Textile, Clothing and Footwear Strategic Investment Program Scheme 1999

Textile, Clothing and Footwear Strategic Investment Program Scheme 1999

as amended

made under section 8 of the

Textile, Clothing and Footwear Strategic Investment Program Act 1999

This compilation was prepared on 1 March 2005
taking into account amendments up to Textile, Clothing and Footwear
Strategic Investment Program Scheme Amendment 2005 (No. 1)

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

Contents

Part 1 Introductory

 1 Name of Scheme [see Note 1]

 2 Commencement [see Note 1]

 3 Definitions 

 4 Meaning of Australian-based

 5 Meaning of eligible TCF activity

 6 Meaning of pre-program year and program year

 7 Meaning of sample production

 8 Meaning of TCF-dependent community

 9 Meaning of total eligible revenue

 10 References to an entity 

 11 References to a grant for a program year 

 12 References to the cost or price of plant, equipment etc 

Part 2 Types of grant

Division 2.1 Introductory

 13 Types of grant 

Division 2.2 Type 1 grants

 14 What is a Type 1 grant 

 15 What is eligible expenditure for a Type 1 grant 

Division 2.3 Type 2 grants

Subdivision 2.3.1 Activities for Type 2 grants

 16 What is a Type 2 grant 

 17 Research and development activities 

 18 Innovative product design 

 19 Innovative process improvement 

 20 Brand support 

 21 Market research 

 22 Obtaining industrial property rights 

Subdivision 2.3.2 Eligible expenditure for Type 2 grants

 23 What is eligible expenditure for a Type 2 grant 

 24 Expenditure on research and development activities 

 25 Expenditure on product development activities 

 26 Expenditure on travel not eligible 

Division 2.4 Type 3 grants

 27 What is a Type 3 grant 

 28 What is eligible TCF value added by an entity 

Division 2.5 Type 4 and Type 5 grants

 29 What is a Type 4 or Type 5 grant 

 30 What is eligible expenditure for a Type 4 or Type 5 grant 

 30A Total eligible revenue for restructuring initiatives 

 30B What is eligible TCF value added by a resultant entity 

Part 3 Registration of entities for Type 1, Type 2 and Type 3 grants

 31 Application for registration for Type 1, Type 2 and Type 3 grants 

 32 Financial statements etc 

 33 Description of activities and estimates of expenditure 

 34 Strategic business intent 

 35 Strategic business plan 

 36 Election of pro rata and method of determination options for Type 1 grant             

 37 Additional information 

 38 Time limits for registration 

 39 Registration of entity 

 40 Effects of registration 

 41 Application for renewal of registration 

 42 Renewal of registration 

 43 Extension of time for registration or renewal 

 44 Notice of registration or refusal to register etc 

 45 Effect of non-registration 

 46 Register of entities 

 47 Notice of likely change in eligible expenditure 

Part 4 Notice of intention to claim for Type 4 or Type 5 grant

 48 Notice of intention to claim for Type 4 or Type 5 grant 

 49 Information to be given with notice of intent 

 50 Additional information 

 51 Consideration of notice of intention 

Part 4A Regular advances of grants

Division 4A.1 Introductory

 51A Effect of Part 

 51B What is a regular advance of a grant 

 51C Effect of non-registration 

 51D References to a regular advance of a grant for a program year 

Division 4A.2 Regular advances of Type 1, Type 2 and Type 3 grants

Subdivision 4A.2.1 Requests for regular advances of Type 1, Type 2 and Type 3 grants

 51E Requests for regular advances of Type 1, Type 2 and Type 3 grants 

 51F Information in support of requests for regular advances of Type 1, Type 2 and Type 3 grants             

 51G When requests for regular advances of Type 1, Type 2 and Type 3 grants must be made — pre-program and early program years             

 51H When requests for regular advances of Type 1, Type 2 and Type 3 grants must be made — later program years             

Subdivision 4A.2.2 Assessment of eligibility for regular advances of Type 1, Type 2 and Type 3 grants

 51I Assessment of eligibility for regular advances of Type 1, Type 2 and Type 3 grants             

 51J Entity no longer carrying on eligible TCF activity 

 51K Arms length expenditure — regular advances of Type 1, Type 2 and Type 3 grants             

 51L Pro rata adjustment of eligible expenditure for regular advances of Type 1 grants             

 51M Cap for regular advances of Type 1 grants 

 51N Cap for regular advances of Type 2 grants 

 51O Cap for regular advances of Type 3 grants 

 51Q Alternative calculation of amount — regular advances of Type 1 grants 

 51R Threshold expenditure for pre-program years — regular advances of Type 1 grants             

 51S Threshold expenditure for regular advances of Type 1, Type 2 and Type 3 grants — program years             

 51T Minimum additional expenditure 

Subdivision 4A.2.3 Notice of decisions and payment of regular advances of Type 1, Type 2 and Type 3 grants

 51U Notice of decisions — regular advances of Type 1, Type 2 and Type 3 grants             

 51UA Resolution of requests for regular advances of Type 1, Type 2 and Type 3 grants in modulation year             

 51V Payment of regular advances of Type 1, Type 2 and Type 3 grants 

Division 4A.3 Regular advances of Type 4 and Type 5 grants

Subdivision 4A.3.1 Requests for regular advances of Type 4 and Type 5 grants

 51W Requests for regular advances of Type 4 and Type 5 grants 

 51X Information in support of requests for regular advances of Type 4 and Type 5 grants             

 51Y When requests for regular advances of Type 4 and Type 5 grants must be made             

Subdivision 4A.3.2 Assessment of eligibility for Type 4 and Type 5 grants

 51Z Assessment of eligibility for regular advances of Type 4 and Type 5 grants             

 51ZA Entity no longer carrying on eligible TCF activity 

 51ZB State-of-the art TCF plant or equipment — regular advances of Type 4 grants             

 51ZC Arms length expenditure — regular advances of Type 4 and Type 5 grants             

 51ZD Cap for regular advances of Type 4 and Type 5 grants 

Subdivision 4A.3.3 Notice of decisions and payment of regular advances of Type 4 and Type 5 grants

 51ZF Notice of decisions — regular advances of Type 4 and Type 5 grants 

 51ZG Payment of regular advances of Type 4 and Type 5 grants 

Part 5 Claims for grants

Division 5.1 Making a claim

Subdivision 5.1.1 Claims for a Type 1, Type 2 or Type 3 grant

 52 Claim for Type 1, Type 2 or Type 3 grant 

 53 Information in support of a claim for Type 1, Type 2 or Type 3 grant 

 54 When claim for Type 1, Type 2 or Type 3 grant must be made 

Subdivision 5.1.2 Claims for Type 4 or Type 5 grant

 56 Claim for Type 4 or Type 5 grant 

 57 Information in support of claim for Type 4 or Type 5 grant 

 58 When claim for Type 4 or Type 5 grant must be made 

Subdivision 5.1.3 Extension of time for making claim

 59 Extension of time for making claim 

 59A Effect of extension for modulation year 

 60 Notice of decision about extending claim period 

Division 5.2 Assessment of claims

Subdivision 5.2.1 Assessment of eligibility for Type 1, Type 2 and Type 3 grants

 61 Assessment of eligibility for Type 1, Type 2 and Type 3 grants 

 62 Arms length expenditure — Type 1, Type 2 and Type 3 grants 

 63 Pro rata adjustment of eligible expenditure for Type 1 grants 

 64 Cap for Type 1 grants 

 65 Cap for Type 2 grants 

 66 Cap for Type 3 grants 

 67 Period for assessment and notice of decisions — Type 1, Type 2 and Type 3 grants             

 67A Resolution of claims — eligibility for Type 1, Type 2 and Type 3 grants for modulation year             

 68 Effect of decision as to eligibility for Type 1, Type 2 and Type 3 grants 

 68A Deferred amount for modulation year 

 68B Special cap arrangements: section 14A entities 

Subdivision 5.2.2 Assessment of eligibility for Type 4 and Type 5 grants

 69 Assessment of eligibility for Type 4 and Type 5 grants 

 70 State-of-the art TCF plant or equipment — Type 4 grants 

 71 Arms length expenditure — Type 4 and Type 5 grants 

 72 Cap for Type 4 and Type 5 grants 

 73 Notice of decisions — Type 4 and Type 5 grants 

 74 Effect of decision as to eligibility for Type 4 and Type 5 grants 

Division 5.3 Determination and payment of claims

Subdivision 5.3.1 Determination and payment of claims — Type 1, Type 2 and Type 3 grants

 74A Meaning of determination

 75 Request for determination and payment of Type 1, Type 2 and Type 3 grants             

 76 Determination of entitlement — Type 1, Type 2 and Type 3 grants 

 77 Alternative determination of entitlement — Type 1 grants 

 78 Threshold expenditure for pre-program years — Type 1 grants 

 79 Threshold expenditure for Type 1, Type 2 and Type 3 grants 

 80 Minimum additional expenditure 

 81 Determination and payment of Type 1, Type 2 and Type 3 grants 

 81A Revocation and remaking of determinations etc 

Subdivision 5.3.2 Determination of entitlement — Type 4 and Type 5 grants

 82 Request for determination of a Type 4 or Type 5 grant 

 83 Determination of Type 4 and Type 5 grants 

 83A Revocation and remaking determinations etc 

 84 Notice of determination — Type 4 and Type 5 grants 

 85 Payment of Type 4 and Type 5 grants 

Subdivision 5.3.3 Overall limits on grant entitlements

 85A Sales-based cap for grants 

 85B Modulation of Type 1, Type 2, Type 4 and Type 5 grants 

 85C Reductions on account of special advances 

 85D Reductions on account of regular advances 

Subdivision 5.3.4 Limits on payments

 85E Annual limit on payments 

 86 Expenditure limit on Scheme 

Part 5A Transfer of registration

 86A Interpretation for Part 5A 

 86B Transfer of registration generally 

 86C Transfer of registration on transfer of business 

 86D Effect of transfer of registration 

 86E Status of activities and expenditure unchanged 

 86F Treatment of value added 

 86G Treatment of total eligible revenue and total eligible start‑up investment amounts             

Part 5B Special advances of grants

Division 5B.1 Introductory

 86H Effect of Part 

 86I Definition for this Part 

 86J What is a special advance of a grant 

 86K References to a special advance of a grant for a program year 

Division 5B.2 Special advances of Type 1, Type 2 and Type 3 grants

Subdivision 5B.2.1 Requests for special advances of Type 1, Type 2 and Type 3 grants

 86L Requests for special advances of Type 1, Type 2 and Type 3 grants 

Subdivision 5B.2.2 Eligibility for special advances of Type 1, Type 2 and Type 3 grants

 86M Eligibility for special advances of Type 1, Type 2 and Type 3 grants 

 86N Entity no longer carrying on eligible TCF activity 

 86O Arms length expenditure — special advances of Type 1, Type 2 and Type 3 grants             

 86P Pro rata adjustment of eligible expenditure for special advances of Type 1 grants             

 86Q Cap for special advances of Type 1 grants 

 86R Cap for special advances of Type 2 grants 

 86S Cap for special advances of Type 3 grants 

 86T Modulation 

Subdivision 5B.2.3 Notice of decisions and payment of special advances of Type 1, Type 2 and Type 3 grants

 86U Notice of decisions and payment of special advances of Type 1, Type 2 and Type 3 grants             

Division 5B.3 Special advances of Type 4 and Type 5 grants

Subdivision 5B.3.1 Requests for special advances of Type 4 and Type 5 grants

 86V Requests for special advances of Type 4 and Type 5 grants 

Subdivision 5B.3.2 Eligibility for special advances of Type 4 and Type 5 grants

 86W Eligibility for special advances of Type 4 and Type 5 grants 

 86X Entity no longer carrying on eligible TCF activity 

 86Y State-of-the-art TCF plant or equipment — special advances of Type 4 grants             

 86Z Arms length expenditure — special advances of Type 4 and Type 5 grants             

 86ZA Cap for special advances of Type 4 and Type 5 grants 

 86ZB Modulation 

Subdivision 5B.3.3 Notice of decisions and payment of special advances of Type 4 and Type 5 grants

 86ZC Notice of decisions and payment of special advances of Type 4 and Type 5 grants             

Part 6 Miscellaneous

 87 Request for reconsideration of decision by Secretary 

 88 Reconsideration by Secretary 

 89 Statement to accompany notification of decisions 

 90 Statement to accompany notice of decision on reconsideration 

 91 Disposal of plant and equipment — Type 1 grant 

 92 Grants not transferable 

 93 Giving of notices etc by Minister or Secretary 

 94 Entity may send documents electronically 

 95 Access to premises 

 96 Statutory conditions 

 97 Condition — document retention 

 98 Post-payment compliance monitoring 

Schedule 1 Eligible TCF activities 

Part A Textile Fibre, Yarn and Woven Fabric Manufacturing 

Part B Knitting Mills Manufacturing 

Part C Clothing Manufacturing 

Part D Footwear Manufacturing 

Part E Leather and Leather Product Manufacturing 

Part F Early-stage Processing 

Part G Made-up Textile and Leather Product Manufacturing 

Schedule 2 Method of working out total eligible TCF value added by an entity 

Schedule 3 Pro rata adjustment of eligible expenditure for Type 1 grants or regular advances of Type 1 grants             

Schedule 5 Method of working out total eligible TCF value added by an entity for special advances of grants for incomplete program years             

Notes  

Part 1 Introductory

1 Name of Scheme [see Note 1]

  This Scheme is the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999, also known as the TCF (SIP) Scheme.

2 Commencement [see Note 1]

  The TCF (SIP) Scheme commences on gazettal.

3 Definitions

  In the TCF (SIP) Scheme:

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

acquisition includes acquisition by purchase or lease.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Textile, Clothing and Footwear Strategic Investment Program Act 1999.

associate has the meaning given by section 318 of the ITAA 1936.

auditor means an independent auditor registered under Division 2 of Part 9.2 of the Corporations Act 2001.

Australian and New Zealand Standard Industrial Classification or ANZSIC means the 1993 edition of the Australian and New Zealand Standard Industrial Classification published by the Australian Bureau of Statistics in 1993.

Australian-based, for an activity, for expenditure and for innovation, has the meaning given by section 4.

eligible expenditure, for a type of grant, means:

 (a) for a Type 1 grant — eligible expenditure within the meaning of section 15; or

 (b) for a Type 2 grant — eligible expenditure within the meaning of sections 23 to 26; or

 (c) for a Type 4 or Type 5 grant — eligible expenditure within the meaning of section 30.

eligible start-up investment amount has the meaning given by subsection 85A (5).

eligible start-up period has the meaning given by subsection 85A (5).

eligible TCF activity has the meaning given by section 5.

eligible TCF product means a product resulting directly and predominantly from an eligible TCF activity mentioned in paragraph 5 (1) (a) (other than an activity carried on in relation to a prescribed product within the meaning of section 5) or paragraph 5 (1) (e).

eligible TCF value added, for an entity, has the meaning given by section 28.

equipment means tools or apparatus of a capital nature used exclusively for the operation of plant.

financial owner, for plant, equipment or another asset, means the person who is financially responsible for, and has control of, the plant, equipment or other asset.

GST has the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999.

incomplete program year:

 (a) in relation to a special advance of a Type 1, Type 2 or Type 3 grant — has the meaning given by paragraph 86L (1) (a); and

 (b) in relation to a special advance of a Type 4 or Type 5 grant — has the meaning given by paragraph 86V (1) (a).

industrial property rights has the meaning given by section 22.

innovative, for an eligible TCF product, means having an Australian-based innovation.

ITAA 1936 means the Income Tax Assessment Act 1936.

