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This is a Bill, not an Act. For current law, see the Acts databases.
2004
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Textile,
Clothing and Footwear Strategic Investment Program Amendment (Post-2005 Scheme)
Bill 2004
No. ,
2004
(Industry, Tourism and
Resources)
A Bill for an Act to amend the
Textile, Clothing and Footwear Strategic Investment Program Act 1999, and
for related purposes
Contents
Textile, Clothing and Footwear Strategic Investment Program Act
1999 3
A Bill for an Act to amend the Textile, Clothing and
Footwear Strategic Investment Program Act 1999, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Textile, Clothing and Footwear Strategic
Investment Program Amendment (Post-2005 Scheme) Act 2004.
(1) Each provision of this Act 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 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Schedule 1 |
Immediately after the commencement of the Customs Tariff Amendment
(Textile, Clothing and Footwear Post-2005 Arrangements) Act 2004. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Textile, Clothing and
Footwear Strategic Investment Program Act 1999
1 Section 3
Repeal the section, substitute:
The following is a simplified outline of this Act:
• This Act provides a framework for the implementation of the
Textile, Clothing and Footwear Strategic Investment Program.
• There are 2 schemes under the program.
• The TCF (SIP) scheme provides for 5 grants in respect of
expenditure incurred in the 2000-2001 to 2004-2005 income years. The scheme also
provides for the making of some of those grants in respect of expenditure
incurred in the 1998-1999 or 1999-2000 income year. The scheme also covers
loans. Part 2 deals with this scheme.
• The TCF Post-2005 (SIP) scheme will provide for 2 grants in respect
of expenditure incurred in the 2005-2006 to 2014-2015 income years. The scheme
will not cover loans. Part 3A deals with this scheme.
• This Act also provides funding for the purposes of the Regional
Assistance Program (see Part 3) and the TCF Small Business Program (see
Part 3B).
2 Section 4 (definition of
claim)
Repeal the definition.
3 Section 4 (definition of
grant)
Repeal the definition.
4 Section 4
Insert:
occupier, in relation to premises, includes a person present
at the premises who apparently represents the occupier.
5 Section 4 (paragraph (a) of the
definition of scheme debt)
After “grant”, insert “under a scheme under Part 2
or 3A”.
6 Section 4 (paragraph (c) of the
definition of scheme debt)
After “subsection 20(2)”, insert “or
37V(2)”.
7 Section 4 (paragraph (d) of the
definition of scheme debt)
Omit “repayable”, substitute
“recoverable”.
8 Section 4
Insert:
TCF Post-2005 (SIP) scheme means the scheme in force under
section 37C.
9 Before Division 1 of
Part 2
Insert:
The following is a simplified outline of this Part:
• The TCF (SIP) scheme provides for the making of grants and loans in
connection with the design and manufacture, in Australia, of eligible TCF
products.
• The total of the grants paid, and loans made, under the TCF (SIP)
scheme must not exceed $700 million, reduced by any Regional Assistance Program
supplementation payments (see section 37).
• The TCF (SIP) scheme provides for 5 types of grants:
(a) grants in respect of new TCF plant/building expenditure; and
(b) grants in respect of TCF research and development expenditure;
and
(c) grants in respect of TCF value-adding; and
(d) special grants in respect of second-hand TCF plant expenditure;
and
(e) special miscellaneous grants in respect of TCF-dependent
communities.
• The TCF (SIP) scheme provides for the making of those grants in
respect of expenditure incurred in the 2000-2001 to 2004-2005 income years. It
also provides that grants in respect of new TCF plant or buildings may be made
for expenditure incurred in the 1998-1999 or 1999-2000 income year and special
grants may be made for expenditure incurred in the 1999-2000 income
year.
• Grants under the TCF (SIP) scheme are to be made in
arrears.
• Entities who wish to obtain grants under the TCF (SIP) scheme may
be required to register under the scheme and to submit strategic business plans
and accounts.
