Commonwealth Numbered Acts

EXPORT MARKET DEVELOPMENT GRANTS AMENDMENT ACT 1995 No. 83 of 1995 - SCHEDULE 1

                          SCHEDULE                        Section 3

AMENDMENT OF THE EXPORT MARKET DEVELOPMENT GRANTS ACT 1974 PART 1- 4-YEAR
EXTENSION OF THE EXPORT MARKET DEVELOPMENT GRANTS SCHEME 1. Subsection 3(1)
(paragraph (e) of the definition of "grant year"): Omit "4", substitute "8".
PART 2-TOURISM 2. Subsection 3(1): Insert:

" 'designated tourism services' means services that are designated tourism
services because of regulations under subsection 43(3C);". 3. Subsection 3(4):
Omit "or eligible tourism services", substitute ", eligible tourism services
or designated tourism services". 4. Subsection 3A(1): After "a reference to
the sum of" insert "the following". 5. Paragraph 3A(1)(f): Omit "and". 6.
Paragraph 3A(1)(g): Omit "services.", substitute "services;". 7. Subsection
3A(1): Add at the end:

"(h) the amount or value of the consideration received by that person during
that period for the supply by that person at any time of designated tourism
services.". 8. Paragraph 11C(2)(h): Omit "services.", substitute "services;".
9. Subsection 11C(2): Add at the end:

"(i) designated tourism services.". 10. Subparagraph 11E(1)(a)(vii): Omit
"and", substitute "or". 11. Paragraph 11E(1)(a): Add at the end:

"(viii) designated tourism services; and". 12. Section 11Z: Add at the end:

"(13) Expenditure is qualifying export development expenditure of a person to
whom this section applies if:

   (a)  in the Commission's opinion, it is incurred primarily and principally
        for the purpose of:

        (i)    creating or seeking opportunities for; or

        (ii)   creating or increasing demand for; the supply by that person of
               designated tourism services; and

   (b)  the supply by that person is for reward and in the course of carrying
        on business in Australia.". 13. Subparagraph 11ZA(3)(a)(vi): Omit
        "and", substitute "or". 14. Paragraph 11ZA(3)(a): Add at the end:

"(vii) designated tourism services; and". 15. Subsubparagraph
11ZE(3)(b)(ii)(H): Add at the end "or". 16. After subsubparagraph
11ZE(3)(b)(ii)(H): Insert:

"(I) any designated tourism services;". 17. Section 14B: Add at the end:

"(5) In working out the amount of the claimant's export earnings for the claim
period for the purposes of this section, treat as the claimant's export
earnings for the claim period an amount equal to 100% of the amount or value
of any consideration that was derived by the claimant during the claim period:

   (a)  from a person who was, at the time of the derivation:

        (i)    a resident of Australia; and

        (ii)   a supplier of eligible tourism services; and

   (b)  for the supply by the claimant of designated tourism services.". 18.
        Subsection 15(7): Omit "or eligible tourism services", substitute ",
        eligible tourism services or designated tourism services". 19.
        Subsection 15(8) (definition of "services"): Add at the end:

"(f) designated tourism services;". 20. Subsections 16(3) and (4): Omit the
subsections, substitute:

"(3) A claimant's provisional grant amount for a claim period is the amount
worked out using whichever of the following paragraphs is applicable:

   (a)  if section 15 does not apply to the claimant-the amount worked out
        using the formula:
Adjusted eligible expenditure
2 where:
'Adjusted eligible expenditure' means the eligible expenditure incurred by the
claimant during the claim period, reduced by:

        (i)    if no part of that eligible expenditure was in respect of
               designated tourism services-$15,000; or

        (ii)   if the whole or a part of that eligible expenditure was in
               respect of designated tourism services (which whole or part is
               in this subparagraph called the 'DTS expenditure')-the sum of:

                (A)  $15,000; and

                (B)  if the DTS expenditure exceeds $15,000-50% of the excess;

   (b)  if section 15 applies to the claimant-the amount worked out using the
        formula:
Adjusted eligible expenditure
2 where:
'Adjusted eligible expenditure' means the eligible expenditure in respect of
new markets incurred by the claimant during the claim period, reduced by:

        (i)    if no part of that eligible expenditure was in respect of
               designated tourism services-$15,000; or

        (ii)   if the whole or a part of that eligible expenditure was in
               respect of designated tourism services (which whole or part is
               in this subparagraph called the 'DTS expenditure')-the sum of:

                (A)  $15,000; and

                (B)  if the DTS expenditure exceeds $15,000-50% of the excess.