ITAA 1997 means the Income Tax Assessment Act 1997.

modulation year means a program year to which subsection 85B (2) applies, or the 2004/2005 program year, as the case requires.

pilot plant has the meaning given by subsection 73B (1) of the ITAA 1936.

plant does not include a building or structure.

pre-program year has the meaning given by section 6.

product development activity has the meaning given by section 16.

program period, for an entity, means the period commencing at the beginning of the 2000/2001 program year and ending at the end of the 2004/2005 program year.

program year has the meaning given by section 6.

registered Australian research agency means a research agency registered under section 39F of the Industry Research and Development Act 1986.

regular advance of a grant has the meaning given by section 51B.

relevant financial year, in relation to a program year, means:

 (a) for the 2000/2001 program year — the 2001/2002 financial year; and

 (b) for the 2001/2002 program year — the 2002/2003 financial year; and

 (c) for the 2002/2003 program year — the 2003/2004 financial year; and

 (d) for the 2003/2004 program year — the 2004/2005 financial year; and

 (e) for the 2004/2005 program year — the 2005/2006 financial year.

relevant program year, in relation to a financial year, means:

 (a) for the 2001/2002 financial year — the 2000/2001 program year; and

 (b) for the 2002/2003 financial year — the 2001/2002 program year; and

 (c) for the 2003/2004 financial year — the 2002/2003 program year; and

 (d) for the 2004/2005 financial year — the 2003/2004 program year; and

 (e) for the 2005/2006 financial year — the 2004/2005 program year.

research and development activity has the meaning given by section 73B of the ITAA 1936.

Note   Only certain kinds of research and development activity give rise to eligible expenditure under the Scheme — see s 17.

resultant entity has the meaning given by section 29.

sample production has the meaning given by section 7.

Scheme means the TCF (SIP) Scheme.

sent electronically has the meaning given by section 94.

special advance of a grant has the meaning given by section 86J. 

TCF-dependent community has the meaning given by section 8.

TCF plant or equipment means plant or equipment used in an eligible TCF activity.

total eligible revenue has the meaning given by section 9.

Note   The following terms used in the Scheme are defined in the Act:

4 Meaning of Australian-based

  For the Scheme:

 (a) an activity is Australian-based only if it is carried on in Australia; and

 (b) expenditure is Australian-based only if it is incurred in Australia; and

 (c) innovation is Australian-based only if it occurs in Australia.

5 Meaning of eligible TCF activity

 (1) For the Scheme, each of the following activities is an eligible TCF activity:

 (a) a manufacturing activity of a kind mentioned in Parts A to E of Schedule 1 carried on in Australia by an entity;

 (b) an activity carried on in Australia by an entity in respect of the design in Australia for manufacture in Australia of eligible TCF products, some or all of which are intended to be sold in Australia;

 (c) an ancillary activity carried on in Australia by an entity in respect of a manufacturing activity mentioned in paragraph (a) (the manufacturing activity) carried on in Australia by that entity or another entity if, and only to the extent that, operations in respect of the ancillary activity and the manufacturing activity are wholly and mutually interdependent;

 (d) an ancillary activity carried on in Australia by an entity in respect of an activity mentioned in paragraph (b) (the design activity) carried on by the entity or another entity if, and only to the extent that, operations in respect of the ancillary activity and the design activity are wholly and mutually interdependent;

 (e) an activity of a kind mentioned in Part G of Schedule 1 carried on in Australia by an entity using an eligible TCF product resulting from a manufacturing activity mentioned in paragraph (a) carried on in Australia by the entity.

 (2) However, an activity mentioned in paragraph (1) (a), (b), (c), (d) or (e), that is carried on by an entity both in Australia and elsewhere, is an eligible TCF activity only to the extent that it is carried on in Australia.

 (2A) Also, despite subsection (1), each of the following activities is not an eligible TCF activity:

 (a) the manufacture of hides or leather used, or intended to be used, in motor vehicles;

 (b) an activity carried on in connection with, or incidental to, the design for manufacture of hides or leather used, or intended to be used, in motor vehicles;

 (c) an ancillary activity carried on in connection with, or incidental to, a manufacturing activity mentioned in paragraph (a);

 (d) an ancillary activity carried on in connection with, or incidental to, a design activity mentioned in paragraph (b);

 (e) the manufacture of a prescribed product;

 (f) an activity that is carried on in respect of the design for manufacture of a prescribed product;

 (g) an ancillary activity carried on in respect of a manufacturing activity to which paragraph (e) applies;

 (h) an ancillary activity carried on in respect of a design activity to which paragraph (f) applies.

 (2AB) Despite anything else in this section, a manufacturing activity of a kind referred to in Subdivision 21 or any of Subdivisions 23 to 29 of Division C of ANZSIC, and not mentioned in subsection 1, is not an eligible TCF activity.

 (2B) For paragraph (1) (a), a manufacturing activity of a kind mentioned in item 4 of Part A, or in Part B or C, of Schedule 1 may be carried on by the entity on a fee or commission basis, using client-supplied materials or materials purchased or transferred in from other entities.

 (3) In this section:

ancillary activity means:

 (a) an early-stage processing activity of a kind mentioned in Part F of Schedule 1; or

 (b) a warehousing and distribution activity.

prescribed product means any of the following:

 (a) disposable baby napkins;

 (b) sanitary napkins;

 (c) panty liners;

 (d) disposable bed protectors;

 (e) disposable incontinence products.

6 Meaning of pre-program year and program year

 (1) Each of the following periods is, for an entity, a pre-program year:

 (a) the period commencing on 1 July 1998 and ending at the end of 30 June 1999 (the 1998/1999 pre-program year);

 (b) the period commencing on 1 July 1999 and ending at the end of 30 June 2000 (the 1999/2000 pre-program year).

 (2) Each of the following periods is, for an entity, a program year:

 (a) the period commencing on 1 July 2000 and ending at the end of 30 June 2001 (the 2000/2001 program year);

 (b) the period commencing on 1 July 2001 and ending at the end of 30 June 2002 (the 2001/2002 program year);

 (c) the period commencing on 1 July 2002 and ending at the end of 30 June 2003 (the 2002/2003 program year);

 (d) the period commencing on 1 July 2003 and ending at the end of 30 June 2004 (the 2003/2004 program year);

 (e) the period commencing on 1 July 2004 and ending at the end of 30  June 2005 (the 2004/2005 program year).

 (3) However, if an entity adopts, under section 18 of the ITAA 1936, a 12 month accounting period ending on a date other than 30 June, a reference in the Scheme to a pre-program year or a program year, for that entity, is a reference to the equivalent 12 month accounting period for that entity.

Examples

1.   For an entity whose adopted accounting period ends on 31 October 2001, the 2000/2001 program year is the period commencing on 1 November 2000 and ending at the end of 31 October 2001.

2.   For an entity whose adopted accounting period ends on 31 March 2001, the 2000/2001 program year is the period commencing on 1 April 2000 and ending at the end of 31 March 2001.

 (4) If, as a result of the operation of section 18 of the ITAA 1936, the program period for an entity would, apart from this subsection, exceed 5 years, the last program year of the program period is taken to end at the end of the period of 5 years commencing on the first day of the program period for the entity.

7 Meaning of sample production

 (1) For the Scheme, sample production, for an eligible TCF product, means production of the product other than in commercial quantities.

 (2) The production of an eligible TCF product for stockpiling is taken to be production in commercial quantities.

8 Meaning of TCF-dependent community

 (1) For the Scheme, a TCF-dependent community is a community within an area in Australia (other than an Urban Centre of a capital city) where:

 (a) employment in eligible TCF activities constitutes more than 10% of the total employment in manufacturing in the area; or

 (b) employment in eligible TCF activities constitutes more than 5% of the total employment in manufacturing in the area, and the rate of unemployment is higher than the national average rate of unemployment.

 (2) For subsection (1):

 (a) employment in an area, and rates of unemployment, are to be determined by reference to data from the 1996 Census of Population and Housing published before the commencement of this Scheme by the Australian Bureau of Statistics; and

 (b) the boundaries of an area are to be determined by reference to Statistical Geography: Volume 3, Australian Standard Geographical Classification Urban Centres/Localities, 1996 Edition, published by the Australian Bureau of Statistics.

 (3) In subsection (1):

capital city means each of the following:

 (a) Adelaide;

 (b) Brisbane;

 (c) Canberra-Queanbeyan (Canberra Part);

 (d) Darwin;

 (e) Hobart;

 (f) Melbourne;

 (g) Perth;

 (h) Sydney.

9 Meaning of total eligible revenue

 (1) For the Scheme, total eligible revenue, for an entity (other than an entity mentioned in subsection (3)) and for a period, means the total revenue derived by the entity from sales, except sales to New Zealand, of the entity’s eligible TCF products during the period, excluding:

 (a) any GST, excise or sales tax; and

 (b) any subsidy given during the period by the Commonwealth, or a State or Territory.

 (2) In subsection (1), a reference to the entity’s eligible TCF products is a reference:

 (a) if the entity is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a) — to eligible TCF products manufactured by the entity; or

 (b) if the entity is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a), but is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (b) in accordance with paragraphs 52 (4) (a) and (b) — to eligible TCF products manufactured on behalf of the entity by another entity; or

 (c) if the entity is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a), but is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (c) — to eligible TCF products manufactured by the entity that carries on the manufacturing activity mentioned in paragraph 5 (1) (c); or

 (d) if the entity is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a), but is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (d) — to eligible TCF products manufactured, on behalf of the entity that carries on the design activity mentioned in paragraph 5 (1) (d), by another entity; or

 (e) if the entity is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (e) — to eligible TCF products produced by the entity as a result of that activity.

 (3) If an entity is carrying on an eligible TCF activity of a kind mentioned in item 4 of Part A, or in Part B or C, of Schedule 1 on a fee or commission basis, the total eligible revenue for the entity and for a period is the total fees and commissions earned by the entity during the period for that activity, excluding:

 (a) any GST; and

 (b) any subsidy given during the period by the Commonwealth, or a State or Territory.

Note   For a resultant entity, the meaning of total eligible revenue is qualified by section 30A.

10 References to an entity

  In the Scheme, unless the contrary intention appears, a reference to an entity, in relation to the doing of anything by the entity for the purposes of the Scheme, does not include a reference to an agent of the entity, except where:

 (a) the entity is a body corporate; and

 (b) the agent is:

 (i) a director or other officer of the body corporate, or an employee of the body corporate having management responsibility; or

 (ii) if the entity is in receivership or under administration — the entity’s receiver or administrator.

11 References to a grant for a program year

  In the Scheme, a reference to a grant to an entity for a pre‑program year or a program year is a reference to a grant to the entity relating to eligible expenditure incurred, or eligible TCF value added, by the entity in the pre‑program year or program year.

12 References to the cost or price of plant, equipment etc

  In the Scheme, a reference to the cost or price of land, buildings, plant, equipment, materials or anything else is a reference to the cost or price excluding any GST, excise or sales tax.

Part 2 Types of grant

Division 2.1 Introductory

13 Types of grant

  There are to be 5 types of grant for the Scheme, as follows:

 (a) grants in respect of new TCF plant/building expenditure (Type 1 grants);

 (b) grants in respect of TCF research and development expenditure (Type 2 grants);

 (c) grants in respect of TCF value-adding (Type 3 grants);

 (d) special grants in respect of second-hand TCF plant expenditure (Type 4 grants);

 (e) special miscellaneous grants in respect of TCF-dependent communities (Type 5 grants).

Division 2.2 Type 1 grants

14 What is a Type 1 grant

 (1) A Type 1 grant, for an entity, is a grant relating to eligible expenditure by the entity that is directly attributable to any of the following activities carried on by the entity in respect of an eligible TCF activity:

 (a) the acquisition or construction of new TCF plant or equipment, of which the entity is the financial owner, for use exclusively in Australia;

 (b) the acquisition or construction of a new building or structure, or alterations to an existing building or structure, of which the entity is the financial owner, to house and operate TCF plant or equipment, as a consequence of the acquisition or construction of new TCF plant and equipment mentioned in paragraph (a);

 (c) the upgrade of existing TCF plant or equipment, of which the entity is the financial owner, in relation to environmental requirements of the Commonwealth, or a State or Territory;

 (d) the acquisition of new computer hardware or software, or development of new computer software, that is:

 (i) for carrying on the activity; and

 (ii) capitalised in the entity’s accounts.

 (2) A Type 1 grant may be made:

 (a) in relation to more than 1 eligible TCF activity; and

 (b) in addition to a grant of another type under the Scheme.

 (3) A Type 1 grant is payable in relation to eligible expenditure in a pre-program year as well as in a program year.

15 What is eligible expenditure for a Type 1 grant

 (1) Expenditure is eligible expenditure for a Type 1 grant only if it is of a kind mentioned in this section and is incurred by the entity in accordance with this section.

 (2) Expenditure must be on 1 or more of the activities mentioned in paragraphs 14 (1) (a) to (d).

 (3) Expenditure on the purchase of new TCF plant or equipment:

 (a) must represent the value of the plant or equipment capitalised in the entity’s accounts, less the amount, if any:

 (i) recovered from any trade-in; or

 (ii) received from the sale of any plant or equipment decommissioned as a result of the purchase; and

 (b) is taken to have been incurred only at the time when the plant or equipment has been paid for and commissioned.

 (4) Expenditure on the purchase of new TCF plant or equipment purchased under a hire purchase agreement or financed through a finance lease:

 (a) is taken to be the value of the plant or equipment shown in the hire purchase agreement or finance lease and capitalised in the entity’s accounts, less the amount, if any:

 (i) recovered from any trade-in; or

 (ii) received from the sale of any plant or equipment decommissioned as a result of the purchase; and

 (b) is taken to have been incurred only at the time when the first instalment under the agreement or lease has been paid and the plant or equipment has been commissioned.

 (5) Expenditure on the construction of TCF plant or equipment:

 (a) is limited to the sum of:

 (i) the costs of materials; and

 (ii) direct labour costs (including on-costs and administrative support costs); and

 (iii) factory overhead (set at 110% of direct labour costs); and

 (iv) establishment and commissioning costs; and

 (b) must be capitalised in the entity’s accounts; and

 (c) is taken to have been incurred only at the time when the plant or equipment is commissioned or, if commissioning is not required, is fully operational.

 (6) Expenditure on a new building or structure, or on alterations to an existing building or structure:

 (a) is limited to expenditure necessary for the efficient housing and operation of new TCF plant or equipment mentioned in paragraph 14 (1) (a); and

 (b) is taken to have been incurred only at the time when:

 (i) payment has been made; and

 (ii) if a certificate of occupancy is required — the certificate has been issued.

 (7) Expenditure on the purchase of a new building or structure purchased under a hire purchase agreement or financed through a finance lease:

 (a) subject to paragraph (aa), is taken to be the value of the building or structure shown in the hire purchase agreement or finance lease and capitalised in the entity’s accounts; and

 (aa) is limited to expenditure necessary for the efficient housing and operation of new TCF plant or equipment mentioned in paragraph 14 (1) (a); and

 (b) is taken to have been incurred only at the time when:

 (i) the first instalment under the agreement or lease has been paid; and

 (ii) if a certificate of occupancy is required — the certificate has been issued.

 (8) Expenditure on the upgrading of existing TCF plant or equipment is limited to the actual costs of the upgrade.

 (9) Expenditure mentioned in this section must reflect costs based on normal commercial values and arms length transactions.

 (10) For this section, an amount recovered from a trade-in, or received from the sale of decommissioned plant or equipment, must be based on normal commercial values and an arms length transaction.

Division 2.3 Type 2 grants

Subdivision 2.3.1 Activities for Type 2 grants

16 What is a Type 2 grant

 (1) A Type 2 grant, for an entity, is a grant relating to eligible expenditure by the entity that is directly attributable to any of the following activities carried on by, or on behalf of, the entity in respect of an eligible TCF activity:

 (a) a research and development activity of a kind mentioned in section 17;

 (b) a product development activity of a kind mentioned in subsections (2) and (3).

 (2) For paragraph (1) (b), a product development activity must be:

 (a) innovative product design within the meaning of section 18; or

 (b) innovative process improvement within the meaning of section 19; or

 (c) brand support within the meaning of section 20; or

 (d) market research within the meaning of section 21; or

 (e) obtaining industrial property rights within the meaning of section 22.

 (3) For paragraph (1) (b), if a product development activity is carried on on behalf of the entity by another entity, the activity must be carried on under a written contract or in accordance with detailed and binding arrangements.

 (4) A Type 2 grant may be made:

 (a) in relation to more than 1 eligible TCF activity; and

 (b) in addition to a grant of another type under the Scheme.

 (5) A Type 2 grant is payable in relation to eligible expenditure in a program year.

Note   The application of s 73C (Recouped expenditure on research and development activities) of the ITAA 1936, and Subdiv 20A (Insurance, indemnity or other recoupment for deductible expenses) of the ITAA 1997, is relevant to a Type 2 grant.

