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Australian Trade Commission Act 1985

  • - C2005C00194
  • In force - Superseded Version
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Act No. 186 of 1985 as amended, taking into account amendments up to Act No. 8 of 2005
An Act to establish an Australian Trade Commission for the purpose of facilitating and promoting trade between Australia and foreign countries, and for related purposes
Administered by: Foreign Affairs and Trade
Registered 11 Mar 2005
Start Date 22 Feb 2005
End Date 30 Jun 2006
Table of contents.
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Part I—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Interpretation
4 Extension to Territories
5 Application of Act outside Australia
6 Application of Export Market Development Grants Act 1997 not affected
6A Application of the Criminal Code
Part II—Establishment and functions of Australian Trade Commission
7 Australian Trade Commission
8 Functions of Commission
9 Duties
10 Power of Minister to give directions
Part III—Establishment and functions of Australian Trade Commission Board
11 Establishment of Australian Trade Commission Board
12 Membership of Board
13 Functions of Board in relation to Commission
14 Committees
15 Remuneration and allowances of appointed members
16 Acting Chairperson and acting Deputy Chairperson
17 Acting member
18 Leave of absence of appointed members
19 Resignation of appointed members
20 Termination of appointment of appointed members
21 Meetings of Board
Part IV—General powers and duties of Commission
23 General powers of Commission
24 Commission may establish offices in Australia and in foreign countries
25 Trading powers of Commission
26 Powers in relation to carrying out overseas development projects
27 Commission may provide advice to promote trade
28 Powers in relation to provision of services and performance of work
29 Commission may form, or join in the formation of, companies, partnerships, consortiums or other business associations
30 Export market development schemes
Part VI—Staff
Division 1—Managing Director and Deputy Managing Director
51 Appointment of Managing Director and Deputy Managing Director
52 Appointments to be full‑time and at Board’s pleasure
53 Duties of Managing Director and Deputy Managing Director
54 Remuneration and allowances
55 Managing Director and Deputy Managing Director not to engage in paid employment
56 Acting Managing Director and acting Deputy Managing Director
57 Leave of absence
58 Resignation
Division 2—Other staff
60 Employment of other staff
61 Location and designation of persons employed
62 Application of Merit Protection (Australian Government Employees) Act 1984 to persons employed
Part VII—Corporate plans and annual operational plans
Division 1—Corporate plans
64 Commission to develop corporate plans
65 Approval of corporate plans
66 Variation of corporate plans
Division 2—Annual operational plans
67 Managing Director to develop annual operational plans
68 Approval of annual operational plans
69 Variation of annual operational plans at request of Commission
Part VIII—Finance
71 Money of the Commission
72 Application of money of Commission other than money standing to credit of Fund
78 Borrowings from Commonwealth
79 Borrowings otherwise than from Commonwealth
80 Commission may give security
81 Borrowings not otherwise permitted
82 Guarantee by Commonwealth
83 Exemption from taxation
88 Assessed net commercial risk in relation to business of Commission relating to overseas development projects
89 Extra matters to be included in annual report
Part IX—Miscellaneous
90 Delegations by Minister and Managing Director
91 Delegation by Commission
92 Annual Reports
94 Secrecy
95 Offences
96 Validity of contracts, guarantees and agreements
97 Regulations
4 Application of amendments

Australian Trade Commission Act 1985

Act No. 186 of 1985 as amended

This compilation was prepared on 4 March 2005
taking into account amendments up to Act No. 8 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation...................................................................................... 1

4............ Extension to Territories...................................................................... 5

5............ Application of Act outside Australia................................................. 6

6............ Application of Export Market Development Grants Act 1997 not affected            6

6A......... Application of the Criminal Code...................................................... 6

Part II—Establishment and functions of Australian Trade Commission 7

7............ Australian Trade Commission............................................................ 7

8............ Functions of Commission................................................................... 7

9............ Duties................................................................................................. 8

10.......... Power of Minister to give directions.................................................. 9

Part III—Establishment and functions of Australian Trade Commission Board    11

11.......... Establishment of Australian Trade Commission Board................... 11

12.......... Membership of Board...................................................................... 11

13.......... Functions of Board in relation to Commission................................. 12

14.......... Committees....................................................................................... 12

15.......... Remuneration and allowances of appointed members...................... 13

16.......... Acting Chairperson and acting Deputy Chairperson....................... 13

17.......... Acting member.................................................................................. 15

18.......... Leave of absence of appointed members.......................................... 16

19.......... Resignation of appointed members.................................................. 16

20.......... Termination of appointment of appointed members....................... 16

21.......... Meetings of Board............................................................................ 17

Part IV—General powers and duties of Commission                                       19

23.......... General powers of Commission....................................................... 19

24.......... Commission may establish offices in Australia and in foreign countries 19

25.......... Trading powers of Commission....................................................... 20

26.......... Powers in relation to carrying out overseas development projects.. 20

27.......... Commission may provide advice to promote trade.......................... 21

28.......... Powers in relation to provision of services and performance of work 21

29.......... Commission may form, or join in the formation of, companies, partnerships, consortiums or other business associations....................................................................................... 22

30.......... Export market development schemes............................................... 22

Part VI—Staff                                                                                                                         25

Division 1—Managing Director and Deputy Managing Director       25

51.......... Appointment of Managing Director and Deputy Managing Director 25

52.......... Appointments to be full-time and at Board’s pleasure.................... 25

53.......... Duties of Managing Director and Deputy Managing Director......... 25

54.......... Remuneration and allowances........................................................... 26

55.......... Managing Director and Deputy Managing Director not to engage in paid employment         26

56.......... Acting Managing Director and acting Deputy Managing Director... 26

57.......... Leave of absence............................................................................... 28

58.......... Resignation....................................................................................... 28

Division 2—Other staff                                                                                              29

60.......... Employment of other staff............................................................... 29

61.......... Location and designation of persons employed............................... 29

62.......... Application of Merit Protection (Australian Government Employees) Act 1984 to persons employed               29

Part VII—Corporate plans and annual operational plans                              30

Division 1—Corporate plans                                                                                  30

64.......... Commission to develop corporate plans.......................................... 30

65.......... Approval of corporate plans............................................................ 30

66.......... Variation of corporate plans............................................................. 31

Division 2—Annual operational plans                                                                32

67.......... Managing Director to develop annual operational plans.................. 32

68.......... Approval of annual operational plans.............................................. 32

69.......... Variation of annual operational plans at request of Commission..... 33

Part VIII—Finance                                                                                                               34

71.......... Money of the Commission............................................................... 34

72.......... Application of money of Commission other than money standing to credit of Fund             34

78.......... Borrowings from Commonwealth.................................................... 35

79.......... Borrowings otherwise than from Commonwealth............................ 35

80.......... Commission may give security......................................................... 36

81.......... Borrowings not otherwise permitted................................................ 36

82.......... Guarantee by Commonwealth.......................................................... 36

83.......... Exemption from taxation.................................................................. 36

88.......... Assessed net commercial risk in relation to business of Commission relating to overseas development projects  37

89.......... Extra matters to be included in annual report................................... 38

Part IX—Miscellaneous                                                                                                    39

90.......... Delegations by Minister and Managing Director............................. 39

91.......... Delegation by Commission............................................................... 39

92.......... Annual Reports................................................................................ 40

94.......... Secrecy.............................................................................................. 41

95.......... Offences............................................................................................ 42

96.......... Validity of contracts, guarantees and agreements............................. 43

97.......... Regulations....................................................................................... 43

Notes                                                                                                                                            45


An Act to establish an Australian Trade Commission for the purpose of facilitating and promoting trade between Australia and foreign countries, and for related purposes

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Australian Trade Commission Act 1985.

2  Commencement [see Note 1]

             (1)  Sections 1, 2, 3 and 97 shall come into operation on the day on which this Act receives the Royal Assent.

