraph (a), does not exceed $125,000.”.
Change in ownership of business, &c.
11. Section 19 of the Principal Act is amended by omitting from paragraph (b) “or a change in the membership of a partnership” and substituting “, a change in the membership of a partnership, the acquisition of shares in the capital of a corporation or any other business arrangement”.
Policies and practices of Board
12. Section 22 of the Principal Act is amended—
(a) by inserting after sub-section (1) the following sub-section:
“(1a) The Minister shall make public, in such manner as he thinks appropriate, directions given by him under sub-section (1).”; and
(b) by omitting from sub-section (2) “effect” and substituting “affect”.
Membership of Board
13. (1) Section 23 of the Principal Act is amended—
(a) by omitting from sub-section (1) “3” and substituting “5”; and
(b) by omitting from paragraph (b) of sub-section (1) “2” and substituting “4”.
(2) A person who held office as the Chairman or as a part-time member of the Board immediately before the commencement of this section continues to hold office, for the remainder of his term of office, as if he had been appointed as the Chairman or as a part-time member, as the case may be, of the Board under the Principal Act as amended by this Act.
Meetings
14. Section 30 of the Principal Act is amended—
(a) by omitting from sub-section (3) “2 members” and substituting “3 members”; and
(b) by omitting sub-section (7).
15. Sections 33 and 34 of the Principal Act are repealed and the following section substituted:
Delegation
“33. (1) The Board may, by resolution, either generally or as otherwise provided by the resolution, delegate to the Chairman or to a member of the staff assisting the Board any of its powers under this Act, other than this power of delegation.
“(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Board.
“(3) A delegation of a power under this section—
(a) may be revoked by resolution of the Board (whether or not constituted by the persons constituting the Board at the time the power was delegated);
(b) does not prevent the exercise of the power by the Board; and
(c) continues in force notwithstanding a change in the membership of the Board.
“(4) A delegation, or the revocation of a delegation, under this section shall be notified to the Minister by the Chairman.
“(5) Section 34a of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Board were a person.
“(6) A certificate signed by the Chairman stating any matter with respect to a delegation of a power under this section is prima facie evidence of that matter.
“(7) A document purporting to be a certificate mentioned in sub-section (6) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.”.
16. Section 38 of the Principal Act is repealed and the following section substituted:
Adjustment of amounts
“38. (1) Where the Board is of the opinion that an act or thing (including the making of an agreement, arrangement or payment, the forming of a corporation or partnership or the distribution of income or activities as between different persons or different years) has been done that, if the powers of the Board under this section were not exercised, would result in an increase in the total of the amounts paid as grants without there being a corresponding increase in the total of the amounts of the eligible expenditure of persons during the grant years, the Board, to the extent that it thinks it necessary to do so to prevent or limit that result, may, for the purposes of this Act, disregard or adjust both or either of the following amounts, that is to say, the amount of the eligible expenditure or the amount of the grant entitlement, of a claimant for a year, being an amount that, in the opinion of the Board, has been affected by, or is an amount of anything resulting from, that act or thing.
“(2) The power of the Board under sub-section (1) extends to adjusting the amount of the grant entitlement of a person notwithstanding that a grant in respect of the amount has been paid, and where the amount of the grant entitlement of a person is reduced by such an adjustment after the payment of a grant in respect of it, that person shall be indebted to the Commonwealth in an amount equal to the difference between the grant paid and the adjusted amount of the entitlement, and the amount of that indebtedness may be—
(a) deducted from moneys payable to that person under this Act; or
(b) recovered from that person by the Commonwealth in a court of competent jurisdiction.”.
Offences
17. Section 39 of the Principal Act is amended—
(a) by omitting sub-section (1) and substituting the following sub-section:
“(1) A person shall not—
(a) knowingly obtain or attempt to obtain a grant that is not payable;
(b) obtain or attempt to obtain a grant by means of a statement that he knows to be false or misleading or by means of a book, record or document which to his knowledge contains information that is false or misleading; or
(c) make to the Board, or to a person having duties or functions for the purposes of this Act, a statement that is false or misleading in a material particular.
Penalty: $ 10,000 or imprisonment for 2 years, or both.”; and
(b) by adding at the end thereof the following sub-sections:
“(3) An offence against sub-section (1) may be prosecuted upon indictment or, subject to sub-section (4), summarily, but an offender is not liable to be punished more than once in respect of the same offence.
“(4) Where a person is charged with an offence against sub-section (1), a court of summary jurisdiction may, with the consent of the defendant and of the prosecutor and if the court is satisfied that it is proper to do so, determine the charge summarily.
