Allocated Bullion Exchange Limited and Australian Trade and Investment Commission

This matter concerned an appeal by Allocated Bullion Exchange Limited (ABX) against a decision by the Australian Trade and Investment Commission (Austrade) to refuse an application for an Export Market Development Grant (EMDG). The decision was heard by D R Davies SM in the Administrative Appeals Tribunal. The core of the dispute revolved around whether ABX's principal business activity constituted an eligible service for the purposes of the EMDG Act.

The Tribunal was required to determine several key issues. Firstly, it needed to ascertain ABX's principal business activity, specifically whether it was the provision of a service or the purchase and sale of goods. If it was determined to be a service, the Tribunal had to consider if it qualified as an eligible non-tourism service under Section 25(4) of the EMDG Act. Furthermore, if it was an eligible non-tourism service, the Tribunal had to assess whether the Australian input was sufficient to ensure a significant net benefit to Australia, as mandated by Section 25(4). Finally, if ABX's principal activity was the purchase and sale of goods, the Tribunal had to determine if these were eligible goods under Section 24 of the Act.

The Tribunal found that ABX's principal business activity was the provision of a service, specifically operating an electronic exchange and marketplace for trading allocated physical precious metals. This service encompassed trade execution, clearing, settlement, platform services, and storage, logistics, and assurance services. However, the Tribunal concluded that ABX's services were not eligible under the EMDG Act. It found that the services were not related to the sale or purchase of assets in Australia, nor were they services relating to the protection, operation, or maintenance of assets held in Australia, particularly as the majority of precious metals were stored overseas. Crucially, the Tribunal determined that the Australian input in ABX's service was insufficient to ensure a significant net benefit to Australia, thereby failing to satisfy Section 25(4) of the EMDG Act.

Consequently, the Tribunal affirmed Austrade's decision, holding that ABX's services were not eligible under Section 25 of the EMDG Act for the grant year 2013/2014. Therefore, ABX's application for an Export Market Development Grant was dismissed.