EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 150
Export Market Development Grants Act 1997
Export Market Development Grants Amendment Regulations 2008 (No. 1)
The Export Market Development Grants Act 1997 (the Act) provides for grants to specified Australian businesses which have incurred specified expenses promoting the export of their Australian goods, services, intellectual property rights and know-how. The grant is a partial reimbursement of the expenses incurred.
Subsection 106(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Export Market Development Grants Regulations (1997 Regulations) were made under subsection 106(1) of the Act on 9 July 1997.
The Export Market Development Grants Amendment Act 2008 (the Amendment Act) amended provisions in the Act to allow bodies representing the interests of an industry or of a substantial part of an industry to be able to apply to be approved bodies and to provide that all non-tourism services are eligible for Export Market Development Grant (EMDG) support unless specified in the Regulations.
The Export Market Development Grants Regulations 2008 (the 2008 Regulations) were made on 24 June 2008 to give effect to these two amendments. The 2008 Regulations commenced on 1 July 2008 and repealed the 1997 Regulations.
During the drafting of the 2008 Regulations, the fact that some sections of the 1997 Regulations should have continued to apply to applications received for 2007-08 and earlier grant years was overlooked. The 2008 Regulations should not apply to EMDG applications made in respect of the 2007-08 and earlier grant years because the Amendment Act provides for its changes to only apply to applications received for the 2008-09 grant year and later grant years.
The Regulations contain transitional provisions to remedy this oversight. For 2007-08 and earlier grant year EMDG applications, the Regulations provide that the CEO of Austrade must consider an application for approved body status in accordance with the 1997 Regulations and with a set of guidelines made under the Act as in force immediately before 1 July 2008. For these applications, the Regulations also specify that the rules contained in the 1997 Regulations are to be used to determine the eligibility of services under the EMDG Act.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Austrade has not consulted with other organisations during the preparation of these Regulations because they implement the policy implicit in the Amendment Act.
Austrade’s decisions under the Regulations are subject to review in the Administrative Appeals Tribunal.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Overview
The Export Market Development Grants Act 1997 was enacted to provide grants to Australian businesses that have incurred expenses promoting the export of their goods, services, intellectual property rights, and know-how. The Act allows for partial reimbursement of these expenses. The Export Market Development Grants Amendment Act 2008 amended the original Act to allow industry representative bodies to apply for approval and to include all non-tourism services in eligibility for grants unless otherwise specified in the Regulations. The Export Market Development Grants Amendment Regulations 2008 were made to implement these amendments, but they incorrectly applied to earlier grant years. These Regulations were subsequently amended to ensure that the 1997 Regulations continue to apply to applications for 2007-08 and earlier grant years. This instrument was made by Austrade and is subject to review by the Administrative Appeals Tribunal.
Scope and Application
The Export Market Development Grants Act 1997 applies to specific Australian businesses that have incurred expenses in promoting the export of Australian goods, services, intellectual property rights, and know-how, offering them a partial reimbursement of these expenses through grants. The scope of the Act is further defined by the Export Market Development Grants Amendment Act 2008, which allows industry bodies to apply for approval and expands eligibility to all non-tourism services unless specified in the regulations. These regulations are designed to facilitate the administration of the grants and are subject to review by the Administrative Appeals Tribunal. The geographic reach of the Act is national, impacting businesses across Australia. However, the application of certain regulations may vary based on the grant year of the application, with transitional provisions ensuring that applications for the 2007-08 and earlier years adhere to the 1997 Regulations. The Act's subordinate instruments, including the Export Market Development Grants Amendment Regulations 2008, extend and refine the application of the primary Act, ensuring that the legislative intent is accurately implemented.
Key Provisions
The Export Market Development Grants Act 1997 (the Act) provides grants to Australian businesses that have incurred specified expenses promoting the export of their Australian goods, services, intellectual property rights, and know-how. These grants are partial reimbursements of the expenses incurred. Section 106(1) of the Act allows the Governor-General to make regulations to prescribe matters required or permitted by the Act, or to facilitate its implementation. The Export Market Development Grants Amendment Act 2008 (the Amendment Act) introduced amendments to the Act, allowing bodies representing the interests of an industry or a substantial part of an industry to apply to be approved bodies and ensuring that all non-tourism services are eligible for Export Market Development Grant (EMDG) support unless specified in the regulations.
Under the Act, businesses must meet certain criteria to be eligible for an EMDG. They must incur specified expenses related to promoting exports and must apply for the grant through an approved body. The approved bodies, which can now include industry representative bodies under the Amendment Act, assess the eligibility of businesses and the expenses incurred. The Export Market Development Grants Amendment Regulations 2008 (the 2008 Regulations) provide further detail on these processes. For example, the 2008 Regulations specify the procedures for applying for approved body status and for determining the eligibility of services for EMDG support. They also include transitional provisions to ensure that the 1997 Regulations continue to apply to applications received for the 2007-08 and earlier grant years.
The obligations imposed by the Act and the 2008 Regulations on the parties they govern include the requirement for businesses to incur specified expenses for export promotion, for approved bodies to assess the eligibility of businesses and their expenses, and for the CEO of Austrade to consider applications for approved body status in accordance with the 1997 Regulations for applications received for the 2007-08 and earlier grant years. The 2008 Regulations also include provisions for the review of Austrade's decisions by the Administrative Appeals Tribunal.
The Act does not explicitly outline offences, penalties, or consequences for breach. However, non-compliance with the regulations or failure to meet the eligibility criteria could result in the denial of grant applications. Additionally, any actions taken by Austrade under the Regulations are subject to review by the Administrative Appeals Tribunal, providing a mechanism for addressing potential breaches or errors in decision-making.