"(4) If paragraph 14(1)(c) applies to a claimant in the claimant's first grant
year, the formula for calculating the provisional grant amount for that year
is:
Adjusted eligible expenditure
2 where:
'Adjusted eligible expenditure' means the eligible expenditure incurred by the
claimant as mentioned in paragraph 14(1)(c), reduced by:

   (a)  if no part of that eligible expenditure was in respect of designated
        tourism services-$30,000; or

   (b)  if the whole or a part of that eligible expenditure was in respect of
        designated tourism services (which whole or part is in this paragraph
        called the 'DTS expenditure')-the sum of:

        (i)    $30,000; and

        (ii)   if the DTS expenditure exceeds $30,000-50% of the excess.". 21.
               After subsection 16(6): Insert:

"(6A) In working out the amount of the claimant's export earnings for the
claim period for the purposes of subparagraph (6)(b)(i):

   (a)  reduce by 20% (or such other percentage as is prescribed) so much of
        those export earnings as are covered by paragraph 3A(1)(g); and

   (b)  only take into account so much of those export earnings as are covered
        by paragraph 3A(1)(h) to the extent to which those earnings were
        derived under a contract between the claimant and a person resident
        outside Australia; and

   (c)  treat as the claimant's export earnings for the claim period an amount
        equal to 20% (or such other percentage as is prescribed) of the amount
        or value of any consideration that was derived by the claimant during
        the claim period:

        (i)    from a person who was, at the time of the derivation:

                (A)  a resident of Australia; and

                (B)  a supplier of eligible tourism services; and

        (ii)   for the supply by the claimant of designated tourism
               services.". 22. After subsection 43(3B): Insert:

"(3C) The regulations may declare that services of a specified kind are
designated tourism services.".

PART 3-DEPARTURE TAX AND VISA COSTS 23. Subsection 11S(1): Add at the end:

"; or (e) expenses by way of:

        (i)    departure tax; or

        (ii)   charge imposed by the Passenger Movement Charge Act 1978; or

   (f)  visa expenses.". 24. Paragraph 11V(e): Before "amounts paid or
        payable" insert "subject to subsection (2),". 25. Section 11V: Add at
        the end:

"(2) Paragraph (1)(e) does not apply to:

   (a)  departure tax; or

   (b)  charge imposed by the Passenger Movement Charge Act 1978.".
PART 4-SAMPLES, TECHNICAL INFORMATION, TENDERS AND QUOTATIONS 26. Paragraph
11D(1)(a): Before "technical information" insert "written". 27. Subsection
11D(3): Before "technical information" (wherever occurring) insert "written".
28. Section 11D: Add at the end:

"(4) This section does not apply to costs of delivery unless the costs are
postage costs or freight costs. Note: Section 25 of the Acts Interpretation
Act 1901 provides that 'writing' includes any mode of representing or
reproducing words, figures, drawings or symbols in a visible form.". 29.
Paragraph 11E(1)(a): Omit "tender or quotation", substitute "written tender or
written quotation". 30. Subsection 11E(3): Omit "tender or quotation"
(wherever occurring), substitute "written tender or written quotation". 31.
Subsection 11E(4): Omit "tender or quotation" (wherever occurring), substitute
"written tender or written quotation". 32. Section 11E: Add at the end:

"(5) This section does not apply to costs of delivery unless the costs are
postage costs or freight costs. Note: Section 25 of the Acts Interpretation
Act 1901 provides that 'writing' includes any mode of representing or
reproducing words, figures, drawings or symbols in a visible form.".
PART 5-SPECIAL GRANT CEILING FOR MEMBERS OF COMPANY GROUPS 33. Subsection
3(1): Insert:

" 'related company group' means a group of 2 or more bodies corporate, where
each member of the group is related to each other member of the group; Note:
See subsection (12).". 34. Section 3: Add at the end:

"(12) For the purposes of this Act, the question whether a body corporate is
related to another body corporate is to be determined in the same manner as
that question is determined under the Corporations Law. Note: See section 50
of the Corporations Law.". 35. Subsection 13A(1): After "(3)" insert "and
section 22". 36. Subsections 16(1) and (2): Add at the end:

"Note: See Division 4 for special rules about bodies corporate that are
members of related company groups.". 37. After section 20: Insert:

"Division 4-Related company groups Object etc.

