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Ships (Capital Grants) Act 1987

Act No. 74 of 1987 as amended, taking into account amendments up to Act No. 109 of 2006
An Act to provide for the payment of grants in respect of certain ships
Administered by: DOTARS
Registered 11 Oct 2006
Start Date 27 Sep 2006
End Date 15 Mar 2007
Date of repeal 15 Mar 2007
Repealed by Repealed by Act No. 8 of 2007

Ships (Capital Grants) Act 1987

Act No. 74 of 1987 as amended

[Note: This Act was repealed by Act No. 8 of 2007 on 15 March 2007]

This compilation was prepared on 9 October 2006
taking into account amendments up to Act No. 109 of 2006

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............ Hire purchase agreements deemed purchases etc............................... 4

5............ Extensively modified.......................................................................... 4

6............ Categories of ships............................................................................. 4

7............ Maximum crew numbers.................................................................... 5

7A......... Application of the Criminal Code...................................................... 5

Part II—Grants                                                                                                                        7

8............ Specification of grant.......................................................................... 7

9............ Grants not payable............................................................................. 9

10.......... Grants payable in respect of purchases etc. outside Australia........ 10

11.......... Amount of grant............................................................................... 10

Part III—Category certificates                                                                                     12

12.......... Application for category certificates................................................ 12

13.......... Review of decisions about category certificates............................... 13

14.......... Variation of category certificates...................................................... 14

Part IV—Payment of grants                                                                                            16

15.......... Claims for payment of grant............................................................. 16

16.......... Variation of inadequate claim............................................................ 16

17.......... Variation of excessive claim.............................................................. 17

18.......... Determination of prices and costs.................................................... 18

19.......... Valuation of ships etc....................................................................... 21

20.......... Cost of valuation.............................................................................. 21

Part V—Crews of ships                                                                                                      23

21.......... Evidence of crewing.......................................................................... 23

22.......... Ships may be operated above maximum crew number in certain circumstances etc.               24

23.......... Ship may be operated with trainees................................................. 26

24.......... Crew may be fewer than maximum crew number............................. 26

25.......... Manning orders................................................................................. 26

Part VI—Repayment of grants                                                                                     27

26.......... Repayment of grants........................................................................ 27

Part VII—Administration                                                                                                 28

27.......... Fees................................................................................................... 28

28.......... Forms................................................................................................ 28

29.......... Power to require persons to answer questions etc........................... 29

30.......... Offences............................................................................................ 29

31.......... Time for prosecutions...................................................................... 30

32.......... Recovery of grant on conviction....................................................... 30

33.......... Recovery of money owing................................................................ 31

Part VIII—Miscellaneous                                                                                                32

34.......... Return for Parliament....................................................................... 32

35.......... Transfer of ships between shipowners............................................ 32

36.......... Delegation......................................................................................... 32

37.......... Uniformity........................................................................................ 33

38.......... Application for review..................................................................... 33

39.......... Statement to accompany notice of decisions.................................... 34

40.......... Saving of other laws.......................................................................... 35

41.......... Appropriation.................................................................................. 35

42.......... Regulations....................................................................................... 35

Notes                                                                                                                                            37


An Act to provide for the payment of grants in respect of certain ships

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Ships (Capital Grants) Act 1987.

2  Commencement [see Note 1]

                   This Act commences on the day on which it receives the Royal Assent.

3  Interpretation

In this Act, unless the contrary intention appears:

approved form means a form approved by the Secretary in writing.

Australia includes the Territories.

Australian resident means a natural person who is, or but for being at sea would be, ordinarily resident in Australia.

Australian trading ship means a trading ship registered in Australia.

category means a category of ships under section 6.

category certificate means a certificate given under section 12 or subsection 13(2) and, in relation to a ship, means such a certificate given for the ship.

commissioned, in relation to a ship, means put into service or held in reserve for the purpose of being put into service.

conversion, in relation to a ship, means the conversion because of which subsection 8(3) applies to the ship.

crew, in relation to a ship, includes the master and officers of the ship.

domestic voyage means a voyage between:

                     (a)  places in Australia; or

                     (b)  Australia and a place that is not in Australia or in a foreign country.

eligible ship means:

                     (a)  a tanker that could be operated on a foreign voyage with a crew of not more than 18;

                     (b)  a tanker that could be operated on a domestic voyage with a crew of not more than 18;

                     (c)  a non‑tanker that could be operated on a voyage with a crew of not more than 18; or

                     (d)  a ship that:

                              (i)  could, on a particular voyage, fall into a regulation category; and

                             (ii)  could be operated on the voyage with a crew whose number does not exceed the maximum crew number for the voyage;

but does not include a ship less than 60 metres in length.

extensively modified, in relation to a ship, has the meaning given by section 5.

foreign voyage means a voyage other than a domestic voyage.

grant means a grant under this Act.

grant year means a period of 12 months commencing on 1 April.

ineligible ship means a ship other than an eligible ship.

maximum crew number, in relation to a ship’s voyage, means the maximum crew number for the voyage under section 7.

non‑tanker means a ship other than a tanker, but does not include a ship that could not be a trading ship.

purchase, in relation to a ship, includes the meaning given by section 4.

registered in Australia, in relation to a ship, means registered under the Shipping Registration Act 1981.

regulation category means a category created by regulations referred to in subsection 6(2).

Secretary means the Secretary to the Department.

ship means any kind of vessel.

                     (a)  that is used; or

                     (b)  that is in the course of construction and is intended to be used;

wholly or primarily in navigation by water, however propelled or moved, and includes:

                     (c)  a barge, lighter or other floating vessel; or

                     (d)  an air‑cushion vehicle, or similar craft; or

                     (e)  an off‑shore industry mobile unit (within the meaning of the Navigation Act 1912);

but does not include an off‑shore industry mobile unit (within the meaning of that Act) that is not self‑propelled.

shipowner means a person who owns or intends to own a ship, but does not include a person who is exempt from income tax imposed by a law of the Commonwealth.

statutory category means a category created by subsection 6(1).

tanker means a ship that is constructed or adapted, or that is in the course of construction or adaptation, primarily to carry oil or other liquids in bulk in its cargo spaces.

trading ship means a ship that is used in relation to any business or commercial activity and, without limiting the generality of the foregoing, includes a ship that is used wholly or principally for the carriage of cargo for hire or reward, but does not include:

                    (aa)  a ship that is used wholly for the carriage of passengers, whether for reward or otherwise;

                     (a)  a ship that is used wholly or principally for the provision of services to ships or shipping, whether for reward or otherwise;

                     (b)  a ship that is, within the meaning of the Navigation Act 1912, a fishing vessel, an inland waterways vessel, a pleasure craft, an off‑shore industry vessel or an off‑shore industry mobile unit; or

                     (c)  a ship that is used wholly or principally within a harbour within the meaning of the Navigation Act 1912.

used, in relation to a ship, includes held in reserve for use.