             (2)  The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

acting Chairperson means an acting Chairperson appointed under subsection 16(1).

acting Deputy Chairperson means an acting Deputy Chairperson appointed under subsection 16(2).

acting Deputy Managing Director means an acting Deputy Managing Director appointed under subsection 56(2).

acting Managing Director means a person acting as Managing Director of the Commission under subsection 56(1).

acting member of the Board or acting member means:

                     (a)  an acting Chairperson;

                     (b)  an acting Deputy Chairperson; or

                     (c)  a person appointed under subsection 17(1).

annual operational plan means a plan developed by the Managing Director in accordance with section 67 and includes such a plan as varied under section 69.

appoint includes re-appoint.

appointed member of the Board or appointed member means a member other than the Managing Director and the Managing Director of EFIC.

Australia includes the Territories to which this Act extends.

Australian authority means an authority or body (including a body corporate and a corporation sole):

                     (a)  established for a purpose of the Commonwealth by, or in accordance with the provisions of, a law of the Commonwealth or of the Australian Capital Territory; or

                     (b)  established for a purpose of a State by, or in accordance with the provisions of, a law of the State;

and includes an Agency (within the meaning of the Public Service Act 1999) and a Department of the Public Service of a State, but does not include the Commission.

Australian organisation means:

                     (a)  an Australian private organisation; or

                     (b)  an Australian authority.

Australian private organisation means:

                     (a)  a natural person;

                     (b)  a partnership, other than a partnership in the formation of which the Commission has joined, pursuant to section 29; or

                     (c)  a company, other than a Commission company, incorporated or formed in Australia;

carrying on business in Australia.

Board means the Australian Trade Commission Board established by section 11.

Chairperson means the Chairperson of the Board.

commencing day means the day fixed by Proclamation for the purposes of subsection 2(2).

Commission means the Australian Trade Commission established by section 7.

Commission company means a company formed by the Commission, or in the formation of which the Commission has joined, pursuant to section 29.

corporate plan means a plan developed by the Commission in accordance with section 64 and includes such a plan as varied in accordance with section 66.

Deputy Chairperson means the Deputy Chairperson of the Board.

Deputy Managing Director means the Deputy Managing Director of the Commission.

Department of State, in relation to the Northern Territory, means a Department of that Territory.

development project means a project by way of:

                     (a)  the construction of works;

                     (b)  the provision of services;

                     (c)  the design, supply or installation of equipment or facilities; or

                     (d)  the testing in the field of agricultural practices;

and includes any necessary preliminary studies, investigations or planning.

EFIC means the Export Finance and Insurance Corporation.

export contract means a contract:

                     (a)  for the export by an Australian organisation of goods manufactured or produced wholly or partly in Australia; or

                     (b)  for the rendering (whether inside or outside Australia) of a service to a person outside Australia by an Australian organisation.

Managing Director means the Managing Director of the Commission.

member means a member of the Board and includes the Chairperson.

overseas development project means a development project that is to be carried out in a foreign country.

overseas engaged employee means:

                     (a)  a person who is engaged by the Commission, outside Australia, to assist in the performance, outside Australia, of the functions of the Commission; or

                     (b)  a Trade Commissioner Office employee who is deemed, by virtue of section 10 of the Transitional Provisions Act, to have been employed by the Commission.

securities includes stocks, debentures, debenture stocks, notes, bonds, promissory notes, bills of exchange and similar instruments or documents.

State includes the Northern Territory.

Transitional Provisions Act means the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985.

             (2)  In this Act, unless the contrary intention appears:

                     (a)  a reference to an act or thing done by the Commission in association with an Australian organisation is a reference to an act or thing done:

                              (i)  by the Commission; or

                             (ii)  by a Commission company;

                            as a member of a partnership, consortium or business association formed with an Australian organisation; and

                     (b)  a reference to dealing with securities includes a reference to:

                              (i)  creating, executing, entering into, drawing, making, accepting, endorsing, issuing, discounting, selling, purchasing or re-selling securities;

                             (ii)  creating, selling, purchasing or re-selling rights or options in respect of securities; and

                            (iii)  entering into agreements or other arrangements relating to securities; and

                     (d)  a reference to trade between Australia and foreign countries includes a reference to any transaction (including the rendering of a service) involving a consideration in money or money’s worth accruing from a person in the course of carrying on business or other activities outside Australia to a person carrying on business or other activities in Australia.

             (3)  In this Act, unless the contrary intention appears:

                     (a)  a reference to the business or affairs of the Commission under this Act includes a reference to the business or affairs of the Commission:

                              (i)  in the performance of its functions in so far as they relate to the administration of the Export Market Development Grants Act 1997; and

                             (ii)  in the performance of any functions conferred on the Commission by any other Act; and

                     (b)  a reference to the functions, or to the powers, of the Commission under this Act includes a reference to any functions, or any powers, as the case may be, conferred on the Commission by the Export Market Development Grants Act 1997 or any other Act.

             (4)  Unless the contrary intention appears, a reference in this Act to the Export Market Development Grants Act 1997 includes a reference to the Export Market Development Grants Act 1974 to the extent that that Act continues to apply because of item 2 of Schedule 1 to the Export Market Development Grants (Repeal and Consequential Provisions) Act 1997.

4  Extension to Territories

             (1)  Subject to subsection (2), this Act extends to all the Territories.

             (2)  The Minister may, by notice published in the Gazette, declare that, on a day specified in the notice, this Act ceases to extend to an external Territory specified in the notice, and, where such a notice is published:

                     (a)  this Act does not, on or after that day, extend to the Territory so specified;

                     (b)  a reference in this Act to a Territory does not, on or after that day, include a reference to the Territory so specified; and

                     (c)  the Territory so specified shall, on and after that day, be deemed, for the purposes of this Act, to be a foreign country.

5  Application of Act outside Australia

                   This Act applies both within and outside Australia.

6  Application of Export Market Development Grants Act 1997 not affected

                   Nothing in section 4 or 5 shall be taken to affect the application of the Export Market Development Grants Act 1997.

6A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IIEstablishment and functions of Australian Trade Commission

  

7  Australian Trade Commission

             (1)  There is established by this Act a Commission by the name of the Australian Trade Commission.

             (2)  The Commission:

                     (a)  is a body corporate;

                     (b)  shall have a seal;

                     (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued.

Note:          The Commonwealth Authorities and Companies Act 1997 applies to the Commission. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

             (3)  The seal of the Commission shall be kept in such custody as the Board directs and shall not be used except as authorised by the Board.

             (4)  All courts, judges and persons acting judicially shall take judicial notice of the imprint of the seal of the Commission appearing on a document and shall presume that the document was duly sealed.

8  Functions of Commission

                   The functions of the Commission are:

                     (a)  to facilitate and encourage trade between Australia and foreign countries (in this section referred to as Australian export trade) by:

                              (i)  representing the trading and commercial interests of Australia in foreign countries;

                             (ii)  assisting, directly or indirectly, Australian organisations in trade negotiations;

                            (iii)  promoting, or participating in or co-ordinating projects to promote, Australian export trade;

                            (iv)  obtaining, and making available to Australian organisations, information relating to current or future opportunities for Australian export trade, including opportunities for involvement in overseas development projects;

                             (v)  supporting and facilitating investment in foreign countries, and facilitating investment in Australia, where that investment is likely to enhance opportunities for Australian export trade;

                            (vi)  carrying out, or assisting other persons to carry out, or participating with other persons in carrying out, in whole or in part, overseas development projects, in circumstances where that course of action will benefit Australian organisations;

                           (viii)  administering the Export Market Development Grants Act 1997;

                            (ix)  developing and administering schemes to provide assistance in the development of markets in foreign countries; and

                             (x)  facilitating access by persons to Departments of State of the Commonwealth or of a State and to instrumentalities established by or under a law of the Commonwealth or of a State where that access is likely to enhance opportunities for Australian export trade;

                     (b)  to do any other act or thing required by this Act or by any other Act to be done by the Commission; and

                     (c)  to act, outside Australia, as agent for Departments of State of the Commonwealth or for instrumentalities established by or under a law of the Commonwealth.

