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Guides & Guidelines as made
These guidelines are to be complied with by the CEO of Austrade in making decisions for the purposes of determining who is an associate of a person and forming an opinion whether a person or any associate is a fit and proper person to receive a grant.
Administered by: Foreign Affairs and Trade
Registered 30 Jun 2015
Tabling HistoryDate
Tabled HR10-Aug-2015
Tabled Senate10-Aug-2015

Commonwealth Coat of Arms

Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2015

I, ANDREW ROBB AO, Minister for Trade and Investment, determine these guidelines under paragraphs 101 (1) (bab) and 101 (1) (bb) of the Export Market Development Grants Act 1997.

Dated  27 June 2015

ANDREW ROBB AO

Minister for Trade and Investment

 


 

Contents

Part 1—Preliminary                                                                                                     1

1.1  Name .................................................................................................................................... 1

1.2  Commencement..................................................................................................................... 1

1.3  Definitions............................................................................................................................. 1

Part 2—Guidelines about who is an associate                                                            3

2.1  Guidelines about associates................................................................................................... 3

2.2  Associates—general.............................................................................................................. 3

2.3  Associates—fit and proper test for export market development consultants.......................... 4

2.4  Associates—fit and proper test for grant recipients............................................................... 4

2.5  When a person holds a substantial interest in a body corporate............................................. 5

Part 3—Guidelines about whether an applicant for a grant or an associate is a fit and proper person                                                                                                                         6

3.1  Purpose of Part 3................................................................................................................... 6

3.2  Convictions........................................................................................................................... 6

3.3  Other proceedings................................................................................................................. 6

3.4  Insolvency administration...................................................................................................... 7

3.5  Commercial performance....................................................................................................... 7

3.6  Other matters......................................................................................................................... 7

Part 4—Guidelines for determining that a person is an excluded consultant         8

4.1  Determining that a person is an excluded consultant............................................................. 8

Part 5—Repeal and saving                                                                                         10

5.1  Repeal and saving................................................................................................................ 10

 


Part 1Preliminary

  

1.1  Name

                   These guidelines are the Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2015.

1.2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

1 July 2015.

1 July 2015

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

1.3  Definitions

                   In these guidelines:

Act means the Export Market Development Grants Act 1997.

director has the meaning given by the Corporations Act 2001.

executive officer of a body corporate means a person who is concerned in, or takes part in, the management of the body (regardless of the person’s designation and whether or not the person is a director of the body).

relative has the meaning given by section 107 of the Act.

Note:          The definition of relative in section 107 of the Act refers to a ‘spouse’, which is also defined in that section.

responsible officer, of a corporation or other entity, means an individual:

                     (a)  who is an executive officer or director of the corporation or other entity; or

                     (b)  who holds 10% or more of the voting shares in the corporation or other entity; or

                     (c)  according to whose directions, instructions or wishes the body corporate is, or the directors of the corporation or other entity are:

                              (i)  accustomed to act; or

                             (ii)  under a formal or informal obligation to act.

voting share has the meaning given by the Corporations Act 2001.

Part 2Guidelines about who is an associate

  

2.1  Guidelines about associates

             (1)  This Part sets out:

                     (a)  for paragraph 101(1)(bab) of the Act—the guidelines to be complied with by the CEO of Austrade in determining who is an associate of a person for subsection 79A(4) of the Act; and

                     (b)  for subparagraph 101(1)(bb)(i) of the Act—the guidelines to be complied with by the CEO of Austrade in determining who is an associate of a person for subsection 87AA(3) of the Act.

             (2)  For paragraph 101(1)(bab) of the Act, the CEO of Austrade must determine that a person (the first person) is an associate of another person (the second person), and that the second person is an associate of the first person, if section 2.2 or 2.3 applies in relation to the first person and the second person.

             (3)  For subparagraph 101(1)(bb)(i) of the Act, the CEO of Austrade must determine that a person (the first person) is an associate of another person (the second person), and that the second person is an associate of the first person, if section 2.2 or 2.4 applies in relation to the first person and the second person.

2.2  Associates—general

             (1)  For subsections 2.1(2) and (3), this section applies if the second person is any of the following:

                     (a)  a relative of the first person;

                     (b)  a body corporate in accordance with the directions, instructions or wishes of which, or of the directors of which, the first person is accustomed or under an obligation, whether formal or informal, to act;

                     (c)  a person who has a commercial relationship with the first person relating to the preparation of applications for grant.

             (2)  For subsections 2.1(2) and (3), this section also applies if the first person is a body corporate and the second person is any of the following:

                     (a)  an executive officer or director of the body corporate;

                     (b)  a relative of an executive officer or director of the body corporate;

                     (c)  a person who holds a substantial interest in the body corporate.