4  Hire purchase agreements deemed purchases etc.

                   Where:

                     (a)  a shipowner enters into an agreement with the owner of a ship to lease the ship; and

                     (b)  the agreement provides that, if certain payments under the agreement are made, the shipowner will become the owner of the ship;

then, for the purposes of this Act:

                     (c)  the shipowner shall be deemed to purchase the ship on entering into the agreement; and

                     (d)  if the shipowner loses the right under the agreement to become the owner of the ship—the shipowner shall be deemed to cease to be its owner on losing that right.

5  Extensively modified

                   For the purposes of this Act, a shipowner shall not be taken to have converted an ineligible ship into an eligible ship by extensively modifying it unless the Secretary is satisfied that the modification:

                     (a)  involved extensive changes to the hull, or to the propulsion machinery or other equipment, of the ship; and

                     (b)  significantly changed the operational characteristics of the ship.

6  Categories of ships

             (1)  For the purposes of this Act:

                     (a)  tankers on foreign voyages constitute a category of ships;

                     (b)  tankers on domestic voyages constitute a category of ships; and

                     (c)  non‑tankers on voyages constitute a category of ships.

             (2)  The regulations may declare that, for the purposes of this Act:

                     (a)  a specified ship on specified voyages constitutes a category of ships;

                     (b)  ships in a specified class of ships on specified voyages constitute a category of ships;

                     (c)  a specified ship on voyages constitutes a category of ships; or

                     (d)  ships in a specified class of ships on voyages constitute a category of ships.

             (3)  The power of the Governor‑General to make regulations referred to in subsection (2) in relation to a ship or ships shall be exercised only on advice of the Executive Council, being advice that has had regard to:

                     (a)  the differences between the ship or ships and other ships;

                     (b)  the differences between the use or operation of the ship or ships and other ships;

                     (c)  the voyages likely to be made by the ship or ships; and

                     (d)  the frequency with which the ship or ships will make particular voyages.

             (4)  For the purposes of this Act, where a ship on a voyage falls into a regulation category, the ship shall not be taken to fall into a statutory category while on that voyage.

7  Maximum crew numbers

             (1)  Subject to subsection (2), for the purposes of this Act:

                     (a)  the maximum crew number for a ship’s voyage on which it falls into a category referred to in paragraph 6(1)(a) or (c) is 18;

                     (b)  the maximum crew number for a ship’s voyage on which it falls into the category referred to in paragraph 6(1)(b) is 18; and

                     (c)  the maximum crew number for a ship’s voyage on which it falls into another category is the number prescribed in relation to the category by the regulations.

             (2)  Where under section 22, the Secretary approves the operation of a ship on a voyage with a crew of a particular number, the maximum crew number for that voyage of the ship is that number.

7A  Application of the Criminal Code

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

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


 

Part IIGrants

  

8  Specification of grant

             (1)  Subject to this section and section 9, where:

                     (a)  a shipowner purchases an eligible ship that has never been commissioned; and

                     (b)  the ship becomes an Australian trading ship;

a grant is payable to the shipowner in respect of the ship.

             (2)  Subject to this section and section 9, where:

                     (a)  a shipowner purchases an eligible ship that has been commissioned but:

                              (i)  whose construction was completed within the 5 years immediately before the purchase; and

                             (ii)  which was not registered in Australia before the purchase; and

                     (b)  the ship becomes an Australian trading ship;

a grant is payable to the shipowner in respect of the ship.

             (3)  Subject to this section and section 9, where:

                     (a)  a shipowner converts an ineligible ship registered in Australia into an eligible ship by extensively modifying the ship; and

                     (b)  after the conversion, the ship is an Australian trading ship;

a grant is payable to the shipowner in respect of the ship.

             (4)  A grant is not payable under subsection (1), (2) or (3) to a shipowner in respect of the purchase or conversion of a ship unless:

                     (a)  there is a category certificate for the ship;

                     (b)  the shipowner has remained the ship’s owner at all times after the purchase or conversion;

                     (c)  the ship is in commission;

                     (d)  the ship has been an Australian trading ship at all times while it has been in commission after the purchase or conversion;

                     (e)  at least one crew has been engaged for the ship;

                      (f)  all members of the ship’s crew or crews after the purchase or conversion were Australian residents or members in accordance with an approval under subsection 22(7); and

                     (g)  the number of each crew of the ship engaged after the purchase or conversion for a voyage of the ship did not exceed the maximum crew number for the voyage.

             (5)  A grant is not payable under subsection (1), (2) or (3) to a shipowner in respect of a ship unless the shipowner intends to:

                     (a)  remain the owner of the ship for at least the 5 years beginning on the payment of the grant; and

                     (b)  do all things reasonable to ensure that:

                              (i)  while the ship is in commission in those years, the ship will be an Australian trading ship;

                             (ii)  while the ship is owned by the shipowner, the ship does not make a voyage so that it falls into a category not specified in its category certificate;

                            (iii)  while the ship is owned by the shipowner, all members of its crews will be Australian residents or members in accordance with an approval under subsection 22(7); and

                            (iv)  when the ship is on a voyage while owned by the shipowner, the number of its crew will not exceed the maximum crew number for the voyage.

             (6)  Subject to this section and section 9, where:

                     (a)  a shipowner modifies a trading ship that was registered in Australia at all times during the period starting on 1 June 1989 and ending on completion of the modification; and

                     (b)  the modification consists of or includes structural or equipment changes to the ship solely or principally for the purpose of enabling the ship to be operated with a reduced number of crew;

a grant is payable to the shipowner in respect of the ship.

             (7)  A grant is not payable under subsection (6) to a shipowner in respect of a ship unless:

                     (a)  the shipowner has remained the ship’s owner at all times since the modification; and

                     (b)  the ship is in commission; and

                     (c)  the ship has been an Australian trading ship at all times while it has been in commission after the modification; and

                     (d)  at least one crew has been engaged for the ship after the modification and the number of that crew or those crews is, in the Secretary’s opinion, consistent with the strategy of the program known as the Shipping Industry Reform Program; and

                     (e)  the shipowner intends:

                              (i)  to remain the owner of the ship for at least 3 years after the payment of the grant; and

                             (ii)  to operate the ship with a crew of a number consistent with the program referred to in paragraph (d).

9  Grants not payable

             (1)  A grant is not payable under subsection 8 (1) to a shipowner in respect of a ship if:

                     (a)  the construction, or shipowner’s purchase, of the ship was arranged by the shipowner before 22 December 1986; or

                     (b)  the ship is delivered to the shipowner, or registered in Australia, before 1 July 1987 or after 30 June 1996.

             (2)  A grant is not payable under subsection 8(2) to a shipowner in respect of a ship if:

                     (a)  the shipowner’s purchase of the ship was arranged by the shipowner before 22 December 1986; or

                     (b)  the ship is delivered to the shipowner, or registered in Australia, before 1 July 1987 or after 30 June 1990.

