Export Market Development Grants (Associate and Fit and Proper Person) Amendment Guideline 2014 (No. 1)
I, Andrew Robb AO, Minister for Trade and Investment, make the following guideline.
Dated 29 May 2014
Andrew Robb AO
Minister for Trade and Investment
Contents
1............ Name of guideline......................................................................................................... 1
2............ Commencement............................................................................................................. 1
3............ Authority....................................................................................................................... 1
4............ Schedule(s).................................................................................................................... 1
Schedule 1—Amendments 2
Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2004 2
1 Name of guideline
This guideline is the Export Market Development Grants (Associate and Fit and Proper Person) Amendment Guideline 2014 (No. 1).
2 Commencement
This guideline commences on the day after it is registered.
3 Authority
This guideline is made under the Export Market Development Grants Act 1997.
4 Schedule(s)
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments
Export Market Development Grants (Associate and Fit and Proper Person) Guidelines 2004
1 Part 2
Repeal the Part, substitute:
Part 2—Guidelines 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.
(3) A determination that was:
(a) made under Part 2 as in force immediately before the day this subsection commences; and
(b) in force immediately before that day;
continues in force, on and after that day, as if it were a determination under subsection 2.1(3) as in force on and after that day.
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.
2 Part 3 (heading)
Repeal the heading, substitute:
Part 3—Guidelines about whether an applicant for a grant or an associate is a fit and proper person
3 Section 3.1
Omit “Austrade”, substitute “the CEO of Austrade”.
4 Section 3.2
Omit “Austrade” (first occurring), substitute “The CEO of Austrade”.
5 Section 3.2 (note)
Omit “Austrade”, substitute “the CEO of Austrade”.
6 Section 3.3
Omit “Austrade must”, substitute “The CEO of Austrade must”.
7 Paragraph 3.3(d)
Omit “Austrade”, substitute “the CEO”.
8 Section 3.4
Omit “Austrade”, substitute “The CEO of Austrade”.
9 Section 3.5
Omit “Austrade”, substitute “The CEO of Austrade”.
10 Section 3.6
Omit “Austrade”, substitute “The CEO of Austrade”.
11 Section 3.6
Omit “it considers”, substitute “the CEO considers”.
12 At the end of the Guidelines
Add:
Part 4—Guidelines 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.