9  Duties

             (1)  The Commission shall perform its functions in such a manner as will best assist in the development of trade between Australia and foreign countries.

             (2)  In performing its functions, the Commission shall:

                     (a)  comply with any directions given to it under section 10; and

                     (b)  have regard to:

                              (i)  the desirability of improving and extending the range and accessibility of advice, assistance and financial support available (whether through the Commission or otherwise) to persons involved, or likely to be involved, either directly or indirectly, in trade between Australia and foreign countries;

                             (ii)  the need to provide its services as efficiently and economically as possible; and

                            (iii)  Australia’s obligations under international agreements.

10  Power of Minister to give directions

             (1)  The Minister may give to the Commission, in writing, such directions with respect to the performance of its functions, and the exercise of its powers, under this Act, as appear to the Minister to be necessary.

             (2)  Nothing in subsection (1) shall be construed:

                     (a)  as requiring the approval of the Minister to the entry by the Commission into a particular contract or other agreement or arrangement under this Act or to the giving by the Commission of any particular guarantee under this Act; or

                     (b)  as empowering the Minister to determine that the Commission shall or shall not enter into any particular contract or other agreement or arrangement or shall or shall not give any particular guarantee;

but the Commission shall not enter into a particular contract or other agreement or arrangement, or give a particular guarantee, contrary to a direction by the Minister under this section.

             (3)  Nothing in subsection (1) shall be construed as empowering the Minister to determine that the Commission should deal in a particular manner with a particular person, or with a particular claim or application for a grant or other benefit, under the Export Market Development Grants Act 1997 or under a scheme approved by the Minister under section 30 of this Act.

             (4)  A direction of the Minister under this section shall not operate so as to affect prejudicially an application under the Export Market Development Grants Act 1997 in relation to a grant year (within the meaning of that Act) that commenced before the day on which the direction was given.

             (5)  This section does not affect the operation of any other provision of this Act or of any other Act that confers a power upon the Minister to give directions to the Commission.


 

Part IIIEstablishment and functions of Australian Trade Commission Board

  

11  Establishment of Australian Trade Commission Board

                   There shall be an Australian Trade Commission Board.

12  Membership of Board

             (1)  The Board shall consist of not fewer than 10 nor more than 12 members, namely:

                     (a)  a Chairperson;

                     (b)  a Deputy Chairperson;

                     (c)  the Managing Director;

                    (ca)  the Managing Director of EFIC;

                     (d)  2 government members; and

                     (e)  such number of other members, being not fewer than 4 nor more than 6, as the Minister determines, in writing, to be appropriate.

          (1A)  Nothing in subsection (1) prevents the appointment of the Managing Director as Chairperson.

          (1B)  The Managing Director, and the Deputy Managing Director, of EFIC may not be appointed as Chairperson or Deputy Chairperson.

             (2)  A member of the Board, other than the Managing Director and the Managing Director of EFIC, shall be appointed by the Minister with effect from such day as the Minister specifies in the instrument of appointment of that member.

             (3)  Appointed members shall hold office as part-time members.

             (4)  An appointed member, other than a government member, holds office, subject to this Act, for such period, not exceeding 5 years, as the Minister specifies in the instrument of appointment of the member, but is eligible for re-appointment.

             (5)  A government member holds office, subject to this Act, during the Minister’s pleasure.

             (9)  Appointed members hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined, in writing, by the Minister.

           (10)  The exercise of a power or the performance of a function of the Board is not affected by reason of there being a vacancy or vacancies in the membership of the Board or by reason of the number of appointed members referred to in paragraph (1)(e) falling below 4 for not longer than 6 months.

13  Functions of Board in relation to Commission

             (1)  Subject to section 10, the Board shall determine the policy to be followed in the conduct of the affairs of the Commission under this Act.

             (2)  Without derogating, by implication, from the responsibility of the Managing Director for the day-to-day conduct of the affairs of the Commission under this Act, those affairs shall be conducted by the Board.

             (3)  All acts and things done in the name of, or on behalf of, the Commission by, or with the authority of, the Board or the Managing Director, for the purposes of this Act, of the Export Market Development Grants Act 1997 or of any other Act that confers functions on the Commission, shall be deemed to have been done by the Commission.

             (4)  A decision made by the Board in the exercise of its powers under this Act is not invalidated, and shall not be called in question, on the ground that the Board has limited the exercise of its discretion in a particular case by reference to any general policy determined by it in the performance of its functions.

14  Committees

             (1)  The Board may appoint a committee to assist the Board in relation to the performance of any of its functions.

             (2)  A committee appointed under this section shall consist of such persons, of whom at least one shall be a member, as the Board thinks fit.

             (3)  The Board may give such directions as it thinks fit with respect to the procedure to be followed at, and in relation to, meetings of a committee appointed under this section.

15  Remuneration and allowances of appointed members

             (1)  An appointed member shall be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  An appointed member shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

16  Acting Chairperson and acting Deputy Chairperson

             (1)  The Minister may appoint a person (other than the Managing Director, or the Deputy Managing Director, of EFIC) to act as Chairperson:

                     (a)  during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  The Minister may appoint a person (other than the Managing Director, or the Deputy Managing Director, of EFIC) to act as Deputy Chairperson:

                     (a)  during a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Deputy Chairperson is absent from duty or from Australia or is, for any other reason (including the reason that the Deputy Chairperson is Acting as Chairperson) unable to perform the functions of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (3)  An appointment of a person under subsection (1) or (2) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (4)  The Minister may:

                     (a)  determine the terms and conditions of appointment of a person acting as Chairperson or Deputy Chairperson, including, in the case of a person other than the Managing Director, terms and conditions relating to remuneration and allowances; and

                     (b)  at any time terminate such an appointment.

             (5)  Where a person is acting as Chairperson in accordance with paragraph (1)(b) or as Deputy Chairperson in accordance with paragraph (2)(b) and the office in which the person is acting becomes vacant while that person is so acting, that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

             (6)  The appointment of a person to act as Chairperson or as Deputy Chairperson ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

             (7)  While a person is acting as Chairperson, the person may exercise all the powers, and shall perform all the functions, of the Chairperson.

             (8)  While a person is acting as Deputy Chairperson, the person may exercise all the powers, and shall perform all the functions, of the Deputy Chairperson.

             (9)  The validity of anything done by, or in relation to, a person purporting to act under subsection (1) or (2) shall not be called in question on the ground that the occasion for the appointment of the person had not arisen, that there was a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.

17  Acting member

             (1)  The Minister may appoint a person to act as a member:

                     (a)  during a vacancy in the office of a member, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when a member is acting as Chairperson or Deputy Chairperson, is absent from Australia or is, for any other reason, unable to perform the duties of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (2)  An appointment to act as a member may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (3)  The Minister may:

                     (a)  determine the terms and conditions of appointment of a person appointed to act as a member, including, in the case of a person other than the Deputy Managing Director and the Deputy Managing Director of EFIC, terms and conditions relating to remuneration and allowances; and

                     (b)  terminate such an appointment at any time.

             (4)  Where a person is acting as a member in accordance with paragraph (1)(b), and the office in which the person is acting becomes vacant while that person is so acting, that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

             (5)  The appointment of a person to act as a member ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

             (6)  While a person is acting as a member, the person may exercise all the powers, and shall perform all the functions, of the member in whose office the person is acting.

             (7)  The validity of anything done by, or in relation to, a person purporting to act under subsection (1) shall not be called in question on the ground that the occasion for the appointment of the person had not arisen, that there was a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.

             (8)  A reference in this section to a member does not include a reference to the Chairperson, the Deputy Chairperson, the Managing Director or the Managing Director of EFIC.

18  Leave of absence of appointed members

             (1)  The Minister may grant leave of absence to the Chairperson on such terms and conditions as the Minister determines.

             (2)  The Chairperson may grant leave of absence to any other appointed member from attendance at a meeting.

