Textile, Clothing and Footwear Strategic Investment Program Scheme Amendment 2002 (No. 1)

Textile, Clothing and Footwear Strategic Investment Program Scheme Amendment 2002 (No. 1)

I, IAN ELGIN MACFARLANE, Minister for Industry, Tourism and Resources, make this instrument under sections 8 and 34 of the Textile, Clothing and Footwear Strategic Investment Program Act 1999.

Dated 26 August 2002

IAN MACFARLANE

Minister for Industry, Tourism and Resources

1 Name of Instrument

  This Instrument is the Textile, Clothing and Footwear Strategic Investment Program Scheme Amendment 2002 (No. 1).

2 Commencement

  This Instrument commences on gazettal.

3 Amendment of Textile, Clothing and Footwear Strategic Investment Program Scheme 1999

  Schedule 1 amends the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999.

4 Application and saving

 (1) In this section:

amended Scheme means the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999 as amended by Schedule 1.

old Scheme means the Textile, Clothing and Footwear Strategic Investment Program Scheme 1999, as amended and in force before the commencement of this instrument.

 (2) The old Scheme continues to apply in relation to requests, claims and grants made in relation to the 2000/2001 program year (including a pre-program year).

 (3) The amended Scheme applies in relation to requests, claims and grants made in relation to the 2001/2002 program year and subsequent program years.

 (4) However, in relation to the 2001/2002 and 2002/2003 program years, anything done under the old Scheme before the commencement of this instrument is taken to have been done under the amended Scheme as if any relevant time constraint under the amended Scheme were the longer of the time constraint applicable under the amended Scheme and the corresponding time constraint under the old Scheme.

 (5) Further, the amendments of paragraph 87 (3) (c) and sections 63 and 88 of the old Scheme made by Schedule 1 apply in relation to a request under subsection 87 (1) for reconsideration of a decision of the Secretary for any program year (including a pre-program year).

Schedule 1 Amendments

 (section 3)

Do not delete: Schedule Part Placeholder

[1] Section 3, definitions of eligible start-up investment amount and eligible start-up period

omit

subsection 85 (3).

insert

subsection 85A (5).

[2] Section 3, after definition of ITAA 1997

insert

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

[3] Section 3, after definition of regular advance

insert

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.

[4] Subsection 9 (3), at the foot

insert

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

[5] Section 19

substitute

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.

[6] After paragraph 24 (1) (a)

insert

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

[7] Section 28, at the foot

insert

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

[8] After section 30

insert in Division 2.5

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.

[9] Subsection 36 (1A)

omit

section 77A

insert

section 77

[10] Section 38

substitute

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.

[11] Paragraph 42 (2) (b)

substitute

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

[12] Subsection 42 (2), note

omit

[13] Subsection 43 (2)

omit

[14] Subsections 43 (4) and (5)

omit

[15] Subsection 51E (2)

omit

finally determined

insert

paid

[16] Paragraph 51F (d)

omit

section 85

insert

section 85A

[17] Paragraph 51G (1) (a)

omit

; or

insert

; and

[18] Paragraphs 51G (1) (b) and (c)

substitute

 (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 July 2003; and

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

[19] Subsections 51H (1) and (2)

substitute

 (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 July 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.

[20] Sections 51I, 51J and 51K

substitute

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.

[21] Subsection 51L (3)

omit

particular

[22] Section 51P

omit

[23] Paragraph 51Q (1) (a)

omit

the Secretary has assessed the entity as being

insert

the entity is

[24] Paragraph 51Q (1) (a)

omit

a particular

insert

an

[25] Before subsection 51U (1)

insert

 (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.

[26] Before section 51V

insert

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.

[27] Subsection 51V (1)

omit

Secretary decides that an entity is eligible for a regular advance of a Type 1, Type 2 or Type 3 grant of a particular amount,

insert

entity is eligible for a regular advance of a Type 1, Type 2 or Type 3 grant of an amount,

[28] Subsection 51W (3)

omit

finally determined

insert

paid

[29] Paragraph 51X (f)

omit

section 85

insert

section 85A

[30] Subsection 51Y (2)

after

a program year

insert

other than a modulation year

[31] Subsection 51Y (3)

substitute

 (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.

[32] Subsections 51Z (1), (2) and (7)

omit

a particular

insert

an

[33] Subsection 51Z (7)

omit

sections 51ZB to 51ZE.

insert

sections 51ZB to 51ZD.

[34] Section 51ZE

omit

[35] Subsection 51ZG (1)

omit

a particular

insert

an

[36] Subsection 53 (1), at the foot

insert

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.

[37] Subsection 53 (2), at the foot

insert

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.

[38] Sections 54 and 55

substitute

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.

[39] After subsection 57 (2)

insert

 (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.

[40] Subsections 58 (2) and (3)

substitute

 (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.

[41] Subsection 59 (2)

omit

[42] After section 59

insert

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.

[43] Sections 61 and 62

substitute

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.

[44] After subsection 63 (1)

insert

 (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.

[45] Subsection 63 (3)

omit

particular

[46] Subsections 67 (1) and (1A)

substitute

 (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.

[47] Subsection 67 (2)

omit

paragraph (1) (b)

substitute

paragraph (1B) (b)

[48] Paragraph 67 (4) (a)

omit

subsection (1); or

substitute

subsection (1B); or

[49] Paragraph 67 (4) (b)

omit

paragraph (1) (b)

substitute

paragraph (1B) (b)

[50] Section 68

substitute

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.