In this Part:
authorised officer means a person appointed under subsection
18A(6) as an authorised officer of the Department.
claim means a claim for a grant.
grant means a grant under the TCF (SIP) scheme.
10 After Division 4 of
Part 2
Insert:
(1) The TCF (SIP) scheme may make provision for and in relation to the
payment of grants subject to conditions (whether conditions precedent or
conditions subsequent).
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—compliance with information gathering
notice
(2) A grant paid to an entity is subject to the condition that the entity
comply with any notice given to the entity under section 38.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—no false or misleading statements
(3) A grant paid to an entity is subject to the condition that:
(a) a false or misleading statement has not been made by, or on behalf of,
the entity in connection with a claim for the grant; and
(b) false or misleading information or evidence is not given by, or on
behalf of, the entity in compliance or purported compliance with
section 38; and
(c) a false or misleading document is not produced by, or on behalf of,
the entity in compliance or purported compliance with section 38.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—entry to premises etc. to monitor compliance with other
conditions
(4) A grant paid to an entity is subject to the condition that in relation
to the following premises:
(a) business premises specified in the notice that is given to the entity
notifying the entity that the entity is entitled to be paid the grant;
(b) business premises specified in a later notice given to the entity by
the Secretary under subsection (5);
the entity:
(c) allow authorised officers of the Department, and any authorised
employees of an authorised Commonwealth contractor accompanying those officers,
access to the premises at any reasonable time of a business day for the purpose
of monitoring compliance with other conditions that the grant is subject to;
and
(d) allow authorised officers of the Department during that access to
inspect and search the premises and any thing on the premises for the purpose of
that monitoring; and
(e) allow authorised officers of the Department to operate electronic
equipment at the premises to see whether documents in electronic form relevant
to that monitoring are accessible by doing so; and
Note: See also sections 18B to 18E (which contain
provisions relating to the operation of electronic equipment at the
premises).
(f) allow authorised officers of the Department to make copies of any
documents in hard copy form found on the premises that are relevant to that
monitoring; and
(g) provide authorised officers of the Department with all reasonable
facilities and assistance in connection with that monitoring.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Secretary’s powers
(5) The Secretary may, by written notice given to an entity, specify
business premises for the purposes of paragraph (4)(b).
(6) The Secretary may, by writing, appoint an APS employee in the
Department to be an authorised officer of the Department for the purposes of
this Division. The Secretary may do so only if the Secretary is satisfied that
the employee has suitable qualifications for such an appointment.
(7) The Secretary may, by writing, appoint an employee of an authorised
Commonwealth contractor to be an authorised employee of the contractor for the
purposes of this Division. The Secretary may do so only if the Secretary is
satisfied that the employee has suitable qualifications for such an
appointment.
Definitions
(8) In this section:
authorised Commonwealth contractor has the same meaning as in
section 52.
business day means a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
(1) If:
(a) an authorised officer has obtained access to premises for the purpose
of monitoring compliance with the conditions of a grant; and
(b) the officer finds that documents in electronic form, relevant to that
monitoring, are accessible by operating electronic equipment at the
premises;
the officer may do only 1 of 2 things.
Removal of documents
(2) One thing the officer may do is operate the equipment or other
facilities at the premises to put the documents in hard copy form and remove the
documents so produced.
Removal of disk, tape or other storage device
(3) The other thing the officer may do is operate the equipment or other
facilities at the premises to transfer the documents to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
(1) This section applies if:
(a) an authorised officer has obtained access to premises for the purpose
of monitoring compliance with the conditions of a grant; and
(b) the officer believes on reasonable grounds that:
(i) documents in electronic form, relevant to that monitoring, may be
accessible by operating electronic equipment at the premises; and
(ii) expert assistance is required to operate the equipment; and
(iii) an authorised employee (the expert) of an authorised
Commonwealth contractor accompanying the officer in relation to that monitoring
has the expertise to operate the equipment.
Expert may operate equipment
(2) The expert may operate the equipment to determine whether such
documents are accessible. If they are, the expert may do only 1 of 2
things.