17 Research and development activities

 (1) For the Scheme, a research and development activity must be directed at a product or process.

 (2) If the activity is not Australian-based, the activity must be necessary:

 (a) to carry on an Australian-based research and development activity (for example, product testing at a facility that is not available in Australia); or

 (b) to tailor an Australian-based research and development activity to the requirements of a particular market.

 (3) If the activity is carried on on behalf of an entity by another entity:

 (a) if the activity is Australian-based, the other entity must be a registered Australian research agency; and

 (b) the activity must be carried on under a written contract or in accordance with detailed and binding arrangements.

18 Innovative product design

 (1) For the Scheme, an innovative product design activity must be:

 (a) Australian-based; and

 (b) an activity directly concerned with:

 (i) the design, testing, trial and sample production of a particular innovative eligible TCF product; or

 (ii) innovation in the design, testing, trial and sample production of particular eligible TCF products.

 (2) However, an activity ceases to be an innovative product design activity if it is routinely undertaken or is directed solely at achieving visual product differentiation.

19 Innovative process improvement

 (1) For the Scheme, an innovative process improvement activity must be:

 (a) Australian-based; and

 (b) directed at innovative improvement of a production process for an eligible TCF product (for example, an improvement leading to a point of difference from, or a change of a technical nature to, the original production process).

 (2) However, an activity ceases to be an innovative process improvement activity if it is routinely undertaken.

20 Brand support

 (1) For the Scheme, brand support comprises participation (other than as a retailer) by an entity in trade showings and in-store promotions of an innovative eligible TCF product:

 (a) for which the entity has registered a trade mark, or has applied to register a trade mark, in Australia; and

 (b) that is marketed, or is to be marketed, under that trade mark.

 (2) However, brand support does not include media advertising, sponsorship or other media-related activities.

21 Market research

 (1) For the Scheme, market research comprises market testing, market development or sales promotion (including consumer surveys) that is not routine and that has as its main purpose the introduction of an innovative eligible TCF product.

 (2) Market testing, market development or sales promotion for a purpose mentioned in subsection (1) must be carried on before production (other than sample production) of the product.

22 Obtaining industrial property rights

 (1) For the Scheme, obtaining industrial property rights in respect of an innovative eligible TCF product comprises:

 (a) the preparation and lodging of applications and other documents that are required to be lodged, in Australia or elsewhere, for the initial grant or registration of the rights; and

 (b) the initial grant or registration of the rights, in Australia or elsewhere.

 (2) In subsection (1):

industrial property rights means:

 (a) the rights (including equitable rights) possessed by a person under a law of Australia as:

 (i) the patentee of a patent in force for an invention; or

 (ii) the owner of a registered trade mark; or

 (iii) the owner of a registered design; or

 (b) rights possessed by a person under a law of a foreign country that are equivalent to the rights mentioned in paragraph (a).

Subdivision 2.3.2 Eligible expenditure for Type 2 grants

23 What is eligible expenditure for a Type 2 grant

  Expenditure is eligible expenditure for a Type 2 grant only if it:

 (a) is of a kind mentioned in, and is incurred in accordance with, this Subdivision; and

 (b) reflects costs based on normal commercial values and arms length transactions.

24 Expenditure on research and development activities

 (1) Expenditure on a research and development activity carried on by the entity must relate to 1 or more of the following:

 (a) salaries;

 (aa) the execution of a contract or other arrangement mentioned in subsection 16 (3) or 17 (3);

 (b) the acquisition or construction of TCF plant or equipment that is pilot plant or a plant prototype;

 (c) non-capitalised prototype expenditure;

 (d) costs of materials for the activity.

 (2) Expenditure relating to salaries is limited to the sum of:

 (a) salary costs of employees of the entity engaged primarily and directly on core elements of the activity (but not exceeding $120,000 in respect of any 1 employee) comprising:

 (i) regular salary costs (excluding fringe benefits); and

 (ii) salary on-costs set at 30% of those regular salary costs; and

 (b) if the entity has a dedicated section for research and development activities, with a separate cost centre and separate, identifiable overheads — overhead costs set at 50% of regular salary costs mentioned in subparagraph (a) (i); and

 (c) general administrative overhead costs set at 30% of regular salary costs mentioned in subparagraph (a) (i).

 (3) Expenditure on the acquisition or construction of pilot plant or plant prototypes must comply with, and be incurred in accordance with, subsections 15 (3), (4) and (5), as if the expenditure related to new TCF plant or equipment mentioned in section 14.

 (4) Non-capitalised prototype expenditure:

 (a) must relate to the making of an initial model, mock-up or similar thing for an innovative eligible TCF product, or an innovative process for an eligible TCF product, including expenditure on dies, jigs and testing materials, but not including expenditure on general sales samples; and

 (b) is taken to be the net expenditure after deduction of the proceeds (if any) of the sale of materials acquired for the purpose of paragraph (a).

Note   Amounts and percentages mentioned in subs (2) may be reviewed during the period of the Scheme, and may be changed by amendment of the Scheme.

25 Expenditure on product development activities

 (1) If a product development activity mentioned in section 18, 19, 20 or 21 is carried on by the entity, the expenditure must relate to salaries and materials costs incurred in Australia in carrying on the activity.

 (2) Expenditure on salaries is to be treated in the same manner as salaries relating to research and development activities, and subsection 24 (2) applies accordingly.

 (3) Expenditure on a product development activity mentioned in section 22 is limited to costs and fees directly related to the matters mentioned in that section.

26 Expenditure on travel not eligible

  Expenditure is not eligible expenditure for this Subdivision if it relates to travel costs.

Division 2.4 Type 3 grants

27 What is a Type 3 grant

 (1) A Type 3 grant, for an entity, is a grant relating to eligible TCF value added by the entity in respect of eligible TCF activities carried on by the entity in a program year.

 (2) A Type 3 grant may be made to an entity for a program year only if a Type 1 or Type 2 grant is also made to the entity for the program year.

 (3) A Type 3 grant may be made in addition to a grant of another type under the Scheme.

28 What is eligible TCF value added by an entity

  For an entity, the total eligible TCF value added by the entity, in respect of eligible TCF activities carried on by the entity for a program year, is worked out in the way set out in Schedule 2.

Note   Eligible TCF value added for a resultant entity is described in section 30B.

Division 2.5 Type 4 and Type 5 grants

29 What is a Type 4 or Type 5 grant

 (1) A Type 4 grant is a grant relating to eligible expenditure:

 (a) in relation to an eligible TCF activity; and

 (b) on the acquisition of state-of-the-art second-hand TCF plant or equipment that complies with subsections (3) and (4); and

 (c) as part of, or as a direct consequence of, a restructuring initiative that complies with subsection (5); and

 (d) by the resultant entity mentioned in subsection (5).

 (2) A Type 5 grant is a grant relating to eligible expenditure incurred by the resultant entity in relation to ancillary activities relating to a restructuring initiative that complies with subsection (5).

 (3) For paragraph (1) (b), the state-of-the-art second-hand TCF plant or equipment must be acquired by the resultant entity from 1 or more of the entities taking part in the restructuring initiative.

 (4) For paragraph (1) (b), the state-of-the-art second-hand TCF plant or equipment must not be plant or equipment:

 (a) costing as much as, or more than, equivalent new TCF plant or equipment; or

 (b) in respect of which a subsidy or similar benefit has been paid by the Commonwealth, or a State or Territory.

 (5) For paragraph (1) (c), the restructuring initiative must:

 (a) involve the restructuring (including by way of merger or takeover) or reconfiguration of 2 or more entities carrying on eligible TCF activities:

 (i) at least 1 of which is carrying on eligible TCF activities in a TCF-dependent community; and

 (ii) at least 1 of which is not financially viable, or is likely in the foreseeable future not to be financially viable; and

 (iii) each of which is not an associate of another entity taking part in the restructuring initiative; and

 (b) result in at least 1 entity (the resultant entity) that:

 (i) is carrying on eligible TCF activities in a TCF-dependent community; and

 (ii) is likely to be more financially viable than it would be if the restructuring initiative did not take place; and

 (c) be directed at the expansion of existing markets, or at the establishment of new segmental markets, for eligible TCF products; and

 (d) be likely to result in demonstrable economic benefits (including, but not limited to, sustained or increased employment) both nationally and for the TCF-dependent community in which the resultant entity is located.

 (6) A Type 4 or Type 5 grant may be made in addition to a grant of another type under the Scheme.

 (7) A Type 4 or Type 5 grant is payable in relation to eligible expenditure incurred in the 1999/2000 pre-program year as well as in a program year.

 (8) In this section:

ancillary activities includes, but is not limited to, the decommissioning, dismantling, transportation, reinstallation and recommissioning of state-of-the art second-hand TCF plant or equipment mentioned in paragraph (1) (b).

30 What is eligible expenditure for a Type 4 or Type 5 grant

 (1) Expenditure is eligible expenditure for a Type 4 grant only if it is in respect of an eligible TCF activity carried on in a TCF‑dependent community and is incurred in accordance with this section.

 (2) Expenditure on the purchase of state-of-the-art second-hand TCF plant or equipment is taken to have been incurred only at the time when the plant or equipment has been paid for and commissioned.

 (3) Expenditure on the purchase of state-of-the-art second-hand TCF plant or equipment purchased under a hire purchase agreement or financed through a finance lease is taken to have been incurred only at the time when the first instalment under the agreement or lease has been paid and the plant or equipment has been commissioned.

 (4) Expenditure is eligible expenditure for a Type 5 grant only if it is in respect of ancillary activities mentioned in subsection 29 (2) and is incurred in accordance with this section.

 (5) Expenditure must reflect costs based on normal commercial values and arms length transactions.

 (6) For the Scheme, expenditure incurred by any of the entities taking part in the restructuring initiative in respect of ancillary activities mentioned in section 29 is taken to have been incurred by the resultant entity.

30A Total eligible revenue for restructuring initiatives

  For the Scheme, total eligible revenue, for a resultant entity for a period, includes revenue generated in relation to the period by any of the entities taking part in the restructuring initiative in respect of which the entity became a resultant entity.

Note   total eligible revenue is defined in section 9.

30B What is eligible TCF value added by a resultant entity

  For a resultant entity claiming a Type 4 or Type 5 grant and also claiming a Type 3 grant, the total eligible TCF value added by the resultant entity in respect of eligible TCF activities carried on by it for a program year may include the total eligible TCF value added for that program year of an entity taking part in the restructuring initiative in respect of which the first‑mentioned entity became a resultant entity.

Part 3 Registration of entities for Type 1, Type 2 and Type 3 grants

31 Application for registration for Type 1, Type 2 and Type 3 grants

 (1) An entity that intends to make a claim for a Type 1, Type 2 or Type 3 grant must apply to the Secretary to be registered for the Scheme.

 (2) An entity is not eligible to apply for registration unless the entity carries on, or proposes to carry on, an eligible TCF activity.

 (3) An application for registration must be in respect of:

 (a) 1 or both of the pre-program years and the 2000/2001 program year; or

 (b) a program year.

 (4) The application:

 (a) must be in writing in a form approved by the Secretary; and

 (b) must include the information mentioned in subsection (5); and

 (c) must be signed in the manner indicated in the form.

Note   Applications and other documents under the Scheme may be sent electronically — see s 94.

 (5) For subsection (4), the application must contain the following:

 (a) the name of the applicant entity;

 (b) the entity’s ABN or ACN, and date of formation or incorporation, if applicable;

 (c) if the applicant entity is a trust — the type of trust and details of the beneficiaries;

 (d) contact addresses (both street and postal);

 (e) the names of directors and major shareholders (if applicable), and of key management personnel;

 (f) details of the size of the entity (including current employment levels and the employment levels for the 2 income years of the entity before the income year in which the application is made), as well as annual turnover and a general description of the entity’s activities;

 (g) details of any other entity whose operations are required, under the Corporations Act 2001, to be consolidated with those of the applicant entity, including the other entity’s ACN, the names of directors and major shareholders, and an organisation chart for the consolidated operations;

 (h) if section 36 applies to the entity — the option in Schedule 3 that is to apply to the entity.

 (6) The applicant entity must give to the Secretary, together with the application for registration, the documents and information mentioned in sections 32, 33 and 34.

32 Financial statements etc

 (1) For subsection 31 (6), the applicant entity must give the financial information required by this section.

 (2) If the entity has carried on business operations in the 3 income years of the entity before the income year in which the application is made, the entity must give the financial information mentioned in subsection (4) for those 3 income years.

 (3) If the entity (not being an entity mentioned in subsection (2)) has carried on business operations in 1 or more of the 3 income years of the entity before the income year in which the application is made, the entity must give the financial information mentioned in subsection (4) for those income years.

 (4) For subsections (2) and (3), the financial information is:

 (a) if the entity is required, under section 296 of the Corporations Act 2001, to prepare financial reports in accordance with accounting standards:

 (i) financial reports prepared in accordance with those standards; and

 (ii) if the entity is required, under section 301 of the Corporations Act 2001, to have an annual audit of the financial report — a copy of the auditor’s report; or

 (b) in any other case — financial statements comprising a balance sheet and a profit and loss statement, together with notes to the statements and underlying assumptions made in their preparation.

33 Description of activities and estimates of expenditure

  For subsection 31 (6), the applicant entity must give:

 (a) a detailed description of eligible TCF activities and eligible TCF products in relation to which claims are likely to be made under the Scheme; and

 (b) the estimated total eligible expenditure in respect of which claims are likely to be made under the Scheme.

34 Strategic business intent

  For subsection 31 (6) the applicant entity must give a statement of strategic business intent that:

 (a) is drawn from the strategic business plan mentioned in section 35; and

 (b) includes the business, operational and financial strategies that will guide the entity to sustainable operations for eligible TCF activities beyond the end of the program period.

35 Strategic business plan

 (1) The applicant entity must have a strategic business plan for the entity that complies with this section.

Note   A strategic business plan means a strategic business plan that incorporates a strategic investment plan — see s 4 of the Act.

 (2) The strategic business plan must relate to:

 (a) the program year (including any pre-program year) in respect of which the application for registration is made; and

 (b) the remaining program years (if any) of the program period.

 (3) However, if, for an entity, there are less than 2 remaining program years in the program period, the strategic business plan must relate, in addition to the program years mentioned in paragraphs (2) (a) and (b), to 1 or more income years of the entity after the end of the program period, so that the strategic business plan relates to at least 3 income years of the entity.

 (4) The strategic business plan must indicate the entity’s strategic direction for the whole of the program period.

 (5) The strategic business plan must:

 (a) give details of the strategies (including financial plans) that will enable the entity to carry on sustainable operations for eligible TCF activities beyond the end of the program period; and

 (b) include appropriate operational plans, details of financial commitment and controls, financial projections and assumptions on which forecasts are based.

 (6) If the Secretary, in writing, requests the entity to make available a copy of the entity’s strategic business plan, the entity must comply with the request within a reasonable period specified by the Secretary in the request.

36 Election of pro rata and method of determination options for Type 1 grant

 (1) If the entity intends to make a claim for a Type 1 grant, or a request for a regular advance of such a grant, in 1 or both of the pre-program years as well as at least 1 program year, the entity must elect which of Option 1, Option 2 or Option 3 in Schedule 3 is to apply to the entity for the apportionment of eligible expenditure incurred by the entity.

 (1A) If the entity elects that Option 1 is to apply to the entity, the entity may also elect that the method of determination of the entity’s entitlement to Type 1 grants set out in section 77 is to apply to the entity.

 (1B) An election under subsection (1A) is also an election that section 51Q applies in relation to requests for regular advances of such grants.

 (2) An election by an entity under subsection (1) or (1A) cannot be changed except:

 (a) with the approval in writing of the Secretary; and

 (b) before a claim is made by the entity.

 (3) The entity must notify the Secretary in writing of an election under subsection (1A) before the entity makes a claim.

37 Additional information

 (1) If it appears to the Secretary that an application by an entity, or information submitted with the application, is incomplete or insufficient for the purpose of registration, the Secretary, in writing, may request the entity to do 1 or both of the following:

 (a) make a further application in such form as is specified in the request;

 (b) give further information specified in the request.

 (2) The entity must comply with a request under subsection (1) within a reasonable period specified by the Secretary in the request.