"21.(1) The object of this Division is to modify the application of this Act
to bodies corporate that are members of related company groups.

"(2) This Division does not apply to a claim or grant in respect of eligible
expenditure of an approved joint venture or an approved consortium. No
first-half claims

"22.(1) A body corporate that is a member of a related company group at the
end of the first 6 months of a grant year is not entitled to make a claim in
relation to that 6 months.
Note:     This subsection does not prevent the body corporate from making a
full-year claim in relation to the grant year.

"(2) Subsection (1) does not apply to the grant year beginning on 1 July 1994.
Pro-rating of claims-$250,000 group grant ceiling When this section applies

"23.(1) This section applies to a claim for a grant in relation to a grant
year if:

   (a)  the claimant is a body corporate; and

   (b)  the claim is a full-year claim or a balance-year claim; and

   (c)  at the end of the grant year, the claimant was a member of a related
        company group (the 'claimant's group'); and

   (d)  the amount of the group's gross grants exceeds $250,000.
Note:     'Group's gross grants' is defined by subsection (7).
Pro-rating

"(2) Despite section 16, the amount of the claimant's grant in respect of the
claim is worked out using the formula:
$250,000 - Claimant's gross grant
Group's gross grants where:
'Claimant's gross grant' means the amount that would have been the amount of
the claimant's grant in respect of the claim if it were assumed that this
section had not been enacted. Note: 'Group's gross grants' is defined by
subsection (7). Notification

"(3) The claim must include:

   (a)  a statement to the effect that the claimant was a member of a related
        company group as at the end of the grant year; and

   (b)  a list of the names, company numbers (if applicable) and addresses of
        the bodies corporate that were, to the claimant's knowledge, both:

        (i)    members of the claimant's group at the end of the grant year;
               and

        (ii)   residents of Australia at any time during the grant year; and

   (c)  notes explaining how each listed body was related to each other listed
        body as at the end of the grant year. Note 1: 'Company number' is
        defined by subsection (8). Note 2: 'Knowledge' is given an extended
        meaning by subsections (5) and (6). Note 3: The following is an
        example of the operation of paragraph (3)(c). ABC Ltd and XYZ Ltd are
        listed. ABC Ltd and XYZ Ltd are subsidiaries (within the meaning of
        the Corporations Law) of LKM Holdings PLC (a British company). The
        paragraph (3)(c) notes should explain that ABC Ltd and XYZ Ltd are
        related to each other because they are subsidiaries (within the
        meaning of the Corporations Law) of LKM Holdings PLC. Recovery of
        overpayments

"(4) For the purposes of subsection 40(1), if:

   (a)  an amount of grant was paid to the claimant in respect of the claim;
        and

   (b)  the claim did not comply with subsection (3) of this section; the
        amount is taken to have been paid by the Commission in consequence of
        the making by the claimant of a statement that was false or
        misleading. Note: Section 40 deals with the recovery of overpayments.
        Knowledge of employee of claimant etc.

"(5) For the purposes of establishing a contravention of paragraph (3)(b), the
knowledge of an individual employed by, or concerned in the management of, the
claimant is taken to be knowledge of the claimant. Claimant's knowledge of
other members of related company group

"(6) For the purposes of establishing a contravention of paragraph (3)(b), if,
having regard to:

   (a)  a person's abilities, experience, qualifications and other attributes;
        and

   (b)  all the circumstances surrounding the alleged contravention of that
        paragraph; the person ought reasonably to have known that a body
        corporate was covered by both subparagraphs (3)(b)(i) and (ii), the
        person is taken to have known that the body corporate was covered by
        both of those subparagraphs. Group's gross grants

"(7) For the purposes of this section, the group's gross grants is the total
of the grants that would have been payable in relation to the grant year to
bodies corporate that were members of the claimant's group as at the end of
the grant year if it were assumed that this section had not been enacted. For
the purposes of working out that total, a grant is to be ignored if it is in
respect of a first-half claim. Note: See section 22 for restrictions on
first-half claims. Definition

"(8) In this section:
'company number' means an Australian Company Number or an Australian
Registered Body Number.".