19  Resignation of appointed members

                   An appointed member may resign from office by writing, signed by the member, and delivered to the Minister.

20  Termination of appointment of appointed members

             (1)  The Minister may terminate the appointment of an appointed member for misbehaviour or physical or mental incapacity.

             (2)  If:

                     (a)  an appointed member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;

                     (b)  the Chairperson is absent, except on leave granted by the Minister, from 3 consecutive meetings of the Board;

                     (c)  an appointed member other than the Chairperson is absent, except on leave granted by the Chairperson, from 3 consecutive meetings of the Board; or

                     (d)  an appointed member fails to comply with his or her obligations under section 27F or 27J of the Commonwealth Authorities and Companies Act 1997;

the Minister shall terminate the appointment of the appointed member concerned.

             (3)  The Minister may terminate the appointment of an appointed member if:

                     (a)  the Board has resolved that the appointment of the member be terminated; and

                     (b)  the resolution was passed at a meeting of the Board convened for the purpose of considering a motion that the appointment of the member be terminated; and

                     (c)  the resolution was passed by not less than a two-thirds majority of the members present, excluding the member to whom the resolution relates.

             (4)  The Minister may terminate the appointment of an appointed member if the Minister is satisfied:

                     (a)  that it is not in the best interests of the Commission that the member continue in office; or

                     (b)  that the performance of an appointed member has been unsatisfactory for a significant period.

21  Meetings of Board

             (1)  The Board shall hold such meetings as are necessary for the performance of its functions.

             (2)  The Minister, the Chairperson, or, if the Chairperson is unable (whether on account of illness or otherwise) to perform the functions of the office of Chairperson, the Deputy Chairperson, may at any time convene a meeting of the Board.

             (3)  The Chairperson or, if the Chairperson is unable (whether on account of illness or otherwise) to perform the functions of the office of Chairperson, the Deputy Chairperson, shall convene a meeting of the Board upon receipt of a request in writing from not less than 3 members.

             (4)  The Chairperson shall preside at all meetings of the Board at which the Chairperson is present.

             (5)  If the Chairperson is not present at a meeting of the Board the Deputy Chairperson shall, if present at the meeting, preside at the meeting.

             (6)  If neither the Chairperson nor the Deputy Chairperson is present at a meeting of the Board, the members present shall elect one of their number to preside at the meeting.

             (7)  At a meeting of the Board, a quorum shall consist of 5 members.

             (8)  Questions arising at a meeting of the Board shall be determined by a majority of the votes of the members present and voting.

             (9)  The member presiding at a meeting of the Board has a deliberative vote and, in the event of an equality of votes, also has a casting vote.


 

Part IVGeneral powers and duties of Commission

  

23  General powers of Commission

             (1)  Subject to this Act, the Commission has power to do all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions under this Act.

             (2)  The generality of subsection (1) shall not be taken to be limited, by implication, by any other provision of this Act, or of any other Act, that confers a power on the Commission.

             (3)  To the extent that is practicable to do so, the Commission shall ensure that the exercise at any time of the powers conferred on it by this Act or by the Export Market Development Grants Act 1997 is consistent with, and designed to give effect to, the provisions of any corporate plan, and of any annual operational plan, in force at that time.

             (4)  The powers of the Commission may be exercised in Australia or elsewhere.

             (5)  Sections 117 and 119 of the Lands Acquisition Act 1989 do not apply to the disposal of interests in land vested in the Australian Trade Commission.

24  Commission may establish offices in Australia and in foreign countries

                   The Commission may, in order to facilitate the more effective performance of its functions, establish and operate offices in such locations, whether in Australia or in foreign countries, as the Commission determines to be appropriate.

25  Trading powers of Commission

             (1)  Except as authorised by another provision of this Act, the Commission shall not engage, whether as principal or as agent and whether directly or indirectly:

                     (a)  in the acquisition, whether by purchase or otherwise, or in the sale or other disposal, of goods; or

                     (b)  in the provision of services for reward.

             (2)  Nothing in subsection (1) shall be construed as preventing:

                     (a)  the acquisition by the Commission, whether by purchase or otherwise, of goods in the day-to-day operations of the Commission; or

                     (b)  the acquisition by the Commission, whether by purchase or otherwise, of goods in the performance, in association with an Australian organisation, of any of the functions of the Commission;

or the sale or other disposal of such goods, whether or not such goods have been used for the purpose for which they were acquired.

             (3)  Nothing in subsection (1) shall be construed as preventing:

                     (a)  the provision for reward of services by the Commission in the day-to-day operations of the Commission; or

                     (b)  the provision for reward of services by the Commission in the performance, in association with an Australian organisation, of any of the functions of the Commission.

26  Powers in relation to carrying out overseas development projects

             (1)  The Commission may do all things necessary to facilitate the involvement of an Australian organisation, either directly or indirectly, and either alone or as a member of a partnership, consortium or other business association, (whether or not that partnership, consortium or business association involves the Commission) in a contract to carry out the whole, or a part, of an overseas development project.

             (2)  Subject to section 88, the Commission may, for the purposes of subsection (1), enter into a contract to carry out the whole, or a part, of an overseas development project, being a contract in pursuance of which the Commission arranges for an Australian organisation, acting on behalf of the Commission, to provide some or all of the services, or to carry out some or all of the work, required under that contract to be provided or carried out in relation to that project or that part of that project.

27  Commission may provide advice to promote trade

             (1)  The Commission may provide information or advice to any person in relation to any matter likely to assist in the development of trade between Australia and foreign countries.

             (2)  Without limiting the generality of subsection (1), the information or advice provided by the Commission may relate to:

                     (a)  financial arrangements available to support trade between Australia and foreign countries; and

                     (b)  opportunities for investment, either in Australia or elsewhere, where such investment will assist in the development of such trade.

28  Powers in relation to provision of services and performance of work

                   The Commission may, in connection with the performance of its functions under this Act:

                     (a)  enter into an arrangement or agreement with a person:

                              (i)  for that person to provide services to, or to perform other work for, the Commission;

                             (ii)  for that person, acting on behalf of the Commission, to provide services to, or perform other work for, an Australian organisation or a company partnership, consortium or other business association in the formation of which the Commission has joined; or

                            (iii)  for the Commission to provide services to that person;

                     (b)  advertise, in any manner that the Commission considers to be appropriate services that it is prepared to provide; or

                     (c)  charge such fees as the Commission considers appropriate with respect to the provision of services, or the performance of other work, by, or on behalf of, the Commission.

29  Commission may form, or join in the formation of, companies, partnerships, consortiums or other business associations

             (1)  Subject to this Act, the Commission may form a company, or enter into an agreement with another person to join in the formation of a company, partnership, consortium or other business association:

                     (a)  to carry out the whole or a part of an overseas development project; or

                     (b)  for any other purpose connected with, or incidental to, the performance of its functions.

             (2)  The Commission shall not exercise a power under subsection (1):

                     (a)  if the exercise of that power would not be consistent with the objectives of the Commission as set out in the corporate plan in force at the time when it is proposed to exercise that power; or

                     (b)  otherwise than on terms and conditions that are approved, in writing, by the Minister.

             (3)  Nothing in this section shall be taken to authorise the Commission to form a company, or to join in the formation of a company, partnership, consortium or other business association, for the purpose of entering into a contract to carry out the whole or a part of an overseas development project if, were that company, partnership, consortium or other business association to be formed, the entry into that contract would cause the assessed net commercial risk of the Commission in relation to its business in respect of overseas development projects to exceed the amount specified in, or prescribed for the purposes of, subsection 88(2).

             (4)  For the purposes of subsection (3), the assessed net commercial risk of the Commission in relation to its business in respect of overseas development projects shall be calculated in the same manner as for the purposes of section 88.