38 Time limits for registration

  An entity wishing to make a claim for a grant for a program year must apply to be registered as follows:

 (a) for the 2003/2004 program year — before 1 July 2003;

 (b) for the 2004/2005 program year — before 1 July 2004.

Note 1   Section 38 of the Scheme, as amended and in force immediately before the commencement of this section, provided for time limits for registration for the 2000/2001, 2001/2002 and 2002/2003 program years.

Note 2   Section 43 provides for extension of time limits for registration.

39 Registration of entity

 (1) The Secretary must notify an entity of the receipt of the entity’s application for registration.

 (2) The Secretary must register the entity if the Secretary is satisfied, on consideration of the application, that the entity:

 (a) is eligible to apply for registration; and

 (b) has complied with requirements of this Part for registration.

 (3) If the Secretary is not satisfied as to a matter mentioned in paragraph (2) (a) or (b), the Secretary must refuse to register the entity.

 (4) For subsections (2) and (3), the Secretary is not to be concerned with the eligibility of the entity for a grant under the Scheme.

40 Effects of registration

 (1) If the Secretary registers an entity, the registration is taken to have effect from the day on which the Secretary receives the initial application, whether or not a further application is made under section 37.

 (2) Registration of an entity has effect for 1 or both of the pre‑program years and the 2000/2001 program year, or for the program year, for which registration was sought.

 (4) Registration of an entity does not, of itself, give rise to an entitlement to a grant.

Note   Part 5A deals with the transfer of registration.

41 Application for renewal of registration

 (1) Subject to this section, an entity that is registered, or has been registered, for a pre-program year and the 2000/2001 program year, or for a program year, may apply for a renewal of registration for a later program year (whether or not the entity intends to make a claim for that program year).

 (2) An entity is not eligible to apply for a renewal of registration if it no longer carries on, or no longer proposes to carry on, an eligible TCF activity.

 (3) An application for renewal must:

 (a) be in a form approved by the Secretary; and

 (b) include the information mentioned in subsection (4).

 (4) For paragraph (3) (b), the information is as follows:

 (a) details of any variation or updating of the information given to the Secretary under section 33, 34 or 37 in relation to an activity in respect of which the entity proposes to make a claim (including any change in the estimated total eligible expenditure in respect of which claims are likely to be made);

 (b) if the entity has disposed of any assets in respect of which a grant has been made to the entity under the Scheme — details of the disposal.

 (5) Sections 37 and 38 apply to an application for renewal of registration in the same way as they apply to an application for registration under section 31.

Note   Section 37 provides that the Secretary may request additional information. Section 38 imposes time limits for an application for registration.

42 Renewal of registration

 (1) The Secretary must notify an entity of the receipt of an entity’s application for renewal of registration.

 (2) The Secretary must renew the registration if the Secretary is satisfied that the entity:

 (a) is eligible to apply for a renewal of registration; and

 (b) has complied with the requirements of section 41.

 (3) If the Secretary is not satisfied as to any of the matters mentioned in paragraph (2) (a) or (b), the Secretary must refuse to renew the registration.

 (4) For subsections (2) and (3), the Secretary is not to be concerned with the eligibility of the entity for a grant under the Scheme.

 (5) Section 40 applies to an application for renewal and to the renewal of registration in the same way as it applies to an application for registration under section 31 and to registration.

Note   Section 40 deals with the effect and transferability of registration.

43 Extension of time for registration or renewal

 (1) The Secretary, on the written application of an entity, may extend the period within which the entity may apply for registration, or renewal of registration, for a program year.

 (3) The Secretary must not extend the period unless the Secretary is satisfied that, because of exceptional circumstances affecting the entity, there is good reason to do so.

 (4) However, regardless of the circumstances, the Secretary may not extend the period for registration or renewal of registration beyond the end of the program year for which registration or renewal of registration is sought.

Examples

1.   If an entity applies to the Secretary for an extension of time to register for the 2003/2004 program year during the 2003/2004 program year, the Secretary may extend the period only until the end of the 2003/2004 program year.

2.   If an entity applies to the Secretary for an extension of time to register for the 2003/2004 program year on 1 July 2004 (the start of the 2004/2005 program year) the Secretary must not agree to the extension.

 (5) To avoid doubt, a failure to apply for registration or renewal of registration on time due to oversight or ignorance is not to be regarded as an exceptional circumstance for subsection (3).

44 Notice of registration or refusal to register etc

 (1) The Secretary must give written notice to an entity of:

 (a) the entity’s registration or renewal of registration; and

 (b) if the period within which an application for registration or renewal is made is extended under section 43 — details of the extension.

 (2) If the Secretary refuses an application for registration or renewal of registration, or for an extension of the period for registration or renewal, the Secretary must give written notice of:

 (a) the refusal; and

 (b) the reasons for the refusal.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (3) If the Secretary has not decided the application within the decision period, the entity may, at any time, give the Secretary written notice that the entity wishes to treat the application as having been refused.

 (4) For section 87, if the entity gives notice under subsection (3), the Secretary is taken to have refused the application, and to have notified the entity of the decision, on the day on which the entity gives notice.

 (5) In subsection (3):

decision period, in relation to an application, means:

 (a) if, within the period of 28 days commencing on the day when the application is received, the Secretary requests further information, or a further application, under section 37 — the period of 28 days commencing on the day when the further information or application is received; or

 (b) in any other case — the period of 28 days commencing on the day when the application is received.

45 Effect of non-registration

 (1) An entity that is not registered for a pre-program year is not eligible for a Type 1 grant for that year.

 (2) An entity that is not registered for a program year is not eligible for a Type 1, Type 2 or Type 3 grant for that year.

46 Register of entities

 (1) The Secretary must maintain a register of entities that are registered for the Scheme.

 (2) In any proceedings relating to the Scheme, a document that appears to a court or tribunal to be a certificate by the Secretary, in accordance with subsection (3), certifying a statement to the effect mentioned in subsection (4):

 (a) is evidence of the truth of the statement; and

 (b) may be received in evidence without being proved.

 (3) The certificate must be signed by the Secretary and be expressed to be in accordance with the register.

 (4) The statement must be to the effect that, on a specified date, or during a specified period, a specified entity was, or was not, registered for a pre-program year or a program year.

47 Notice of likely change in eligible expenditure

 (1) An entity that is registered for a program year or a pre-program year must give written notice to the Secretary of:

 (a) any likely significant change in eligible expenditure to be incurred by the entity in the program year or pre-program year in respect of which the entity proposes to make a claim; and

 (b) any likely implications of the change on the estimated total eligible expenditure in respect of which claims are likely to be made by the entity under the Scheme.

 (2) The entity must give the notice as soon as the entity becomes aware of the likely change.

Part 4 Notice of intention to claim for Type 4 or Type 5 grant

48 Notice of intention to claim for Type 4 or Type 5 grant

 (1) This section applies to an entity if the entity intends:

 (a) to take part in a restructuring initiative of a kind mentioned in section 29; and

 (b) that a claim will be made by the resultant entity for a Type 4 or Type 5 grant for the 1999/2000 pre-program year or a program year in relation to the restructuring initiative.

 (2) The entity must give notice to the Secretary, acting on behalf of the Minister, of the intention to make a claim.

 (3) The notice must:

 (a) be given jointly by all the entities intending to take part in the restructuring initiative; and

 (b) be in writing in a form approved by the Secretary; and

 (c) be signed in the manner indicated in the form; and

 (d) be accompanied by the information mentioned in section 49.

Note   Notices and other documents under the Scheme may be sent electronically — see s 94.

 (4) Despite subsection (1), notice of intention may be given in respect of a restructuring initiative that:

 (a) commenced in the 1999/2000 pre-program year, but before the commencement of the Scheme; and

 (b) at the commencement of the Scheme had not yet been completed.

49 Information to be given with notice of intent

 (1) For paragraph 48 (3) (d), the information to accompany the notice of intention is the following:

 (a) the information mentioned in subsection 31 (5) about each entity intending to take part in the restructuring initiative;

 (b) details of the restructuring initiative, including:

 (i) the principles underlying the restructuring initiative; and

 (ii) the benefits and risks of the restructuring initiative; and

 (iii) the expected outcomes of the restructuring initiative, addressing, in particular the matters mentioned in paragraphs 29 (5) (b) to (d); and

 (iv) the corporate structure of the resultant entity;

 (c) details of the likely costs and other likely implications of the restructuring initiative, including:

 (i) the projected cost to each entity taking part in the restructuring initiative; and

 (ii) the impact on employees of each entity at all locations; and

 (iii) the funding arrangements for the restructuring initiative;

 (d) the estimated total eligible expenditure in respect of which claims are likely to be made under the Scheme.

 (2) The information must be in writing.

50 Additional information

 (1) If it appears to the Secretary that the notice of intention given by the entities mentioned in section 48, or information submitted with the notice, is incomplete, or is insufficient to enable the Minister to make a decision under section 51, the Secretary, in writing, may request the entity to do 1 or both of the following:

 (a) give a further notice in such form as is specified in the request;

 (b) give further information, in writing, specified in the request.

 (2) The entity must comply with a request under subsection (1) within a reasonable period specified by the Secretary in the request.

51 Consideration of notice of intention

 (1) The Secretary must send to the Minister, as soon as practicable:

 (a) the notice of intention given under section 48 or 50; and

 (b) the documents and information accompanying the notice under section 49; and

 (c) the further information, if any, given under section 50.

 (2) If the Minister is satisfied, on consideration of the notice of intention and the information, that the proposed restructuring initiative would, if carried out in accordance with the notice and information, comply with subsection 29 (5), the Minister must confirm the notice.

 (3) If the Minister is not satisfied as to the matter set out in subsection (2), the Minister must refuse to confirm the notice.

 (4) Confirmation by the Minister of the notice of intention must be in writing to each of the entities intending to take part in the restructuring initiative.

 (5) If the Minister refuses to confirm the notice of intention, the Minister must give notice to each of the entities of:

 (a) the refusal; and

 (b) the reasons for the refusal.

 (6) Confirmation of a notice of intention does not, of itself, give rise to any entitlement to a grant.

Part 4A Regular advances of grants

Division 4A.1 Introductory

51A Effect of Part

  This Part has effect despite anything else in the Scheme.

51B What is a regular advance of a grant

 (1) A regular advance of a grant that may become payable to an entity is an amount that may become payable to the entity under this Part by way of an advance on account of the grant.

 (2) A regular advance of a type of grant may be made to an entity in addition to a regular advance of another type of grant under the Scheme.

 (3) A regular advance of a Type 1 grant or Type 2 grant may be made in relation to more than 1 eligible TCF activity.

 (4) A regular advance of a Type 3 grant may be made to an entity for a program year only if a regular advance of a Type 1 or Type 2 grant is also made to the entity for the program year.

51C Effect of non-registration

 (1) An entity that is not registered for a pre-program year is not eligible for a regular advance of a Type 1 grant for that year.

 (2) An entity that is not registered for a program year is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant for that year.

51D References to a regular advance of a grant for a program year

  In this Part, a reference to a regular advance of a grant to an entity for a pre-program year or a program year is a reference to a regular advance of a grant to the entity relating to eligible expenditure incurred, or eligible TCF value added, by the entity in the pre‑program year or program year.

Division 4A.2 Regular advances of Type 1, Type 2 and Type 3 grants

Subdivision 4A.2.1 Requests for regular advances of Type 1, Type 2 and Type 3 grants

51E Requests for regular advances of Type 1, Type 2 and Type 3 grants

 (1) If an entity intends to make a claim for:

 (a) a Type 1 grant for a pre-program year as well as for the 2000/2001 program year; or

 (b) a Type 1, Type 2 or Type 3 grant for a program year;

the entity may request the Secretary, in accordance with this Subdivision, for a regular advance of the grant or grants.

 (2) An entity may not make a request for a regular advance of a Type 1, Type 2 or Type 3 grant if the entity has previously been paid a regular advance of a grant for a program year or a pre-program year but has not made a claim, under Part 5, for the grant or, if the entity has made a claim, the claim is not paid under that Part.

 (3) An entity may make a request for a regular advance of a Type 1 grant for a pre‑program year only if the entity also makes a request for a regular advance of a grant for the 2000/2001 program year.

 (4) Subsections 52 (3), (3A), (4), (5), (6) and (7) apply in relation to a request for a regular advance of a Type 1, Type 2 or Type 3 grant in the same way as they apply to a claim for the grant.

 (5) However, the Secretary, on written request by an entity, may exempt the entity from a provision referred to in subsection (4), other than subsection 52 (4), if the Secretary is satisfied that in the circumstances of the case there is good reason to do so.

 (6) A request for a regular advance of a Type 2 grant relating to eligible expenditure by an entity (the contracting entity) in respect of a research and development activity or product development activity carried on, on behalf of the contracting entity, by another entity must be made by the contracting entity.

 (7) A request must:

 (a) be in a form approved by the Secretary; and

 (b) be signed in the manner indicated in the form; and

 (c) be accompanied by the documents and information mentioned in section 51F.

Note 1   A request may be made for 2 or more regular advances of grants of any type in the same form.

Note 2   Requests and other documents under the Scheme may be sent electronically — see section 94.

51F Information in support of requests for regular advances of Type 1, Type 2 and Type 3 grants

  For paragraph 51E (7) (c), the documents and information are the following:

 (a) a detailed description of eligible TCF activities:

 (i) carried on in the pre-program year or program year; and

 (ii) in respect of which the request is made;

 (b) if the request is for a regular advance of a Type 1 or Type 2 grant — a statement of eligible expenditure incurred by the entity in the pre‑program year or program year in respect of which the request is made;

 (c) if the request is for a regular advance of a Type 3 grant — the information required to work out, in accordance with Schedule 2, the total eligible TCF value added for the entity for the program year in respect of which the request is made;

 (d) a written statement by the entity to the effect that, in the entity’s opinion, the total of regular advances of a Type 1, Type 2 or Type 3 grant for which the entity is applying would not represent an overpayment of the grant entitlements of the entity when section 85A is applied in determining those entitlements.

51G When requests for regular advances of Type 1, Type 2 and Type 3 grants must be made — pre-program and early program years

 (1) An entity must make a request for a regular advance of a Type 1, Type 2 or Type 3 grant:

 (a) for the 2000/2001 program year (including, if applicable, a request for a pre-program year) — before 1 July 2002; and

 (b) if the program year is a modulation year:

 (i) for the 2001/2002 program year — before 1 January 2003; and

 (ii) for the 2002/2003 program year — before 1 January 2004; and

 (c) if the program year is not a modulation year:

 (i) for the 2001/2002 program year — before 1 April 2003; and

 (ii) for the 2002/2003 program year — before 1 April 2004.

 (2) Subsection (1) applies to an entity for a program year whether or not the entity applies for renewal of registration for the next following program year.

 (3) An entity that fails to comply with subsection (1) for a program year (including, if applicable, a pre-program year), is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant for the program year or for a Type 1 grant for a pre-program year.

51H When requests for regular advances of Type 1, Type 2 and Type 3 grants must be made — later program years

 (1) An entity must make a request for a regular advance of a Type 1, Type 2 or Type 3 grant for the 2003/2004 program year, after the end of the program year but:

 (a) if the program year is a modulation year, before 1 January 2005; and

 (b) if the program year is not a modulation year, before 1 April 2005.

 (2) An entity must make a request for a regular advance of a Type 1, Type 2 or Type 3 grant for the 2004/2005 program year, after the end of the program year but before 1 January 2006.

 (3) An entity that fails to comply with subsection (1) or (2) is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant for the program year.

Subdivision 4A.2.2 Assessment of eligibility for regular advances of Type 1, Type 2 and Type 3 grants

51I Assessment of eligibility for regular advances of Type 1, Type 2 and Type 3 grants

 (1) A request by an entity for a regular advance of a Type 1, Type 2 or Type 3 grant must contain information sufficient to establish the entity’s eligibility for a regular advance of a grant of an amount.

 (2) The request must contain information sufficient to fulfil the applicable requirements set out in subsections (3) to (7).

 (3) The entity must include in its request information sufficient to establish that it is registered for the Scheme for the program year concerned.

 (4) The entity must establish that it has carried on, in the program year, the eligible TCF activity in respect of which the request is made, in accordance with the documents and information given to the Secretary under sections 33, 34 and 37, as varied under the Scheme.