Produce documents in hard copy form
(3) One thing the expert may do is operate the equipment or other
facilities at the premises to put the documents in hard copy form.
Transfer documents to a disk, tape or other storage device
(4) The other thing the expert may do is operate the equipment or other
facilities at the premises to transfer the documents to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises.
Removal
(5) The authorised officer may then remove the documents in hard copy form
or remove the disk, tape or other storage device.
Section 70 of the Crimes Act 1914
(6) For the purposes of the application of the definition of
Commonwealth officer in subsection 3(1) of the Crimes Act
1914 to section 70 of that Act, an authorised employee of an authorised
Commonwealth contractor who exercises a power referred to in this section is
taken to be a person who performs services for the Commonwealth.
A person may operate electronic equipment at premises as mentioned in
this Division only if he or she believes on reasonable grounds that the
operation of the equipment can be carried out without damage to the
equipment.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 18A, 18B or 18C:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of
data or addition of other data.
(1) The Secretary must issue an identity card to an authorised
officer.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the authorised officer.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an authorised officer; and
(c) the person does not return the identity card to the Secretary as soon
as practicable.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to
the matter in this subsection: see subsection 13.3(3) of the Criminal
Code.
Authorised officer must carry card
(6) An authorised officer must carry his or her identity card at all times
when exercising powers as an authorised officer.
Authorised officer must produce card on request
(7) An authorised officer is not entitled to exercise any powers referred
to in this Division in relation to premises if:
(a) the occupier of the premises has requested the officer to produce the
officer’s identity card for inspection by the occupier; and
(b) the officer fails to comply with the request.
11 Application—conditional
grants
The amendment made by item 10 applies in relation to grants paid on or
after the commencement of this item.
12 After Part 3
Insert:
Object
(1) The object of this Part is to foster the development of a sustainable
and internationally competitive TCF manufacturing industry and TCF design
industry in Australia by providing incentives which will promote investment and
innovation.
Simplified outline
(2) The following is a simplified outline of this Part:
• The Minister must formulate a scheme (the TCF
Post-2005 (SIP) scheme) for the making of grants in
connection with the design and manufacture, in Australia, of eligible TCF
products.
• The total of the grants paid under the TCF Post-2005 (SIP) scheme
must not exceed $575 million.
• The TCF Post-2005 (SIP) scheme will provide for 2 types of
grants:
(a) grants in respect of TCF capital investment expenditure on new TCF
plant or buildings, brand support for TCF products or non-production related
information technology; and
(b) grants in respect of TCF research and development
expenditure.
• The TCF Post-2005 (SIP) scheme will provide for the making of those
grants in respect of expenditure incurred in the 2005-2006 to 2014-2015 income
years.
• Grants under the TCF Post-2005 (SIP) scheme are to be made in
arrears.
• Entities who wish to obtain grants under the TCF Post-2005 (SIP)
scheme will be required to register under the scheme and to submit strategic
business plans and accounts.
In this Part:
authorised officer means a person appointed under subsection
37P(6) as an authorised officer of the Department.
claim means a claim for a grant.
clothing/finished textile expenditure means expenditure in
connection with, or incidental to, the manufacture in Australia, or the design
in Australia, of products that, under the TCF Post-2005 (SIP) scheme, are taken
to be:
(a) clothing products; or
(b) finished textile products.
grant means a grant under the TCF Post-2005 (SIP)
scheme.
leather/technical textile expenditure means expenditure in
connection with, or incidental to, the manufacture in Australia, or the design
in Australia, of products that, under the TCF Post-2005 (SIP) scheme, are taken
to be:
(a) leather products; or
(b) technical textile products.