             (3)  A grant is not payable under subsection 8(3) to a shipowner in respect of a ship if:

                     (a)  the ship’s conversion was arranged before 22 December 1986; or

                     (b)  after that conversion, the ship is delivered to the shipowner before 1 July 1987 or after 30 June 1992.

             (4)  A grant is not payable under section 8 in respect of a ship if any grant has previously been paid under section 8 in respect of the ship.

             (5)  A grant is not payable to a shipowner in relation to the purchase of a ship if another person:

                     (a)  arranged the construction or purchase of the ship before
22 December 1986; or

                     (b)  received delivery of the ship before 1 July 1987;

unless the Secretary is satisfied that there has not been an arrangement between any persons for the purpose of the payment of a grant that, but for the arrangement, would not have been payable.

             (6)  A grant is not payable under subsection 8(3) to a shipowner in relation to the conversion of a ship if another person arranged the conversion of the ship before 22 December 1986, unless the Secretary is satisfied that there has not been an arrangement between any persons for the purpose of the payment of a grant that, but for the arrangement, would not have been payable under subsection 8(3).

             (7)  A grant is not payable under subsection 8(6) to a shipowner in relation to the modification of a ship if the modification is completed after 30 June 1992.

10  Grants payable in respect of purchases etc. outside Australia

             (1)  A grant may be payable under section 8 in respect of a ship notwithstanding that the ship was constructed outside Australia.

             (2)  A grant may be payable under subsection 8(1) or (2) in relation to the purchase of a ship notwithstanding that the purchase took place outside Australia.

             (3)  A grant may be payable under subsection 8(3) in relation to the conversion of a ship notwithstanding that the conversion was carried out outside Australia.

             (4)  A grant may be payable under subsection 8(6) in relation to the modification of a ship even if the modification was carried out outside Australia.

11  Amount of grant

             (1)  The grant payable to a shipowner under subsection 8(1) or (2) in respect of a ship is an amount equal to 7% of the ship’s purchase price paid by the shipowner.

             (2)  The grant payable under subsection 8(3) in respect of a ship is an amount equal to 7% of the cost of the ship’s conversion.

             (3)  The grant payable under subsection 8(6) in respect of a ship is an amount equal to 7% of the cost of the structural or equipment changes concerned that are of a kind referred to in paragraph (b) of that subsection.


 

Part IIICategory certificates

  

12  Application for category certificates

             (1)  Where a person proposes to make a claim for a grant in respect of a ship, the person may, at any time after particulars of the ship are known (whether or not the construction of the ship has begun) lodge with the Secretary an application for a category certificate for the ship.

             (2)  An application in relation to a ship shall:

                     (a)  be in accordance with the appropriate approved form; and

                     (b)  include:

                              (i)  such information relating to how the ship is likely to be used while it is owned by the applicant; and

                             (ii)  such other information;

                            as is required by the form; and

                     (d)  be signed and witnessed as required by section 28.

          (2A)  An application in relation to a ship may specify a category or categories in which, in the applicant’s opinion, the ship will fall while it is owned by the applicant.

             (3)  As soon as practicable after the lodgment of an application in relation to a ship, the Secretary shall, after examining the application and causing such inquiries as the Secretary considers necessary to be made:

                     (a)  if the Secretary is satisfied that the application complies with subsection (2)—give a category certificate for the ship specifying the category or categories into which, in the Secretary’s opinion (having regard to the information included in the form), the ship could fall while it is owned by the applicant; or

                     (b)  if the Secretary is not so satisfied—refuse to give a category certificate for the ship.

             (4)  Where the Secretary, in relation to an application, refuses to give a category certificate, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.

             (5)  Where the Secretary, in relation to an application, gives a category certificate but does not specify in the certificate a category specified in the application, the Secretary shall give the applicant particulars in writing of the reasons for not specifying the category in the certificate.

13  Review of decisions about category certificates

             (1)  Where, on an application under section 12, the Secretary refuses to give a category certificate, the applicant may, within 28 days after the giving of the notice of the refusal, lodge an application in writing with the Secretary for the reconsideration of the first‑mentioned application setting out reasons for the reconsideration.

             (2)  As soon as practicable after the lodgment of an application under subsection (1) for the reconsideration of an application under section 12 in relation to a ship, the Secretary shall, after so reconsidering the application under section 12, considering the application under subsection (1) and making such inquiries as the Secretary considers necessary:

                     (a)  if the Secretary is satisfied that the reconsidered application complies with subsection 12(2) and that, while the ship is owned by the applicant, it could fall into a category or categories specified in the reconsidered application—give a category certificate for the ship specifying that category or categories; or

                     (b)  if the Secretary is not so satisfied—refuse to give a category certificate for the ship.

             (3)  Where the Secretary, in relation to an application reconsidered under subsection (2), refuses to give a category certificate, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.

             (4)  Where the Secretary, in relation to an application reconsidered under subsection (2), gives a category certificate but does not specify in the certificate a category specified in the application, the Secretary shall give the applicant particulars in writing of the reasons for not specifying the category in the certificate.

             (5)  The making of an application under subsection (1) for the reconsideration of an application under section 12 for a category certificate for a ship does not prevent the making of a further application under that section for such a certificate.

             (6)  Where:

                     (a)  a category certificate is given under section 12 or subsection (2); and

                     (b)  the certificate does not specify a category or categories specified in the application for the certificate;

the applicant may, within 28 days after the giving of the certificate, lodge with the Secretary an application in writing for the insertion in the certificate of the unspecified category or categories setting out the reasons for the insertion.

             (7)  As soon as practicable after the lodgment of an application under subsection (6) in relation to a ship, the Secretary shall, after considering the application and making such inquiries as the Secretary considers necessary:

                     (a)  if the Secretary is satisfied that, while the ship is owned by the applicant, it could fall into a category or categories specified in the application—insert the category or categories in the ship’s category certificate; or

                     (b)  if the Secretary is not satisfied that, while the ship is owned by the applicant, it could fall into a category or categories specified in the application—refuse to so insert the category or categories.

             (8)  Where the Secretary, in relation to an application under subsection (6), refuses to insert a category or categories in a ship’s category certificate, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.

14  Variation of category certificates

             (1)  Where:

                     (a)  a category certificate for a ship is in force; and

                     (b)  the shipowner who owns the ship wishes the ship to make a voyage that, if made, would cause the ship to fall into a category not specified in the certificate;

the shipowner may lodge with the Secretary an application in writing for the insertion in the certificate of the category.

             (2)  An application in relation to a category certificate shall:

                     (a)  be in accordance with the appropriate approved form;

                     (b)  include such information as is required by the form;

                     (c)  specify the category which the applicant wishes inserted in the certificate; and

                     (d)  be signed and witnessed as required by section 28.