Note:          For when a person holds a substantial interest in a body corporate, see section 2.5.

             (3)  For subsections 2.1(2) and (3), this section also applies if the first person is an association, co‑operative or partnership and the second person is any of the following:

                     (a)  a member of the association, co‑operative or partnership;

                     (b)  a relative of a member of the association, co‑operative or partnership;

                     (c)  an executive officer or director of a body corporate that is a member of the association, co‑operative or partnership;

                     (d)  a person or body that participates in managing or conducting the affairs of the association, co‑operative or partnership;

                     (e)  a member of a person or body (however described) that participates in managing or conducting the affairs of the association, co‑operative or partnership.

2.3  Associates—fit and proper test for export market development consultants

                   For subsection 2.1(2), this section applies if the second person is any of the following:

                     (a)  a person who manages or conducts activities that the first person engages in as an export market development grants consultant;

                     (b)  a person who is in a position to direct or influence the preparation or making of applications in relation to which the first person acts as an export market development grants consultant;

                     (c)  a person who is, by virtue of a determination by the CEO of Austrade under subsection 2.1(2) (other than a determination made because of the application of this paragraph), an associate of another person who is, by virtue of another such determination by the CEO, an associate of the first person.

2.4  Associates—fit and proper test for grant recipients

             (1)  For subsection 2.1(3), this section applies if the second person is any of the following:

                     (a)  a person or body (however described) that participates in managing or conducting the affairs of the first person’s business to which a grant to the first person would relate;

                     (b)  a member of a person or body (however described) that participates in managing or conducting the affairs of the first person’s business to which a grant to the first person would relate;

                     (c)  a person who is, by virtue of a determination by the CEO of Austrade under subsection 2.1(3) (other than a determination made because of the application of this paragraph), an associate of another person who is, by virtue of another such determination by the CEO, an associate of the first person.

             (2)  For subsection 2.1(3), this section also applies if the first person is a joint venture and the second person is any of the following:

                     (a)  a member of the joint venture;

                     (b)  by virtue of a determination by the CEO of Austrade under subsection 2.1(3), an associate of a member of the joint venture.

2.5  When a person holds a substantial interest in a body corporate

             (1)  For paragraph 2.2(2)(c), a person holds a substantial interest in a body corporate if the person, alone or together with another person who is an associate of the person, or other persons who are associates of the person, by virtue of a determination by the CEO of Austrade under this Part:

                     (a)  is in a position to control not less than 15% of the voting power in the body corporate; or

                     (b)  is in a position to control not less than 15% of the potential voting power in the body corporate; or

                     (c)  holds interests in not less than 15% of the issued shares in the body corporate; or

                     (d)  would hold interests in not less than 15% of the issued shares in the body corporate, if shares in the body corporate were issued as the result of the exercise of all rights of a kind mentioned in subsection 11(2A) of the Foreign Acquisitions and Takeovers Act 1975.

             (2)  For paragraph (1)(c), in determining the percentage of the interests in the issued shares in a body corporate that a person holds at a particular time, if:

                     (a)  the person has a right that, if exercised, might result in the person holding an interest in an issued share in the body corporate; and

                     (b)  it cannot be determined at that time (whether from the right itself or from the circumstances existing at that time) whether the exercise of the right would have that result;

assume that the right were exercised at that time.

             (3)  For paragraph (1)(d), in determining the percentage of the interests in the issued shares in a body corporate that a person would hold at a particular time if shares were issued as mentioned in that paragraph, if:

                     (a)  the person has a right that, if exercised, might result in the person holding an interest in an issued share in the body corporate; and

                     (b)  it cannot be determined at that time (whether from the right itself or from the circumstances existing at that time) whether the exercise of the right would have that result;

assume that the right were exercised at that time.

Part 3Guidelines about whether an applicant for a grant or an associate is a fit and proper person

  

3.1  Purpose of Part 3

                   For subparagraph 101(1)(bb)(ii) of the Act, this Part sets out the guidelines to be complied with by the CEO of Austrade in forming, for subsection 87AA(1) of the Act, an opinion whether a person or any associate of the person is a fit and proper person to receive a grant.

3.2  Convictions

                   The CEO of Austrade must have regard to whether the person or associate has been convicted of an offence under Australian law or a law of a foreign country.

Note:          Under sections 85ZV and 85ZW of the Crimes Act 1914, the CEO of Austrade must not have regard to a conviction that is a spent conviction.