30  Export market development schemes

             (1)  In the performance of its functions in so far as they relate to the development and administration of a scheme (other than the scheme provided for in the Export Market Development Grants Act 1997) to provide assistance in the development of markets in foreign countries, the Commission may develop, in writing, a broad proposal for such a scheme, including:

                     (a)  the types of grant or other assistance proposed to be provided under the scheme;

                     (b)  the manner in which the scheme will assist in market development;

                     (c)  the proposed manner of operation of the scheme; and

                     (d)  the estimated cost, and the proposed duration, of the scheme;

and submit that proposal to the Minister for the Minister’s approval.

             (2)  If the Minister approves a proposal submitted under subsection (1), the Commission shall develop, in writing, detailed guidelines for the administration of the scheme to which the proposal relates and shall submit those guidelines to the Minister for approval.

             (3)  Where guidelines are submitted under subsection (2) and the Minister is of the opinion that the guidelines should be revised in some respect, the Minister may request the Commission to revise the guidelines and, where the Minister does so, the Minister shall include in that request a statement setting out the reasons for making that request.

             (4)  Upon the Commission’s receiving a request under subsection (3), the Commission shall consider the request and statement of reasons and shall make such revision of the guidelines as it considers appropriate and shall resubmit the guidelines, as so revised, to the Minister for approval.

             (5)  Where the Minister approves guidelines submitted under subsection (2) or resubmitted under subsection (4), the Minister shall specify a day, being the day on which the Minister gives that approval, or a later day, as the day with effect from which the guidelines take effect, and, on that day, the guidelines take effect accordingly.

             (6)  Where guidelines have been approved by the Minister under this section, the Commission shall take such steps as it considers necessary to publicise the scheme to which the guidelines relate and to implement the scheme in accordance with the guidelines.

             (7)  The Minister may, at any time, request the Commission to vary the guidelines for the administration of a scheme, whether or not the Commission has commenced to implement that scheme, and, upon receipt of such a request, the Commission shall, with the approval of the Minister, vary those guidelines accordingly.

             (8)  Where, at any time, the Commission considers that a variation to the guidelines for the administration of a scheme, whether or not it has commenced to implement that scheme, is desirable, the Commission may, with the approval of the Minister, vary those guidelines.

             (9)  Where the Minister approves a variation of guidelines under subsection (7) or (8), the Minister shall specify a day, being the day on which the Minister gives that approval or a later day, as the day with effect from which the variation takes effect.

           (10)  Where a variation of guidelines has been approved by the Minister under this section, the Commission shall take such steps as it considers necessary to publicise the variation of those guidelines.


 

Part VIStaff

Division 1Managing Director and Deputy Managing Director

51  Appointment of Managing Director and Deputy Managing Director

             (1)  There is to be a Managing Director of the Commission.

             (2)  The Managing Director is to be appointed by the Minister after the Minister has received a recommendation from the Board.

             (3)  The Minister may appoint a Deputy Managing Director after the Minister has received a recommendation from the Board.

             (5)  The Managing Director and Deputy Managing Director hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Board.

             (6)  An appointment under this section is not ineffective merely because of a defect or irregularity in relation to the appointment.

52  Appointments to be full-time and at Board’s pleasure

                   The Managing Director and Deputy Managing Director hold office:

                     (a)  on a full-time basis; and

                     (b)  at the pleasure of the Board.

53  Duties of Managing Director and Deputy Managing Director

             (1)  The affairs of the Commission shall, to the extent determined by the Board, be managed by the Managing Director.

             (2)  There are conferred upon the Managing Director by this section all powers necessary to enable the performance of the duty imposed upon the Managing Director by subsection (1).

             (3)  The Managing Director shall, in managing the affairs of the Commission, act in accordance with the policy of, and any directions given by, the Board.

             (4)  The Deputy Managing Director shall perform such duties as the Managing Director directs.

54  Remuneration and allowances

             (1)  The Managing Director and the Deputy Managing Director shall be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  The Managing Director and the Deputy Managing Director shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

55  Managing Director and Deputy Managing Director not to engage in paid employment

                   The Managing Director and the Deputy Managing Director shall not engage in paid employment outside the duties of their respective offices except with the approval of the Board.

56  Acting Managing Director and acting Deputy Managing Director

             (1)  At any time when there is a vacancy in the office of Managing Director (whether or not an appointment has previously been made to the office) or the Managing Director is absent from duty or from Australia or is, for any other reason, unable to perform the functions of Managing Director, the Deputy Managing Director or a person acting as Deputy Managing Director under subsection (2) shall act as Managing Director.

             (2)  The Board may appoint a person to act as Deputy Managing Director:

                     (a)  during a vacancy in the office of Deputy Managing Director, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Deputy Managing Director is absent from duty or from Australia or is, for any other reason (including the reason that the Deputy Managing Director is acting as Managing Director) unable to perform the functions of his or her office;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

             (3)  An appointment of a person under subsection (2) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

             (4)  The Board may:

                     (a)  determine the terms and conditions, including remuneration and allowances, if any, on which a person is to act under this section; and

                     (b)  terminate an appointment under this section at any time.

             (5)  Where a person is acting as Deputy Managing Director in accordance with paragraph (2)(b) and the office in which the person is acting becomes vacant while that person is so acting, that person may continue so to act until the Board otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

             (6)  The appointment of a person to act as Managing Director or Deputy Managing Director ceases to have effect if the person resigns by giving the Chairperson a signed notice of resignation.

             (7)  While a person is acting as Managing Director, the person may exercise all the powers, and shall perform all the functions, of the Managing Director.

             (8)  While a person is acting as Deputy Managing Director, the person may exercise all the powers, and shall perform all the functions, of the Deputy Managing Director.

             (9)  The validity of anything done by, or in relation to, a person purporting to act under subsection (1) or (2) shall not be called in question on the ground that:

                     (a)  in the case of a person purporting to act under subsection (1)—the occasion for the person to act had not arisen or had ceased; or

                     (b)  in the case of a person purporting to act under subsection (2)—the occasion for the appointment of the person had not arisen, there was a defect or irregularity in or in connection with the appointment of the person, the appointment had ceased to have effect or the occasion for the person to act had not arisen or had ceased.

57  Leave of absence

             (1)  The Managing Director and Deputy Managing Director have such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Board may grant the Managing Director or the Deputy Managing Director leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Board determines.

58  Resignation

                   The Managing Director or the Deputy Managing Director may resign from office by writing signed by the Managing Director or the Deputy Managing Director, as the case requires, and delivered to the Chairperson.


 

Division 2Other staff

60  Employment of other staff

             (1)  The Commission may employ such persons as the Board considers necessary in connection with the performance of the functions and duties, and the exercise of the powers, of the Commission.

             (2)  A person employed by the Commission under subsection (1) shall, subject to the other provisions of this Division, be employed on such terms and conditions as are determined in writing by the Commission.

61  Location and designation of persons employed

                   Without limiting the generality of subsection 60(2), a person employed by the Commission:

                     (a)  shall undertake his or her duties at such location as the Commission determines to be appropriate; and

                     (b)  shall have, in the performance of his or her duties, such a designation as the Commission determines to be appropriate.

62  Application of Merit Protection (Australian Government Employees) Act 1984 to persons employed

             (1)  The regulations may provide for the application of the provisions, or of specified provisions, of the Merit Protection (Australian Government Employees) Act 1984, subject to such modifications and adaptations (if any) as are prescribed, to and in relation to persons employed by the Commission under section 60.

             (2)  In subsection (1), modification includes the addition or omission of a provision or a substitution of a provision for another provision.

             (3)  A reference in subsection (1) to persons employed by the Commission under section 60 does not include a reference to overseas engaged employees.


 

Part VIICorporate plans and annual operational plans

Division 1Corporate plans

64  Commission to develop corporate plans

             (1)  The Commission shall develop, and prepare in written form, for each period determined in accordance with subsection (3), for the purpose of the more effective performance by the Commission of its functions under this Act, a corporate plan defining the principal objectives of the Commission in performing those functions during that period and giving a broad outline of the strategies to be pursued by the Commission to achieve those objectives.