             (3)  As soon as practicable after the lodgment of an application in relation to a ship, the Secretary shall, after examining the application and making such inquiries as the Secretary considers necessary:

                     (a)  if the Secretary is satisfied that the application complies with subsection (2) and that, while the ship is owned by the applicant, it could fall into the category specified in the application—insert the category in the ship’s category certificate; or

                     (b)  if the Secretary is not so satisfied—refuse to so insert the category.

             (4)  Where the Secretary, in relation to an application, refuses to insert a category in a category certificate, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.


 

Part IVPayment of grants

  

15  Claims for payment of grant

             (1)  A person who claims to be entitled to be paid a grant may lodge with the Secretary a claim for payment to the person of that grant.

             (2)  A claim by a person for a grant shall:

                     (a)  be in accordance with the appropriate approved form;

                     (b)  include such information as is required by the form;

                     (c)  contain such statements of intention by the person as would enable the grant to be paid; and

                     (d)  be signed and witnessed as required by section 28.

             (3)  As soon as practicable after the lodgment of a claim in respect of the ship, the Secretary shall, after examining the claim and causing such inquiries as the Secretary considers necessary to be made:

                     (a)  if the Secretary is satisfied that the claim complies with subsection (2) and that the claimant is otherwise entitled to be paid an amount of grant in respect of the ship—approve, in writing, payment of the amount; or

                     (b)  if the Secretary is not so satisfied—refuse to approve payment of a grant in respect of the ship.

             (4)  Where the Secretary, in relation to a claim, refuses to approve payment of a grant, the Secretary shall give the claimant notice in writing of the refusal setting out the reasons for it.

16  Variation of inadequate claim

             (1)  Where a person who has lodged a claim under section 15 (whether or not the claim has been dealt with under subsection 15(3)) considers that the claim was, because of an inadvertent error, a claim for an amount of grant in respect of a ship that was less than the amount of the grant that the person was entitled to claim in respect of the ship, the person may lodge a claim for payment to the person of the difference between the 2 amounts.

             (2)  A claim under subsection (1) in relation to a grant shall:

                     (a)  be in accordance with the appropriate approved form;

                     (b)  include such information as is required by the form;

                     (c)  be signed and witnessed as required by section 28; and

                     (d)  be lodged with the Secretary within 3 months after the claim for the grant.

             (3)  Where a claim under subsection (1) relates to a claim under section 15 that has not been dealt with under subsection 15(3), the 2 claims shall be dealt with under section 15 as if they were one claim under section 15.

             (4)  As soon as practicable after the lodgment of a claim under subsection (1) to which subsection (3) does not apply, the Secretary shall, after examining the claim and causing such inquiries as the Secretary considers necessary to be made:

                     (a)  if the Secretary is satisfied that the claim complies with subsection (2) and that the claimant is otherwise entitled to be paid an additional amount of grant in respect of the ship to which the claim relates—approve, in writing, payment of the additional amount; or

                     (b)  if the Secretary is not so satisfied—refuse to approve payment of an additional amount of grant in respect of that ship.

             (5)  Where the Secretary, in relation to a claim under subsection (1), refuses to approve payment of an additional amount of grant, the Secretary shall give the claimant notice in writing of the refusal setting out the reasons for it.

17  Variation of excessive claim

             (1)  If:

                     (a)  a person has lodged a claim under section 15 (whether or not the claim has been dealt with under subsection 15(3)); and

                     (b)  the person knows that the claim is for an amount, in respect of the ship, that exceeds the amount of grant that the person was entitled to claim in respect of that ship by more than $100;

the person must, within 28 days after discovering the excess, lodge an acknowledgment that complies with subsection (2) of this section.

Penalty: 

                     (a)  in the case of a natural person—$1,000 or imprisonment for 6 months, or both; or

                     (b)  in the case of a body corporate—$5,000.

             (2)  An acknowledgment by a person under subsection (1) shall:

                     (a)  be in accordance with the appropriate approved form;

                     (b)  include such information as is required by the form;

                     (c)  be signed and witnessed as required by section 28; and

                     (d)  be lodged with the Secretary.

             (3)  Where an acknowledgment relates to a claim under section 15 that has not been dealt with under subsection 15(3), the claim shall be dealt with under section 15 as if it had been amended in accordance with the acknowledgment.

             (4)  If the Secretary is satisfied (whether as a result of an examination of an acknowledgment or otherwise), that there has been an overpayment of a claim by more than $100, the Secretary must cause a written demand for repayment of an amount of the overpayment to be served on the claimant.

          (4A)  The written demand must, if there has not been an acknowledgment of the overpayment, set out the reason why the Secretary is of the view that there has been an overpayment.

          (4B)  The claimant becomes, on receipt of a written demand under subsection (4), liable to repay the amount demanded to the Commonwealth.

18  Determination of prices and costs

             (1)  In this section:

guidelines means guidelines determined by the Minister under subsection (8).

             (2)  The Secretary may, by signed writing, determine the amount that is, for the purposes of this Act, to be taken as the price paid for a ship by a shipowner who has made a claim for a grant under subsection 8(1) or (2) in relation to the ship if the Secretary thinks that the amount the shipowner claims was the price paid, or that was in fact the price paid, for the ship:

                     (a)  is incorrect; or

                     (b)  has been fixed in order to obtain an increase in the grant; or

                     (c)  is unduly higher than prices paid by other persons for comparable ships; or

                     (d)  has been increased because of the influence of a commercial, financial or other relationship between the shipowner and the person who sold the ship (other than a relationship created by the sale itself); or

                     (e)  is an unreasonable price because of a prescribed reason; or

                      (f)  is excessive having regard to the guidelines.

             (3)  In determining the amount that is to be taken as the price paid for the ship, the Secretary:

                     (a)  must have regard to the guidelines; and

                     (b)  may have regard to:

                              (i)  the prices of comparable ships; and

                             (ii)  any valuation of the ship made under section 19; and

                            (iii)  such other matters as the Secretary thinks appropriate.

             (4)  The Secretary may, by signed writing, determine the amount that is, for the purposes of this Act, to be taken as the cost of converting a ship in relation to which the shipowner has made a claim for a grant under subsection 8(3) if the Secretary thinks that the amount the shipowner claims was, or that was in fact, the cost of converting the ship:

                     (a)  is incorrect; or

                     (b)  has been fixed in order to obtain an increase in the grant; or

                     (c)  is unduly higher than costs incurred in relation to comparable conversions of comparable ships; or

                     (d)  has been increased because of the influence of a commercial, financial or other relationship between the shipowner and the person who carried out the conversion (other than a relationship created by the agreement to carry out the conversion); or

                     (e)  includes charges for work done that was not required to convert the ship from an ineligible ship into an eligible ship; or

                      (f)  is unreasonable because of a prescribed reason; or

                     (g)  is excessive having regard to the guidelines.

