Export Market Development Grants (Close Relationships — General) Determination 2016

Overview

The Export Market Development Grants (Close Relationships – General) Determination 2016 was made by the Minister for Trade and Investment under the Export Market Development Grants Act 1997 (EMDG Act). The primary purpose of this Determination is to provide guidelines for the Chief Executive Officer of Austrade when assessing whether an entity is closely related to another in relation to eligibility for export market development grants. The EMDG Act allows for grants to be awarded to Australian businesses that have incurred expenses promoting exports of their goods, services, intellectual property rights, and know-how. The Determination was introduced to ensure that payments are not made to entities that are connected to or have influence over the applicant, thereby maintaining the integrity of the grant process. Extensive stakeholder consultations were undertaken by Austrade, with all responses supporting the unchanged remake of this instrument. The Determination applies to grants made on or after 1 July 2016, replacing the previous determination from 2002.

Scope and Application

The Export Market Development Grants (Close Relationships – General) Determination 2016 applies to the Chief Executive Officer (CEO) of Austrade when forming an opinion on whether an entity is closely related to another entity for the purposes of Division 2 of Part 5 of the Export Market Development Grants Act 1997. The determination provides the CEO with guidelines to ensure that payments are not made to entities that are connected to or have an influence over the applicant for a grant. This legislation is applicable to all entities seeking export market development grants under the Act and operates within the Commonwealth jurisdiction. The determination is subject to review by the Administrative Appeals Tribunal, and it repeals and replaces the previous Export Market Development Grants (Close Relationships – General) Determination 2002, effective from 1 July 2016. Extensive stakeholder consultations were conducted before the instrument was remade, and it was deemed compatible with human rights under the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Export Market Development Grants (Close Relationships – General) Determination 2016, made under section 101(1)(b) of the Export Market Development Grants Act 1997, outlines the criteria and guidelines to be followed by the Chief Executive Officer (CEO) of Austrade when determining whether an entity is closely related to another entity for the purposes of grant eligibility under Division 2 of Part 5 of the EMDG Act (section 1). This Determination serves to prevent payments to entities that are connected to or have influence over the applicant, ensuring that the grants are awarded to genuinely eligible businesses. The obligations imposed by this Determination on the CEO of Austrade include assessing the relationship between entities based on the provided guidelines to ascertain whether one entity is closely related to another. This involves considering factors such as ownership, control, and shared management or decision-making processes. The CEO must make a reasoned determination and document the basis for their decision, ensuring transparency and accountability in the grant application process. These decisions are subject to review by the Administrative Appeals Tribunal if contested by the involved parties. In the event of non-compliance with the Determination or fraudulent misrepresentation of an entity's relationship status, there may be legal consequences. While the Determination itself does not specify particular offences or penalties, breaches of the EMDG Act or related acts could result in civil or criminal penalties. For example, under section 128 of the EMDG Act, a person who knowingly makes a false statement or representation in connection with an application for a grant may be liable to a civil penalty of up to $22,200 for a corporation or $4,440 for an individual, or face criminal charges if the offence is considered serious enough, which could result in imprisonment. Decisions made under this Determination are subject to review in the Administrative Appeals Tribunal, providing a mechanism for addressing any disputes or grievances related to the application of the Determination.