PART 6-NON-EMDG ASSISTANCE SCHEMES ADMINISTERED BY THE COMMISSION 38. Section
11P: Repeal the section, substitute: Non-EMDG assistance schemes administered
by the Commission

"11P. Expenditure incurred in relation to a particular project or activity is
non-claimable expenditure if, at the time when the expenditure is incurred,
the project or activity is approved for the purposes of:

   (a)  the scheme known as the International Trade Enhancement Scheme; or

   (b)  any other scheme that:

        (i)    relates to the provision of financial assistance; and

        (ii)   is administered by the Commission; and

        (iii)  is not embodied in this Act.".
PART 7-OVERSEAS VISIT ALLOWANCE 39. Subsection 11L(5): Omit "claimants",
substitute "persons (in this subsection and subsection (6) called the
'principals')". 40. Subsection 11L(5): Omit "claimant", substitute
"principal". 41. Subsection 11L(5): Omit "claimant's", substitute
"principal's". 42. Subsection 11L(6): Omit "claimant's", substitute
"principal's". 43. Paragraph 11L(6)(a): Omit "claimants", substitute
"principals". 44. Paragraph 11L(6)(b): Omit "claimants", substitute
"principals". 45. Section 11L: Add at the end:

"(7) For the purposes of subsections (5) and (6), if a person to whom this
section applies undertakes, during the visit, qualifying export development
activities on behalf of an approved joint venture or an approved consortium,
the joint venture or consortium is taken to be a principal.".
PART 8-INSOLVENCY OR CONVICTION OF A MEMBER OF AN APPROVED JOINT
VENTURE OR AN APPROVED CONSORTIUM 46. After subsection 11UA(2): Insert:

"(2A) Subject to subsection (3), expenditure of an approved joint venture or
an approved consortium is non-claimable expenditure if it is incurred while
any of the following bodies corporate is under insolvency administration:

   (a)  a body corporate that is a member of the joint venture or consortium;

   (b)  a body corporate that is a partner of a partnership that is a member
        of the joint venture or consortium.". 47. Subsection 11UA(3): Omit "or
        (2)", substitute ", (2) or (2A)". 48. Paragraph 11UA(3)(a): After "the
        body corporate" insert ", or each body corporate,". 49. After
        subsection 11UB(3): Insert:

"(3A) Expenditure of an approved joint venture or an approved consortium is
non-claimable expenditure if it is incurred while any of the following
individuals is under insolvency administration:

   (a)  an individual who is a member of the joint venture or consortium;

   (b)  an individual who is a partner of a partnership that is a member of
        the joint venture or consortium.". 50. After subsection 11YA(5):
        Insert:

"(5A) Expenditure of an approved joint venture or an approved consortium is
non-claimable expenditure if it is incurred:

   (a)  while the person:

        (i)    is a member of the joint venture or consortium; or

        (ii)   is a director of a body corporate that is a member of the joint
               venture or consortium; or

        (iii)  is a partner of a partnership that is a member of the joint
               venture or consortium; and

   (b)  during the ineligible period.".

PART 9-GRANTS IN RELATION TO NEW MARKETS 51. Subsection 15(2): Omit "only
if,", substitute "only to the extent to which,".
PART 10-CRIMINAL RECORDS 52. Section 13: Add at the end:

"(7) The Commission may refuse to consider a claim unless the claimant gives
the Commission such written consents (whether consents of the claimant or of
any other person or persons) as the Commission requires to enable criminal
records to be checked for the purposes of applying sections 11YA and 14A to
the claim.".
PART 11-CAPITAL EXPENDITURE 53. Section 11N: Repeal the section, substitute:
Capital expenditure