             (5)  In determining the amount that is to be taken as the cost of converting the ship, the Secretary:

                     (a)  must have regard to the guidelines; and

                     (b)  may have regard to:

                              (i)  the cost of comparable conversions of other ships; and

                             (ii)  the work required to convert the ship from an ineligible ship into an eligible ship; and

                            (iii)  any valuation of the cost of the conversion made under section 19; and

                            (iv)  such other matters as the Secretary thinks appropriate.

             (6)  The Secretary may, by signed writing, determine the amount that is, for the purposes of this Act, to be taken to be the cost of structural or equipment changes to a ship in relation to which the shipowner has made a claim for a grant under subsection 8(6) if the Secretary thinks that the amount the shipowner claims was, or that was in fact, the cost of the changes:

                     (a)  is incorrect; or

                     (b)  has been fixed in order to obtain an increase in the grant; or

                     (c)  is unduly higher than costs incurred in relation to comparable changes to comparable ships; or

                     (d)  has been increased because of the influence of a commercial, financial or other relationship between the shipowner and the person who carried out the changes (other than a relationship created by the agreement to carry out the changes); or

                     (e)  includes charges for:

                              (i)  structural or equipment changes that are not of a kind referred to in paragraph 8(6)(b); or

                             (ii)  other work that is not required as part of a modification of a kind in relation to which grant under subsection 8 (6) is payable; or

                      (f)  is unreasonable because of a prescribed reason; or

                     (g)  is excessive having regard to the guidelines.

             (7)  In determining the amount that is to be taken as the cost of structural or equipment changes to the ship, the Secretary:

                     (a)  must have regard to the guidelines; and

                     (b)  may have regard to:

                              (i)  the cost of comparable changes to other ships; and

                             (ii)  the work involved in the changes; and

                            (iii)  any valuation of the cost of the changes under section 19; and

                            (iv)  such other matters as the Secretary thinks appropriate.

             (8)  The Minister may, by legislative instrument, determine guidelines in relation to the following matters:

                     (a)  the circumstances in which an amount that is claimed was, or that was in fact, the price paid for a ship, the cost of converting a ship, or the cost of structural or equipment changes to a ship, is excessive;

                     (b)  the way in which the Secretary is, under this section, to determine the amount that is, for the purposes of this Act, to be taken as the price paid for a ship, the cost of converting a ship, or the cost of structural or equipment changes to a ship.

19  Valuation of ships etc.

                   Where the Secretary:

                     (a)  decides that, in the absence of further information, a grant is payable to a shipowner in relation to a claim in respect of a ship;

                     (b)  decides to make a determination under subsection 18(2), (4) or (6) in relation to the claim; and

                     (c)  considers it desirable to have the ship, the cost of converting the ship, or the cost of the structural or equipment changes to the ship, as the case may be, independently valued;

the Secretary may have the valuation carried out by a person who, in the opinion of the Secretary, is qualified to do so and would not be influenced in the valuation by a relationship with the Commonwealth or the shipowner.

20  Cost of valuation

             (1)  Where:

                     (a)  a grant becomes payable to a shipowner in respect of a ship;

                     (b)  the amount of the grant is related to a price or cost determined under section 18; and

                     (c)  the determination was made having regard to a valuation under section 19;

then:

                     (d)  the cost of the valuation is payable by the shipowner;

                     (e)  that cost may be deducted from the amount of the grant; and

                      (f)  where the cost is so deducted, the grant shall, notwithstanding the deduction, be deemed to have been paid in full.

             (2)  If:

                     (a)  a valuation under section 19 is made in relation to a claim for a grant; but

                     (b)  the grant does not become payable;

the Secretary shall inform the claimant of the cost of the valuation and, where the Secretary does so, the claimant is liable to pay the cost of the valuation to the Commonwealth.


 

Part VCrews of ships

  

21  Evidence of crewing

             (1)  Where:

                     (a)  a grant (other than a grant under subsection 8(6)) has been paid in respect of a ship;

                     (b)  the whole or part of the grant has not been repaid under section 26; and

                     (c)  on each voyage of the ship during a grant year or a part of a grant year ending not later than 5 years after the payment of the grant:

                              (i)  the number of the crew did not exceed the maximum crew number for the voyage; and

                             (ii)  all members of the ship’s crew were Australian residents or members in accordance with an approval under subsection 22(7);

the owner of the ship shall, in April following each such grant year or part of a grant year, lodge with the Secretary a certificate in the approved form certifying the matters referred to in paragraph (c).

             (2)  Where a person has lodged a certificate under subsection (1) in relation to the voyages of a ship, the person shall, if requested in writing by the Secretary to submit particulars of those voyages and of the crew of the ship on those voyages, comply with the request.

             (3)  Where a grant has been paid under subsection 8(6) in respect of a ship, the shipowner must, within one month after the end of:

                     (a)  the period of a year starting when the grant was paid; and

                     (b)  each of the next 2 years;

lodge a written report with the Secretary relating to the year.

             (4)  The report must:

                     (a)  be in the approved form; and

                     (b)  state whether or not the ship was operated at any time during the year concerned with a different number of crew from the number of the first crew engaged for the ship after the modification concerned; and

                     (c)  include such information relating to any period during which the ship was so operated with a different number of crew as is required by the form.

             (5)  In this section:

part of a grant year means:

                     (a)  the period beginning with the making of the grant and ending with the start of the first complete grant year after the making of the grant; and

                     (b)  the period beginning immediately after the end of the last complete grant year to end before the fifth anniversary of the making of the grant and ending on that fifth anniversary.

22  Ships may be operated above maximum crew number in certain circumstances etc.

             (1)  Where a shipowner who owns a ship for which there is a category certificate considers that special circumstances exist which require the ship to be operated on a voyage or voyages with a crew whose number is higher than the maximum crew number for the voyage or voyages under subsection 7(1), the shipowner may apply to the Secretary for approval for the operation of the ship on the voyage or voyages with a crew of that higher number.

             (2)  An application under subsection (1) shall:

                     (a)  specify the special circumstances because of which the application is made;

                     (b)  specify the voyage or voyages to which the application relates; and

                     (c)  specify the number of the crew with which the applicant wishes the ship to be operated on the voyage or voyages.

             (3)  As soon as practicable after the making of an application under subsection (1) in relation to a ship, the Secretary shall:

                     (a)  if the Secretary is satisfied that special circumstances exist which require the ship to be operated on a voyage or voyages specified in the application with a crew of the number specified in the application—approve the operation of the ship on the voyage or voyages with a crew of that number; or

                     (b)  if the Secretary is not so satisfied—refuse to approve such operation of the ship.

             (4)  Without limiting the generality of subsection (3), the Secretary may be satisfied that special circumstances referred to in that subsection apply in relation to a ship because of the recent construction or modification of the ship.

             (5)  Where a shipowner who owns a ship for which there is a category certificate considers that special circumstances exist which require the ship to be operated on a voyage or voyages with a crew all of whose members are not Australian residents, the shipowner may apply to the Secretary for approval for the operation of the ship on the voyage or voyages with such a crew.

