Export Market Development Grants (Export Performance Requirements) Instrument 2018 (Cth)

Export Market Development Grants (Export Performance Requirements) Instrument 2018

made under paragraph 63(3)(f) of the

Export Market Development Grants Act 1997

Compilation No. 1

Compilation date:   17 June 2020

Includes amendments up to:            F2020L00722

Registered:   23 June 2020

About this compilation

This compilation

This is a compilation of the Export Market Development Grants (Export Performance Requirements) Instrument 2018 that shows the text of the law as amended and in force on 17 June 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary  1

1............ Name............................................................................................................................. 1

3............ Authority....................................................................................................................... 1

5............ Definitions..................................................................................................................... 1

5A......... Instrument does not apply to 2019‑20 grant year.......................................................... 1

Part 2—Export earnings  2

6............ Export earnings of an applicant..................................................................................... 2

7............ Export earnings of an approved joint venture................................................................ 4

8............ Export earnings—adjustments by the CEO of Austrade............................................... 4

9............ Seller taken to export eligible goods in certain circumstances........................................ 4

10.......... Export earnings of related entity.................................................................................... 4

Part 3—Provisional grant amount  5

11.......... Working out the provisional grant amount—an applicant who is not an approved body and who is a grantee for at least 2 previous grant years...................................................................................................... 5

Part 4—Transitional provisions  6

12.......... Savings—old law.......................................................................................................... 6

Endnotes7

Endnote 1—About the endnotes  7

Endnote 2—Abbreviation key  8

Endnote 3—Legislation history  9

Endnote 4—Amendment history  10

Part 1—Preliminary

1  Name

This instrument is the Export Market Development Grants (Export Performance Requirements) Instrument 2018.

3  Authority

This instrument is made under paragraph 63(3)(f) of the Export Market Development Grants Act 1997.

5  Definitions

Note:          A number of expressions used in this instrument are defined in the Act, including the following:

(a)    approved activity, project or purpose;

(b)    approved body;

(c)    approved joint venture;

(d)    CEO of Austrade;

(e)    eligible products;

(f)    export;

(g)    grantee;

(h)    grant year;

(i)     person;

(j)     resident of Australia;

(k)    sale;

(l)     supply.

In this instrument:

Act means the Export Market Development Grants Act 1997.

export earnings for a grant year has the meaning given by section 6, 7 or 8.

related entity has the meaning given by subsection 37(4) of the Act.

5A  Instrument does not apply to 2019‑20 grant year

This instrument does not apply to the grant year that began on 1 July 2019.

Part 2—Export earnings

6  Export earnings of an applicant

(1)  Subject to this section, and sections 7 and 8, an applicant’s export earnings for a grant year is the sum of the applicant’s relevant earnings in the grant year for eligible products.

(2)  For the purposes of subsection (1), the relevant earnings for an eligible product described in column 1 of an item of the following table are worked out using column 2 of that item.

Export earnings
Item	Column 1 Eligible products	Column 2 Relevant earnings
1	Eligible goods: (a) made in or outside Australia; and (b) exported by the applicant from Australia; and (c) sold by the applicant at any time to a person that is not a resident of Australia	The amount or value of the consideration received during the grant year for the sale and export of the goods that is attributable to the free on board value of the goods
2	Eligible goods: (a) made in or outside Australia; and (b) not exported from Australia; and (c) sold outside Australia by the applicant to a person that is not a resident of Australia	The amount or value of the consideration received during the grant year for the sale of the goods
3	An eligible non‑tourism service sold at any time by the applicant to a person that is not a resident of Australia	The amount or value of the consideration received during the grant year for the sale of the service less the amount of the consideration that is, in the CEO of Austrade’s opinion, paid or payable outside Australia in relation to the service
4	An eligible event marketed by the applicant under a written contract between the applicant and the event holder	The amount or value of the consideration received by the event holder during the grant year for: (a) the sale of goods to persons attending the event who are not residents of Australia; and (b) services in connection with the event (including participation in the event)
5	An eligible tourism service sold by the applicant: (a) to an inbound tour operator who is a resident of Australia; and (b) for sale by the inbound tour operator, in the course of trade, to a person that is not a resident of Australia	20% of the amount or value of the consideration received during the grant year for the sale of the service to the inbound tour operator
6	An eligible tourism service sold at any time by an applicant who is an inbound tour operator to a person that is not a resident of Australia	80% of the amount or value of the consideration received during the grant year for the sale of the service
7	An eligible tourism service sold at any time by an applicant who is not an inbound tour operator to a person that is not a resident of Australia	The amount or value of the consideration received during the grant year for the sale of the service
8	Eligible intellectual property or eligible know‑how disposed of at any time by the applicant, being a disposal mentioned in section 111 of the Act	The amount or value of the consideration received during the grant year for the disposal

(3)  Any consideration for the sale, supply or disposal of an eligible product in the following circumstances is to be disregarded in working out the export earnings of the applicant:

(a)  a sale, supply or disposal of an eligible product in the course of trade with New Zealand;

(b)  if the applicant is a member of an approved joint venture—a sale, supply or disposal of an eligible product that relates directly to the approved activity, project or purpose of the joint venture.