[51] Subsection 69 (1)

omit

a particular

insert

an

[52] Subsection 69 (2)

omit

The particular

insert

The

[53] Subsections 69 (3) and (8)

omit

a particular

insert

an

[54] Section 74

omit

a particular

insert

an

[55] Subdivision 5.2.3

omit

[56] Division 5.3

substitute

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 but, because of the operation of this section, a grant was not paid.

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.

 (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.

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.

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.

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.

UEGA means unpaid eligible grant amounts from previous years that are to be paid in the program year.

 (4) However, if the modulation factor for a program year is less than 1, the amount of a Type 1, Type 2, Type 4 or Type 5 grant made to an entity for a program year must not exceed the amount worked out in accordance with the formula:

where:

MF is the modulation factor for the program year.

G is the amount of the grant for which, apart from this section, the entity would have been eligible under this Part.

 (5) In this section:

program year means each of the following:

 (a) the 2000/2001 program year together with the pre-program years;

 (b) the 2001/2002 program year;

 (c) the 2002/2003 program year;

 (d) the 2003/2004 program year;

 (e) the 2004/2005 program year.

85C Reductions on account of special advances

 (1) Subsection (2) applies to an entity if the entity has, in accordance with Part 5B, already received a special advance on account of the grant.

 (2) In working out the amount of the grant that the entity is entitled to be paid, the amount that, but for this section, would be payable to the entity must be reduced by the amount of the special advance of the grant that has been paid to the entity on account of the grant.

Note   If an entity receives an advance on account of a grant that may become payable to the entity and that amount is greater than the amount of the grant, the entity is liable to pay to the Commonwealth the amount of the excess. The Commonwealth may recover the excess as a scheme debt. The scheme debt may be recovered by court action or by deduction from other grants payable to the entity — see section 20 and sections 44 to 47 of the Act.

85D Reductions on account of regular advances

 (1) Subsection (2) applies to an entity that has, in accordance with Part 4A, already received an amount by way of a regular advance on account of the grant.

 (2) In working out the amount of the grant that the entity is entitled to be paid, the amount that, but for this section, would be payable to the entity must be reduced by the amount of the regular advance of the grant that has been paid to the entity on account of the grant.

Note   If an entity receives an amount by way of an advance on account of a grant that may become payable to the entity and that amount is greater than the amount of the grant, the entity is liable to pay to the Commonwealth the amount of the excess. The Commonwealth may recover the excess as a scheme debt. The scheme debt may be recovered by court action or by deduction from other grants payable to the entity — see section 20 and sections 44 to 47 of the Act.

Subdivision 5.3.4 Limits on payments

85E Annual limit on payments

 (1) Nothing in this Part authorises the expenditure for the Scheme of an amount that exceeds:

 (a) for the 2002/2003 financial year — $130 100 000;

 (b) for the 2003/2004 financial year — $135 000 000;

 (c) for the 2004/2005 financial year — $135 000 000;

 (d) for the 2005/2006 financial year — $129 600 000, together with any unspent amount from a previous program year.

 (2) If the operation of a determination would cause an amount referred to in paragraph (1) (a), (b) or (c) to be exceeded in a financial year, the determination:

 (a) is not to be made in the financial year; and

 (b) must be made (without further application) as soon as practicable in the next financial year as if the modulation factor for the relevant program year were 1.

86 Expenditure limit on Scheme

  For section 9 of the Act, the total of grants paid, and loans made, under the Scheme must not exceed the lesser of $677 700 000 and the amount worked out using the formula in that section.

[57] Subsection 86G (1)

omit

subsection 85 (1),

insert

subsection 85A (1),

[58] Subsection 86G (2)

omit

subsection 85 (2),

insert

subsection 85A (2),

[59] Subparagraph 86L (5) (c) (vii) and (viii)

substitute

 (vii) if the entity has not yet made a claim for a grant for which a special advance is sought, a written statement by the receiver or administrator to the effect that the entity intends to make the claim;

 (viii) if a claim for a grant for which a special advance is sought has been made but the entity has not yet requested the Secretary to determine the entity’s entitlement to the grant, a written statement by the receiver or administrator to the effect that the entity intends to request the Secretary to make the determination;

[60] Subparagraph 86L (5) (c) (ix)

omit

section 85

insert

section 85A

[61] Subsection 86L (6)

omit

entity, receiver or the administrator

insert

entity

[62] Subsections 86P (3) and 86U (4)

omit

particular

[63] Subparagraph 86V (3) (c) (v) and (vi)

substitute

 (v) if the entity has not yet made a claim for a grant for which a special advance is sought, a written statement by the receiver or administrator confirming that the entity intends to make the claim;

 (vi) if a claim for a grant for which a special advance is sought has been made but the entity has not yet requested the Minister to determine the entity’s entitlement to the grant, a written statement by the receiver or administrator to the effect that the entity intends to request the Minister to make the determination;

[64] Subparagraph 86V (3) (c) (vii)

omit

section 85

insert

section 85A

[65] Subsection 86V (4)

omit

receiver, administrator or

[66] Subsection 86W (7)

omit

a particular

insert

an

[67] Subsection 86ZC (4)

omit

particular

[68] Paragraph 87 (2) (a)

omit

75, 78, 79, 80 or 85; or

insert

78, 79, 80, 85A or 85B; or

[69] Paragraph 87 (3) (c)

after

the decision

insert

or within such further period as the Secretary allows

[70] Subsection 88 (5)

substitute

 (5) The confirmation, revocation or variation under subsection (2) of a decision is not invalid merely because it is done after the end of the period referred to in subsection (3) unless, before it is done, the applicant makes an application to the Administrative Appeals Tribunal under subsection (6) for review of the decision.

 (6) An application may be made to the Administrative Appeals Tribunal for a review of a decision that is confirmed or varied under this section.

[71] Schedule 4

omit