 (5) The entity must provide information sufficient to enable the calculation of:

 (a) if the request is for a regular advance of a Type 1 grant — the amount of expenditure that is eligible expenditure within the meaning of section 15, incurred by the entity within the program year; and

 (b) if the request is for a regular advance of a Type 2 grant — the amount of expenditure that is eligible expenditure within the meaning of sections 23 to 26, incurred by the entity within the program year; and

 (c) if the request is for a regular advance of a Type 3 grant — the amount that is the total eligible TCF value added by the entity for the program year in accordance with section 28.

 (6) If the request is for a regular advance of a Type 3 grant, the entity must provide information sufficient to establish that the entity is also eligible for a Type 1 or Type 2 grant for the program year.

 (7) The request must be made in accordance with sections 51E to 51H.

 (8) For a year other than a modulation year the Secretary must, and for a modulation year the Secretary may, assess the request and decide whether the entity is eligible for a regular advance of a grant of an amount.

 (9) Without limiting the application of other provisions in the Scheme, in deciding the amount of a regular advance, section 51J and, as far as applicable, sections 51K to 51O and 51R to 51T, must be taken into account.

 (10) However, for a modulation year, an object of this section is to permit self‑assessment of requests and nothing in this section is to operate to require the Secretary to assess a particular request, or any request for that year.

 (11) The Secretary is not to be taken to have assessed an entity’s request for a regular advance for a modulation year unless the Secretary has issued a notice under subsection 51U (1B) in relation to the request.

 (12) In this section:

program year includes, in the case of a request for a regular advance of a Type 1 grant, a pre-program year.

51J Entity no longer carrying on eligible TCF activity

  An entity is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant if, when the request for a regular advance is made, the entity is no longer carrying on an eligible TCF activity.

51K Arms length expenditure — regular advances of Type 1, Type 2 and Type 3 grants

 (1) In working out the amount of eligible expenditure for a regular advance of a Type 1 or Type 2 grant, if expenditure has been incurred in a transaction that was not at arms length, the amount of the expenditure is to be taken to be the amount that would reasonably have been expected to have been incurred if the transaction had been at arms length.

 (2) In working out the amount of eligible TCF value added for a regular advance of a Type 3 grant, if information has been provided under paragraph 51F (c) on the basis of transactions that were not at arms length, the amount of value added is to be taken to be the amount that would reasonably have been expected to have occurred if the transactions had been at arms length.

51L Pro rata adjustment of eligible expenditure for regular advances of Type 1 grants

 (1) This section applies to an entity if the entity:

 (a) has made a request for a regular advance of a Type 1 grant in 1 or both of the pre-program years as well as at least 1 program year; and

 (b) has made an election under section 36 as to which of Option 1, Option 2 or Option 3 in Schedule 3 is to apply to the entity for the apportionment of eligible expenditure incurred by the entity.

 (2) The purpose of this section is to ensure that the total amount of the regular advances of Type 1 grants payable to the entity in respect of eligible expenditure in both the pre-program years and the program years does not exceed the total amount of regular advances of Type 1 grants that would, apart from this section, be payable to the entity in respect of eligible expenditure by the entity in the program period.

 (3) For the purpose of deciding the amount of a regular advance of a grant for a pre-program year or a program year, the entity’s eligible expenditure for the pre-program year or program year is taken to be the specified proportion of the expenditure that would, apart from this section, have been the eligible expenditure for the pre‑program year or the program year.

 (4) In subsection (3):

specified proportion means the proportion of expenditure that is specified in the column headed ‘Proportion of Expenditure’ of the Table relating to the option in Schedule 3 elected by the entity.

51M Cap for regular advances of Type 1 grants

 (1) The amount of a regular advance of a Type 1 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 10% of that eligible expenditure.

 (2) If section 51L applies to the entity, the eligible expenditure is the amount that is taken to be the eligible expenditure under that section.

51N Cap for regular advances of Type 2 grants

  The amount of a regular advance of a Type 2 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular program year must not exceed 22.5% of that eligible expenditure.

51O Cap for regular advances of Type 3 grants

  The total of regular advances of Type 3 grants made to an entity in respect of TCF value added by the entity during a program year must not exceed the lesser of:

 (a) 2.5% of the total eligible TCF value added by the entity in respect of eligible TCF activities carried on by the entity during the program year; and

 (b) the sum of:

 (i) the total of regular advances of Type 1 grants made to the entity for the program year; and

 (ii) the total of regular advances of Type 2 grants made to the entity for the program year; and

 (iii) the total of regular advances of Type 4 grants made to the entity for the program year.

51Q Alternative calculation of amount — regular advances of Type 1 grants

 (1) This section applies to an entity if:

 (a) the entity is eligible under section 51I for a regular advance of a Type 1 grant of an amount (in this section called the eligible regular advance amount) in respect of a pre‑program year and the 2000/2001 program year, or a subsequent program year; and

 (b) the entity has notified the Secretary, under section 36, that this section is to apply to the entity.

 (2) If this section applies to an entity, the amount of the regular advance of a Type 1 grant for which the entity is eligible is, for a pre-program year or program year in the first column of the following table, the corresponding amount in the second column of the table:

51R Threshold expenditure for pre-program years — regular advances of Type 1 grants

 (1) An entity is not eligible for a regular advance of a Type 1 grant for a pre‑program year unless:

 (a) the total amount of the eligible expenditure incurred by the entity in the pre-program years in respect of eligible TCF activities exceeds $200,000 (the threshold amount); or

 (b) if the total amount of the eligible expenditure in the pre‑program years in respect of eligible TCF activities does not exceed the threshold amount — the total amount of eligible expenditure for regular advances of Type 1 and Type 2 grants incurred by the entity in 1 or more of the program years, and in respect of which the entity has made a request, exceeds the threshold amount.

 (2) If, for an entity, the total amount of the eligible expenditure mentioned in paragraph (1) (a) or (b) exceeds the threshold amount, the entity becomes eligible for a regular advance of a Type 1 grant in respect of eligible expenditure in each of the pre-program years if, apart from this section, the entity would be eligible for the regular advance.

51S Threshold expenditure for regular advances of Type 1, Type 2 and Type 3 grants — program years

 (1) An entity is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant for a program year unless the sum of the amounts mentioned in subsection (2) exceeds $200,000 (the threshold amount).

 (2) For subsection (1), the amounts are:

 (a) the total amount of eligible expenditure for regular advances of Type 1 and Type 2 grants incurred by the entity in the program year in respect of which the request is made; and

 (b) the total amount of eligible expenditure for regular advances of Type 1 and Type 2 grants:

 (i) incurred by the entity in previous program years; and

 (ii) in respect of which the entity has made a claim.

 (3) If, for an entity, the sum of the amounts mentioned in subsection (2) exceeds the threshold amount, the entity becomes eligible for a regular advance of a Type 1, Type 2 or Type 3 grant in respect of eligible expenditure in each of the program years if, apart from this section, the entity would be eligible for the regular advance.

51T Minimum additional expenditure

 (1) An entity is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant unless the total amount of relevant eligible expenditure mentioned in subsection (2) incurred by the entity in respect of eligible TCF activities exceeds $100,000.

 (2) In subsection (1):

relevant eligible expenditure means eligible expenditure:

 (a) that has not been taken into account in the payment of any regular advance; and

 (b) in respect of which, if the entity has made a claim, a grant has not been paid because of the operation of section 80.

 (3) However, subsection (2) does not apply to a regular advance of a grant in respect of amounts of eligible expenditure accumulated by, or incurred in, the 2004/2005 program year.

 (4) Nothing in this section affects the operation of section 51S.

Subdivision 4A.2.3 Notice of decisions and payment of regular advances of Type 1, Type 2 and Type 3 grants

51U Notice of decisions — regular advances of Type 1, Type 2 and Type 3 grants

 (1A) This section applies in relation to a request for a regular advance for a Type 1, Type 2 or Type 3 grant for a program year in respect of which the Secretary has made an assessment, or is to make an assessment, under subsection 51I (8).

 (1B) If the Secretary decides under subsection 51I (8) to make an assessment in relation to a request by an entity, the Secretary must give notice, in writing, to the entity accordingly.

 (1) The Secretary must give notice, in writing, to an entity making a request for a regular advance of a Type 1, Type 2 or Type 3 grant, within 60 days after receipt of the request:

 (a) of the Secretary’s decision as to the entity’s eligibility for the regular advance and the amount of the advance; or

 (b) if the decision cannot be made within 60 days after receipt of the request — of the period within which the decision will be made, giving reasons for the delay in making the decision.

 (2) The Secretary must give notice, in writing, to the entity of a decision to which paragraph (1) (b) applies within 7 days after the decision is made.

 (3) If the Secretary decides that the entity is not eligible for a regular advance of a Type 1, Type 2 or Type 3 grant, the notice must include reasons for the decision.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (4) Subsection (5) applies to an entity if the Secretary has not given notice to the entity of the Secretary’s decision as to eligibility for a regular advance of a grant:

 (a) within the period of 60 days mentioned in subsection (1); or

 (b) if the decision is one to which paragraph (1) (b) applies — within 7 days after the end of the period notified by the Secretary under that paragraph.

 (5) An entity to which this subsection applies may, at any time, give the Secretary written notice that the entity wishes to treat the request as having been refused.

 (6) For section 87, if the entity gives notice under subsection (5), the Secretary is taken to have refused the request, and to have notified the entity of the decision, on the day on which the entity gives notice.

51UA Resolution of requests for regular advances of Type 1, Type 2 and Type 3 grants in modulation year

 (1) This section applies to a request for a regular advance of a Type 1, Type 2 or Type 3 grant in relation to a modulation year in respect of which the Secretary does not intend to make an assessment under subsection 51I (8).

 (2) If the entity has, in its request, satisfied the requirements of section 51I, the entity is to be regarded as being eligible for a regular advance in accordance with the terms of the request.

51V Payment of regular advances of Type 1, Type 2 and Type 3 grants

 (1) If the entity is eligible for a regular advance of a Type 1, Type 2 or Type 3 grant of an amount, the Secretary must:

 (a) if section 51Q does not apply to the entity — pay that amount to the entity; or

 (b) if section 51Q does apply to the entity — pay the amount calculated in accordance with that section to the entity.

 (2) The regular advance must be paid as soon as practicable after the Secretary has made the decision.

Division 4A.3 Regular advances of Type 4 and Type 5 grants

Subdivision 4A.3.1 Requests for regular advances of Type 4 and Type 5 grants

51W Requests for regular advances of Type 4 and Type 5 grants

 (1) This section applies if:

 (a) notice of intention to make a claim for a Type 4 or Type 5 grant for the 1999/2000 pre-program year or a program year has been given by an entity in accordance with sections 48 to 50; and

 (b) the Minister has confirmed the notice under section 51.

 (2) The entity may make a request to the Secretary, acting on behalf of the Minister, in accordance with this Subdivision for a regular advance of a Type 4 or Type 5 grant for the pre-program year or program year.

 (3) An entity may not make a request for a regular advance of a Type 4 or Type 5 grant if the entity has previously been paid a regular advance of a grant for a pre-program year or a program year but has not made a claim, under Part 5, for the grant or, if the entity has made a claim, the claim is not paid under that Part.

 (4) A request must:

 (a) be in a form approved by the Secretary; and

 (b) be signed in the manner indicated in the form; and

 (c) be accompanied by the documents and information mentioned in section 51X.

Note 1   A request may be made for 2 or more regular advances of grants in the same form.

Note 2   Requests and other documents under the Scheme may be sent electronically — see section 94.

51X Information in support of requests for regular advances of Type 4 and Type 5 grants

  For paragraph 51W (4) (c), the documents and information are the following:

 (a) details of the restructuring initiative, including:

 (i) the outcomes, addressing, in particular, the matters mentioned in paragraphs 29 (5) (b) to (d); and

 (ii) the entity’s corporate structure; and

 (iii) the costs and other implications of the restructuring initiative;

 (b) a detailed description of eligible TCF activities carried on in the pre-program year or program year and in respect of which the request is made;

 (c) a statement of eligible expenditure incurred by the entity in the pre-program year or program year in respect of which the request is made;

 (d) a statement of strategic business intent that includes the business, operational and financial strategies that will guide the entity to sustainable operations for eligible TCF activities beyond the end of the program period;

 (e) if the request is for a regular advance of a Type 4 grant — a statement giving details as to whether the second-hand TCF plant or equipment acquired is state-of-the-art, having regard to the matters mentioned in section 51ZB;

 (f) a written statement by the entity to the effect that, in the entity’s opinion, the total of regular advances of a Type 4 or Type 5 grant for which the entity is applying would not represent an overpayment of the grant entitlements of the entity when section 85A is applied in determining those entitlements.

51Y When requests for regular advances of Type 4 and Type 5 grants must be made

 (1) An entity must make a request for a regular advance of a Type 4 or Type 5 grant for the 1999/2000 pre-program year within the period:

 (a) beginning immediately after the end of the 2000/2001 program year; and

 (b) ending immediately before the expiry of 12 months after the end of the program year.

 (2) An entity must make a request for a regular advance of a Type 4 or Type 5 grant for a program year other than a modulation year within the period:

 (a) beginning immediately after the end of the program year; and

 (b) ending immediately before the expiry of 12 months after the end of the program year.

 (3) An entity must make a request for a regular advance of a Type 4 or Type 5 grant for a modulation year:

 (a) for the 2001/2002 program year — after the end of the program year but before 1 January 2003; and

 (b) for the 2002/2003 program year — after the end of the program year but before 1 January 2004; and

 (c) for the 2003/2004 program year — after the end of the program year but before 1 January 2005; and

 (d) for the 2004/2005 program year — after the end of the program year but before 1 January 2006.

 (4) Subsections (2) and (3) apply to an entity for a program year whether or not the entity applies for renewal of registration for the next program year.

 (5) An entity that fails to comply with subsection (1) for the pre-program year or subsection (2) or (3) for a program year is not eligible for a regular advance of a Type 4 or Type 5 grant for the pre-program year or program year, as the case requires.

Subdivision 4A.3.2 Assessment of eligibility for Type 4 and Type 5 grants

51Z Assessment of eligibility for regular advances of Type 4 and Type 5 grants

 (1) On receipt of a request for a regular advance of a Type 4 or Type 5 grant, the Minister must assess the request and decide whether the entity is eligible for a regular advance of a grant of an amount.

 (2) Before the Minister can be satisfied that an entity is eligible for a regular advance of a grant of an amount, the Minister must be satisfied as to the matters set out in subsections (3), (4), (5) and (6), as far as applicable.

 (3) The Minister must be satisfied that the restructuring initiative complies with the requirements of subsection 29 (5).

 (4) The Minister must be satisfied that second-hand TCF plant or equipment:

 (a) was acquired as part of, or as a direct consequence of, the restructuring initiative; and

 (b) is state-of-the-art; and

 (c) complies with subsections 29 (3) and (4).

 (5) The Minister must be satisfied:

 (a) if the request is for a regular advance of a Type 4 grant — as to the amount of expenditure that is eligible expenditure within the meaning of subsection 30 (1) incurred by the entity within the program year; or

 (b) if the request is for a regular advance of a Type 5 grant — as to the amount of expenditure that is eligible expenditure within the meaning of subsection 30 (2) incurred by the entity within the program year.

 (6) The Minister must be satisfied that the request has been made in accordance with the requirements of sections 51W to 51Y.

 (7) In addition, in deciding whether the entity is eligible for a regular advance of a grant of an amount, the Minister must take into account, section 51ZA and as far as applicable, sections 51ZB to 51ZD.

 (8) In this section:

program year includes the 1999/2000 pre-program year.

51ZA Entity no longer carrying on eligible TCF activity

  An entity is not eligible for a regular advance of a Type 4 or Type 5 grant if, at the time when the Minister’s decision as to the entity’s eligibility for the regular advance is to be made, the entity is no longer carrying on an eligible TCF activity.

51ZB State-of-the art TCF plant or equipment — regular advances of Type 4 grants

  In considering, for the purpose of being able to be satisfied for paragraph 51Z (4) (b) as to whether second-hand TCF plant or equipment is state-of-the-art, the Minister must have regard:

 (a) to the viable economic life of the second-hand TCF plant or equipment; and

 (b) if the viable economic life of the TCF plant or equipment is less than 70% of the economic life of the plant or equipment when new — to whether the plant or equipment has a demonstrable and relevant technical excellence, based on a capacity to improve manufacturing efficiency (due, for example, to its design or specification).