The Minister must, by writing, formulate a scheme (the TCF
Post-2005 (SIP) scheme) for the making of grants in connection with, or
incidental to, the following:
(a) the manufacture in Australia of products that, under the scheme, are
taken to be eligible TCF products;
(b) the design in Australia, for manufacture in Australia, of
products:
(i) that, under the scheme, are taken to be eligible TCF products;
and
(ii) some or all of which are intended to be sold in Australia;
(c) the design in Australia, for manufacture outside Australia, of
products:
(i) that, under the scheme, are taken to be eligible TCF products;
and
(ii) some or all of which are intended to be sold in Australia;
where the importation into Australia of some or all of the products is or
will be covered by a designated industry program.
Total cap
(1) The TCF Post-2005 (SIP) scheme must make provision for ensuring that
the total of the grants (including advances on account of grants) paid under the
scheme does not exceed $575,000,000.
Note: Section 37V deals with advances on account of
grants.
Cap for 2005-2006 to 2009-2010 income years
(2) The scheme must also make provision for ensuring that the total of the
grants (including advances on account of grants) paid under the scheme in
respect of expenditure incurred in the 2005-2006 to 2009-2010 income years does
not exceed $487,500,000.
Cap for 2010-2011 to 2014-2015 income years
(3) The scheme must also make provision for ensuring that the total of the
grants (including advances on account of grants) paid under the scheme in
respect of expenditure incurred in the 2010-2011 to 2014-2015 income years does
not exceed $87,500,000.
The TCF Post-2005 (SIP) scheme must be directed towards ensuring the
achievement of the policy objectives set out in this Division.
It is a policy objective for the TCF Post-2005 (SIP) scheme that there
are to be 2 types of grants, as follows:
(a) the first type of grants are to be known as grants in respect of
TCF capital investment expenditure;
(b) the second type of grants are to be known as grants in respect
of TCF research and development expenditure.
(1) It is a policy objective for the TCF Post-2005 (SIP) scheme that
grants in respect of TCF capital investment expenditure are only to be made as
set out in this section.
New TCF plant/building expenditure
(2) The grants are to be made in respect of expenditure that:
(a) under the scheme, is taken to be new TCF plant/building expenditure;
and
(b) is incurred by an entity during any of the 2005-2006 to 2014-2015
income years of the entity; and
(c) if the expenditure is incurred by the entity during any of the
2010-2011 to 2014-2015 income years of the entity—is also
clothing/finished textile expenditure.
Note: For clothing/finished textile
expenditure, see section 37B.
(3) It is a policy objective for the scheme that expenditure is only to be
taken to be new TCF plant/building expenditure under the scheme if the
expenditure is of the kind for which, at the commencement of this Part, a Type 1
grant could be made under the TCF (SIP) scheme.
Brand support for TCF products expenditure
(4) The grants are to be made in respect of expenditure that:
(a) under the scheme, is taken to be brand support for TCF products
expenditure; and
(b) is incurred by an entity during any of the 2005-2006 to 2014-2015
income years of the entity; and
(c) if the expenditure is incurred by the entity during any of the
2010-2011 to 2014-2015 income years of the entity—is also
clothing/finished textile expenditure.
Note: For clothing/finished textile
expenditure, see section 37B.
Non-production related information technology expenditure
(5) The grants are to be made in respect of expenditure that:
(a) under the scheme, is taken to be non-production related information
technology expenditure; and
(b) is incurred by an entity during any of the 2005-2006 to 2014-2015
income years of the entity; and
(c) is also clothing/finished textile expenditure.
Note: For clothing/finished textile
expenditure, see section 37B.
(1) It is a policy objective for the TCF Post-2005 (SIP) scheme that
grants in respect of TCF research and development expenditure are only to be
made in respect of expenditure that:
(a) under the scheme, is taken to be TCF research and development
expenditure; and
(b) is incurred by an entity during any of the 2005-2006 to 2014-2015
income years of the entity; and
(c) if the expenditure is incurred by the entity during any of the
2010-2011 to 2014-2015 income years of the entity—is also
clothing/finished textile expenditure.
Note: For clothing/finished textile
expenditure, see section 37B.