             (2)  A corporate plan prepared in accordance with this Division shall, in addition to the matters referred to in subsection (1), specify, in broad terms, in relation to each financial year to which the plan relates, the resources that are to be applied during that financial year to achieve the objectives set out in that plan.

             (3)  The first corporate plan prepared in accordance with this Division shall be expressed to relate to the period of 3 years commencing on 1 July 1986 and ending on 30 June 1989 and each subsequent corporate plan shall be expressed to relate to the period of 3 years commencing on 1 July next following the end of the first year of the period to which the immediately preceding plan relates.

             (4)  Notwithstanding subsection 3(3), the reference in subsection (1) to the functions of the Commission under this Act does not include a reference to any functions conferred upon the Commission by the Export Expansion Grants Act 1978.

65  Approval of corporate plans

             (1)  Each corporate plan shall be submitted to the Minister for approval not less than 3 months, or such longer period as is prescribed, before the intended day of commencement of the period to which the corporate plan relates and shall not come into force until:

                     (a)  the day on which it is approved by the Minister; or

                     (b)  the day of commencement of the period to which it relates;

whichever is the later.

             (2)  Upon the coming into force of a corporate plan under subsection (1), any corporate plan that is already in force ceases to be in force.

66  Variation of corporate plans

             (1)  The Commission may, at any time, review a corporate plan, whether or not it has come into force, and consider whether a variation to the plan is necessary.

             (2)  The Commission may, with the approval of the Minister, vary a corporate plan.

             (3)  The Minister may, at any time, request the Commission to vary a corporate plan, whether or not it has come into force.

             (4)  Where the Minister requests a variation of a corporate plan, the Commission shall, with the approval of the Minister, vary that plan accordingly.

             (5)  Where a variation of a corporate plan is approved by the Minister after the plan has come into force, the plan as so varied shall continue in force on and after the day on which the variation is so approved.


 

Division 2Annual operational plans

67  Managing Director to develop annual operational plans

             (1)  The Managing Director shall develop, and prepare in written form, for each financial year, an annual operational plan that sets out the details of the strategies the Commission proposes to pursue, the programs the Commission proposes to carry out, and the resources the Commission proposes to allocate to each such program, during that financial year, in giving effect to the corporate plan that relates, or the intended corporate plan that will relate, to that financial year.

             (2)  The first annual operational plan prepared in accordance with this Division shall be expressed to relate to the financial year commencing on 1 July 1986.

68  Approval of annual operational plans

             (1)  Each annual operational plan prepared in accordance with section 67 shall be submitted by the Managing Director to the Commission for approval not less than 2 months, or such longer period as is prescribed, before the day of commencement of the financial year to which the plan relates and the plan shall not come into force until:

                     (a)  the day on which it is approved by the Commission; or

                     (b)  the first day of the financial year to which the plan relates;

whichever is the later.

             (2)  The Commission shall approve an annual operational plan submitted to it under subsection (1) unless the Commission is of the opinion that it is inconsistent with the provisions of the corporate plan that relates, or the intended corporate plan that will relate, to the period of 3 years commencing on the day of commencement of the financial year to which the annual operational plan relates.

69  Variation of annual operational plans at request of Commission

             (1)  The Commission may, at any time, request the Managing Director to vary an annual operational plan, whether or not it has come into force.

             (2)  Where the Commission requests a variation of an annual operational plan under subsection (1), the Managing Director shall, with the approval of the Commission, vary that plan accordingly.

             (3)  The Commission shall not request a variation of an annual operational plan unless it is satisfied that the annual operational plan as varied would be consistent with the provisions of the corporate plan that relates, or the intended corporate plan that will relate, to the period that includes, or will include, the financial year to which the annual operational plan relates.


 

Part VIIIFinance

  

71  Money of the Commission

             (1)  There are to be available to the Commission such amounts as are, from time to time, appropriated by the Parliament for the purposes of the Commission, including, but without limiting the generality of the foregoing, amounts for the purpose of making payments of grants under the Export Market Development Grants Act 1997.

             (2)  Money appropriated under subsection (1) is payable to the Commission at such times, and in such amounts, as the Minister for Finance determines in writing.

             (3)  In making a determination under subsection (2) in relation to money appropriated under subsection (1), the Minister for Finance shall have regard to any advice that is given to that Minister by the Commission in relation to its financial affairs.

             (4)  In subsection (1), the reference to the purposes of the Commission under this Act includes a reference to the purposes of the Commission in performing the functions conferred upon the Commission by the Export Expansion Grants Act 1978.

72  Application of money of Commission other than money standing to credit of Fund

                   The money of the Commission may be applied only:

                     (a)  in payment of any liabilities incurred by the Commission in or in connection with the performance of its functions or the exercise of its powers; or

                     (b)  in payment of remuneration or allowances payable under this Act; or

                     (c)  in payment of any expenses of an administrative nature incurred by the Commission in the performance of its functions or the exercise of its powers; or

                     (e)  in making investments that the Commission is authorised to make under section 18 of the Commonwealth Authorities and Companies Act 1997.

78  Borrowings from Commonwealth

                   The Minister for Finance may, on behalf of the Commonwealth, out of money appropriated by the Parliament for the purpose, lend money to the Commission on such terms and conditions as the Minister for Finance determines.

79  Borrowings otherwise than from Commonwealth

             (1)  The Commission may, with the approval of the Finance Minister:

                     (a)  borrow money otherwise than from the Commonwealth; or

                     (b)  raise money otherwise than by borrowing;

on such terms and conditions as are specified in the approval.

             (2)  Without limiting the generality of subsection (1), the Commission may, under that subsection, borrow money, or raise money otherwise than by borrowing, by dealing with securities.

             (3)  An approval may be given under subsection (1) in relation to a particular transaction or in relation to a transaction included in a class of transactions.

             (4)  An approval under subsection (1) shall be given in writing.

             (5)  The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under this section to an official (within the meaning of the Financial Management and Accountability Act 1997). In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister.

             (6)  In this section:

Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997.

80  Commission may give security

             (1)  The Commission may give security over the whole or any part of its assets:

                     (a)  for the repayment by the Commission of money borrowed by virtue of section 78 or of paragraph 79(1)(a) and the payment by the Commission of interest on money so borrowed; or

                     (b)  for the payment by the Commission of money (including any interest) that the Commission is liable to pay in respect of money raised by virtue of paragraph 79(1)(b).

81  Borrowings not otherwise permitted

                   The Commission shall not borrow money or raise money otherwise than by borrowing, except in accordance with section 78 or 79.

82  Guarantee by Commonwealth

                   By force of this section, the Commonwealth guarantees the due payment by the Commission of money that is, or may at any time become, payable by the Commission to any person other than the Commonwealth.

83  Exemption from taxation

             (1)  Subject to subsection (3) the Commission is not subject to taxation under any law of the Commonwealth or of a State or Territory.

             (2)  The exemption from taxation conferred by subsection (1) does not extend to any company, partnership, consortium or other business association formed by the Commission, or in the formation of which the Commission has joined, pursuant to section 29, by reason only of the involvement of the Commission in its formation.

             (3)  The regulations may provide that subsection (1) does not apply in relation to a specified law of the Commonwealth or of a State or Territory or laws included in a specified class of laws of the Commonwealth or of a State or Territory.

             (4)  If regulations made by virtue of subsection (3) provide that subsection (1) does not apply in relation to the laws of the Commonwealth that impose income tax, the Commission shall be deemed not to be a public authority for the purposes of paragraph 23(d) of the Income Tax Assessment Act 1936 or section 50-25 of the Income Tax Assessment Act 1997.

             (5)  Securities issued by the Commission are not public securities or Commonwealth securities for the purposes of the Income Tax Assessment Act 1936.