51ZC Arms length expenditure — regular advances of Type 4 and Type 5 grants

  In working out the amount of eligible expenditure for a regular advance of a Type 4 or Type 5 grant, if it appears to the Minister that expenditure has been incurred in a transaction that was not at arms length, the Minister may take the amount of the expenditure to be the amount that would reasonably have been expected to have been incurred if the transaction had been at arms length.

51ZD Cap for regular advances of Type 4 and Type 5 grants

 (1) The amount of a regular advance of a Type 4 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 10% of the eligible expenditure incurred during the pre‑program year or program year, respectively.

 (2) The amount of a regular advance of a Type 5 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 10% of the eligible expenditure incurred during the pre‑program year or program year, respectively.

Subdivision 4A.3.3 Notice of decisions and payment of regular advances of Type 4 and Type 5 grants

51ZF Notice of decisions — regular advances of Type 4 and Type 5 grants

 (1) The Minister must give notice in writing to an entity making a request for a regular advance of a Type 4 or Type 5 grant, of the Minister’s decision as to the entity’s eligibility for the regular advance and the amount of the advance.

 (2) The notice must be given as soon as practicable after the decision is made.

51ZG Payment of regular advances of Type 4 and Type 5 grants

 (1) If the Minister decides that an entity is eligible for a regular advance of a Type 4 or Type 5 grant of an amount, the Secretary must pay the amount to the entity.

 (2) The regular advance must be paid as soon as practicable after the Minister has made the decision.

Part 5 Claims for grants

Division 5.1 Making a claim

Subdivision 5.1.1 Claims for a Type 1, Type 2 or Type 3 grant

52 Claim for Type 1, Type 2 or Type 3 grant

 (1) An entity may make a claim to the Secretary, in accordance with this Subdivision, for:

 (a) a Type 1 grant for a pre-program year; or

 (b) a Type 1, Type 2 or Type 3 grant for a program year.

 (2) An entity may make a claim for a Type 1 grant for a pre‑program year only if the entity also makes a claim for a grant for the 2000/2001 program year.

 (3) An entity that is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a) may make a claim for a Type 1, Type 2 or Type 3 grant relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (c) for a pre-program year or a program year only if the entity also makes a claim relating to eligible expenditure by the entity in respect of the eligible TCF activity mentioned in paragraph 5 (1) (a) for the pre-program year or program year.

 (3A) An entity that is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (b) may make a claim for a Type 1, Type 2 or Type 3 grant relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (d) for a pre-program year or a program year only if the entity also makes a claim relating to eligible expenditure by the entity in respect of the eligible TCF activity mentioned in paragraph 5 (1) (b) for the pre‑program year or program year.

 (4) An entity that is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a) may make a claim for a Type 1, Type 2 or Type 3 grant relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (b) only if:

 (a) the entity’s primary business is the carrying on of an eligible TCF activity mentioned in paragraph 5 (1) (b); and

 (b) the activity represents the whole of the design activity for eligible TCF products to which the claim relates; and

 (c) the manufacture of the eligible TCF products is carried on in Australia on behalf of the entity by another entity.

Example for paragraph (4) (b)

For a claim in respect of the design of footwear, both the upper and the sole must be designed in Australia by the entity. If the sole or upper is designed by another entity, or overseas, the claim may not be made.

 (5) An entity that is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (a) may make a claim for a Type 1 or Type 2 grant relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (c) for a pre-program year or a program year only if the entity that carries on the manufacturing activity mentioned in paragraph 5 (1) (c) makes a claim relating to eligible expenditure by the entity in respect of that manufacturing activity for the pre-program year or program year.

 (6) An entity that is not carrying on an eligible TCF activity mentioned in paragraph 5 (1) (b) may make a claim for a Type 1 or Type 2 grant relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (d) for a pre-program year or a program year only if the entity that carries on the design activity mentioned in paragraph 5 (1) (d) makes a claim relating to eligible expenditure by the entity in respect of that design activity for the pre-program year or program year.

 (7) An entity that is carrying on an eligible TCF activity mentioned in paragraph 5 (1) (e) may make a claim for a Type 1, Type 2 or Type 3 grant relating to eligible expenditure by the entity in respect of that activity for a pre-program year or a program year only if the entity also makes a claim relating to eligible expenditure by the entity in respect of an eligible TCF activity mentioned in paragraph 5 (1) (a) for the pre‑program year or program year.

 (8) However, the Secretary, on written application by an entity, may exempt the entity from a requirement under subsection (3), (3A), (5), (6) or (7) for a pre-program year or a program year if the Secretary is satisfied that in the circumstances of the case there is good reason to do so.

 (9) A claim for a Type 2 grant relating to eligible expenditure by an entity (the contracting entity) in respect of a research and development activity or product development activity carried on, on behalf of the contracting entity, by another entity must be made by the contracting entity.

 (10) A claim must:

 (a) be in a form approved by the Secretary; and

 (b) be signed in a manner indicated in the form; and

 (c) be accompanied by the documents and information mentioned in section 53.

Note 1   A Type 1 grant is payable for a pre-program year as well as a program year — see subs 14 (3). A Type 2 or Type 3 grant is payable only for a program year — see subs 16 (5) and 27 (1).

Note 2   A Type 3 grant may be made to an entity for a program year only if a Type 1 or Type 2 grant is also made to the entity for the program year — see subs 27 (2).

Note 3   Claims and other documents under the Scheme may be sent electronically — see s 94.

53 Information in support of a claim for Type 1, Type 2 or Type 3 grant

 (1) For paragraph 52 (10) (c), the documents and information to accompany a claim are the following:

 (a) financial reports or statements prepared (and, if so required, audited) in accordance with section 32, for the pre-program year or program year in respect of which the claim is made;

 (b) a detailed description of eligible TCF activities:

 (i) carried on in the pre-program year or program year; and

 (ii) in respect of which the claim is made;

 (c) if the claim is for a Type 1 or Type 2 grant — a statement of eligible expenditure incurred by the entity in the pre‑program year or program year in respect of which the claim is made, together with an auditor’s report verifying the eligible expenditure;

 (d) if the claim is for a Type 3 grant — the information required to work out, in accordance with Schedule 2, the total eligible TCF value added for the entity for the program year in respect of which the claim is made, together with an auditor’s report verifying the information.

Note   See subsection 57 (3) for documents and information to accompany a claim for a Type 4 or Type 5 grant where a Type 3 grant is also claimed under section 30B.

 (2) However, the claim need not be accompanied by a particular document or information referred to in subsection (1) if:

 (a) the claimant entity has made a request for a regular advance of the grant under Part 4A; and

 (b) the information is the same as the information, or the document is the same as the document, that the entity has given to the Secretary in support of the entity’s request for the regular advance; and

 (c) the claim is accompanied by a written statement to that effect by the entity.

Note   To ensure that a claim is sufficient and complete, applicants are encouraged to take into account guidelines prepared by and available from AusIndustry whose Internet address is http://www.ausindustry.gov.au.

54 When claim for Type 1, Type 2 or Type 3 grant must be made

 (1) An entity must make a claim for a Type 1, Type 2 or Type 3 grant as follows:

 (a) for the 2000/2001 program year (including, if applicable, a claim for a pre-program year) — before 1 July 2002;

 (b) for the 2001/2002 program year — after the end of the program year but before 1 April 2003;

 (c) for the 2002/2003 program year — after the end of the program year but before 1 April 2004;

 (d) for the 2003/2004 program year — after the end of the program year but before 1 April 2005;

 (e) for the 2004/2005 program year — after the end of the program year but before 1 April 2006.

 (2) An entity that fails to comply with subsection (1) for a program year (including, if applicable, a pre-program year), is not eligible for a Type 1, Type 2 or Type 3 grant for the program year (or for a Type 1 grant for a pre-program year) unless the period for making a claim is extended under section 59 and the claim is made within the extended period.

Note   Section 59 provides that the period for making a claim may be extended by the Secretary in exceptional circumstances.

Subdivision 5.1.2 Claims for Type 4 or Type 5 grant

56 Claim for Type 4 or Type 5 grant

 (1) This section applies if:

 (a) notice of intention to make a claim for a Type 4 or Type 5 grant for the 1999/2000 pre-program year or a program year has been given by an entity in accordance with sections 48 to 50; and

 (b) the Minister has confirmed the notice under section 51.

 (2) The resultant entity may make a claim to the Secretary, acting on behalf of the Minister, in accordance with this Subdivision for a Type 4 or Type 5 grant for the pre-program year or program year.

 (3) A claim must be:

 (a) in a form approved by the Secretary; and

 (b) signed in the manner indicated in the form; and

 (c) be accompanied by the documents and information mentioned in section 57.

Note   Claims and other documents under the Scheme may be sent electronically — see s 94.

57 Information in support of claim for Type 4 or Type 5 grant

 (1) For paragraph 56 (3) (c), the documents and information to accompany a claim are the following:

 (a) financial reports or statements of the resultant entity, prepared (and, if so required, audited) in accordance with section 32, for the program year or pre-program year in respect of which the claim is made;

 (b) details of the restructuring initiative, including:

 (i) the outcomes, addressing, in particular, the matters mentioned in paragraphs 29 (5) (b) to (d); and

 (ii) the resultant entity’s corporate structure; and

 (iii) the costs and other implications of the restructuring initiative;

 (c) a detailed description of eligible TCF activities carried on in the pre-program year or program year and in respect of which the claim is made;

 (d) a statement of eligible expenditure incurred by the resultant entity in the pre-program year or program year in respect of which the claim is made, together with an auditor’s report verifying the eligible expenditure;

 (e) a statement of strategic business intent that includes the business, operational and financial strategies that will guide the resultant entity to sustainable operations for eligible TCF activities beyond the end of the program period;

 (f) if the claim is for a Type 4 grant — a statement giving details as to whether the second-hand TCF plant or equipment acquired is state-of-the-art, having regard to the matters mentioned in section 70.

 (2) However, the claim need not be accompanied by a particular document or information referred to in subsection (1) if:

 (a) the claimant entity has made a request for a regular advance of the grant under Part 4A; and

 (b) the information is the same as the information, or the document is the same as the document, that the entity has given to the Secretary in support of the entity’s request for the regular advance; and

 (c) the claim is accompanied by a written statement to that effect by the entity.

 (3) For a resultant entity claiming a Type 4 or Type 5 grant for a program year, and also claiming a Type 3 grant that includes the total eligible TCF value added for that program year of an entity taking part in the restructuring initiative in respect of which the resultant entity became a resultant entity, the documents and information to accompany the claim must include:

 (a) the information required to work out, in accordance with Schedule 2, the total eligible TCF value added for the resultant entity for the program year (including the total eligible TCF value added for that program year of any entity taking part in the relevant restructuring initiative whose value added is to be included in the claim); and

 (b) an auditor’s report verifying the information.

58 When claim for Type 4 or Type 5 grant must be made

 (1) An entity must make a claim for a Type 4 or Type 5 grant for the 1999/2000 pre-program year within the period:

 (a) beginning immediately after the end of the 2000/2001 program year; and

 (b) ending immediately before the expiry of 12 months after the end of the program year.

 (2) An entity must make a claim for a Type 4 or Type 5 grant as follows:

 (a) for the 2000/2001 program year — after the end of the program year but within 12 months after the end of the program year;

 (b) for the 2001/2002 program year — after the end of the program year but before 1 April 2003;

 (c) for the 2002/2003 program year — after the end of the program year but before 1 April 2004;

 (d) for the 2003/2004 program year — after the end of the program year but before 1 April 2005;

 (e) for the 2004/2005 program year — after the end of the program year but before 1 April 2006.

 (3) Subsection (2) applies to an entity for a program year whether or not the entity applies for renewal of registration for the next program year.

 (4) An entity that fails to comply with subsection (1) for a pre-program year, or with subsection (2) for a program year, is not eligible for a Type 4 or Type 5 grant for the pre-program year or the program year unless the period for making a claim is extended under section 59 and the claim is made within the extended period.

Note   Section 59 provides that the period for making a claim may be extended by the Secretary in exceptional circumstances.

Subdivision 5.1.3 Extension of time for making claim

59 Extension of time for making claim

 (1) The Secretary, on the written application of an entity, may extend the period within which the entity may make a claim for a grant for a particular pre-program year or program year.

 (3) The Secretary must not extend the period unless the Secretary is satisfied that, because of exceptional circumstances affecting the entity, there is good reason to do so.

 (4) However, the Secretary must not agree to extend the period for lodging a claim if that request is made after the end of the relevant financial year.

Example

The Secretary must not agree to extend the period for lodging a claim for the 2003/2004 program year if the request for extension is made after 1 July 2005.

 (5) Also, regardless of the circumstances, the Secretary must not provide an extension of time for an entity in relation to a claim for a previous program year for which the entity has already made a claim under the Scheme.

  (6) To avoid doubt, a failure to lodge a claim on time due to oversight or ignorance is not to be regarded as an exceptional circumstance for subsection (3).

59A Effect of extension for modulation year

 (1) If, for a modulation year, an extension is given to an entity to enable it to lodge a claim after the date when lodgement would otherwise be due, the payment of that claim must be made in the relevant financial year if:

 (a) the result of applying the modulation factor mentioned in section 85B is equal to or greater than 1; and

 (b) there is sufficient surplus in the amount available for payments under the Scheme in that financial year to pay the extended claim; and

 (c) payment can be made on or before the date when payment would otherwise be made for that program year under section 81 or 85, as the case requires.

 (2) If, for a modulation year, an extension is given to an entity to enable it to lodge a claim after the date when lodgement would otherwise be due but the requirements of paragraph (1) (a) to (c) cannot be met:

 (a) the claim is not to be assessed or paid until the next financial year; and

 (b) the claim is to be treated as a claim being made for a relevant program year in that financial year and not as a deferred amount.

 (3) However, an extension must not be given to an entity to enable it to lodge a claim after the date when lodgement would otherwise be due for the 2004/2005 program year unless the requirements of paragraphs (1) (a) to (c) are met.

60 Notice of decision about extending claim period

 (1) The Secretary must give written notice to the entity of a decision of the Secretary on an application under section 59.

 (2) If the Secretary refuses the application, the Secretary must give written notice of:

 (a) the refusal; and

 (b) the reasons for the refusal.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (3) If the Secretary has not decided an application within 28 days after the application is made, the entity may, at any time, give the Secretary written notice that the entity wishes to treat the application as having been refused.

 (4) For section 87, if the entity gives notice under subsection (3), the Secretary is taken to have refused the application, and to have notified the entity of the decision, on the day on which the entity gives notice.

Division 5.2 Assessment of claims

Subdivision 5.2.1 Assessment of eligibility for Type 1, Type 2 and Type 3 grants

61 Assessment of eligibility for Type 1, Type 2 and Type 3 grants

 (1) An entity’s claim for eligibility for a Type 1, Type 2 or Type 3 grant must contain information sufficient to establish the entity’s eligibility for a grant of an amount.

 (2) The amount of a grant mentioned in subsection (1) is the amount that, apart from the operation of Division 5.3, would be the amount of the grant.

 (3) The claim must contain information sufficient to fulfil the applicable requirements set out in subsections (4) to (8).

 (4) The entity must include in its claim information sufficient to establish that it is registered for the Scheme for the program year concerned.

 (5) The entity must establish that it has carried on, in the program year, the eligible TCF activity in respect of which the claim is made, in accordance with the documents and information given to the Secretary under sections 33, 34 and 37, as varied under the Scheme.

 (6) The entity must provide information sufficient to enable the calculation of:

 (a) if the claim is for eligibility for a Type 1 grant — the amount of expenditure that is eligible expenditure within the meaning of section 15, incurred by the entity within the program year; and

 (b) if the claim is for eligibility for a Type 2 grant — the amount of expenditure that is eligible expenditure within the meaning of sections 23 to 26, incurred by the entity within the program year; and

 (c) if the claim is for eligibility for a Type 3 grant — the amount that is the total eligible TCF value added by the entity for the program year in accordance with section 28.

