EXPLANATORY STATEMENT
Export Market Development Grants Regulations 2018
Authority
The Export Market Development Grants Regulations 2018 is made by the Governor-General under Section 106 of the Export Market Development Grants Act 1997 (the EMDG Act).
Section 106 of the EMDG Act empowers the Governor-General to make regulations, first, by reason of s 106(1)(a), prescribing matters required or permitted by the EMDG Act to be prescribed, and, second (and separately), by reason of s 106(1)(b), prescribing matters "necessary or convenient" to be prescribed for the carrying out or giving effect to the EMDG Act.
Purpose
The Regulations detail:
- How Austrade calculates the Payout Factor for second tranche payments to EMDG recipients (Part 2)
- The procedures the CEO of Austrade must follow when dealing with an application for approval as an approved body and for approval as a joint venture (Part 3)
- Services that are tourism services not non-tourism services (Part 4).
Background
The EMDG Act provides for grants to eligible Australian businesses which have incurred eligible 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.
With the exception of the calculation of the Payout Factor for second tranche payments, decisions made under these Regulations are subject to review in the Administrative Appeals Tribunal.
The Export Market Development Grants Regulations 2018 is a disallowable instrument.
Commencement
This Regulation is made to repeal and replace the Export Market Development Grants Regulations 2008, which is due to sunset on 1 October 2018.
The Regulation is the same in substance as the Export Market Development Grants Regulations 2008 with the exception of three redundant provisions, which have be removed:
- Part 5 – Applications for approval – trading houses. (Trading Houses have not been a part of the EMDG scheme since the 2010-11 grant year).
- Part 5A – Applications for approval – grant years ending on or before 30 June 2009
- Section 6.3 – Services for grant years ending on or before 30 June 2008.
The Regulation has been redrafted to bring it into line with current drafting directions and styles.
The Regulations apply when calculating entitlement to a grant in respect of an application for a grant made on or after 1 July 2018.
Consultation
Austrade conducted extensive stakeholder consultations before remaking this instrument. All stakeholder responses supported this instrument being remade with the redundant provisions removed.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required (reference: OBPR 22807).
The Regulations is a Legislative Instrument for the purposes of the Legislation Act 2003.
This Guideline is compatible with human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Export Market Development Grants Regulations 2018
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2001.
Overview of the Legislative Instrument
The Legislative Instrument details:
- How Austrade calculates the Payout Factor for second tranche payments to EMDG recipients.
- The procedures the CEO of Austrade must follow when dealing with an application for approval as an approved body and for approval as a joint venture.
- Services that are tourism services and not non-tourism services.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Overview
The Export Market Development Grants Regulations 2018, enacted by the Governor-General under Section 106 of the Export Market Development Grants Act 1997, aim to clarify and update the procedures and calculations related to the Export Market Development Grants scheme. This scheme provides grants to eligible Australian businesses to partially reimburse expenses incurred in promoting the export of their goods, services, intellectual property rights, and know-how. The Regulations address the need for modernising the regulatory framework by repealing and replacing the outdated Export Market Development Grants Regulations 2008, removing redundant provisions, and aligning with current drafting standards. The Regulations also detail how Austrade calculates the Payout Factor for second tranche payments, the procedures for approving bodies and joint ventures, and the distinction between tourism and non-tourism services. The policy objective is to streamline the grant application and approval process while ensuring compliance with human rights, as confirmed by the Office of Best Practice Regulation and the Office of Parliamentary Counsel.
Scope and Application
The Export Market Development Grants Regulations 2018 applies to eligible Australian businesses that have incurred eligible expenses promoting the export of their Australian goods, services, intellectual property rights, and know-how, and to the Australian Trade and Investment Commission (Austrade), which administers the Export Market Development Grants (EMDG) scheme under the Export Market Development Grants Act 1997 (EMDG Act). The Act and its Regulations are a Commonwealth instrument, and therefore operate nationally across Australia. The Regulations specify how Austrade calculates the Payout Factor for second tranche payments to EMDG recipients, detail the procedures the CEO of Austrade must follow when dealing with applications for approval as an approved body and for approval as a joint venture, and define services that are considered tourism services rather than non-tourism services. Notably, decisions made under these Regulations, except for the calculation of the Payout Factor, are subject to review in the Administrative Appeals Tribunal. The Regulations extend the application of the EMDG Act through subordinate instruments by providing detailed operational procedures and definitions necessary for the implementation of the Act.
Key Provisions
The Export Market Development Grants Regulations 2018 (the Regulations) provide specific operational details for the Export Market Development Grants Act 1997 (the EMDG Act). These Regulations are structured into several parts, with Part 2 focusing on the calculation of the Payout Factor for second tranche payments to EMDG recipients (Section 4), and Part 3 outlining the procedures the Chief Executive Officer (CEO) of Austrade must follow for applications for approval as an approved body or a joint venture (Sections 5 and 6). Part 4 details the definition of tourism services versus non-tourism services (Section 7). These provisions are integral in ensuring that eligible Australian businesses can receive the appropriate grants for promoting exports.
Under the Regulations, Austrade is required to follow specific procedures when handling applications for approval of bodies and joint ventures. For example, Section 5 outlines the process for an application to become an approved body, which includes a detailed review by the CEO to determine eligibility based on certain criteria. Similarly, Section 6 specifies the steps for approving a joint venture, ensuring that both parties involved meet the necessary requirements set out in the EMDG Act. The Regulations also provide clarity on what constitutes a tourism service under Section 7, which is crucial for determining eligibility for the grants.
Failure to comply with the obligations and requirements set forth in the Regulations can lead to various consequences. Although the calculation of the Payout Factor is not subject to review, other decisions made under these Regulations can be reviewed in the Administrative Appeals Tribunal. The Regulations also impose civil and criminal penalties for breaches, though the specific penalties are detailed within the EMDG Act itself. It is important for entities and individuals governed by these Regulations to adhere to the stipulated procedures and definitions to avoid potential legal repercussions.
The Regulations also provide clarity on the consequences of non-compliance. While the specific penalties for breaches are detailed in the EMDG Act, it is clear that failure to follow the prescribed procedures or incorrect classification of services can lead to significant repercussions. These can include financial penalties, legal challenges, and potential disqualification from receiving grants. Therefore, it is essential for all parties involved to fully understand and comply with the Regulations to avoid any adverse outcomes.