(2) It is a policy objective for the scheme that:
(a) leather/technical textile expenditure is not to be taken, under the
scheme, to be expenditure on TCF research and development; and
(b) expenditure in obtaining industrial property rights may be taken,
under the scheme, to be expenditure on TCF research and development.
Note: For leather/technical textile
expenditure, see section 37B.
It is a policy objective for the TCF Post-2005 (SIP) scheme that grants
must not be made to an entity in respect of expenditure incurred by the entity
during an income year of the entity unless the entity makes a claim after the
end of the income year.
Cap based on eligible revenue
(1) It is a policy objective for the TCF Post-2005 (SIP) scheme that there
be a cap on the total of the grants that become payable to an entity during an
income year (the claim year) of the entity in respect of
expenditure incurred by the entity otherwise than during a period that, under
the scheme, is taken to be an eligible start-up period of the entity.
(2) The total of the grants must not exceed 5% of the amount that, under
the scheme, is taken to be the total eligible revenue derived by the entity,
during the income year of the entity before the claim year, from sales of
products that, under the scheme, are taken to be eligible TCF
products.
Cap based on eligible start-up investment amount
(3) It is a policy objective for the TCF Post-2005 (SIP) scheme that there
be a cap on the total of the grants that become payable to an entity during an
income year (the claim year) of the entity and any income years of
the entity that are earlier than the claim year in respect of expenditure
incurred by the entity during a period that, under the scheme, is taken to be an
eligible start-up period of the entity.
(4) The total of the grants must not exceed 15% of the amount that, under
the scheme, is taken to be the total of the eligible start-up investment amounts
of the entity for each of the income years of the entity that is earlier than
the claim year.
When grant becomes payable
(5) For the purposes of this section, a grant becomes payable to an entity
when a determination is made under the scheme that the entity is entitled to be
paid the grant.
Registration requirements
(1) The TCF Post-2005 (SIP) scheme may impose requirements relating to the
registration of entities.
(2) The requirements may include (but are not limited to) any or all of
the following requirements:
(a) a requirement that an entity must apply for registration;
(b) a requirement that an entity’s application for registration be
accompanied by a statement issued by a specified person as to the entity’s
future financial viability;
(c) a requirement that an entity’s application for registration be
accompanied by specified information about the entity (which may include
statistical information);
(d) a requirement that an entity’s application for registration be
accompanied by such a fee as is ascertained in accordance with the
scheme.
Consequences of non-compliance with registration
requirements
(3) The scheme may provide for one or more of the following consequences
for an entity that does not comply with a particular requirement relating to
registration:
(a) the consequence that the entity is not eligible for a grant;
(b) the consequence that the entity’s eligibility for a grant is
subject to restriction or reduction;
(c) the consequence that the time of payment of a grant to the entity is
deferred.
The TCF Post-2005 (SIP) scheme must provide that an entity is not
eligible for a grant unless the entity has complied with such requirements (if
any) as are imposed by the scheme in relation to the content and submission
of:
(a) strategic business plans; and
(b) variations of strategic business plans.
The TCF Post-2005 (SIP) scheme may provide that an entity ascertained in
accordance with the scheme is not eligible for a grant unless the entity has
complied with such requirements as are imposed by the scheme in relation
to:
(a) the submission of audited accounts and audited financial statements;
or
(b) the submission of unaudited accounts and unaudited financial
statements.
(1) The TCF Post-2005 (SIP) scheme may make provision for and in relation
to the payment of grants subject to conditions (whether conditions precedent or
conditions subsequent).