3.3  Other proceedings

                   The CEO of Austrade must have regard to whether:

                     (a)  a civil penalty has been imposed on the person or associate under Australian law or a law of a foreign country; or

                     (b)  an administrative sanction has been imposed on the person or associate under Australian law or a law of a foreign country; or

                     (c)  the person or associate is involved in proceedings which may result in:

                              (i)  a civil penalty being imposed on the person or associate under Australian law or a law of a foreign country; or

                             (ii)  an administrative sanction being imposed on the person or associate under Australian law or a law of a foreign country; or

                     (d)  the person or associate has been the subject of a comment or assessment, by:

                              (i)  a court; or

                             (ii)  a statutory or private tribunal; or

                            (iii)  a body responsible for the regulation of an industry or profession;

                            that the CEO is satisfied is critical of the person or associate; or

                     (e)  the person or associate is the subject of other proceedings, under Australian law or a law of a foreign country, before:

                              (i)  a court; or

                             (ii)  a statutory or private tribunal; or

                            (iii)  a body responsible for the regulation of an industry or profession;

                            in which a comment or assessment critical of the person or associate may be made.

3.4  Insolvency administration

                   The CEO of Austrade must have regard to whether the person or associate is, or has been, under insolvency administration.

Note:          Sections 87B and 87C of the Act explain when an individual or a body corporate is under insolvency administration.

3.5  Commercial performance

                   The CEO of Austrade must have regard to:

                     (a)  whether the person or associate has been:

                              (i)  a responsible officer of a business that has failed; or

                             (ii)  otherwise in control of a business that has failed; and

                     (b)  the circumstances in which the business failed, including the person’s or associate’s conduct.

3.6  Other matters

                   The CEO of Austrade must have regard to any matter, not mentioned in section 3.2, 3.3, 3.4 or 3.5, that the CEO considers relevant to the personal, commercial, financial or professional character, status or reputation of the person or associate.

 

Part 4Guidelines for determining that a person is an excluded consultant

  

4.1  Determining that a person is an excluded consultant

             (1)  For paragraph 101(1)(bab) of the Act, this section sets out the guidelines to be complied with by the CEO of Austrade in:

                     (a)  deciding whether to determine, under subsection 79A(1) of the Act, that a person (the person under consideration) is an excluded consultant; and

                     (b)  forming, for paragraph 79A(1)(b) of the Act, an opinion whether the person under consideration, or an associate of the person under consideration, is a fit and proper person.

Note:          The person under consideration must be, or have been, an export market development grants consultant or an associate of an export market development grants consultant (see paragraph 79A(1)(a) of the Act).

             (2)  The CEO of Austrade must have regard to the matters set out in sections 3.2 to 3.6 by:

                     (a)  treating references in those sections to “the person” as references to the person under consideration; and

                     (b)  treating references in those sections to an associate as references to an associate of the person under consideration.

             (3)  The CEO of Austrade must have regard to whether the person under consideration, or an associate of the person under consideration, is disqualified under section 78 of the Act from preparing applications for grant.

             (4)  The CEO of Austrade must have regard to whether, in the opinion of the CEO, the person under consideration, or an associate of the person under consideration:

                     (a)  has been party to any act or thing, or has carried out any act on behalf of an applicant for grant, for the purpose of obtaining an amount of grant to which the applicant for grant is not entitled; or

                     (b)  has failed to take due care and diligence in relation to an application, or applications, under the Act (whether before or after the making of the application or applications); or

                     (c)  has made a false or misleading statement, or provided false or misleading information or documents, in relation to an application, or applications, under the Act (whether before or after the making of the application or applications); or

                     (d)  is a party to a scheme or arrangement which has the purpose or effect of negating the purpose of, or avoiding or defeating, Division 2A of Part 7 of the Act, section 87AA of the Act or any of the provisions of these guidelines; or

                     (e)  operates under a policy which has the purpose or effect of negating the purpose of, or avoiding or defeating, Division 2A of Part 7 of the Act, section 87AA of the Act or any of the provisions of these guidelines.

             (5)  The CEO of Austrade must have regard to any failure or refusal by the person under consideration to comply with a request under subsection 79A(2) of the Act.

             (6)  If the person under consideration is an export market development grants consultant, the CEO of Austrade must have regard to whether, in the opinion of the CEO, the following people have appropriate competence, skills, knowledge and experience:

                     (a)  the person under consideration;

                     (b)  any associate of the person under consideration who:

                              (i)  manages or conducts activities that the person under consideration engages in as an export market development grants consultant; or

                             (ii)  is in a position to direct or influence the preparation or making of applications in relation to which the person under consideration acts as an export market development grants consultant.

Part 5Repeal and saving

 

5.1  Repeal and saving

         (1)   The Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2004 are repealed.

         (2)   However, the Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2004 continue to apply for the purposes of section 87AA of the Act in relation to working out whether a grant or an advance on account of a grant is payable where the application for the grant was made before 1 July 2015.