             (6)  An application under subsection (5) shall:

                     (a)  specify the special circumstances because of which the application is made;

                     (b)  specify the voyage or voyages to which the application relates; and

                     (c)  specify the number of the members of the crew whom the applicant wishes to be persons other than Australian residents.

             (7)  As soon as practicable after the making of an application under subsection (5) in relation to a ship, the Secretary shall:

                     (a)  if the Secretary is satisfied that special circumstances exist which require the ship to be operated on a voyage or voyages specified in the application with a crew a number of whom specified in the application are not Australian residents—approve the operation of the ship on the voyage or voyages with such a crew; or

                     (b)  if the Secretary is not so satisfied—refuse to approve such operation of the ship.

             (8)  Without limiting the generality of subsection (7), the Secretary may be satisfied that special circumstances referred to in that subsection apply in relation to a ship’s voyage because:

                     (a)  a person possessing particular skills is required to be a member of the crew on the voyage; and

                     (b)  an Australian resident possessing those skills is not available to be engaged as a member of that crew.

             (9)  Where the Secretary, in relation to an application under subsection (1) or (5), refuses to approve the operation of a ship in accordance with the application, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.

23  Ship may be operated with trainees

                   Where, in accordance with conditions approved by the Secretary, a ship is operated with the assistance of persons who are training to be members of the crew of ships, those persons shall not be taken to be members of the crew of the ship for the purposes of this Act.

24  Crew may be fewer than maximum crew number

                   Nothing in this Act shall be read as prohibiting the operation of a ship on a voyage with a crew whose number is less than the maximum crew number for the voyage.

25  Manning orders

                   This Act applies notwithstanding:

                     (a)  any order under section 14 of the Navigation Act 1912; or

                     (b)  any manning notice within the meaning of former section 57AM of the Income Tax Assessment Act 1936.


 

Part VIRepayment of grants

  

26  Repayment of grants

             (1)  Where:

                     (a)  a shipowner has been paid a grant (other than a grant under subsection 8(6)) in respect of a ship; and

                     (b)  during the period of 5 years beginning on the payment:

                              (i)  the shipowner ceases to be the owner of the ship otherwise than because of a transfer in relation to which the Secretary has made a declaration under section 35; or

                             (ii)  the ship ceases to be an Australian trading ship;

the shipowner shall pay to the Commonwealth an amount that bears the same proportion to the amount of the grant as the number of unexpired months in that period bears to 60.

             (2)  Where:

                     (a)  a shipowner has been paid a grant (other than a grant under subsection 8(6)) in respect of a ship; and

                     (b)  while the shipowner owns the ship, the shipowner allows the ship:

                              (i)  to be operated by a crew all of whose members are not Australian residents or members in accordance with an approval under subsection 22(7);

                             (ii)  to make a voyage so that it falls into a category that is not specified in its category certificate; or

                            (iii)  to make a voyage when the number of its crew exceeds the maximum crew number for the voyage;

the shipowner shall repay to the Commonwealth the amount of the grant.

             (3)  For the purposes of subsection (2), a shipowner shall be taken to allow an event referred to in that subsection to occur if:

                     (a)  the event occurs; and

                     (b)  the shipowner has not taken all reasonable steps to prevent the event occurring.


 

Part VIIAdministration

  

27  Fees

             (1)  The regulations may prescribe fees to be paid in relation to applications or claims under this Act.

             (2)  A fee prescribed in relation to an application or claim shall be paid when the application or claim is made and, if the fee is not so paid, the application or claim shall be deemed not to be duly made.

28  Forms

             (1)  Where, under this Act, an application, claim or acknowledgment lodged by a person in accordance with an approved form is required to be signed and witnessed as required by this section, the form shall:

                     (a)  where the person is a natural person, be signed personally in the presence of a witness by:

                              (i)  the person; or

                             (ii)  another natural person authorised by the first‑mentioned person to sign forms under this Act on behalf of the first‑mentioned person;

                     (b)  where the person is a body corporate, be:

                              (i)  under the seal of the first‑mentioned person; or

                             (ii)  signed personally in the presence of a witness by a natural person authorised by the first‑mentioned person to sign forms under this Act on behalf of the first‑mentioned person; and

                     (c)  where the form is required to be signed by a natural person in the presence of a witness, state the name and address of the witness and contain a declaration signed by the witness stating that the form was signed in the presence of the witness.

             (2)  For the purposes of this section, a person shall be taken to have authorised another person to sign forms under this Act on behalf of the first‑mentioned person if, and only if, the first‑mentioned person has so authorised the other person in writing delivered to the Secretary, being writing:

                     (a)  where the first‑mentioned person is a natural person, that:

                              (i)  is signed personally in the presence of a witness by the first‑mentioned person; and

                             (ii)  states the name and address of the witness and contains a declaration signed by the witness stating that the writing was signed in the presence of the witness; or

                     (b)  where the first‑mentioned person is a body corporate—under the seal of the first‑mentioned person.

29  Power to require persons to answer questions etc.

             (1)  An officer of the Department authorised by the Secretary, in writing, to exercise powers under this section may, by notice signed by the officer, require a person whom the officer believes on reasonable grounds to be capable of giving information relevant to matters in respect of which particulars are required to be given under subsection 21(2), to attend before the officer at a reasonable time and place specified in the notice and there to answer questions, and to produce to the officer such documents and other records in relation to such of those matters as are referred to in the notice.

             (2)  A notice under subsection (1) requiring a person to produce a document or record shall set out the effect of section 137.2 of the Criminal Code.

             (4)  An officer referred to in subsection (1) may make and retain copies of, or take and retain extracts from, any documents or other records produced under this section.

30  Offences

             (3)  A person shall not fail:

                     (a)  to attend before an officer of the Department; or

                     (b)  to answer a question or produce a document or other record;

when so required under this Act.

Penalty: 

                     (a)  in the case of a natural person—$1,000 or imprisonment for 6 months, or both; or

                     (b)  in the case of a body corporate—$5,000.

             (4)  An offence under subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  Subsection (3) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

             (7)  A person must not be convicted of:

                     (a)  both an offence against section 135.2 of the Criminal Code and an offence against or arising out of subsection 17(1) of this Act; or

                     (b)  both an offence against section 135.2 of the Criminal Code and an offence against section 136.1, 137.1 or 137.2 of the Criminal Code;

in respect of the same claim for a grant.

             (8)  A reference in subsection (7) to a person being convicted of an offence includes a reference to an order being made under section 19B of the Crimes Act 1914 in relation to the person in respect of an offence.

31  Time for prosecutions

                   Notwithstanding anything in any other law, proceedings for an offence against this Act may be instituted within the period of 3 years after the commission of the offence.