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—compliance with information gathering
notice
(2) A grant paid to an entity is subject to the condition that the entity
comply with any notice given to the entity under section 38.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—no false or misleading statements
(3) A grant paid to an entity is subject to the condition that:
(a) a false or misleading statement has not been made by, or on behalf of,
the entity in connection with a claim for the grant; and
(b) false or misleading information or evidence is not given by, or on
behalf of, the entity in compliance or purported compliance with
section 38; and
(c) a false or misleading document is not produced by, or on behalf of,
the entity in compliance or purported compliance with section 38.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Condition—entry to premises etc. to monitor compliance with other
conditions
(4) A grant paid to an entity is subject to the condition that in relation
to the following premises:
(a) business premises specified in the notice that is given to the entity
notifying the entity that the entity is entitled to be paid the grant;
(b) business premises specified in a later notice given to the entity by
the Secretary under subsection (5);
the entity:
(c) allow authorised officers of the Department, and any authorised
employees of an authorised Commonwealth contractor accompanying those officers,
access to the premises at any reasonable time of a business day for the purpose
of monitoring compliance with other conditions that the grant is subject to;
and
(d) allow authorised officers of the Department during that access to
inspect and search the premises and any thing on the premises for the purpose of
that monitoring; and
(e) allow authorised officers of the Department to operate electronic
equipment at the premises to see whether documents in electronic form relevant
to that monitoring are accessible by doing so; and
Note: See also sections 37Q to 37T (which contain
provisions relating to the operation of electronic equipment at the
premises).
(f) allow authorised officers of the Department to make copies of any
documents in hard copy form found on the premises that are relevant to that
monitoring; and
(g) provide authorised officers of the Department with all reasonable
facilities and assistance in connection with that monitoring.
Note: Section 43 deals with the recovery of a
conditional grant if there has been a breach of a condition.
Secretary’s powers
(5) The Secretary may, by written notice given to an entity, specify
business premises for the purposes of paragraph (4)(b).
(6) The Secretary may, by writing, appoint an APS employee in the
Department to be an authorised officer of the Department for the purposes of
this Division. The Secretary may do so only if the Secretary is satisfied that
the employee has suitable qualifications for such an appointment.
(7) The Secretary may, by writing, appoint an employee of an authorised
Commonwealth contractor to be an authorised employee of the contractor for the
purposes of this Division. The Secretary may do so only if the Secretary is
satisfied that the employee has suitable qualifications for such an
appointment.
Definitions
(8) In this section:
authorised Commonwealth contractor has the same meaning as in
section 52.
business day means a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
(1) If:
(a) an authorised officer has obtained access to premises for the purpose
of monitoring compliance with the conditions of a grant; and
(b) the officer finds that documents in electronic form, relevant to that
monitoring, are accessible by operating electronic equipment at the
premises;
the officer may do only 1 of 2 things.
Removal of documents
(2) One thing the officer may do is operate the equipment or other
facilities at the premises to put the documents in hard copy form and remove the
documents so produced.
Removal of disk, tape or other storage device
(3) The other thing the officer may do is operate the equipment or other
facilities at the premises to transfer the documents to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the
premises.
(1) This section applies if:
(a) an authorised officer has obtained access to premises for the purpose
of monitoring compliance with the conditions of a grant; and
(b) the officer believes on reasonable grounds that:
(i) documents in electronic form, relevant to that monitoring, may be
accessible by operating electronic equipment at the premises; and
(ii) expert assistance is required to operate the equipment; and
(iii) an authorised employee (the expert) of an authorised
Commonwealth contractor accompanying the officer in relation to that monitoring
has the expertise to operate the equipment.
Expert may operate equipment
(2) The expert may operate the equipment to determine whether such
documents are accessible. If they are, the expert may do only 1 of 2
things.
Produce documents in hard copy form
(3) One thing the expert may do is operate the equipment or other
facilities at the premises to put the documents in hard copy form.
Transfer documents to a disk, tape or other storage device
(4) The other thing the expert may do is operate the equipment or other
facilities at the premises to transfer the documents to a disk, tape or other
storage device that:
(a) is brought to the premises for the exercise of the power; or
(b) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises.
Removal
(5) The authorised officer may then remove the documents in hard copy form
or remove the disk, tape or other storage device.
Section 70 of the Crimes Act 1914
(6) For the purposes of the application of the definition of
Commonwealth officer in subsection 3(1) of the Crimes Act
1914 to section 70 of that Act, an authorised employee of an authorised
Commonwealth contractor who exercises a power referred to in this section is
taken to be a person who performs services for the Commonwealth.