 (7) If the claim is for eligibility for a Type 3 grant, the entity must provide information sufficient to establish that the entity is also eligible for a Type 1 or Type 2 grant for the program year.

 (8) The claim must be made in accordance with the requirements of sections 52 to 54.

 (9) For a year other than a modulation year the Secretary must, and for a modulation year the Secretary may, assess the claim and decide whether the entity is eligible for a grant of an amount.

 (10) Without limiting the application of other provisions in the Scheme, in deciding the amount of an entity’s claim, sections 62 to 66 and 85B, as far as applicable, must be taken into account.

 (11) However, for a modulation year, an object of this section is to permit self‑assessment of claims and nothing in this section is to operate to require the Secretary to assess a particular claim, or any claim for that year.

 (12) The Secretary is not to be taken to have decided to assess an entity’s claim for a modulation year unless the Secretary has issued a notice under subsection 67 (1A) in relation to the claim.

 (13) In this section:

program year includes, in the case of a claim for eligibility for a Type 1 grant, a pre-program year.

62 Arms length expenditure — Type 1, Type 2 and Type 3 grants

 (1) In working out the amount of eligible expenditure for a Type 1 or Type 2 grant, if the expenditure has been incurred in a transaction that was not at arms length, the amount of the expenditure is to be taken to be the amount that would reasonably have been expected to have been incurred if the transaction had been at arms length.

 (2) In working out the amount of eligible TCF value added for a Type 3 grant, if information has been provided under paragraph 53 (1) (d) on the basis of transactions that were not at arms length, the amount of value added is to be taken to be the amount that would reasonably have been expected to have occurred if the transactions had been at arms length.

63 Pro rata adjustment of eligible expenditure for Type 1 grants

 (1) This section applies to an entity if the entity:

 (a) has made a claim for a Type 1 grant in 1 or both of the pre-program years as well as at least 1 program year; and

 (b) has made an election under section 36 as to which of Option 1, Option 2 or Option 3 in Schedule 3 is to apply to the entity for the apportionment of eligible expenditure incurred by the entity.

 (1A) However, this section does not apply to an entity if the entity:

 (a) has made a claim and an election referred to in subsection (1); and

 (b) the pre-program expenditure in respect of which the claim is made is not eligible expenditure.

 (2) The purpose of this section is to ensure that the total amount of Type 1 grants payable to the entity in respect of eligible expenditure in both the pre-program years and the program years does not exceed the total amount of Type 1 grants that would, apart from this section, be payable to the entity in respect of eligible expenditure by the entity in the program period.

 (3) For the purpose of deciding the amount of a grant for a pre-program year or a program year, the entity’s eligible expenditure for the pre-program year or program year is taken to be the specified proportion of the expenditure that would, apart from this section, have been the eligible expenditure for the pre‑program year or the program year.

 (4) In subsection (3):

specified proportion means the proportion of expenditure that is specified in the column headed ‘Proportion of Expenditure’ of the Table relating to the option in Schedule 3 elected by the entity.

64 Cap for Type 1 grants

 (1) The amount of a Type 1 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 20% of that eligible expenditure.

Note   Section 15 sets out what is eligible expenditure for a Type 1 grant.

 (2) If section 63 applies to the entity, the eligible expenditure is the amount that is taken to be the eligible expenditure under that section.

65 Cap for Type 2 grants

  The amount of a Type 2 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular program year must not exceed 45% of that eligible expenditure.

Note   Sections 23 to 26 set out what is eligible expenditure for a Type 2 grant.

66 Cap for Type 3 grants

  Subject to section 68B, the total of Type 3 grants made to an entity in respect of TCF value added by the entity during a program year must not exceed the lesser of:

 (a) 5% of the total eligible TCF value added by the entity in respect of eligible TCF activities carried on by the entity during the program year; and

 (b) the sum of:

 (i) the total of Type 1 grants made to the entity under this Division for the program year; and

 (ii) the total of Type 2 grants made to the entity under this Division for the program year; and

 (iii) the total of Type 4 grants made to the entity under this Division for the program year.

Note   Section 28 and Sch 2 provide for the working out of eligible TCF value added for an entity.

67 Period for assessment and notice of decisions — Type 1, Type 2 and Type 3 grants

 (1) This section applies in relation to a claim for a Type 1, Type 2 or Type 3 grant in relation to which the Secretary has made an assessment, or is to make an assessment, under subsection 61 (9).

 (1A) If the Secretary decides under subsection 61 (9) to make an assessment in relation to a claim by an entity, the Secretary must give notice, in writing, to the entity accordingly.

 (1B) The Secretary must give notice, in writing, to an entity making a claim for a Type 1, Type 2 or Type 3 grant within 60 days after receipt of the claim:

 (a) of the Secretary’s decision as to the entity’s eligibility for a grant; or

 (b) if the decision cannot be made within 60 days after receipt of the claim — of the period within which the decision will be made, giving reasons for the delay in making the decision.

 (2) The Secretary must give notice, in writing, to a claimant entity of a decision to which paragraph (1B) (b) applies within 7 days after the decision is made.

 (3) If the Secretary decides that an entity is not eligible for a Type 1, Type 2 or Type 3 grant, the notice must include reasons for the decision.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (4) Subsection (5) applies to an entity if the Secretary has not given notice to the entity of the Secretary’s decision as to eligibility for a grant:

 (a) within the period of 60 days mentioned in subsection (1B); or

 (b) if the decision is one to which paragraph (1B) (b) applies — within 7 days after the end of the period notified by the Secretary under that paragraph.

 (5) An entity to which this subsection applies may, at any time, give the Secretary written notice that the entity wishes to treat the claim as having been refused.

 (6) For section 87, if the entity gives notice under subsection (5), the Secretary is taken to have refused the claim, and to have notified the entity of the decision, on the day on which the entity gives notice.

67A Resolution of claims — eligibility for Type 1, Type 2 and Type 3 grants for modulation year

 (1) This section applies to a claim for a Type 1, Type 2 or Type 3 grant in relation to a modulation year and in respect of which the Secretary does not intend to make an assessment under subsection 61 (9).

 (2) If the entity has, in its claim, satisfied the requirements of section 61, the entity is to be regarded as being eligible for a grant in accordance with the terms of the claim.

68 Effect of decision as to eligibility for Type 1, Type 2 and Type 3 grants

  If, under this Subdivision, a claimant entity is eligible for a grant, the entity’s eligibility does not, of itself, give rise to an entitlement to the grant.

68A Deferred amount for modulation year

 (1) Eligibility for a grant for a modulation year may be deferred until a program year after the program year for which an entity has made a claim for the grant.

 (2) If an entity would otherwise be eligible for a grant for a modulation year but has failed to meet a threshold amount under section 79, or a minimum amount of relevant eligible expenditure amount under section 80, payment of the grant must be deferred until the relevant amount is reached.

 (3) An entity may, in other circumstances, elect to defer eligibility for a grant for a modulation year.

 (4) However, eligibility for a grant for the 2004/2005 program year may not be deferred.

Note   A deferred amount that has not been paid before 10 June 2006 will no longer be payable under the Scheme – see section 81.

68B Special cap arrangements: section 14A entities

 (1) For section 14A of the Act, this section applies to Type 3 grants for a section 14A entity in respect of TCF value added by the entity during the 2003/2004 and 2004/2005 program years.

Note   Section 14A entity is defined in subsection 14A (4) of the Act as follows:

section 14A entity means an entity:

(a) that carries on, in Australia, the following leather and leather product manufacturing activities:

 (i) post full substance activities (including sammying, splitting, shaving, tanning, currying, dressing, dyeing, embossing or japanning leather, animal skins or fur);

 (ii) fur dressing and dyeing;

 (iii) hide and skin tanning, currying, dressing, crusting, dyeing or finishing;

 (iv) leather manufacturing;

 (v) leather tanning; or

(b) that manufactures, in Australia, eligible TCF products to which any of the following headings of Schedule 3 to the Customs Tariff Act 1995 apply:

 (i) heading 5601 of Chapter 56;

 (ii) heading 5602 of Chapter 56;

 (iii) heading 5603 of Chapter 56;

 (iv) heading 5911 of Chapter 59.

 (2) The total of Type 3 grants to which this section applies made to a section 14A entity in respect of TCF value added by the entity during a program year must not exceed the sum of:

 (a) the total of Type 1 grants made to the entity under this Division for the program year; and

 (b) the total of Type 2 grants made to the entity under this Division for the program year; and

 (c) the total of Type 4 grants made to the entity under this Division for the program year.

 (3) The total of Type 3 grants paid to section 14A entities in each of the 2004/2005 and 2005/2006 financial years must not exceed by more than $3 900 000 the total of the interim amounts payable in that year to those entities.

 (4) If a section 14A entity makes a request under section 75 of this Scheme for the determination and payment of a claim for a Type 3 grant to which this section applies:

 (a) the interim amount payable to the entity may be paid to the entity as if this section did not apply; and

 (b) any additional amount claimed under section 75 to which this section applies is to be paid as a supplementary payment to the entity after all claims from entities affected by this section are modulated.

 (5) If the total of the additional amounts claimed by section 14A entities in a financial year to which this section applies exceeds $3 900 000, each claim for an additional amount payable in that financial year must be modulated in accordance with the following formula

where:

AC is the additional amount for the particular claim.

TG is the total of the additional amounts that, but for the operation of subsection (3), would have been payable to entities under this section.

 (6) For subsection (4):

 (a) a supplementary payment for the 2003/2004 program year must be paid in June 2005, and before 10 June 2005; and

 (b) a supplementary payment for the 2004/2005 program year must be paid in June 2006, and before 10 June 2006.

 (7) In this section:

additional amount, for an entity for a financial year, means the amount claimed by the entity under this section that exceeds the interim amount for the entity for that year.

interim amount, for an entity for a financial year, means the amount that, but for this section, would have been payable to the entity under section 66 of this Scheme for that year.

modulated means modulated in accordance with subsection (5).

Subdivision 5.2.2 Assessment of eligibility for Type 4 and Type 5 grants

69 Assessment of eligibility for Type 4 and Type 5 grants

 (1) On receipt of a claim for a Type 4 or Type 5 grant, the Minister must assess the claim and decide whether the claimant entity is eligible for a grant of an amount.

 (2) The amount of a grant mentioned in subsection (1) is the amount that, apart from the operation of Division 5.3, would be the amount of the grant.

 (3) Before the Minister can be satisfied that a claimant entity is eligible for a grant of an amount, the Minister must be satisfied as to the matters set out in subsections (4), (5), (6) and (7), as far as applicable.

 (4) The Minister must be satisfied that the restructuring initiative complies with the requirements of subsection 29 (5).

 (5) The Minister must be satisfied that second-hand TCF plant or equipment:

 (a) was acquired as part of, or as a direct consequence of, the restructuring initiative; and

 (b) is state-of-the-art; and

 (c) complies with subsections 29 (3) and (4).

 (6) The Minister must be satisfied:

 (a) if the claim is for a Type 4 grant — as to the amount of expenditure that is eligible expenditure within the meaning of subsection 30 (1) incurred by the entity within the program year; or

 (b) if the claim is for a Type 5 grant — as to the amount of expenditure that is eligible expenditure within the meaning of subsection 30 (4) incurred by the entity within the program year.

 (7) The Minister must be satisfied that the claim has been made in accordance with the requirements of sections 56 to 58.

 (8) In addition, in deciding whether the claimant entity is eligible for a grant of an amount, the Minister must take into account, as far as applicable, sections 70 to 72 and 85B.

 (9) In this section:

program year includes the 1999/2000 pre-program year.

70 State-of-the art TCF plant or equipment — Type 4 grants

  In considering, for the purpose of being able to be satisfied for paragraph 69 (5) (b) as to whether second-hand TCF plant or equipment is state-of-the-art, the Minister must have regard:

 (a) to the viable economic life of the second-hand TCF plant or equipment; and

 (b) if the viable economic life of the TCF plant or equipment is less than 70% of the economic life of the plant or equipment when new — to whether the plant or equipment has a demonstrable and relevant technical excellence, based on a capacity to improve manufacturing efficiency (due, for example, to its design or specification).

71 Arms length expenditure — Type 4 and Type 5 grants

  In working out the amount of eligible expenditure for a Type 4 or Type 5 grant, if it appears to the Minister that expenditure has been incurred in a transaction that was not at arms length, the Minister may take the amount of the expenditure to be the amount that would reasonably have been expected to have been incurred if the transaction had been at arms length.

72 Cap for Type 4 and Type 5 grants

 (1) The amount of a Type 4 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 20% of the eligible expenditure incurred during the pre-program year or program year, respectively.

 (2) The amount of a Type 5 grant made to an entity in respect of eligible expenditure incurred by the entity during a particular pre-program year or program year must not exceed 20% of the eligible expenditure incurred during the pre-program year or program year, respectively.

Note   Section 30 sets out what is eligible expenditure for a Type 4 or Type 5 grant.

73 Notice of decisions — Type 4 and Type 5 grants

  The Minister must give notice in writing to an entity making a claim for a Type 4 or Type 5 grant, of the Minister’s decision as to the entity’s eligibility for a grant.

74 Effect of decision as to eligibility for Type 4 and Type 5 grants

  A decision by the Minister under this Subdivision that a claimant entity is eligible for a grant of an amount does not, of itself, give rise to an entitlement to the grant.

Division 5.3 Determination and payment of claims

Subdivision 5.3.1 Determination and payment of claims — Type 1, Type 2 and Type 3 grants

74A Meaning of determination

  In this Division, determination, in relation to an entity in relation to a claim, means a determination that the entity is entitled to be paid the grant that is the subject of the claim.

75 Request for determination and payment of Type 1, Type 2 and Type 3 grants

 (1) A claimant entity may, at the time of making a claim for a Type 1, Type 2 or Type 3 grant for a modulation year, request a determination and payment of the claim, including any amount deferred under section 68A or that the entity is eligible to be granted under subsection 85A (3).

 (2) A claimant entity may, at the time of making a claim for a Type 1, Type 2 or Type 3 grant for a program year other than a modulation year (or at any time after making that claim), request a determination and payment of the claim, including any amount that the entity is eligible to be granted under subsection 85A (3).

 (3) A request under subsection (1) or (2) must be:

 (a) in writing in a form approved by the Secretary; and

 (b) signed in a manner indicated by the form.

Note   Requests in writing and other documents under the Scheme may be sent electronically — see section 94.

 (4) The request must be accompanied by:

 (a) a statement of the total eligible revenue for the entity for the income year of the entity preceding the income year during which the entity expects that the grant will become payable; and

 (b) an auditor’s report verifying the total eligible revenue; and

 (c) a statement indicating whether the applicant entity elects to have an excess amount under subsection 85A (3) or, for a modulation year, a deferred amount under section 68A, paid in relation to the program year to which the determination relates.

 (5) However, if the claim relates to eligible expenditure by the entity during an eligible start-up period of the entity, the request must be accompanied by:

 (a) a statement of the total of the eligible start-up investment amounts of the entity for each of the income years of the entity preceding the income year during which the entity expects that the grant will become payable; and

 (b) a statement indicating whether the applicant entity elects to have, for a modulation year, a deferred amount under section 68A paid in relation to the program year to which the determination relates; and

 (c) an auditor’s report verifying the total of the eligible start-up investment amounts.

 (6) Despite subsections (4) and (5), if, because of exceptional circumstances affecting the entity, a claimant entity:

 (a) is unable to provide an auditor’s report verifying the statement made under paragraph (4) (a) or (5) (a), as the case requires, at the time of requesting the determination; or

 (b) expected under paragraph (4) (a) or (5) (a) that the grant would be paid in an income year before the income year in which the grant is actually payable;

  then, if there is good reason to do so:

 (c) a determination may be made in respect of the request; but

 (d) payment of any grant or a regular advance of a Type 1, Type 2 or Type 3 grant for a subsequent program year must not be made until an auditor’s report is provided to the Secretary verifying, as the case requires:

 (i) a statement of the total eligible revenue for the income year of the entity preceding the income year during which the grant becomes payable; or

 (ii) a statement of the total eligible start-up investment amounts for each of the income years of the entity preceding the income year during which the grant becomes payable.