32  Recovery of grant on conviction

             (1)  Where a person is convicted of an offence against subsection 17(1) of this Act or an offence against section 135.2, 136.1, 137.1 or 137.2 of the Criminal Code that relates to this Act, the court may, in addition to imposing a penalty, order the person to refund to the Commonwealth the amount of any grant wrongfully obtained by the person because of the commission of the offence.

             (2)  Where:

                     (a)  a court makes an order under subsection (1) ordering a person to refund to the Commonwealth the amount of any grant; and

                     (b)  the court has civil jurisdiction to the extent of the amount;

the order is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.

             (3)  Where:

                     (a)  a court makes an order under subsection (1) ordering a person to refund to the Commonwealth the amount of any grant; and

                     (b)  the court:

                              (i)  does not have civil jurisdiction; or

                             (ii)  has civil jurisdiction, otherwise than to the extent of the amount;

the proper officer of the court shall issue to the Secretary a certificate in the prescribed form containing the prescribed particulars.

             (4)  The certificate may, in the prescribed manner and subject to the prescribed conditions (if any), be registered in a court having civil jurisdiction to the extent of the amount ordered to be refunded to the Commonwealth.

             (5)  Upon registration under subsection (4), the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.

             (6)  The costs of registration of the certificate and other proceedings under this section shall, subject to the prescribed conditions (if any), be deemed to be payable under the certificate.

33  Recovery of money owing

                   Where, under subsection 17(4) or section 20 or 26, a person is liable to pay an amount to the Commonwealth, the Commonwealth may recover the amount as a debt due to the Commonwealth by action in any court of competent jurisdiction.


 

Part VIIIMiscellaneous

  

34  Return for Parliament

             (1)  The Secretary shall, as soon as practicable after the end of each financial year, give to the Minister a return setting forth:

                     (a)  the name and address of each person to whom a grant was paid in that financial year;

                     (b)  the amount of grant paid to each person in that financial year; and

                     (c)  such other particulars (if any) as are prescribed.

             (2)  The Minister shall cause a copy of the return to be laid before each House of the Parliament within 15 sitting days of that House after the return is received by the Minister.

35  Transfer of ships between shipowners

             (1)  Where:

                     (a)  a shipowner has been paid a grant in respect of a ship; and

                     (b)  the shipowner proposes to transfer the ownership of the ship to another shipowner;

the Secretary may, on the application of those shipowners, make a declaration in writing that, after the transfer, section 26 has effect in relation to the ship as if a reference in the section to the shipowner, other than the references in paragraph 26(1)(a) and 26(2)(a), were a reference to that second‑mentioned shipowner, and, if the Secretary makes such a declaration, it has effect accordingly.

             (2)  Where the Secretary, in relation to an application, refuses to make a declaration, the Secretary shall give the applicant notice in writing of the refusal setting out the reasons for it.

36  Delegation

             (1)  The Secretary may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Secretary, delegate to an SES employee or acting SES employee in the Department, all or any of the Secretary’s powers under this Act, other than this power of delegation.

             (2)  A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Secretary.

             (3)  A delegation under this section does not prevent the exercise of a power by the Secretary.

37  Uniformity

                   If any grant is bounty within the meaning of paragraph 51(iii) of the Constitution, a power conferred on the Governor‑General or the Secretary by this Act shall not be exercised in such a manner that that grant would not be uniform throughout the Commonwealth within the meaning of that paragraph.

38  Application for review

             (1)  Applications may be made to the Administrative Appeals Tribunal for a review of:

                     (a)  a decision of the Secretary for the purposes of section 5 that a ship has not been converted by being extensively modified;

                     (b)  a decision of the Secretary under subsection 13(2) refusing to give a category certificate;

                     (c)  a decision of the Secretary under subsection 13(7) refusing to insert a category;

                     (d)  a decision of the Secretary under subsection 14(3) refusing to insert a category;

                     (e)  a decision of the Secretary under section 15 approving payment of an amount of grant less than that claimed or refusing to approve payment of a grant;

                      (f)  a decision of the Secretary under subsection 16(4) approving payment of an additional amount less than that claimed or refusing to approve payment of an additional amount;

                     (g)  a decision of the Secretary under subsection 17(4) that there has been an overpayment;

                     (h)  a decision of the Secretary for the purposes of section 19;

                      (j)  a decision of the Secretary under subsection 22(3) refusing to approve the operation of a ship in accordance with an application;

                     (k)  a decision of the Secretary under subsection 22(7) refusing to approve the operation of a ship in accordance with an application; or

                    (m)  a decision of the Secretary under subsection 35(2) refusing to make a declaration.

             (2)  Without limiting section 43 of the Administrative Appeals Tribunal Act 1975, where the Administrative Appeals Tribunal is reviewing a decision referred to in paragraph (1)(e), (f) or (g) in relation to a ship, the Tribunal may:

                     (a)  if a determination under subsection 18(2), (4) or (6) has been made in relation to the ship—either:

                              (i)  set aside that determination; or

                             (ii)  set aside that determination and make a further determination under subsection 18(2), (4) or (6), as the case may be, in relation to the ship; or

                     (b)  if a determination under subsection 18(2), (4) or (6) has not been made in relation to the ship—make a determination under subsection 18(2), (4) or (6), as the case may be, in relation to the ship;

if it considers it appropriate to do so.

             (3)  In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

39  Statement to accompany notice of decisions

             (1)  Where the Secretary makes a decision of a kind referred to in subsection 38(1) and gives to a person whose interests are affected by the decision notice in writing of the making of the decision, that notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of the person or persons whose interests are affected by the decision.

             (2)  Any contravention of subsection (1) in relation to a decision does not affect the validity of the decision.

40  Saving of other laws

                   Without limiting section 25, this Act shall not be read and construed as being in derogation of, or in substitution for, the Navigation Act 1912 or any other law of the Commonwealth, or any law of a State, relating to the construction and seaworthiness of ships.

41  Appropriation

                   Grants are payable out of the Consolidated Revenue Fund which is appropriated accordingly.

42  Regulations

                   The Governor‑General may make regulations, not inconsistent with this Act, prescribing all 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.