88  Assessed net commercial risk in relation to business of Commission relating to overseas development projects

             (1)  In this section, assessed net commercial risk of the Commission in relation to its business in respect of overseas development projects means the maximum financial liability, as assessed by the Commission, that the Commission might be required to discharge in respect of contracts (in this section referred to as relevant contracts) to carry out overseas development projects, in whole or in part, being contracts that have been, or are to be, entered into:

                     (a)  by the Commission;

                     (b)  by a Commission company; or

                     (c)  by a company, partnership, consortium or other business association in the formation of which the Commission has joined.

             (2)  The Commission shall ensure, at all times, that the assessed net commercial risk of the Commission in relation to its business in respect of overseas development projects does not at any time exceed the prescribed amount.

             (3)  Without limiting the generality of subsection (2), the Commission shall make an assessment under subsection (1) of the assessed net commercial risk of the Commission in relation to its business in respect of overseas development projects whenever it is considering a proposal that is likely to result in a relevant contract being entered into by a party referred to in paragraph (1)(a), (b) or (c).

             (4)  In making an assessment for the purposes of subsection (1) of the maximum financial liability of the Commission that is referred to in that subsection, the Commission shall:

                     (a)  act in accordance with generally accepted commercial practice; and

                     (b)  assess the likelihood of the Commission being required to discharge liabilities in respect of each relevant contract and, if it considers that the Commission is not likely to be required to discharge liability in respect of any such contract, make appropriate allowance accordingly.

89  Extra matters to be included in annual report

                   The financial statements in an annual report on the Commission under section 9 of the Commonwealth Authorities and Companies Act 1997 must show separately the financial effect on the Commission’s operations of each direction that:

                     (a)  was given to the Commission by the Minister under subsection 10(1) of this Act; and

                     (b)  was in force for all or part of the year to which the report relates.


 

Part IXMiscellaneous

  

90  Delegations by Minister and Managing Director

             (1)  The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Minister, delegate to the Board all or any of the powers of the Minister:

                     (a)  under this Act other than this power of delegation or the Minister’s powers under sections 65 and 66; and

                     (b)  under the Export Market Development Grants Act 1997.

             (2)  The Managing Director may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Managing Director, delegate to the Deputy Managing Director or a person employed by the Commission all or any of the powers of the Managing Director under this Act other than this power of delegation.

             (3)  A power under this Act or under the Export Market Development Grants Act 1997 that is delegated under subsection (1) or (2), when exercised by the delegate, shall, for the purposes of this Act or the Export Market Development Grants Act 1997, as the case requires, be deemed to have been exercised by the person who gave the delegation.

             (4)  A delegation of a power by a person under this section does not prevent the exercise of that power by that person.

91  Delegation by Commission

             (1)  Subject to subsection (2), the Commission may, either generally or as otherwise provided in the instrument of delegation, by writing, delegate all or any of its powers and functions under this Act, other than this power of delegation, to:

                     (a)  a committee appointed under section 14;

                     (b)  the Managing Director or the Deputy Managing Director; or

                     (c)  any person employed by the Commission under section 60.

             (2)  The Minister may, if the Minister thinks it appropriate to do so, give directions to the Commission concerning the exercise of its power of delegation under subsection (1).

             (3)  A power or function that is delegated pursuant to subsection (1) when exercised or performed by the delegate, shall be deemed to have been exercised or performed by the Commission.

             (4)  A delegation of a power or a function by the Commission under this section does not prevent the exercise of that power or the performance of that function by the Commission.

92  Annual Reports

             (1)  The report of operations in the annual report on the Commission under section 9 of the Commonwealth Authorities and Companies Act 1997 must include information about the Commission’s operations under the Export Market Development Grants Act 1974, but not the Commission’s operations under the Export Expansion Grants Act 1978.

             (2)  The Commission shall include in each annual report referred to in subsection (1), particulars of all directions given by the Minister to the Commission under subsection 10(1) other than any direction that includes a statement to the effect that the direction is not to be disclosed for reasons of national security or because its disclosure would have an adverse effect on the financial interests or property interests of the Commonwealth or of an instrumentality of the Commonwealth.

             (3)  The Commission shall include in each annual report referred to in subsection (1):

                     (a)  a statement of the principal objectives of the Commission for the period to which the report relates; and

                     (b)  an assessment of the extent to which the Commission has achieved its principal objectives for that period.

94  Secrecy

             (1)  This section applies to a person who is or has been:

                     (a)  Chairperson, Deputy Chairperson, acting Chairperson or acting Deputy Chairperson;

                     (b)  any other appointed member of the Board, or an acting member of the Board appointed under subsection 17(1);

                     (c)  Managing Director, Deputy Managing Director, acting Managing Director or acting Deputy Managing Director; or

                     (d)  employed by the Commission under section 60.

             (2)  Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act:

                     (a)  make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first-mentioned person by reason of his or her employment; or

                     (b)  produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty:  $2,000 or imprisonment for 1 year, or both.

             (3)  Subsection (2) does not apply to the disclosure of information, or the production of a document, to the Minister, to the Secretary to the Department, or to an officer of the Department designated by the Secretary.

             (4)  Subsection (2) does not prevent the Commission from communicating, or making available to another person:

                     (b)  the following information relating to payments of grants authorised by the Commission under the Export Market Development Grants Act 1997 or the Export Market Development Grants Act 1974:

                              (i)  the name and address of a person to whom the Commission has authorised a payment;

                             (ii)  the amount of a grant to a person;

                            (iii)  the industry to which a grant relates; and

                     (c)  any information of a statistical nature relating to the making of grants under the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.

             (5)  A person to whom this section applies shall not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of, or of a prosecution for an offence against, this Act, the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.

             (6)  A person to whom information is communicated under subsection (3) and an employee or other person under that person’s control are, in respect of that information, entitled to rights and privileges, and subject to obligations and liabilities, under subsections (2) and (5) as if they were persons referred to in subsection (1).

             (7)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes to permit access to.

95  Offences

             (1)  A person shall not, in or in connection with a claim under a contract of insurance or a contract of indemnity entered into, or a guarantee given, under this Act, make a statement that the person knows to be false or misleading in a material particular or present a document that, to the person’s knowledge, contains information that is false or misleading in a material particular.

Penalty: 

                     (a)  in the case of a corporation—$50,000; or

                     (b)  in any other case—$10,000 or imprisonment for 5 years, or both.

             (3)  For the purposes of the application of this section in relation to a corporation, but without prejudice to the liability of any person other than the corporation:

                     (a)  a statement made, or a document presented, by a person acting on behalf of the corporation shall be deemed to be made or presented by the corporation; and

                     (b)  the knowledge of any person employed by, or concerned in the management of, the corporation shall be deemed to be knowledge of the corporation.

             (4)  An offence against subsection (1) is an indictable offence.

             (5)  Notwithstanding that an offence against subsection (1) is expressed to be an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

             (6)  Where, in accordance with subsection (5), a court of summary jurisdiction convicts a person of an offence against subsection (1), the penalty that the court may impose is:

                     (a)  in the case of a corporation—$10,000; or

                     (b)  in any other case—$2,000 or imprisonment for 1 year, or both.

96  Validity of contracts, guarantees and agreements

                   Without prejudice to the duty of the Commission to comply with the provisions of this Act and to observe the limits of its powers under this Act, a contract or other agreement entered into, or a guarantee given, by the Commission is not invalidated by reason of a provision of this Act not having been complied with by the Commission in relation to that contract or other agreement, or that guarantee, as the case may be, or by reason of its not being within those limits.

97  Regulations

                   The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and in particular:

                     (d)  prescribing penalties, not exceeding a fine of $500, for offences against the regulations.