A person may operate electronic equipment at premises as mentioned in
this Division only if he or she believes on reasonable grounds that the
operation of the equipment can be carried out without damage to the
equipment.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 37P, 37Q or 37R:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of
data or addition of other data.
(1) The Secretary must issue an identity card to an authorised
officer.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the authorised officer.
Offence
(3) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an authorised officer; and
(c) the person does not return the identity card to the Secretary as soon
as practicable.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or
destroyed.
Note: A defendant bears an evidential burden in relation to
the matter in this subsection: see subsection 13.3(3) of the Criminal
Code.
Authorised officer must carry card
(6) An authorised officer must carry his or her identity card at all times
when exercising powers as an authorised officer.
Authorised officer must produce card on request
(7) An authorised officer is not entitled to exercise any powers referred
to in this Division in relation to premises if:
(a) the occupier of the premises has requested the officer to produce the
officer’s identity card for inspection by the occupier; and
(b) the officer fails to comply with the request.
Advances
(1) The TCF Post-2005 (SIP) scheme may provide for advances on account of
grants that may become payable.
Repayments
(2) If:
(a) an entity receives an amount by way of an advance on account of a
grant that may become payable to the entity; and
(b) that amount exceeds the amount of the grant (if any);
the entity is liable to pay to the Commonwealth the amount of the
excess.
The TCF Post-2005 (SIP) scheme may make provision with respect to a
matter by conferring on the Secretary a power to make a decision of an
administrative character.
(1) The TCF Post-2005 (SIP) scheme must contain provisions for and in
relation to the review of decisions of the Secretary under the scheme that
affect an entity.
(2) The scheme must contain provisions under which:
(a) an entity who is affected by a decision (the initial
decision) of the Secretary under the scheme may, if dissatisfied with
the decision, request the Secretary to reconsider the decision; and
(b) the Secretary is required to reconsider the initial decision and to
confirm, revoke or vary the decision; and
(c) an application may be made to the Administrative Appeals Tribunal for
review of an initial decision that has been confirmed or varied.
(3) If the scheme provides that the Secretary is taken to have confirmed
an initial decision after a specified period, the scheme must specify the
prescribed time for making an application for review of the initial decision as
so confirmed for the purposes of section 29 of the Administrative
Appeals Tribunal Act 1975.
The TCF Post-2005 (SIP) scheme may provide that an entity (the
eligible entity) ascertained in accordance with the
scheme:
(a) is not eligible for a grant; or
(b) is not entitled to request an advance on account of a grant;
unless another entity ascertained in accordance with the scheme gives a
guarantee to the Commonwealth that any scheme debts owed by the eligible entity
will be paid.
The TCF Post-2005 (SIP) scheme may provide that, if an entity incurs
expenditure under a transaction that is not at arm’s length, the amount of
that expenditure is taken to be the amount that would reasonably have been
expected to be incurred if the parties had been dealing with each other at
arm’s length.
The TCF Post-2005 (SIP) scheme may provide for grants (including advances
on account of grants) to be absolutely inalienable (whether by way of, or in
consequence of, sale, assignment, charge, execution, bankruptcy or otherwise)
except with the approval of the Secretary.
The TCF Post-2005 (SIP) scheme may make provision for and in relation to
the following matters:
(a) the making of claims for grants;
(b) the times within which claims for grants are to be made;
(c) requiring that a claim made by an entity ascertained in accordance
with the scheme be accompanied by an audited statement relating to specified
activities;
(d) requiring that a claim made by an entity ascertained in accordance
with the scheme be accompanied by an unaudited statement relating to specified
activities;
(e) requiring that a claim be accompanied by such a fee as is ascertained
in accordance with the scheme;
(f) the assessment of claims;
(g) the apportionment of expenditure;
(h) the adjustment of eligibility for grants in relation to the transfer
of the whole or a part of a business, including (but not limited to):
(i) treating the transferee as if the transferee had incurred particular
expenditure, had derived particular revenue and had done particular acts or
things; and
(ii) treating the transferor as if the transferor had not incurred
particular expenditure, had not derived particular revenue and had not done
particular acts or things;
(i) the times when grants become payable.