(4)  In working out the export earnings of an applicant who has applied for a grant in the capacity of trustee of a trust estate, disregard any earnings of the applicant that are not derived from the business carried on for the trust estate.

(5)  In working out the export earnings of an applicant who:

(a)  has applied for a grant in the applicant’s own right; and

(b)  is also a trustee, or a beneficiary, of a trust estate;

disregard any earnings of the applicant from the business carried on for the trust estate.

(6) In working out the export earnings of an applicant, disregard any earnings of the applicant related to trade with a country that the Minister has declared, for the purposes of section 44 of the Act, to be subject to trade sanctions.

(7)  For the purposes of item 2 of the table in subsection (2), if the goods are exported from one country to another, the amount or value of the consideration is the free on board value of the goods from the country of delivery.

7  Export earnings of an approved joint venture

(1)  This section applies if the applicant is an approved joint venture.

(2)  The export earnings of an approved joint venture for a grant year is the sum of the export earnings, calculated in accordance with section 6, of each member of the joint venture whose income for the grant year is not more than $50,000,000, excluding any export earnings of a member that:

(a)  are not for the approved activity, project or purpose of the joint venture; or

(b)  were earned at a time during the grant year when the member was not a resident of Australia.

8  Export earnings—adjustments by the CEO of Austrade

Despite sections 6 and 7, if the amount of export earnings of the applicant for a grant year is adjusted under subsection 96(3) of the Act, the adjusted amount is taken to be the applicant’s export earnings for the grant year.

Note: The CEO of Austrade may make decisions of an administrative character under section 96 of the Act.

9  Seller taken to export eligible goods in certain circumstances

For the purposes of this Part, if:

(a)  the applicant (the seller) sells eligible goods at a time when the goods are in Australia; and

(b)  the buyer later exports the goods;

the seller (not the buyer) is taken to export the goods.

10  Export earnings of related entity

For the purposes of this Part, if:

(a)  the applicant is incorporated under the Corporations Act 2001; and

(b)  the applicant incurs expenses in promoting export sales for a related entity of the applicant; and

(c)  the applicant includes the expenses in a claim for a grant;

the amount of any export earnings of the related entity attributable to the promotion of export sales by the applicant is taken to have been earned by the applicant.

Part 3—Provisional grant amount

11  Working out the provisional grant amount—an applicant who is not an approved body and who is a grantee for at least 2 previous grant years

For the purposes of paragraph 63(3)(f) of the Act, the amount for an applicant and a grant year is the amount obtained by multiplying the applicant’s export earnings for the grant year by the applicable percentage set out in the following table.

Applicable percentage
Item	Number of grant years in respect of which the applicant is a grantee (including the year for which the amount is being ascertained)	Percentage
1	3	40
2	4	20
3	5	10
4	6	7.5
5	7	5
6	8	5

Note: This section is relevant only to an applicant who is not an approved body and who is a grantee in respect of 2 or more previous grant years. The amount ascertained in accordance with this section may be the provisional grant amount for the applicant. See subsection 63(3) of the Act.

Part 4—Transitional provisions

12  Savings—old law

Despite the repeal of the Export Market Development Grants (Export Performance Requirements) Determination 2008 by Schedule 1 to this instrument, that determination continues to apply to working out the provisional grant amount of an applicant in relation to an application for a grant made before 1 July 2018.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Endnote 3—Legislation history

Name	Registration	Commencement	Application, saving and transitional provisions
Export Market Development Grants (Export Performance Requirements) Instrument 2018	16 Feb 2018 (F2018L00122)	1 July 2018 (s 2(1) item 1)
Export Market Development Grants (Export Performance Requirements) Amendment (2019‑20 Grant Year) Instrument 2020	16 June 2020 (F2020L00722)	17 June 2020 (s 2(1) item 1)	—

Endnote 4—Amendment history

Provision affected	How affected
Part 1
s 2.............................................	rep LA s 48D
s 4	rep LA s48C
s 5A..........................................	ad F2020L00722
Schedule 1................................	rep LA s 48C