76 Determination of entitlement — Type 1, Type 2 and Type 3 grants

 (1) Subject to subsection (4), if:

 (a) an entity requests a determination of a claim for a Type 1, Type 2 or Type 3 grant in respect of a pre-program year and the 2000/2001 program year, or a program year; and

 (b) the entity is eligible, in accordance with Subdivision 5.2.1, for a Type 1, Type 2 or Type 3 grant of an amount in respect of a pre‑program year and the 2000/2001 program year, or a subsequent program year;

the entity is entitled to be paid the amount of the claim.

 (2) In assessing whether the entity is entitled to be paid a grant, subsection (3) and, as far as applicable, sections 78 to 80, 85A, 85B, 85C, 85D and 86 must be taken into account.

 (3) An entity is not entitled to be paid a grant if, when the request is made, the entity is no longer carrying on an eligible TCF activity.

 (4) This section does not apply to an entity in respect of a claim for a Type 1 grant if section 77 applies to the entity.

77 Alternative determination of entitlement — Type 1 grants

 (1) This section applies to an entity if:

 (a) the entity:

 (i) makes a claim for a Type 1 grant in respect of a pre‑program year and the 2000/2001 program year, or a subsequent program year; and

 (ii) requests, under section 75, a determination in respect of the claim; and

 (iii) has notified the Secretary, under subsection 36 (3), that the method of establishing the entity’s entitlement to Type 1 grants set out in this section is to apply to the entity; and

 (b) the entity is eligible, in accordance with Subdivision 5.2.1, for a Type 1 grant of an amount (the eligible grant amount) in respect of a pre‑program year and the 2000/2001 program year, or a subsequent program year.

 (2) Subject to subsections (3) and (4), an entity to which this section applies is entitled to a determination for a Type 1 grant, for a pre-program year or program year in the first column of the following table, of the corresponding amount in the second column of the table:

 (3) In establishing whether the entity is entitled to a determination for an amount mentioned in subsection (2), subsection (4) and, as far as applicable, sections 78 to 80, 85A, 85B, 85C, 85D and 86 must be taken into account.

 (4) An entity is not entitled to a determination if, when a request for a determination is made, the entity is no longer carrying on an eligible TCF activity.

78 Threshold expenditure for pre-program years — Type 1 grants

 (1) An entity is not entitled to be paid a Type 1 grant for a pre‑program year unless:

 (a) the total amount of the eligible expenditure incurred by the entity in the pre-program years in respect of eligible TCF activities exceeds $200 000 (the threshold amount); or

 (b) if the total amount of the eligible expenditure in the pre‑program years in respect of eligible TCF activities does not exceed the threshold amount — the total amount of eligible expenditure for Type 1 and Type 2 grants incurred by the entity in 1 or more of the program years, and in respect of which the entity has made a claim, exceeds the threshold amount.

 (2) If, for an entity, the total amount of the eligible expenditure mentioned in paragraph (1) (a) or (b) exceeds the threshold amount, the entity becomes entitled to be paid a Type 1 grant in respect of eligible expenditure in each of the pre-program years if, apart from this section, the entity would be entitled to be paid the grant.

79 Threshold expenditure for Type 1, Type 2 and Type 3 grants

 (1) An entity is not entitled to be paid a Type 1, Type 2 or Type 3 grant for a program year unless the sum of the amounts mentioned in subsection (2) exceeds $200 000 (the threshold amount).

 (2) For subsection (1), the amounts are:

 (a) the total amount of eligible expenditure for Type 1 and Type 2 grants incurred by the entity in the program year in respect of which the claim is made; and

 (b) the total amount of eligible expenditure for Type 1 and Type 2 grants:

 (i) incurred by the entity in previous program years; and

 (ii) in respect of which a claim was made.

Note 1   To take advantage of paragraph (2) (b), an entity must make a claim for a grant in respect of eligible expenditure incurred in a program year, even if the eligible expenditure, together with previously accumulated eligible expenditure (if any), will not exceed the threshold of $200 000.

Note 2   Eligible expenditure in a pre-program year does not count towards the $200 000 threshold for the program years.

 (3) If, for an entity, the sum of the amounts mentioned in subsection (2) exceeds the threshold amount, the entity becomes entitled to be paid a Type 1, Type 2 or Type 3 grant in respect of eligible expenditure in each of the program years if, apart from this section, the entity would be entitled to be paid the grant.

80 Minimum additional expenditure

 (1) An entity is not entitled to be paid a Type 1, Type 2 or a Type 3 grant unless the total amount of relevant eligible expenditure mentioned in subsection (2) incurred by the entity in respect of eligible TCF activities exceeds $100 000.

 (2) In subsection (1):

relevant eligible expenditure means eligible expenditure:

 (a) in respect of which the entity has made a claim; and

 (b) that has not been taken into account in the payment of any previous grant.

 (3) However, subsection (2) does not apply to a grant in respect of amounts of eligible expenditure accumulated by, or incurred in, the 2004/2005 program year.

 (4) Nothing in this section affects the operation of section 79.

81 Determination and payment of Type 1, Type 2 and Type 3 grants

 (1) The Secretary must give notice, in writing, of a determination made under section 76 or 77 to the entity requesting the determination.

 (2) The notice must be given as soon as practicable after the determination is made.

 (3) If the Secretary determines that the entity is not entitled to be paid a grant, the notice must include reasons for the decision.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (4) If the Secretary determines that an entity is entitled to be paid a grant of an amount, the Secretary must pay the amount to the entity.

 (5) The grant must be paid as soon as practicable after the Secretary has made the determination.

 (6) However, if a Type 1, Type 2 or Type 3 grant is to be paid for a modulation year, the payment is to be made in June and before 10 June in the relevant financial year.

 (6A) Also, if a claimant entity has breached a condition in relation to a regular advance of a grant, the Secretary may reduce the amount of the grant payable to the entity by the amount (if any) to which, because of the breach, the entity would not otherwise have been entitled as part of the regular advance.

 (6B) A determination under this Subdivision is revocable under section 81A, and may be remade under that section.

Note   Section 81A provides for the circumstances in which a determination may be revoked and, if appropriate, remade.

 (7) If a determination that an entity is to be paid a grant is not made in response to a claim for a Type 1, Type 2 or Type 3 grant because the applicant entity has not satisfied a provision of this Scheme, the Secretary must, as soon as practicable, give notice, in writing, to the entity setting out the reason for not making the determination.

Note   Section 89 requires the notice to be accompanied by a statement about the entity’s right to have the decision reconsidered or reviewed.

 (8) If a claimant is not eligible, in accordance with Subdivision 5.2.1, for a grant of an amount for a program year, the Secretary must not:

 (a) determine that the claimant is entitled to be paid the amount for the program year; or

 (b) pay a grant to the claimant of the amount for the program year.

81A Revocation and remaking of determinations etc

 (1) If:

 (a) a determination is made in relation to an entity; and

 (b) the amount determined, or paid to the entity under the determination, is not the amount (if any) to which the entity is entitled under the Scheme;

then, in any of the circumstances mentioned in subsection (2), the Secretary must revoke the determination and, if appropriate, make a revised determination in its place.

 (2) For subsection (1), the circumstances are as follows:

 (a) the determination or payment contains or relies on a clerical error;

 (b) the determination or payment was based wholly or in part on incorrect information;

 (c) the determination or payment was based wholly or in part on a misinterpretation of a provision of the Act or Scheme by a self‑assessing entity;

 (d) the determination or payment is contrary to a provision of the Act or Scheme.

 (3) If the Secretary revokes a determination in relation to which a grant has been paid:

 (a) in a case in which a revised determination is not made under subsection (1) — the amount of the grant (the original grant); and

 (b) in a case in which a revised determination is made under subsection (1), and the amount of the grant under the revised determination (the revised grant) is less than the original grant — the difference between the original grant and the revised grant;

must be repaid by the entity and may be recovered as a scheme debt.

Note   Sections 45, 46 and 47 of the Act deal with recovery of a scheme debt by legal proceedings (section 45), recovery by set-off against a grant payable to the entity concerned (section 46), and recovery from a person other than the entity in certain cases (section 47).

Subdivision 5.3.2 Determination of entitlement — Type 4 and Type 5 grants

82 Request for determination of a Type 4 or Type 5 grant

 (1) A claimant entity may, at the time of making a claim for a Type 4 or Type 5 grant for a modulation year, request a determination and payment of the claim, including any amount deferred under section 68A or that the entity is eligible to be granted under subsection 85A (3).

 (2) A claimant entity may, at the time of making a claim for a Type 4 or Type 5 grant for a program year other than a modulation year (or at any time after making that claim), request a determination and payment of the claim, including any amount that the entity is eligible to be granted under subsection 85A (3).

 (3) A request under subsection (1) or (2) must be:

 (a) in writing in a form approved by the Secretary; and

 (b) signed in a manner indicated by the form.

Note   Requests in writing and other documents under the Scheme may be sent electronically — see section 94.

 (4) The request must be accompanied by:

 (a) a statement of the total eligible revenue for the entity for the income year of the entity preceding the income year during which the entity expects that the grant will become payable; and

 (b) an auditor’s report verifying the total eligible revenue; and

 (c) a statement indicating whether the applicant entity elects to have an excess amount under subsection 85A (3) or, for a modulation year, a deferred amount under section 68A, paid in relation to the program year to which the determination relates.

 (5) However, if, because of exceptional circumstances affecting the entity, a claimant entity:

 (a) is unable to provide an auditor’s report verifying the statement made under paragraph (4) (a) at the time of requesting the determination; or

 (b) expected under paragraph (4) (a) that the grant would be paid in an income year before the income year in which the grant is actually payable;

  then, if there is good reason to do so:

 (c) a determination may be made in respect of the request; but

 (d) payment of any grant or a regular advance of a Type 4 or Type 5 grant for a subsequent program year must not be made until an auditor’s report is provided to the Secretary verifying a statement of the total eligible revenue for the income year of the entity preceding the income year during which the grant becomes payable.

 (6) However, if a claimant entity has breached a condition in relation to a regular advance of a grant, the Secretary may reduce the amount of the grant payable to the entity by the amount (if any) to which, because of the breach, the entity would not otherwise have been entitled as part of the regular advance.

 (7) A determination under this Subdivision is revocable under section 82A and may be remade under that section.

Note   Section 82A provides for the circumstances in which a determination may be revoked and, if appropriate, remade.

 (8) If a claimant is not eligible, in accordance with Subdivision 5.2.2, for a grant of an amount for a program year, the Secretary:

 (a) must not determine that the claimant is entitled to be paid the amount for the program year; and

 (b) must not pay a grant to the claimant of the amount for the program year.

83 Determination of Type 4 and Type 5 grants

 (1) If the Minister is satisfied, on receipt of a request in accordance with section 82, that the claimant entity is entitled to be paid a Type 4 or Type 5 grant of an amount, the Minister must determine that the entity is entitled to be paid the amount.

 (2) Before the Minister can be satisfied that the entity is entitled to be paid a grant of an amount, the Minister must have decided, in accordance with Subdivision 5.2.2, that the entity is eligible for a grant of the amount.

 (3) In addition, in determining whether the entity is entitled to be paid a grant of an amount, the Minister must take into account subsection (4) and section 85 and, as far as applicable, sections 85A, 85B, 85C, 85D and 86.

 (4) An entity is not entitled to be paid a Type 4 or Type 5 grant if, when the request is made, the entity is no longer carrying on an eligible TCF activity.

83A Revocation and remaking determinations etc

 (1) If:

 (a) a determination is made in relation to an entity; and

 (b) the amount determined, or paid to the entity under the determination, is not the amount (if any) to which the entity is entitled under the Scheme;

then, in any of the circumstances mentioned in subsection (2), the Minister must revoke the determination and, if appropriate, make a revised determination in its place.

 (2) For subsection (1), the circumstances are as follows:

 (a) the determination or payment contains or relies on a clerical error;

 (b) the determination or payment was based wholly or in part on incorrect information;

 (c) the determination or payment was based wholly or in part on a misinterpretation of a provision of the Act or Scheme by a self‑assessing entity;

 (d) the determination or payment is contrary to a provision of the Act or Scheme.

 (3) If the Minister revokes a determination in relation to which a grant has been paid:

 (a) in a case in which a revised determination is not made under subsection (1) — the amount of the grant (the original grant); and

 (b) in a case in which a revised determination is made under subsection (1), and the amount of the grant under the revised determination (the revised grant) is less than the original grant — the difference between the original grant and the revised grant;

must be repaid by the entity and may be recovered as a scheme debt.

Note   Sections 45, 46 and 47 of the Act deal with recovery of a scheme debt by legal proceedings (section 45), recovery by set-off against a grant payable to the entity concerned (section 46) and recovery from a person other than the entity in certain cases (section 47).

84 Notice of determination — Type 4 and Type 5 grants

 (1) The Minister must give notice, in writing, of a determination made under section 83 to the entity that has requested the determination.

 (2) The notice must be given as soon as practicable after the determination is made.

85 Payment of Type 4 and Type 5 grants

 (1) If the Minister determines that an entity is entitled to be paid a grant of an amount, the Secretary must pay the amount to the entity.

 (2) The grant must be paid as soon as practicable after the Minister has made the determination.

 (3) However, if a Type 4 or Type 5 grant is to be paid for a modulation year, the payment is to be made in June and before 10 June in the relevant financial year.

Subdivision 5.3.3 Overall limits on grant entitlements

85A Sales-based cap for grants

 (1) The total grants that become payable to an entity during a particular income year of the entity (the claim year) in respect of eligible expenditure incurred by the entity or TCF value added by the entity otherwise than during an eligible start-up period of the entity must not exceed 5% of the total eligible revenue for the entity for the income year of the entity preceding the claim year.

 (2) The total of the Type 1, Type 2 and Type 3 grants that become payable to an entity during a particular income year of the entity (the claim year) and any income years of the entity that are earlier than the claim year, in respect of eligible expenditure incurred by the entity during an eligible start-up period of the entity, must not exceed 15% of the total of the eligible start-up investment amounts of the entity for each of the income years of the entity that are earlier than the claim year.

 (3) If, in an income year of an entity (the claim year), the total grants that become payable to the entity in respect of eligible expenditure incurred by the entity or TCF value added by the entity would, but for the operation of subsection (1), exceed 5% of the total eligible revenue for the entity for the income year of the entity preceding the claim year, the entity is eligible for a grant of that excess amount in a subsequent year of the Scheme for which a claim is made.

 (4) However, subsection (1) applies to an amount claimed under subsection (3) in the year in which it is claimed.

 (5) In subsection (2):

eligible start-up investment amount, for an entity and for an income year of the entity, means the total expenditure incurred by the entity during the income year on the acquisition of any land, building, structure, plant, equipment, materials or other asset for the carrying on of an eligible TCF activity for the first time.

eligible start-up period, for an entity, means the period:

 (a) starting on the day when the entity first enters into a financial commitment to carry on an eligible TCF activity, not having previously carried on an eligible TCF activity; and

 (b) ending 12 months after the day when the entity first begins production (other than sample production) of an eligible TCF product.

 (6) For the definition of eligible start-up investment amount in subsection (5), subsections 15 (3) to (7) apply to expenditure on any building, structure, plant, equipment, materials or other asset mentioned in the definition as they apply to expenditure on any building, structure, plant, equipment, materials or other asset mentioned in section 15.

85B Modulation of Type 1, Type 2, Type 4 and Type 5 grants

 (1) The modulation factor for each of the 2001/2002, 2002/2003 and 2003/2004 program years is 1.

 (2) However, if, in a financial year, the amount mentioned for that financial year in subsection 85E (1) would, but for section 85E, be exceeded, the modulation factor for each relevant program year in relation to a subsequent financial year is to be worked out in accordance with the formula set out in subsection (3).

 (3) The modulation factor for grants for a modulation year is worked out in accordance with the formula:

where:

PA is:

 (a) for the 2001/2002 program year — $130 100 000; and

 (b) for the 2002/2003 program year — $135 000 000; and

 (c) for the 2003/2004 program year — $135 000 000; and

 (d) for the 2004/2005 program year — $129 600 000 together with any unspent amount from previous program years.

RAP means the total of all Regional Assistance Program supplementation payments for the program year.

RSA means the total of the regular and special advances that have not been acquitted for the program year.

SBCA means the total of the post sales-based cap amount for all grant types for the program year.