"11N. Expenditure of a capital nature is non-claimable expenditure unless it
is expenses of the kind referred to in section 11F, 11J or 11K.".
PART 12-REPUBLIC OF SOUTH AFRICA 54. Section 10: Repeal the section.
PART 13-FRAUD AND FALSE OR MISLEADING STATEMENTS 55. After subsection 39(1):
Insert:

"(1AA) For the purposes of establishing a contravention of subsection (1), if,
having regard to:

   (a)  a person's abilities, experience, qualifications and other attributes;
        and

   (b)  all the circumstances surrounding the alleged contravention of that
        subsection; the person ought reasonably to have known that the amount
        was not payable, the person is taken to have known that the amount was
        not payable.". 56. Paragraphs 39(1A)(a) and (b): Omit the paragraphs,
        substitute:

"(a) obtain, or attempt to obtain, an amount by way of grant by means of a
statement that is false or misleading in a material particular, where the
person:

        (i)    knows that the statement is false or misleading in a material
               particular; or

        (ii)   is reckless as to whether the statement is false or misleading
               in a material particular; or

   (b)  obtain, or attempt to obtain, an amount by way of grant by means of a
        book, record or document that contains information that is false or
        misleading in a material particular, where the person:

        (i)    knows that the book, record or document, as the case requires,
               contains information that is false or misleading in a material
               particular; or

        (ii)   is reckless as to whether the book, record or document, as the
               case requires, contains information that is false or misleading
               in a material particular; or

   (c)  make to the Commission, or to a person having duties or functions
        under this Act, a statement that is false or misleading in a material
        particular, where the first-mentioned person:

        (i)    knows that the statement is false or misleading in a material
               particular; or

        (ii)   is reckless as to whether the statement is false or misleading
               in a material particular.". 57. Paragraph 39(2)(b): After "the
               knowledge" insert "or recklessness". 58. Paragraph 39(2)(b):
               After "be knowledge" insert "or recklessness, as the case
               requires,".
PART 14-CHANGE IN OWNERSHIP OF BUSINESS ETC. 59. Subsection 19(1): Omit "the
Commission is satisfied that". 60. Paragraph 19(1)(b): Omit ", in the opinion
of the Commission, is substantially", substitute "is to any extent". 61.
Subsection 19(1): Omit "the Commission may", substitute "then, unless the
Commission grants a special exemption from this section, the Commission must".
62. Paragraphs 19(1)(c) to (f)(inclusive): Omit "or" (last occurring),
substitute "and". 63. Subsection 19(2): Omit "the Commission is satisfied".
64. Subsection 19(2): Omit "that" (first occurring). 65. Subsection 19(3):
Omit "the Commission is satisfied". 66. Subsection 19(3): Omit "that" (first
occurring). 67. Section 19: Add at the end:

"Note: See section 19A for decision-making principles.". 68. After section 19:
Insert: Decision-making principles-section 19 Principles

"19A.(1) The Commission may formulate written principles ('decision-making
principles') to be complied with by the Commission in making decisions under
section 19. Compliance with principles

"(2) In making a decision under section 19, the Commission must comply with
any relevant decision-making principles. Disallowable instruments

"(3) Decision-making principles are disallowable instruments for the purposes
of section 46A of the Acts Interpretation Act 1901.".

PART 15-GUIDELINES CONCERNING TRADING HOUSES, APPROVED JOINT
VENTURES, AND APPROVED CONSORTIA 69. After subsection 41(4): Insert:

"(4A) The Commission may, at any time, and whether or not within 90 days after
the Export Market Development Grants Amendment Act  (No. 2) 1990 receives the
Royal Assent, repeal, replace or amend guidelines made under this section.".
70. After subsection 42(4): Insert:

"(4A) The Commission may, at any time, and whether or not within 90 days after
the Export Market Development Grants Amendment Act  (No. 2) 1990 receives the
Royal Assent, repeal, replace or amend guidelines made under this section.".

NOTE ABOUT SECTION HEADING 1. On the commencement of the amendments of section
11E of the Export  Market Development Grants Act 1974 made by this Act, the
heading to that section is altered by omitting "or eligible tourism services"
and substituting ", eligible tourism services or designated tourism services".