Notes to the Australian Trade Commission Act 1985

Note 1

The Australian Trade Commission Act 1985 as shown in this compilation comprises Act No. 186, 1985 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 24 November 2000 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Australian Trade Commission Act 1985

186, 1985

16 Dec 1985

Ss. 1–3 and 97: Royal Assent
Remainder: 6 Jan 1986 (see Gazette 1985, No. S551)

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1986

168, 1986

18 Dec 1986

S. 3: Royal Assent (a)

S. 5(1)

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

S. 3: Royal Assent (b)

S. 5(1)

Lands Acquisition (Repeal and Consequential Provisions) Act 1989

21, 1989

20 Apr 1989

9 June 1989 (see s. 2 and Gazette 1989, No. S185)

Industry, Technology and Commerce Legislation Amendment Act 1989

91, 1989

27 June 1989

S. 15: 14 Dec 1988
Part 4 (ss. 20–25): 30 Nov 1989 (see Gazette 1989, No. S371)
Part 5 (ss. 26, 27): 1 Aug 1989 (see Gazette 1989, No. S262)
Remainder: Royal Assent

Banking Legislation Amendment Act 1989

129, 1989

7 Nov 1989

Part 1 (ss. 1, 2), ss. 3, 26, 29–33, 35, 38 and 40: Royal Assent
S. 23(1): 4 May 1989
S. 39: 23 Jan 1988
Remainder: 28 Dec 1989 (see Gazette 1989, No. S383)

Industrial Relations Legislation Amendment Act 1991

122, 1991

27 June 1991

Ss. 4(1), 10(b) and 15–20: 1 Dec 1988
Ss. 28(b)–(e), 30 and 31: 10 Dec 1991 (see Gazette 1991, No. S332)
Remainder: Royal Assent

S. 31(2)

Export Finance and Insurance Corporation (Transitional Provisions and Consequential Amendments) Act 1991

149, 1991

21 Oct 1991

1 Nov 1991

Ss. 48 and 49

Prime Minister and Cabinet Legislation Amendment Act 1991

199, 1991

18 Dec 1991

18 Dec 1991

Australian Trade Commission Amendment Act 1994

127, 1994

18 Oct 1994

18 Oct 1994

Export Market Development Grants (Repeal and Consequential Provisions) Act 1997

44, 1997

22 Apr 1997

1 July 1997

Tax Law Improvement Act 1997

121, 1997

8 July 1997

Schedule 3 (item 65): (c)

Audit (Transitional and Miscellaneous) Amendment Act 1997

152, 1997

24 Oct 1997

Schedule 2 (items 533–541): 1 Jan 1998 (see Gazette 1997, No. GN49) (d)

Export Market Development Grants Legislation Amendment Act 1999

100, 1999

16 July 1999

16 July 1999

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 270–272): 5 Dec 1999 (see Gazette 1999, No. S584) (e)

Corporate Law Economic Reform Program Act 1999

156, 1999

24 Nov 1999

Schedule 10 (item 61): 13 Mar 2000 (see Gazette 2000, No. S114) (f)

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001

35, 2001

28 Apr 2001

26 May 2001

S. 4 [see Table A]

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001

159, 2001

1 Oct 2001

29 Oct 2001

Sch. 1 (item 97) [see Table A]

Financial Framework Legislation Amendment Act 2005

8, 2005

22 Feb 2005

Schedule 2 (items 70, 71, 174): Royal Assent

Sch. 2 (item 174) [see Table A]

 


(a)     The Australian Trade Commission Act 1985 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(b)    The Australian Trade Commission Act 1985 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(c)     The Australian Trade Commission Act 1985 was amended by Schedule 3 (item 65) only of the Tax Law Improvement Act 1997, subsections 2(2) and (3) of which provide as follows:

                 (2)   Schedule 1 commences on 1 July 1997 immediately after the commencement of the Income Tax Assessment Act 1997.

                 (3)   Each of the other Schedules (except Schedule 12) commences immediately after the commencement of the immediately preceding Schedule.

(d)     The Australian Trade Commission Act 1985 was amended by Schedule 2 (items 533–541) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:

                 (2)   Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.

(e)     The Australian Trade Commission Act 1985 was amended by Schedule 1 (items 270–272) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(f)      The Australian Trade Commission Act 1985 was amended by Schedule 10 (item 61) only of the Corporate Law Economic Reform Program Act 1999, subsection 2(2)(c) of which provides as follows:

                 (2)   The following provisions commence on a day or days to be fixed by Proclamation:

                              (c)   the items in Schedules 10, 11 and 12.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 3......................................

am. No. 129, 1989; No. 149, 1991; Nos. 44 and 152; 1997; No. 146, 1999

Heading to s. 6....................

am. No. 44, 1997

S. 6......................................

am. No. 44 1997

S. 6A...................................

ad. No. 35, 2001

Part II

 

Note to s. 7(2).....................

ad. No. 152, 1997

S. 8......................................

am. No. 149, 1991; No. 44, 1997

S. 10....................................

am. No. 44, 1997

Part III

 

S. 12....................................

am. No. 141, 1987; No. 91, 1989; No. 149, 1991; No. 127, 1994

S. 13....................................

am. No. 44, 1997

Ss. 15–17............................

am. No. 149, 1991

S. 20....................................

am. No. 149, 1991; No. 152, 1997; No. 156, 1999

S. 22....................................

rep. No. 152, 1997

Part IV

 

S. 23....................................

am. No. 21, 1989; No. 44, 1997

S. 30....................................

am. No. 44, 1997

Ss. 31, 32............................

rep. No. 149, 1991

Part V .................................

rep. No. 149, 1991

S. 33....................................

am. No. 168, 1986

 

rep. No. 149, 1991

Ss. 34–45............................

rep. No. 149, 1991

S. 46....................................

am. No. 168, 1986

 

rep. No. 149, 1991

Ss. 47–50............................

rep. No. 149, 1991

Part VI

 

Division 1

 

S. 51....................................

rs. No. 149, 1991

 

am. No. 159, 2001

S. 52....................................

rs. No. 149, 1991

S. 54....................................

am. No. 149, 1991

S. 56....................................

am. No. 149, 1991

S. 57....................................

rs. No. 122, 1991

 

am. No. 146, 1999

S. 58....................................

am. No. 149, 1991

S. 59....................................

am. No. 122, 1991

 

rep. No. 149, 1991

Division 2

 

S. 60....................................

am. No. 199, 1991

S. 63....................................

rep. No. 146, 1999

Part VII

 

Division 1

 

S. 64....................................

am. No. 149, 1991

Part VIII

 

S. 70....................................

rep. No. 149, 1991

S. 71....................................

am. No. 149, 1991; No. 44, 1997

S. 72....................................

am. No. 168, 1986; No. 149, 1991; No. 152, 1997

S. 73....................................

am. No. 168, 1986

 

rep. No. 149, 1991

Ss. 74, 75............................

rep. No. 149, 1991

Ss. 76, 77............................

rep. No. 152, 1997

S. 79....................................

am. No. 8, 2005

S. 80....................................

am. No. 149, 1991

S. 83....................................

am. No. 121, 1997

Ss. 84–87............................

rep. No. 149, 1991

S. 89....................................

rs. No. 152, 1997

Part IX

 

S. 90....................................

am. No. 149, 1991; No. 44, 1997

S. 92....................................

am. Nos. 44 and 152, 1997

S. 93....................................

rep. No. 152, 1997

S. 94....................................

am. No. 149, 1991; No. 44, 1997; No. 100, 1999

S. 95....................................

am. No. 137, 2000

S. 97....................................

am. No. 149, 1991

 


Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre-commencement offences

(1)        Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)        Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre-commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first-mentioned provision is amended by this Schedule;

the amendment of the first-mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001 (No. 35, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001)

Schedule 1

97  Application of amendments

The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item.

 

Financial Framework Legislation Amendment Act 2005 (No. 8, 2005)

Schedule 2

174  Saving provision—provisions that formerly referred to the Treasurer

(1)        Any thing that:

                     (a)  was done by the Treasurer, or by a delegate of the Treasurer, before the commencing time under an affected provision; and

                     (b)  was in effect immediately before the commencing time;

continues to have effect after the commencing time as if it had been done by the Finance Minister under the affected provision.

(2)        In this item:

affected provision means a provision that is amended by an item in this Schedule so as to replace references to the Treasurer with references to the Finance Minister.

commencing time means the day this Act receives the Royal Assent.

Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997.