“(5) Where a court of summary jurisdiction determines a charge summarily in accordance with sub-section (4), it shall not—
(a) where the defendant is a corporation—impose a fine exceeding $4,000; or
(b) in any other case—impose a fine exceeding $2,000 or sentence the defendant to imprisonment for a period exceeding 1 year.”.
Recovery of overpayments
18. Section 40 of the Principal Act is amended by omitting from sub-section (1) all the words after “misleading” and substituting:
“, that person shall be indebted to the Commonwealth in an amount equal to the amount so paid, and the amount of that indebtedness may be—
(a) deducted from moneys payable to that person under this Act; or
(b) recovered from that person by the Commonwealth in a court of competent jurisdiction.”.
19. After section 40 of the Principal Act the following sections are inserted:
Review of decisions of Board
“40a. (1) In this section-
‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975;
‘decision of the Board’ means a decision of the Board under this Act in connection with a claim in relation to a grant entitlement in respect of the grant year that commenced on 1 July 1978 or of a succeeding grant year.
“(2) A claimant affected by a decision of the Board and dissatisfied with the decision may, by notice in writing given to the Board within a period of 30 days after the date on which the decision first comes to the notice of the claimant, or within such further period as the Board allows, request the Board to reconsider the decision.
“(3) There shall be set out in the request the ground on which the request is made.
“(4) Upon receipt of the request, the Board shall reconsider the decision and may either confirm the decision or vary the decision in such manner as it thinks fit.
“(5) The Board shall, by notice in writing to the claimant, inform the claimant of the result of its reconsideration of the decision.
“(6) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Board that, on or after a date to be fixed by Proclamation, have been confirmed or varied under sub-section (4).
Declaration of approved bodies and approved tourist bodies
“40b. (1) The Minister, on the advice of the Board, may, by writing signed by him, declare an authority or association to be an approved body for the purposes of this Act.
“(2) The Minister, on the advice of the Board, may, by writing signed by him, declare a tourist body to be an approved tourist body for the purposes of this Act.
Regulations
20. Section 43 of the Principal Act is amended by adding at the end thereof the following sub-sections:
“(2) The regulations may declare that services of a specified kind are eligible services.
“(3) The regulations may declare that services of a specified kind, being services of a kind supplied to travellers or tourists, are eligible tourist services.
“(4) The regulations may declare that a specified authority or association is a body to which grants are not payable.
“(5) Regulations referred to in sub-section (4) made before 1 January 1979 may be expressed to take effect from 1 July 1978.”.
Application of amendments
21. The amendments made by sections 4 to 11 (inclusive) and 16 apply in relation to the grant year that commenced on 1 July 1978 and each succeeding grant year.
Transitional provisions—Government sponsored promotions
22. The Principal Act, as amended by the amendments referred to in section 21, has effect in relation to the grant year that commenced on 1 July 1978 as if—
(a) the following section were substituted for section 15 of that Act as so amended:
“15. Subject to this Act, the grant entitlement of a claimant in relation to a grant year is an amount equal to the sum of—
(a) 70% of the eligible expenditure incurred by the claimant during that year in relation to Government sponsored promotions (other than eligible expenditure falling within paragraph (b));
(b) 85% of the eligible expenditure (other than eligible expenditure incurred in relation to the supply of eligible tourist services) incurred by the claimant during the period that commenced on 1 July 1978 and ended on 31 December 1978 in relation to Government sponsored promotions carried out, or intended to be carried out, before 1 January 1979; and
(c) 70% of the eligible expenditure incurred by the claimant during that year otherwise than in relation to Government sponsored promotions. and
(b) the following definition were substituted for the definition of “Government entitlement” in sub-section (1) of section 16 of that Act as so amended:
“‘Government entitlement’, in relation to a claimant, in relation to a grant year, means an amount equal to the sum of the amounts calculated in relation to the claimant in relation to that year under paragraphs 15(a) and (b);”.
Transitional
23. (1) A claim for a grant under the Principal Act relating to the grant year that commenced on 1 July 1977 or an earlier grant year shall be submitted before 28 February 1979, or within such further time as the Export Development Grants Board allows.
(2) Notwithstanding the amendments made by this Act, regulations made after the commencement of this section may—
(a) declare an authority or association, within the meaning of the Principal Act, to be a prescribed body within the meaning of that Act for the purposes of the grant year that commenced on 1 July 1977 or an earlier grant year; or
(b) declare a country or external Territory to be a market for the purposes of the application of the Principal Act in relation to the grant year that commenced on 1 July 1977.
