Bounty (Textile Yarns) Amendment Act 1990

No. 69 of 1990

An Act to amend the Bounty (Textile Yarns) Act 1981, and for related purposes

[Assented to 16 June 1990]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Bounty (Textile Yarns) Amendment Act 1990.

(2) In this Act, “Principal Act” means the Bounty (Textile Yarns) Act 19811.

Commencement

2. This Act commences 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 “and of capitalisation grants in place of such bounty”.

Insertion of new Part heading

4. Before section 1 of the Principal Act the following Part heading is inserted:

“PART 1—PRELIMINARY”.

Short title

5. Section 1 of the Principal Act is amended by inserting “and Capitalisation Grants” after “Bounty”.

General administration of Act

6. Section 1a of the Principal Act is amended by adding at the end “other than Part 3”.

Interpretation

7. Section 2 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘Authority’ means the Textiles, Clothing and Footwear Development Authority established by section 5 of the Textiles, Clothing and Footwear Development Authority Act 1988;

‘capitalisation grant’ means a grant made by the Minister under section 21e;

‘TCF industries’ has the same meaning as in the Textiles, Clothing and Footwear Development Authority Act 1988;

‘TCF products’ has the same meaning as in the Textiles, Clothing and Footwear Development Authority Act 1988;

Insertion of new Part heading

8. After section 3a of the Principal Act the following Part heading is inserted:

“PART 2—BOUNTIES”.

Specification of bounty

9. Section 5 of the Principal Act is amended:

(a) by inserting in subsection (5) at the end of paragraph (a) “and”;

(b) by inserting after paragraph (b) of that subsection the following new paragraph:

“(ba) the production was carried out, in its entirety, using assets that are not included in the identified assets register referred to in section 21g; and”.

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 (l), 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”.

Appropriations

11. Section 22 of the Principal Act is amended by omitting “is payable” and substituting “, advances on account of bounty and capitalisation grants are payable”.

Consequential amendment

12. Section 7 of the Textiles, Clothing and Footwear Development Authority Act 1988 is amended by inserting after paragraph (d) the following paragraphs:

“(da) to consider applications for capitalisation grants under Part 3 of the Bounty (Textile Yarns) Act 1981, to report to the Minister in relation to such applications and, where the Minister decides to make such a grant, to enter into an agreement for and on behalf of the Commonwealth with the applicant for the grant;

“(db) to establish and maintain an identified assets register in accordance with section 21g of the Bounty (Textile Yarns) Act 1981;”.

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NOTE

1. No. 103, 1981, as amended. For previous amendments, see Nos. 26 and 80, 1982; No. 39, 1983; Nos. 10 and 119, 1986; No. 54, 1987; and Nos. 28 and 145, 1988.

[Minister’s second reading speech made in—

House of Representatives on 14 May 1990

Senate on 28 May 1990]