Notes to the Ships (Capital Grants) Act 1987

Note 1

The Ships (Capital Grants) Act 1987 as shown in this compilation comprises Act No. 74, 1987 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

Ships (Capital Grants) Act 1987

74, 1987

5 June 1987

5 June 1987

 

Transport Legislation Amendment Act 1989

6, 1989

16 Mar 1989

Part III (ss. 6, 7):
1 Sept 1988 (a)

S. 7 (2)

Transport and Communications Legislation Amendment Act (No. 2) 1989

23, 1990

17 Jan 1990

Part 15 (ss. 54–65): Royal Assent (b)

S. 65

Transport and Communications Legislation Amendment Act 1990

11, 1991

21 Jan 1991

Part 10 (ss. 36, 37): Royal Assent (c)

Transport Legislation Amendment Act 1995

95, 1995

27 July 1995

S. 3 (Part K [items 1–6]) and s. 10: Royal Assent (d)

S. 10

Shipping Grants Legislation Act 1996

71, 1996

5 Dec 1996

Schedule 1 (items 1, 2): 1 July 1996
Remainder: Royal Assent

Sch. 1 (item 4)

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (item 818): 5 Dec 1999 (see Gazette 1999, No. S584) (e)

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]

Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001

143, 2001

1 Oct 2001

2 Oct 2001

S. 4 [see Table A]

Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006

101, 2006

14 Sept 2006

Schedule 2 (item 899) and Schedule 6 (items 1, 6–11): Royal Assent

Sch. 6 (items 1,
6–11) [see Table A]

Maritime Transport and Offshore Facilities Security Amendment (Security Plans and Other Measures) Act 2006

109, 2006

27 Sept 2006

Schedule 2 (items 72, 73):
Royal Assent


(a)     The Ships (Capital Grants) Act 1987 was amended by Part III (sections 6 and 7) only of the Transport Legislation Amendment Act 1989, subsection 2(2) of which provides as follows:

                 (2)   Part III shall be taken to have commenced on 1 September 1988.

(b)    The Ships (Capital Grants) Act 1987 was amended by Part 15 (sections 54–65) only of the Transport and Communications Legislation Amendment Act (No. 2) 1989, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(c)     The Ships (Capital Grants) Act 1987 was amended by Part 10 (sections 36 and 37) only of the Transport and Communications Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(d)     The Ships (Capital Grants) Act 1987 was amended by Schedule 1 (Part K [items 1–6]) only of the Transport Legislation Amendment Act 1995, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(e)     The Ships (Capital Grants) Act 1987 was amended by Schedule 1 (item 818) 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.


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. 6, 1989; No. 11, 1991; No. 95, 1995

S. 7......................................

am. No. 95, 1995

S. 7A...................................

ad. No. 143, 2001

Part II

 

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

am. No. 23, 1990

S. 9......................................

am. No. 23, 1990; No. 71, 1996

Ss. 10, 11............................

am. No. 23, 1990

Part III

 

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

am. No. 23, 1990

Part IV

 

S. 17....................................

am. No. 95, 1995; No. 143, 2001

S. 18....................................

rs. No. 23, 1990

 

am. No. 109, 2006

S. 19....................................

am. No. 23, 1990

Part V

 

S. 21....................................

am. No. 23, 1990; No. 95, 1995

S. 25....................................

am. No. 101, 2006

Part VI

 

S. 26....................................

am. No. 23, 1990

Part VII

 

S. 29....................................

am. No. 137, 2000

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

am. No. 137, 2000; No. 143, 2001

S. 32....................................

am. No. 137, 2000

S. 36....................................

am. No. 146, 1999

S. 38....................................

am. No. 23, 1990

 

 


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.

 

Transport and Regional Services Legislation Amendment (Application of Criminal Code) Act 2001 (No. 143, 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.

 

Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006
(No. 101, 2006)

Schedule 6

1  Application of Schedule 1 and 2 amendments

Except as mentioned in items 2 and 3, the repeals and amendments made by Schedules 1 and 2 apply:

                     (a)  so far as they affect assessments—to assessments for the 2006‑07 income year and all later income years; and

                     (b)  otherwise—to acts done or omitted to be done, or states of affairs existing, after the commencement of the repeals and amendments.

6  Object

The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:

                     (a)  any act done or omitted to be done; or

                     (b)  any state of affairs existing; or

                     (c)  any period ending;

before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.

7  Making and amending assessments, and doing other things, in relation to past matters

Even though an Act is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003):

                     (a)  making or amending an assessment (including under a provision that is itself repealed or amended);

                     (b)  exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);

in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

Example 1: On 31 July 1999, Greg Ltd lodged its annual return under former section 160ARE of the Income Tax Assessment Act 1936. The return stated that the company had a credit on its franking account and that no franking deficit tax was payable for the 1998‑99 franking year. Under former section 160ARH of that Act, the Commissioner was taken to have made an assessment consistent with the return.

                   Following an audit undertaken after the repeal of Part IIIAA of that Act, the Commissioner concludes that Greg Ltd fraudulently overfranked dividends it paid during the 1998‑99 franking year, and had a franking account deficit for that franking year. As a result, the Commissioner considers that franking deficit tax and a penalty by way of additional tax are payable.

                   The Commissioner can amend the assessment under former section 160ARN of that Act, because item 7 of this Schedule disregards the repeal of that section for the purposes of making an assessment in relation to the 1998‑99 franking year. Item 7 will also disregard the repeal of Division 11 of former Part IIIAA to the extent necessary for the Commissioner to assess Greg Ltd’s liability to a penalty by way of additional tax.

                   Despite the repeal of sections 160ARU and 160ARV, item 9 will ensure that the general interest charge will accrue on the unpaid franking deficit tax and penalty until they are paid.

                   Item 7 will also preserve Greg Ltd’s right, under former section 160ART of that Act, to object against the Commissioner’s amended assessment (including the penalty), since the objection is the exercise of a right in relation to a franking year that ended before the repeal of Part IIIAA.

Example 2: During the 1997‑98 income year, Duffy Property Ltd withheld amounts from its employees’ wages as required by former Divisions 1AAA and 2 of Part VI of the Income Tax Assessment Act 1936. The company failed to notify the Commissioner of those amounts, and failed to remit them to the Commissioner.

                   Following an audit undertaken after the repeal of those Divisions, the Commissioner discovers that the withheld amounts have not been remitted. The company’s records are incomplete and the Commissioner is unable to completely ascertain the extent of its liability for the withheld amounts. Under section 222AGA of that Act, the Commissioner makes an estimate of the liability.

                   Item 7 will disregard the repeal of section 220AAZA of that Act (which empowered the Commissioner to recover the amount of the estimate). Even though the estimate is made after the repeal, it relates to amounts withheld before the repeal.

8  Saving of provisions about effect of assessments

If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

9  Saving of provisions about general interest charge, failure to notify penalty or late reconciliation statement penalty

If:

                     (a)  a provision or part of a provision that is repealed or amended by this Act provides for the payment of:

                              (i)  general interest charge, failure to notify penalty or late reconciliation statement penalty (all within the meaning of the Income Tax Assessment Act 1936); or

                             (ii)  interest under the Taxation (Interest on Overpayments and Early Payments) Act 1983; and

                     (b)  in a particular case, the period in respect of which the charge, penalty or interest is payable (whether under the provision or under the Taxation Administration Act 1953) has not begun, or has begun but not ended, when the provision is repealed or amended;

then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.

10  Repeals disregarded for the purposes of dependent provisions

If the operation of a provision (the subject provision) of any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003) made under any Act depends to any extent on an Act, or a provision of an Act, that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision.

11  Schedule does not limit operation of section 8 of the Acts Interpretation Act 1901

This Schedule does not limit the operation of section 8 of the Acts Interpretation Act 1901.