The TCF Post-2005 (SIP) scheme may contain such ancillary or incidental
provisions as the Minister considers appropriate.
Sections 37D to 37ZC do not, by implication, limit
section 37C.
The amount of a fee under the TCF Post-2005 (SIP) scheme must not be such
as to amount to taxation.
(1) The TCF Post-2005 (SIP) scheme may be varied, but not revoked, in
accordance with subsection 33(3) of the Acts Interpretation Act
1901.
(2) Subsection (1) does not limit the application of subsection 33(3)
of the Acts Interpretation Act 1901 to other instruments under this
Act.
An instrument under section 37C is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
Grants (including advances on account of grants) are to be paid out of
the Consolidated Revenue Fund, which is appropriated accordingly.
As soon as practicable after the end of each of the 2006-2007 to
2015-2016 financial years, the Minister must publish the following
information:
(a) the name of each entity paid a grant (including an advance on account
of a grant) during the financial year;
(b) the total of the grants (including advances on account of grants) paid
to the entity during the financial year.
(1) The object of this section is to fund the TCF Small Business
Program.
(2) The Department is responsible for administering the program. This
includes (but is not limited to) responsibility for determining the
following:
(a) the recipients of payments (including the eligibility
criteria);
(b) the amounts of payments;
(c) the timing of payments;
(d) the terms and conditions of payments.
(3) The Consolidated Revenue Fund is appropriated for the purpose of
payments under the program, to the extent of $25,000,000.
(4) In this section:
TCF Small Business Program means the program administered by
the Commonwealth and known as the TCF Small Business Program.
13 Paragraph 38(1)(a)
After “TCF (SIP) scheme”, insert “or the TCF Post-2005
(SIP) scheme”.
14 At the end of paragraph
38(1)(b)
Add “or the TCF Post-2005 (SIP) scheme”.
15 Section 43
Repeal the section, substitute:
If:
(a) a grant under a scheme under Part 2 or 3A is paid to an entity;
and
(b) the grant is paid subject to a condition (whether a condition
precedent or a condition subsequent); and
(c) the condition is not fulfilled;
the Commonwealth may recover from the entity the whole or a part of the
grant.
16 Section 46
After “payable to the entity”, insert “under a scheme
under Part 2 or 3A”.
17 At the end of
section 46
Add:
Example: An entity has a scheme debt of $500 in relation to
a grant paid under the TCF (SIP) scheme. A grant of $10,000 then becomes payable
to the entity under the TCF Post-2005 (SIP) scheme. The $500 scheme debt may be
deducted from the $10,000 grant.
18 At the end of subparagraph
49(c)(i)
Add “or the TCF Post-2005 (SIP) scheme”.
19 At the end of subsection
52(1)
Add “or the TCF Post-2005 (SIP) scheme”.
20 After subsection 52(1)
Insert:
(1A) Subsection (1) does not apply in relation to the powers under
subsections 18A(6) and (7) and 37P(6) and (7) (about authorising persons in
relation to entry to premises).
21 After subsection 52(3)
Insert:
(3A) The Secretary may, by writing, delegate to one or more senior
employees of an authorised Commonwealth contractor any or all of the
Secretary’s functions or powers under the TCF Post-2005 (SIP) scheme,
other than the function referred to in paragraph 37X(2)(b) (which deals with the
reconsideration of decisions).
22 Subsection 52(4)
After “subsection (3)” (wherever occurring), insert
“or (3A)”.
23 Section 53
After “grants”, insert “under a scheme under Part 2
or 3A”.
24 Subsection 55(3)
After “TCF (SIP) scheme”, insert “or the TCF Post-2005
(SIP) scheme”.